DECEMBER 1996

COMMISSION DECISIONS AND ORDERS
12-02-96 ASARCO, Inc.
12-10-96 Sec. Labor on behalf of K. Hannah, et al.
v. Consolidation Coal Company
12- 10- 96 Sec. Labor on behalf of James Hyles
et al . v. All American Asphalt
12-12-96 Austin Powder Company

CENT 95-8-RM

Pg. 2081

LAKE 94-704-D

Pg. 2085

WEST 93-336-DM
YORK 95-57-M

Pg. 2096
Pg. 2105

WEVA 96-115
WEVA 92 - 15-R
KENT 96-201 - D

Pg. 2107
Pg . 2112
Pg. 2133

KENT 96-219-D
LAKE 96-137-M
PENN 93-445
WEVA 96-108
LAKE 94-263-R
LAKE 94-276-R
LAKE 94-288-R
LAKE 94-600
YORK 95-57-M
LAKE 95-114-RM
LAKE 94-420-R
LAKE 94-292-R
WEVA 94 - 33
LAKE 94-475-R
LAKE 94-554-R
PENN 95-479-DM
LAKE 94-643-R
LAKE 95-27-R

Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
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Pg.
Pg.
Pg.
Pg .
Pg.
Pg.
Pg.
Pg.
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2142
2151
2156
2166
2174
2181
2187
2193
2197
2199
2214
2219
2225
2228
2234
2241
2242
2248

WEST
WEST
WEST
LAKE

Pg.
Pg.
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2253
2258
2260
2271

ADMINISTRATIVE LAW J1JDGE DECISIONS
12-02-96 U.S. Steel Mining Company, Inc.
12 - 04-96 Southern Minerals, Inc.
12-12-96 Prabhu Deshetty v . Manalapan Mining Co.
12-12-96 Sec. Labor on behalf of Steve Baker
v. Cedar Coal Company, Inc.
12-12-96 Christman Quarry
12-12-96 New Warwick Mining Company
12-12-96 Consolidation Coal Company
12-13-96 Buck Creek Coal, Inc.
12 - 13 - 96 Buck Creek Coal, Inc.
12-13-96 Buck Creek Coal, Inc.
12-13-96 Buck Creek Coal, Inc.
12-16-96 Austin Powder Company
12-16-96 Standard Lafarge
12-16-96 Buck Creek Coal, Inc.
12-17-96 Buck Creek Coal, Inc.
12-J.8-96 Empire Energy, Inc.
12-19-96 Buck Creek Coal, Inc.
12-23-96 Buck Creek Coal, Inc.
12-23-96 Wl.lliam F. Metz v. Wimpey Minerals
12-26-96 Buck Creek Coal, Inc.
12-27-96 Buck Creek Coal, Inc.

ADMINISTRATIVE LAW JUPGE ORDERS
12-02-96 Newmont Gold company
12-05-96 Newmont Gold Company
12-05-96 Newmont Gold Company
12-24- 96 Yahara Materials Inc.

i

95-434-M
95-434-M
95 - 434-M
96-6-M

DECEMBER

199 6

Review was granted in the following cases during the month of December:
Daanen & Janssen, Inc. v . Secretary of Labor, MSHA, Docket No. LAKE 95 - 180 - RM,
etc. (Judge Barbour, October 22, 1996)
Contractors Sand and Gravel, Inc. v. Secretary of Labor, MSHA, Docket No .
EAJ 96-3. (Judge Cetti, October 28, 1996}
Secretary of Labor, MSHA v. Austin Powder Company , Docket No. YORK 95-57 - M,
etc. (Chief Judge Merlin, October 31, 1996)
Secretary of Labor, MSHA v. Wayne R. Steen, Docket No. PENN 94 - 15.
Fauver, November 15 , 1996)

(Judge

Secretary of Labor, MSHA v. Ambros ia Coal and Construction Compa ny, Docket No .
PENN 93-233.
(Judge Fauver, November 15, 1996)
AKZO Nobel Salt, Inc. v. Secretary of Labor, MSHA, Docket No . LAKE 96 - 66-RM.
(Judge Koutras, November 19, 1996}
James M. Ray, employed by Leo Jour nagan Construction v. Secr etary of Labor ,
MSHA, Docket No. EAJ 96-4.
(Judge Fauver, November 21, 1996)

Review was denied in the followi ng case duri n g t h e mon th of Dece!Dber:

Secretary of Labor , MSHA v . Amax Coal Company, Docket No. LAKE 94-55, etc.
(Judge Feldman, October 31, 1996}

ii

COMMISSION DECISIONS AND ORDERS

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

December 2, 1996

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

Docket Nos. CENT 95-8-RM
CENT 95-9-RM

ASARCO, INC.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of DAVID HOPKINS
Docket No. CENT 95-122-DM

v.

ASARCO, INC.
BEFORE: Jordan, Chairman; Marks and Riley, Comrnissioners 1
ORDER
BY THE COMMISSION:
In these consolidated contest and discrimination proceedings arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. ( 1994) ("Mine Act"), the parties
filed a Joint Motion To Approve Settlement Agreement on October 23, 1996 ("Joint Motion").
For the reasons set forth below, we deny the Joint Motion without prejudice.
On March 4, 1996, Administrative Law Judge Richard W. Manning issued a decision
finding that ASARCO, Inc. ("ASARCO") violated section 105(c) of the Mine Act, 30 U.S.C.
§ 815(c), when it discharged David G. Hopkins, the' complainant. 18 FMSHRC 317, 335 (March
1996) (ALJ). In a Supplemental Decision and Final Order issued on July 16, 1996, Judge

1

Pursuant to section l 13(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.

2081.

Manning awarded Hopkins reinstatement2 and $12,752 in back pay (minus payroll deductions),
interest, and expenses. 18 FMSHRC 1160, 1163-65 (July 1996) (ALJ). Judge Manning also
ordered ASARCO to expunge from Hopkins' personnel records any mention of his discharge,
and to pay a civil penalty of$800 for its violation of section I05(c). Id. On August 23, 1996, the
Commission granted ASARCO's petition for discretionary review challenging the judge's
conclusions. 3
ASARCO subsequently filed with the Commission two motions requesting extensions of
the briefing schedule, indicating that the parties were either engaged in settlement discussions or
in the process of executing a settlement agreement. The Commission granted both motions and
directed ASARCO to file its brief by November 6, 1996. The parties filed their Joint Motion
before ASARCO's brief was due. The motion requests, inter alia, that the Commission approve
the settlement agreement set out in seven numbered paragraphs within the motion. Joint Motion
at 3-4.
Under the terms of the settlement agreement, ASARCO agrees to pay Hopkins $15,000
"in settlement of any and all of Mr. Hopkins' claims against [the company]," and to pay $500 in
settlement of the $800 fine assessed by the judge. Id. at 3. Without further elaboration, the
parties state that their proposed penalty "is consistent with the statutory criteria for penalties
under the Mine Act." Id. Hopkins waives any rights to be reinstated or to seek employment at
any facility owned by ASARCO or its subsidiaries, successors, or assigns, and he releases
ASARCO from further liability. Id. The parties agree to bear their own costs in connection with
the proceeding, and r~present that the settlement "is in the public interest and will further the
intent and purpose of the Mine Act." Id. at 3-4. The motion is signed by counsel for ASARCO
and the Secretary, and by Hopkins. Included in the motion is a "Confidentiality Agreement"
paginated as part of the overall submission and signed by ASARCO's counsel and Hopkins, but
not by the Secretary's counsel. Id. at 5.
Oversight of proposed settlements is committed to the Commission's sound discretion.
Pontiki Coal Corp., 8 FMSHRC 668, 674-75 (May 1986). The Commission has exercised this
discretion in the past in both section 105(c)(2) and section 105(c)(3) discrimination cases. See,
e.g., Reid v. Kiah Creek Mining Co., 15 FMSHRC 390 (March 1993); Secretary of Labor on
behalf of Gabossi v. Western Fuels-Utah, Inc., 11 FMSHRC 134 (February 1989).
On its face, the instant settlement agreement fails to adequately set forth the intent of the
parties regarding the nature of ASARCO's $15,000 payment to Hopkin$ and whether that

2

Hopkins declined the offer of reinstatement.

3

In its PDR, ASARCO also raises the question of whether the judge properly concluded
that ASARCO violated 30 C.F.R. § 57.14100(b) in connection with its discharge of Hopkins.
See 18 FMSHRC at 331-34, 336. Since the Joint Motion requests Commission approval of
ASARCO withdrawing its PDR, this issue is moot.

2082

amount represents a net amount to be paid to Hopkins or whether deductions are to be taken out
of that amount. We conclude that the parties must more clearly express their intentions regarding
the payment to Hopkins to avoid the possibility of future litigation over the terms of the
payment.4
In addition, the parties have failed to meet the requirements of Commission Procedural
Rule 3 l(b)(3). In keeping with Congress' s intention that the Commission "assure that the public
interest is adequately protected before approval of any reduction in penalties," S. Rep. No. 181 ,
95th Cong., 1st Sess. 45 ( 1977), reprinted in Legislative History of the Federal Mine Safety and
Health Act of 1977, at 633 (1978), Rule 3 l (b)(3) requires that a motion to approve settlement
include "[f]acts in support of the penalty agreed to by the parties" (29 C.F.R. § 2700.3 l(b)(3)), so
that the Commission can verify that the reduced penalty is appropriate. Here, no such facts were
provided by the parties in support of their proposal to reduce the $800 fine assessed by the judge
to $500. ASARCO and the Secretary state that their proposed penalty "is consistent with the
statutory criteria," but fail to provide any further justification for reducing the penalty. Joint
Motion at 3.

4

This result is in keeping with our recent ruling in Secretary of Labor on behalfof
Kaczmarczyk v. Reading Anthracite Co., 18 FMSHRC 299 (March 1996). In Kaczmarczyk, we
were presented with a dispute regarding whether deductions should have been taken from an
award of monetary damages paid in compensation for unlawful discrimination under section
105(c) of the Mine Act. Id. at 300. Noting that the "issue [was] governed by the terms of the
Internal Revenue Code, not the Mine Act/' we held that "[i]n order for both Reading and
Kaczmarczyk to treat that damage award properly for income tax purposes, the basis for the
stipulated damages must be categorized in appropriate detail." Id.

2083

Accordingly, the parties' joint motion is denied without prejudice. The parties are invited
to file a revised joint motion clarifying their intent as to the nature of ASARCO' s payment to
Hopkins and fulfilling the requirements of Commission Procedural Rule 31 (b)(3). Any revised
motion to approve settlement shall be filed with the Commission by December 17, 1996. If such
a motion is not filed, ASARCO's brief shall be filed with the Commission by December 31,
1996. The Secretary's response brief will be due thirty days thereafter.

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

Distribution
Henry Chajet, Esq.
Fiti Sunia, Esa.
Patton Boggs, L.L.P.
2550 M Street, N.W.
Washington, D.C. 20037

Yora Kim, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA 22203

2084

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

December 10, 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of KENNETH HANNAH,
PHILIP PAYNE, and FLOYD MEZO
v.

Docket No. LAKE 94-704-D

CONSOLIDATION COAL COMPANY

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners 1

DECISION
BY THE COMMISSION:
This discrimination proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). Following an evidentiary hearing,
Administrative Law Judge Gary Melick dismissed a discrimination complaint brought by the
Secretary of Labor on behalf of Kenneth Hannah, Floyd Mezo, and Phillip Payne under section
105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2). 17 FMSHRC 666 (April 1995) (ALJ). The
judge concluded that disciplinary action taken by Consolidation Coal Company ("Consol")
against the three miners for engaging in a work refusal did not violate section 105(c)(1) of the
Mine Act, 30 U.S.C. § 815(c)(l), because, at the time of their refusal, the miners no longer had a
good faith, reasonable belief in a hazardous condition. 17 FMSHRC at 671-72. For the reasons
that follow, we reverse the judge's determination that the miners' work refusal was unreasonable
and unprotected, and his resultant finding that the disciplinary measures taken by Consol against
the miners for engaging in a work refusal did not.violate the Mine Act. We remand the case for
computation of a backpay award and assessment of an appropriate civil penalty.

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this Panel of three Commissioners has been designated to exercise the powers of
the Commission.
2085

I.
Factual and Procedural Background
Kenneth Hannah, Floyd Mezo, and Phillip Payne were employed by Consol at its Rend
Lake Mine in Sesser, Illinois. Tr. 198-99, 258-59, 310-11. Rend Lake Mine is considered a
"gassy" mine because of the amount of methane it liberates. Tr. 160, 219. During the last shift on
April 9, 1994, the mine experienced a power outage, causing the ventilating fans to shut down. 17
FMSHRC at 668. In the early morning hours of Sunday, April 10, Hannah, Mezo, Payne and
other miners were called to the mine to help restore power underground. Id. at 667-68, 670.
On the morning of April I 0, Mezo and Payne were in the wash house, waiting to go
underground, when three of the miners assigned to perform the preshift examination returned to
the surface. Id at 670. Mezo and Payne overheard the examiners discussing among themselves
whether the secondary escapeways should have been inspected as part of that examination. Id At
least two of the examiners expressed the view that the secondary escapeways should have been
included in the preshift examination, and that the escapeways had always been examined in the
past following a fan stoppage. Tr. 46-47, 49, I 08-09, 262.2 The examiners indicated that, without
such an examination, it was not possible to determine whether methane may have accumulated in
the escapeways. Tr. 262-63.
The escapeways are part of the mine ventilation system and are used to carry methane gas
out of the mine. Tr. 42-43, 483. Methane can accumulate in the escapeways following a fan
stoppage. Tr. 483-84, 522. The escapeways also contain electrical equipment, including pumps,
that could trigger an ignition in the event of a malfunction in the presence of explosive levels of
methane. Tr. 106-07, 170-71, 275.
Mezo and Payne went to the office of their immediate supervisor, John Moore, to report
their concerns about the propriety of the preshift examination and the safety of restoring power in
the mine. 17 FMSHRC at 670; Tr. 202-03, 263-64, 454. Payne expressed his concern about a
possible methane buildup in the mine. Tr. 491. Moore indicated that he was not a mine examiner
and did not know whether the preshift examination was adequate, but he agreed to find out. 17
FMSHRC at 670. Moore then attempted to call someone, and Mezo and Payne returned to the
wash house. Id. In the wash house, Mezo and Payne discussed with Hannah, a member of the
mine safety committee, their concerns about the preshift examination and their meeting with
Moore, and asked Hannah to represent them in th~ir discussions with management concerning this
safety issue. Id. at 668, 670.

2

Several mine examiners, including one of these three examiners, had previously been
informed after a mine stoppage incident several weeks earlier, that state inspector William
Sanders had determined that an inspection of the secondary escapeways was not required
following a fan stoppage. 17 FMSHRC at 668 n. 3. There is no evidence, however, that Hannah,
Mezo or Payne were aware of this ruling at the time of their work refusal. Id.

2086

Before meeting with Moore, Hannah discussed the situation with the three examiners who
had returned to the surface. The examiners told Hannah that the entire mine, including the
secondary escapeways, should be checked before power is restored. Id at 668. Hannah, Mezo,
and Payne then met again with Moore in his office. Hannah explained what he had been told by
the examiners and asked Moore ifhe knew whether the preshift examination had been properly
conducted. Id Moore responded that he did not know because he was not experienced in
production. Id. Hannah replied that he did not know either because he was a surface electrician,
with no underground mining experience. Id at 667-68. Moore then called assistant mine
superintendent Rick Harris. Id at 668.
While he was on the phone with Harris, Moore called the three mine examiners to his
office. Id. Two of the examiners expressed the view that the mine had not been properly
examined following the fan stoppage because the secondary escapeways had not been inspected.
Id.; Tr. 266-67, 322. After completing his phone conversation with Harris, Moore told the miners
that Harris said the mine examination had been proper. 17 FMSHRC at 668. Moore also told the
miners he had discussed the situation with mine superintendent Joseph Wetzel, who also
confirmed that the examination had been properly conducted. Tr. 456-57, 477. Hannah told
Moore that the mine examiners disagreed and that they needed to get the "proper people" to the
mine to make sure it was safe. 17 FMSHRC at 668. Hannah then read to Moore provisions of the
applicable collective-bargaining agreement, which provided that in the event of a disagreement
between miners and management on a safety issue arising under state or federal law, the
appropriate officials were to be contacted. Id. at 668-69.
Shortly thereafter, Moore appeared at the wash house and told Hannah, Mezo, and Payne
that Consol safety director Kit Phares had contacted state inspector William Sanders, who
indicated the preshift examination had been properly conducted and that it was not necessary to
inspect escapeways during the examination. Id. at 669, 671; Tr. 324-25, 414, 457-58, 548-49.
Moore consequently issued a direct order to Mezo and Payne to return to work. Tr. 33, 118-19,
415, 457. Hannah again referred to the contract provision requiring the presence of an appropriate
state or federal official to resolve a safety dispute, and asked Moore to either call state inspector
Sanders himself, or allow Hannah to call Sanders. 17 FMSHRC at 669, 671; Tr. 325, 458, 46465, 549. Moore refused, explaining that mine superintendent Wetzel had been called to the mine
and would handle the matter thereafter. 17 FMSHRC at 669, 671; Tr. 325-26, 458, 465. Mezo
and Payne stated that they were invoking their "safety rights" in response to the work order issued
by Moore. 17 FMSHRC at 669; Tr. 86, 270, 326.
Hannah returned to his work area where his foreman, Gary Phelps, directed him to restore
power to the mine. Hannah refused, noting that two mine examiners were still underground at the
time. 17 FMSHRC at 669. Hannah stated that he was invoking his "individual safety rights"
because if there was an electrical fault with methane present, it could trigger an explosion that
would kill or maim the examiners still underground. Id; Tr. 330-31, 347, 359. Moore then also
gave Hannah a direct order to turn the power on. Hannah again refused with the same
explanation. 17 FMSHRC at 669. Hannah then told Moore that he had other work duties to

2087

perform, and Moore told him to return to his other work. Id.
A short time later, Hannah was called to a meeting in the office of mine superintendent
Wetzel, where Wetzel was questioning Mezo and Payne about the basis for their work refusal. Id.
Har1nah intervened, and explained that the miners were concerned about causing an explosion and
killing themselves and fellow workers. Id. Harmah also read to Wetzel the applicable contract
provision which required calling in an appropriate state or federal official in the event of a safety
dispute. Tr. 334-35. Wetzel responded that the state inspector had been called and would be
there shortly. Tr. 278, 335. Wetzel and Gerald Kowzan, Consol's supervisor of human resources,
warned the miners they could be subje~t to disciplinary action, including discharge and the
removal of Hannah from the safety committee, for improperly invoking their "safety rights" under
the Contract. Tr. 278, 335-36, 646-47.
When inspector Sanders arrived at the mine, he met with Wetzel and the three miners. 17
FMSHRC at 669; Tr. 147-48, 279-80, 596-97. Hannah asked Sanders whether an inspection of
the mine in its entirety was required following a power outage and fan stoppage. 17 FMSHRC at
669. Sanders responded that under state law secondary escapeways only had to be examined
every twenty-four ho1,lrs, and did not need to be reexamined after a power outage. Id. Sanders
also indicated that it was safe to tum on the power in the mine. Id. Hannah then told Mezo and
Payne it was time to turn on the power and return to work. Id. at 669-70. Wetzel, however,
informed the miners that the matter was not over and that they were subject to discipline and the
removal of Hannah from the safety committee. Id. at 670.
Consol suspended Hannah, Mezo, and Payne, with the intent to discharge them, because
they had failed to obey direct work orders. 17 FMSHRC at 666 n.l ; Tr. 599. Hannah
subsequently filed a grievance in connection with this disciplinary action, which resulted in a twoday hearing before an arbitrator. Tr. 432, 656. On April 25, the arbitrator issued a decision in
which he found that Consol had just cause for disciplining the three miners, but also concluded
that the penalty of discharge was too severe because of mitigating factors, and therefore ordered
the three miners reinstated without back pay. 17 FMSHRC at 666 n. l; Tr. 599, C. Ex. 1. The
record indicates that Hannah, Mezo, and Payne had never previously refused a work order or
raised a safety concern, and had not been subject to any prior disciplinary action. Tr. 255-56, 280,
341-42, 492, 521-22, 673.
Hannah, Mezo, and Payne filed a discrimination complaint with the Department of
Labor's Mine Safety and Health Administration ("MSHA"), and the S~cretary filed the present
complaint on their behalf, pursuant to Section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2).3
3

Section 105(c)(2) provides in part:
Any miner . .. who believes that he had been discharged,
interfered with, or otherwise discriminated against by any person in
violation of this subsection may , within 60 days after such

2088

The judge concluded the disciplinary action taken by Consol against the three miners did
not violate the Mine Act because, at the time of their work refusal, the miners no longer had a
good faith, reasonable belief in a hazardous condition that justified their refusal to work. 17
FMSHRC at 671-72. This conclusion was based on the judge's finding that, in response to the
miners' stated safety concerns, Consol management had fulfilled its obligation to address the
perceived danger communicated by the three miners by contacting a state inspector to confirm that
the preshift examination was proper and that no safety hazard existed, and then conveying that
information to the miners. Id.
The judge further concluded that if the miners did not believe the statements of Consol
mine officials concerning their communications with inspector Sanders, it was the miners'
obligation to contact Sanders themselves to confirm that the preshift examination had been
properly conducted. Id. The judge discredited the testimony of the miners that they were
prohibited from using telephones at the mine without permission, and instead credited testimony
of Consol officials that there was no company policy prohibiting the use of telephones by
employees and that the miners could have called the state inspector themselves. Id. at 672. The
judge concluded that the miners' failure to either accept the reported statements of Sanders or to
verify those statements by calling Sanders themselves rendered their continued refusal to work
unreasonable, and therefore unprotected. Id. He also concluded that their suspension by Consol
for their continued work refusal did not violate the Mine Act. Id. Accordingly, the judge
dismissed the discrimination proceeding. Id.
The Commission 6ranted the Secretary' s petition for discretionary review, which
challenged the judge' s finding that the miners' work refusal was unreasonable and unprotected
under the Mine Act.

violation occurs, file a complaint with the Secretary alleging such
discrimination. Upon receipt of such complaint, the Secretary shall
forward a copy of the complaint to the respondent and shall cause
such investigation to be made as he deems appropriate. . . . If upon
such investigation, the Secretary determines that the provisions of
this subsection have been violated, he shall immediately file a
complaint with the Commission . ·.. alleging such discrimination or
interferen~e and propose an order granting appropriate relief.

30 U.S.C. § 815(c)(2).

2089

IL

Disposition
A.

General Principles

A miner alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discrimination by proving that he engaged in protected activity and that the adverse
action complained of was motivated in any part by that activity. Secreta1y of Labor on behalfof
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980), rev 'don other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary
ofLabor on behalf of Robinette v. United Castle Coal Co. , 3 FMSHRC 803, 817-18 (April 1981).
An 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 for the unprotected activity alone. Id; Robinette, 3
FMSHRC at 817-18; see also Eastern Associated Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th
Cir. 1987).
The Mine Act grants miners the right to complain of a safety or health danger, but does not
expressly grant the right to refuse to work under such circumstances. Nevertheless, the
Commission and the courts have inferred a right to refuse to work in the face of a perceived
danger. See Secretary ofLabor on behalf of Cooley v. Ottawa Silica Co., 6 FMSHRC 516, 51921 (March 1984), aff'd mem., 780 F.2d l 022 (6th Cir. 1985); Price v. Monterey Coal Co., 12
FMSHRC 1505, 1514 (August 1990) (citations omitted). A miner refusing work is not required to
prove that a hazard actually existed. See Robinette, 3 FMSHRC at 812. In order to be protected,
work refusals must be based upon the miner's "good faith, reasonable belief in a hazardous
condition." Id; Gilbert v. FMSHRC, 866 F.2d 1433, 1439 (D.C. Cir. 1989). The complaining
miner has the burden of proving both the good faith and the reasonableness of his belief that a
hazard existed. Robinette, 3 FMSHRC at 807-12; Secretary of Labor on behalfofBush v. Union
Carbide Corp., 5 FMSHRC 993, 997 (June 1983). A good faith belief "simply means honest
belief that a hazard exists." Robinette, 3 FMSHRC at 810. The purpose of this requirement is to
"remove from the Act's protection work refusals involving frauds or other forms of deception."

Id.
The Commission has held that, for a work refusal to be protected under the Mine Act, a
miner should first communicate his safety concerns to some representative of the operator.
Secretary of Labor on behalfofDunmire v. Northern Coal Co., 4 FMSHRC 126, 133 (February
1982). If the miner expresses a reasonable, good faith fear concerning safety, the operator has a
duty to address the perceived danger. Metric <;onstructors, Inc., 6 FMSHRC 226, 230 (February
1984), aff'd sub nom. Brock on behalf ofParker v. Metric Constructors, Inc., 766 F.2d 469 (11th
Cir. 1985); Secretary ofLabor on behalfof Pratt v. River Hurricane Coal Co., 5 FMSHRC 1529,

2090

1534 (September 1983). Once it is determined that a miner has expressed a good faith, reasonable
concern about safety, the analysis shifts to an evaluation of whether the operator has addressed the
miner's concern "in a way that his fears reasonably should have been quelled."· Gilbert, 866 F.2d
at 1441; see also Bush, 5 FMSHRC at 997-99; Thurman v. Queen Anne Coal Co., 10 FMSHRC
131, 135 (February 1988), aff'd mem., 866 F.2d 43 1 (6th Cir. 1989). Accordingly, a miner's
continuing refusal to work may become unreasonable after an operator has taken reasonable steps
to dissipate fears or ensure the safety of the challenged task or condition. Bush, 5 FMSHRC at
998-99.
B.

The Adequacy of Consol's Response to the Miners' Safety Concerns

.The Secretary contends the judge erred in finding that Consol had taken adequate steps to
allay the miners ' safety concerns because the operator' s response was based upon third-party
statements made by the state inspector to a Consol official who was not present at the mine and
therefore was not available to explain the situation to the miners directly. S. Br. at 10-16. The
Secretary asserts that, in view of the concerns expressed by the miners about a possible methane
explosion and the other troubling circumstances, Consol had an obligation to pennit the miners to
speak directly to the state inspector to confirm that he considered the preshift examination to have
been properly conductea. Id. at 15-16. In response, Consol does not challenge the good faith of
ihe miners in initially raising concerns about the adequacy of the preshift examination, but
contends that the judge correctly detennined its response to the miners' expressed safety concerns
was sufficient to allay their concerns and to render their subsequent work refusal unreasonable and
unprotected. C. Br. at 4-9. Consol argues the Secretary has failed to provide any evidence to
show that the miners had a justifiable basis for refusing to believe the assurances of supervisory
and managerial personnel regarding the propriety of the preshift examination, or that would
warrant imposing an obligation on the company to arrange for the miners to speak directly to the
state inspector. Id. at 5, 8-9.
The dispositive issue in this case is whether Consol addressed the concerns expressed by
the three miners in a manner sufficient to quell their fears, thereby rendering their subsequent
work refusal unreasonable and unprotected.4 We conclude that substantial evidence does not
support the judge's finding that the actions taken by Consol officials in response to the miners'
safety concerns fulfilled its obligation to address their fears resulting from the perceived

4

The overwhelming record evidence demonstrates, and Consol does not dispute, that the
three miners initially had a reasonable, good faith concern regarding the propriety of the preshift
examination and the safe·:y of restoring power to the mine, which they expressed to supervisor
Moore. The fact that supervisor Moore initially indicated that he did not know whether the
preshift examination was proper or if inspection of the escapeways was required further indicates
the reasonableness of the miners' safety concerns.

2091

inadequacy of the preshift examination.5
First, the judge failed to adequately consider evidence indicating that the safety concerns
raised by the miners were serious in nature, involving the risk of an explosion due to potential
accumulations of methane gas in escapeways that would have been detected by an inspection of
those areas. The record indicates the three miners were concerned that if power was restored to
the mine when there was methane gas present in the escapeways, a spark or electrical problem
could cause an explosion that could kill or injure them or their co-workers,6 and that they
repeatedly conveyed these concerns to Consol management.7 Tr. 215-16, 219-21, 272-73, 275-77,
330-31, 332-33, 394, 557-58, 613, 649. The seriousness of their concerns was corroborated to a
significant extent by inspector Sanders, who testified that the type of fan stoppage which occurred
at the Rend Lake Mine on April 9 would give rise to a legitimate concern about methane gas
accumulations in secondary escapeways, and that a potential hazard exists in re-energizing
electrical equipment in an area of methane accumulation that has not been examined. Tr. 155-56,
170-71. The seriousness of the miners' concerns was further underscored by Rend Lake Mine' s
status as a gassy mine. Tr. 160, 219, 481 , 536.

5

The Commission is bound by the terms of the Mine Act to apply the substantial
evidence test when reviewing an administrative Jaw judge' s factual determinations. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). The term "substantial evidence" means "such relevant evidence as a
reasonable mind might accept as adequate to support [the judge's] conclusion." Rochester &
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989), quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938). In reviewing the whole record, an appellate tribunal
must consider anything in the record that "fairly detracts" from the weight of the evidence that
supports a challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
6

While Hannah did not work underground, and thus would not himself have been
exposed directly to the risk of death or injury from an explosion that could have resulted from
restoring power when act:umulations of methane gas were present, this does not in itself render
his work refusal unprotected. The Commission has held that, in appropriate circumstances, the
Mine Act extends protection to a miner who refuses to perform an assigned task due to the
danger posed to the health or safety of another miner. Secretary of Labor on behalfof Cameron
v. Consolidation Coal Co., 7 FMSHRC 319, 321 -24 (March 1985), aff'd sub nom. Consolidation
Coal Co. v. FMSHRC. 795 F.2d 364 (4th Cir. 1986).
7

The three complainants had never previously raised safety concerns or refused a work
order, and had not been subject to any prior disciplinary action. Tr. 255-56, 280, 341-42, 492,
521-22, 559, 673. This evidence indicates that these three miners were not likely to raise their
safety concerns lightly, or in bad faith. See Secretary ofLabor on behalfof Hogan v. Emerald
Mines Corp., 8 FMSHRC 1066, 1072 (July 1986) (work refusal found protected where there was
no evidence in miners' personnel history "suggesting a likelihood of pretext or ulterior motive
for their actions"), aff'd mem.. 829 F .2d 31 (3d Cir. 1987).

2092

Further, the information provided to the miners by supervisor Moore concerning the
propriety of the preshift examination consisted of second and third-hand statements from various .
Consol officials. The supervisors were not present at the mine to discuss the situation with the
miners directly or explain to them why the procedures followed were safe and that there was no
danger in restoring power to the mine. The Commission has previously determined that an
operator did not respond sufficiently to allay reasonable fears when its assurances of safety were
lacking in detail and unaccompanied by any satisfactory explanation. Hogan, 8 FMSHRC at
1074.
In addition, the judge did not address uncontradicted testimony from the miners that
inspector Sanders acknowledged that his opinion - that examination of the escapeways was not
required during a preshift examination following a power outage - represented a change in
interpretation of applicable Illinois law. Tr. 280, 378-79, 383. This evidence suggests that the
miners had a reasonable basis for questioning statements attributed to state inspector Sanders by
Moore and various Consol officials (that the preshift examination had been conducted in
accordance with state law since examination of escapeways was not required), and requesting to
discuss these matters directly with Sanders. We have held that the reasonableness of a miner's
safety concern is to be evaluated from the viewpoint of the miner at the time of the work refusal,
and that objective proof that an actual hazard existed is not required. Hogan, 8 FMSHRC at
1074; Pratt, 5 FMSHRC at 1533-34; Robinette, 3 FMSHRC at 811-12.8
Moreover, the record indicates that Consol could have easily defused the situation, and
resolved this safety dispute, by acceding to the miners' requests to call Sanders to confirm the
statements attributed to him regarding the propriety of the preshift examination. Moore did not
deny that he refused the miners' request to call Sanders, but only disputed their testimony
regarding when such a request was first made. 17 FMSHRC at 670~ 71. Moore testified that he
denied their request because Wetzel, a higher level management official, was already on his way
to the mine. Id. at 671 . Moore admitted that he did not explore the possibility that calling the
inspector could have resolved the safety issue. Tr. 480-81. Consol's inability to provide any
satisfactory explanation for Moore's refusal to call state inspector Sanders, or to allow the miners
to speak Sanders directly, when such a telephone call would have likely resolved the situation,
is a further indication that Consol's response was not sufficient to address the miners' safety
concerns, and therefore did not render their work refusal unreasonable or unprotected.

to

Based on these considerations, we conclude that substantial evidence in the record viewed
as a whole does not support the judge's finding th~t Consol fulfilled its obligation to address the
perceived danger communicated by the miners in a manner sufficient to quell their fears, and

8

That a perceived hazard is later found not to constitute an actual violation of a health or
safety standard does not vitiate the reasonableness of a miner's work refusal. Hogan, 8
FMSHRC at 1072 n.3, 1073 n.4.

2093

render their subsequent work refusal unreasonable and unprotected.9 We therefore reverse the
judge's conclusion that the disciplinary measures taken by Consol against the miners for engaging
in a work refusal did not violate the Mine Act. We remand the case for computation of a backpay
award and assessment of an appropriate civil penalty.
C.

The Miners' Obligation to Contact the State Inspector

The Secretary also challenges the judge' s determination that if the miners did not believe
the statements of mine officials concerning their discussions with the state inspector, it was the
miners' obligation to contact the state inspector themselves to determine whether the presbift
examination had been properly conducted. See 17 FMSHRC at 671-72. The Secretary argues that
the burden of contacting the state inspector to determine the propriety of the preshift examination
properly resided with Consol, rather than the three miners. S. Br. at 15. Consol contends that the
Secretary has failed to esttblish any basis for imposing an obligation on the company to arrange
for the miners to speak directly to the state inspector. C. Br. at 5.
Given our conclusion that substantial evidence does not support the judge' s determination
that Moore's statement was sufficient to quell the miners' fears, we agree with the Secretary that
the judge erred by pla·cing the burden on the miners to contact the state inspector to resolve their
safety concerns. Established Commission precedent places the duty of addressing such concerns
on the operator. See Gilbert, 866 F.2d at 1441 ; Pratt, 5 FMSHRC at 1534. 10

9

To support his conclusion that Consol had "fulfilled its obligation to address the
perceived danger . . . communicated by the [miners]" by contacting state inspector Sanders, the
judge cited Braithwaite v. Tri-Star Mining, 15 FMSHRC 2460 (December 1993). 17 FMSHRC
at 672 n.4. In Braithwaite, however, we concluded that the miner had failed to adequately
communicate his safety concern to the operator, and therefore we had no need to address the
adequacy of the operators response. 15 FMSHRC at 2464-65.
10

Because we conclude that Consol did not adequately address the safety concerns raised
by the three miners, and that the judge therefore erred in shifting to the miners the burden of
establishing the adequacy of Consol's actions to· quell the miners' fears, we find it urmecessary to
address the Secretary's challenge to the judge's decision to credit the testimony of Consol
officials that there was no company policy prohibiting the use of telephones by employees and
that the miners could have used the phone to call Sanders directly to confirm that inspection of
the escapeways was not required as part of the preshift examination. S. Br. at 16-21. As Consol
in effect concedes (C. Br. at 10), the issue of whether the miners could have called the state
inspector on their own has no bearing on the dispositive issue in this case - the adequacy of
Consol' s response to the miners' safety concerns at the time of their work refusal.

2094

III.
Conclusion
For the foregoing reasons, we reve~se the judge's determination that the work refusal
engaged in by the three miners was unreasonable, and therefore unprotected under the Mine Act,
and consequently conclude that Consol's discipline of the miners for their refusal to work violated
Section 105(c)(I) of the Mine Act. We remand this matter to the judge for computation of a
backpay award and assessment of an appropriate civil penalty.

Marc Lincoln Marks, Commissioner

~c.e_
Distribution

Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
David J. Hardy, Esq.
Jackson & Kelly
P.O. Box 553
Charleston, WV 25322
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

2095

•

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

De cember 10, 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JAMES HYLES,
DOUGLAS MEARS, DERRICK
SOTO, and GREGORY DENNIS

Docket Nos. WEST 93-336-DM through
WEST 93-339-DM
WEST 93-436-DM through
WEST 93-439-DM
WEST 94-2 1-DM

v.

ALL AMERICAN ASPHALT

BEFORE: Jordan, Chairman; Marks and Riley, Commis.sioners 1

DECISION
BY THE COMMISSION:
These discrimination proceedings, arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), are before the Commission by
way of a petition for discretionary review filed by All American Asphalt ("AAA"). In its
petition, AAA seeks review of the decision of Administrative Law Judge August Cetti, issued on
November 2, 1994, in which he found that AAA's layoff of four employees on two occasions
was discriminatory and violated section 105(c) of the Mine Act, 30 U.S.C. § 815(c).2

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.
·
2

Section 105(c)(l) provides in part:
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 . . . in ariy coal or other mine
subject to this Act because such miner . . . has filed or made a
complaint under or related to this Act, including a complaint

2096 .

16 FMSHRC 2232 (November 1994) (ALJ). For the reasons that follow, we vacate the judge's
decision and remand this matter for further consideration consistent with this decision.
I.

Factual and Procedural Background
AAA is a general contractor in Corona, California that operates an asphalt plant, a quarry,
and a plant that produces rock-based aggregates for its own use and sale to other contractors. Tr.
1136-39. In April 1991, AAA was in the process of completing an addition to its rock finishing
plant. 16 FMSHRC at 2235. On Thursday, April 18, James Hyles, a leadrnan on AAA's third or
"graveyard" shift, learned that AAA intended to start running the new plant even though all
equipment was not in place. Hyles voiced his concern about safety conditions in the plant to
Mike Ryan, plant supervisor and a vice president of AAA. Hyles also spoke to Patrick McGuire,
business representative of Local 12 of the International Union of Operating Engineers
("Operating Engineers"), which represented AAA's employees. Id. Thereafter, McGuire visited
the plant and saw the plant running without numerous pieces of equipment in place. Id.; Tr. 17778.
During the weekend of startup operations, Ryan assigned Hyles to work as leadman on a
combined second and third shift. 16 FMSHRC at 2236. When Hyles reported to work on Friday,
April 19, at 7:00 p.m., he saw equipment lacking guards, ladders, catwalks, decks, handrails and
trip cords. Id. at 2235-36. Working under Hyles's supervision in the finish plant area were Greg
Dennis, Doug Mears, and Derrick Soto. Hyles warned them to be careful, and they complained
to Hyles about conditions in the plant. Later, during the weekend, Hyles videotaped the plant in
operation and spoke to Dennis, Mears, and Soto about what he was doing. Id at 2236. Other
employees on the videotape observed Hyles' videotaping, including leadman Gary Richter. Tr.
365-70. On Sunday night, Hyles was involved in a minor accident when he fell through a gap in
decking. Tr. 367-70; Gov't Ex. 23. Hyles spoke to Dennis, Mears, and Soto about taking the
videotape to the field office of the Mine Safety and Health Administration (MSHA). They all
agreed that the plant's condition posed dangers to employees and that the tape should be turned
m. 16 FMSHRC at 2236; Tr. 370.
On Monday morning, Hyles went to the MSHA field office and turned in the videotape.
16 FMSHRC at 2236; Gov't Ex. 54. After viewing the videotape, MSHA inspectors went to the
AAA plant and saw it in operation. MSHA issued numerous citations, including 29 unwar-

notifying the operator ... of an alleged danger or safety or health
violation in a coal or other mine, ... or because such miner . .. 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 ... of any
statutory right afforded by this Act.

2097

rantable failure violations. 16 FMSHRC at 2236. Later that day, Ryan called Hyles at home and
told him not to report to work that evening because someone had turned them in and MSHA had
shut the plant down. Id.
About a week later on the first day that the plant reopened, Hyles had lunch with Ryan
and Gary White, leadman on the maintenance shift. Ryan asked if either man knew who turned
him in. Ryan added that he wanted to find out who it was so he could make life so miserable for
them that they would be happy to go to work someplace else. Id.; Tr. 375-76. Also after the
plant reopened, AAA President William Sisemore stated that he wanted to find out who turned in
the company and make it worth their while to go elsewhere. 16 FMSHRC at 2237; Tr. 391, 504.
In June 1991, during a subsequent MSHA investigation, Hyles, Dennis, Mears, and Soto,
in addition to other employees, were interviewed in an investigation into Ryan's conduct under
30 U.S.C. § 820(c). Id at 2237; Gov't Exs. 2,3, 4, and 5.
In October 1991, Ryan, without explanation, demoted Hyles from his position as
leadman. When asked why he was demoting Hyles, Ryan responded that they no longer saw eye,.
to-eye. 16 FMSHRC at 2237. On July 7, 1992, due to an equipment move, AAA laid off 16 of
its 27 employees, including Hyles, Dennis, Mears, and Soto. Over the succeeding weeks, all
employees but the four complainants were called back to work, and some employees were
working overtime. When Hyles and Soto went to the plant and saw less senior employees
working, the four filed grievances under the collective bargaining agreement between AAA and
the Operating Engineers. The grievants contended that the contract required AAA to conduct a
"bumping" meeting prior to layoffs where employees could bid on jobs held by less senior
employees and bump those employees out of jobs for which the more senior employee was
qualified to perform. Id. at 2238-39. The grievances went to arbitration, and the arbitrator found
that AAA had violated the contract by laying off employees without conducting a bumping
meeting; however, he concluded that only Hyles was entitled to relief to bump less senior
employees, based on his qualifications. 16 FMSHRC at 2238-39; Gov't Ex. 51, at 11-14.
In September 1992, Hyles, Dennis, Mears, and Soto filed discrimination complaints with
MSHA. Following the institution of temporary reinstatement proceedings, AAA reinstated the
four complainants on February 11, 1993. 16 FMSRHC at 2239-40. Upon their reinstatement,
they were assigned to production work on the day shift. Id. at 2240.
In early March 1993, AAA reestablished.a third shift as a result of decreased production
due to wetness of material that was being processed through the plant. AAA temporarily
assigned four of its most senior plant repairmen to perform production work, while paying them
at their higher rate of pay as repairmen. It was unusual for senior employees to work the night
shift, because the day shift was seen as more desirable and the most senior employees generally
bid on it. Id. Three weeks later, on March 23, AAA discontinued the third shift and announced a
layoff. Rather than reassigning the four repairmen to their regular positions, AAA required the
repairmen to participate in a bumping meeting. Rather than bumping into repairmen positions,

2098

they bwnped into the production jobs held by Hyles, Dennis, Mears, and Soto. As a result, the
complainants were the only four employees laid off. AAA subsequently hired new employees to
fill the vacant repairmen positions. Id. at 2240-41; Tr. 457, 481, 1693.
On March 24, the four complainants were called into the layoff meeting and told that they
had been bumped by more senior employees and that they were to bid on jobs held by less senior
employees. They were reluctant to exercise their bumping rights at the meeting for fear that
Ryan would refuse to allow them to bump into other jobs because they were not qualified. Hyles
and Soto requested that they be given time to consult with counsel from the Solicitor's office
because of the pendency of their discrimination complaints. 16 FMSHRC at 2241. Shortly after
the meeting, Operating Engineers Business Agent McGuire called Ryan to let him know that
Hyles had decided to bump into the plant operator position. Ryan refused the request, stating that
it was untimely. AAA refused to accept any of the complainants' subsequent written requests to
bump for the same reason. Id.
Following the second layoff, Hyles, Dennis, Mears, and Soto filed a second discrimination complaint, alleging that the March 1993 layoff was in retaliation for their MSHA-related
safety activity. AAA reinstated the complainants on April 26, 1993. After their reinstatement,
the complainants were frequently given reduced working hours. In April 1993, AAA began
hiring ten new employees and increased its output of finished material. In August 1993, AAA
posted a seniority list indicating that Dennis, Mears, and Soto had seniority dates of January
1993. When Mears asked why the list did not reflect his original seniority date, Ryan responded
that he had no seniority. Id. at 2242.
The Secretary issued four complaints for each of the two layoffs, and an eight day hearing
was held. At the close of the hearing, the judge issued a bench decision granting the
complainants temporary reinstatement, and a written decision followed. 16 FMSHRC 31
(January 1994) (ALJ). Thereafter, the judge issued his decision on the merits of the complaints.
Initially, the judge dismissed several procedural defenses raised by AAA, including that the
complaints were time barred under the Mine Act and that the discrimination complaints were
preempted by the National Labor Relations Act, 29 U.S.C. § 141 et seq. (1994). 16 FMSHRC at
2233-35. On the merits, the Judge found that AAA had violated section 105(c) of the Mine Act
by laying off the complainants on two occasions in tetaliation for their MSHA related safety
activity. Id. at 2247-49.
AAA filed a 95-page petition for discretionary review, raising 83 issues with regard to the
judge's decision. A major thrust of AAA's petition i& that: "An administrative law judge is
required to consider all of the evidence and make findings of fact and conclusions of law which
adequately set forth the factual and legal basis for his decision." PDR at 3. AAA argues that the
judge repeatedly failed to make credibility findings and adequate factual findings necessary to
support his decision. See id. at 4, 16, 18-19, 25, 36, 38-39, 40, 51, 53, 62. Further, AAA
questions the extent to which the judge relied on the arbitration decision. AAA notes that the
judge referred to the decision for establishing that AAA violated the contract by not conducting a

2099

bumping meeting but he failed to acknowledge the arbitrator's finding that three of the four
complainants did not qualify for any jobs that were available on the basis of seniority. Id. at 2830.
During the period allowed for filing his brief, the Secretary filed a motion requesting that
the Commission remand the matter to the administrative law judge to make necessary findings of
fact, conclusions of law, explanations of bases for factual findings, and credibility
determinations. S. Mot. at 2. The Secretary argues that the judge must make findings on
"critical issues," including the existence of protected activity, whether adverse employment
actions--namely, Hyles's demotion and the 1992 layoff--were motivated by protected activity,
and whether AAA's reasons for failing to recall the complainants after the 1992 layoff were
pretextual. S. Mot. at 4-10.
Over nine months later, on July 2, 1996, the Secretary filed a motion asking pennission to
file a brief and a stay. AAA filed an opposition to the Secretary' s motion, arguing, inter alia, that
the Secretary failed to establish good cause for missing the filing deadline and failed to timely
seek an extension of time under the Commission's Rules. AAA Opp. at 5-8.

II.
Disposition
Upon review of AAA's petition for review and brief and the Secretary's motion to
remand, we are vacating the judge's decision and remanding the case to the judge for further
consideration, on the present record, consistent with this opinion.
The general principles governing analysis of discrimination cases under the Mine Act are
settled. In order to establish a prima facie case of discrimination under section l 05(c) of the
Mine Act, a complaining miner bears the burden of proof to establish 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. Consolidation Coal Co. , 2 FMSHRC 2786, 2797-800
(October 1980), rev 'don other grounds sub nom. , Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3rd Cir. 1981); Secretary on behalfof Robinette v. United Castle Coal Co., 3 FMSHRC
803, 817-18 (April 1981). "[C]ircumstantial evidence . . . and reasonable inferences drawn
therefrom may be used to sustain a prima facie case of discrimination." Bradley v. Belva Coal
Co., 4 FMSHRC 982, 992 (June 1982). "Any such inference, however, must be inherently
reasonable and there must be a rational connection between the evidentiary facts and the ultimate
facts inferred." Garden Creek Pocahontas Co., 11FMSHRC2148, 2153 (November 1989).
Further, the operator may rebut the prima facie case by showing either that no protected
activity occurred or the adverse action was in no part motivated by protected activity. If the
operator cannot rebut the prima facie case, it nevertheless may defend affirmatively by proving
that it was also motivated by the miner's unprotected activity and would have taken the adverse

2100

action in any event for the unprotected activity alone. Damron v. Reynolds Metal Co., 13
FMSHRC 535, 539 (April 1991) (citing Pasula, 2 FMSHRC at 799-800); Robinette, 3 FMSHRC
at 817-18.
Finally, the Commission is bound by the terms of the Mine Act to apply the substantial
evidence test when reviewing an administrative law judge' s factual determinations. 30 U.S.C.
§ 823(d)(2)(A)(ii)(l). "That standard requires that a fact finder weigh all probative record
evidence and that a reviewing body examine the fact finder's rationale in arriving at Jlis
decision." Wyoming Fuel Co., n/kla Basin Resources, Inc., 16 FMSHRC 1618 1627 (August
1994), aff'd, 81F.3d173 (101h Cir. 1996) (table). In order for the Commission to effectively
perform its review responsibility, a judge must analyze and weigh the relevant testimony, make
appropriate findings, and explain the reasons for his decision. See Mid-Continent Resources,
Inc., 16 FMSHRC 1218, 1222 (June 1994) (citing Anaconda Co., 3 FMSHRC 299, 299-300
(February 1981)). Commission Rule 69(a), 29 C.F.R. § 2700.69(a), also requires that a judge's
decision "shall include all findings of fact and conclusions of law, and the reasons or bases for
them, on all the material issues of fact, law or discretion presented by the record." (Emphasis
added).
We agree with AAA that the judge "failed to explain why and how much weight he
accorded the arbitrator's decision." PDR at 28-30, 93. The arbitration decision, which the
Secretary placed into evidence, deals specifically with whether AAA violated its collective
bargaining agreement with the Operating Engineers by implementing a layoff in July 1992
without conducting a pre-layoff bumping meeting. See Gov't Ex. 51, at 2-5, 9-11 . The judge
referred to the arbitrator's award in his decision with regard to the propriety of the July 1992
layoff under the contract. 16 FMSHRC at 2238. However, the judge's deference to the
arbitrator's findings on the complainants' seniority and qualifications is unclear. Id. at 2238-39,
47. In fashioning relief for the grievants, the arbitrator considered the seniority and qualifications
of the complainants for positions at AAA. See Gov't Ex. 51, at 5, 11-14. The judge's reliance
on the arbitration award for one purpose (propriety of the layoff under the contract), while
apparently disregarding it for another (qualifications for positions held by less senior employees)
is, without further explication, inconsistent.

In determining whether to give weight to an '>arbitrator's findings, the Commission has
held that the following factors must be considered: the congruence of statutory and contractual
provisions; the degree of procedural fairness; adequacy of the record; and the special competence
of the arbitrator. Allan Goode, 16 FMSHRC 674, 680 (April 1994) (citing Pasula, 2 FMSHRC
at 2795). It is not apparent whether and to what extent ·the judge ultimately relied on the
arbitration decision to reach his conclusions concerning the layoffs and failure to recall under the
Mine Act. Therefore, on remand the judge must clarify in his decision whether he is relying on
the arbitration decision, and he must evaluate the arbitration award based on the Pasula factors.
While the judge may find that reliance on the arbitration decision in one area, but not another, is
appropriate, he must explain his reasons for that conclusion.

2101

We also agree with AAA's argument that the judge failed to analyze the evidence
concerning several key issues and to make factual determinations that are integrally related to his
legal conclusions. The judge recited the correct legal standard for analyzing a discrimination
case under section 105(c). 16 FMSHRC at 2246-47. However, he failed to apply that analytical
framework to the record evidence before him. Compare, e.g., Meek v. ESSROC Corp., 15
FMSHRC 606, 610-613 (April 1993), overruled on other grounds by Secretary on behalfof
Poddey v. Tanglewood Energy, Inc., 18 FMSHRC 1315, 1323 (August 1996); Secretary on
behalfofChacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2509-17 (November 1981).
With regard to each of the complainants in each of the layoffs in 1992 and 1993, the
judge must make findings regarding the nature of their protected activity and that there was a
causal nexus between the adverse employment action--the layoffs--and the complainants'
protected activity.3 In particular, the judge must reconcile his finding that AAA was not aware of
Hyles's protected activity prior to his October 1991 demotion with his determination that, by July
l 992, AAA was aware of the protected activity of not only Hyles, but Dennis, Mears, and Soto,
as well. Further, with regard to the 1992 and 1993 layoffs, AAA contends that economic
conditions and weather conditions, respectively, were primary causes for th~ layoffs. The judge
should address the evidence related to those defenses and detennine whether those conditions
caused the layoffs, or whether they were pretextual. If the judge's findings on these issues are
based on credibility detenninations, he should so state. Finally, if the layoffs were proper, the
judge must make specific findings concerning the complainants' seniority and qualifications for
available positions, and, if necessary, address the arbitrator's decision on the issue of
qualifications during the 1992 layoff and recall.
After resolving the factual issues, the judge should determine, by applying the
Pasula/Robinette test, whether the complainants have establi~hed a prima facie case of
discrimination. If the judge so finds, he should then detennine whether AAA has rebutted that
case, or has affirmatively defended against it by demonstrating that it would have laid off the
complainants and refused to recall them for reasons unrelated to their protected activity.
Also on remand, the judge must state his credibility detenninations where there is
disputed testimony involving a factual finding. With the exception of a general statement
regarding reliance on certain evidence and witnesses to establish AAA's knowledge of the
complainants' protected activities prior to the July 1992 layoffs, 16 FMSHRC at 2247, the
decision is silent on credibility issues, particularly in such significant areas as alleged statements

3

The propriety of AAA's demotion of Hyles from leadman in October 1991 is not before
the judge on remand. Commission review is limited to issues raised by a petition for discretionary review, unless the Commission, sua sponte, has directed review of other issues. 30
U.S.C. § 823(d)(2)(B). The Secretary did not preserve the demotion issue for review through a
timely filed petition, nor did the Commission order sua sponte review of the issue. Therefore,
the judge's determination that Hyles's demotion did not violate section 105(c) of the Mine Act is
final. 30 U.S.C. § 823(d)(l).

2102

and inquiries of AAA officials concerning miners' protected activities, AAA's asserted economic
and contractual defenses, and the complainants' qualifications for available jobs.
Accordingly, we vacate the judge's decision and remand for further analysis consistent
with this opinion. 4
Ill.

Conclusion
For the foregoing reasons, this case is remanded for further consideration in light of the
issues raised by this decision. 5

Marc Lincoln Marks, Commissioner

~ c.
James't. Riley, Commissioner

4

On remand, the judge should avoid the wholesale incorporation of either litigant's brief
into his decision. See Energy West Mining Co., 16 FMSHRC 1414, 1419 n.8 (July 1994).
5

In light of our remand, the Secretary' s motion to file a brief is moot.

2103

•

Distribution

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Naomi Young, Esq.
Lawrence J. Gartner, Esq.
Gregory P. Bright, Esq.
Gartner & Young
1925 Century Park East, Suite 2050
Los Angeles, CA 90067
Administrative Law Judge August Cetti
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

2104

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

December 12, 1996

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

AUSTIN POWDER COMPANY
Docket Nos. YORK 95-57-M
YORK 96-13-M

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

BRUCE EATON

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners 1

DECISION
BY THE COMMISSION:
This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act" or "Act"). On December 10, 1996, the Commission granted the
joint petition for discretionary review filed by Austin Powder Company and Bruce Eaton with
respect to the issue of whether the judge erred by affirming the citation as one issued under
section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l ).
According to the attachments to the Secretary's proposed penalty assessment filed March
24, 1995, and the Secretary's Preliminary Statement of May 16, 1996, Citation No. 4424405 was
modified on December 6, 1994 to reflect that the Secretary was charging the violation under
section 104(a) rather than section 104(d)(l). They indicate that the citation was further modified
on March 8, 1995 to delete the allegation of unwarrantable failure (although the allegations of
negligence and the designation of significant and substantial were retained).
1

Pursuant to section 113 (c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.

2105

The judge's decision makes no reference to these modifications, while affirming the
inspector's original section 104(d)(l) determination. Therefore, we vacate the judge's decision
and remand for the judge to determine the appropriate designation for the citation and whether
any penalty reassessment is warranted.

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

Distribution

David J. Hardy, Esq.

Jackson & Kelly
P.O. Box 553
Charleston, WV 25322
Gail Glick, Esq.
Office of the Solicitor
U.S. Department of Labor
E-375, John F. Kennedy Federal Bldg.
Boston, MA 02203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W.
Suite 600
Washington, D.C. 20006

2106

ADMINISTRATIVE LAW JUDGE DECISIONS

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

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 96-115
A. C. No. 46-01816-03939
Gary No. 50 Mine

U.S. STEEL MINING CO., INC.,
Respondent
DECISION
Appearances:

Ira L. Lee, Conference and Litigation
Representative, U.S. Department of Labor, Mine
Safety and Health Administration, Mount Hope,
West Virginia, for the Petitioner;
Gary R. Kelly, Esq., United States Steel
Corporation, for the Respondent.

Before:

Judge Feldman

This matter was heard in Beckley, West Virginia, on
August 20, 1996. The parties' posthearing proposed findings of
fact and conclusions of law, and reply briefs have been
considered in the disposition of this proceeding. This
proceeding concerns a petition for assessment of civil penalty
filed by the Secretary of Labor against the respondent
corporation pursuant to section llO(a) of the Federal Mine Safety
and Health Act of 1977 (the Act), 30 U.S.C. § 820(a). The
petition seeks to impose a civil penalty of $220.00 for an
alleged unsafe condition on the respondent's Long-Airdox feeder
in violation of the mandatory safety standard in section
75.1725(a), 30 C.F.R. § 75.1725(a) . · This mandatory standard
provides:
Mobile and stationary equipment shall be maintained in
safe operating condition and machinery or equipment in
unsafe condition shall be removed from service
inunediately.

21·0 7

Preliminary Findings of Fact
The pertinent facts surrounding the alleged violation are
not in dispute. This case concerns a feeder manufactured by the
Long-Airdox Corporation (Long -Airdox). Shuttle cars dump coal on
the feeder conveyor which carries the coal to a crusher where
large lumps of coal are broken into smaller pieces. The coal is
discharged out the other end of the crusher onto a beltline that
transports the coal to the surface . There are three-quarter inch
continuous link chains welded into brackets in front of the
crusher assembly . These chains are designed to prevent large
piles of coal from jamming the receiving section of the crusher.
These chains would not prevent the extremities of an individual
who had stumbled on the energized conveyor from contacting the
crusher.
A fatal accident occurred in early 1977 involving a LongAirdox feeder when a feeder operator was dragged into the crusher
as he attempted · to cross over the moving conveyor. As a result
of this accident1. beginning in 1982, the Long-Airdox Corporation
modified the design of its feeders to include emergency stop
controls. The Long-Airdox emergency stop control is a cord, hung
at approximately shoulder level across the conveyor, that is
connected to a stop switch located on the side of the feeder .
The purpose of this cord is to enable someone in the feeder
hopper area to de-energize the machine if it became energized
while he was in this crusher area.
Despite Long-Airdox's safety modification, coal operators
routinely remove the emergency stop controls before placing
feeders in service to eliminate production delays associated with
nuisance tripping of the stop control during the coal loading
process.
In this regard, at the time of Sylvester's February 5,
1996, inspection, seven feeders were in service at the
respondent's No. 50 Mine. Most, if not all , of these feeders
were placed in service after Long-Airdox modified its feeders to
include emergency stop controls. With the exception of the cited
feeder which had the emergency stop control partially removed,
none of the other feeders were eq~ipped with emergency stop
controls.
The Mine Safety and Health Arninistration (MSHA) policy
concerning whether the removal of emergency stop controls on
feeders is a violation of section 75.1725(a) is inconsistent.
MSHA Inspector John B. Sylvestor, Jr., testified that MSHA

2108

inspectors in District Three i nterpret section 75.1725(a) as
requiring feeders to be equipped with emergency stop controls. 1
By contrast, District Four inspectors do not require emergency
stop controls under section 75 . 1725(a) . 2 The respondent ' s No. SO
Mine is loca t ed in District Four.
On February 5, 1996, Sylvestor issued Citation No . 3580959.
The citation alleged the respondent was not maintaining its
Long- Airdox feeder (Serial No . 54-2070), located in the north
section of its No. 50 Mine , in safe operating condition in
violation of section 75.1725(a) because the emergency stop
control cord installed by the manufacturer had been removed .
Sylvestor issued the citation because he observed the ernergency pull cord was wrapped around the switch box on the right hand
side of the feeder and that the power source leading from the
switch box to the electrical panel had been removed. At the time
the citation was issued, Sylvester was aware that none of the
respondent's other feeders had emergency stop cords.
However , no
other feeders were cited under section 75.1725(a). Sylvester did
not consider these to be in violation because the emergency stop
cords and switches had been removed entirely. Although Sylvestor
expressed reservations over the wisdom of removing the emergency
stop cords, he testified that, under the District Four
interpretation of section 75 . 1725(a), on the date of his
inspection , he did not consider these feeders to be "unsafe".
(Tr. 68-69) .
Ul timate Findings and Conclusions
The issue in this case is whether the respondent's removal
of an emergency stop cord on the cited feeder, by wrapping the
cord around a switch on the side of the feeder and disconnecting
the switch, renders the feeder "unsafe" in violation of section
75.1725(a).
It is well settled that MSHA is not estopped from
citing a violation simply because the violation was overlooked
during prior inspections . King Knob Coa l Company. Inc . , 3 FMSHRC
1417, 1421-22 (June 1981) . Throughout this proceeding, however,

1

MSHA District Three has jurisdiction in northern
West Virginia, Pennsylvania and Maryland .
2

MSHA District Four has jurisdiction in southern
West Virginia and Virginia.

2109

the Secretary has "admit[ted] that the cited regulation,
30 C.F.R. § 75.1725{a), established no mandatory requirement that
a factory installed safety device be kept on equipment put in
service." ~Sec. Reply Br. at p.4. Therefore, the Secretary
concedes MSHA's failure to cite feeders without emergency stop
cords was a conscious decision rather than an oversight . The
Secretary is consequently not entitled to the anti - estoppel
protection expressed in the Commission's King Knob decision .
Although the Secretary admits, perhaps ill-advisedly, that
the complete removal of the emergency stop control cord and
switch from the feeder is not prohibited, he argues, for reasons
not made clear in this proceeding, that the partial removal of
the emergency cord is unsafe under section 75.1725{a). The
Corrunission has held that equipment is "unsafe" under section
75.1725(a) when a "reasonably prudent person familiar with the
factual circumstances surrounding the allegedly hazardous
condition, including any facts peculiar to the mining industry,
would recognize a hazard warranting corrective action within the
purview of the applicable regulation." Alabama By- Products
Corp., 4 FMSHRC 2128, 2129 (December 1982).
Given the position taken by the Secretary, permissible
corrective action in this case under the Alabama By-Products
standard would include complete removal of the emergency stop
cord and switch. Such removal is reasonably prudent if there is
a reasonable concern over ill-fated reliance on a non-functioning
cord. However, in this instance there is no evidence that anyone
would rely on the emergency cord given its out of service
condition and out of reach location at the side of the feeder.
Absent a reliance related hazard, the Secretary is left in the
unenviable position of citing the respondent for an "unsafe"
dismantled and inope~ative safety cord that the Secretary
concedes is not required in the first place . Somehow, I miss the
point.
Consequently, I am unconvinced, based on the arguments made
by the Secretary in this case, that a reasonably prudent person
would recognize that the cited feeder was unsafe under section
75.1725(a). Accordingly, Citati~n No. 3580959 must be vacated.

2110

As a final note, the decision to vacate this citation is
based on the Secretary's troubling position in thi~ case. While
the removal of a safety device installed by the manufacturer
without any equally effective safety alternative may constitute
prima facie evidence of unsafe equipment, as the trier of fact,
I cannot consider arguments that have not been raised. Common
sense, however, suggests that MSHA should rethink its position. 3
QRDIR

In view of the above, Citation No. 3580959 IS VACATED and
this matter IS DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution:
Ira R. Lee, Conference and Litigation Representative, U.S. Dept.
of Labor, Mine Safety and Health Admin., 100 Bluestone Road, Mt.
Hope, WV 25880-1000 (Certified Mail)
Robert Wilson, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203
(Certified Mail)
Douglas White, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
(Certified Mail)
Gary R. Kelly, Esq., United States Steel Corporation, 600 Grant
Street, Room 1580, Pittsburgh, PA 15219-4776 (Certified Mail)
/mca

3

As a result of the subject citation issued by Sylvester,
the Mine Safety Agency of the State of West Virginia issued
citations requiring the respondent to reinstall emergency stop
cords on their Long-Airdox feeders.
(Tr. 193 ) .

2111

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATI VE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, V IRGINIA 2204 1

December 4 , 1996

SOUTHERN MINERALS , INC.,
TRUE ENERGY COAL SALES, INC . ,
and FIRE CREEK, INC.
Contestants
v.

CONTEST PROCEEDINGS
Docket Nos. WEVA 92-15-R
through WEVA 92-116- R
Fire Creek No. 1 Mine
Mine ID 46- 07512

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

CIVIL PENALTY PROCEEDINGS
Docket Nos. WEVA 92-786
through WEVA 92-791

v.

Fire Creek No. 1 Mine
SOUTHERN MINERALS, INC.,
TRUE ENERGY COAL SALES, INC . ,
and FIRE CREEK, INC.,
Respondents
DECI SION

Appearances:

Pamela S . Silverman, Esq. , Ronald Gurka, Esq . ,
Mark Malecki, Esq., U. S. Department of Labor ,
Arlington, Virginia, for the Secretary;
Robert I. Cusick, Esq., Marco M. Rajkovich, Jr ., Esq.,
Mindy G. Barfield, Esq., Jean Bird, Esq. , Wyatt,
Tarrant & Combs , Lexington, Kentucky,
·
For Contestants/Respondents.

Before:

Judge Barbour

These consolidated contest and civil penalty proc€edings
arise under section 105 of the Federal Mine Safety and Hea lth
Act of 1977 (30 U.S . C. § 801 ~ ~ . ). They invol ve 102 contests
of citations and orders . They also involve 101 a l leged v~ola
tions of mandatory safety standards for underground coal mines
for which aggregate civil penalties of $576,681 have been
proposed.

2112

The cases are the result of a fatal explosion that occurred
at Fire Creek, Inc . 's {Fire Creek) No. 1 Mine. The mine is
located on land leased by Southern Minerals, Inc. {Southern
Minerals).
Fire Creek, through a contract with Southern
Minerals, was the production contractor responsible for mining
coal at the mine. True Energy Coal Sales, Inc. {True Energy)
provided various administrative services to Fire Creek.
Following an investigation of the accident, the Secretary
of ~abor, (Secretary) through his Mine Safety and Health
Administration {MSHA), issued the subject citations and orders to
Fire Creek, Southern Minerals, and True Energy. The Secretary
contended that the Companies were jointly and severally liable as
operators of the mine. Southern Minerals and True Energy
{Contestants) denied they were operators and asserted that they
were not liable under the Act. Fire Creek did not dispute
jurisdiction.
Counsels entered appearances on the record subject to a duly
noticed proceeding and expressed their positions regarding how
best to try the cases {~. Tr. I). As a result, the proceedings
were bifurcated so that the jurisdictional status of Southern
Minerals and True Energy could be resolved, prior to addressing
the individual merits of the citations, orders, and alleged
violations. After extensive discovery, the Secretary , Southern
Minerals, and True Energy filed cross motions for summary
decision.
I denied the motions (Southern Minerals . Inc. ,
17 FMSHRC 465 (March 1995)), and conducted a hearing of record
regarding the issue of operator status (~ Tr . II).
Following the hearing, I issued a Partial Decision in which
I concluded that Southern Minerals was an operator of the mine
within the meaning of the Act and that True Energy was not
(Southern Minerals. Inc., 17 FMSHRC 2191, 2217 (December 1995).
I dismissed the proceedings with regard to True Energy and
scheduled for hearing the contest and civil penalty aspects of
the cases as they related to Fire Creek and Southern-Minerals
(17 FMSRHC at 2218).
The resulting hearing was rescheduled at counsels' request,
and counsels again appeared before. me and expressed their
positions regarding how the trial should proceed (~Tr. III).
At the request of counsels, the hearing was postponed to
accommodate the parties need for further discovery and to provide
the opportunity to explore fully the possibility of settlement.

2113

Shortly before the hearing was to convene , counsels advised
me orally that the parties had agreed in principle to settle all
of the cases. Counsels orally and in writing explained the broad
outline of the proposed settlement , and they requested a further
delay while they negotiated the details of the settlement.
Relying upon counsels assurance that their agreement to
settle was irrevocable, I continued the proceedings .
I ordered
counsels to inform me on a periodic basis of their progress in
finalizing the sett l ement (~ Orders of July 31, 1996; September
18, 1996 ) .
THE SETTLEMENT

On November 1, 1996, the parties jointly moved to approve
the settlement and to dismiss the proceedings. The parties
attached to their motion lists of the specific citations and
orders issued to Southern Minerals, True Energy, and Fire Creek
and indicated the specific penalty proposed for each violation
( ~ Attachment A) .
It is fair to describe the proposed settlement as comprehensive.
It is also fair to state that it may serve as a
landmark in effective enforcement . While the parties have
unresolved differences regarding the status of the Contestants
as operators under the Act and the negligence, if any, of the
companies in creating the allegedly violative conditions
(Motion 3), through mutual trust, diligence , and the persistence
of counsels, they have put aside these differences in favor or
an innovative, multifaceted agreement.
It is an agreement whose
purpose is to raise the level of safety not only in the
Contestants' production contractor operated mines, but in all
such small mines in southern West Virginia.
Under the
and mechanisms
remaining true
their counsels

settlement the parties have created obligations
that go beyond the requirements of the Act , while
to its spirit and overall goals. The parties and
are to be commended .

The terms of the settlement are:
1. Southern Minerals 'will pay civil penalties
totaling $50,000 to be apportioneq among the violations
pro rata.
2. Southern Minerals through a cooperative
agreement with MSHA will institute a Production
Contractor Safety Promotion Program (Program) at all

2114

current and prospective mines of Southern Minerals
operated by production contractors (~ Attachment B) .
(The program creates incentives beyond those imposed by
the Act for Southern Minerals' production contractors
to create and maintain a safety culture at the mines
they operate or that they will operate . )
3.
The Program contains specific provisio~s the
parties believe will create an environment to prevent
the recurrence of the violative conditions and practices found at the mine during MSHA's investigation. It
provides for an evaluation of each prospective contract
production operator's ability to comply with the Act ,
requires periodic audi ts by Southern Minerals to
determine the overal l safety performance at each
production contractor operated mine, and establishes
procedures for effect ive communication of safety and
health concurs among MSHA, Southern Minerals, and the
contract production ope rators. Southern Minerals '
participation in these specific activities exceeds the
duties and obligations imposed by the Act and its
regulations.
Southern Minerals will spend $200,000
over a period of 5 ye ars to meet the costs of the
Program.
4. Southern Minerals will expeditiously enter
into a contact, the terms of which will be approved by
the Secretary, with the West Virginia Small- Mines
Assistance Center ("Center") to develop mechanisms for
the delivery of safety and health expertise, training
programs, and other technical assistance tailored to
small mine operators.
(The Center was established on
July 1 , 1994, with a grant from the West Virginia Board
of Coal Mine Health a nd Safety and is comprised of
Marshall University , West Virginia University and other
colleges and schools throughout West Virginia . ) Under
the contract between Southern Minerals and the Center,
Sputhern Minerals will pay to the Center $40,000 in
1996 , and will make a payment of an additional $40,000
during each succeeding year through calendar year 2000,
for a total payment of $200,QOO.
5. The contract between Southern Minerals and the
Center , as supported by the annual payments , will
assist Southern Minerals in complying with the Program.
The contract will result in Southern Minerals contract
production operators receiving assistance in the areas
of technology transfer, specialization of training

2115

materials, employee assistance programs, training in
conducting and recording preshif, onshift , and other
required examinations, community outreach, progr ams
addressing smoking materials in the mining environment,
the development of safety audit standards and p r ocedures, ventilation, and mine-specific safety workpl ace
practices.
(The parties state that "(d]eficiencies in
these areas directly contributed to the occurrence of
the explosion" at the mine (Motion 5). They als6 state
that the nature and scope of assistance to contract
production operators under the contract exceed that
available under the Act and its regulations and that
the contract between Southern Minerals and the Center
is a "substantial inducement" to the Secretary to enter
into the proposed s e ttlement (l.d.,_ 5-6) .)

6. Programs dev eloped by the Center pursuant to
the contact will be made available to similar small
coal mines in southern West Virginia.
7. Except for proceedings under the Mine Act,
none of the settlement agreements and actions taken by
the Contestants and Fire Creek is an admission of a
violation of the Act or an admission of the allegations
contained in the citations or orders or the proposals
for penalty. The findings and actions taken under the
settlement are solely for the purpose of compromising
and settling amicably the subject administrative
matters, and may not be used in any judicial or
administrative forum for any other purpose, except for
proceedings under the Act. Moreover, the parties
understand that the settlement is not intended to and
does not constitute an admission of civil liability or
responsibility for any civil personal injury or
wrongful death action .
Indeed , Contestants and
Fire Creek specifically deny such civil liability or
responsibility (Motion 2-7) .
APPROVAL OF THE SETTLEMENT
The parties state, and I agree that "the settlement
reflects due consideration for the purposes of the Act"
(Motion 7).
Indeed, it does more . It provides ongoing obligations and mechanisms that specifically address the chronic
problem of enhancing safety at small, contractor ope r ated mines.
In so doing, it addresses both the immediate concerns raised by
the particular accident that triggered the settleme nt and the
general, more pervasive , concerns that all too often have been

2116

endemic in facilities mined by some production contractors. The
settlement reflects the mutual recognition of the parties that
when it comes to such operators, more is needed from both
industry and government to meet the first and foremost priority
of the Act - "the health and safety of [the mining industry's)
most precious resource - the miner" (30 U.S.C . § 801(a)).
The foregoing having been considered, the parties' motion to
approve the settlement is GRANTED.
ORDER
It is ORDERED that:
1. Within 30 days of the date of this Decision ahd Order,
Southern Minerals will pay civil penalties of $50,000 for the
violations alleged in these matters. The sum will be apportioned
among the violations alleged on a pro rata basis and as shown on
Attachment A, which is incorporated by reference.
2.
Southern Minerals and the Secretary will implement the
Program, Attachment B, which is incorporated by reference.
3. Southern Minerals will provided the Secretary's
designated representatives with documentation demonstratin g the
expenditure of at least $40,000 for costs directly related to
implementation of the Program during the 12 months following the
date of this Decision and Order.
4.
Southern Minerals will provide the Secretary's
designated representatives with documentation demonstrating the
expenditure of at least $40,000 per year for costs directly
related to the implementation of the Program during each
succeeding 12 months for a period of 5 years or until a total
expenditure of $200,000 is documented.
5. Southern Minerals will enter into a contract, the terms
of which are subject to the approval of the Secretary, with the
Center to develop mechanisms for the delivery of safety and
health expertise, including assistance in the areas of technology
transfer, specialization of training ·materials , employee assistance programs, training in conducting and recording preshift,
onshift and other required examinations , community outreach,
programs addressing smoking materials in the mining environment,
the development of audit standards and procedures , ventilation,
mine-specific workplace practices, and other technical assistance
tailored to the safety and health needs of small coal mine
operators such as Southern Minerals' contract production
operators.

2117

6. Southern Minerals will pay $40,000 to the Center in
calendar year 1996 and will make a payment of $40,000 during each
succeeding year through calendar year 2000 until such payments
total $200,000.
Upon payment of the civil penalty of $50,000, these
proceedings are DISMISSED WITH PREJUDICE.

David F. Barbour
Administrative Law Judge
2 Attachments a/s

Distribution:
Pamela S. Silverman, Esq . , Ronald Gurka, Esq., Mark Malecki,
Esq., Office of the Solicitor, U. S. Department of Labor,
4015 Wilson Boulevard, Suite 516, Arlington, VA 22203 (Certified
Mail)
Robert I. CUsick, Esq., Marco M. Rajkovich, Jr., Esq., Mindy G.
Barfield, Esq., Jean Bird, Esq., Wyatt, Tarrant & Combs,
1700 Lexington Financial Circle, Lexington, KY 40507 (Certified
Mail )
David Burton, Esq . , P. 0. Box 5129, 1460 Main Street, Princeton,
WV 24740 (Certified Mail)
dcp

2118

Citation or
Order Number
03726261
03726262
03726263
03726264
03726265
03726266
03726267
03726268
03726269
03726270
03726271
03726272
03726273
03726274
03726275
03726276
03726277
03726279
03726280
03726281

Date
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91

Type of
Action
10402 0
10402 0
10402 0
10402 0
10402 0
10402 0
10402 0
10402 0
10402 0
10402 0
10402 0
104A c
10402 0
104A c
104A c
104A c
104A c
104A-107A
104A- 107A
104A c

Health of safety
standard Violated:
CFR Title 30
75.1702
75.1702
75.316
75.313
75.307
75.303A
75.303A
75.317
75.301
75.300
75.300
75.1704
75.306
75.316
75. 316
75.316
75.316
75.800
75.803
75.202

Attaclunent A

Proposed
Penalty

$50.000 . 00
$50.000.00
$50.000.00
$40.000.00
$50.000.00
$50.000.00
$50.000.00
$50.000 . 00
$50.000.00
$50.000.00
$50 . 000.00
$98.00
$600.00
$20.00
$20.00
$20.00
$20 . 00
$850.00
$850.00
$58 . 00
$542,536.00

()'\

r-l
r-l
N

Citation or
Order Number
03726282
03726283
03726284
03726285
03726286
03726287
03726288
03726289
03726290
03726291
03726292
03726293
03726294
03726295
03726296
03726297
03726298
03726299
03726300
03726301

Date
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
'09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91

Type of
Action
10402 0
104A c
10402 0
10402 0
10402 0
10402 0
10402 0
10402 0
10402 0
10402 0
10402 0
10402 0
10402 0
104A c
104A c
104A c
10402 0
10402 0
10402 0
10402 0

Health of safety
standard Violated:
CFR Title 30
75.508
75.521
75.601-1
75.902
75.601
75.601
75.601-1
75.515
75.512
75.515
75.1722B
75.1101
75.701
75.400
75.513
75.604B
75.503
75.503
75.503
75.518-1

Proposed
Penalty

$300.00
$20.00
$400.00
$500.00
$600.00
$600.00
$400.00
$450.00
$300 . 00
$450.00
$600.00
$500.00
$600.00
$98.00
$20.00
$98.00
$850.00
$850.00
$850.00
$400.00
$8,886.00

0

r-1

IN

IN

Citation or
Order Number
03726302
03726303
03726304
03726305
03726306
03726307
03726308
03726309
03726310
03726311
03726312
03726313
03726314
03726315
03726316
03726317
03726318
03726319
03726320
03726321

Date
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09 / 03/91
09 / 03/91
09/03/91
09/03/91
09/03/91 ·
09/03/91
09 / 03/91
09 / 03/91
09/03/91
09/03/91
09/03/91

Type of
Ac tion
104A c
104A c
104A c
104A c
104A· c
104A c
104A c
104A c
104A c
104A c
104A c
104A c
10402 0
104A c
10402 0
10402 0
10402 0
104A c
104A c
104A c

Health of safety
standard Violated:
CFR Title 30
77.512
11.so5 ·
77.504
77 . 701
77.400
77.904
77.505
77.506
77.701
77 . 505
77.904
77.701
77.502
77 . 506
75.517
75.503
75.503
75.703
75.517
75.514

Proposed
Penalty

$20 . 00
$20.00
$98 . 00
$68.00
$79.00
$98.00
$20.00
$20.00
$20.00
$20.00
$20.00
$20.00
$600.00
$20.00
$650.00
$850 . 00
$850 . 00
$98.00
$98.00
$20.00
$3,689.00

N

rl

rl

N

Citation or
Order Number
03726322
03726323
03726324
03726325
03726326
03726327
03726328
03726329
03726330
03726331 •
03726332
03726333
03726334
03726335
03726336
03726337
03726338
03726339
03726340
03726541

Date
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91

Type of
Action
10402 0
10402 0
10402 0
10402 0
104A c
10402 0
10402 0
10402 0
10402 0
10402 0
104A c
10402 0
10402 0
10402 0
10402 0
10402 0
10402 0
10402 0
10402 0
10402 0

Health of safety
standard Violated:
CFR Title 30
75.701
75.901
75.900
75.202
75.316
75.1704-20
75.503
75.503
75.1600-1
75.1105
75.1707
75.316
75.316
75.326
75.1101-23
75.512
75.400
75.400
75.507
75.400

Proposed
Penalty

$600.00
$450.00
$500.00
$600.00
$20.00
$600.00
$850.00
$850.00
$1,200.00
$600 . 00
$20.00
$450.00
$450.00
$600.00
$500.00
$1,000.00
$600.00
$600.00
$450.00
$600.00
$11,540.00

N
N

N

.-{

Citation or
Order Number
03726542
03726543
03726544
03726545
03726546
03726547
03726548
03726549
03726550
03726551
03726552
03726553
03726554
03726555
03726556
03726557
03726558
03726559
03726560
03726561

Date
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91
09/03/91

Type of
Action
10402 0
104A c
10402 0
10402 0
10402 0
10402 0
104A c
104A c
10402 0
10402 0
10402 0
10402 0
10402 0
10402 0
104A c
10402 0
10402 0
10402 0
10402 0
10402 0

Health of safety
standard Violated :
CFR Title 30
75 . 400
75.603
75.512
75.1722A
75.1722
75.316
75 . 316
75.1715
75.900
75 . 517
75.601
75.904
75.601
75.515
75.810
75.300
75.403
75.400
75.400
75.316

Proposed
Penalty

$600.00
$20.00
$450.00
$500.00
$450.00
$400.00
$20 . 00
$20.00
$350.00
$500.00
$600.00
$450.00
$600.00
$350.00
$20.00
$1,000 . 00
$800.00
$650.00
$650.00
$600 . 00
$9,030.00

("')

r-1

N

N

Citation or
Order Number
03726562

Date
09/03/91

Type of
Action
10402 0

Health of safety
standard Violated:
CFR Title 30
75.305

Proposed
Penalty

$1,000.00

$1,000.00

...;:t

N

N

M

SOtmJERN MINJ!RAt.S mc.•s PROt>tlCTl:ON
CONTRACTOR SAFETY PROMOTION PROGRAM

I.

Preamble:

Southern Minerals, Inc. ("Southern Minerals") strives to promote
safety at its independent contractor coal mining operations.
Southern Minerals believes that effective safety programs require
the active involvement of the front-line managers who have
responsibility for the safety of their respective employees.
The Mine Safety and Health Administration, ( "MSHA"), recognizes
that the efforts of companies such as Southern Minerals can
significantly contribute to the cause of safety and health,
particularly as applied to small contract coal mines.
Consistent with this theme, and the mutual desire of Southern
Minerals and MSHA to promote safe operations among production
contractors, the below outlined cooperative program ("Program")
will be implemented. It is the objective of Southern Minerals and
MSHA, through this program and other tools, to create powerful
incentives for production contractors to create and maintain a
safety culture at their respective mines.
The purpose of this Program is to establish procedures for Southern
Minerals to utilize in the selection of production contractors, to
provide for effective communication between MSHA, Southern
Minerals, and Production Contractors, and to establish a MSHA
recognized production contractor safety promotion program.
The parties view this effort as a "mine safety promotion
partnership" which documents MSHA 1 s and Southern Minerals'
contributions to a common goal and pledges their continued good
faith efforts to promote safety in contract coal mines.
The
Program is open ended -there are no time limits or an expiration
date for · this initiative. Implicit in this understanding is the
mutual pledge between MSH.A and Southern Minerals to maintain a
candid dialogue concerning the effectiveness of the Program, to
continually strive to promote safety pertaining to contr·a ct coal
mines, and to consult in good faith with one another before taking
action to modify or terminate the P~ogram .
II.

Definitions:

For the purposes of this Program, the following terms shall mean
the same as set out below:
A. "Mine Act" shall mean the Federal Mine Safety and Health
Act of 1977, and the regulations lawfully promulgated pursuant
thereto.
B. "Certified" person(s) shall mean as defined in 30 CFR 75.2
or 77.2, as applicable.
2125

Attachment B

C. "Qualified" person(s ) shall mean as defined in 30 CFR 75.2
or 77.2, as applicable.
D.
"Property" shall mean the premises of a fee, lease,
sublease or license interest or estate from which the holder of the
same has a right to mine and sell coal.
E.
"Production Contractor" (i) shall mean an independent
contractor who mines coal from any Property of Southern Minerals
and is obligated to deliver such coal, by virtue of its contract
mining agreement, to locations designated by Southern Minerals and
(ii) shall not mean any granter, grantee, lessor, lessee,
sublessor, snblessee, licensor or licensee (which is not an above
mentioned independent contractor ) of Southern Minerals. Production
Contractor does not mean a person or entity falling within the
scope of 30 CFR 45.2(c).
F.
"Initial Production Contractor" shall mean a Production
Contractor who, together with its affiliates, has not mined coal
from the property of Southern Minerals.
G.
"Established Production Contractor" shall mean a
Production Contractor who is now mining and· will mine coal on the
property of Southern Minerals on or after the effective date of
this Program and such Production Contractor affiliates.
H.
"Final civil penalties" shall mean penalties which are
final under the review procedures of the Mine Act, and all
appeal(s) thereof, and are more than thirty (30 ) days past due .
I . "Southern Minerals " shall mean Southern Minerals, Inc . and
any related company.
III. Program :Implementation:

A. Upon the effective date of this Program, MSHA and Southern
Minerals shall expeditiously, and in good faith, fully implement
its elements.
MSHA recognizes a period of up to twelve (12)
calendar months may be required for Southern Minerals to fully
implement all elements .o f this Program pertaining to all Production
Contractors .
B. Upon the effective date of this Program, Southern Minerals
will provide the appropriate District officials of MSHA with a
current listing of Southern Minerals' Production Contractors and
their corresponding federal mine identification numbers . Such
listing will be updated and/or otherwise modified, as necessary
and appropriate , by Southern Minerals .

2126

IV.

Selection of Production Contractors:

A. Southern Minerals will evaluate the ability of prospective
Production Contractors to carry out mining operations consistent
with the Mine Act when awarding their respective contract mining
agreements. During the selection process, Southern· Minerals will
examine:
1. Accidents and injuries, and related frequency rates, to
the extent that such data has been established and is
available for the prior twenty-four (24) month period, at the
coal mines (i) operated by the prospective Production
Contractor and (ii} operated by the companies and/or
individuals who operate or own the prospective Production
Contractor.
Such data shall be expeditiously and timely
supplied by MSHA upon Southern Minerals' reasonable request;
2. The MSHA violation history for the prior twenty-four (24)
month period to the extent that inf onnation has been
established and is available for the coal mine(s) operated (i)
by the prospective Production Contractor or (ii) by the
companies who operate or own the prospective Production
Contractor.
Copies of such history (ies}
shall be
expeditiously and timely supplied by MSHA upon Southern
Minerals' reasonable request;

3. Whether the prospective Production Contractor will employ,
prior to commencement of operation of the mine, the Certified
and/or Qualified person{s) as necessary to perform pre-shift,
on-shift, and weekly examinations required by the Mine Act;

(i)
Each prospective Production Contractor will be
required to identify the individuals expected to perform
such exams and provide, as appropriate, state and federal
certification or qualification numbers.
A 'listing of
these persons will be posted and kept current on the mine
bulletin board at each respective Production Contractor's
mine;
{ii)
Southern Minerals will not .allow a prospective
Production Contractor to begin operation at a mine until
that Production Contractor has established a written
program for conducting and recording the mandatory
examinations (pre-shift, on-shift and weekly) required by
the Mine Act; and,

4. A prospective Production Contractor will not be allowed
(subject to the guidelines below) to begin operation at a mine
until Southern Minerals determines that all civil penalties,
which became final a·f ter the effective date of this Program,
have been paid in full and that th~ prospective Production
Contractor is current in making payments pursuant to a written
2127

payment plan covering its civil penalties which became final
before the effective date of this Prog~am, unless the same
have been previously paid .
The following guidelines will be used in making the above
determination:
Pertaining to an Initial Production Contractor -- the
mine (s ) operated (i} by the prospective Production
Contractor or (ii} by the companies and/or individuals
who operate or own the prospective Production Contractor
will be evaluated to determine the status of payment of
all final civil penalties assessed during the then prior
sixty (60) calendar month period at mining operations
previously operated or presently operating .
Pert aining t o an Established Proauction Contractor -- the
mine (s) operated on Southern Minerals' properties and
which were owned and/or operated by the prospective
Production Contractor, will be evaluated to detennine the
status of payment of all final civil penalties assessed
at mining operations active on or after the effective
date of this Program; provided, however, if a Production
Contractor has not operated on Southern Minerals'
properties for a period exceeding two (2 ) years and has
been operating on other coal properties,
such
determination will be made in the same manner as for an
Initial Production Contractor.
B. Southern Minerals will make reasonable efforts to obtain
the information necessary to evaluate prospective Production
Contractors in accordance with this Program.

c . Southern Minerals will give due consideration to such
findings in determining whether to award a contract to a
prospective Production Contractor .
D.
Southern Minerals will make written inquiry of a
prospective Production Contractor to ascertain infonnation relative
to this Section; however, · Southern Minerals will not be required to
unilaterally gather information beyond that which the same normally
gathers in making its own determination regarding a prospective
Production Contractor. Moreover, Southern Minerals will not be
required to verify the information provided by the prospective
Production Contractor in response to such inquiry, nor will it be
responsible for any such information which is erroneous.
E. Southern Minerals will require each Production Contractor
to implement a written safety program designed for the conditions
at each contractor operated mine.
These safety programs shall
provide for the active involvement of the production contractor's
management and· other employees.
21 28

v.

Periodic Audit of Production Contractors:

A. Southern Minerals, or a third party approved by Southern
Minerals, will perform periodic audits of each Production
Contractor operated mine to assess the overall safety performance
at the mine, compliance with the applicable written mine safety
program, and the effectiveness of this Program. Such audits shall
be conducted at least twice a year, and may be conducted more
frequently as safety performance and other circumstances may
warrant . Such audits shall include: the collection, maintenance
and evaluation of the mine's compliance and civil penalty payment
history ; the review of accidents and injuries utilizing available
workman's compensation records, MSHA data and accident reports; the
review and analysis of training programs related to that mine; the
review of the Production Contractor•s written safety program; and
observation of the active areas of the mine to detennine actual
compliance by the Production Contractor with its written safety
program.
Copies of all MSHA reports, histories and other
information pertaining to such audits shall be provided by MSHA in
a timely manner upon Southern Minerals' request.
B. The individual performing the observation of the active
areas of the mine shall make appropriate notes of conditions
observed . These notes shall be maintained in the audit file and a
copy of the notes shall be forwarded to the applicable Southern
Minerals' contractor.
C. Southern Minerals acknowledges that MSHA encourages the
participation by Southern Minerals in any MSHA accident
investigation conducted at mines
operated by
Production
Contractors.
D. Southern Minerals shall require each Production Contractor
to promptly report to such Southern Minerals all accidents
resulting in personal injuries occurring on mine property and to
file a report demonstrating a review of each lost time accident and
consideration of procedures and policies designed to minimize
future accidents and injuries at the subject mine.
F.
When requested by MSHA, a representative of Southern
Minerals will make reasonable efforts to attend the "close-out
conference" at the conclusion of ea~h quarterly inspection of the
Production Contractor's mine(s).
E.
If a Production Contractor is issued an order of
withdrawal pursuant to Section(s) l04(b), 104(d), l04(g), or 107(a)
of the Mine Act, MSHA shall promptly notify Southern Minerals of
the issuance of the order and report the facts surrounding the
issuance of the order.

2129

F.
As reasonably requested by MSHA, a representative of
Southern Minerals will attend meetings between MSHA and the
Production Contractor to discuss required mine plans or enforcement
issues.
G.
Southern Minerals will consider safety performance,
efforts to improve safety performance, and compliance history in
determining whether to extend or renew contracts with Production
Contractors.
VI.

Training Commitments:

A.
Southern Minerals shall require that each Production
Contractor obtain all required federal and state safety training
from safety sources identified to Southern Minerals and which
Southern Minerals believes in good faith to be competent.
B.
Southern Minerals and MSHA agree to work together to
develop appropriate training materials on the methodology for
conducting an4 recording pre-shift,
on-shift and weekly
examinations required by the Mine Act and the proper evaluation of
the results of such examinations; and,

c. Southern Minerals, at its discretion, may provide each
Production Contractor with materials and information for use in
training, safety meetings, mine site training, and technical
problem-solving.
D.
To the extent that such participation is practical,
Southern Material agrees that training programs conducted pursuant
to the Program shall be open to participation by miners at mines
located in McDowell and Wyoming counties.
VII.

Costs Associated with the Program

A.
Southern Minerals agrees that it shall provide the
Secretary's
designated
representative
with
documentation
demonstrating the expenditure of a minimum of forty thousand
($40,000) dollars for costs directly related to the implementation
of the ·Program during the twelve
(12)
months following
implementation of the Program.
B.
Southern Minerals agrees that it shall provide the
Secretary's
designated
representative
with
documentation
demonstrating an expenditure of a minimum of forty thousand
($40,000) dollars for costs directly related to the continuation of
the Program during each subsequent twelve (12) month period until
a toal expenditure _of two hundred ($200,000) dollars is documented.

21 30

VIII. Coo.peration by the Kine Safety and Health Administration:

A. MSHA will assist and cooperate with Southern Minerals in
the implementation and administration of this Program by timely and
expeditiously providing Southern Minerals, with the following
information and assistance:
1.
Detailed violation history reports for Production
Contractors as identified by corresponding Federal Mine
Identification Number(s);
2.
Accident/injury data for Production Contractors as
identified by corresponding Federal Mine Identification
Number (s) ;
3.
The dates that Production Contractors are required
to submit their required plans and revisions to · MSHA;
The dates of all "close-out" conferences for MSHA s
quarterly inspections at mines covered by this Program;
4.

1

5.
The dates of all conferences scheduled between
Production Contractors and MSHA conference/litigation
representatives to discuss MSHA citations and/or orders
issued at mines operated by Production Contractors;
6.
Notice of the initiation and the conclusion of
lOS(c) discrimination investigations at mines operated by
Production Contractors;
7.
Upon reasonable request, MSHA will expeditiously
inform Southern Minerals of the status of civil penalty
payments for any and all of Southern Minerals' currently
existing or prospective Production Contractors; and,
8.
MSHA will systematically provide Southern Minerals
with copies of all citations, orders and modifications of
citations and orders issued by MSHA at mines operated by
Production Operators. MSHA will, upon the issuance of
any order to a Production Contractor, provide Southern
Minerals with prompt notification of the issuance of
orders of withdraw and p. verbal report regarding the
circumstances surrounding the issuance of such order.
B.
MSHA will make reasonable efforts to provide for and
accommodate participation by Southern Minerals in •close-out"
conferences for quarterly inspections,
conferences between
Production
Contractors
and
MSHA
conference/litigation
representatives and meetings between MSHA officials and Production
Contractors.

2131

c. MSHA may review training programs developed by Southern
Minerals and will endeavor to make available MSHA resources through
its Education and Training Branch , the National Mine Health and
Safety Academy and other technical branches in the development of
training programs and materials.
D.
MSHA District officials will meet with Southern Minerals
personnel to discuss the effectiveness of this Program, in general
or related to any mine operated by a Production Contractor and, the
potential effectiveness of suggested changes in this Program.

2132

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

DEC 1 2 1996
PRABHU DESHETTY,
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 96-201-D
BARB CD 96-05

v.

Mine: No. 2
Mine ID: 15-02002

MANALAPAN MINING CO.,
Respondent

DECISION

Appearances:

Timothy L. Wells, Esq., Hyden, Kentucky, for
the Complainant;
Susan C. Lawson, Esq., Harlan, Kentucky, for the
Respondent.

Before:

Judge Melick

This case is before me upon the complaint by Prabhu Deshetty
under Section 105(c) (3) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et. seq., the "Act,u alleging that the
Manalapan Mining Company (Manalapan) discharged him on
December 30, 1995, in violation of Section lOS(c) (1) of the Act. 1
1

Section 105(c) (1) of the Act provides as follows:

"No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against
or otherwise interfere with the e~ercise 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 miner, 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 101 or because such miner, representative of miners or

2133

In particular Mr. Deshetty alleges that his discharge was a
direct result of safety complaints regarding the mine access
bridge, the availability and use of permissible pumps and the
Respo~dent's alleged failure to properly evacuate miners during
periods of ventilation fan shutdowns.
Deshetty has a bachelor's degree in geology and mining
engineering and a master's degree in mining engineering. He also
has 20 years experience in the mining industry including work as
a section foreman and mine foreman. Deshetty was hired as VicePresident for Operations (in charge of both production and
maintenance) by Manalapan President Duane Bennett on
July 10, 1995. Bennett was looking for someone co take over and
improve production.
Deshetty testified at hearing regarding his four alleged
safety complaints made between the commencement of his work on
July 10, 1995, and his discharge on December 30, 1995. Toward
. the end of July, about two weeks after he began working for
Manalapan, as he was driving home from work he heard on his "CB"
radio that there had been a power outage at the mine causing a
ventilating fan stoppage. Returning to the mine and arriving
about 30 minutes later, Deshetty met Ralph Napier, the overall
superintendent of Manalapan mines. Napier told Deshetty that the
miners were still underground and that the fan was still down.
Deshetty observed that the law requires miners to be evacuated if
the fan is down for 15 minutes. Deshetty described his meeting
with Napier in the following colloquy:
Judge Melick:
to mine property?

And What did you learn when you got back

The Witness:
The power was still off. That's when
I asked Ralph, you know, "What are the people doing?" He
said, you know, "They are still underground." .
The Witness:
still underground.

He said, "The power is off.
They are working."

They are

Footnote 1 Continued
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 applicant for employment on behalf of himself or others of any
statutory right afforded by the Act."

2134

Judge Melick:

Any further conversation?

The Witness:
Yes.
I told him, you know, "I can't
believe this. We are supposed to bring the people out after
15 minutes." And I cautioned him right then, you know, that
it should not happen anymore.
Judge Melick:

Were the men brought out at that time?

The Witness:
No. Then the next question for me was
-- I asked him, "How long will it take to get the power and
the fans back on?u He said, "In about 15, 20 minutes, they
will have the power back up, and the fan started.u
Although he was in charge of the mine and Napier was his
subordinate, Deshetty did not order the miners to be evacuated.
Napier agreed with Deshetty that the mine should have been
evacuated and agreed to evacuate the miners if a fan stoppage
occurred again.
Deshetty apparently maintains that his protected
complaint occurred a few days later when he saw mine owner
Duane Bennett and "mentioned that to him, you know, this has been
going on, and.I don't like it."
(Tr. 18). Bennett agreed that
the miners should be removed from the mine whenever there is a
fan stoppage .
Subsequently, at the end of September, Deshetty's position
had changed so that he was in charge only of maintenance.
Carson Shepherd was then brought in to handle operations and
production.
Deshetty testified that when this change was made
Bennett warned both he and Shepherd that if production did not
improve they would both be removed.
Deshetty alleges that his second protected activity resulted
from events in October 1995, regarding an intentional fan
stoppage while power cables were being replaced. According to
Deshetty, the fan had already been off for 15 minutes when he
arrived and they began running another cable with the fan still
off. When he complained to Shepherd about this proced.u re
Shepherd purportedly responded only that "there is one more cable
to be doneu (Tr. 23).
Deshetty maintains that when he later told
Bennett about this incident, Bennett responded "I am not worried
about something happening, because we don't have that much gas in
these mines" (Tr. 25).
Deshetty did nothing to stop this
apparently unlawful procedure claiming that he was not then in
charge.

2135

The third alleged protected activity occurred sometime
before the first week of November, 1995. A security· guard had
reported to Deshetty that truck drivers had been compl aining
about the safety of a county-owned bridge providing the only
access to mine property. Gary Tucker, Manalapan's resident
engineer, told Deshetty that the bridge had a load limit of 3
tons and Deshetty was aware that the trucks using the bridge
weighed 30 tons . Deshetty had also observed that one of the
bridge slabs was so weak you could see it move when the loaded
trucks passed over (Tr. 30) . Deshetty accordingly directed
Tucker to contact the department of transportation regarding its
safety. One of the bridge slabs subsequently collapsed and it
was repaired by Manalapan.
Later, at a meeting with Bennett at which Larry Ellis,
Olin Pennington and Carson Shepherd were also present, Bennett
asked Deshetty if he had approached the "DOT" about the bridge.
When Deshetty admitted that he had done so Bennett purportedly
responded as follows:
You should not have done that. You should not have
gone over my head. Don't do this in the future . . .
You know what happens if the bridge - - if something
happens to the bridge . . . We both better hope
nothing will happen to the bridge. 2
The fourth alleged safety complaint occurred during the
first week of December after a citation had been issued for a
non - permissible pump in the return air course. Deshetty told
Bennett of the need for a new permissible pump and Bennett
purportedly responded "[h]ere we go again . • . You want to spend
more money" (Tr. 40). Deshetty nevertheless directed the
purchasing department to obtain the pumps.
According to Deshetty , at the December 30 meeting at which
he was terminated, Bennett told him that he had not accomplished
anything and that he could not afford to retain him. Deshetty
acknowledged that when hired he was told to increase production
and reduce costs in the four exis,t ing mines and that he was to
open a fifth mine. He acknowledged that he never did get the
fifth mine operating in the three months he was in charge.

Bennett later testified that he was concerned that
government officials might condemn the bridge, the only access to
the mine, thereby shutting down operations.
2

2136

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 persua s.ion 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 Fasula v. Consolidation Coal Co., 2 FMSHRC
2786, 2797 - 2800 (October 1980) rev'd on grounds , sub nom .
Consolidation Coal Co. v . Marshall, 663 F.2d 1211 (3rd Cir.
1 981); and Secretary on behalf of Robinette v. United 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
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. Fasula, supra; Robinette, supra. See also
Eastern Assoc. Coal Corp. v . FMSHRC, 813 F. 2d 639, 642 (4th Cir.
1987) ; Donovan v. Stafford Construction Co., 732 F.2d 954, 958- 59
(D.C. Cir, 1984); Boich v. FMSHRC, 719 F.2d 194, 195- 96 (6th Cir.
1983) (specifically approving the Commission's Fasula-Robinette
test) . Cf . NLRB v. Transportation Management ·corp . , 462 U.S .
393, 397-413 (1983) (approving nearly identical test under
National Labor Relations Act).
It may reasonably be concluded that the two conversations
Deshetty had with Bennett concerning the fan stoppages and his
conversation with Bennett regarding the need to obtain a
permissible pump were protected safety complaints. Deshetty ' s
initiation of complaints to the county government "DOT"
concerning the safety of a bridge providing access to mine
property is more problematic because the bridge was not in fact
on mine property. Under Section 105(c) (1) a complaint is
protected if it is "under or r elated to" the Act . Since the
bridge at issue provided the only access over which coal haulage
trucks could transport coal from the subject mine thereby
exposing miners to a serious safety hazard, I conclude that the
action of Deshetty in initiating safety complaints about that
bridge were sufficiently "related" to the Act to be within its
protections. Accordingly I find all four of Deshetty's claimed
activities to have been protected under the Act .
As noted , the second element of a prima facie case of
d i scrimination is a showing that the adverse action was motivated
in any part by the protected activity. As this Corrunission
observed in Chacon v. Phelps Dodge Corp. , 3 FMSHRC 2508
(November 1981) rev'd on other grounds sub nom. Donovan v . Phelps
Dodge Corp., 709 F . 2d 86 (D.C . Cir . 1983) , "[d]irect evidence of

2137

motivation is rarely encountered; more typically, the only
available evidence is indirect . " The Commission considered in
that case the following circumstantial indicia of discriminatory
intent: knowledge of protected activity; hostility towards
protected activity; coincidence of time between the protected
activity and the adverse action; and disparate treatment. In
examining these indicia the Commission noted that the operator's
knowledge of the miner's protected activity is "probably the
single most important aspect of the circumstantial case."
With the exception o f Deshetty's c omplaint about the unsafe
bridge access to mine property none of his alleged "safety
complaints" to Bennett were made in a context from which one
would expect retaliation.
Indeed, with respect to the first fan
outage incident, it was Deshetty's own responsibility as Vice
President of Operations, after he learned that miners remained
underground longer than the 15 minutes allowed by law, to have
those miners evacuated.
Deshetty merely cautioned his
subordinate, Ralph Napier, that the miners should have been
evacuated and warned him not to let it happen again. Moreover,
in discussing this incident with his supervisor, Manalapan
President Duane Bennett, the next morning, Bennett agreed that
when the fan is ''out" for more than 15 minutes, the miners should
be evacuated from underground.
Deshetty acknowledged moreover
that Bennett was not angry at this meeting and there is in fact
no evidence to suggest that Bennett bore any animus toward
Deshetty as a result of this incident.
I cannot therefore
conclude that Deshetty's disc~arge about five months later was
motivated in any part by this incident.
Deshetty's claimed protected activity regarding the second
stoppage" incident, in October 1995, was apparently his
report of this incident to Bennett the next day. According to
Deshetty, Bennett said, in response to his report, that he was
not worried about anything happening because there was not much
gas in the mine. Bennett denied making the statement . He
credibly testified that he was at the mine when the new high
voltage line was taken underground and the procedures were
explained to him.
Deshetty was ?lso then present but turned and
drove off apparently without comment.
Deshetty fails to suggest
any evidence of animus or reason to retaliate for this event.
Under the circumstances it cannot reasonably be inferred that
Deshetty's subsequent discharge was motivated in any part by this
incident.
~fan

Around December 9-10, 1995, at a meeting with Mr. Bennett
and all the foremen, Deshetty mentioned to Bennett that Manalapan
needed to buy some permissible pumps for the No. 2 Mine. Bennett

2138

responded ''here you go again, you want to spend more money."
Deshetty nevertheless obtained quotes for the pumps and directed
the purchasing department to buy the pumps at the lowest price.
Deshetty acknowledged that Bennett did not refuse to authorize
the purchase of the pumps . Deshetty also acknowledged that
Bennett liked to joke around from . time to time and that when he
made the noted conunent Deshetty did not believe the statement
would have any impact on his continued employment with Manalapan.
Chief Electrician Earl McKnight testified that when Bennett
made the noted conunent he thought Bennett was talking to him
rather than Deshetty and interpreted it as one of Bennett's jokes
because Bennett had a "friendly attitude" at the time. At
Bennett's direction, McKnight obtained quotes and gave them to
Deshetty. Thereafter, McKnight discovered a permissible pump
already at the mine and this pump was utilized without the need
to purchase a new one. There is again simply no evidence to
suggest that this event had anything to do with Deshetty's
discharge.
Clearly however Bennett showed hostility towards Deshetty's
protected complaints about the unsafe county-owned access bridge,
telling Deshetty that he "should not have done that" and that he
"should not have gone over my head". Bennett also told Deshetty
not to report problems with the bridge to governmental
authorities in the future.
Indeed Bennett himself testified that
he told Oeshetty that he should not get involved in the local
politics because he, Bennett, had lived in Harlan County all of
his life and it "came back to him." He was concerned that if the
bridge was condemned then mine operations would have to close
down. Bennett denied however that Deshetty's activities in this
regard had anything to do with his firing.
There was also a close relationship in timing between this
protected activity and the adverse action in that the bridge
defects were apparently reported to the county in early November
and on December 30th Deshetty was discharged.
I therefore
conclude that Bennett (and therefore Manalapan) was motivated, at
least in part, by this protected activity. Deshetty has
accordingly established a prima facie case of discrimination that
is unrebutted.
In accordance with the Fasula analysis the issue then is
whether Respondent has affirmatively defended by proving that it
would have taken the adverse action in any event on the basis of
Oeshetty's unprotected activity alone.
In this regard Bennett
testified that Deshetty was discharged solely because he was not
productive and that things were going from "bad to worse".
In

2139

addition Deshetty had failed to open the new fifth mine during
his tenure. Bennett testified that by August he noted in regard
to production, maintenance and the " whole management of the
mines" that "instead of things going forward, I saw them going
backwards"
(Tr. 215- 216) . According to Bennett, July was a
losing month and August was even a "much bigger loser." The
average cost per clean ton in the first six months of 1995 had
been $15 . 73 and in July it went up to $25 . 05. While costs came
down to $20.47 in August, to $17.37 in September, to $17 . 69 in
October, to $18 . 09 in November and to $14.30 in December , Bennett
observed that over the last six months of the year the mine lost
over a million dollars. He noted that the $15.73 average cost
µer clean ton in the first six months went up to $18.01 for the
last six months.
Bennett also noted, and it is undisputed, that, while
Deshetty had been transferred out of production responsibilities
and into maintenance around the end of September he told both
Deshetty and Carson Shepherd (who assumed the production
responsibilities) that they would both be removed if production
did not improve . When production did not improve and Deshetty
"never got a maintenance program off the ground" they were both
removed. Bennett also found that Deshetty was not aggressive in
getting things done .
Within this framework of evidence I conclude that indeed
Respondent has sustained its burden of proving that it would have
discharged Complainant in any event for unprotected reasons
alone.
In reaching this conclusion I am cognizant that Shepherd
was subsequently retained in another capacity at another
Manalapan mine.
I do not however find that this evidence is of
sufficient weight to alter my conc l usion herein. This case must
accordingly be dismissed.
ORDER

Docket No . KENT 96-201 - D is hereby

2140

Distribution:
Ti mothy L . Wells, Esq., P.O. Box 1861, Hyden , KY 41749
Susan C. Lawson, Esq., Lawson & Lawson, P . S.C . , Wheeler Building,
Suite 301, 103 North First Street, P.O. Box 837, Harlan , KY 40831
/jf

2141

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMI NISTRATIV E LA W JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FA LLS CHURCH, VIRGINIA 22041
1

DEC 1 2 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA )
on behalf of STEVE BAKER
Complainant
v.
CEDAR COAL COMPANY INC . ,
Respondent

DISCRIMINATION PROCEEDING
Docket No. KENT 96-219 - D
MSHA Case No . PIKE CD-96-02
Mine ID No . 15-17616-F2U
Mine No. 3

DECISION
Appearances:

Anne T. Knauff , Esq., Office of the Solicitor , U.S .
Department of Labor, Nashville, Tennessee ,
for
Complainant;
Phil A . Stalnaker, Esq . , Pikeville , Kentucky, for
Respondent .

Before:

Judge Hodgdon

This case is before me on a Complaint of Discrimination
brought by the Secretary of Labor , acting through his Mine Safety
and Health Administration (MSHA) , on behalf of Steve Baker,
against Cedar Coal Company, Inc ., under section lOS(c) of the
Federal Mine Safety and Health Act of 1977 , 30 U. S.C. § 815(c) .
For the reasons set forth below, I find that Cedar . Coal did not
violate section 105(c) when Mr . Baker ' s employment terminated on
November 9, 1995.
A hearing was held on August· 8 , 1996, in Pikeville ,
Kentucky.
In addition, the parties filed post - hea r ing briefs in
the case .
Background
Cedar Coal is an independent contractor, owned a nd operated
by Larry Bruce Phillips , providing coal hauling serv ices for ,
among others, Garrett Mining and Sheep Fork Energy ' s No . 3 and
No . 4 mines. The company has trucks of its own and subcontracts
with other haulage companies when additional trucks are needed .

2142

The Complainant was hired by Cedar Coal as a truck driver in
July 1995. In September 1995 he was reassigned to operate a
front-end loader near the entry to the Sheep Fork No . 3 mine .
Coal is brought out of the mine and dumped in a pile . The loader
fills trucks from the pile .
If coal is not loaded into the
trucks , coal cannot be brought from the mine.
Mr. Baker claims that he was fired on November 9, 1995,
after he stopped operating his l oader because it was unsafe. He
filed a discrimination complaint with MSHA on November 20, 1995 .
Cedar Coal maintains that Baker quit on November 9 because he did
not want to operate the loader without a heater .
Findings of Fact and Conclusions of Law

Section 105{c) (1) of the Act provides that a miner canno~ be
discharged, discriminated against or interfered with in the
exercise of his statutory rights because: (1 ) he "has filed or
made a complaint under or related to this Act, including a
complaint . . . of an alleged danger or safety or health
violation ; " (2) he "is the subject of medical evaluations and
potential transfer under a standard published pursuant to section
101;" (3) he "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 , (4) he has
exercised "on behalf of himself or others . . . any statutory
right afforded by this Act."
In order to establish a prima facie case of discrimination,
a complaining miner bears the burden of establishing (1) that he
engaged in protected activity and (2) 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 {October 1980), rev'd on other grounds sub nom.
Consolidation Coal Co . v. Marshall , 663 F . 2d 1211 (3rd Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Co., 3 FMSHRC 803 (April 1981); Secretary on behalf of Jenkins v.
Hecla-Day Mines Corp., 6 FMSHRC 1842 (August 1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981),
rev ' d on other grounds sub nom. Donovan v . Phelps Dodge · Corp .,
709 F . 2d 86 (D.C. Cir. 1983) .
The opera tor 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 the protected activity.
Pasula , 2 FMSHRC at 2799-800.
If the operator cannot rebut · the
prima iacie case in this manner, it nevertheless may defend
affirmatively by proving that it . was also motivated by the
miner ' s unprotected activity and would have taken the adverse
action for the unprotected activity alone .
Id . at 2800;

2143

Robinette, 3 FMSHRC at 817 - 18; see also Eastern Assoc. Coal Corp.
v. FMSHRC, 813 F.2d 639, 642 (4th Cir . 1987); Donovan v. Stafford
Const. Co . , 732 F . 2d 954, 958-59 (D.C. Cir. 1984); Boich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically
approving the Commission's Fasula-Robinette test) .
·
I find that Mr. Baker's claim that he was concerned about
safety when he stopped operating the loader on November 9 is not
credible.
Consequently, I conclude that he neither refused to
operate the loader for safety reasons, nor communicated any
safety complaints to management. Therefore, he did not engage in
protected activity and his termination was not a violation of the
Act.
I further find that even if Mr. Baker could be considered
to have engaged in protected activity, his refusal to work and
subsequent actions were not reasonable.
Baker testified that November 9 was a cold, misty day, with

a temperature, according to the radio in his pickup truck, of 19
degrees.
He stated that when he arrived at work, at about 6:30
a . m., the windows on the loader were frosted over.
He further
testified that he attempted to scrape the frost off of the
windows with a cassette tape case .
The Complainant stated that the heater and defroster, which
had not worked for two or three weeks, were not working and he
was unable to keep the windows clear. As a consequence, he
related that after loading three or four trucks, and hitting the
last one several times, he decided to stop operating the loader .
He then "hollered at the scale house man, they call him Leonard,
on the radio on the CB, I told him to refer a message to Mudhole
that I ' m parking the loader.
I'm refusing to run it because it
didn't have a heater or defroster.u
(TrI. 32-33) 1
Baker testified that after parking the loader , at just a
little after 7:00 a.m. , he
got in the truck with [Jody Puckett] .
I was going to
ride down the road with him because the road was rough.
I got out there to .the dump and I heard them talki.ng
about it.
I heard Mudhole and them talking about it .
I told Jody the best thing to do was just hurry up and
dump and take me back to my truck because I didn't want
him to get fired.

1

The transcript for the Temporary Reinstatement hearing

held on July 2, 1996, was made a part of the record in this case.
(Tr I I. 5-6.}
Hence, references to that transcript will be ''TrI."
and references to the transcript for the August 8 hearing will be
"TrII."

2144

(TrI. 34-35.) When asked what "they" were talking about , Baker
replied:
"They said I would get in trouble for getting off the
loader like that . I would loose [sic] my job."
(TrI. 35.) He
claimed that he got into Puckett's truck "[b]ecause I was going
to get him to drop me off at No. 4 Mines [sic] so I could call
Larry Phillips because they told us at the No . 3 Mines [sic] that
we were not allowed in the mine shop."
(Id.)
The Comp l ainant maintained that after being returned to his
pickup truck by Puckett, he drove over to . the No. 4 mine,
arriving there at about 8:00 a.m . He alleged that he told Daniel
McCoy, also known as "Mudhole," who was his supervisor, that "I
refused to run that loader without no heater or defroster like it
was because it was unsafe. He told me the best thing I could do
was call Larry Phillips."
(TrI . 38.)
Baker testified that he called Larry Phillips and "told him
I refused to run that loader like it was. He tol d me, 'I no
longer need you no more.'
I asked him, 'Let me drive the red 800
[coal truck].'"
(TrI. 38 . ) Baker claimed that Phillips replied,
"No, you don't need to be on none of my equipment no more.
You
are fired.
I no longer need you no more."
(Id.)
After the telephone conversation, Baker averred that he
returned to the No. 3 mine "a little after 8:00. ''
(TrI. 39.)
He
testified that he got his personal belongings out of the loader
and went to Ancel Little's house to help him with a truck.
Daniel McCoy testified that sometime "in the neighborhood of
8 : 00" Baker called him on the CB, told him that the heater was
not working in the loader and asked him "to call Mr. Phillips and
tell him the heater wasn't working. He said that he wasn't going
to run it without a heater."
(TrI . 90.) McCoy further recounted
that Baker "told me that they were going to have to get the
heater fixed in it or he was quitting. That he had him another
job that he could go to running a loader that would pay him $12
an hour."
(TrI. 94.)
McCoy stated that he next talked to Baker a couple of hours
later when Baker came over to the No. 4 mine. The Complainant
wanted him to call Phillips , but he told Baker to call Phillips
himself .
Lynn Perkins was operating the scales on the morning of
November 9 . He stated that he was communicating on CB channel
30 . He testified as follows:
I was weighing coal using the CB to communicate with
trucks on the scales. And Steve Baker hollered at me
and told me to get ahold [sic] of Mudhole and tell him
that the heater was not working in the loader . And at

2145

that point, I said, "You ain't got no heat?"
And he _s aid, "No. I'm about to freeze to death . "
And then he went on to say that it was so cold _there
was ice on the windshield, he said he wouldn't be able
to load the trucks. And Mudhole was already on the
channel that we was on, and he said he heard him. And
from that point on, I didn't ta l k no more to him.
(TrII . 210.)
Burl King, a truck driver for Kimberly Trucking, testified
that he was coming through the gap with a load of coal and heard
McCoy and Baker on the CB. He related that, to the best of his
recollection, he heard Baker "say that the loader - the heater
wasn't working."
(TrII. 25.}
He agreed that it was cold that
morning.
Anthony Rucker, a truck driver for Greg Bentley, testified
that he had come through the gap with a load of coal. He stated
that his CB was on channel 23 . He claimed that he "heard Steve
holler at Mudhole and tell him that he couldn't run the loader
because it didn't have any heater on it and it was too cold, and
he couldn't see what he was doing to load the trucks."
(TrII.
34 . }

Jody Puckett, an independent truck driver, testified that he
picked Baker up at the coal dump, which is three or four miles
from the Sheep Fork No. 3 mine, between 8:00 a.m. and 9:00 a.m.
He said that Baker got out of his pick-up, got into the truck
with him and rode while he transported two loads, about an hour
and a half to an hour and three quarters. When asked what Baker
had said to him, he recalled that Baker "just told me that he
wasn't going to run the loader without any heat. And I asked him
what he was going to do, and he told me he was going to go down
and talk to Mudhole about it and see what they was going to do."
(TrII. 169.}
Baker does not claim that he was in any danger fr9m the
cold.
He does maintain, however, that he stopped loading coal
because he considered the loader unsafe to operate . On the other
hand, it is the company's position that he parked the loader for
personal comfort reasons, because he was cold.
If Baker stopped
operating the loader because it was unsafe, then he engaged in
activity protected under the Act. If he stopped because it was
cold, then he did not engage in protected activity.
I find that Baker has not established that he engaged in
protected activity. None of the witnesses in the case
corroborate his story. Most significantly, no one heard him
claim that it was not safe to operate the loader. On the

2146

contrary , everyone recalled that he complained that the heater
would not work and it was cold .
The closest to supporting him was Anthony Rucker who claimed
to have heard him say that he could not see what he was doing to
load the trucks. However, Rucker was not a credible witness.
Not only had he filed his own discrimination complaint against
Phillips, giving him ample reason to be disposed to testify
against the company, but he demonstrated his hostility toward
Phillips while on the stand.
(TrII. 50, 52-54, 57 . )
Furthermore, he claims to have heard the conversation between
Baker and McCoy on CB channel 23, when the evidence is clear that
it occurred on CB channel 30 .
Additionally , none of the rest of Baker's narrative is
supported by any witness.
Jody Puckett, who was not involved
with ei ther of the parties to this proceeding and had no apparent
motive to lie, was a very credible witness. His testimony was
contrary to the Complainant's on all important points.
Baker claimed that shortly after 7 : 00 he got in Puckett's
truck to go to the No. 4 mine, but Puckett testified that he
picked him up , not at the No. 3 mine, but at the dump between
8 : 00 and 9:00. Baker contended that while in the truck he heard
talk on the CB concerning his situation, did not want to get
Puckett in trouble, and so had him take him back to his tru~k.
Puckett made no mention of hearing any discussions on the CB
while Baker was in his truck, nor of being concerned that he
might have trouble because he had Baker in his truck, and ,
instead , testified that Baker rode around with him for an hour
and one half to an hour and three quarters.
Puckett further testified that he was hauling coal from the
No . 3 mine to the dump , that he did not go to the No. 4 mine and
that Baker never asked him to go to the No. 4 mine.
He indicated
that Baker did not seem upset, but said he was not going to run
the loader without heat and would go talk to Mudhole to see what
they were going to do.
Plainly, this evidence does not support Baker's claim that
he arrived at the No . 4 mine about 8 : 00 . McCoy remembered that
he arrived a couple of hours later, that is, around 10:00.
Curtis Thacker testified that he replaced Baker as the loader
operator around 9:00 and had been operating for about half an
hour when Baker got in his truck . Thacker had the impression
that Baker had gotten out of Puckett's truck. Thus~ Puckett,
McCoy and Thacker all support the conclusion that Baker did not
arrive at the No. 4 mine until sometime around 10:00 a.m .

2147

Baker ' s explanation for having to go to the No . 4 mine,
rather than calling from No. 3, was that the employees had been
told not to use the phone in the No. 3 mine shop. None of the
wi tnesses agreed with that statement. Phillips said he had not
told Baker or anyone else not to use that phone. John Ratliff,
the No. 3 mine superintendent, testified that there was no
prohibition against Cedar Coal employees or other truck drivers
using the phone.
The Complainant ' s credibility was further undermined by his
professed inability to remember any dates, or even approximate
times during the year. At the time he testified, none of the
important matters had occurred as much as a year before. Such a
complete lack of recall, as claimed by Baker, a young man with
thirteen years of schoo l ing, is unbelievaQle.
I conclude that the credible evidence in this case
demonstrates that Baker stopped operating the loader because the
heater did not work, and not because of any concern for safety.
The evidence further shows that he then rode around for several
hours before attempting to discuss matters with anyone in
authority.
Perhaps his temper, which he displayed while
testifying, (TrII. 134-35) , got the better of him, but this lack
of concern for a mining operation that was ciucial to coal
production certainly justified Phillips' response to Baker, when
he finally did get around to calling him, that he was "fired, " as
claimed by Baker, or that he "quit" and would not be rehired, as
claimed by Phillips.
Accordingly, I conclude that the Complainant was not
terminated for engaging in protected activity.
Since he was not
engaging in protected activity, he was not discriminated against
within the meaning of the Act.
Moreover, even if Baker's refusal to work could be construed
to have been based on safety grounds , his refusal was not
reasonable. He did not adequately communicate his safety concern
to management , nor did he give management an opportunity to
respond to his complaint.
The Act protects "a miner's right to refuse work under
conditions that he reasonably and in good faith believes to be
hazardous." Gilbert v . Federal Mine Safety & Health Review
Commission, 866 F.2d 1433, 1439 . (D . C . Cir. 1989). Although not
fully articulated by him, it appears that Baker's safety concern
was that he was having trouble seeing out of the loader's
windshield and he was afraid that he would hit either a coal
truck or a miner with the loader .
If, despite all attempts, the
windshield could not be cleared, that might have been a
reasonable concern . However, Baker made little or no attempt to
clean the windshield.

2148

No evidence was presented at the hearing about what methods
were available for keeping the windshield clear. Baker testified
that his efforts consisted of using an empty cassette tape case
to clean the frost off of the outside of the windshield . Thacker
testified that when he took over the loader, and th~ ~nside of
the windshield misted over, he used paper towels to wipe it off .
The loader was in an area near the mine shop, near coal trucks
and near miners ' personal vehicles, yet Baker apparently did not
try to find another means of clearing the windshield.
Additionally, Baker did not adequately communicate his
safety concerns to management . McCoy, his immediate supervisor,
understood his complaint to be that the heater did not work, not
that he was concerned with being injured or injuring someone
else. This understanding is supported by the recollections of
all of the other witnesses who heard Baker express his
complaints . Thus, management had no opportunity to address the
perceived danger.
Since the ~responsibility for the
communication of a belief in a hazard that underlies a work
refusal rests with the miner," Baker's failure to do so means
that his work refusal was not protected by the Act.
Smith v.
Reco, Inc., 9 FMSHRC 992, 995 (June 1997) .
Not only did Baker not convey his safety concern to
management so that they could address the problem, but he also
failed to give management any time to respond to the complaint.
Instead, he stopped operating the loader and went off on a 90
minute ride in Puckett ' s truck . While the law requires
management , in the normal case , to attempt to allay a miner's
reasonable fears, management cannot do so if the miner is not
present.
The Secretary's argument on this issue , that the company did
not meet its obligation to allay Baker's fears because no one
told him that a repair part for the heater/defroster was on order
before he parked the loader , reveals the weakness in his case.
In the first place, as noted above, Baker gave the company little
or no time to make such an announcement . In the second place,
the fact that a part was on order would not have solved Baker's
professed claim that he could not keep the windshield clear· to
see out of it. Thus, the Secretary argues that by doin~ nothing
the company did not allay Baker's f.ears, but if the company had
told him the part was ordered , then his fears would have been
allayed and, by implication, his refusal to work unreasonable .
The fallacy in this argument is that either action, doing nothing
or telling him the part was on order, would have had the same
practical affect on his situation .

2149

In conclusion, I do not find the Complainant ' s claim tha t he
stopped working for safety reasons believable .
Therefore , I
conclude that his refusal to work was not protected activity.
In
addition, even if the Complainant had refused to work out of a
concern for his and others safety , I conclude that his refusal
was not reasonable and in good faith.
ORDER
Accordingly, it is ORDERED that the complaint of the
Secretary filed on behalf of Steve Baker against Cedar Coal
Company, Inc., is DISMISSED .

~VIN~

T. Todd Ho Bon
Administra ive Law Judge

Distribution:
Anne T. Knauff, Esq . , Office of the Solicitor , U.S. Department of
Labor, 2002 Richard Jones Rd . , Suite B-201, Nashville ,
TN 80202-5716 (Certified Mail)
Phil A. Stalnaker, Esq . , P.O. Box 1108, Pikeville, KY
(Certified Mail)
/lt

2150

41502-1108

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

DEC 1 2 \996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 96-137-M
A.C. No. 33-00043-05505
Chistman Quarry

CHRISTMAN QUARRY,
Respondent
DECISQN
Appearances:

Thomas J. Pavlet, Conference and Litigation
Representative, Duluth, Minnesota and
Patrick Zohn, Esq., Office of the Solicitor,
U.S. Departmen~ of Labor, Cleveland, Ohio
on behalf of Petitioner;
Mark Morrison, Esq., Woodsfield, Ohio on
behalf of Respondent.

Before:

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq., the "Act," charging Christman Quarry with one violation
of the mandatory standard at 30 C.F.R. § 56.14207 and proposing a
civil penalty of $500 for that violation. The general issue
before me is whether Christman Quarry committed the violation as
alleged and, if so, what is the appropriate civil penalty to be
assessed considering the criteria under Section llO(i) of th~
Act.
Citation No. 4416121, as modif·ied, alleges a "significant
and substantial" violation of the noted standard and charges as
follows:
·
On December 14, 1995 a dozer operator was fatally injured
when he attempted to either exit or enter the operators
[sic] cab of his machine while the engine was running. The
parking brake mechanism had not been set. It is believed
the operator accidentally bumped a lever causing the dozer
to move in a forward motion. The victim either fell or
was standing on the dozer track. This action caused his

2151

body to go beneath the track where he was crushed by the
dozer's weight. Citation issuance was delayed due to full
review of the accident information .
The cited standard provides, as relevant hereto , that
•mobile equipment shall not be left unattended unless the
controls are placed in the park position and the parking brake,
if provided, is set.n
There is no dispute that on December 14, 1995, at
approximately 12:30 p.m . Darrin Clift was run over by the
bulldozer he had been operating. There were no eyewitnesses and
the underlying cause of the incident is unknown. Clift had
reported for work at 7:30 that morning . A short meeting was held
in the garage area to discuss the day's work with the foreman
Darren Dirnrnerling. After Clift and Dirnrnerling inspected the
dozer, Clift went to work at the lower level of the pit . Later
that morning it was decided that top soil on the upper working
level bench needed to be removed before drilling coul d begin.
Around 12:10 p . m., Clift parked the dozer in front of the upper
face of strip ma~erial and shut down the engine , reportedly to
eat lunch.
Around 12:30 p.m., employees in the shop area heard the
dozer start up. One or two minutes l ater , Dirnrnerling and
mechanic Fred Ulrich saw the dozer pass through the 20-i nch pile
of top soil and down the pushed- off material with the dozer blade
in the raised position. Suspecting that s omething was wrong they
drove the pick- up truck to where the dozer came to rest. The
dozer t r ansmission lever was found in first gear forward and it
was running at three quarters to full throttle . Clift's coat,
lunch box , a crate and a grease gun were found in the dozer cab.
Not finding Clift , they returned to the a r ea where he had
been working . His severed body was found in the track left by
the dozer. No autopsy was performed and no investigation was
made of the deceased's prior health condition. The county
coroner nevertheless opined that death was due to a severed aorta
and spine from the bulldozer accident.
Quarry owner Gerald Christman had been operati ng this mine
for 21 years. The deceased was one of his safest and best
b ulldozer operators . Christman observed that the deceased never
left the dozer without putting the blade down a nd e ngagi ng the
brake. He speculated that the deceased could have sta rted the
dozer while standing on the dozer track but it woul d then have
been in neutral. He agrees that you could reach the t hrottle

2152

lever from the ~rack but noted that if you grabbed the gear lever
from the track you would likely put the dozer in reverse.
The Secretary speculates in his accident investigation
report (Government Exhibit No. 5) that the deceased accidentally
engaged the throttle lever while he was entering or exiting the
bulldozer cab, thereby causing it to move forward.
He further
speculates that the deceased was pulled to the front of the dozer
by its track and run over. The Secretary theorizes therefore
that the transmission was in gear, rather than in neutral, and
the shift lever should have been locked-out. The dozer would
thus have been prevented from moving while unattended, regardless
of the throttle setting.
The Act is a "strict liabilityn statute so that a mine
operator is liable without fault for violations committed by its
employees, i.e. no fault or negligence is required to establish a
violation.
Western Fuels-Utah, Inc., v. FMSHRC, et al., 870 F.2d
711, 716 (D.C. Cir. 1989); Allied Products Co. v. FMSHRC, 666
F.2d 890, 893-894 (5th Cir. 1982); Bulk Transportation Services,
Inc., 13 FMSHRC 1354, 1359 (September 1991). The rationale for
strict liability is that it is an incentive for the operator to
take all practicable measures to ensure worker safety, the idea
being that the operator is in the better position to enforce
specific rules than a government agency.
In this case it is not known how the subject bulldozer came
to be unattended. What is clear however is that once the
deceased had departed from the bulldozer for whatever reason, it
was left unattended.
It is also clear that the bulldozer
controls were not in the park position and the parking brake was
not set. Under these circumstances there was a violation of the
cited standard and, under the concept of strict liability, the
operator is responsible for the violation.
The Secretary also claims the violation was "significant and
substantial.a A violation is properly designated as "significant
and substantial" if, based on the particular facts surrounding
that violation, there exists a reasonable likelihood that the
hazard contributed to will result ~n an injury or illness of a
reasonably serious nature.
Cement Division, National Gypsum Co.,
3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC
1,3-4 (January 1984), the Commission explained:
In order to establish that a violation of a
mandatory standard is significant and substantial
under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety

2153

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 injury
in question will be of a reasonably serious natur e .
See also Austin Power Co. v . Secretary, 861 F.2d
99, 103 - 04 (5th Cir. 1988) , aff'g 9 FMSHRC 2015, 202 1
(De cember 1987) (approving Mathies criteria).

The third element of the Mathies formula requires that
the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there
is an injury.
U.S . Steel Mining Co., 6 FMSHRC 1834, 1836
(August 1984), and also that the likelihood of injury be
evaluated in terms of continued normal mining operations .
U.S.
Steel Mining Co., Inc . , 6 FMSHRC 1573 , 1574 (July 1984); See also
Halfway, Inc . , 8 FMSHRC 8, 12 (January 1986) and Southern Ohio
Coal Co., 13 FMSHRC 912 , 916-17 (June 1991).
In this case the precise cause and the particular
circumstances surrounding the violation are admittedly unknown.
While there has been varied speculation as to the cause of this
accident there is simply insufficient reliable evidence from
which reasonable inferences can be made as to its cause.
It is
therefore impossible to properly evaluate this case under the
stated criteria. Accordingly there is insufficient proof that
the violation was "significant and substantial" or of high
gravity.
For the same reason there is no basis to find operator
negligence. 1 Accordingly and considering all of the criteria
under Section llO(i) of the Act, I find that only a nominal
penalty of $1 is appropriate .

1

While, as previously noted, the lack of operator fault is
not a defense to liability under the Act it is n evertheless a
factor to be considered in assessing a civil penalty under
Section llO{i) of the Act .

2154

ORPER
Christman Quarry is hereby directed to pay a penalty of $1
within 30 days of this decision.

Judge
Distribution:
Elizabeth R. Ashley, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 881 Federal Bldg., 1240 East Ninth Street, Cleveland, OH
44199 (Certified Mail)
Mark Morrison, Esq., 114 North Main Street, Woodsfield, OH 43793
(Certified Mail)
/jf

2155

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

DEC 1 2 1996.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No . PENN 93-445
A. C. No . 36-02374-03875

I

Warwick Mine
NEW WARWICK MINING COMPANY,
Respondent
REMAND DECISION

Before:

Judge Koutras
Statement of the Case

This case concerns five section 104{a) "S&S" citations
issued by MSHA Inspector Frank Terrett on May 19, 1993, during
the course of his inspection of six belt transfer stations along
the respondent's overland conveyor belt at the subject mine. The
transfer stations are two-story buildings housing drive motors
providing power to the conveyor.
In five of these transfer
stations the inspector observed accumulations of coal dust and
cited the respondent with five violations of mandatory safety
standard 30 C.F . R . 77 . 202 . The citations state as follows:
An accumulation of coal dust 1/8 11 to 2 ~" was being
allowed to exist in dangerous amounts on the surf aces of
structures, enclosures, motors, of the bottom and top floors
of the #1 Belt station.
(Citation No. 3659083).
An accumulation of coal dust 1/8" to 3" inches was
being allowed to exist in dangerous amounts on the surfaces
of structures, enclosures, motors of the bottom and top
floors of the #2 belt station.
(Citation No . 3659084).
An accumulation of coal· dust 1/8" to 3 11 inches was

being allowed to exist in dangerous amounts on the surfaces
of structures, enclosures, motors, of the bottom and top
floors of the #3 belt station.
(Citation No. 3659085) .
An accumulation of coal dust 1/8" to 4" inches was
being allowed to exist in dangerous amounts on the surfaces
of structures, enclosures, motors, of the bottom and top
floors of the #4 belt station .
(Citation No. 3659086).

2156

An accumulation of coal dust 1/2 11 to 2" inches in depth

was being allowed to exist in a dangerous amount on the
surface of structures, enclosures, motors, of the bottom and
top floors of the #5 belt station.
(Citation No. 3659087).
The cited standard, 30 C.F.R. 77.202, provides as follows:
Coal dust in the air of, or in, or on
the surfaces of, structures, enclosures, or
other facilities shall not be allowed to
exist or accumulate in dangerous amounts.
Following an evidentiary hearing, former Commission Judge
Arthur J. Amchan rejected the inspector's initial "S&S" findings
and affirmed each of the citations as non- 11 S&S" violations .
(16
FMSHRC 2451, 2461, 2464-2465, December 1994).
The petitioner filed an appeal of Judge Amchan's decision
and asserted that his non-"S&S" findings are not supported by
substantial evidence, and that he ignored testimony that an
explosion, rather than a fire alone, was reasonably likely to
occur and result in serious injury. The Commission agreed that
the judge failed to address the explosion hazard and failed to
evaluate the evidence or make findings and conclusions in this
regard. Under the circumstances, the Commission vacated the
judge's non-"S&S" determinations and remanded the matter for
further consideration.
(18 FMSHRC 1568, 1576-1577, September 16,
1996). The case was reassigned to me for further adjudication.
In response to my order of September 25, 1996, the parties
filed additional remand briefs in support of their respective
positions with regard to the "S&S" issue addressed by the
Commission in its decision and remand order.
I have considered
these arguments, as well as the existing record, in my remand
adjudication of this matter.
Issue
The "S&S" issue presented on remand is whether or not the
cited conditions were reasonably likely to result in an
explosion.
Discussion
Significant and Substantial Violations
A "significant and substantial" (S&S) violation is described
in settion 104(d) (1) of the Act as a violation "of such nature as
could significantly and substantially contributed to the ca~se
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated S&S
"if, based upon the particular facts surrounding the violation
there exists a reasonable likelihood that the hazard contributed
to will result in an injury or illness of a reasonable serious

2157

nature." Cement Division. National Gypsum Co. 3 FMSHRC 822, 825
(April 1981) .
In Mathies Coal Co . , 6 FMSHRC 3-4 (January 1984), the
Commission explained its interpretation of the term "S&S 11 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 safetycontributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable
likelihood that the injury in question will be of
a reasonably serious nature.
See also Austin Power. Inc. V. Secretary, 861 F.2d 99,
103 -04 (5th Cir. 1988), aff 'g 9 FMSHRC 2015, 2021 (December 1987)
(approving Mathies criteria) .
The question of whether any particular violation is S&S must
be based on the particular facts surrounding the violation,
including the nature of the mine involved, Secretary of Labor v .
Texasgulf. Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio
Coal Company, 9 FMSHRC 2007 (December 1987).
Further, any
determination of the significant nature of a violation must be
made in the context of continued normal mining operations .
National Gypsum, supra, 3 FMSHRC 327, 329 (March 1985) . Halfway.
Incorporated, 8 FMSHRC 8 (January 1986).
In United States Mining Company. Inc., 7 FMSHRC 1125, 1129
(August 1985), the Commission stated further as follows :
We have explained 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 a~cordance with the language
of section 104(d) (1), 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
19 84) .
The Commission reasserted its prior determinations that as
part of his "S&S" finding, the Secretary must prove the
reasonable likelihood of an injury occurring as a result of the
hazard contributed to by the cited violative condition or

2158 .

practice. Peabody Coal Company, 17 FMSHRC 508 (April 1995); .Jim
Walter Resources. Inc., 18 FMSHRC 508 (April 1996).
Although the inspector testified that the electrical power
boxes at all of the cited transfer stations were open, Judge
Amchan found that the petitioner only established that the box at
transfer station #4 was open. In support of this finding, the
judge relied on the fact that the inspector issued a citation for
the electrical box at station #4, but not any of the others, and
that his field notes indicated that the station #4 box was open,
but do not mention the same condition at the other transfer
stations.
(16 FMSHRC 2460).
With respect to his "S&S" findings, Judge Amchan noted that
the inspector assumed that in the event of a fire resulting from
the violations, employees would have to jump from the second
floor of the transfer house to escape . However, the judge
credited the testimony of the respondent's safety director that
there was no likelihood of an employee being trapped in the
transfer house, and that each house had 2 - 3 exits on the upper
level as well as 3 on the bottom level and that an employee would
not have to jump from the second floor to escape a fire. The
judge then made the following "S&S" findings at 16 FMSHRC 2461:
I find that the Secretary has not established
these violations to be significant and substantial.
Step 3 in the Commission's test for a significant and
substantial violation is whether there is a reasonable
likelihood that the hazard contributed to will result
in an injury . Step 4 is whether there is a reasonable
likelihood that the injury will be of reasonably
serious nature, Mathies Coal Co . , 6 FMSHRC 1 (January
19 84) . Since the Secretary' s theory of "S &. S" is
based largely on the need for an employee to jump from
the second story to escape a fire resulting from the
coal dust accumulations in the transfer house, I .
conclude these violations were not "S & S . "
Petitioner's Arguments
In support of its position that the citations were "S&S,"
the petitioner cites in some detail the testimony of Inspector
Terrett describing potential ignition sources that were present
in the cited transfer stations, float coal dust observed by the
inspectqr, potential fire hazards, all of which the petitioner
believes support the inspector's conclusion about the likelihood
of an explosion and its serious consequences .
Respondent's Arguments
In support of its position that it was not reasonably likely
that the cited coal dust conditions would result in an explosion
in the course of continued mining operations, the respondent
maintains that there is nothing to support the inspector's "bald

2159

allegations" that an explosion could occur or was reasonably
likely to occur. In support of its argument, the respondent
asserts that a similar issue was raised in Pittsbu~gh and Midway
Coal Mining Co., 7 FMSHRC 2072 (December 1985), and that I
vacated an alleged violation of section 77 . 202, after finding as
follows at 7 FMSHRC 2104:
[I]n order to establish that such accumulations
are in fact dangerous, MSHA must establish that
they present a realistic fire hazard, or that they
are susceptible of being placed in suspension in
close proximity to a readily available ignition
source capable of placing them in suspension,
thereby fueling or propagating an explosion.
The respondent also relies on the Pittsburgh and Midway Coal
Mining Co., decision, at 7 FMSHRC 2103, in support of its
argument that a coal dust explosion can only occur if there is a
fire, and that in the instant case there is no evidence that a
fire was likely to occur . The respondent asserts that although
the inspector cited "several inches of coal dust in several
instances," he did not indicate that they were anywhere near an
ignition source, and the respondent concludes that "in all
likelihood, they were on the concrete floor where there was no
likelihood that they would be the source of a fire."
The respondent further argues that the inspector cited
accumulations "on" electrical boxes, and not "in" electrical
boxes, thereby significantly decreasing or eliminating the
possibility of a fire. Although the inspector testified at the
hearing before Judge Amchan that accumulations were "in"
electrical boxes, the respondent points out that none of the
citations indicated the existence of accumulations "in" or "on"
electrical boxes .
Even if the accumulations existed in the e l ectrical boxes,
the respondent argues that there is no indication that they posed
a fire hazard, and there is no indication as to what those
amounts might have been . Respondent maintains that a small
deposit of coal dust, even in proximity to an ignition source, is
not sufficient to cause a fire, citing Pittsburgh and Midway, at
7 FMSHRC 2103 . Further, the respondent points out that the
inspector did not cite any electrical defects when he issued the
citations, and although he indic'ated that a belt running out of
alignment could result in a fire, and that this was likely to
occur, there is no evidence of any belts running out of alignment
or that this was likely to occur in an area where the
accumulations existed .
With regard to a fire that occurred at a mine transfer
station in 1991, the respondent believes that the only relevance
in that incident is that the fire was caused by a massive coal
spill and it did not result in an explosion.

2160

With regard to the Commission's conclusion at 18 FMSHRC
1576, that the fact that no explosion has ever occurred in a
transfer station is not dispositive of an S&S finding, the
respondent nonetheless believes that the absence of any prior
explosions permits the judge to discount an inspector's unfounded
speculation that a dust explosion was likely to occur. In this
regard, the respondent argues that if the physical factors
present would not permit an explosion to occur then obviously
there is no likelihood of an explosion. Even if a remote
possibility of an explosion existed, the respondent concludes the
fact that there is no evidence of an explosion ever having
occurred in a transfer station reduces the likelihood of an
explosion occurring in this instance to far less than a
reasonable likelihood.
Finding s and Conclusions
In the Pittsburgh & Midway Coal Mining Company case, the
principal issue was whether or not the cited transfer building
float coal dust accumulations, some of which were not measured,
and some of which were estimated at approximately 1/8 to 3/16 of
an inch, or "paper thin" or 1/16 of an inch, constituted
dangerous accumulations within the meaning of section 77.202 . I
concluded that the evidence adduced by MSHA did not establish
that the cited accumulatio~s were dangerous, a condition
precedent to establishing a violation of section 77 . 202 . The
citation was vacated, and the S&S issue was never reached.
I find that the facts presented in Pittsburgh and Midway,
are distinguishable from the facts in the case at hand . The
cited accumulations in the instant case are far greater and more
extensive; ranging from 1/8" to 4" in all five of the cited
transfer stations, and the respondent ' s argument that section
77.202, was not violated because the petitioner failed to
establish that coal dust existed or accumulated in dangerous
amounts was rejected by Judge Amchan when he found that company
safety director Rodavich's admission that the dust accumulations
needed to be cleaned up constituted a concession that coal dust
existed in dangerous amounts.
(16 FMSHRC 2460, fn 9).
I have reviewed the trial transcript testimony of Inspector
Terrett and it reflects a serious concern by the inspector that
the cited coal accumulations presented a fire and explosion
hazard. The record reflects that the inspector has served as a
Federal mine inspector for 2 ~ years, a state inspector for 3 ~
years, and had 20 prior years of experience in the mining·
industry, incl uding 13 years as a supervisor. ·He also conducted
state training courses in mine fires and coal accumulations, and
indicated that he "was involved" in four different mine fires
(Tr. 183). Under the circumstances I find that he was
knowledgeable and qualified to express opinions on the fire and
explosion hazards posed by the cited accumulations in question.
Inspector Terrett testified that each of the belt transfer
stations housed a belt electrical drive motor, electrical motors,

2161

and belt rollers, and that during normal mining operations the
belts are moving. He stated that in each of the stations he
observed "accumulations of coal, fine coal dust all over
everything, just laying on top of motors" (Tr . 187-188).
The inspector confirmed that he observed all of the coal
dust accumulations described in the citations, and I take
particular note of the fact that the electrical motors were
covered with coal dust which he described as dry (Tr . 188-191).
He further testified that "almost every station had electrical
violations with it" and he referred to a citation dated May 19,
1993 (Exhibit G-24), for a control box that was not secured in a
closed position and had coal dust inside (Tr~ 192).
The inspector believed that the electrical drive motors and
turning belt rollers were ignition sources that would reasonably
likely cause an ignition. He also described the stationary belt
rollers and take-up rollers and indicated that coal dust that
builds up at the take-up rollers could cause friction as the
roller rubs against the coal dust and commented that "you could
get friction and very likely get a fire" (Tr. 193). Since the
inspector believed that it would have taken "quite a few days"
for the cited coal dust to accumulate, I cannot conclude that the
inspector's concern about coal dust building up at the take-up
rollers was unreasonable .
The inspector further testified to his notes (Exhibit G-22)
which reflected coal build-up at the #2 station where the belt
drive was running in coal and coal dust accumulations and coal
dust laying around the belt drives (Tr . 194) . He further
ref erred to his notes reflecting coal dust accumulations around
belt rollers in all of the cited stations, and he was concerned
that in the event a belt "went out of line in the slightest bit"
it could strike the sides of the belt frames and get hot.
Coupled with the friction caused by the belt rollers where they
were turning in the coal dust, he believed a fire or ignition
would occur and that it was reasonably likely that two miners who
were in one of the stations "could have got killed right there"
(Tr . 194-195).
Although the inspector conceded that the cited coal .dust
accumulations were deposited, rather than airborne float coal
dust, he nonetheless believed that the deposited dust could be
placed in suspension by air breezes through the many station
openings or by the action of the moving belt rollers. He further
indicated that dust movement was taking place as he was making
his inspection "just by moving around and shutting the doors"
(Tr. 222-223).
In view of the quantities of coal dust he
observed, he believed that "it was dangerous either way" (Tr.
211) .
Further, assuming that coal dust was present insid.e the
electrical boxes, the inspector believed that an arc caused by
vibrations of the circuit breaker blades inside the boxes would
ignite the coal dust, and if it were in suspension, it could
cause an explosion (Tr . 214-215). He further explained as
follows at (Tr. 219-220):

2162

Q. What is the danger presented by what was called
deposited coal dust?
A.
If you did get an explosion or a fire that coal
dust will explode. And it's been showed many times in
demonstrations through the Bureau of Mines at their
experimental lab in Pittsburgh where a fire would blow
clear out just by putting coal dust on the top of the
roof support inside.

Q. What is the danger, if any, of dust deposited on
rollers or near rollers?
A.

Friction can ignite it.

Q. And what is the danger with float coal dust?
said you thought those were dangerous?

You

A. Float coal dust, it's just a fine coal and it's
powdery and it will accumulate on top of any ledge or
whatever, on top of motors and it will just lay all
over top of everything . Once you get a fire it really
helps feed it.
Q.
Could the opening and closing of doors to a
transfer house put float coal dust in suspension?

A.

Definitely.

A little breeze.

The respondent did not rebut the existence of the cited coal
dust accumulations, which I conclude and find were rather
extensive throughout all of the cited transfer stations which
housed belts, belt rollers, and other electrical components.
Indeed, as noted earlier, in affirming the violations of section
77 . 202, Judge Amchan found that the cited coal dust accumulations
existed in dangerous amounts.
The respondent's assertion that the inspector did not
indicate that the cited accumulations were anywhere near any
ignition sources is not well taken and it is rejected. As noted
earlier, the inspector specifically cited at least one open
control box with coal dust inside, the electrical drive motors,
turning belt rollers, and belt drives, and take-up rollers where
he observed coal dust accumulatio~s building up as potential
ignition sources that would likely ignite a frictional fire
fueled by the coal dust.
The Commission has held that "coal is, by its nature,
combustible." Mid-Continent Resources. Inc. , 16 FMSHRC 1218,
1222 (June 1994).
I believe the same can be said for dangerous
accumulations of coal dust. Accordingly, I conclude and find
that the cited dry coal dust accumulations, some of which were i n
contact with, or in close proximity to the aforementioned
ignition sources, presented a fire hazard, and that it was

2163

reasonably likely that in the course of continued normal mining
operations a serious potential for a fire existed in the cited
transfer stations at the time of the May 19, 1993, inspection.
With regard to any coal dust in suspension, although the
inspector testified at one point at the hearing that he cited
float coal dust, he later conceded that he cited deposited coal
dust. However, he testified credibly that the coal dust could
easily be put in suspension by the air circulating through the.
many station openings and the movement of the belt rollers, and
he observed such air movement in the course of his inspection .
Given the extent of the coal dust accumulations throughout all of
the stations, I believe it is reasonable to conclude that in the
normal course of mining operations, the deposited coal dust would
be placed in suspension by the opening of doors causing air
circulation, and the movement of the belts and belt rollers. If
this were to occur in c l ose proximity to the potential ignition
sources that were present, and in the face of a fire, I believe
it was reasonably likely that a serious potential for propagating
an explosion existed at the cited transfer stations.
The inspector observed two miners working in one of the
transfer stations, and he indicated that their job was to service
all of the stations. He also indicated that he observed them
working the stations, on the top and bottom floors, when he
returned for his re-inspection .
(Tr. 192, 195, 209). In the
event of an instant fire or explosion, he believed a person would
have difficulty in escaping from the station (Tr. 223). I
conc l ude and find that in the event of a fire or explosion, it
would be reasonably likely that anyone inside a transfer station
wou l d be at risk and exposed to injuries of a reasonably serious
nature or death.
Based on the foregoing findings and conclusions, I conclude
and find that all of the cited violations were significant and
substantial (S&S), and the inspector's initial findings in this
regard ARE REINSTATED AND AFFIRMED .
I take note of the fact that the original proposed
assessments of $267, for each of the Citation Nos. 3659083,
3659084, and 3659085, were reduced to $100 each by Judge Amchan
based on his non-"S&S" findings. Although the Commission's
remand order did not specifically include instructions for
reconsideration of the penalty assessments for the violations, I
would reinstate the original proposed penalty assessments of $267
for each violation, and order· the respondent to pay those
amounts.
ORDER

In view of the foregoing, IT IS ORDERED as follows:
1 . Section 104 (a) Citation Nos. 3659083, 3659084,
3659085, 3659086, and 3659087, are all AFFIRMED as
significant and substantial (S&S) citations.

2164

2. The respondent shall pay civil penalty
assessments of $267, for each of the
aforementioned citations, and $750 each for the
citations and orders previously affirmed and
assessed by Judge Amchan in his decision of
December 9, 1994, at 16 FMSHRC 2465. · Payment is
to be made to MSHA within thirty (30) days of the
date of my decision and order, and upon receipt of
payment, this matter IS DISMISSED.

44~

Administrative Law Judge

Distribution:
Linda M. Henry, Esq., Office of the Solicitor, U.S . Dept . of
Labor, Gateway Bl dg., Rm. 14480, 3535 Market St., Philadelphia,
PA 19104 (Certified Mail)
Joseph A. Yuhas, Esq . , 1809 Chestnut Avenue, P . O. Box 25,
Barnesboro, PA 15714 (Certified Mail)
\mca

2165

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

DEC 1 2 t996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 96-108
A.C. No. 46-01433-04185
Loveridge No. 22 Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Melonie McCall, Esq., and
Elizabeth Lopes Beason, Esq., Office of the
Solicitor, U. S. Dept. of Labor, Arlington,
Virginia, for the Petitioner;
Elizabeth Chamberlin , Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Melick

This civil penalty proceeding is before me pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et. seq., the "Act,n to challenge two withdrawal
orders issued by the Secretary of Labor to Consolidation Coal
Company (Consol) and to contest the civil penalties proposed for
the violations charged therein. The ge neral issue before me is
whether Consol violated the cited standards and, if so, what is
the appropriate civil penalty to be assessed considering the
criteria under Section llO(i) of the Act. Additional issues
concerning the validity of Order No. 3321649 are addressed as
noted .
At hearing, a settlement motion was submitted with respect
t o Order No . 3717223 . Consol agreed to pay the proposed civil
penalty of $1 , 800 in full. I have considered the relevant
representations and documentation and I conclude that the
p roffered settlement is acceptable under the criteria set forth
in Section llO(i) of the Act . An order directing payment of the
penalty will be incorporated in this decision.

2166

The one order remaining for disposition, Order No. 3321649,
issued pursuant to Section 104(d) (1) of the Act 1 , alleges a
"significant and substantial" violation of the standard at
30 C.F.R. § 75.523-3(b) and charges as follows:
On 5 right section, the S&S Scoop Serial No. 488-1253,
Approval No. 2G-2831-2, does not have operative emergency
parking brakes. With DC power off and brakes set, the rear
pad gapped 3/16 inch from rotor, and front pad gapped 1/8
inch from rotor. When . adjusting bolt was turned to tighten
brakes, bolt threads were very corroded and could barely be
tightened, indicating brakes have been loose for a long
time . Violation is very hazardous, requiring increased
attention by operator to prevent its occurrence. Violation
is repetitious: Citation No. 3717237 issued on 11-20-95 and
Citation No. 3717238 issued on 11-20-95, were for
inoperative emergency parking brakes on S&S scoops.
Citation No. 3717239 was issued on 11-20-95 for inadequate
weekly examination of electrical equipment, due to the
continued existence of inoperative emergency parking brakes
on these scoops. Operator therefore should have known that
emergency parking brakes on the 5 right scoop sho·u ld be

1

Section 104(d) (1) of the Act reads as follows:

If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has
been a violation of any mandatory health or safety standard, and
if he also finds that, while the conditions created by such
violation do not cause imminent danger, such violation is of such
nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard,
and if he finds such violation to be caused by an unwarrantable
failure of such operator to comply with such mandatory health or
safety standards, he shall include such finding in any citation
given to the operator under this Act. If, during the s~me
inspection or any subsequent inspection of such mine within 90
days after the issuance of such citation, an authorized
representative of the Secretary f~nds another violation of any
mandatory health or safety standard and finds such violation to
be also caused by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring the operator
to cause all persons in the area affected by such violation,
except those persons ref erred to in subsection (c) to be
withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines
that such violation has been abated.

2167

checked and either corrected or the scoop removed from
service. This scoop was listed in the record of wee kly
electrical examinations for 5 right on 11 - 27 - 95: Da ngerous
conditions - none found . The Review Commission has
determined that a rank-and-file miner acts as an agent of
the operator while conducting required electrical
examinations in the mine.
Since violation existed for a
long time, was particularly serious, was repetitious , and
operator should have known of its existence, operator had
aggravated conduct and violation is unwarrantable .
The Secretary maintains that the order charges a violation
under four of the five subsections of 30 C.F . R § 75 . 523-3(b) .
In
relevant part the standard provides as follows:
Automatic emergency-parking brakes shall (1)

Be activated immediately by the emergency
deenergization device required by 30 C . F.R .
75-523-1 and 75 . 523-2;

(2)

Engage automatically within 5 . 0 seconds when
the equipment is deenergized;

(3)

Safely bring the equipment when fully loaded
to a complete stop on the maximum grade on which
it is operated;

(4)

Hold the equipment stationary despite any
contraction of brake parts , exhaustion of any non mechanical source of energy, or leakage .

***
On November 28 , 1995, experienced electrical engineer and
inspector for the Mine Safety and Health Administration (MSHA),
Spencer Alvin Shriver, was conducting an electrical inspection at
the Loveridge No. 22 Mine accompanied by Doug McClure , Consol's
maintenance supervisor and miner's representative, Ted Tuttle.
At the 5 Right Section he examined the cited scoop finding that
indeed it did not have an operat~ve emergency parking brake. The
brake could not function because , when engaged, there remained a
significant gap between the brake pad and the rotor estimated by
Shriver as 3/16 of an inch on the rear and 1/8 inch on the front .
He used a feeler gauge to measure the gaps and found them to be
in excess of the .034 - inch gauge. While Shriver was able to see ,
and his feeler gauge was able to reach, only about one-half of
surface of the rotors, he found no evidence of warpa g e . His

2168

conclusion, therefore, that the described gaps existed over the
entire area of the rotors, is reasonable.
I also find Shriver's
testimony to be credible. Under the circumstances the emergency
parking brake clearly could not function and therefore the
violation existed as charged.
The Secretary further maintains that the violation was
"significant and substantial.n A violation is properly
designated as "significant and substantialn if, based on the
particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature.
Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3 - 4 (January 1984), the
Commission explained:
In order to establish that a violation of a
mandatory standard is significant and substantial
under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety
standard, (2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to by the
violation, (3) a reasonable likelihood that the hazard
contributed to will result in an injury, and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d
99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021
(December 1987) (approving Mathies criteria) .
The third element of the Mathies formula requires that the
Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there
is an injury.
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836
(August 1984), and also that the likelihood of injury be
evaluated in terms of continued normal mining operations.
U.S.
Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); See also
Halfway, Inc., 8 FMSHRC 8, 12 (January 1986) and Southern Ohio
Coal Co., 13 FMSHRC 912, 916-17 (June 1991).
Inspector Shriver credibly de'scribe<:i the basis for his
findings in the following colloquy:
JUDGE MELICK:
violation ?

Why did you label that a S and S

2169

THE WITNESS:
I considere d that there was the
possibility of an accident from two ways. One, the scoop
could be traveling and in an emergency need to stop
suddenly, and without the automatic parking brakes , that the
scoop could not be stopped.
JUDGE MELICK: What about the · service brakes?
you use the service brakes?

Couldn't

THE WITNESS:
The se~vice brakes, if they are working,
is a viable way to stop the scoop. There are, however,
problems that can develop with the service brakes.
They have a hydraulic line or hose which can burst.
The parts of the linkage in the service brakes can break .
If there is an accumulation of material in the opera t or ' s
compartment, it can wedge under the service brakes and the
pedal can ' t be depressed.
JUDGE MELICK:

All right.

THE ' ~ITNESS:
The other way would be if a person
stopped the scoop, set the emergency parking brakes , got out
of it, and the scoop then started rolling, it could roll
over him.

We had some fatalities throughout the country from that
source.
It could also, if it decided to run very far , could
run into electrical equipment , start a fire .
There are several possibilities taken altogether that
in my judgment represented a reasonable likelihood of a
serious accident occurring.
JUDGE MELICK: Which several possibilities taken
together would result in a reasonable likelihood of an
accident?
THE WITNESS:
The possibility if the scoop . is in
operation that an emergency would arise and the scoop could
not be stopped if the service brakes didn ' t work .
The other would be if the scoop were parked and the
power was turned off, assuming the parking bra kes would sit,
and they did not, and then the scoop would run a wa y.
Also , the tram pedal of the scoop, if i t sticks in for
any reason, then the service brakes are really not able to

2170

stop the scoop. If the panic bar is then operated, it would
stop the drive to the wheels, but if the parking brakes
don't set then the scoop won't stop, and when the panic bar
is operated, the scoop does not have any steering. It loses
steering capability (Tr. 47-49).
Within the above framework it is clear that this violation
was "significant and substantial''. In reaching this conclusion I
have not disregarded Respondent's arguments that the cited
defects would have been discovered during the required preopera tional checks of the brakes, that the scoop had operational
service brakes, and that it was the practice to leave unattended
scoops with their buckets on the ground. While these factors do
tend to mitigate the gravity of the violation I find them
insufficient to negate the findings herein.
The Secretary also maintains that the violation was the
result of "unwarrantable failure". Unwarrantable failure is
defined as aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997 (December 1987}.
Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference" or
a "lack of reasonable care." Id. at 2003-04; Rochester and
Pittsburgh Coal Company, 13 FMSHRC 189, 193-194 (February 1991).
Relevant issues therefore include such factors as the extent of a
violative condition, the length of time that it existed, whether
an operator has been placed on notice that it existed, whether an
operator has been placed on notice that greater efforts are
necessary for compliance and the operator's efforts in abating
the violative condition. Mullins and Sons Coal Company, 16
FMSHRC 192, 195 (February 1994).
It may reasonably be inferred from the existence of a
significant gap between the rotor and the brake pads found on
November 28 and the fact that the brake adjustment screw had been
so significantly corroded that· the cited condition had indeed
existed for days or even weeks - - just as Inspector Shriver
credibly opined. This evidence alone supports a finding of high
negligence and "unwarrantable failure".
The Secretary also observes that Inspector Shriver himself
had cited similar conditions on the same type of equipment on
November 20, 1995, only eight days before the instant violation
was discovered. (Government Exhibits· 3 and 4). In addition
Shriver had also cited Consol on November 20 for an inadequate
examination of electrical equipment and, in particular, the
failure to report defective emergency parking brakes on battery
powered scoops. According to Inspector Shriver, corrobor~ted by

2171

Consol maintenance superintendent Donald Bucklew, following the
issuance of the November 20 citations and in connection with the
abatement of those violations, the persons who perform the weekly
electrical inspections were re-instructed regarding the necessity
to check the emergency parking brakes during such inspections.
Inspector Shriver noted that the scoop at issue herein was the
subject of such a weekly electrical examination on the midnight
shift on November 27, 1995, the day before the order at bar was
issued. Accordingly the cited defective brake should clearly
have then been discovered and corrected. This evidence also
independently supports findings of high negligence and
"unwarrantable failure " .
Consol nevertheless maintains that the prior citations were
issued to scoops in a geographically separate area of the mine
and were the responsibility of a separate maintenance group.
It
implicitly argues, therefore, that the prior negligence, notice
and heightened awareness provided by the prior citations cannot
be attributed to Consol herein. Operator responsibility
cannot however be so compartmentalized as to limit liability for
negligence and unwarrantable failure. Clearly the prior
negligence, notice and heightened awareness fxom the prior
citations is chargeable to the operator as a whole and is not
limited to only those employees who may have participated in the
violation or to a portion of the mine where they work . This
argument also ignores the evidence that all persons at the mine
who perform weekly inspections were purportedly " re-instructed"
following the issuance of these citations regarding the necessity
of inspecting the emergency parking brakes during such
inspections.
Consol further argues that, because the citations issued the
prior week for inoperative automatic emergency parking brakes
originated from a different problem i.e . they were damaged in
moving the scoops, the operator was not placed on notice that
greater efforts were necessary for compliance with
Section 75.523-3(b) on the 5 Right Section. This argument
overlooks, however, that regardless of the underlying cause of
the earlier defects, notice was thereby in fact provided to the
operator that greater attention needed to be given the inspection
of the emergency parking brakes.
Under the circumstances I agree that the violation was the
result of high negligence and "unwarrantable failuren and Order
No. 3321649 must be affirmed . Considering the criteria under
Section llO(i) of the Act, I further find that the proposed civil
penalty of $2,200 is appropriate.

2172

OIDER
Order Nos . 3717223 and 3321649 are affirmed and
Consolidation Coal Company is hereby directed to pay a civil
penalty $4,000 within 30 days of the date of this decision .

Gary Melic

Administr~ive

Distribution:
Melonie McCall, Esq., Elizabeth Lopes Beason, Esq . , Office of the
Solicitor, U. S . Dept. of Labor , 4015 Wilson Blvd. , Suite 516,
Arlington , VA 22203
Elizabeth Chamberlin, Esq . , Consolidation Coal Company , .1800
Washington Road, Pittsburgh, PA 15241

/jf

2173

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADM INISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 1

DEC 1 3 1996
BUCK CREEK COAL, INC . ,
Contestant

v.

CONTEST PROCEEDINGS
Docket No . LAKE 94-263-R
Citation No. 4056445 ; 5/24/94

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Respondent

Docket No . LAKE 94-265-R
Citation No . 4056447; 5/24/94
Docket No. LAKE 94 - 266 - R
Citation No. 4056448 ; 5/24/94
Docket No . LAKE 94 - 267-R
Citation No. 4056449; 5/24/94
Docket No. LAKE 94 - 282-R
Citation No. 4259169; 5/24/94
Docket No. LAKE 94-283 - R
Citation No . 4259170; 5/24/94
Docket No . LAKE 94-285- R
Citation No . 4259 1 72; 5/25/94
Docket No. LAKE 94-286-R
Citation No. 4259173 ; 5/25/94
Docket No. LAKE 94-294 - R
Citation No. 4259815; 5/23/94
Docket No . LAKE 94 - 305-R
Citation No . 4259879; 5/25/94
Docket No. LAKE 94-306-R
Citation No. 4259880 ; 5/25/94
Docket No. LAKE 94 - 322-R
Citation No. 4261681; 5/25/94
Docket No. LAKE 94-344-R
Citation No. 4261880; 5/28/94

2174

Docket No . LAKE 94-382-R
Citation No. 4262307; 5/24/94
Docket No. LAKE 94-383-R
Citation No. 4262308; 5/24 / 94
Docket No. LAKE 94-385-R
Citation No . 4262310; 5/25 / 94
Docket No. LAKE 94-388-R
Citation No. 4262313; 5/28/94
Docket No. LAKE 94-389-R
Citation No. 4262314; 5/28/94
Docket No. LAKE 94-419-R
Citation No. 4262070; 5/28/94
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 94-602
A.C. No. 12-02033-03629
Buck Creek Mine

BUCK CREEK COAL, INC.,
Respondent
BUCK CREEK COAL, INC.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

CONTEST PROCEEDINGS
Docket No. LAKE 94-253-R
Citation No. 3861722; 6/1/94
Docket No. LAKE 94 - 254-R
Citation No . 3861723; 6/1/94
Docket No. LAKE 94-256-R
Citation No . 3862685; 6/1/94
Docket No. LAKE 94-258-R
Citation No. 3862686; 6/1/94
Docket No . LAKE 94-259 - R
Citation No . 3862687; 6/1/94
Docket No. LAKE 94-260 - R
Citation No. 3862688; 6/1/94

2175

Docket No. LAKE 94-261-R
Citation No. 3862689 ; 6/1/94
Docket No. LAKE 94-262-R
Citation No. 3862690 ; 6/1/94
Docket No. LAKE 94-269 - R
Citation No. 4056454; 5/31/94
Docket No . LAKE 94-270-R
Citation No. 4056455; 6/1/94
Docket No. LAKE 94-271-R
Citation No. 4056456; 6/1/94
Docket No . LAKE 94 - 272-R
Citation No. 4056457 ; 6/1/94
Docket No. LAKE 94-273 - R
Citation No. 4056458 ; 6/1/94
Docket No . LAKE 94-274 - R
Citation No. 4056459; 6/1/94
Docket No . LAKE 94-307-R
Citation No . 4261519; 6/1/94
Docket No. LAKE 94-308 - R
Citation No . 4261520; 6/1/94
Docket No. LAKE 94-309 -R
Citation No. 4261541; 6/1/94
Docket No. LAKE 94-327 -R
Citation No. 4261722; 5/31/94
Docket No. LAKE 94 - 332 -R
Citation No. 4261741; 6/1/94
SECRETARY OF LABOR ,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petiti one r

CIVIL PENALTY PROCEEDING
'Docket No. LAKE 94-603
A.C. No . 12-02033-03630

v.
Buck Creek Mine

BUCK CREEK COAL , INC .,
Respondent

2176

BUCK CREEK COAL , INC. ,
Contestant

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

CONTEST PROCEEDINGS
Docket No . LAKE 94 - 275-R
Citation No . 4056460 ; 6/2/94
Docket No. LAKE 94 - 328-R
Citation No. 4261726; 6/3/94
Docket No. LAKE 94-333-R
Citation No. 4261742; 6/1/94
Docket No . LAKE 94-334-R
Citation No. 4261745; 6/4/94
Docket No. LAKE 9 4- 337-R
Citation No. 4261748; 6/5/94
Docket No . LAKE 94 - 357 -R
Citation No. 4262073 ; 6/5/94
Docket No. LAKE 94-394-R
Citation No. 4262320; 6/1/94
Docket No . LAKE 94-417-R
Citation No. 4262056; 6/1/94
Docket No . LAKE 94-418 - R
Citation No . 4262059 ; 6/4/94
Docket No. LAKE 94 -4 21 - R
Citation No . 4262072; 6/3/94
Docket No. LAKE 94-422-R
Citation No. 4262074 ; 6/5/94

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

CIVIL PE NALTY PROCEEDING
Docket No. LAKE 94-604
A . C . No . 12-02033-03631

v.
BUCK CREEK COAL , INC.,
Respondent

2177

DEFAULT DECISION
Before :

Judge Hodgdon

These cases are before me on Notice of Contest filed by Buck
Creek Coal, Inc., and Petitions for Assessment of Civil Penalty
filed by the Secretary of Labor, acting through his Mine Safety
and Health Administration (MSHA), against Buck Creek pursuant to
section 105 of the Federal Mine Safety and Health Act of 1977, 30
U.S . C. § 815. The petitions allege 60 violations of the
Secretary's mandatory health and safety standards and seek
penalties of $9,407.00.
For the reasons set forth below, I find
the company in default, affirm the orders and citations, and
assess penalties of $9,407.00 .
These cases are several in a long line of proceedings
involving Buck Creek. 1 At various times during the past two
years proceedings in these cases have been stayed pending the
outcome of criminal actions brought by the U. S . Attorney against
the company . The criminal cases were comp l eted in the spring of
this year when the company pleaded guilty to all 12 counts of the
indictment against it.
On May 1, 1996, counsel for the Secretary served
Interrogatories and a Request for Production of Documents on the
Respondent. On June 24, counsel filed a Motion to Compel stating
that Buck Creek had received the discovery requests on May 3, but
had not responded to them. Consequently, the Secretary requested
that the company be compelled to respond to the requests and that
if the company did not respond to the requests a default decision
be issued in the proceedings.
Buck Creek did not respond to the
Motion to Compel .
Based on the Secretary's unopposed motion, an Order
Compelling Response to Discovery Requests was issued on July 29,
1996 . Buck Creek was ordered to respond to the Secretary ' s
discovery requests within 21 days of the date of the order. The
company was further cautioned that "[f]ailure to respond will
result in the issuance of an Order of Default, without the
issuance of a prior Order to Show Cause. "

1

Because of the number of cases involving Buck Creek,
Docket No. LAKE ~4-72 was designated as the master docket for
filings in any of the cases . However, this decision identifies,
in the caption, the specific docket numbers of the cases
involved.

2178

The order was sent by Certified Mail-Return Receipt
Requested to Chuck Shultise , President of Buck Creek; Randall
Hammond, Mine Superintendent; and Terry G. Farmer, Esq., the
company ' s bankruptcy counsel.
Return Receipt Cards have been
received from all three indicating that the order was received on
either July 31 or August 1 .
On September 17, 1996, the Secretary filed a Motion for an
Order of Default stating that as of that date the company had not
responded to the discovery requests. Therefore, the Secretary
requested that an order of default be issued.
Buck Creek has not
responded to the motion.
I am aware that Buck Creek is apparently in bankruptcy.
However, filing a petition in bankruptcy does not automatically
stay proc~edings before the Commission or foreclose an entry of
judgment against the company. 11 U.S.C. § 362(b) {4) ; Holst
Excavating , Inc., 17 FMSHRC 101 , 102 (February 1995); Secretary
of Labor on behalf of Price v . Jim Walter Resources, Inc., 12
FMSHRC 1521, 1530 (August 1990) .

Commission Rule 59, 29 C . F . R . § 2700.59, states that "[i]f
any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are just and appropriate .
" Commission
Rule 66(a), 29 C . F . R . § 2700 . 66(a), requires that "[w]hen a party
fails to comply with an Qrder of a Judge .
. an order to show
cause shall be directed to the party before the entry of any
order of default or dismissal."
In view of the Respondent's consistent failure to respond to
the Secretary's discovery requests o r motions regarding the
requests, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futile act.
Consequently, I warned the Respondent in the order compe l ling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cau~e. The
Respondent's subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary's
motion for default demonstrate that. that conclusion was correct.
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements of Rule
66(a) were complied with.

2179

ORDER

Based on the above, I find the Respondent, Buck Creek Coal ,
Inc., in default in these cases . Accordingly , Citation Nos.
4262255, 4259815, 4056445, 4056447, 4056448, 4056449, 4259169,
4259170, 4262307, 4262308, 4259172, 4259173, 4259879, 4259880 ,
426168 1 , 4262310, 4261880, 4262070, 4262313 and 4262314 in Docket
Nos . LAKE 94-263-R, LAKE 94 - 265- R, 94-266-R, LAKE 94-267-R, LAKE
94-282-R, LAKE 94-283- R, LAKE 94 - 285-R, LAKE 94-286-R, LAKE 94294-R, LAKE 94-305-R, LAKE 94 - 306-R, LAKE 94-322-R, LAKE 94-344R, LAKE 94-382-R , LAKE 94-383-R, LAKE 94-385-R, LAKE 94-388-R,
LAKE 94-389-R, LAKE 94-419-R and LAKE 94-602; Citation Nos.
4056454, 426 1 722, 386 1722, 3861723, 3862685, 3862686, 3862687,
3862688, 3862689, 3862690 , 4056455, 4056456, 4056457, 4056458,
4056459, 4261519, 4261520, 4261541, 4261542 and 4261741 in Docket
Nos. LAKE 94-253-R , LAKE 94-254 - R, LAKE 94-256-R, LAKE 94-258-R ,
LAKE 94-259-R, LAKE 94-260-R, LAKE 94-261-R, LAKE 94-262-R, LAKE
94-269-R, LAKE 94-270-R, LAKE 94-271-R, LAKE 94-272-R, LAKE 94273-R, LAKE 94-274-R, LAKE 94-307-R, LAKE 94-308-R, LAKE 94-309R, LAKE 94-327-R, LAKE 94-332 - R and LAKE 94 - 603; Citation Nos.
4261742 , 4262056, 4262320, 3862189, 4056460, 4056781 , 4056782,
4261723, 4261724, 4261725, 4261726 , 4262072, 3861724, 3862190,
3862691, 4261745, 4262059, 4261748 , 4262073 and 4262074 in Docket
Nos. LAKE 94-275 - R, LAKE 94-328 - R, LAKE 94 - 333-R, LAKE 94-334 - R,
LAKE 94-337-R, LAKE 94-357-R, LAKE 94-394-R, LAKE 94-417-R, LAKE
94-418-R, LAKE 94-421-R, LAKE 94 - 422 - R and LAKE 94-604 are
AFFI RMED.
Buck Creek Coal Inc . , or its successor, 2 is ORDERED TO
PAY civil penalties of $9,407 . 00 within 30 days of the date of
this decision. On receipt of payment, these proceedings are
DISMISSED .

1:~~

Administrative Law Judge

2

According to a July 19, 1996, news release, issued by the
United States Attorney for the Southern District of Indiana, the
company is now known as Indiana Coal Company.

2180

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

DEC 1 3 \996.
BUCK CREEK COAL, INC.,
Contestant
v.

CONTEST PROCEEDINGS
Docket No . LAKE 94-276-R
Citation No. 4258952; 6/6/94

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

Docket No. LAKE 94 - 277 - R
Citation No. 4258953; 6/6/94
Docket No. LAKE 94 - 279-R
Citation No. 4258955; 6/8/94
Docket No. LAKE 94 - 291-R
Citation No . 4259243; 6/8/94
Docket No. LAKE 94-310-R
Citation No . 4261543; 6/6/94
Docket No. LAKE 94-311-R
Citation No. 4261544; 6/6/94
Docket No. LAKE 94-312 - R
Citation No . 4261545; 6/6/94
Docket No. LAKE 94-314 - R
Citation No. 426154 7; 6/7/94
Docket No. LAKE 94 - 315-R
Citation No. 4261548; 6/7/94
Docket No . LAKE 94-316~R
Citation No. 4261549; 6/7/94
Docket No. LAKE 94-317-R
Citation No. 4261550; 6/8/94
Docket No. LAKE 94-318-R
Citation No. 4261551; 6/8/94
Docket No. LAKE 94-323 - R
Citation No. 4261702; 6/7/94

2181

Docket No. LAKE 94-324-R
Citation No . 4261703; 6/8/94
Docket No . LAKE 94-325 - R
Citation No. 4261704; 6/8/94
Docket No. LAKE 94-338-R
Citation No. 426 1749; 6/7/94
Docket No. LAKE 94-339-R
Citation No. 4261750; 6/7/94
Docket No. LAKE 94-414-R
Citation No. 4262376; 6/5/94
Docket No . LAKE 94-415-R
Citation No . 4262483; 6/6/94
Docket No. LAKE 94-424-R
Cita tion No. 4262076; 6/5/94
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No . LAKE 94-605
A.C. No . 12-02033- 03632
Buck Creek Mine

BUCK CREEK COAL, INC . ,
Respondent
BUCK CREEK COAL, INC.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

CONTEST PROCEEDINGS
Docket No. LAKE 94-280-R
Citation No. 4258956; 6/9/94
Docket No. LAKE 94-281-R
Citation No. 4258957; 6/9/94
Docket No. LAKE 94-320-R
Citation No. 4261553; 6/9/94
Docket No. LAKE 94 - 340-R
Citation No. 4261751; 6/8/94
Docket No. LAKE 94-341-R
Citation No. 4261752; 6/8/94
Docket No . LAKE 94-342 - R

2182

Citation No . 4261753; 6/8/94
Docket No. LAKE 94-343-R
Citation No. 4261754; 6/9/94
Docket No. LAKE 94-425-R
Citation No. 4267381; 6/9/94
Docket No. LAKE 94 - 447 - R
Citation No. 4261755; 6/10/94
Docket No. LAKE 94-448-R
Citation No. 4261756; 6/10/94
Docket No. LAKE 94-450-R
Citation No . 4262379; 6/11/94
Docket No. LAKE 94-451-R
Citation No. 4262380; 6/11/94
Docket No . LAKE 94-453 - R
Citation No. 4262125; 6/11/94
Docket No. LAKE 94-454-R
Citation No. 4266737; 6/12/94
Docket No . LAKE 94-462-R
Citation No . 4262127 ; 6/13/94
Docket No. LAKE 94-463-R
Citation No . 4262161; 6/13/94
Docket No. LAKE 94 - 464-R
Citation No. 4262485 ; 6/13/94
Docket No. LAKE 94 - 466 - R
Citation No. 4262486; 6/14/94
Docket No. LAKE 94-484~R
Citation No. 4055272; 6/15/94

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

CIVIL PENALTY PROCEEDING
Docket No . LA.KE 94-606
A.C. No . 12-02033-03633

v.

Buck Creek Mine
BUCK CREEK COAL, INC . ,
Respondent

2183

DEFAULT DECISION

Before:

Judge Hodgdon

These cases are before me on Notices of Contest filed by
Buck Creek Coal, Inc., and Petitions for Assessment of Civil
Penalty filed by the Secretary of Labor, acting through his Mine
Safety and Health Administration (MSHA), against Buck Creek
pursuant to section 105 of the Federal Mine Safety and Health Act
of 1977, 30 U. S . C . § 815. The petitions allege 39 violations of
the Secretary's mandatory health and safety standards and seek
penalties of $7,344 . 00.
For the reasons set forth below, I find
the company in default , affirm the orders and citations, and
assess penalties of $7,344.00.
These cases are several in a long line of proceedings
involving Buck Creek . 1 At various times during the past two
years proceedings in these cases have been stayed pending the
outcome of criminal actions brought by the U. S. Attorney against
the company. The criminal cases were completed in the spring of
this year when the company pleaded guilty to all 12 counts of the
indictment against it.
On May 1, 1996, counsel for the Secretary served
Interrogatories and a Request for Production of Documents on the
Respondent. On June 24, counsel filed a Motion to Compel stating
that Buck Creek had received the discovery requests on May 3 , but
had not responded to them . Consequently , the Secretary requested
that the company be compelled to respond to the requests and that
if the company did not respond to the requests a default decision
be issued in the proceedings. Buck Cree~ did not respond to the
Motion to Compel.
Based on the Secretary's unopposed motion, an Order
Compell_ing Response to Discovery Requests was issued on July 29 ,
1996. Buck Creek was ordered to respond to the Secretary's
discovery requests within 21 days of the date of the order. The
company was further cautioned that "[f]ailure to respond will
result in the issuance of an Order of Default , without the
issuance of a prior Order to Show Cause. "

1

Because of the number of- cases involving Buck Creek ,
Docket No. LAKE 94 - 72 was designated as the master docket for
filings in any of the cases . However, this decision identifies,
in the caption, the specific docket numbers of the cases
involved.

2184

The order was sent by Certified Mail-Return Receipt
Requested to Chuck Shultise, President of Buck Creek; Randall
Hammond, Mine Superintendent; and Terry G. Farmer, Esq . , the
company's bankruptcy counsel.
Return Receipt Cards have been
received from all three indicating that the order was received on
either July 31 or August 1 .
On September 17, 1996, the Secretary filed a Motion for an
Order of Default stating that as of that date the company had not
responded to the discovery requests.
Therefore, the Secretary
requested that an order of default be issued. Buck Creek has not
responded to the motion.
I am aware that Buck Creek is apparently in bankruptcy.
However, filing a petition in bankruptcy does not automatically
stay proceedings before the Commission or foreclose an entry of
judgment against the company.
11 U. S . C . § 362(b) (4); Holst
Excavating, Inc., 17 FMSHRC 101, 102 (February 1995); Secretary
of Labor on behalf of Price v. Jim Walter Resources, Inc., 12
FMSHRC 1521, 1530 (August 1990).
Commission Rule 59, 29 C.F.R. § 2700.59, states that "[i]f
any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are just and appropriate .
" Commission
Rule 66(a), 29 C . F.R. § 2700.66(a), requires that "[w]hen a party
fails to comply with an order of a Judge . . . an order to show
cause shall be directed to the party before the entry of any
order of default or dismissal."
In view of the Respondent's consistent failure to respond to
the Secretary's discovery requests or motions regarding the
requ~sts, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futile act.
Consequently, I warned the Respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause. The
Respondent's subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary's
motion for default demonstrate that that conclusion was correct.
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements of Rule
66(a) were complied with.

2185

ORDER
Based on the above, I find the Respondent, Buck Creek Coal,
Inc ., in default in these cases. Accocdingly, Citation Nos .
4262076, 4262376, 4258952, 4258953, 4261543 , 4261544, 4261545,
4262483, 4261547 , 4261548, 4261549, 4261702 , 4261749, 4261750,
4258955, 4259243, 4261550, 4261551, 4261703 and 4261704 in Docket
Nos. LAKE 94-276-R, LAKE 94 - 277-R, 94-279-R , LAKE 94-291 - R, LAKE
94-310-R, LAKE 94 - 311 - R, LAKE 94-312-R, LAKE 94-314-R, LAKE 94315-R, LAKE 94 - 316- R, LAKE 94-317-R, LAKE 94-318 - R, LAKE 94-323R, LAKE 94-324-R, LAKE 94-325-R, LAKE 94-338-R, LAKE 94-339-R,
LAKE 94-414-R, LAKE 94-415-R, LAKE 94-424-R and LAKE 94 - 605 ;
Citation Nos. 4258956, 4258957, 4261553, 4261751, 4261752,
4261753 , 4261754, 4267381, 4261755, 4261756, 421i2379, 4.262380,
4262125, 4266737, 4262127, 4262161, 4262485, 4262486 and 4055272
in Docket Nos . LAKE 94-280-R, LAKE 94-281-R, LAKE 94-320- R, LAKE
94-340-R, LAKE 94-341-R, LAKE 94-342-R , LAKE 94-343-R, LAKE 94425-R, LAKE 94-447 - R, LAKE 94-448-R, LAKE 94-450 - R, LAKE 94-451R, LAKE 94-453-R, LAKE 94-454-R, LAKE 94-462-R, LAKE 94-463 - R,
LAKE 94-464-R, LAKE 94-466-R, LAKE 94-484-R and LAKE 94-606 are
AFFIRMED. Buck Creek Coal Inc . , or its successor, 2 is ORDERED TO
PAY civil penalties of $7 , 344.00 within 30 days of the date of
this decision. On receipt of payment, these proceedings are
DISMISSED .

'! ~/fttff£..

Administrative Law Judge

2

According to a July 19, 1996, news release , issued by the
United States Attorney for the Southern District of Indiana, the
company is now known as Indiana Coal Company.

2186

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

DEC 1 3 1996
BUCK CREEK COAL , INC.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Respondent

CONTEST PROCEEDINGS
Docket No . LAKE 94-288-R
Citation No . 4259175; 5/25/94
Docket No. LAKE 94-465-R
Citation No . 4262128; 6/14/94
Docket No. LAKE 94-498-R
Citation No . 4261759; 6/16/94
Docket No. LAKE 94-500-R
Citation No. 4261737; 6/17/94
Docket No. LAKE 94-504-R
Citation No. 3862537; 6/19/94
Docket No. LAKE 94-505-R
Citation No. 3862538; 6/19/94
Docket No. LAKE 94-507-R
Citation No . 3862540; 6/19/94
Docket No. LAKE 94-508 - R
Citation No. 3862709; 6/19/94
Docket No . LAKE 94-517-R
Citation No. 3859801; 6/19/94

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

CIYIL PENALTY PROCEEDING
Docket No. LAKE 94-669

Petitioner

A.C. No . 12-02033-03636

v.
Buck Creek Mine

BUCK CREEK COAL, INC.,
Respondent

2187

BUCK CREEK COAL, INC. ,

CONTEST PROCEEDINGS

Contestant
Docket No. LAKE 94 - 526-R
Citation No . 3859804; 6/21/94

v.

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

Docket No. LAKE 94-527-R
Citation No . 3861581; 6/2 1/94

Respondent
Docket No . LAKE 94-535-R
Citation No. 3861587; 6/22/94
Docket No. LAKE 94-537-R
Citation No . 4259236; 6/22/94
Docket No . LAKE 94-538-R
Citation No. 4259237; 6/22/94
Docket No. LAKE 94-543-R
Citation No. 4267424; 6/22/94
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 94-670
A.C. No. 12-02033-03637

v.
Buck Creek Mine
BUCK CREEK COAL, INC.,
Respondent

BUCK CREEK COAL, INC.,

CONTEST PROCEEDINGS

Contestant
Docket No. LAKE 94-546 - R
Citation No. 4261765; 6/23/94

v.

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

Docket No . LAKE 94-547-R
Citation No. 4261904 ; 6/23/94

Respondent
Docket No. LAKE 94-548-R
Citation No . 4262129; 6/23/94
Docket No. LAKE 94 - 552-R
Citation No . 4261906; 6/26/94
Docket No . LAKE 94 - 555- R
Citation No . 4261962; 6/28/94

2188

Docket No. LAKE 9 4- 556-R
Citation No. 43861 1 3; 6/28/94
Docket No. LAKE 94-558-R
Citation No . 4261882; 6/29/94
Docket No . LAKE 94-562-R
Citation No. 4386114; 6/30/9 4
Docket No . LAKE 94-569-R
Citation No. 4261910; 7 / 1 / 94
Docke t No . LAKE 94-571-R
Citation No. 4261486; 7/2/94
D6cket No . LAKE 94-574-R
Citation No . 42619 1 2; 7/5/94
Docket No. LAKE 94-580-R
Citation No. 4267449; 7/6/94
Docket No. LAKE 94-582-R
Citation No . 4050833; 7/7/94
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No . LAKE 94-671
A.C. No. 12-02033-03638

V.

Buck Creek Mine
BUCK CREEK COAL, INC.,
Respondent
DEFAULT DECISION
Before:

Judge Hodgdon

These cases are before me on Notices of Contest filed by
Buck Creek Coal , Inc . , Petitions for Assessment of Civii Penalty
filed by the Secretary of Labor, acting through his Mine Safety
and Health Administration (MSHA), against Buck Creek pursuant to
section 105 of the Federal Mine Safety and Health Act of 1977 ,
30 U.S . C. § 815. The petitions allege 28 violations of the
Secretary's mandatory health and safety standards and seek
penalties of $8,200.00 . For the reasons set forth below, I find
the company in default, affirm t~e orders and citations , and
assess penalties of $8,200.00.

2189

These cases are several in a long line of proceedings
involving Buck Creek. 1 At various times during the past two
years proceedings in these cases have been stayed pending the
outcome of criminal actions brought by the U.S. Attorney against
the company . The criminal cases were completed in the spring of
this year when the company pleaded guilty to all 12 counts of the
indictment against it.
On May 1, 1996, counsel for the Secretary served
Interrogatories and a Request for Production of Documents on the
Respondent. On June 24, counsel filed a Motion to Compel stating
that Buck Creek had received the discovery requests on May 3 , but
had not responded to them. Consequently, the Secretary requested
that the company be compelled to respond to the r e quests and that
if the company did not respond to the requests a default decision
be issued in the proceedings. Buck Creek did not respond to the
Motion to Compel .
Based on the Secretary ' s unopposed motion, an Order
Compelling Response to Discovery Requests was issued on July 29,
1996 .
Buck Creek was ordered to respond to the Secretary ' s
discovery requests within 21 days of the date of the order . The
company was further cautioned that "[f]ailure to respond will
result in the issuance of an Order of Default, without the
issuance of a pri or Order to Show Cause. "
The order was sent by Ce rt ified Mail - Ret u rn Receipt
Requested to Chuck Shultise, President of Buck Creek; Randall
Hammond, Mine Superintendent; and Terry G. Farmer , Esq., the
company's bankruptcy counsel. Return Receipt Cards have been
received from all three indicating that the order was received on
either July 31 or August 1.
On September 17, 1996, the Secretary filed a Motion for an
Order of Default stating that as of that date the company had not
responded to the discovery requests . Therefore, the Secretary
requested that an order of default be issued. Buck Creek has not
responded to the motion .
·

1

Because of the number of cases involving Buck Creek ,
Docket No. LAKE 94-72 was designated as the master docket for
filings in any of the cases.
However, this decision identifies,
in the caption, the specific docket numbers of the cases
involved .

2190

I am aware that Buck Creek is apparently in bankruptcy.
However, filing a petition in bankruptcy does not automatically
stay proceedings before the Commission or foreclose an entry of
judgment against the company.
11 U.S.C. § 362 (b) (4)"; Holst
Excavating/ Inc., 17 FMSHRC 101, 102 (February 1995); Secretary
of Labor on behalf of Price v. Jim Walter Resources, Inc. , 12
FMSHRC 1521, 1530 (August 1990).
Commission Rule 59, 29 C.F.R. § 2700 . 59, states that " [ i)f
any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are just and appropriate . . . . " Commission
Rule 66(a), 29 C . F.R . § 2700.66(a), requires that "(w]hen a party
fails to comply with an order of a Judge . . . an order to show
cause shall be directed to the party before the entry of any
order of default or dismissal . "
In view of the Respondent's consisten t failure to respond to
the Secretary's discovery requests or motions regarding the
requests, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futile act.
Consequently, I warned the Respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause . The
Respondent's subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary's
motion for default demonstrate that that conclusion was correct.
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements of Rule
66(a) were complied with .
ORDER
Based on the above, I find the Respondent, Buck Creek Coal,
Inc., in default in these cases. Accordingly, Citation Nos.
4259175, 4262128, 4261759, 4261737, 3862537 , 3862538, 3862540,
3862709 and 3859801 in Docket Nos. LAKE 94-288-R, LAKE 94 - 465-R,
94-498-R, LAKE 94-500-R, LAKE 94-504 - R, LAKE 94-505-R, LAKE 94507-R, LAKE 94-508-R, LAKE 94-517-R and LAKE 94-669; Citation
Nos. 3859804, 3861581, 3861587, 4259236, 4259237 and 4267424 in
Docket Nos. LAKE 94-526-R, LAKE 9A - 527-R, LAKE 94-535-R, LAKE 94537-R, LAKE 94-538-R, LAKE 94 - 543-R and LAKE 94 - 670; and Citation
Nos. 4261765, 4261904, 4262129, 4261906, 4261962, 4386113,
4261882, 4386114, 4261910, 4261486, 4261912 , 4267449 and 4050833
in Docket Nos . LAKE 94-546-R, LAKE 94 -547-R, LAKE 94 - 548-R, LAKE
94-552-R, LAKE 94-555-R, LAKE 94-556-R, LAKE 94-558 - R, LAKE 94562-R, LAKE 94-571- R, LAKE 94-574 - R, LAKE 94-580-R , LAKE 94 - 582-R
and LAKE 94 - 671 are AFFI~D . Buck Creek Coal Inc ., or its

2191

successor, 2 is ORDERED TO PAY civil penalties of $8 , 200 . 00 within
30 days of the date of this decision. On receipt of payment,
these proceedings are DISMISSED.

d.~~

T. Todd Hod;;fc~ .....,
Administrative Law Judge

Distribution:
Rafael Alvarez, Esq . , Office of the Solicitor, U.S. Department of
Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail)
Mr. Chuck Shultise, President, Buck Creek Coal Co., Inc ., RRS,
Box 203, Sullivan , IN 47882 (Certified Mail)
Mr. Randall Hanunond , Superintendent, Buck Creek Coal Co. , Inc. ,
2156 S. County Rd., 50 West St., Sullivan, IN 47882 (Certified
Mail)
Terry G. Farmer, Esq ., Bamberger, Foreman, Oswald, & Hahn ,
708 Hulman Bldg. , P . O. Box 657, Evansville, IN 47704 (Certified
Mail)
/lt

2

According to a July 19, 1996 , news release, issued by the
United States Attorney for the Southern District of Indiana, the
company is now known as Indiana Coal Company.

2192

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

DEC 1 3 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 94-600
A. C . No. 12-02033-03626

v.
Buck Creek Mine
BUCK CREEK COAL, INC . ,
Respondent
BUCK CREEK COAL, INC.,
Contestant

v.

CONTEST PROCEEDINGS
Docket No. LAKE 94-370-R
Citation No.4262274; 5/18/94

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

Docket No. LAKE. 94 - 372-R
Citation No. 4262276; 5/18/94
Docket No . LAKE 94-376-R
Citation No . 4262301; 5/19/94
Docket No. LAKE 94 - 408-R
Citation No. 4262369; 5/17/94

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 94-601
A. C. No. 12-02033-03627

v.
Buck Creek Mine
BUCK CREEK COAL, INC.,
Respondent
PEFAULT PECISION
Before:

Judge Hodgdon

These cases are before me on Notices of Contest filed by
Buck Creek Coal, Inc ., and Petitions for Assessment of Civil
Penalty filed by the Secretary of Labor, acting through his Mine
Safety and Health Administration (MSHA), against Buck Creek

2193

pursuant to section 105 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C . § 815. The petitions allege 33 violations of
the Secretary's mandatory health and safety standards and seek
penalties of $4,628.00.
For the reasons set forth ' below, I find
the company in default, affirm the orders and citations, and
assess penalties of $4,628.00.
These cases are several in a long line of proceedings
involving Buck Creek. 1 At various times during the past two
years proceedings in these cases have been stayed pending the
outcome of criminal actions brought by the U.S. Attorney against
the company. The criminal cases were completed in the spring of
this year when the company pleaded guilty to all 12 counts of the
indictment against it .
On May 1, 1996, counsel for the Secretary served
Interrogatories and a Request for Production of Documents on the
Respondent. On June 24, counsel filed a Motion to Compel stating
that Buck Creek had received the discovery requests on May 3, but
had not responded to them. Consequently, the Secretary requested
that the company be compelled to respond to the requests and that
if the company did not respond to the requests a default decision
be issued in the proceedings. Buck Creek did not respond to the
Motion to Compel.
Based on the Secretary ' s unopposed motion , an Order
Compelling Response to Discovery Requests was issued on July 29,
1996 . Buck Creek was ordered to respond to the Secretary's
discovery requests within 21 days of the date of the Grder. The
company was further cautioned that "[f]ailure to respond will
result in the issuance of an Order of Default, without the
issuance of a prior Order to Show Cause. "
The order was sent by Certified Mail-Return Receipt
Requested to Chuck Shultise, President of Buck Creek ; Randall
Hammond, Mine Superintendent; and Terry G. Farmer, Esq., the
company ' s bankruptcy counsel. Return Receipt Cards have been
received from all three indicating that the order was received on
either July 31 or August 1.
On September 17, 1996, the Secretary filed a Motion for an

1

Because of the number of cases involving Buck Creek,
Docket No . LAKE 94 - 72 was designated as the master docket for
filings in any of the cases. However, this decision identifies,
in the caption, the specific docket numbers of the cases
involved .

21 94

Order of Default stating that as of that date the company had not
responded to the discovery requests . Therefore, the Secretary
requested that an order of default be issued . Buck Creek has not
responded to the motion.
I am aware that Buck Creek is apparently in bankruptcy.
However, filing a petition in bankruptcy does not automatical l y
stay proceedings before the Commission or foreclose an entry of
judgment against the company.
11 U.S.C. § 362(b) (4); Holst
Excavating, Inc., 17 FMSHRC 101, 102 (February 1 995); Secretary
of Labor on behalf of Price v . Jim Walter Resources, Inc . , 12
FMSHRC 1521, 1530 (August 1990).
Commission Rule 59, 29 C.F.R. § 2700.59, states that "[i]f
any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are just and appropriate . . . . " Commission
Rule 66(a), 29 C . F.R. § 2700.66(a), requires that "[w]hen a party
fails to comply with an order of a Judge . . . an order to show
cause shall be directed to the party before the entry of any
order of default or dismissal."
In view of the Respondent's consistent failure to respond to
the Secretary's discovery requests or motions regarding the
requests, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futile act.
Consequently, I warned the Respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause. The
Respondent's subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary's
motion for default demonstrate that that conclusion was correct.
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements of Rule
66(a) were complied with .
ORDER

Based on the above, I find the Respondent, Buck Creek Coal,
Inc., in default in these cases. Accordingly, Citation Nos.
4262355, 4259862, 4262042, 4262044, 4262045, 4262359, 4259863,
4259864, 4262050, 4259223, 4259224, 4262256, 4262257, 4386043,
4386044, 4386045, 4262051, 4262052, 4262258 and 4262259 in Docket
No. LAKE 94-600; and Citation Nos. 4262267, 4262268, 4262270,
4262271, 4262272, 4262273, 4259873, 4259874, 4262053, 4262369,
4262274, 4262276 and 4262301 in Docket Nos. LAKE 94-370-R, LAKE
94-372-R, LAKE 94-376-R and LAKE 94-408-R and LAKE 94-601 are

2195

AFFIRMED . Buck Creek Coal Inc., or its successor, 2 is ORDERED TO
PAY civil penalties of $4,628 . 00 within 30 days of the date of
this decision. On receipt of payment , these proceedings are
DISMISSED.

Administrative Law Judge
Distribution :
Rafael Alvarez, Esq., Office of the Solicitor , U. S. Department of
Labor , 230 S. Dearborn St . , 8th Floor , Chicago, IL 60604
(Cert i fied Mail)

Mr . Chuck Shultise, President, Buck Creek Coal Co., Inc ., RRS ,
Box 203, Sullivan, IN

47882 (Certified Mail)

Mr. Randall Hammond, Superintendent , Buck Creek Coal Co . , I nc. ,
2156 S. County Rd . , 50 West St . , Sullivan, IN 47882 (Certified
Mail)
Terry G. Farmer, Esq . , Bamberger , Foreman, Oswald, & Hahn,
708 Hulman Bldg., P.O . Box 657, Evansville , IN 47704 (Certi f ied
Mail)
/lt

2

According to a July 19, 1996 , news release , i ssued by the
United States Attorney for the Southern District of Indiana , the
company is now known as Indiana Coal Company.

2196

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., 6TH FLOOR

WASHINGTON,D. C. 20006-3868
December 16, 1996
SECRETARY OF LABOR ,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No . YORK 95-57-M
A . C . No. 19-00020-05501 E24
Lynn Sand & Stone Quarry

AUSTIN POWDER COMPANY,
Respondent
SECRETARY OF LABOR ,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA} ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No . YORK 96-13-M
A . C. No. 19-00020-05502 E24

v.
Lynn Sand & Stone Quarry
BRUCE EATON, EMPLOYED BY
AUSTIN POWDER COMPANY,
Respondent
DECISION ON REMAND
Before:

Judge Merlin

These cases are before me pursuant to the Commission's
decision dated December 12, 1996.
In my decision dated October 31, 1996, I entered orders
affirming a finding of unwarrantabie failure and affirming
Citation No . 4424405 as issued under section 104(d) (1) of the
Act. 18 FMSHRC 1878, 1889. These orders were issued in error .
The subject citation was originally issued under section
104(d) (1) , but the Secretary subsequently deleted the
unwarrantable failure designation and modified the citation to
one issued under section 104(a). Therefore, the orders in
question must be vacated.

2197

I have reviewed the assessed penalties in light of the fact
that the citation was issued under section 104(a). My determination of appropriate penalties was premised in part upon a finding
of very high negligence which remains unchanged.
supra at 1887.
Accordingly, the penalty assessments previously entered will not
be modified.
In light of the foregoing, i t is ORDERED that the decision
dated October 31, 1996, be MODIFIED to delete the unwarrantable
failure finding and to affirm the citation under section 104(a)

: \~
Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Gail Glick, Esq., Office of the Solicitor, U.S. Department of
Labor, One Congress Street, 11th Floor, P.O. Box 8396, Boston, ¥A

02114
John T. Bonham, Esq., Jackson & Kelly, P. 0. Box 553, Charleston,

WV

25322

/gl

2198

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

DEC 1 6 1996
STANDARD LAFARGE,
Contestant
v.

CONTEST PROCEEDI NG
Docket No. LAKE 95-114 - RM
Citation No. 4413670; 11/05/94

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

Marblehead Quarry
Mine ID No . 33-00099

I

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 95-239-M
A. C. No. 33-00099-05546
Marblehead Quarry

LAFARGE CONSTRUCTION MATERIALS,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No . LAKE 96-28-M
A. C. No. 33-00099-0554 8A
Marbl ehead Quar ry

THEODORE M. DRESS, Employed
by LAFARGE CONSTRUCTION
MATERIALS,
Respondent
DECISION
Appearances:

Patrick L . DePace , Esq ., Office of the Solicitor,
U.S . Dept . Of Labor, Cleveland, Ohio for
Secretary of Labor;
William K. Doran, ~sq ., Smith, Heenan & Althen,
Washington, D.C. , for LaFarge Construction
Materials .

Be f ore : Judge Barbour
These consolidated contest and c i vil penalty proce edings
arise under s e ctions 105(d), llO(a) and llO(c) of the Federal
Mine Safety and Health Act of 1977 (30 U.S . C. §§§ 815(d) , 820(a),
820(c}}. The y involve a citation issued by the Secr etary of

2199

Labor's (Secretary) Mine Safety and Health Administration (MSHA)
as the result of an investigation of an accident at the
Marblehead Quarry of Standard Lafarge (Lafarge} (also known as
Lafarge Construction Materials (Tr. 9)). The quarry is located
in Ottawa County, Ohio.
The citation alleges that Lafarge violated mandatory safety
standard 30 C . F.R. §56.16002(a ) (1) when a miner who climbed into
;·surge bin to work was trapped by falling rock . Section
56.16002(a} (1) requires surge bins to be "(e]quipped with
mechanica l devices or other effective means of handling materials
so that during normal operations persons are not required to
enter or work where they are exposed to entrapment by caving or
sliding materials".
In addition, the citation alleges that the
violation was a significant and substantial contribution to a
mine safety hazard (S&S) and was due to Lafarge 's high negligence
and unwarrantable failure to comply (30 U.S.C. § 815(d) (1).
Lafarge contested the citation, asserting that it did not
state a violation.
Al so, Lafarge challenged the citation's S&S,
unwarrantable, and negligence findings.
After the citation was issued, the Secretary petitioned the
Commission to assess Lafarge a civil penalty of $3,800 and to
assess Theodore Dress, the foreman in charge at the time of the
accident, a civil penalty of $3,000 . Lafarge and Dress
challenged the petitions.
A hearing was conducted in Toledo, Ohio, at which the
parties presented ora·l testimony and documentary evidence.
Subsequently, counsels filed helpful briefs .
THE

I SSU~S

The principal issues with regard to Lafarge are whether it
violated section 56.16002(a} (1); if so, whether the violation was
S&S and unwarrantable, and the amount of the civil penalty that
must be assessed, taking into consideration the statutory civil
penalty criteria set forth in section llO(i) of the Act (30
u. s .c . §820(i)}.
The principal issues with regard to Dress are whether the
alleged violation occurred, whether he knowingly authorized,
ordered, or carried it out, and, if so, the amount of the civil
penalty that must be assessed, taking into consideration the
applicable section llO( i} criteria.

2200

STIPULATIONS
The parties stipulated that:
1.
Lafarge

The Marblehead Quarry is owned and operated by
[and] is subject to the . . . Act;

2. [T ]he Administrative Law Judge has ju.risdiction
to hear and decide the matters;
3.
Inspector James D. Strickler, who issued
[the c]itation [,] ... is a duly authorized
representative of the Secretary;
4. [A] copy of the [c]itation ... was served on
Lafarge
and on Dress . . . ;
5. [I]mposition of any appropriate civil money
penalty will not affect the ability of Lafarge ... . to
continue in business;
6.

Lafarge ... is a large operator;

7. [T]he assessed violation history report [Gov.
Exh. 1) may be used in determining an appropriate civil
money penalty (Tr. 8-9).
In addition to the stipulations, counsel for the Secretary
agreed that Lafarge had a small number of pervious violations .
He characterized the company's history of violations as "good"
(Tr. 130). Counsel also agreed that Dress had no applicable
history of violations (Tr . 130 ).
_THE ACCIDENT. THE INVESTIGATION. AND THE CITATION
The Marblehead Quarry is a dolomitic limestone extraction
and processing facility . The operation encompasses 2,500 acres
and produces 3, 500, 000 tons of limestone a year (Tr. 8·9) . At the
quarry, limestone shot from the face is transported to the
primary crusher, where it is reduced in size to 10 inches or
smaller.
It is then transported 'by two conveyor belts to a surge
bin. The crushed limestone is dumped from the belts into the
bin . When the bin is vibrated the stone passes through the bin
and falls onto a conveyor belt below the bin. The stone then
travels along the belt to other facilities for further processing
{Tr . 14-15,51,90; Resp . Exh.1).
The surge bin is approximately 22 feet wide, 22 feet long,

2201

and 13 feet high (Tr. 91-92). At the bottom of the bin are a
chute and vibrating feeders (Tr. 55, 92) . The feeders allow the
rock to flow evenly out of the chute and onto the lower conveyor
belt (Tr . 52) . The chute and vibrators , which are integral parts
of the bin, hang below the bin floor.
The floor is flat.
It has two rectangular openings in the
middle (Tr. 47, 92). As stone falls into the bin from the
overhead conveyor belts, it piles on the floor between the two
openings. As the vibrators shake the bin, the rock "sloughs off"
the piles and falls through the openings, into the chute, and
onto the lower conveyor belt (Tr. 96).
The bin was installed at the quarry in 1992 . When the bin
was first used, some of the rock around the openings was
compacted. This rock is so solid that it only can be removed by
chiseling or by using high pressure water hoses (Tr . 41, 45, 90,
95) . The solid material is called the "dead bed" (29) . The dead
bed forms ridges around the openings in the bin floor. Rock on
the sides of the ridges opposite the openings slids away from the
openings and · does not pose a hazard to anyone working below.
Rock on the other sides of the ridges slids down through the
openings (Tr . 41, 49 - 50; 96 see also Tr. 42-43; Resp Exh. R-2).
David Nelson, the plant manager, testified that miners did
not "regularly" work around the bin and that it was not a
"standard practice" for someone to work at or in the bin (Tr. 9293) . Nelson believed miners worked inside the bin approximately
one time a year (Tr. 94-95).
Nelson was familiar with the bin
because his duties required him daily to check it (Tr. 96- 97).
When a miner was assigned to work inside the bin, the normal
procedure at the quarry was to run the vibrators until the sensor
at the bin control tower indicated the bin was empty. Then, the
vibrators were left running for an additional time to shake out
and dislodge anything remaining in the bin (Tr. 97-98). After
that, a ll of the electricity to the bin was disconnected (Tr .
98) . However, Nelson admitted that because the bin had not been
emptied that often in the past, Lafarge officials did not know
"automatically" how long it took to clean out the bin (Tr . 105 ).
According to Nelson, when Lafarge's employees had to work in
the bin, they were instructed "to check the bin for loose
material, look at it and use [their] own judgment" (Tr. 98 - 99) .
Usually, employees looked into the bin from below. They were
closer to any remaining material if they looked from below then
if they looked from above (Tr 100). Nelson agreed, however, that
if miners looked into the bin from the top, they would get a

2202

"different perspective" (Id . ) Nelson was of the opinion, that if
loose material remained in the bin after it had been vibrated,
the only way to ensure safety was to go to the top of bin, take a
bar, and knock out the loose the material (Tr. 105-106) .
On July 15, 1994, Daniel Harder worked as a laborer at the
quarry.
He had been at the quarry for less than two years, but
hB had a long work history at other quarries (Tr . 33- 34).
Dress
was Harder's foreman . Dress ' s duties were to supervise miners
and to oversee production (Tr. 111-112).
As Dress came to work on July 15, the surge bi n was
operating normally. However, Dress noticed sand leaking through
a hole near the bottom of the bin.
Dress looked at the hole and
decided that it should be patched.
He also decided that the
patch could be applied from inside the bin (Tr. 112-11 3).
To get the bin ready for the repair work, Dress ordered that
the vibrators be kept operating. As has been noted, this was the
procedure normally used to clean loose rock out of the bin (Tr .
40, 98 , 113). The vibrators operatored for approximately 20
minutes to a haif hour more.
Dress told Harder and another miner , Brian Chumley, to go
the bin .
In the meantime, Dress went to the building housing the
controls of the bin, disconnected the bin's electricity, and
locked out its electrical circuits .
Dress then went to the bin. Harder and Chumley were there.
Dress and Harder looked into the bin fr9m below (Tr. 113-114).
Dress saw "a cone ... of hard-packed fines . .. like a wall of
hard - packed sand . And laying up above ... on the other level ...
[was] some loose surge material" (Tr . 116-117). Dress did not
believe any of this material could fall (Tr . 117 ) . As he
recalled, the rock was lying on the side of the dead bed away
from the opening (Tr . 41). According to Dress, he and Harder
discussed the situation and concluded that it was safe for Harder
to patch the hole (Id.).
Harder essentially agreed with Dress. When Harder looked
into the bin, he too saw some rock, but like Dress, Harder did
not believe that it would fall. Harder did not think that the
si t uation was dangerous (Tr . 21, 24-25, 57) . Both Dress and
Harder stated that if the rock had looked loose, they would have
gone to the top of the bin and knocked it out with a bar.
While Harder prepared to patch the hole, Dress left to find
Harder a wooden bock upon which to stand so that Harder could

2203

better reach the hole . When Dress returned, Harder had climbed
up into the bin and did not need the block (Tr . 118-119) . This
was the first time Harder had wo rked inside of the . bin.
Once inside , Harder began to weld the patch over the hole.
Dress remained outside, along with Chumley (Tr. 22) . No other
miners were working in the vicinity.
During the course of the
r~pair work, Dress and Chumley left so that Chumley could do
other work (Tr . 22, 53, 93) . However, Dress returned
periodically to check on Harder (Tr. 53) .
Harder welded for approximately 45 minutes. He was almost
finished when he heard rocks begin to fall around him . Harder
jumped down to get out of the bin. Harder managed to got his
head out of the bottom opening, and he assumed a crouched
position .
Rocks continued to fall about his back and shoulders.
He could not get ~11 of the way out (Tr . 23, 37).
Fortunately
for Harder, Dress had returned. He came immediately to Harder's
aid. He helped Harder remove some of the rocks, and Harder was
able to free himself (Id . ) .
Harder estimated that he was trapped for .about five minutes
(Tr. 36) . He suffered minor cuts.
Dress took him for first aid,
and asked if Harder wanted to go home. Harder responded that he
felt "okay" (Tr.37). He stayed and finished the shift. When
describing the experience, Harder stated, "[I ) t was scary, that's
for sure" (.Id.....) •
In October 1995, Strickler was conducting an inspection at
the quarry when an employee told him about the accident (Tr. 64) .
Strickler investigated and concluded there had been a violation
of section 56.16002(a) (1).
In Strickler's view, the violation
centered around the company's failure to remove the loose
material before Harder entered the bin (Tr. 77 - 78, 79-80).
Strickler stated:
There was a buildup of material in .. . [the bin] .
They observed it . They tried to make a correction, but
it was still there. They made no other attempt to
remove the material above the indi vidual and put him in
that situation (Tr . 65, see' also Tr. 76-77).
In Strickler's opinion , to comply with the standard Dress
should have "made sure that there wasn't any loose material in
[the] bin" (Tr . 82). The company should have run the vibrators
more and should have barred down the rock from the top of the
bin, if necessary (Tr . 68) .
Strickler stated; "That's taking a
l ittle bit more time and more precaution . And evidently, there

2204

had to be loose stuff in there because something came loose and
covered . . . [Harder] up" (I.Q..._) •
Strickler testified that the violation was abat"ed when the
company "had a safety meeting and instructed the employees on
working inside bins and hoppers" (Tr . 127). As best St r ickler
could reca ll, the instruction concerned the use of safety belts
and lines when going into hoppers (Id . ).
It also involved
instructions in the procedures to take when removing loose
material from bins, e.g . , running the vibrators. Abatement did
not include the installation of any additional devices on the
bin (Tr . 128) .
Strickler cited the company pursuant to section 104(a) of
the Act (30 U. S . C. § 814(a)) . After discussing the citation with
his supervisor, Strickler modified it to one issued pursuant to
section 104 ( d) ( 1) (Tr . 67-68) . The modification was based on
Strickler's belief that the violation was due to Lafarge's
unwarrantable failure to company with section 56 . 16002 (a) (1). He
explained that the company knew that rock had built up in the
bin, nevertheless Dress assigned Harder to work inside the bin
(Tr. 68).
Strickler also believed that the company was "highly
negligent" (Tr . 69) .
Finally, Strickler found that the v i olation
was S&S because he believed it reasonably li kely that Harder
would have suffocated (Tr . 69).
THE MOTION TO DISMISS
Following presentation of the Secretary ' s case-in- chief ,
counsel for Lafarge and Dress moved to dismiss the proceedings .
Counsel argued that the Secretary had not proven a violation, in
that section 56.16002(a) (1) states its requirements are
applicable during "normal operations", and patching the hole in
the bin "was definitely not a part of the normal operations" {Tr .
85). Counsel for the Secretary responded that patching . the hole
constituted maintenance of the bin and that "maintenance is
considered part of ... normal operations" (Tr . 86).
I agreed with
counsel for the Secretary, and denied the motion (Id . ).
THE VIOLATION
The first issue is whether there was a violation of section
56 .1 6002(a) (1) . If not, Lafarge's contest must be granted and
the Secretary's civil penalty proceedings dismissed .
Citation No . 4413670 states :
On 7 - 15 - 94 a maintenance employee was required to

2205

perform the task of welding a metal patch on the inside
of [the) . .. surge bin . The employee started out by
standing on top of the vibrating feeder, in order to
gain a better angle to weld, he climbed up inside the
bin . After a short period of time, loose material
began to fall, the employee attempted to exit the
discharge chute, when the loose material entrapped
him .... The foreman at the scene was able to free him
by removing some of the large rocks and getting him off
the feeder (Gov. Exh. 3).
Subsequently, the citation was modified as follows:
I t was rnanagernent 1 s responsibility to take the
necessary precautions to eliminate the hazards
involved, [p)rior to assigning an employee to the task
of welding a metal patch on the inside of the . . . bin.
After running the bin vibrators to remove most of the
materia l from inside the bin, management observed
material attached to the sides of the bin but made no
attempt to remove loose material prior to the work
being started (~ at 2) .
Subpart O of the regulations for metal and nonmetal mines
contains standards for "Materials Storage and Handling".
Section
56.16002 of Subpart 0 contains standards for "[b]ins, hoppers,
silos, tanks, and surge piles." As noted, section 56.16002(a) (1)
states in pertinent part
(a) Bins ... where loose unconsolidated materials
are stored, handled or transferred shall be (1) Equipped with mechanical devices or other effective
means of handling materials so that during normal
operations person are not required to enter or work
where they are exposed to entrapment by the caving or
sliding of materials[.]
The wording of the standard makes clear that the specified
facilities used for storing and handling materials - bins,
hoppers, silos, etc . - must either be equipped with mechanical
devices or with other means so that persons are not required to
enter or work where they are exposed to entrapment .
It also
makes clear that the standard is applicable during normal
operations.
Here, the vibrators were the "mechanical devices" with which
the bin was equipped to prevent persons from being trapped . They
were an integral part of the bin. Although they were used

2206

primarily to shake stone into the feeder and to facilitate its
even flow onto the belt below, they also could be and were used
to comply with the standard.
(Strickler and Dress essentially
agreed that the company tried to eliminate all of the loose
material by running the vibrators until the loose rock was
cleared from the bin (see especially Tr. 65 , 76- 77) . ) That the
mechanical devices had a dual purpose does not prevent them from
m~eting the singular goal of the standard .
In addition to the "mechanical devices" required by the
standard, the record supports finding the bin was equipped with
another "effective means" to prevent entrapment. The inspector
and Lafarge ' s witnesses agreed that a bar could be used from
above to knock down and eliminate loose material (Tr . 68, 105106 , Tr. 120 ) . While it is true that unlik~ the vibrators, the
bar was not attached to bin , the bin was nonetheless "equipped"
with the bar in that the it readily was available when necessary
(Tr. 120) (Webster's Third New I nternational Dictionary 768
(1968)).
Since the bin was equipped with mechanical devices to
prevent persons from working where they were exposed to
entrapment by caving or sliding materials, Lafarge was req~ired
to use the devices td achieve the mandated result.
In other
words , Lafarge was required to operate the vibrators to clear the
loose rock so that Harder would not be trapped . If its operation
of the vibrators did not sufficiently clear the rock, Lafarge was
required to make sure a bar ·was used to complete the task .
In
other words, under the standard, both the means for ac h ieving the
end and effective use of the means were required.
By £ailing to operate the vibrators to eliminate all of the
loose rock, and by failing to ensure that the remaining loose
rock was barred down prior to Harder entering the bin , Lafarge
violated the standard, provided patching the hole was a "normal
operation" .
As used in the standard, "normal" connotes a regular or
periodic pattern (~Webster's 1540) . Nelson, the plant
manager, testified that miners worked inside the bin
approximately once a year (Tr. 94-95) . Thus, they were regularly
exposed, albeit on an annual basis, to the hazards of such work .
This periodic exposure was su f ficient to make such work a "normal
operation" .
In addition , the hole in the bin, was the result of the
regular use of the bin. Repair of the hole was simply a
necessary extension of this regular use and, as counsel for the

2207

Secretary argued, in this way too was a "normal operation 11 •
Therefore, I conclude that Lafarge violated the standard.
S&S AND GRAVITY
A violation is properly designated S&S, " if , based upon the
facts surrounding the violation there . exists a
~easonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature" (Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981)).
There are four things the Secretary must prove to sustain an S&S
finding:

~rticular

(1) the underlying violation of a
mandatory safety standard; (2) a discrete
safety hazard -- that is, a measure of danger
to safety contributed to be 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 (Mathies Coal Co, 6 FMSHRC 1, 3 - 4
(January 1984); see also Austin Power Co. y.
Secretary, 861 F.2d 99, 104-105 (5th Cir .
1988) (approving Mathies criteria).
Here, the Secretary has proven all four.
There was a
violation of section 56.16002(a) (1).
It contributed to a measure
of danger to safety in that the failure to ensure the vibrators
were used effectively or that a bar was used to eliminate the
remaining loose rock, meant that a person entering the bin · was
subject to being trapped by the rock. Moreover, there was a
reasonable likelihood that the hazard contributed to would result
in an injury. Given Harder's presence under the rock and given
the work he was doing, the loose rock was likely to fall on
Harder at any time and to subject him to crushing injuries or
suffocation . Harder was lucky.
He suffered only minor cuts .
However, it was reasonably likely that he would have been more
severely injured or even killed .
In addition to being a significant and substantial
contribution to a mine safety hazard , the violation was very
serious .
It long has been held that to determine the gravity of
a violation, the violation should be analyzed in terms of its
potential hazard to the safety of miners and the probability of
that hazard occurring (Robert G. Lawson Coal Co., 1 IBMA 115 , 120
(May 1972)). The potential hazard was injury due to cuts and/or

2208

broken bones , or death due to asphyxiation . Because Harder was
required to work in the immediate presence of loose rock, it was
probable that an accident causing serious injury or even causing
death would happen.
UNWARRANTABLE FAILURE AND NEGLIGENCE
Unwarrantable failure is "agg~avated conduct, constituting
more than ordinary negligence, by a mine operator in relation to
a violation of the Act" (Emery Mining Corporation, 9 FMSHRC 1997
(December 1987}; Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007
(December 1987}} . Unwarrantable failure is characterized by such
conduct as "reckless disregard," "intentional misconduct,"
"indifference," or a "serious lack of reasonable caren (Emery,
9 FMSHRC at 2003-04} .
While the violation was not caused by intentional
misconduct, the company was gui l ty of a serious lack of
reasonable care .
First, patching the hole from inside the bin
potentially was a very dangerous job. Any miner assigned to do
the job was subject to being injured or killed unless loose rock
above the miner was removed. This potential threat required
heightened precautions on the part of Lafarge and those acting
for it.
Rather than exhibit heightened care , the company and
Dress relied on procedures normally used at the quarry to make
sure the bin was safe .
The evidence leads inescapably to the conclusion that no one
at Lafarge knew enough about emptying the bin to be certain that
the procedures were adequate . As has been noted, the procedures
involved the visual examination of the bin from below after the
vibrators had been run for approximately 25 minutes (Tr. 101 - 102,
117), and for a "judgment call" based on the examination (Tr . 98}.
Nelson candidl y admitted that Lafarge officials did not
"automatically" know how long it took to clear the bin, because
they had not done it that often (Tr . 105). Moreover, visual
inspecti on from below did not give a sufficiently full
perspective of what remained in the bin . Inspection from above
also was necessary (~ Tr . 74, 79 - 80) .
In view of these
factors , it was not enough for the company to have miners "look
at it and use [their] own judgemen~" to determine whe t her or not
loose rock remained (Tr . 98). The company should have required
mor e .
For example, before a miner entered the bin, the company
should have mandated inspection from both below and above and
should have required that a bar be used from above, no matter how
long the vibrators had run .

2209

To put the matter another way, given the company ' s relative
unfamiliarity with emptying the bin and given the danger inherent
in the work assignment, the company should have erred, if at all,
on the side of safety .
Its failure to make sure that the normal
prework procedure did not involve more than vibrating the bin for
a period it believed, but was not certain, was adequate, and did
not involve more than miners, who were unfamiliar with asses.sing
what they saw, visually inspecting the bin, represented a serious
lack of reasonable care.
I conclude therefore that the violation ·
was caused by the unwarrantable failure of Lafarge to comply with
the standard .
Having concluded the company exhibited a serious lack of
reasonable care in allowing the violation to exist, I also
conclude that the company commensurately was negligent .
CIVIL PENALTY ASSESSMENT
The violation was very serious. Lafarge was extemely lucky
Harder was noi disabled, or worse. The violation was caused by
the company's serious lack of care. These criteria, along with
the company's large size, would warrant a substantial penalty, if
they stood alone. However, the are balanced by the mitigating
effect of the company's prompt abatement of the violation and by
its small history of previous violations.
The violation was not part of a pattern of neglect of the
company's statutory responsibilities. Rather, as indicated by
the company's history of previous violations, it was more in the
nature of an isolated incident . Although, the Secretary has
proposed a civil penalty of $3,800, I conclude that a penalty of
$2,500 should be assessed.
KNOWING VIOLATION
Section llO(c) of the Act provides for the assessment of a
civil penalty when any agent of a corporation "knowingly [has]
authorized, ordered, or carried out" a violation of a mandatory
health or safety standard (30 U ..S.C . § 820 (c)).
Since there is
no dispute about the corporate status of Lafarge and Dress'
status as an agent, the critical question is whether, as the
Secretary alleges Dress knowingly violated section
56.16002 (a) (1).
The Commission has approved the description of "knowingly"
found in U.S. v. Sweet Briar, Inc.,92 F. Supp. 777 (W . D. S.C.
1950)). There, the court stated that the word:
does not have any meaning of bad faith or evil

2210

purpose or criminal intent.
Its meaning is rather that
used in contract law, where it means knowing or having
reason to know . A person has reason to know when he
has such information as would lead a person exercising
reasonable care to acquire knowledge of the
fact in question or to infer its existence
(92 F . Supp at 780).
The Commission has found that this interpretation:
is consistent with both the statutory language and
the remedial intent of the ... Act (Kenny Richardson, 3
FMSHRC 8, 16 (January 1981) , aff ' d, 689 F . 2d 623 (6th
Cir. 1982) . )
It has explained that :
If a person in a position to protect employee
safety and health fails to act on the basis of
information that gives him knowledge or reason to know
of the existence of a violative condition, he .has acted
knowingly and in a manner contrary to the remedial
nature of the statute (Kenny Richardson , 3 FMSHRC at
16) .

In addition, the Commission has held that to violate section
llO(c), the person's conduct must be "aggravated" , i.e ., it must
involve more than ordinary negligence. Wyoming Fuel Co., 16
FMSHRC 1618, 1630 (August 1994); Beth Energy Mines, Inc., 14
FMSHRC 1232, 1245 (August 1992) .
It is certain that Dress did not intentionally violate the
standard. Harder was sure that Dress never would assign him to do
a job that Dress believed was dangerous, and I agree (Tr . 24) .
The respect Dress and Harder had for one another was apparent at
the hearing. Both clearly were troubled by what had happened and
relieved and grateful the consequences had been slight.
This said, it also is clear that intent is not the issue .
Rather, and as explained by the Commission , the question is
whether Dress should have known o~ the violation and whether he
exhibited more than ordinary negligence in allowing the violation
to occur .
As a foreman, Dress had a high standard of care to the
company for whom he worked and to the miners who worked pursuant
to his directions. When Dress assigned Harder to work under
conditions that were potentially very hazardous , it became

2211

incumbent upon him to meet a standard of care proportionate with
the danger. Rather than do this, Dress relied on the usual
procedures of running the vibrators and of visual inspecting the
bin from below in order to assess and remove the danger , and, as
I have found , these procedures were wholely inadequate .
Because of the unfamiliarity of company personnel with
the bin , because of the unfamiliarity of miners with
working in the bin, because Harder never had worked in the bin
before, there were too many uncertainties involved (see Tr. 105).
In view of them, and of the fact that Harder easily _ could have
been trapped, severely injured, or killed if he misjudged the
situation, Dress should have know that loose material might
remain and should have insisted that the bin be viewed from above
and a bar be used . He did not.
e~ptying

I conclude, therefore, that Dress should have known of the
violation and that his failure represented more than ordinary
negligence. As a result, he knowingly violated the standard.
CIVIL PENALTY ASSESSMENT
This was a very serious violation, and Dress exhibited more
than ordinary negligence in failing to make sure that Harder was
not exposed to entrapment by sliding and falling rock. The
Secretary has proposed that Dress pay a civil penalty of $3,000.
However, I find it incongruous that the Secretary proposes Dress,
an individual, pay a civil penalty greater than three fourths the
amount of that proposed for Lafarge, a large operator.
Moreover, although Dress used bad judgement in placing
Harder in harm's way, there is no suggestion that Dress was
habitually careless in assigning miners to work in violation of
mandatory safety standards.
Indeed, the company's overall good
history of previous violations and the fact that Dress has no
applicable history of previous violations suggests exactly the
opposite (Tr. 130).
In view of the fact that the violation appears to have been
the result of a single, isolated lapse of judgment on Dress's
part, I conclude that a penalty of $500 is appropriate .

2212

ORDER
DOC KET NO. LAKE 95-114 -RM
CITATION NO.
4413570

DATE
10/5/94

30 C.F.R.
56 . 16002 (a) (1 )

§

~
The citation is AFFIRMED , and DOCKET NO. LAKE 95-114 - RM is
OISMISSED.

DOCKET NO . LAKE 95-239-M
CITATION NO.
4413570

~

10/5/94

PROPOSED
3 0 C . F.R.
PENALTY
§ 56.16002(a) (1) $3,800

ASSESSED
PENALTY
$2,500

Lafarge is ORDERED to pay a civil penalty of $2,500 within
30 days of the date of this decision.
DOCKET NO . LAKE 95-28-M
CITATION NO.
4413570

~

10/5/94

PROPOSED
30 C . F.R .
PENALTY
§ 56.16002(a) (1 ) $3,000

ASSESSED
PENALTY
$500

Dress is ORDERED to pay a civil penalty of $500 within
thirty days of the date of this decision.

Upon receipt of the payments, DOCKET NO. LAKE 95- 239-M and
DOCKET NO . LAKE 95- 28 -M are DISMISSED.

_])~itlf~~
David F . Barbour
Administrative Law Judge
Distribution:
Patrick L. DePace , Esq., Office of the Solicitor, U. S. Dept . Of
Labor, 881 Federal Office Bldg., li40 East Ninth Street,
Cleveland, OH 44199 (Certified Mail)
Willi am K. Doran, Esq., Smith , Heenan & Althen, 1110 Vermont
Ave . , N. W. , Suite 400, Washington, D.C. 20005-3593 (Certified
Mail)
\nt

2213

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

DEC 1 6 1996
BUCK CREEK COAL, INC.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

.. CONTEST PROCEEDINGS
Docket No . LAKE 94-420-R
.. Citation
No. 4262071; 5/28/94

. Docket No. LAKE 94-326-R

Citation No. 4261721; 5/31/94
Docket No. LAKE 94-549-R
Citation No. 4262130; 6/23/94

:
:

:

Docket No. LAKE 94-551-R
Citation No. 4261943; 6/24/94
Docket No. LAKE 94-559-R
Citation No. 4261883; 6/30/94
Docket No. LAKE 94-570-R
Citation No. 4261911; 7/2/94
Docket No . LAKE 94-581-R
Citation No. 3037100; 7/6/94
Docket No . LAKE 94-583~R
Citation No. 4050834; 7/7/94

:
:

Docket No. LAKE 94-585-R
Citation No. 3847801; 7/7/94

:

Docket No. LAKE 94-590-R
Citation No. 4261968; 7/12/94
Docket No. LAKE 94-591-R
Citation No. 4261969; 7/13/94

:

Docket No . LAKE 94-592-R
Citation No. 4261971; 7/13/94
Docket No. LAKE 94-593-R
Citation No. 4261972; 7/13/94

2214

Docket No. LAKE 94-594-R
Citation No. 4261976; 7/15/94
Docket No. LAKE 94-5.9 5-R
Citation No. 4261978; 7/15/94
:

Docket No. LAKE 94-596-R
Citation No. 4261977; 7/15/94

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

Docket No. LAKE 94-597-R
Citation No. 4261980; 7/15/94
CIVIL PENALTY PROCEEDING
Docket No. LAKE 94-677
A.C. No. 12-02033-03640

v.

Buck Creek Mine

BUCK CREEK COAL, INC.,
Respondent
CONTEST PROCEEDINGS

BUCK CREEK COAL, INC.,
Contestant

v.

Docket No. LAKE 94-607-R
Citation No. 4i61521; 7/18/94

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

Docket No. LAKE 94-608-R
Citation No. 4261522; 7/18/94

Docket No. LAKE 94-609-R
Citation No. 4261523; 7/19/94
Docket No. LAKE 94-611-R
Citation No. 3843963; 7/20/94
:

Docket No. LAKE 94-612-R
Citation No. 4261526; 7/21/~4
Docket No. LAKE 94-619-R
Citation No. 4259797; 7/26/94
Docket No. LAKE 94-620-R
Citation No. 4259798; 7/26/94

:

Docket No. LAKE 94-623-R
Citation No. 4261579; 7/26/94

2215

.. Docket No. LAKE 94-624-R

Citation No. 4261580; 7/26/94
Docket No. LAKE 94-628-R
No. 4260021; 7/28/94

C~tation

:

Docket No. LAKE 94-629-R
Citation No. 4261960; 7/28/94
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 94-707
A.C. No. 12-02033-03641

v.

BUCK CREEK COAL, INC.,
Respondent

Buck Creek Mine

DEFAUV: PECISION

Before:

Judge Hodgdon

These cases are before me on Notices of Contest filed by
Buck Creek Coal, Inc., Petitions for Assessment of Civil Penalty
filed by the Secretary of Labor, acting through his Mine Safety
and Health Administration (MSHA), against Buck Creek pursuant to
section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815. The petitions allege 28 violations of the
Secretary's mandatory health and safety standards and seek
penalties of $6,162.00. For the reasons set forth below, I find
the company in default, affirm the orders and citations, and
assess penalties of $6,162.00.
These cases are several in a long line of proceedings
involving Buck Creek. 1 At various times during the past two
years proceedings in these cases have been stayed pending the
outcome of criminal actions brought by the U.S. Attorney against
the company. The criminal cases were completed in the spring of
this year when the company pleaded guilty to all 12 counts of the
indictment against it.

1

Because of the number of cases involving Buck Creek,
Docket No. LAKE 94-72 was designated as the master docket for
filings in any of the cases. However, this decision identifies,
in the caption, the .specific docket numbers of the cases
involved.

2216

On May 1, 1996, counsel for the Secretary served
Interrogatories and a Request for Production of Documents on the
Respondent. On June 24, counsel filed a Motion to Compel stating
that Buck Creek had received the discovery requests on May 3, but
had not responded to them. Consequently, the Secretary requested
that the company be compelled to respond to the requests and that
if the company did not respond to the requests a default decision
be issued in the proceedings. Buck Creek did not respond to the
Motion to Compel.
Based on the Secretary's unopposed motion, an Order
Compelling Response to Discovery Requests was issued on July 29,
1996. Buck Creek was ordered to respond to the Secretary's
discovery requests within 21 days of the date of the order. The
company was further cautioned that "[f)ailure to respond will
result in the issuance of an Order of Default, without the
i••uance of a prior Order to Show Cause."

The order was sent by Certified Mail-Return Receipt
Requested to Chuck Shultise, President of Buck Creek; Randall
Hammond, Mine Superintendent; and Terry G. Farmer, Esq., the
company's bankruptcy counsel. Return Receipt Cards have been
received from all three indicating that the order was received on
either July 31 or August 1.
On September 17, 1996, the Secretary filed a Motion for an
Order of Default stating that as of that date the company had not
responded to the discovery requests. Therefore, the Secretary
requested that an order of default be issued. Buck Creek has not
responded to the motion;
I am aware that Buck Creek is apparently in bankruptcy.
However, filing a petition in bankruptcy does not automatically
stay proceedings before the Commission or foreclose an entry of
judgment against the company. 11 u.s.c. § 362(b) (4); Holst
Excavating, Inc., 17 FMSHRC 101, 102 (February 1995); Secretary
of Labor on behalf of Price v. Jim Walter Resources, Inc., 12
FMSHRC 1521, 1530 {August 1990).
Commission Rule 59, 29 C.F.R. § 2700.59, states that ~[i]f
any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are just and appropriate • • • . " Commission
Rule 66(a), 29 C.F.R. § 2700.66(a), requires that ~[w]hen a party
fails to comply with an order of a Judge • • • an order to show
cause shall be directed to the party before the entry of any
order of default or dismissal."

2217

In view of the Respondent's consistent failure to respond to
the Secretary's discovery requests or motions regarding the
requests, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futile act.
Consequently, I warned the Respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause. The
Respondent ' s subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary's
motion for default demonstrate that that conclusion was correct.
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested , the requirements of Rule
66(a) were complied with.
QRDER

Based on the above, I find the Respondent, Buck Creek Coal,
Inc., IN DEFAOLT in these cases. Accordingly, Citation Nos.
4262071, 4261721, 4262130 , 4261943, 4261883, 4261911, 3037100,
4050834, 3847801, 4261968 , 4261969, 4261971, 4261972, 4261976,
4261978 , 4261977 and 4261980 in Docket Nos . LAKE 94-420-R, LAKE
94-326-R, 94-549-R, LAKE 94 - 551 - R, LAKE 94 - 559- R, LAKE 94-570-R,
LAKE 94-581-R, LAKE 94 - 583-R, LAKE 94 - 585- R, LAKE 94-590-R, LAKE
94 - 591-R, LAKE 94-592-R, LAKE 94 - 593- R, LAKE 94-594 - R, LAKE 94 595-R , LAKE 94-596-R, LAKE 94-597-R and LAKE 94-677; and Citation
Nos. 4261521, 4261522, 4261523, 3843963, 4261526, 4259797 ,
4259798 , 4261579, 4261580, 4260021 and 4261960 in Docket Nos.
LAKE 94-607-R, LAKE 94 - 608- R, LAKE 94 - 609-R, LAKE 94 - 611- R, LAKE
94 - 612- R, LAKE 94-619-R, LAKE 94-620-R, LAKE 94 - 623-R, LAKE 94624-R, LAKE 94-628-R , LAKE 94 - 629- R and LAKE 94-707 are AFFIRMED .
Buck Creek Coal Inc. , or its successor, 2 is ORDERED TO PAY civil
penalties of $6,162 . 00 within 30 days of the date of this
decision. On receipt of payment, these proceedings are
DISlilSSED.

Administrative Law Judge

2

According to a July 19, 1996, news release, issued by the
United States Attorney for the Southern District of Indiana, the
company is now known as Indiana Coal Company.

2218

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

DEC 1 7 1996
BUCK CREEK COAL, INC.,

CONTEST PROCEEDINGS

Contestant

v.

Docket No . LAKE 94- 2 92-R
Citation No. 4259813; 5/23/94

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

Docket No. LAKE 94-293-R
Citation No. 4259814; 5/23/94
Docket No. LAKE 94-356-R
Citation No. 4262068; 5/18/94
Docket No. LAKE 94-371-R
Citation No. 4262275; 5/18/94
Docket No. LAKE 94-378-R
Citation No. 4262303; 5/20/94
Docket No. LAKE 94-379-R
Citation No. 4262304; 5/20/94
Docket No. LAKE 94-380-R
Citation No. 4262305; 5/20/94
Docket No. LAKE 94-503-R
Citation No. 4262080; 6/17/94
Docket No. LAKE 94-162-R
Citation No. 4261879; 4/1/94
Docket No. LAKE 94-499-R
No. 4261736; 6/17/94

C~tation

Docket No. LAKE 94-525-R
Citation No. 3859803; 6/21/94
Docket No. LAKE 94-610-R
Citation No. 4261524; 7/20/94

2219

Docket No. LAKE 94-618-R
Citation No. 4259796; 7/26/94
Docket No. LAKE 94-621-R
Citation No. 4259799; 7/26/94
Docket No. LAKE 94-626-R
Citation No. 4260062; 7/27/94
Docket No. LAKE 94-638-R
Citation No. 3843968; 8/1/94
Docket No. LAKE 94-645-R
Citation No. 4261925; 8/4/94
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.
I

CIVIL PENALTY PROCEEDING
Docket No. LAKE 94-708
A.C. No. 12-02033-03642
Buck Creek Mine

BUCK CREEK COAL, · INC. ,
Ref'.pondent
BUCK CREEK COAL, INC.,
Contestant

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

CONTEST PROCEEDINGS
Docket No. LAKE 94-264-R
Citation No. 4056446; 5/24/94
Docket No. LAKE 94-278-R
Citation No. 4258954; 6/8/94
Docket No. LAKE 94-284-R
Citation No. 4259171; 5/24/94
Docket No. LAKE 94-287-R
Citation No. 4259174; 5/25/94
Docket No. LAKE 94-313-R
Citation No. 4261546; 6/7/94
Docket No. LAKE 94-319-R
Citation No. 4261552; 6/8/94
Docket No. LAKE 94-329-R
Citation No. 4261727; 6/5/94

2220

Docket No. LAKE 94-330-R
Citation No. 4261728; 6/5/94
Docket No. LAKE 94-331-R
Citation No. 4261730; 6/6/94
Docket No. LAKE 94-335-R
Citation No. 4261746; 6/4/94
Docket No. LAKE 94-336-R
Citation No. 4261747; 6/4/94
Docket No. LAKE 94-384-R
Citation No. 4262309; 5/24/94
Docket No. LAKE 94-386-R
Citation No. 4262311; 5/25/94
Docket No. LAKE 94-387-R
Citation No. 4262312; 5/25/94
Docket No. LAKE 94-390-R
Citation No. 4262316; 5/28/94
Docket No. LAKE 94-391-R
Citation No. 4262317; 5/31/94
Docket No. LAKE 94-416-R
Citation No. 4262055; 6/1/94
Docket No. LAKE 94-423-R
Citation No. 4262075; 6/5/94

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 94-709
A.C. No. 12-02033-03643
Buck Creek Mine

BUCK CREEK COAL, INC.,
Respondent
DEFAQ'LT DECISION
Before:

Judge Hodgdon

These cases are before me on Notices of Contest filed by
Buck Creek Coal, Inc., Petitions for Assessment of Civil Penalty

2221

filed by the Secretary of Labor, acting through his Mine Safety
and Health Administration (MSHA), against Buck Creek pursuant to
section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815. The petitions allege 37 violations of the
Secretary's mandatory health and safety standards and seek
penalties of $179,310.00. For the reasons set forth below, I
find the company in default, affirm the orders and citations, and
assess penalties of $179,310.00.
These cases are several in a long line of proceedings
involving Buck Creek . 1 At various times during the past two
years proceedings in these cases have been stayed pending the
outcome of criminal actions brought by the U.S. Attorney against
the company. The criminal cases were completed in the spring of
this year when the company pleaded guilty to all 12 counts of the
indictment against it.
On May 1, 1996, counsel for the Secretary served
Interrogatories and a Request for Production of Documents on the
Respondent. On June 24, counsel filed a Motion to Compel stating
that Buck Cree~ had received the discovery requests on May 3, but
had not responded to them. Consequently, the . Secretary requested
that the company be compelled to respond to the requests and that
if the company did not respond to the requests a default decision
be issued in the proceedings. Buck Creek did not respond to the
Motion to Compel.
Based on the Secretary's unopposed motion, an Order
Compelling Response to Discovery Requests was issued on July 29,
1996 . Buck Creek was ordered to respond to the Secretary's
discovery requests within 21 days of the date of the order. The
company was further cautioned that "[f]ailure to respond will
result in the issuance of an Order of Default, without the
iaauanoe of a prior Order to Show Cause."

The order was sent by Certified Mail-Return Receipt
Requested to Chuck Shultise, President of Buck Creek; Randall
Hammond, Mine Superintendent; and Terry G. Farmer, Esq., the
company's bankruptcy counsel. Return Receipt Cards have been
received from all three indicating that the order was received on
either July 31 or August 1.

Because of the number of cases involving Buck Creek,
Docket No. LAKE 94-72 was designated as the master docket for
filings in any of the cases. However, this decision identifies,
in the caption, the specific docket numbers of the cases
involved.
1

2222

On September 17, 1996, the Secretary filed a Motion for an
Order of Default stating that as of that date the company had not
responded to the discovery requests. Therefore, the Secretary
requested that an order of default be issued. Buck Creek has not
responded to the motion.
I am aware that Buck Creek is apparently in bankruptcy.
However, filing a petition in bankruptcy does not automatically
stay proceedings before the Commission or foreclose an entry of
judgment against the company. 11 U.S.C. § 362(b) (4); Holst
Excavating, Inc., 17 FMSHRC 101, 102 (February 1995); Secretary
of Labor on behalf of Price v. Jim Walter Resources, Inc., 12
FMSHRC 1521, 1530 (August 1990).
Commission Rule 59, 29 C.F.R. § 2700.59, states that "[i]f
any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are just and appropriate • . . . " Commission
Rule 66(a), 29 C.F.R. § 2700.66(a), requires that "[w]hen· a party
fails to comply with an order of a Judge . • .. an order to show
cause shall be directed to the party before the entry of any
order of default or dismissal."
In view of the Respondent's consistent failure to respond to
the Secretary's discovery requests or motions regarding the
requests, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futile act.
Consequently, I warned the Respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause. The
Respondent's subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary's
motion for default demonstrate that that conclusion was correct.
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements of Rule
66(a) were complied with.

Based on the above, I find the Respondent, Buck Creek Coal,
Inc., IN DEFAULT in t~ese cases. Accordingly, Order Nos.
4259813, 4259814, 4262068, 4262275, 4262303, 4262304, 4262305 and
4262080 and Citation Nos. 4261879, 4262334, 4261736, 3859803,
4261524, 4259796, 4259799, 4260062, 3843968 and 4261925 in Docket
Nos. LAKE 94-292-R, LAKE 94-293-R, LAKE 94-356-R, LAKE 94~371-R,
LAKE 94-378-R, LAKE 94-379-R, LAKE 94-380-R, LAKE 94-503-R, LAKE

2223

94-162-R, LAKE 94-499-R, LAKE 94-525-R, LAKE 94-610-R, LAKE 94618-R, LAKE 94-621-R, LAKE 94-626-R, LAKE 94-638-R, LAKE 94-645-R
and LAKE 94-708; and Order Nos. 4056446, 4258954, 4~59171,
4259174, 4261546, 4261552, 4261727, 4261728, 4261730, 4261746,
4261747, 4262309, 4262311, 4262312, 4262316, 4262317, 4262055,
4262075 and 4262315 in Docket Nos. ·LAKE 94-264-R, LAKE 94-278-R,
LAKE 94-284-R, LAKE 94-287-R, LAKE 94-313-R, LAKE 94-319-R, LAKE
94-329-R, LAKE 94-330-R, LAKE 94-331-R, LAKE 94-335-R, LAKE 94336-R, LAKE 94-384-R, LAKE 94-386-R, LAKE 94-387-R, LAKE 94-390R, LAKE 94-391-R, LAKE 94-416-R, LAKE 94-423-R and LAKE 94-709
are AFFiltMED. Buck Creek Coal Inc., or its successor, 2 is
ORDERED TO PAY civil penalties of $179,310.00 within 30 days of
the date of this decision. On receipt of payment, these
proceedings are DISMISSED.

~~~·\
Tod~fTon
T.

Administrative Law Judge

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail)
Mr. Chuck Shultise, President, Buck Creek Coal Co., Inc., RRS,
Box 203, Sullivan, IN 47882 (Certified Mail)
Mr. Randall Hammond, Superintendent, Buck Creek Coal Co . , Inc . ,
2156 s . County Rd., 50 West St . , Sullivan, IN 47882 (Certified
Mail)
Terry G. Farmer, Esq., Bamberger, Foreman, Oswald, & Hahn,
708 Hulman Bldg . , P.O. Box 657, Evansville, IN 47704 {Certified
Mail)
/lt

According to a July 19, 1996, news release, issued by the
United States Attorney for the Southern District of Indiana, the
company is now known as Indiana Coal Company.
2

2224

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
6203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
1

DEC 1 8 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 94-33
A. C. No. 46-08066-03503

v.

Seng Camp 1-A
EMPIRE ENERGY, INC.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 94-34
A. C. No. 46-08066-03503

v.

Seng Camp 1-A
WAR EAGLE CONSTRUCTION
CORPORATION,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 94-35
A. C. No. 46-08066-03503
Seng Camp 1-A

KENNIE COMPTON,
Respopdent
DBFAQLT DECXSXON

Before:

Judge Maurer

These cases are before me qn Petitions for Assessment of
Civil Penalty filed by the Secretary of Labor; acting through his
Mine Safety and Health Administration (MSHA), against Empire
Energy, Inc., War Eagie Construction, and Kennie Compton, personally pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815. The petitions allege
11 violations of the Secretary's mandatory health and safety
standards and seek penalties of $135,000 from each respondent.
For the reasons set forth below, I find the respondents in
default, affirm the orders and citations, and assess penalties of
$135,000 against each of the respondents.

2225

On June 7, 1994, counsel for the Secretary served
Interrogatories and a Request for Production of Documents on the
respondents. On August 13, 1996, counsel filed a Motion to
Compel stating that although respondents had received the discovery requests, no response to them had been made.
Consequently, the Secretary requested that the respondents be
compelled to respond to the requests and that if the respondents
did not respond to the requests a default decision be issued in
the proceedings. Respondents did not respond to the Motion to
Compel.
Based on the Secretary's unopposed motion, an Order
Compelling Response to Discovery Requests was issued on
September 17, 1996. Respondents were ordered to respond to the
Secretary's discovery requests within 15 days of the date of the
order. The respondents were further cautioned that "(f]ailure to
respond will result in the issuance of an Order of Default,
without the issuance of a prior Order to Show Cause.
The order was sent by Certified Mail-Return Receipt
Requested to respondents. The Return Receipt Card has been
received from Kennie Compton indicating that the order was
received on September 21, 1996. The envelopes addressed to
Empire Energy, Inc. and War Eagle Construction were returned
marked unclaimed.
On November 22, 1996, the Secretary filed a Motion for an
Order of Default stating that as of that date the respondents had
not responded to the discovery requests. Therefore, the
Secretary requested that an order of default be issued.
Respondents have n9t responded to the motion.
Commission Rule 59, 29 C.F.R. § 2700.59, states that "[i]f
any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are just and appropriate . . . . " Commission
Rule 66(a), 29 C.F.R. § 2700 . 66(a), requires that "[w]hen a party
fails to comply with an order of a Judge . . . an order to show
cause shall be directed to the party before the entry of any
order of default or dismissal . "
In view of the respondents' consistent failure to respond to
the Secretary's discovery requests or motions regarding the
requests, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futile act.
Consequently, I warned the respondents in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause. The
respondents' subsequent failure to respond to the order compelling responses to the discovery requests or the Secretary's

2226

motion for default demonstrate that that conclusion was correct.
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements of
Rule 66(a) were complied with.
ORDER

Based on the above, I find the respondents, Empire Energy ,
Inc., War Eagle Construction, and Kennie Compton in default in
these cases. Accordingly, all citations/orders contained in the
captioned dockets are AFFIRMED. Empire Energy, Inc . , War Eagle
Construction, and Kennie Compton are each ORDERED TO PAY civil
penalties of $135,000 within 30 days of the date of this
decision. Upon receipt of payment, these proceedings are
DISMISSED.

. iHaurer
ittrative Law Judge
Distribution:
Pamela S. Silverman, Esq., Office of the Solicitor,
U. S. Department of Labor, 4015 Wilson Boulevard, Suite 516,
Arlington, VA 22203 (Certified Mail )

Empire Energy, Inc., P.
Mail )

o. Box 329, Mallory, WV 25634 (Certified

War Eagle Construction Corporation, P. O. Box 691, Gilbert, WV
25621 (Certified Mail )
Mr. Kennie Compton, 107 Tirnberide Drive, Beckley, WV 25801
(Certified Mail)
dcp

2227

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

DEC 1 9 \996
BUCK CREEK COAL, INC.,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. LAKE 94-475-R
Citation No. 4056791; 6/14/94

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

Docket No. LAKE 94-490-R
Citation No. 4261735; 6/15/94
Docket No. LAKE 94-495-R
Citation No. 4261565; 6/16/94
Docket No. LAKE 94-637-R
Citation No. 3843967; 8/1/94
Docket No. LAKE 94-641-R
Citation No. 3843971; 8/2/94
Docket No. LAKE 94-644-R
Citation No. 3843974; 8/3/94
Docket No. LAKE 94-646-R
Citation No. 4261926; 8/4/94
Docket No. LAKE 94-664-R
Citation No. 4261928; 8/9/94
Docket No. LAKE 94-665-R
Citation No. 4261929j 8/9/94

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

. . CIVIL PENALTY PROCEEDING

Docket No. LAKE 94-710
A.C. No. 12-02033-03644
Buck Creek Mine

BUCK CREEK COAL, INC.,
Respondent

2228

BUCK CREEK COAL, INC.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

CONTEST PROCEEDINGS
Docket No. LAKE 94-321-R
Citation No. 4261554; 6/9/94
Docket No. LAKE 94-449-R
Citation No. 4261757; 6/10/94
Docket No. LAKE 94-429-R
Citation No. 4386047; 5/17/94

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 94-714
A.C. No. 12-02033-03645

v.
Buck Creek Mine
BUCK CREEK COAL, INC.,
Respondent
BUCK CREEK COAL, INC.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

CONTEST PROCEEDINGS
Docket No. LAKE 94-642-R
Citation No. 3843972; 8/2/94
Docket No. LAKE 94-660-R
Citation No. 3843975; 8/8/94
Docket No. LAKE 94-661-R
Citation No. 3843976; 8/8/94
Docket No. LAKE 94-662-R
Citation No. 4260022; 8/9/94
Docket No. LAKE 94-663-R
Citation No. 4260023; 8/9/94
Docket No. LAKE 94-666-R
Citation No. 3843979; 8/11/94
Docket No. LAKE 94-667-R
Citation No. 3843980; 8/11/94

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 94-745
A.C. No. 12-02033-03646

· V.

Buck Creek Mine

2229

BUCK CREEK COAL, INC.,
Respondent

BUCK CREEK COAL, INC.,
Contestant
v.

CONTEST PROCEEDING
Docket No. LAKE 94-492-R
Citation No. 4262078; 6/15/94

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 94-746
A.C. No. 12-02033-03647

v.

Buck Creek Mine
BUCK CREEK COAL, INC.,
Respondent
DEFAULT DECISION
Before:

Judge Hodgdon

These cases are before me on Notices of Contest filed by
Buck Creek Coal, Inc., Petitions for Assessment of Civil Penalty
filed by the Secretary of Labor, acting through his Mine Safety
and Health Ad.ministration (MSHA), against Buck Creek pursuant to
section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § . 815. The petitions allege 20 violations of the
Secretary's mandatory health and safety standards and seek
penalties of $38,723.00. For the reasons set forth below, I find
the company in default, affirm the orders and citations, and
assess penalties of $38,723.00.
These cases are several in a long line of proceedings
involving Buck Creek. 1 At various times during the past two
years proceedings in these cases have been stayed pending _the
outcome of criminal actions brought· by the U.S. Attorney against
the company. The criminal cases were completed in the spring of
this year when the company pleaded guilty to all 12 counts of the
indictment against it!

Because of the number of cases involving Buck Creek,
Docket No. LAKE 94-72 was designated as the master docket for
filings in any of the cases. However, this decision identifies,
in the caption, the specific docket numbers of the cases
involved.
1

2230

On May 1, 1996, counsel for the Secretary served
Interrogatories and a Request for ~reduction of Documents on the
Respondent. On June 24, counsel filed a Motion to Compel stating
that Buck Creek had received the discovery requests on May 3, but
had not responded to them. Consequently, the Secretary requested
that the company be compelled to respond to the requests and that
if the company did not respond to the ~equests a default decision
be issued in the proceedings. Buck Creek did not respond to the
Motion to Compel.
Based on the Secretary's unopposed motion, an Order
Compelling Response to Discovery Requests was issued on July 29,
1996 . Buck Creek was ordered to respond to the Secretary's
discovery requests within 21 days of the date of the order. The
company was further cautioned that "[f]ailure to respond will
result in the issuance of an Order of Default, without the
issuance cf a prior Order to Show Cause."

The order was sent by Certified Mail-Return Receipt
Requested to Chuck Shultise, President of Buck Creek; Randall
Hammond, Mine Superintendent; and Terry G. Farmer, Esq., the
company's bankruptcy counsel. Return Receipt Cards have been
received from all three indicating that the order was received on
either July 31 or August 1.
On September 17, 1996, the Secretary filed a Motion for an
Order of Default stating that as of that date the company had not
responded to the discovery requests. Therefore, the Secretary
requested that an order of default be issued. Buck Creek has not
responded to the motion.
I am aware that Buck Creek is apparently in bankruptcy.
However, filing a petition in bankruptcy does not automatically
stay proceedings before the Commission or foreclose an entry of
judgment against the company. 11 U.S.C. § 362(b) (4); Holst
Excavating, Inc., 17 FMSHRC 101, 102 (February 1995); Secretary
of Labor on behalf of Price v. Jim Walter Resources, Inc., 12
FMSHRC 1521, 1530 {August 1990).
Commission Rule 59, 29 C.F.R. § 2700.59, states that "[i]f
any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are 'just and appropriate . . . • " Conunission
Rule 66(a), 29 C.F.R. § 2700.66(a), requires that "[w)hen a party
fails to comply with an order of a Judge . . • an order to show
cause shall be directed to the party before the entry of any
order of default or dismissal."

2231

In view of the Respondent's consistent failure to respond to
the Secretary's discovery requests or motions regarding the
requests, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futile act.
Consequently, I warned the Respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause. The
Respondent's subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary's
motion for default demonstrate that ·that conclusion was correct.
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements of Rule
66(a) were complied with.
ORDER

Based on the above, I find the Respondent, Buck Creek Coal,
Inc., IN DEFAULT in these cases. Accordingly, Order Nos.
4056791, 4261735, 4261565, and Citation Nos. 3843967, 3843971,
3843974, 4261926, 4261928, and 4261929 in Docket Nos. LAKE 944 7 5-R, LAKE 9.4 -4 90-R, LAKE 94-4 95-R, LAKE 94-637-R, LAKE 94-641R, LAKE 94-644-R, LAKE 94-646-R, LAKE 94-664-R, LAKE 94-665-R,
and LAKE 94-710; and Order Nos. 4261554 and 4261757 and Citation
No. 4386047· in Docket Nos. LAKE 94-321-R, LAKE 94-449-R, LAKE 94429-R, and LAKE 94-714; Citation Nos. 3843972, 3843975, 3843976,
4260022, 4260023, 3843979 and 3843980 in Docket Nos. LAKE 94-642R, LAKE 94-660-R, LAKE 94-661-R, LAKE 94-662~R, LAKE 94-663-R,
LAKE 94-666-R, LAKE 94-667 and LAKE 94-745; and Order No. 4262078
in Docket Nos. LAKE 94-492-R and LAKE 94-746 are AFFilUOU>. Buck
Creek Coal Inc., or its successor, 2 is OIU>ERED TO PAY civil
penalties of $38,723.00 within 30 days of the date of this
decision. On receipt of payment, these proceedings are
DISMISSED.

\/.~~

T. Todd Ht;~
Aaministrative Law Judge

2

According to a July 19, - 1996, news release, issued by the
United States Attorney for the Southern District of Indiana, the
company is now known as Indiana Coal Company.

2232

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail)
Mr. Chuck Shultise, President, Buck Creek Coal Co., Inc., RRS,
Box 203, Sullivan, IN 47882 (Certified Mail)
Mr. Randall Hammond, Superintendent, Buck Creek Coal Co., Inc.,
2156 S . County Rd., 50 West St., Sullivan, IN 4788 2 (Certified
Mail)
Terry G. Farmer, Esq., Bamberger, Foreman, Oswald, & Hahn,
708 Hulman Bldg., P.O. Box 657, Evansville, IN 47704 (Certified
Mail)
/lt

2233

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

DEC 2 3 1996
BUCK CREEK COAL, INC . ,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

CONTEST PROCEEDINGS
Docket No . LAKE 94-554-R
Citation No. 4261760; 6/27/94
Docket No. LAKE 94-530-R
Citation No. 3859805; 6/22/94
Docket No. LAKE 94-575-R
Citation No. 3037098; 7/5/94
Docket No. LAKE 94-584-R
Citation No . 4050835; 7/7/~4
Docket No . LAKE 94-681-R
Citation No. 4260423; 8/17/94
Docket No. LAKE 94-682-R
Citation No. 4260424; 8/18/94
Docket No. LAKE 94-683-R
Citation No. 4260425; 8/22/94
Docket No. LAKE 94-684-R
Citation No. 4260426; 8/22/94
Docket No. LAKE 94-685-R
Citation No. 4260427; 8/25/94
Docket No. LAKE 94-687-R
Citation No. 3844462; 8/18/94
Docket No . LAKE 94-688-R
Citation No. 4258569; 8/23/94
Docket No. LAKE 94-689-R
Citation No. 4258570; 8/24/94

22-34

Docket No. LAKE 94-690-R
Citation No. 4261934; 8/23/94
Docket No. LAKE 94-691-R
Citation No. 4261935; 8/24/94

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 95-24
A.C. No. 12-02033-03648

Buck Creek Mine
BUCK CREEK COAL, INC.,
Respondent
BUCK CREEK COAL, INC.,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. LAKE 94-412-R
Citation No. 4262374; 5/28/94

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

Docket No. LAKE 94-413-R
Citation No. 4262375; 5/28/94
Docket No. LAKE 94-560-R
Citation No. 4259847; 6/30/94
Docket No. LAKE 94-561-R
Citation No. 4259848; 6/30/94
Docket No. LAKE 94-373-R
Citation No. 4262277; 5/29/94
Docket No. LAKE 94-374-R
Citation No. 4262278; 5/29/94
Docket No. LAKE 94-375-R
Citation No. 4262279; 5/29/94
Docket No. LAKE 94-727-R
Citation No. 4260432; 9/12/94
Docket No. LAKE 94-728-R
Citation No. 4268171; 9/13/94
Docket No. LAKE 94-729-R
Citation No. 4268172; 9/13/94
Docket No. LAKE 94-730-R
Citation No. 4268173; 9/13/94

2235

Docket No. LAKE 94-731-R
Citation No. 4268174; 9/13 / 94
Docket No. LAKE 94-732-R
Citation No. 4268175; 9/13/94
Docket No. LAKE 94-733-R
Citation No. 4268176; 9/14/94
Docket No. LAKE 94-734-R
Citation No. 4268177; 9/14/94
Docket No. LAKE 94-735-R
Citation No. 4268178; 9/14/94
Docket No. LAKE 94-736-R
Citation No. 4268179; 9/14/94
Docket No. LAKE 94-738-R
Citation No. 4057021; 9/14/94
Docket No. LAKE 94-739-R
Citation No. 4057022; 9/14/94

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 95-49
A.C. No. 12-02033-03651

v.

Buck Creek Mine
BUCK CREEK COAL, INC.,
Respondent
BUCK CREEK COAL, INC.,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. LAKE 94-737-R
Citation No. 4268180; 9/14/94

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

Docket No. LAKE 94-740-R
Citation No. 4057023; 9/15/94
Docket No. LAKE 94-741-R
Citation No. 4057024; 9/15/94
Docket No. LAKE 94-742-R
Citation No. 4057025; 9/15/94
Docket No. LAKE 94-743-R
Citation No. 4057026; 9/15/94

2236

Docket No. LAKE 94-744-R
Citation No. 4057027; 9/15/94
Docket No. LAKE 95-1-R
Citation No. 4260037; 9/16/94
Docket No. LAKE 95-2-R
Citation No. 4262135; 9/19/94
Docket No. LAKE 95-3-R
Citation No. 4262136; 9/19/94
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 95-50
A.C. No. 12-02033-03652
Buck Creek Mine

BUCK CREEK COAL, INC.,
Respondent
BUCK CREEK COAL, INC.,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. LAKE 94-516-R
Citation No. 3862717; 6/19/94

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

Docket No. LAKE 94-520-R
Citation No. 3862718; 6/20/94
Docket No. LAKE 94-686-R
Citation No. 4260428; 8/25/94

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 95-51
A.C. No. 12-02033-03649
Buck Creek Mine

BUCK CREEK COAL, INC.,
Respondent
DEFAQLT DE~ISIQN

Before:

Judge Hodgdon

These cases are before me on Notices of Contest filed by
Buck Creek Coal, Inc., Petitions for Assessment of Civil Penalty
filed by the Secretary of Labor, acting through his Mine Safety
and Health Administration (MSHA), against Buck Creek pursuant to

2237

section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815. The petitions allege 45 violations of the
Secretary's mandatory health and safety standards and seek
penalties of $94,426.00. For the reasons set forth below, I find
the company in default, affirm the orders and citations, and
assess penalties of $94,226.00.
These cases are several in a long line of proceedings
involving Buck Creek. 1 At various times during the past two
years proceedings in these cases have been stayed pending the
outcome of criminal actions brought by the U.S. Attorney against
the company. The criminal cases were completed in the spring of
this year when the company pleaded guilty to all 12 counts of the
indictment against it.
On May 1, 1996, counsel for the Secretary served
Interrogatories and a Request for Production of Documents on the
Respondent. On June 24, counsel filed a Motion to Compel stating
that Buck Creek had received the discovery requests on May 3, but
had not responded to them. Consequently, the Secretary requested
that the company be compelled to respond to the requests and that
if the company did not respond to the requests a default decision
be issued in the proceedings. Buck Creek did not respond to the
Motion to Compel.
Based on the Secretary's unopposed motion, an Order
Compelling Response to Discovery Requests was issued on July 29,
1996. Buck Creek was ordered to respond to the Secretary's
discovery requests within 21 days of the date of the order. The
company was further cautioned that ~[f]ailure to respond will
result in the issuance of an Order of Default, without the
issuance of a prior Order to Show Cauae."

The order was sent by Certified Mail-Return Receipt
Requested to Chuck Shultise, President of Buck Creek; Randall
Hammond, Mine Superintendent; and Terry G. Farmer, Esq., the
company's bankruptcy counsel. Return Receipt Cards have been
received from all three indicating that the order was received on
either July 31 or August 1.

Because of the number of cases involving Buck Creek,
Docket No. LAKE 94-72 was designated as the master docket for
filings in any of the cases. However, this decision identifies,
in the caption, the specific docket numbers of the cases ·
involved.
1

2238

On September 17, 1996, the Secretary filed a Motion for an
Order of Default stating that as of that date the company had not
responded to the discovery requests. Therefore, the Secretary
requested that an order of default be issued. Buck Creek has not
responded to the motion.
I am aware that Buck Creek is apparently in bankruptcy.
However, filing a petition in bankruptcy does not automatically
stay proceedings before the Commission or foreclose an entry of
judgment against the company. 11 U.S.C. § 362(b) (4); Holst
Excavatin'g, Inc . , 17 FMSHRC 101, 102 (February 1995); Secretary
of Labor on behalf of Price v. Jim Walter Resources, Inc., 12
FMSHRC 1521, 1530 (August 1990).
Commission Rule 59, 29 C. F.R. § 2700 . 59, states that "[i]f
any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are just and appropriate . . . . " Commission
Rule 66(a), 29 C.F.R. § 2700.66(a), requires that "(w]hen a party
fails to comply with an order of a Judge • . • an order to show
cause shall be dixected to the party before the entry of any
order of default or dismissal."
In view of the Respondent's consistent failure to respond to
the Secretary's discovery requests or motions regarding the
requests, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futile act.
Consequently, I warned the Respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause. The
Respondent's subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary's
motion for default demonstrate that that conclusion was correct.
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements of Rule
66(a) were complied with.
QRDER

Based on the above, I find the Respondent, Buck Creek Coal,
Inc., IN DEFAULT in these cases. Accordingly, Order No. 4261760,
and Citation Nos. 3859805, 3037098, 4050835, 4260423, 4260424,
4260425, 4260426, 4260427, 3844462, 4258569, 4258570, 4261934 and
4261935 in Docket Nos. LAKE 94-554-R, LAKE 94-530-R, LAKE 94-575R, LAKE 94-584-R, LAKE 94-681-R, LAKE 94-682-R, LAKE 94-683-R,
LAKE 94-684-R, LAKE 94-685-R, LAKE 94-687-R, LAKE 94-688-R, LAKE
94-689-R, LAKE 94-690-R, LAKE 94-691-R and LAKE 95-24; and Order
Nos. 4262374, 4262375, 4259847 and 4259848 and Citation Nos.

2239

4262277, 4262278, 4262279, 4260432, 4268171, 4268172, 4268173,
4268174, 4268175, 4268176, 4268177, 4268178, 4268179, 4057021 and
4057022 in Docket Nos. LAKE 94-412-R, LAKE 94-413-R, LAKE 94-560R, LAKE 94-561-R, LAKE 94-373-R, LAKE 94-374-R, LAKE 94-375-R,
LAKE 94-727-R, LAKE 94-728-R, LAKE 94-729-R, LAKE 94-730-R, LAKE
94-731-R, LAKE 94-732-R, LAKE 94-733-R, LAKE 94-734-R, LAKE 94735-R, LAKE 94-736-R, LAKE 94-738-R, LAKE 94-739-R and LAKE 9549; Citation Nos. 4268180, 4057023, 4057024, 4057025, 4057026,
4057027, 4260037, 4262135 and 4262136 in Docket Nos. LAKE 94-737R, LAKE 94-740-R, LAKE 94-741-R, LAKE 94-742-R, LAKE 94-743-R,
LAKE 94-744-R, LAKE 95-1-R, LAKE 95-2-R, LAKE 95-3-R and LAKE 9550; and Order Nos. 3862717 and 3862718 and Citation No. 4260428
in Docket Nos. LAKE 94-516-R, LAKE 94-520-R, LAKE 94-686-R and
LAKE 95-51 are AFFIIUmD . Buck Creek Coal Inc., or its
successor, 2 is ORDERED TO PAY civil penalties of $94,426.00
within 30 days of the date of this decision. On receipt of
payment, these proceedings are DISMISSED .

'-1~~

T. Todd H';'~
Administrative Law Judge

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail}
Mr. Chuck Shultise, President, Buck Creek Coal Co., Inc., RR5,
Box 2 03, Sullivan, IN 47882 (Certified Mail)
Mr. Randall Hammond, Superintendent, Buck Creek Coal Co., Inc.,
2156 s. County Rd., 50 West St., Sullivan, IN 47882 (Certified
Mail)
Terry G. Farmer, Esq . , Bamberger; Foreman, Oswald, & Hahn,
708 Hulman Bldg., P.O. Box 657, Evansville, IN 47704 {Certified
Mail)
According to a July 19, 1996, news release, issued by the
United States Attorney for the Southern District of Indiana, the
company is now known as Indiana Coal Company.
2

2240

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

DEC 2 3 1996
WILLIAM F. METZ,
complainant

DISCRIMINATION PROCEEDING
Docket No. PENN 95-479-DM
NE MD 95-06

v.

Millard Lime &· Stone
Mine ID 36-00017

WIMPEY MINERALS,
Respondent

ORPER OF DISMISSAL

Before:

Judge Melick

The parties in the captioned case have reached agreement
regarding damages and request a final order relating thereto.
Under the circumstances Respondent is directed to pay total
damages, including interest in the amount of $58,158 within 15
days of the date of this order. This case is therefore
dismissed.

~ary ~-\, Af,'-Me

Adminis rative Law Judge
703-756-6261
Distribution:

Thomas P. Harlan, Esq., Henry & Beaver, 937 Willow Street, P.O.
Box 1140, Lebanon, PA 17042-1140 (Certified Mail)
Michael T. Heenan, Esq., Smith, Heenan & Althen, 1110 Vermont
Ave., N.W., Washington, o.c. 20005 (Certified Mail)

\jf

2241

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

DEC 2 6 1996:
BUCK CREEK COAL, INC.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

CONTEST PROCEEDINGS
Docket No. LAKE 94-643-R
Citation No. 3843973; 8/3/94
Docket No. LAKE 94-673-R
Citation No. 4260421; 8/15/94
Docket No. LAKE 94-674-R
Citation No. 4060422; 8/15/94
Docket No. LAKE 94-697-R
Citation No. 4260429; 8/30/94
Docket No. LAKE 94-698-R
Citation No. 4260430; 9/1/94
Docket No. LAKE 94-701-R
Citation No. 4386054; 9/1/94
Docket No. LAKE 94-719-R
Citation No. 4262495; 9/6/94
Docket No. LAKE 94-720-R
Citation No. 4261939; 9/7/94
Docket No. LAKE 94-721-R
Citation No. 4261940; 9/7/94
. Docket No. LAKE 94-722-R
Citation No. 4262496; 9/8/94
Docket No. LAKE 94-723-R
Citation No. 4262497; 9/9/94
Docket No. LAKE 94-724-R
Citation No. 4262498; 9/9/94

2242

Docket No. LAKE 94-725-R
Citation No. 3844463; 9/10/94
Docket No . LAKE 94-726-R
Citation No. 4260431; 9/12/94
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 95-52
A.C. No. 12-02033-03650

v.

Buck Creek Mine

BUCK CREEK COAL, INC.,
Respondent
BUCK CREEK COAL, INC.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

CONTEST PROCEEDINGS
Docket No. LAKE 95-4-R
Citation No. 4262138; 9/20/94
Docket No. LAKE 95-6-R
Citation No. 4262140; 9/21/94
Docket No. LAKE 95-7-R
Citation No. 4260181; 9/21/94
Docket No . LAKE 95-8-R
Citation No. 4260050; 9/21/94
Docket No. LAKE 95-9-R
Citation No. 4260051; 9/21/94
Docket No. LAKE 95-10-R
Citation No. 4260052; 9/21/94
Docket No. LAKE 95-11-R
Citation No. 4260053; 9/21/94
Docket No . LAKE 95-13-R
Citation No. 4262541; g/22/94
Docket No. LAKE 95-14-R
Citation No. 4262542; 9/22/94
Docket No. LAKE 95-20-R
Citation No. 4258524; 9/27/94
Docket No. LAKE 95-21-R
Citation No. 4258526; 9/27/94

2243

Docket No. LAKE 94-718-R
Citation No . . 438605~; 9/6/94
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No : LAKE 95-74
A.C. No. 12-02033-03653
Buck Creek Mine

BUCK CREEK COAL, INC.,
Respondent
BUCK CREEK COAL, INC.,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. LAKE 94-524-R
Citation No. 4259235; 6/20/94

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADM~NISTRATION (MSHA),
Respondent

Docket No. LAKE 95-18-R
Citation No. 4262561; 9/26/94
Docket No. LAKE 95-19-R
Citation No . 4262562; 9/264
Docket No. LAKE 95-22-R
Citation No . 4056823; 9/29/94

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 95-87 ·
A.C. No. 12-02033-03654
Buck Creek Mine

BUCK CREEK COAL, INC.,
Respondent
BUCK CREEK COAL, INC.,
Contestant
v.

CONTEST PROCEEDING
Docket No. LAKE 94-640-R
Citation No. 3843970; 8/2/94

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

2244

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

CIVIL PENALTY PROCEEDING
Docket No . LAKE 95-94
A.C. No. 12-02033-036545
Buck Creek Mine

BUCK CREEK COAL, INC.,
Respondent
DEFAULT DECISION

Before:

Judge Hodgdon

These cases are befo re me on Notices of Contest filed by
Buck Creek Coal, Inc., Petitions for Assessment of Civil Penalty
filed by the Secretary of Labor, acting through his Mine Safety
and Health Administration (MSHA), against Buck Creek pursuant to
section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815. The petitions allege 32 violations of the
Secretary's mandatory health and safety standards and seek
penalties of $22,252.00. For the reasons set forth below, I find
the company in defaul~, affirm the orders and citations, and
assess penalties of $22,252.00.
These cases are several in a long line of proceedings
involving Buck Creek. 1 At various times during the past two
years proceedings in these cases have been stayed pending the
outcome of criminal actions brought by the U.S. Attorney against
the company. The criminal cases were completed in the spring of
this year when the company pleaded guilty to all 12 counts of the
indictment against it.
On May 1, 1996, counsel for the Secretary served
Interrogatories and a Request for . Production of Documents on the
Respondent. On June 24, counsel filed a Motion to Compel stating
that Buck Creek had recei ved the discovery requests on May 3, but
had not responded to them. Consequently, the Secretary requested
that the company be compelled to respond to the requests and that
if the company did not respond to the requests a default decision
be issued in the proceedings. Buck Creek did not respond to the
Motion to Compel.

Because of the number of cases involving Buck Creek,
Docket No. LAKE 94-72 was designated as the master docket for
filings in any of the cases. However, this decision identifies,
in the caption, the specific docket numbers of the cases .
involved.
1

224 5

Based on the Secretary's unopposed motion, an Order
Compelling Response to Discovery Requests was issued on July 29,
1996. Buck Creek was ordered to respond to the Secretary's
discovery requests within 21 days of the date of the order. The
company was further cautioned that "(f]ailure to respond will
result in the issuance of an Order of Default, without the
issuance of a prior Order to Show Cause."

The order was sent by Certified Mail-Return Receipt
Requested to Chuck Shultise, President of Buck Creek; Randall
Hammond, Mine Superintendent; and Terry G. Farmer, Esq., the
company's bankruptcy counsel. Return Receipt Cards have been
received from all three indicating that the order was received on
either July 31 or August 1.
On September 17, 1996, the Secretary filed a Motion for an
Order of Default stating that as of that date the company had not
responded to the discovery requests. Therefore, the Secretary
requested that an order of default be issued. Buck Creek has not
responded to the motion.
I am aware. that Buck Creek is apparently in bankruptcy.
However, filing a petition in bankruptcy does not automatically
stay proceedings before the Commission or foreclose an entry of
judgment against the company. 11 U.S.C. § 362(b) (4); Holst
Excavating, Inc., 17 FMSHRC 101, 102 (February 1995); Secretary
of Labor on behalf of Price v. Jim Walter Resources, Inc., 12
FMSHRC 1521, 1530 (August 1990).

Commission Rule 59, 29 C.F.R. § 2700.59, states that "[i]f
any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are just and appropriate . . . . " Commission
Rule 66(a), 29 C.F.R. § 2700.66(a), requires that "[w]hen a party
fails to comply with an order of a Judge • . . an order to show
cause shall be directed to the party before the entry of any
order of default or dismissal."
In view of the Respondent's consistent failure to respond to
the Secretary's discovery requests or motions regarding the
requests, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futile act.
Consequently, I warned the Respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause. The
Respondent's subsequent failure to respond to the order
compelling responses to the disccvery requests or the Secretary's
motion for default demonstrate that that conclusion was correct.

2246

Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements of Rule
66(a) were complied with.
ORPER

Based on the above, I find the Respondent, Buck Creek Coal,
Inc., IN DEFAULT in these cases. Accordingly, Citation Nos.
3843973, 4260421, 4260422, 4260429, 4260430, 4386054, 4262495 ,
4261939, 4261940, 4262496, 4262497, 4262498, 3844463, 4260431 and
426175 in Docket Nos. LAKE 94-643-R, LAKE 94-673-R, LAKE 94-674R, LAKE 94-697-R, LAKE 94-698-R, LAKE 94-701-R, LAKE 94-719-R,
LAKE 94-720-R, LAKE 94-721-R, LAKE 94-722-R, LAKE 94-723-R, LAKE
94-724-R, LAKE 94-725-R, LAKE 94-726-R and LAKE 95-52; Citation
Nos. 4262138, 4262140, 4260181, 4260050, 4260051, 4260052,
4260053, 4262541, 4262542, 4258524, 4258526 and 4386058 in Docket
Nos. LAKE 95-4-R, LAKE 95-6-R, LAKE 95-7-R, LAKE 95-8-R, LAKE 959-R, LAKE 95-10-R, LAKE 95-11-R, LAKE 95-13-R, LAKE 95-14-R, LAKE
95-20-R, LAKE 95-21-R, LAKE 94-718-R and LAKE 95-74; Order No.
4259235 and Citation Nos. 4262561, 4262562, and 4056823 in
Docket Nos. LAKE 94-524-R, LAKE 95-18-R, LAKE 95-19-R, LAKE 9522-R and LAKE 95-87; and Order No. 3843970 in Docket Nos. LAKE
94-640-R and LAKE 95-94 are AFFIRMED. Buck Creek Coal Inc., or
its successor, 2 is OIU>ERED TO PAY civil penalties of $22,252.00
within 30 days of the date of this decision. On receipt of
payment, these proceedings are DISMISSED.

~~~

T. Todd H;~~~
Administrative Law Judge

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 s. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail )
Mr. Chuck Shultise, President, Buck Creek Coal Co., Inc., RR5,
Box 203, Sullivan, IN 47882 (Certified Mail}
According to a July 19, 1996, news release, issued by the
United States Attorney for the Southern District of Indiana, the
company is now known as Indiana Coal Company.
2

2247

FEDERAL MINE SAFETY AND HEALTH REVI:EW COMMISSXON
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DEC 2 7 1996.
BUCK CREEK COAL, INC.,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

CONTEST PROCEEDINGS
Docket No. LAKE 95-27-R
Citation No. 4260201; 10/3/94
Docket No. LAKE 95-28-R
Citation No. 4260202; 10/3/94
Docket No. LAKE 95-29-R
Citation No. 4260203; 10/3/94
Docket No. LAKE 95-30-R
Citation No. 4260204; 10/3/94
Docket No. LAKE 95-31-R
Citation No. 4262563; 10/4/94
Docket No. LAKE 95-32-R
Citation No. 4362564; 10/4/94
Docket No. LAKE 95-35-R
Citation No. 4262567; 10/6/94
Docket No. LAKE 95-57-R
Citation No. 4260194; 10/17/94
Docket No. LAKE 95-67-R
Citation No. 4260267; 10/11/94
Docket No. LAKE 95-68-R
Citation No. 4260268; 10/11/94
Docket No. LAKE 95-69-R
Citation No. 4260269; 10/11/94
Docket No. LAKE 95-70-R
Citation No. 4262569; 10'/11/94

2248

Docket No. LAKE 95-71-R
Citation No. 4262570; 10/11/94
Docket No. LAKE 95-73-R
Citation No. 4262572; 10/12/94
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 95-111
A.C . No. 12-02033-03656
Buck Creek Mine

BUCK CREEK COAL, INC.,
Respondent
BUCK CREEK COAL, INC.,
Contestant
v.

CONTEST PROCEEDING
Docket No. LAKE 95-58-R
Citation No. 4260195; 10/18/94

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 95-112
A.C. No. 12-02033-03657
Buck Creek Mine

BUCK CREEK COAL, INC.,
Respondent
BUCK CREEK COAL, INC.,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. LAKE 95-12-R
Citation No. 4260054; 9/21/94

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

Docket No. LAKE 95-59-R
Citation No. 3844474; 10/18/94
Docket No. LAKE 95-60-R
citation No. 3844475; 10/20/94
Docket No. LAKE 95-61-R
Citation No. 3844476; 10/20/94
:

2249

Docket No. LAKE 95-75-R
Citation No. 3844480; 10/11/94

Docket No. LAKE 95-76-R
Citation No . 4260212; 10/25/94
Docket No. LAKE 95-77-R
Citation No. 4260214; 10/25/94
Docket No. LAKE 95- 85-R
Citation No. 4260197; 10/31/94
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No . LAKE 95 - 154
A.C. No . 12 - 02033-03658

v.

Buck Creek Mine
BUCK CREEK COAL, INC.,
Respondent
DEFA'Q'LT DECISIQN

Before:

Judge Hodgdon

These cases are before me on Notices of Contest filed by
Buck Creek Coal , Inc . , Petitions for Assessment of Civil Penalty
filed by the Secretary of Labor~ acting through his Mine Safety
and Health Administration (MSHA) , against Buck Creek pursuant to
section 105 of the Federal Mine Safety and Health Act of 1977 ,
30 U.S.C . § 815. The petitions allege 27 viol ations of the
Secretary ' s mandatory health and safety standards and seek
penalties of $8 , 474 . 00. For the reasons set forth below, I find
the company in default, affirm the orders and citations , and
assess penalties of $8 , 474 . 00.
These cases are several in a long line of proceedings
involving Buck Creek. 1 At va r ious times during the past two
years proceedings in these cases have been stayed pending the
outcome of criminal actions brought by the U. S . Attorney against
the company. The criminal cases were completed in the spring of
this year when the company pleaded guilty to all 12 counts of the
indictment against it.

Becaus~ of the number o f ·cases involving Buck Creek,
Docket No . LAKE 94-72 was designated as the master docket for
filings in any of the cases . However , this decision identifies,
in the caption, the specific docket numbers of the cases
i nvolved.
1

2250

On May 1, 1996, counsel for the Secretary served
Interrogatories and a Request for Production of Documents on the
Respondent . On June 24, counsel filed a Motion to Compel stating
that Buck Creek had received the discovery requests on May 3, but
had not responded to them. Consequently, the Secretary requested
that the company be compelled to respond to the requests and that
if the company did not respond to the requests a default decision
be issued in the proceedings. Buck Creek did not respond to the
Motion to Compel.
Based on the Secretary's unopposed motion, an Order
Compelling Response to Discovery Requests was issued on July 29,
1996. Buck Creek was ordered to respond to the Secretary's
discovery requests within 21 days of the date of the order. The
company was further cautioned that ~[f]ailure to respond will
result in the issuance of an Order of Default, without the
iaauance of a prior Order to Show Cauae."

The order was sent by Certified Mail-Return Receipt
Requested to Chuck Shultise, President of Buck Creek; Randall
Hammond, Mine Super.i ntendent; and Terry G. Fa~er, Esq., the
company's bankruptcy counsel. Return Receipt ·cards have been
received from all three indicating that the order was received on
either July 31 or August 1.
On September 17, 1996, the Secretary filed a Motion for an
Order of Default stating that as of that date the company had not
responded to the discovery requests . Therefore, the Secretary
requested that an order of default be issued. Buck Creek has not
responded to the motion.
I am aware that Buck Creek is apparently in bankruptcy.
However, filing a petition in bankruptcy does not automatically
stay proceedings before the Commission or foreclose an entry of
judgment against the company. 11 U. S.C. § 362(b) (4); Holst
Excavating, Inc . , 17 FMSHRC 101, 102 (February 1995); Secretary
of Labor on behalf of Price v. Jim Walter Resources, Inc., 12
FMSHRC 1521, 1530 (August 1990).
Commission Rule 59, 29 C.F.R. § 2700.59, states that ~[i]f
any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are just and appropriate . . • • " Commission
Rule 66(a), 29 C.F.R. § 2700.66(a), requires that ~[w]hen a party
fails to comply with an order of a Judge • • • an order to show
cause shall be directed to the party before the entry of any
order of default or dismissal."

2251

In view of the Respondent's consistent failure to respond to
the Secretary's discovery requests 9r motions regarding the
requests, I concluded that issuing an order to show cause before
isiuing a default decision in these cases would be ~ futile act.
Consequently, I warned the Respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause. The
Respondent's subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary's
motion for default demonstrate that that conclusion was correct.
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements of Rule
66(a) were complied with .
QRDER

Based on the above, I find the Respondent, Buck Creek Coal,
Inc., IN DEFAULT in these cases. Accordingly, Citation Nos.
4260201, 4260202, 4260203, 4260204, 4262563, 4262564, 4262567,
4260194, 4260267, 4260268, 4260269, 4262569, 4262570, 4262572 and
4260192 in Docket Nos. LAKE 95-27-R, LAKE 95-28-R, LAKE 95-29-R,
LAKE 95-30-R, LAKE 95-31-R, LAKE 95-32-R, LAKE 95-35-R, LAKE 9557-R, LAKE 95-67-R, LAKE 95-68-R, LAKE 95-69-R, LAKE 95-70-R,
LAKE 95-71-R, LAKE 95-73-R and LAKE 95-111; Citation No. 4260195
in Docket Nos. LAKE 95-58-R and LAKE 95-112; and Citation Nos.
4260054, 3844474, 3844475, 3844476, 3844480, 4260212, 4260214,
4260197, 3844477, 3844478, and 3844479 in Docket Nos. LAKE 95-12R, LAKE 95-59-R, LAKE 95-60-R, LAKE 95-61-R, LAKE 95-75-R, LAKE
95-76-R, LAKE 95-77-R, LAKE 95-85-R and LAKE 95-154 are AITIIUED .
Buck Creek Coal Inc., or its successor, 2 is ORDEIUU> TO PAY civil
penalties of $8,474.00 within 30 days of the date of this
decision. On receipt of payment, these proceedings are
DISMISSED.

dM~

T.• Todd H:d~...-.-..,
Administrative ·Law Judge

According to a July 19, 1996, news release, issued by the
United States Attorney for the Southern District of Indiana, the
company is now known as Indiana Coal Company.
2

2252

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
December 2, 1996

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

v.

CIVIL PENALTY PROCEEDINGS

.
..
:

NEWMONT GOLD COMPANY,
Respondent

Docket No. WEST 95-434-M
A.C. No. 26-00500-05542
Docket No. WEST 95-467-M
A.C. No. 26-00500-05543
South Area - Gold Quarry

ORDER DENYING RESPONDENT'S MOTION
TO EXCLUDE "UNLAWFULLY SEIZED" EVIDENCE

Newmont Gold Company ("Newmont") filed a . motion, pursuant to
the Fourth Amendment to the United States Constitution, to exclude "all evidence derived from the unlawful search of Newmont's
offices, and seizure of Newmont's p~operty, by the Secretary's
informants."
Newmont argues that I should exclude "all evidence, including tangible physical evidence such as memorandums,
records, reports, or correspondence, intangible evidence such as
computer disks, printouts, or tape recordings, and testimonial
evidence derived from such unlawful searches and seizures." The
Secretary opposes Newmont's motion. Based on my review of
Newmont's motion and memorandum in support of the motion, and the
arguments presented in our conference call of November 27, 1996,
I find that Newmont's motion should be denied.
In the memorandum, Newmont states that it has reason to
believe that certain evidence was stolen by one or more of its
employees, perhaps with the knowledge and encouragement of agents
for the Secretary of Labor, and that the Secretary intends to use
such stolen evidence against Newmont in these cases. It contends
that because these employee-informants acted as an instrument or
agent of the Secretary , the unlawful entry and removal of documents constitutes an unreasonable search and seizure that violates the Fourth Amendment. Newmont maintains that "the Commission should exclude from this case and all other Commission
proceedings all of the unlawful·ly seized evidence, as well as all
'fruits' of the illegal search."
(Memorandum at 1). The Secretary states that his attorneys did not participate in or
acquiesce in the theft of documents from Newmont. He maintains
that there is no basis to exclude the subject documents from the
evidence in this case.

2253

In general, the Fourth Amendment's exclusionary rule is not
used in civil proceedings. "In the complex and turbulent history
of the (exclusionary] rule, the court has never applied it to
exclude evidence from a civil proceeding, federal or state."
United States v . Janis, 428 U.S. 433, 447 (1976) (footnote omitted}. In some types of "quasi-criminal" proceedings, courts have
applied the rule to exclude evidence obtained in violation of the
Fourth Amendment. See United states v. $191,910.00 in U.S.
currency, 16 F.3d 1051, 1068-69 (9th Cir. 1994) (civil forfeiture
proceeding). In that case, the court held that forfeiture is "a
harsh and oppressive procedure which is not favored by the
courts." Id. at 1069 (citation omitted). Some courts apply the
exclusionary rule to suits involving assessments for unpaid taxes
on money illegally seized by the government. See Pizzarello v.
United States, 408 F.2d 579 (2nd Cir. 1969). Contrary to the
assertion of Newmont, the exclusionary rule does not apply in
deportation proceedings. I.N.S. v. Lopez-Mendoza, 468 U.S. 1032
(1984) (reversing Ninth Circuit decision cited by Newmont).
There is no direct proof that documents were illegally taken
from Newmont. Newmont states that the documents in question,
which the Secretary sent to Newmont's attorney during discovery,
are company records and that no employee was given permission to
copy or remove these documents from the company's files. It
states that the mine's managers have never seen some of the
documents and believe that they were taken from Newmont files
without permission at some time in the past. There is no allegation that MSHA employees took the documents. The Secretary
states that his employees did not ask anyone to take Newmont
documents and did not consent to the theft of documents.
I accept Newmont's representation that the documents in
question are company records and that it did not give its
employees permission to copy them or remove them from the mine.
Apparently, these documents were sent to the local MSHA office or
given to local MSHA officials by someone who had access to them.
The issue is whether the Secretary should be prohibited from
introducing them as exhibits at the hearing. For purposes of
this motion, I will assume that the documents were taken from the
South Area Gold Mine witho~t the express permission of mine
mai:iagement.
In considering whether the exclusionary rule applies to a
noncriminal case, the Supreme Court balances the competing
interests. The primary purpose, if not the only purpose, of the
exclusionary rule is "to deter future unlawful police conduct."
Janis at 446 (citation omitted). The rule does not exclude
evidence because it is untrustworthy, but rather excludes it to
deter future unlawful action by the government. "[T]he rule is a
judicially created remedy designed to safeguard Fourth Amendment
rights generally through its deterrent effect, rather than a
personal constitutional right of the party aggrieved." United

2254

states v. Calandra, 414 U.S. 338, 348 {1974). The disadvantage
of the rule is the "loss of often probative evidence and all of
the secondary costs that flow from the less accurate or more
cumbersome adjudication that therefore occurs." Lopez-Mendoza at
1041. As a consequence, the exclusionary rule is "restricted to
those areas where its remedial objectives are thought most eff icaciously served." Calandra at 348.
I find that the deterrent value of applying the exclusionary
rule to these civil penalty proceedings is not sufficiently high
to warrant the exclusion of the documents at issue. There is no
showing, nor could there be a showing, that MSHA officials conducted an unlawful search or seizure . MSHA officials did not
conduct a warrantless search of Newmont's records and did not
personally remove documents from the mine without management's
permission. Excluding the subject documents in these cases is
unlikely to deter unlawful MSHA conduct in the future.
Newmont alleges that one or more of its employees or former
employees took or copied the documents. If that fact is true and
the individuals did not have permission to take or copy the documents, Newmont may be able to bring an action against them or
have criminal charges filed. Such remedies are generally not
available when the police or other government officials conduct
an unlawful search and seizure. Criminal charges and civil suits
are the most effective remedy against future thefts at the mine.
I find that the exclusion of the documents would not act as
an effective deterrent to thefts of documents in future cases.
Miners at other mines who feel that their employer is responsible
for creating an unsafe working environment will not be deterred
from taking what they believe are incriminating documents from
their employer simply because the documents might be excluded
from a Mine Act civil penalty proceeding. Likewise, MSHA .officials who receive documents from a miner that tend to show that a
mine operator created unsafe conditions at a mine are not likely
to refuse to review the documents out of a concern that they
might not be admissible in a civil penalty proceeding. Exclusion
from these proceedings of evidence that was taken from Newmont by
one or more unknown individuals does not have "a sufficient likelihood of deterring the conduct of (other miners and MSHA officials] so that it outweighs the spcietal costs imposed by the
exclusion." Janus at 454. As stated in Calandra, the exclusionary rule is not a "personal constitutional right of the party
aggrieved," but is simply a dete rrent . 414 U.S. at 348.
It is also important to remember that warrantless inspections of mines do not violate the Fourth Amendment. Donovan v.
Dewey, 452 U.S. 594 (1981). The Si xth Circuit held that while it
was improper for MSHA to have removed statutorily required records from a mine without the consent of the mine operator or an
administrative warrant, such records should not be suppressed

225 5

through the exclusionary rule in light of the "statutory regulation which applies to the . • . mining industry. " United states v .
Blue Diamond Coal Co., 667 F.2d 510, 520 {1981); See also Peabody
Coal Co., 6 FMSHRC 183 (February 1984).
In the present cases, the disputed documents do not appear
to be the type of records that are required to be kept by the
Mine Act or made available to MSHA inspectors. Accordingly, the
Secretary may have been required to obtain a search warrant to
seize them during his initial investigation of the conditions at
the mine. Nevertheless, to the extent that the documents are
relevant to these proceedings, the Secretary could have obtained
them through discovery once these proceedings were filed.
29
C.F.R. § 2700.56 & 2700.58.
(Documents that are not relevant
will be excluded from the record in these proceedings in any
event. 29 C.F.R. § 2700.63(a)). I believe that the remedial
objectives of the exclusionary rule are not "efficaciously
served" if the Secretary could have required Newmont to produce
the disputed documents during discovery. Given the protective
purposes of the Mine Act and the minimal deterrent effect of
suppressing the documents, I find that, in balancing the
competing interests, the exclusionary rule should not be applied.
Newmont relies heavily on Knoll Associates v. Federal Trade
Commission, 397 F.2d 530 (7th Cir. 1968) and other similar cases.
I n that case, the court ordered the FTC to exclude from the
record documents stolen by a company employee and sent to an FTC
attorney on the basis that the use of these documents in an
administrative proceeding violated the company's Fourth Amendment
protections. I believe that the holding in Knoll is not pertinent to the present proceedings for two reasons.
First, the
court did not balance the competing interests as required by the
Supreme Court's subsequent decision in Janis.
The Seventh
Circuit stated that since the exc l usionary rule is applied to
criminal prosecutions under the Clayton Act, it should also
"apply a fortiori" to civil proceedings under that act as well.
Knoll at 534. Second, as recognized by the Sixth Circuit in Blue
Diamond, a mine operator's expectation of privacy is not as great
as that generally afforded other industries due to the Mine Act's
statutory requirements and the provision for warrantless inspections.
I believe that a mine operator's rights in a civil
penalty proceeding brought under the Mine Act are not as great as
such operator's rights under the Act's criminal provisions.
In Lopez-Mendoza, the Supreme Court stated that its "conclusions concerning the exclusionary rule's value might change, if
there developed good reason to believe that Fourth Amendment
violations by INS officers were widespread." 468 U.S. at 1050.
If MSHA officials, on a regular basis, actively encourage miners
to steal documents from their employers, the application of the
exclusionary rule may need to be reevaluated.
I believe that it
would be inappropriate for the Secretary to establish a practice

225 6

of asking miners to take documents from a mine as a means of
furthering his investigation of potential violations or as a
means of conducting discovery. I have no reason to believe that
the Secretary has adopted such a practice.
For the reasons set forth above, Newmont's motion to exclude
"unlawfully seized" evidence is DENIED.
.--·-·\
\

Richard w. Manning
Administrative Law Judge

Distribution:

Jeanne M. Colby, Esq., Office of the Solici tor, U.S. Department
of Labor, 71 Stevenson street, suite 1110, San Francisco, CA
94105-2999
Henry Chajet, Esq.~ PATTON BOGGS, 2550 M Street, NW, Washington,
DC 20037-1350

.

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 2220 3

RWM

2257

FBDBRAL KID SAFB'l'Y lUfD BBALTB RBVID COMXISSIOB
1244 SPBBR BOOLSVARD #280
DENVER, CO 80204-3582
303-844-3577/PAX 303-844- 5268
December 5, 1996

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

.•
..•
.•
..••
.
0

0

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 95-434-M
A.C. No. 26-00500-05542

0

v.
NEWMONT GOLD COMPANY,
Respondent

Docket No. WEST 95-467-M
A.C. No • 26-00500-05543
South Area - Gold Quarry

ORDER DENYING RBSPONDBNT'S MOTION TO RBCONSIPBB
ORDER DENYING KQTIOlf TO IXCLQDI "UNLAlltJLLY SEIZED" BVIDQCI

Newmont Gold Company ("Newmont") filed a motion, pursuant to
the Fourth Amendment to the United States Constitution, to exclude "all evidence derived from the unlawful search of Newmont's
offices, and seizure of Newmont's property, by the Secretary's
informants." By order dated December 2, 1996, I denied Newmont's
motion. Newmont has now filed a motion asking that I reconsider
my conclusion that the Fourth Amendment's exclusionary rule
should not apply to these cases.
My December 2~ order sets forth the facts and my reasons for
denying Newmont'& motion to apply the exclusionary rule, which I
hereby incorporate by reference . In its motion for reconsideration, Newmont argues that the Supreme Court's decision in INS v.
Lopez-Mendoza, 468 U.S. 1032 (1984) supports its position that
the exclusionary rule should apply in these cases. It asserts
that the Secretary's attorney, Ms. Colby, had actual knowledge
that the documents were stolen from Newmont. Newmont argues that
I should exclude from the record the documents that the Secretary
knew were stolen because the fruits of that theft should not be
used to bolster the government's case.
As I stated in my previous order, courts do no lightly apply
the exclusionary rule in civil proceedings. In most cases, the
cases involve quasi-criminal matters, such as forfeiture proceedings. Moreover, the exclusionary rule is not a "personal constitutional right of the party aggrieved," but is rather a remedy
designed to deter future unlawful government conduct. United
States v. Calandra, 414 U.S. 338, 348 (1974). There is no
evidence that the Secretary has engaged in a pattern or practice
of encouraging miners to steal documents from mining companies.
2258

.

The fact that company documents are sometimes given to a govern-

ment attorney by an individual who had access to them does not
establish such a pattern. Indeed, it does not establish that
such documents were stolen or that the government engaged in
unlawful conduct.

Newmont relies on the fact that Mr. Chajet advised Ms. Colby
that the dOCUllents were stolen and asked that they be returned.
If I assume that the documents in question were stolen from
Newmont, there is still no indication that the Secretary asked or
otherwise encouraged the individuals to take the documents. The
exclusionary rule is designed to deter unlawful government action
not theft by employees or others individuals.
Inquiry into this issue by Newmont's attorneys at the
bearing will not produce relevant evidence and therefore will not
be permitted. Even if I assume that the documents were stolen,
the Secretary could have obtained them, in any event, during the
discovery process. 29 C.F.R. S 2700.56(b). Documents that are
obtained through discovery and are relevant to the issues are
admissible. 29 C.F.R. S 2700.63(a).
For the reasons set forth above, Newmont's motion for
reconsideration is DBNIBD.

Distribution:
Jeanne M. Colby, Esq., Office of the Solicitor, u.s . Department
of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA
94105-2999
Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington,
DC 20037-1350
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department f
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
RWM

2259

J'BDBRAL XINB SAJ'BTY AND BllLTB RBVlD COMMISSIOll
1244 SPBBR BOULEVARD #280
DENVER, CO 80204-3582
303- 844-3577/rAX 303-844-5268

December s, 1996

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

v.
NEWMONT GOLD COMPANY,
Respondent

.•
..
.•

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 95-434-M
A.C. No . 26-00500-05542
Docket No. WEST 95-467-M
A.C. No. 26-00500-05543

South Area - Gold Quarry

ORDER DBNJING RBSPOHDBlf'l''S SBCOlfl)
MOTION FOR St:JMMARY DBCISIQJI

Newmont Gold Company ("Newmont") filed a second motion for
summary decision and motion for declaratory relief in these
cases . The Secretary of Labor opposes the motion. Under the
Commission's procedural rules, summary decision shall be granted
only if the entire record shows that: (1) there is no genuine
issue of material fact; and (2) the moving party is entitled to
summary decision as a matter of law . 29 C.F.R. S 2700.67(b).
For the reasons set forth below, I deny Newmont's motion.
I.

TBB CITATIONS Alm OIU)BRS

On March 13 and 14, 1995, MSHA Inspector Michael Drussel
issued two citations and two unwarrantable failure orders at
Newmont's South Area Gold Quarry near Carlin, Nevada . The
citations and orders allege violations of 30 C.F.R. SS 56.20011
and 56.20014.

A.

Alleged Violations of Section 56.20014

Section 56.20014 provides:
No person shall be allowed to consume or
s tore food or beverages in a toilet room or
in any area exposed to a toxic material.
Citation No. 4140245, issued under section 104(d) (1) of the
Mine Act, alleges that:
The off ice in the AARL building
contained mercury vapor as measured with a
Jerome mercury vapor analyzer. The average
2260

reading was 23.3 µg/m'. The company routinely takes 6 Jerome readings a day in this
off ice as part of their mercury monitoring
proqram. These readings show mercury has
been present in this off ice. Visible mercury
was found on the desk top on Feb. 28, 1995.
The AARL operator was required to use this
off ice for eating lunch. No person shall be
allowed to consume food or beverages in any
area exposed to a toxic material.
Order No. 4140246, issued under section 104(d)(l) of the Mine
Act, alleges that:
The lunchroom for the ZADRA employees
contained mercury vapors as measured with a
Jerome mercury vapor analyzer. The average
reading was 22.2 µg/m3 • The company routinely takes 6 Jerome readings a day in this
lunchroom as part of their mercury monitoring
program. These readings showed mercury
vapors have been present in this lunchroom.
The ZADRA employees were required to use this
lunchroom for eating their lunch. No person
shall be allowed to consume food or beverages
in any area exposed to a toxic material.
The issue is whether eating areas were exposed to a toxic
material, as that term is used in the standard.
B.

Alleged Violations of Section 56.20011

section 56.20011 provides:
Areas where health or safety hazards
exist that are not immediately obvious to
employees shall be barricaded, or warning
signs shall be posted at all approaches.
Warning signs shall be readily visible,
legible, and display the nature of the hazard
and any protective action required.
Citation No. 4140248,
Mine Act, alleges that:

issu~d

under section 104(a) of the

The old screen removed from the ZADRA
was placed near the containment area at the
AARL Building, visible mercury was on the
screen. No warning signs were posted warning
of the hazard.

2261

Order No. 4140247, issued under section 104(d)(l) of the Mine
Act, alleges that:
The old scrubber removed from the AARL
was cleaned then tested for mercury contamination. This scrubber was stored at the
boneyard. Mercury contamination test results
received in Nov. 1994 showed mercury contamination. The scrubber was not removed from
the boneyard or marked of the hazard. When
the scrubber was inspected to show visible
mercury, Jerome reading showed mercury vapors
present.
The issue is whether a "health or safety hazard" existed at the
boneyard and containment area so that barricades or signs were
required to warn miners of the nature of the hazard.
II.

A.

SUMMARY OP THB PARTIES' ARGUMENTS

Newmont Gold Company

Newmont argues that the Secretary's evidence establishes
that the Secretary improperly adopted new standards that were
enforced against Newmont in these cases in vfolation of the Mine
Act and the Administrative Procedure Act ("APA"). In particular,
Newmont contends that the citation and order alleging violations
of section 56.20014 (the ".20014 citations") are invalid because
they are founded on MSHA's new policy of citing an operator
whenever any mercury is detected, which Newmont calls a "zero
tolerance policy." It maintains that this zero tolerance policy
represents a major shift in MSHA practice and that this new
policy was adopted without proper notice and comment, or compliance with the APA or the Mine Act. Newmont asserts that prior
to the implementation of this new policy, MSHA cited operations
for violations of this standard only when an inspector detected
airborne mercury levels above the applicable Threshold Limit
Value ("TLV") incorporated by reference in 30 c.F.R. S 56.5001.
Newmont further argues that even assuming that ·the zero
tolerance policy was legally promulgated, the Secretary's
evidence demonstrates that a r~asonable mine operator would not
have been put on notice that the level of mercury detected by
MSHA in the eating areas posed a toxic hazard or health hazard to
miners . Accordingly it contends that these citations cannot be
upheld without violating due process principles and Commission
precedent.
Newmont also argues that the citation and order alleging
violations of section 56.20011 (the ".20011 citations") are
invalid because they were based upon an improper MSHA inter-

2262

pretation that the potential of a possible hazard is sufticient
to establish a violation. Newmont maintains that MSHA must prove
that an actual hazard exists to establish a violation.
B.

Secretary of Labor

The Secretary maintains that swnmary decision is not appropriate because material facts are in dispute. The Secretary
states that he will put on evidence to establish that Newmont was
on notice that it was required to maintain lunch areas free of
mercury exposure. The Secretary also states that Newmont's own
records establish that liquid mercury was present in eating areas
and that mercury vapor above the TLV was also frequently present.
In addition, the Secretary contends that Newmont failed to
establish that it is entitled sWDJDary decision as a matter of
law. He disputes Newmont's contention that additional rulemaking
proceeding are required to enforce the cited standards. The
Secretary maintains that his "application of elemental mercury as
a toxic material irrespective of a specific risk level" is an
interpretation of a pre-existing term and is therefore a valid
interpretive rule that does not require further rulemaking. He
states that elemental mercury is a universally recognized "toxic
material." The Secretary maintains that his interpretation of
that term is entitled to deference.
The Secretary also denies that his interpretation of the
standards is inconsistent with his prior policies. He argues
that the fact that some local MSHA inspectors were not familiar
with or· were not enforcing MSHA's mercury policies does not
establish a past inconsistent practice . The Secretary contends
that reasonably prudent mine operators were on notice that food
could not be stored or consumed in areas exposed to mercury.
Finally, with respect to the .20011 citations, the Secretary
states that the violations are supported by the fact that liquid
mercury was observed by the inspector at the cited locations. He
argues that the conditions created a haza~d.
III.

A.

DISCUSSION AND ANALYSIS

Background Information

Inspector Drussel took readings with a Jerome Monitor. A
Jerome Monitor is a hand-held device that can be used to obtain
instantaneous readings of mercury vapor. The inspector obtained
average readings for mercury vapor of 23.3 µg/m 3 in the AARL area
and 22.2 µg/m 3 in the ZADRA area. The AARL and ZADRA areas are
part of the carbon handling area where carbon is processed and
regenerated when g·o ld is removed from the carbon. It is not
disputed that these readings are well below the TLV for mercury.

2263

In its first motion for summary decision, Newmont arqued
that, as a matter of law, sections 56.20014 and 56.20011 are not
violated unless the secretary establishes that the TLV for mercury was exceeded under section 56.5001. I denied Newmont's
motion by order dated May 31, 1996, and I hereby incorporate my
analysis from that order by reference. NeliJIJont Gold Company, 18
FMSHRC 832.
B.

MSliA's Action Level for Mercury

Newmont argues that the citations are invalid because
Inspector Drussel merely detected the "presence" of mercury. It
argues that the Secretary failed to establish and cannot establish that the amount of mercury vapor detected by the inspector
actually posed a toxic threat or hazard to miners. Newmont
points to the deposition testimony of Inspector Drussel that he
issued the citations because mercury was present in eating areas
and that he would have issued the citation if he detected at
least .005 mg/m3 on a Jerome Monitor. 1 (Orussel Dep. at 323, 45051; see also Alvarez Dep. at 153-55).
Newmont also refers to the deposition testimony of Margie
Zalesak, C~ief of MSHA's Metal/Nonmetal Health Division. She
testified that MSHA does not consider whether a hazard is created
when it determines if an area where food is stored or consumed is
"exposed to a toxic material," but only considers whether mercury
was present in the area. (Zalesak Dep. 260, 270; see also
Alvarez Dep. at 212-15).
The Secretary believes that section 56.20014 requires that
all mercury be removed from areas where food or beverages are
consumed. The Secretary contends that the plain lanquage of the
standard requires operators to furnish miners with a place to eat
and drink that is reasonably free of toxic materials. He states
that mercury is universally recognized as a toxic material and
that it is undisputed that mercury was present where miners
consumed food and beverages . He relies, in part, on a report
prepared by Ms. Zalesak that concludes that, based on the
properties of mercury and the activities that occur in eatinq

A reading of • 005 milligrams per cubic meter (. 005 mg/m3 )
is equivalent to 5 micrograms . per cubic meter (5 µ.g/m 3 ) . The 5
µ.g/m 3 level apparently represents the lowest amount of mercury that
can be accurately detected by a Jerome Monitor. That figure is the
detection limit of the monitor, 3 µg/m3 , plus a 2 µg/m 3 error factor
assigned by MSHA. Newmont characterizes the 5 µ.g/m 3 threshold as
a "zero tolerance policy" because MSHA will issue a citation i'f it
can detect the presence of mercury.

2264

areas, "elemental mercury should not remain in rooms where miners
eat food, drink beverages, and store food and beverages.• (Sec.
Response, ·Attachment N, ! 2). In short, the secretary takes the
position that any measurable level of mercury is a · toxic material
when it is detected in an eating area and that section 56.20014
prohibits the consumption of food in any area exposed to a toxic
material.
In considering a motion for summary decision, I cannot
summarily try the facts. Instead, I must apply the law to the
facts that have been established by the record at this point in
the litigation. With this concept in mind and considering the
uncontested facts, I conclude that Newmont has not established
that it was unreasonable for the Secretary to determine that
mercury should not be permitted in eating areas at any measurable
level and that, if mercury is detected in an eating area, such
eating area has been "exposed to a toxic material." I am not
holding that the Secretary has established violations because
there are factual disputes as to whether the conditions in the
cited areas violated the safety standard. In addition, I limit
my holding to the undisputed facts presented in the present
record.

c.

Requirement for Rulemakinq

Newmont states that the Secretary's interpretation of the
standard is a radical departure from past MSHA practice . It
refers to the deposition testimony of local MSHA officials that,
until they were advised of MSHA's new policy, they would not have
issued a citation for a violation of section 56.20014 unless the
TLV was exceeded. Newmont contends that MSHA changed its policy
without notice to mine operators. It argues that MSHA cannot
make such an abrupt policy change without following the protections of the APA and the Mine Act .
Newmont states that the Secretary proposed a new rule in
1989 to change its air quality regulations that would have
adopted the precise rule that MSHA is trying to enforce against
Newmont in this case. The Secretary has not completed this rulemaking. Newmont maintains that this rulemaking demonstrates that
MSHA is attempting to change its current regulation in these
cases without following the dictates of the APA. Newmont states
that a rulemaking proceeding is the proper forum for resolving
the scientific issues at issue in these proceedings.
The Secretary did not publish a rule or issue a program
policy letter explaining that MSHA would cite operators whenever
it detected the presence of mercury in an eating area. The
Secretary asserts that its enforcement policy with respect to
mercury does not represent a change from past practice.
He
points to the fact that Newmont was unable to cite a single prior
written policy that is inconsistent with its current interpre-

2265

tation of the standards. The Secretary states that it will
establish that it has, on at least one occasion, cited an operator for violating the "lunchroom• standard where the level of
mercury was below the TLV.
I find that it is not entirely clear whether the Secretary
changed his enforcement policies, whether be began seriously
enforcing the cited standards with respect to mercury in the last
five years, or whether his enforcement bas been uneven. There
bas not been a long history of enforcement with respect to mercury under section 56.20014. It is beyond dispute that a mine
operator violates section 56.5001 if the TLV for mercury is
exceeded in an eating area. As I stated in my order of May 31,
that standard sets forth different requirements than the cited
standard . Thus, the fact that local MSHA inspectors did not
issue citations unless the level of mercury exceeded the TLV does
not establish that MSHA changed its policies. Citations may not
have been issued because these inspectors and their immediate
supervisors had not applied section 56.20014 to mercury at
Newmont's mine, but had relied solely on section 56.5001. It
appears that there has been previous consistent enforcement of
section 56.20014 for mercury as evidenced by the Alcoa and Coeur
Rochester citations. Accordingly, I find that there exists a
significant issue of material fact to be resolved.
In addition, Newmont is not entitled to summary decision as
a matter of law on this issue. It is not clear that the Secretary was required to follow the notice and comment requirements
of 5 u.s.c. S 553 prior to issuing the citations and orders in
these cases. The Secretary argues that its interpretation of the
phrase "an area exposed to a toxic material" is an interpretative
rule not a legislative rule that requires notice and comment.
The distinction between those agency pronouncements subject to
APA rulemakinq and those that are exempt is "enshrouded in
considerable smog." American Mining Congress v. HSHA, 995 F.2d
1106, 1108 (D.C. Cir 1993)(citation omitted). The Secretary's
action level for mercury as applied in these cases may well be
interpretative rather than legislative.
Given that the line
between legislative and interpretative rules is "fuzzy" and
factual issues need to be resolved, I am unable to rule on this
issue at the present time. Id.
D.

The Secretary's OSHA,Standard

Newmont next maintains that even if MSHA's five microgram
standard is not a substantive rule, the policy must be rejected
because this new interpretation is inconsistent with Department
of Labor precedent. The Department of Labor's Occupational
Safety and Health Administration ("OSHA") has a similar prohibition concerning the storage of food and. beverages in an area
exposed to a toxic material. 29 C.F.R. S 1910.141(g) (4). OSHA
defines "toxic material" as a material in a concentration that

2266

exceeds the applicable limit established by OSHA or, in the
absence of such a limit, "which is of such toxicity as to constitute a recognized hazard that is causing or likely to cause death
of serious physical harm." 29 C.F.R. S 1910.141(a)(~) (viii).
Newmont contends that the MSHA and OSHA standards should be construed consistently since they use the same lanquage and have the
same purpose. Thus, Newmont believes that an area is exposed to
a toxic material only if the material is present in a quantity
that exceeds the TLV or the Secretary establishes that the concentration is causing or is likely to cause death or serious
injury. Newmont contends that the record makes clear that the
Secretary will not be able to meet his burden of proof on this
issue.
The Secretary contends that MSHA did not incorporate the
OSHA definition of toxic material when it promulgated the lunchroom standard. He states that OSHA's definition existed at the
time section 56.20014 was promulgated. He argues that, although
MSHA had the option to incorporate that definition, it chose not
to do so. Accordingly, the Secretary maintains that OSHA cases
are of little value in interpreting the standard.
I hold that Newmont is not entitled to summary decision as a
matter of law on this issue. The OSHA definition is not legally
binding on MSHA. I agree with Newmont, however, that the OSHA
definition is relevant to the issues in this proceeding. First,
its raises deference issues. If the Secretary interprets the
same regulation in his OSHA standards in a manner that is inconsistent with his interpretation here, how much deference is owed
to the Secretary's interpretation? Second, the OSHA definition
may have some relevance with respect to negligence issues.
E.

Notice Issues

NeWJDont also maintains that a reasonably prudent person
familiar with the mining industry would not have recognized that
the cited safety standard applies to mercury in amounts less than
the TLV . Newmont points to the deposition testimony of MSHA
witnesses that mercury vapor levels in work areas below the TLV
would not present a hazard to employees. (Koenning Dep. at 6667; Trabant Dep. at 59-60, 73, 81-82; Alvarez Dep . at 212; Hansen
Oep. at 34-35). Newmont argues that if the Secretary's· own
experts do not consider mercury to be a hazard unless it is
present in a concentration that ex~eeds the TLV, a reasonably
prudent person could not be expected to interpret the cited
standards to prohibit mercury in concentrations below the TLV.
In the alternative, NeWJDont asks that I strike the inspector's
negligence determinations in all of the citations and orders, and
a find that all violations were the result of Newmont's low
negligence.

2267

The Secretary maintains that the deposition testimony upon
which Newmont relies does not support its arquments because the
questions were 9eneralized and abstractly worded. In addition,
he argues that such statements are not binding on MSHA and do not
constitute undisputed material fact. It contends that a motion
for summary decision is an inappropriate vehicle to determine
whether the Secretary's enforcement actions meet the reasonably
prudent person test. He states that he will establish at the
hearing that mine operators were given notice that food could not
be consumed in areas exposed to mercury and he attached exhibits
to his response to Newmont's motion that discuss the hazards
associated with mercury in eating areas. With respect to the
negligence issue, the Secretary contends that Newmont was on
notice for five years that the cited areas contained mercury and
i t took insufficient steps to correct the problem.
The Commission has held that a safety standard cannot be
"so incomplete, vague, indefinite or uncertain that [persons] of
common intelligence must necessarily quess as its meanin9 and
differ as to its application." Alabama By-Products Corp., 4
FMSHRC 2128, 2129 (December 1982) (citation omitted).
The commission determined that adequate notice of the requirements of a
broadly worded standard is provided if a reasonably prudent
person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard. Ideal Cement Co., 12 FMSHRC
2409, 2416 (November 1990); Lanham Coal Co., 13 FMSHRC 1341, 1343
(September 1991). In order to establish a violation of a broadly
worded standard, the Secretary must show that a reasonably prudent person would have recognized that a specific requirement of
the standard applied to the cited condition. LanhaiJ, 13 FMSHRC
at 1343, 13 FMSHRC 1710, 1712 {October 199l){AI.J)(on remand).
These principles may be applicable to the present cases.
The application of the reasonably prudent person test to a
particular situation is necessarily factually dependent. I find
that there are genuine issues of fact with respect to notice
questions. The issue as to whether MSHA chan9ed its policies
with respect to mercury is necessarily interrelated with the
notice issue. In addition, the Secretary has presented some
evidence that a reasonably prudent person would have recognized
the specific requirement of the standard with respect to eating
in areas exposed to even small amounts of mercury. Likewise,
factual disputes remain as to the level of negligence that should
be attributed to any violations '.
F.

Alleged Violations of S56.20011

With respect to the .20011 citations, Newmont contends that
the Secretary failed to establish a necessary predicate to a
violation: that a health or safety hazard existed. Newmont
relies, in part, on the testimony of Inspector Drussel that he

2268

issued the citations because there was "a likelihood that a hazard could be present." (Drussel Dep. at 199-200). Ms. Zalesak
testified that a hazard need not be present to issue a valid
citation under section 56.20011. (Zalesak Dep. at 271). She
inferred that a citation is proper if the substance "could
present a hazard to some individuals." Id. Newmont arques that
the Secretary must establish that an actual recognizable hazard
exists to establish a violation of section 56.20011. Because the
citation was issued for a potential hazard that might exist in
the future, Newmont states that the .20011 citations must be
vacated.
The Secretary states that liquid mercury was found on the
cited equipment and that the hazard created thereby was not
immediately obvious to persons who may be in the area. The
Secretary contends that visible mercury creates a health hazard.
He arques that it is not necessary for MSHA to establish that the
cited condition is likely to cause death or serious injury in
order to show that a health hazard was present that required
posting.
I find that there are factual issues remaining with respect
to whether the ·cited mercury in the boneyard and containment area
created a healtQ hazard that was not immediately obvious. At
what level and in what form does mercury create a health hazard
that would require a warning sign under the standard? Ne"~ont's
deposition evidence does not present sufficient uncontested facts
to decide this issue. The record does not contain sufficient
information for me to apply the language of the standard to the
allegations in the citations.
IV.

ORDER

For the reasons set forth above, Newmont's second motion for
summary decision is DBNIBD.

Richard w. Manning
Administrative Law

2269

Distribution:

Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department

ot Labor, 71 Stevenson St., Suite 1110, San Francisco, CA 941052999

Henry Chajet, Esq., PATTON BOGGS , 2550 M Street, NW, Washinqton,
DC 20037-1350
Mark R. Malecki, Esq . , Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlinqton, VA 22203

RWM

2270

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

December 24, 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 96-6-M
A. C. No . 47-02846-05509
Mine Unit No . 4

YAHARA MATERIALS INC. I

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 97-4-M
A.C . No. 47-02846-0551 0 A

V.

Mine Unit No. 4
JAMES B. HOPPMAN,
Respondent
ORPER DISAPPROVING SETTLEMENT AGREEMENT

These cases are before me on Petitions for Assessment of
Civil Penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1 977, 30 U.S . C. § 815(d). The Secretary, by
counsel, has filed a motion to approve a settlement agreement.
Reductions in penalty from $2,500 . 00 to $1,250.00, for t h e
oper ator, and from $600 . 00 to $250.00, for Hoppman, are p r oposed.
The citation alleges a v i olation of section 56 . 11001 of the
Regul ations, 30 C.F.R . § 56. 11 001, because :
The foreman was observed on the red Portee stacker
conveyor gaining access to the head pulley so he could
grease the bearings. The conveyor was not equipped
with a walkway or hand rails on both sides of the belt.
A tagline was not a vailable to tie a safety belt or
line. The company has not provided a safe access for
persons greasing the head p u lley. A fall of about 12'
existed to the limestone floor. The foreman travel ed
the belt for a distance of about 50'. The conveyor
b elt was about 30 " wide. A fatality could occur from a
12' fall. The wind was gusting at the time the
violation occurred.

2271

The citation, issued under section 104(d) (1) of the Act, 30
U.S.C. § 814(d) (1), was found to result from the operator's
"unwarrantable failure" to comply with the regulation . The
petition against the foreman under section llO(c) o~ the Act, 30
U.S. C. § 820 (c) , requires a finding that the foreman "knowingly"
violated the regulation.
As justification for the settlement, the agreement provides
that:
A reduction from the original assessment is
warranted based on a review of the complete history of
the mine, the fact that there is no legal issue
involved in this citation/order, the size of the
operator, and the fact that the Respondent YAHARA
MATERIALS INC. accepts the underlying citation/order
(number 4310784). MSHA reduces the penalty for the
underlying citation/order from the original assessment
of $2500 to $1250 based upon the operator's good faith
in abating the cited condition immediately and its
strong commitment to enforcing compliance more
strenuously in the future. Further, the operator
furnished the Secretary with information regarding its
policies and practices related to safety procedures
around conveyors at Unit No . 4 .

Respondent JAMES R. HOPPMAN, employed by Yahara
Materials Inc. accepts the citation/order issued
against him under §llO(c). MSHA reduces the penalty
for the underlying citation/order from the original ·
assessment to $600 to $250 based on the reasons stated
above .
The Mine Act was passed with the intention that the
Commission "assure that the public interest is adequately
protected before approval of any reduction in penalties."
S . Rep. No. 95-181, 95th Cong . , 1st Sess. 45 (1977), reprinted in
Legislative History of the Federal Mine Safety and Health Act of
1977, at 633 (1978) .
In this connection, it is the judge's
independent responsibility to determine the appropriate amount of
penalty , in accordance with the six criteria set out in Section
llO(i) of the Act, 30 U. S . C. § 820(i). Sellersburg Stone Company
v. Federal Mine Safety and Health Review Commission, 736 F.2d
1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481
(April 1996).

2272

For this reason, Commission Rule 31(b) (3), 29 C.F.R .
2700.31(b) (3), requires that a motion to approve a settlement
include 11 [f]acts in support of the penalty agreed to by the
parties" so that the judge can verify that the reduced penalty is
appropriate. No such facts are provided with this agreement.
§

A "complete history of the mine" was not furnished with the
agreement . Nor was there any explanation of what precisely in
the history justifies the reduction in penalty . It is unclear
what "no legal issue involved" in the citation means, nor why
this should redound to the benefit of the Respondents. Nothing
is offered concerning how the size of the. operator supports a
further reduction in penalty. Finally, no reason is given for
why the Respondents' "acceptance" of the citation is a
justification for reducing the penalty .
Furthermore, the Respondents' history of violations, the
company's size and it's abatement efforts were presumably
considered, as required by section 100.3 of the Regulations, 30
C. F.R. § 100 . 3, when the penalty was originally assessed.
Therefore, absent extraordinary circumstances, which should be
thoroughly detailed in a settlement agreement, these factors
provide no bas i s for an additio~al reduction in penalty.
Likewise, a commitment to comply with the law in the future is
expected of everyone . Reinforcing that commitment is one of the
anticipated results of a citation. It is not a reason for
reducing a penalty. 1
The petitions in these cases allege that the foreman acted
knowingly and that the company ' s failure to adhere to the
regulation resulted from an unwarrantable failure. More than the
normal case, sufficient justification must be provided before
penalties can be reduced. Moreover, the deficiencies present in
these cases have previously resulted in settlement agreements
being disapproved . Fox River Stone Company, 18 FMSHRC 1312 (July
1996}; Peabody Coal Company, 18 FMSHRC 1309 (July 1996); Coal
Miners Incorporated, 18 FMSHRC 827 {May 1996} .
The Secretary has failed to include any facts to support the
penalty agreed on in either of these cases. Consequently, having
considered the representations and documentation submitted, I am
unable to approve the proffered set.tlement .

1

Providing "the Secretary with information regarding its
policies and practices related to safety procedures around
conveyors at· Unit No . 4 11 is not a reason for reducing a penalty.
This is so obvious it does not require further discussion.

2273

ORDER
Accordingly, it is ORDERED that the motion for approval of
settlement is DENIED . The parties have 15 days from the date of
this order to submit additional information to support the motion
for settlement. Failure to submit additional information, or t o
resubmit a new agreement, within the time provided will result in
the cases being scheduled for hearing .

\l!c1tt,(~

T . Todd H~;J{.o:w-

Administra ti ve Law Judge
(703)

756 - 6213

Distribution:
Gay F. Chase, Esq., Office of the Solicitor, U.S . Dept. of Labor,
230 Dearborn St., 8 t h Floor, Chicago, IL 60604 (Certified Mail )
Mr. Larry Burcalow, Yahara Materials Inc., P.O. Box 277,
Waunakee, WI 53597 (Certified Mail)
Mr. James R. Hoppman, 6433 Town Hall Rd., Sun Prair ie, WI
(Certified Mail)
/lt

2274
o U.S. GOVERNMENT PRINTING OFFICE : l 997-4 17-508/6338t

53590