JANUARY 1998

COMMISSION DECISIONS
01-15-98 Extra Energy, Inc.
01-30-98 Island Creek. Coal Company

WEVA 96-13
KENT 95-214

Pg. 1
Pg. 14

KENT 93-63
SE
97-251-M

Pg. 35
Pg. 38

KENT 97-257-D

Pg. 44

ADMINISTRATIVE LAW JUDGE DECISIONS
01-06-98 Sunny Ridge Mining Company, et al.
01-07-98 Doyal Morgan and others employed by Asarco, Inc.
01-15-98 Sec. Labor on behalf of Ronald Maxey
v. Leeco, Incorporated (not final)
01-27-98 Sec. Labor on behalf of Clay Baier v. Durango
Gravel (not final)
01-29-98 Arch of Kentucky
01-29-98 Tilden Mining Company, L.C.
01-29-98 Tom Sperry v. Granite Construction

WEST 97-96-DM Pg. 59
KENT97-197
Pg. 73
LAKE 97-42-RM Pg. 80
WEST 97-248-DM Pg. 91

ADMINISTRATIVE LAW JUDGE ORDERS
CENT 98-11

01-08-98 Georges Colliers Incorporated

i

Pg. 95

JANUARY 1998

Review was granted in the following case during the month of Tanuary:

Newmont Gold Company v. Secretary of Labor, MSHA, Docket No. WEST 97-293-RM,
(Judge Cetti, December 17, 1997)

There were no cases filed in which review was denied.

ii

COMMISSION DECISIONS

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

January 15, 1998

SECRETARY OF LABOR,
MINE SAFETY ANP HEALTH
ADMINISTRATION (MSHA)
Docket No. WEV A 96-13

\'.

EXTRA ENERGY, INC.

BEFORE: Jordan. Chairman; Marks. Riley and Verheggen, Commissioners 1
DECISION
BY: Jordan. Chairman: Marks and Riley. Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
I 977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or ··Act"). At issue is whether Administrative
Law Judge Gary Melick properly determined that production-operator Extra Energy, Inc. (''Extra
Energy"') was liable for a violation of 30 C.F.R. § 77.404(af by its independent contractor, which

1

Commissioner Beatty assumed office after this case had been considered and decided at
a decisional meeting. A new Commissioner possesses legal authority to participate in pending
cases, but such participation is discretionary. Mid-Continent Resources, Inc., 16 FMSHRC 1218,
1218 n.2 (June 1994). In the i.nterest of efficient decision making, Commissioner Beatty has
elected not to participate in this matter.
2

Section 77.404(a) provides:
Mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or
equipment in unsafe condition shall be removed from service
immediately.

30 C.F.R. § 77 .404(a).

1

resulted in a fatal a~cident, and that Extra Energy violated 30 C.F .R. § 50.103 by failing to report
the accident. 18 FMSHRC 1489 (August 1996 ) (ALJ). The Commission granted Extra
Energy's petition for discretionary review of the judge's decision. For the reasons that follow,
we affinn the judge's detenninations.
I.
Factual and Procedural Background
Extra Energy operates the Eckman-Page Strip and Auger Mine, a surface coal mine in
McDowell County, West Virginia. 18 FMSHRC at 1489. Melvin Brian Day, Jr. ("Brian"), a
security guard with Neal and Associates, Inc. ("Neal"), was assigned to provide security at the
mine from 6:00p.m. to 6:00a.m. on Friday. Saturday and Sunday nights. !d.
On Sunday, April 9, 1995, Brian failed to come home from work at his usual time. !d.
His father, Melvin Day (''Melvin"). and brother, Jeffrey Shawn Day ("Shawn..), went to the mine
looking for Brian. !d. at 1489-90. They found Brian·s car on a hill near the stockpiles. Tr. 72.
The car was running. the windows were rolled up, and the doors were locked. 18 FMSHRC at
1490. Brian was seated in the car in a semi-reclined position. /d.; Tr. 57. Melvin and Shawn
gained access to the car by breaking the sunroof. 18 FMSHR~ at 1490. After trying
unsuccessfully to call for help by CB radio. they took Brian· s body to a market in a nearby town
where they called an ambulance. /d.
After the ambulance arrived, MelYin and Shawn were infom1ed that nothing could be
done with Brian's body until the police arrived. Tr. 36. The police arrived, released Brian's
body to the ambulance crew, and traveled to the accident site with Melvin and Shawn. 18
FMSHRC at 1490. The police examined the car, started the engine and took photographS. Tr.
58. When the engine was started, one of the policemen commented on the odor of the fumes
released by the car. Tr. 59. After their examination, the police allowed Shawn to drive the car
off mine property. 18 FMSHRC at 1490.
Later that day, James Altizer, Brian's supervisor at Neal, received a telephone call that
Brian had died at the mine site. /d. Altizer traveled to the mine, picking up another security
guard who had a key to the mine, along the way. Tr. 124. When they arrived at the gate, they
observed that it was already open. 18 FMSHRC at 1490. After they were unable to find anyone
on the premises, they left for the police station. Tr. 125. On the way, they met Judy Neal and
Harlis Mitchell, the vice-president and general manager, respectively, ofNeal, who confinned
that an accident had occurred. Tr. 126; E. Post-Hr'g Br. at 6. The four then traveled to a local
market to make telephone calls. Tr. 127, 131.

3

Section 50.10 provides in part that "[i]f an accident occurs, an operator shall
immediately contact the MSHA District or Subdistrict Office having jurisdiction over its mine."
30 C.F.R. § 50.10.

2

At arouni:l 4:00 or 5:00p.m. that day, Altizer called Extra Energy Superintendent Steve
Haynes to inform him of Brian's death. 18 FMSHRC at 1490; Tr. 133-35. Altizer testified that
he told Haynes that it appeared, from information he had received, that one of their security
guards had died of carbon monoxide poisoning at the job site. Tr. 134, 153-54. According to
Altizer, Haynes responded that "he would take it from there." 18 FMSHRC at 1490. Altizer also
informed Haynes that a car window had been broken to remove Brian from the car and that the
police had investigated the site. Tr. 153-54, 299.
The next morning on AprillO, at approximately 5:30a.m., Haynes visited the mine to
look for broken glass in order to determine where Brian had been found. Tr. 299-300. Haynes
was unable to.find any glass. Tr. 300.
At approximately 9:00a.m., while at another mine site, Haynes v..'as contacted by an
inspector with the West Virginia Department of Mines. Eddie Miller. Tr. 174, 302-03. Haynes
testified that Miller asked him questions about the incident and that Haynes replied that he had
just returned from the site and that he had been unable to find any broken glass. Tr. 303. He
stated that Miller had replied that they did not know anything either and that he had heard that
they had found Brian at the local market, in a nearby town, or near the load-out at the foot of a
hill at the mine. Tr. 303.
Later that morning, Haynes called the offices ofNeal on two occasions seeking to speak
with Judy NeaL "vho was not present at either time. Tr. 30 I . The second time he called, Haynes
spoke with Neal General Manager Mitchum who offered no further information on the location
of the accident. Tr. 301; E. Br. at 22. In addition, someone from Extra Energy's office contacted
the police about the incident, but the police refused to release any information. Tr. 303.
At approximately I :00 p.m. that day, Haynes was contacted by an inspector with the
Department of Labor's Mine Safety and Health Administration ("MSHA"), David Radcliff. Tr.
172-73, 300. Inspector Radcliff had been informed about the accident that day by Randolph
Richardson, who had provided safety training to security guards employed by Neal. Tr. 230.
Haynes was unable to provide Inspector Radcliff with any information. Tr. 301.
At approximately 7:00p.m. that evening, while driving home, Haynes saw Altizer and
Mitchum speaking, their cars parked beside the road. Tr. 305. Haynes joined them and asked
whether they knew where Brian had been found. Tr. 305. They replied that they did not. Tr.
305.
On April 11, Inspector Radcliff assigned the accident investigation to William Uhl, an
investigator with MSHA. 18 FMSHRC at 1490; Tr. 172-73. Inspector Uhl first contacted the
West Virginia Department ofMines and spoke with Miller. 18 FMSHRC at 1490; Tr. 174.
Miller informed him of the approximate location where Brian had been found, and that the
coroner's report indicated that Brian had died from carbon monoxide poisoning. Jd.

3

Later that day, Inspector Uhl contacted Haynes at the mine. Tr. 306. Haynes testified
that they traveled the county road adjacent to the mine and examined the gates and that he had
shown Inspector Uhl what he had done the preceding day. Tr. 306. Haynes testified that there
was still no indication of where Brian's car had been found. Tr. 306.
During the course of his investigation, Inspector Uhl determined that Brian's car had a
damaged exhaust system and rusted-out areas that had allowed carbon monoxide to enter the
driver's compartment. Tr. 217. He stated that the exhaust leaks were audible, and that there was
an odor to the exhaust fumes. Tr. 204, 206. Inspector Uhl stated that a carbon monoxide
detector detected 900 parts per million ("ppm") of carbon monoxide in the driver's compartment
after the car· s motor had run for 15 minutes. 18 FMSHRC at 1491. He stated that 500 ppm of
carbon monoxide can cause a fatality over a three-hour period of time. Tr. 207. The car was also
missing a valid state inspection sticker. 18 FMSHRC at 1496.
Inspector Uhl issued a citation to Extra Energy alleging a significant and substantial
\'iolation of section 77 .404(a). Gov't Ex. 20. He designated the level of negligence as low
because Brian· s car was operated only during non-production hours and was rarely seen by Extra
Energy. 18 FMSHRC at 1491. In addition, he issued a citation to Extra Energy alleging a
violation of section 50.1 0. Jd. at 1493~ GoY't Ex. 21. Finally. Inspector Uhl issued two citations
w Neal alleging violations of the same standards. Tr. 238; E. Post-Hr' g Br. at 7. The inspector
designated a higher level of negligence in the citations issued to Neal. E. Post-Hr'g Br. at 7.
N~al did not contest the citations. Tr. 238.
Extra Energy challenged the citations, arguing that it was not properly cited for the
violation of section 77.404(a) committed by Neal, and that it did not violate section 50.1 0. 18
FMSHRC at 1493-96. The matter proceeded to hearing before Judge Melick.
The judge concluded that Extra Energy violated sections 77.404(a) and 50.1 0. ld. at
1496. First. he rejected Extra Energy's argument that the Secretary abused her discretion in
citing Extra Energy for violating section 77.404(a). !d. at 1495-96. Although he found that
MSHA ·s ·'Enforcement Policy and Guidelines for Independent Contractors," set forth in its
Program Policy Manual (Vol. III, Part 45) ("Guidelines") were either meaningless or had not
been satisfied, the judge concluded that there were sufficient grounds for citing Extra Energy
because it had contracted with Neal for security, and the car had an obviously defective exhaust
system and no current inspection sticker. !d. In addition, the judge rejected the operator's
argument that Brian was a trespasser and not a "miner" within the meaning of section 3(g) of the
Mine Act, 30 U.S.C. § 802(g), and that it, therefore, was not responsible for his actions. Jd. at
1494. He also found Extra Energy strictly liable for the reporting violation because a fatal
accident had occurred at the mine and Extra Energy had failed to report it to MSHA. !d. at 1496.
In addition, the judge credited Altizer's testimony that he had informed Haynes that Brian had
died of carbon monoxide poisoning at the mine. ld. However, the judge concJuded that
negligence for both violations was low due to mitigating circumstances. !d. Accordingly, the
judge affirmed both citations and assessed civil penalties of $500 and $50 for the violations of

4

sections 77.404(a) and 50.10, respectively. Jd. at 1497.
The Commission subsequently granted Extra Energy's petition for review of the judge's
decision and heard oral argument.
II.
Disposition
A.

Equipment Violation
1.

\\'hether the Secretarv Abused Her Discretion by Citing Extra Energy

Extra Energy argues that the judge erred in finding it liable for violating section 77.404(a)
after he concluded that the Guidelines were either meaningless or had not been satisfied. E. Br.
at 6-14. It asserts that the Commission has, in effect, adopted the Secretary·s Guidelines, and
that none of the criteria had been satisfied. /d. at 11-13. The Secretary responds that she has
unrevie,~·able discretion to cite production-operators, independent contractors, or both. S. Br. at
I 0-19. She submits that. even if her decision to cite Extra Energy were reviewable. her decision
was within the wide discretion recognized by the Commission. /d. at 19-21.
The Commission and various courts have long recognized that, under the Mine Acfs
scheme of strict liability, an operator, although faultless itself, may be held liable for the acts of
its independent contractor. Bulk Transp. Services, Inc., 13 FMSHRC 1354, 1359-60 (September
1991 ); C)']Jrus Indus. Minerals Co. v. FMSHRC, 664 F.2d II 16, 1119 (9th Cir. 1981 ). In
instances of multiple operators, the Secretary has "wide enforcement discretion" and may
proceed against an operator, independent contractor, or both. Mingo Logan Coal Co., 19
FMSHRC 246, 249 (February 1997), aff'd per curiam, No. 97-1392 (4th Cir. January 8, 1998);
Consolidation Coal Co .. 11 FMSHRC 1439, 1443 (August 1989). The Commission has
determined "that "its review of the Secretary's action in citing an operator is appropriate to guard
againstabuseofdiscretion." W-PCoalCo., 16FMSHRC 1407,1411 (July 1994). A litigant
seeking to establish an abuse of discretion bears the heavy burden of establishing that there is no
evidence to support the Secretary's decision or that the decision is based on an improper
understanding ofthe law. Mingo Logan, 19 FMSHRC at 249-50 n.5.
The Commission has considered various factors in determining whether an enforcement
action constitutes an abuse of the Secretary' s discretion, including the operator's day-to-day
involvement in the mine's operations (Mingo Logan, 19 FMSHRC at 250; W-P, 16 FMSHRC at
1411 ), whether the operator is in the best position to affect safety (Bulk, 13 FMSHRC at 1361)
· and whether the enforcement action is consistent with the purpose and policies of the Act (Old
Ben Coal Co., 1 FMSHRC 1480, 1485 (October 1979)). In addition, the Commission has
considered whether any of the criteria of the Secretary's Guidelines for proceeding against an
operator have been satisfied. See, e.g., Bulk, 13 FMSHRC at 1360; Mingo Logan, 19 FMSHRC
at 250. While failure to satisfy the criteria is not fatal to an enforcement decision (Mingo Logan,

5

19 FMSHRC at 250), the Commission has relied upon satisfaction of the criteria in concluding
that there was no abuse (e.g., Bulk, 13 FMSHRC at 1360).4
Here, Extra Energy had substantial involvement in the day-to-day operations at the mine.
As the production-operator responsible for day-to-day mining activities, Extra Energy contracted
with Neal for security services. Tr. 289-91. In obtaining Neal's services, Haynes had described
the guard' s duties and the areas to be patrolled. Tr. 289-91. Extra Energy also retained some
supervision over the security guards in that it was responsible for reviewing reports s~bmitted by
the guards describing the area patrolled and whether the area had been secure. Tr. 316-17, 33 334; Gov't Ex. 1.
In addition, contrary to Extra Energy's assertions, there is evidence in the record
satisfying the first two criteria of the Secretary's Guidelines.5 Extra Energy did not provide the
guards with a structure to protect them from the elements during their shift, leaving the guards'
vehicles as the only available shelter. Tr. 121, 322. Despite the guards· dependence upon their
cars. Extra Energy took no measures to ensure that the cars were safe, either by inspecting them
itself or by requiring that Neal did so. Tr. 240, 265, 267. As a result, the obvious defects in
Brian's car were not discovered. Through its failure to inspect or ensure that the security guards'
Yehicles were inspected. Extra Energy contributed to the equipment violation and to the
continued existence of the violation.
Given Extra Energy's involvement in the mine's day-to-day affairs, and its complete
failure to inspect or ensure that the vehicles were inspected, we conclude that Extra Energy has
failed to prove that "there is no evidence to support the (Secretary's] decision" to proceed against
it. Mingo Logan, 19 FMSHRC at 249-50 n.5. Accordingly, we affirm the judge's conclusion
that the Secretary did not abuse her discretion in citing Extra Energy for violating section
77.404(a). 6

4

The Commission has repeatedly recognized that the Guidelines are policy statements
and are not binding on the Secretary. Mingo Logan, 19 FMSHRC at 250; D.H Blattner & Sons,
Inc., 18 FMSHRC 1580, 1586 (September 1996), appeal docketed, No. 96-70877 (9th Cir. Oct.
21, 1996).
5

We find improperly speculative the judge's conclusion that the first two criteria are
.. unworkable and essentially meaningless because it can always be said that a production operator
contributed by omission to a violation on its premises by one of its contractors." 18 FMSHRC
at 1495.
6

In light of our conclusion, as in Mingo Logan, 19 FMSHRC at 251 n. 7, we do not reach
the Secretary's argument that she has unreviewable discretion to cite the operator, independentcontractor or both.

6

2.

Whether Brian was a Miner Rather than a Trespasser

Extra Energy argues that substantial evidence7 does not support the judge's fmding that
Brian was a "miner" within the meaning of section 3(g) of the Act,8 rather than a trespasser. E.
Br. at 15-18. Extra Energy relies upon Haynes' testimony that he had instructed Altizer and
Brian that Neal's guards were to remain outside the mine gates and to conduct their patrols along
the adjacent county road. ki. at 15-16. It asserts that the judge failed to consider Altizer's
testimony that Brian's duties had changed so that he was no longer required to patrol the auger
on mine property, and the testimony of Donald Graham, an employee of Extra Energy, that
unbroken tracks on the access road to the auger indicated that the auger had not been patrolled.
I d. at 16-17. The Secretary responds that the judge properly determined that Brian was a miner.
S. Br. at 22-15.
In reaching his determination that Brian was a miner, the judge discredited Haynes'
testimony that he had instructed Brian that he was not allov.,ed on mine property. 18 FMSHRC
at 1494. A judge's credibility determinations are entitled to great weight and may not be
oYei1urned lightly. Farmer v. Island Creek Coal Co .. 14 FMSHRC 153 7. 1541 (September
1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (December 1981 ).
As the judge found, Haynes· testimony that Brian was not authorized to be on mine
property is contradicted by evidence that Brian had been given a key to the mine property in case
of emergencies. Tr. 318-19. Haynes admitted that Brian would need the key to remove
trespassers from the property. Tr. 337. Haynes also acknowledged that the gates were probably
on mine property and that it was part of Brian's duties to ensure that the gates \:vere locked. Tr.
338-40. Haynes conceded that he did not request that Brian return the key, even after he had
discovered Brian on mine property on two occasions. Tr. 321.
In addition, Haynes • testimony that Brian was a trespasser is not supported by the reports
that Brian submitted detailing the areas he had patrolled and wh~ther they were secure. Tr. 316;
Gov't Ex. 1. The reports were reviewed by an employee at another Extra Energy site, who

7

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's) conclusion."' Rochester & Pittsburgh
Coal Co., 11 FM~HRC 2159,2163 (November 1989) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
8

Section 3(g) of the Mine Act defines a miner as "any individual working in a ... mine."
30 u.s.c. § 802(g).

7

forwarded them to Hay1.es, if there were any problems.9 Tr. 316-17.333-34. The reports
indicated that Brian had been patrolling the stockpiles and auger on the mine property on a daily
basis. Tr. 316.
Furthermore, the testimony of Graham and Altizer relied upon by Extra Energy does not
necessarily establish that Brian was not allowed on mine property. Altizer did not testify that
Brian was not authorized to patrol the auger. Rather, Altizer testified that Brian had stated that
his duties had changed in that Brian was supposed to check the auger and, rather than staying
there, he could move to a different location, such as the hill between two stockpiles, -where he
had better CB communications. Tr. 107, 147, 157-58. Moreover, evidence that Brian did not
travel the access road to the auger does foreclose the possibility that Brian ensured the security of
the auger by another means while on mine property, such as by watching the entrance to the
auger access road. See Tr. 335.
We do not find the extraordinary circumstances requiring that we overturn thejudge·s
credibility determination. Accordingly, we conclude that the judge's determination that Brian
was a miner within the meaning of the Act is supported by substantial evidence. Because Extra
Energy did not contest any other basis for the equipment vio1ation,10 we affirm the judge's
1inding that Extra Energy violated section 77 .404(a). 11
B.

Reportin~ Violation

Extra Energy argues that thejudge·s finding of a reporting violation was erroneous as a
matter of Jaw and \vas not supported by substantial evidence. E. Br. at 18-24. It submits that
Extra Energy's duty to contact MSHA did not arise until it was aware that a reportable accident

9

Although Haynes testified that he had never reviewed the reports prior to the accident,
he admitted that it was his responsibility to review the reports if there were problems. Tr. 31617.
10

In its petition for discretionary review, Extra Energy contested the violation on the
basis that Brian's car was not equipment, but did not address the argument in its brief. PDR at 89. The Commission need not address this argument because Extra Energy has abandoned it.
RNS Servs., Inc., 18 FMSHRC 523, 526 n.6 (April 1996). We also note that the question was
raised for the first time in Extra Energy's petition, and that the judge was not afforded an
opportunity to pass upon it. 18 FMSHRC at 1496; 30 U.S.C. § 823(d)(2)(A)(iii).
11

Given our conclusion, we need not reach the Secretary's arguments that, even if Brian
had been outside the gates, he would still be on mine property because 8: mine includes ..private
ways and roads appurtenant thereto," (S. Br. at 24-25) and that because the Mine Act is a strict
liability statute, an operator is strictly liable for violations that take place at its mine even if it was
the victim of an unrelated party's actions (ld. at 25, citing Secretary ofLabor v. Miller Mining
Co., 713 F.2d 487 (9th Cir. 1983)).

8

had occurred, and that it did not have a reasonable opportunity to ascertain whether the accident
had occurred on mine property. ld at 18-21. Extra Energy m·aintains that, in any event, Haynes'
investigative actions upon being informed ofthe accident were reasonable. ld at 21-25. The
Secretary responds that substantial evidence supports the judge's determination that Extra Energy
violated section 50.1 0. S. Br. at 26-27.
Section 50.10 requires operators to report immediately to MSHA the occurrence of
certain "accidents," as.defined in section 50.2(h). In relevant part, section 50.2(h) includes
within the definition of"accident," the "death of an individual at a mine." 30 C.F.R. ·
§ 50.2(h)(l ). Because section 50.10 contemplates that operators must first determine whether
particular events constitute reportable accidents within the meaning of section 50.2(h), section
50. 10 "necessarily accords operators a reasonable opportunity for investigation into an event
prior to reporting to MSHA.'' Consolidation Coal Co., 11 FMSHRC 1935, 1938 (October 1989).
Such "internal investigation ... must be carried out by operators in good faith without delay and
in light of the regulation's command of prompt, vigorous action." ld.
The judge failed to analyze the alleged violation against this framework. Rather. the
judge affirmed the citation based on his finding that Altizer had informed Haynes that Brian had
died of carbon monoxide poisoning at the mine, and on his conclusion that Extra Energy was
strictly liable for the violation based on undisputed evidence that mi accident had occurred on
mine property and Extra Energy had failed to report it. 18 FMSHRC at 1496. Nonetheless, we
find substantial evidence in the record to support his holding that Extra Energy violated section
50.10.
In applying the Commission's test, reasonable minds may reach different conclusions as
to whether Haynes' actions in waiting until the morning of April l 0 to begin an investigation by
visiting the mine to look for broken glass amounted to reasonable investigative efforts. Evidence
of Haynes' actions after his initial visit to the mine, however, supports only the conclusion that
Haynes failed to investigate and report the accident as required by section 50.10.
On the morning of April I 0, after he failed to find broken glass at the mine site, Haynes
did not vigorously continue his investigative efforts until he discovered the circumstances of
Brian's death. Rather, he returned to his work duties, traveling to another mine site. Tr. 300,
302-03. Although he called N.e al's offices, when Mitchum informed him that he knew nothing
more about the accident than did Haynes, Haynes did not further pursue the basis for Altizer's
statement that Brian had died at the mine site. Tr. 301. His next significant contact with Neal
personnel occurred only by happenstance, when Haynes noticed Altizer and Mitchum talking on
the side of the road that Haynes traveled on his way home. Tr. 305. Haynes did not contact the
sheriffs office either in person or by telephone even after the sheriffs office refused to release
information to the .Extra Energy employee who had placed the call. Tr. 331-32. Haynes did not

9

attempt to reach Brian's family or the hospital to find out more information about the accident. 12
Tr. 304, 331. In addition, even if the involvement of state and local police led Haynes to believe
that the incident had occurred off mine property, as argued by Extra Energy, Haynes should been
alerted that it was appropriate to contact MSHA after he discovered that state mine inspectors
were investigating the accident on the morning of April 10. Tr. 174, 302-03.
Such actions do not demonstrate an investigation carried out "in good faith without delay
and in light of the regulation's command of prompt, vigorous action." Consolidation, 11
FMSHRC at 1938. Because the evidence of Haynes' actions after his initial inspection on April
10 supports only the conclusion of violation~ remand for reconsideration of the issue by the judge
is unnecessary. See American Mine Sen's.. Inc., 15 FMSHRC 1830, 1834 (September 1993)
(remand Uimecessary where reconsideration of issue by judge would serve no purpose).
Accordingly. we affirm in result thejudge·s determination that Extra Energy violated section
50.10.
III.
Conclusion
For the foregoing reasons, we affirm the judge· s determinations that Extra Energy
Yiolated sections 77.404(a) and 50.1 0.

Marc Lincoln Marks, Commissioner

12

As noted by Extra Energy, Haynes could not have called Brian's family because they
did not have a telephone. E. Br. at 23; Tr. 62. However, Haynes did not attempt to reach Brian's
family in person or by CB radio.

10

•

Commissioner Verheggen, concurring in part and dissenting in part:
I agree with and join in my colleagues' decision except Sections II.A.J at n.5 and II.B. I
agree with my colleagues' conclusion that the judge properly found "that the Secretary did not
abuse her discretion in citing Extra Energy." Slip op. at 6. Although my colleagues state that
they "do not reach the Secretary's argument that she has unreviewable discretion to cite the
operator, independent-contr:actor or both" (id. at 6 n.5), in effect they do reach the issue and
reject the Secretary's ~rgument by reviewing her exercise of discretion in this case. I~ one
breath, my colleagues say that "the Secretary did not abuse her discretion" here, and even cite a
Commission case that unequivocally holds that Commission "re\'iew of the Secretary's action in
citing an operator is appropriate to guard against an abuse of discretion." Slip op. at 5 (citing Wp Coal Co., 16 FMSHRC 1407. 1411 (July 1994)). In the very next breath, my colleagues claim
that they need not address the Secretary's assertion that her discretion is unreviewable. Slip op.
at 6 n.5. The note my colleagues drop from their holding and the holding itself contradict each
other. I therefore write separately on this issue to disassociate myself from the note.
Furthermore. I disagree with the Secretary·s contention that she "has virtually
unreYiewabk discretion in multiple operator situations to decide which operator to cite for a
violation of the Act.·· S. Br. at 17. 1 I stand by the Commission's prior pronouncements on this
subject. and would reaftirm at every opportunity the principle that "review of the Secretary·s
action in citing an operator is appropriate to guard against an abuse of discretion." W-P Coal
Co.. 16 FMSHRC at 1411. 1 believe it is vital for the Commission to faithfully discharge its duty
to ... develop a uniform and comprehensive interpretation· of the Mine Act... Thunder Basin Coal
Co. r. Reich. 510 U.S . 200. 21-+ (1994) (citing Nomination Hearing Before the Senate Comm. on
Human Resources. 95th Cong., 2d Sess. 1 (1978)). Congress explicitly charged the Commission
"with the responsibility ... for reviewing the enforcement activities of the Secretary ... [to)
provide guidance to the Secretary in enforcing the [Mine Act)." Nomination Hearing, supra, at
1. Such review is paramount to guard against mischief- or worse - in the Secretary's exercise
of her prosecutorial discretion. C.f Minerals Exploration Co., 8 FMSHRC 477, 486-87 (April
1986).
I also dissent from Section Il.B of my colleagues' decision affirming in result the judge's
conclusion that Extra Energy violated section 50.1 0. I agree with my colleagues that the judge
failed to analyze the alleged violation against the framework established by the Commission in
ConsolidaTion Coal Co., 11 FMSHRC 1935, 1938 (October 1989), which affords operators "a
reasonable opportunity for investigation into an event prior to reporting to MSHA." I disagree,
however, with my colleagues' conclusion that the record evidence supports only the finding of a
violation, thus obviating the need for remand. Slip op. at 9. I believe there is conflicting
evidence as to whether Extra Energy violated section 50.1 0, the resolution of which should be

1

The Secretary herself admits that the Commission has the authority to review her
enforcement discretion to guard against "invidious and unconstitutional discrimination." S. Br.
at 13 n.6.

11

made by the judge because the "' ALJ has sole power to ... resolve inconsistencies in the
evidence."' Wei/more Coal C01p. v. FMSHRC, No. 97-1280, 1997 WL 794132, at *3 (4th Cir.
Dec. 30, 1997) (quoting Grizzle v. Picklands Mather & Co., 994 F.2d 1093, 1096 (4th Cir.
1993)).
The Commission held in Consolidation Coal Co. that "[t]he immediateness of an
operator's notification under section 50.10 must be evaluated on a case-by-case basis, taking into
account the nature of the accident and all relevant variables affecting reaction and reporting."
11 FMSHRC at 1938. In this case, such "relevant variables" include the fact that Extra Energy
Superintendent Haynes was unable to determine whether the accident had occurred on mine
property because the vehicle had been removed and he was unable to find any broken glass (Tr.
~99-300); that Neal and Associates, the victim ' s employer, was unable to provide Haynes with
any definitive information as to where the accident occurred (Tr. 301); that the victim's family
could not be reached by telephone (Tr. 62-63 ); and that the state police, who first investigated the
accident. would not release any information (Tr. 303).2 These facts. in addition to those raised by
my colleagues, should be evaluated by the judge in order to determine whether Haynes·
inYestigation was in fact carried out ·'in good faith and without delay:· 11 FMSHRC at 1938.
Accordingly, I would vacate thejudge·s decision on this issue and remand for further
proceedings.

Theodore F. Verheggen, Co

2

Indeed, the very involvement of the state and local police, which according to MSHA
do not have jurisdiction over accidents occurring on mine property (Tr. 246-47), suggests that
Haynes' belief that the accident did not occur at the mine may have been reasonable.

12

Distribution
Yoora Kim, Esq.
Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203 .

L. Joseph Ferrara, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Suite 400
Washington, D.C. 20037
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

13

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

January 30, 1998

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 95-214

V.

ISLAND CREEK COAL COMPANY

BEFORE: Jordan. Chairman; Marks, Ri ley and Yerheggen. Commissioners 1

DECISION
BY: Jordan, Chairman; Marks and Riley, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U .S.C. § 80 I et seq. ( 1994) ("Mine Act" or ·'Act"). At issue is the finding of Administrative Law Judge T. Todd Hodgdon that an escape of methane onto a working section from a
cut-through core drill hole did not constitute an unplanned inundation of gas, and that therefore
Island Creek Coal Company ("Island Creek") did not violate 30 C.F .R. § 50.1 0, which requires
operators to immediately report certain accidents to the Department of Labor's Mine Safety and
Health Administration ("MSHA"). 18 FMSHRC 1498 (August 1996) (ALJ). The Commission
granted the Secretary "of Labor's petition for discretionary review challenging the judge's
determination. For the reasons that follow, we reverse and remand for assessment of an
appropriate civil penalty.

1

Commissioner Beatty assumed office after this case had been considered and decided at
a decisional meeting. A new Commissioner possesses legal authority to participate in pending
cases, but such participation is discretionary. Mid-Continent Resources, Inc., 16 FMSHRC 1218,
1218 n.2 (June 1994). In the interest of efficient decision making, Commissioner Beatty has
elected not to participate in this matter.

14

I.

Factual and Procedural Background
Island Creek operates the Ohio No. 11 Mine, an underground coal mine with four
working sections. 18 FMSHRC at 1500. At around 6:45 p.m. on April 7, 1994, while mining a
crosscut between the No. 5 and 6 entries on the 004 section, a continuous miner cut through a
was
core drill hole. 2 !d.; Tr.. 41. The core drill hole went from the No. 11 seam, where mining
taking place, to the No. 9 seam below it. 18 FMSHRC at 1500. The No. 9 seam had been sealed
for years and contained methane gas under pressure. /d.; Gatlin Oep. 15-16, 19.3
~

When the cut-through occurred, methane from the No.9 seam poured onto the 004
section. 18 FMSHRC at 1500. The continuous mining machine shut down when its methane
monitor detected 1.5 to 2 %methane. Tr. 25; Gatlin Oep. 12. Eleven miners were at work on the
004 s~ction at the time of the cut-through. Tr. 23.
The second shift foreman. John Cambron, measured 3 to 3.5% methane in an area
adjacent to the crosscut where the core drill hole was cut. 18 FMSHRC at 1500: Tr. 135.
Cambron then directed that the ventilation curtain be extended in the No. 5 entry and, after 3
minute~. took a methane reading that showed less than 1 %methane. 18 FMSHRC at 1500; Tr.
135-37. Cambron then sent the crew to the No.5 section, except for three miners whom he
retained to help him deal with the methane. Tr. 137. Next. Cambron had timbers set on the
miner itself so that ventilation curtains could be hung to deflect methane away from the immobilized equipment. Tr. 137-40. At about 9:00p.m., before attempting to move the miner,
Cambron called his superior, Tommy Gatlin, General Mine Foreman, to inform him ofthe

2

As the judge explained:
A "core drill" is "a mechanism designed to rotate and cause
an annular-shaped rock cutting bit to penetrate rock formations,
produce cylind~cal cores of the formations penetrated, and lift
such cores to the surface, where they may be collected and examined." Thus, a "core drill hole" is the hole remaining after the core
has been removed.

18 FMSHRC at 1500 n.l (quoting U.S. Dep't of Interior, Dictionary of Mining, Mineral, and
Related Terms 266 (1968)).
3

General mine foreman Tommy Gatlin did not attend the April 10, 1996, hearing in this
matter. Tr. 26-32. Gatlin was deposed on May 7, 1996, and his deposition was admitted into
evidence as Gov't Ex. 3. Tr. 213.

15

situation."' Tr. 138; Gatlin Dep. 4-5, 13; Gov't Ex. 2, at p.l. Cambron told Gatlin that he thought
he had hit a "bleeder," and that he would keep him informed. Gatlin Dep. ll. Gatlin understood
Cambron to mean that methane was being released from the coal being mined. !d.
Cambron then attempted to move the miner, which was being operated by remote control,
out of the crosscut. Tr. 139-40. Cambron had power restored to the miner and began backing it
out of the crosscut, but after moving it about I 0 feet, the timbers holding the ventilation curtain
became dislodged, the curtain fell, and the miner shut down due to higher methane ~oncentra
tions recorded by the miner's methane monitor. Tr. 140. The timbers were then reset and the
curtain rehung, the methane level dropped below 1 %, and Cambron again attempted to move the
miner out of the crosscut. I d. Again, the miner moved about 10 feet before the timbers and
curtain fell and the miner shut down. Tr. 140-41. Cambron once again had the timbers and
cu11ain replaced and. on the third attempt, was able to back the miner out of the crosscut. Tr.
141 . He then had timbers set and curtains hung to within about 9 feet of the source of the
mcthunc. /d. The volume of air was also increased from 16.000 ctin to over 29,000 cfm. Tr. 65.
147. Aside from the occasions when the ventilation controls were dislodged. and the 3.5%
reading when Cambron initially came onto the section, Cambron did not encounter more than
1 %methane at any point where he tested for methane. Tr. 143.
At about midnight, Cambron called Gatlin to update him on efforts to control the
methane. Gatlin Dep. 13-14. He reported that stoppings were being built, and that the source of
the methane was a ''bore hole."~ /d. Gatlin then proceeded to the mine. arriving at 12:45 a.m.
on April 8. !d. at I 4. When he got to the section, Gatlin could hear the methane blowing out of
the core drill hole from 200 feet away. I d. at 15. He then realized that the situation was more
serious than Cambron had first indicated, because this was not a bleeder, meaning "liberation of
methane built up in the coal bed. Instead, it was a core drill[] hole that was drilled below the No.
11 seam, and [Gatlin] wasn't sure how far down it went." !d. at 15-16. Cambron testified that,
in 25 years of mining, he had never cut into a hole that blew as hard, or for as long, as this one.
T r. 162. Gatlin took several methane readings while on the section. Gatlin Dep. I9. On the
return side of the wirig curtain, he encountered 1.5 or 1.6 % methane. /d. Standing on top of the
hole, Gatlin measured 5 %methane, in.the explosive range. ld. at I9-20. Gatlin then shut off his
detector. !d. at 19.
Gatlin made several unsuccessful attempts to staunch the flow of methane from the core
drill hole. Gatlin Dep. 17-18. First, he tried to plug the hole with a trolley pole. /d. at 17. When
that proved unsuccessful, he tried to cover the hole with a board and piece of steel pipe. ld. That
attempt also failed; Gatlin couldn't actually see the hole because the escaping methane blew coal
fines, mixed with water that had come from the roof and accumulated on the floor, in Gatlin's
face. ld. at 17-I8, 26-27.

4

Gatlin was at home at the time of the incident. Gatlin Dep. I 0-11.

s Witnesses used the terms "bore hole" and "core drill hole" interchangeably.

16

At 1:30 a·.m. and 5:45· a.m. on April 8, Gatlin telephoned his superior, David Bruce
Beaven, Superintendent ofthe Ohio No. 11 Mine, who was in Mt. Vernon, Illinois, at the time.
Gatlin Dep. 24-25; Tr. 169. He related the incident to Beaven, and the two concluded that,
because there were no injuries and no hazard to employees, MSHA need not be called. Tr. 18182; Gatlin Dep. 25. However, Beaven told Gatlin to inform MSHA "as a courtesy" because the
incident was a little "out of the usual." Tr. 183-84. Beaven himself reported the incident to
Island Creek's Regional Manager and Regional Safety Director. ld at 184, 198.

.
.
At around 7:00a.m. on April 8, Gatlin called the local MSHA office as a "courtesy" to
report the incident. 18 FMSHRC at 1500. MSHA Inspector Robert Jaco thereupon issued a
verbal withdrawal order under section 103(k) ofthe Mine Act, 30 U.S.C. § 813(k), and he and
MSHA Inspector Archie Co bum proceeded to the mine. !d. at 1500-01; Gatlin Dep. 28. When
they reached the No.2 entry on 004 section, they could hear a "roaring sound" coming from the
face. Tr. 42. Inspector Coburn took a methane reading in the last open crosscut between the No.
5 and 6 entries and recorded I to 1.5 % methane. /d. at 65-66. Inspector Jaco measured 2.5 to
2.6 % methane 10 feet from the core dri II hole. /d. at 80-8 L l 02. Bottle samples taken in the
No.6 entry between the first two crosscuts, and in the last open crosscut between the No. 5 and 6
entries, showed .62 and .96 % methane. respectively. !d. at 118-21.
At 11 :30 a.m. on April 8, Coburn issued Citation No. 3859779 to Island Creek under
section 104(a) of the Mine Act for a significant and substantial (''S&S") violation of section
50.1 0. The citation states:
Mine Management failed to notify MSHA immediately after the
mine experienced a non-injury accident on April 7, 1994 at 1845
hrs. A core drill hole was cut through on the 004-0 MMU. MSHA
was notified by phone on April 8, 1994 at 0700 a.m.
Jt. Ex. 1.
Island Creek made additional attempts to plug the flow of methane. First, a mortared
block-wall seal was built over the hole; however, methane migrated onto the section through the
cinder blocks. Tr. 25-26, 191. A second seal was then built in front of the first seal, and the
space between them was fille~ with foam. Tr. 25-26. This attempt was also unsuccessful. Tr.
26. On April 13, 1994, Island Creek succeeded in stemming the flow of methane by drilling a
hole to the surface to vent the pressurized gas. 18 FMSHRC at 150 l.
The judge concluded .that the core drill hole incident did not constitute an "unplanned
inundation of a mine" under 30 C.F.R. § 50.2(h)(4), and therefore was not an "accident" that had
to be immediately reported to MSHA pursuant to section 50.10. 18 FMSHRC at 1501. The
judge determined ·that a "reasonably prudent person" would not have known that section 50.10
required the reporting of the incident because section 50.2(h)(4), on its face, "speaks of the
inundation of a mine, not a part, sections, entries or crosscuts of a mine." /d. at 1501-02.

17

Reasoning that "[t]he gases released did not flood the entire mine or even a large section of the
workings[,]" the judge concluded that Island Creek did not violate section 50.10 by not immediately reporting the incident. ld. at 1502.
II.
Disposition
The Secretary argues that the judge erred in construing "inundation" to refer only to
inundation of the entire mine. S. Br. at 6. Urging the Commission to defer to her interpretation
of her own regulations, the Secretary notes that section 50.2(h)(4) does not refer to inundation of
an "entire" mine. Id. at 6-8. The Secretary observes that the inrush of gas in this case is
consistent with the dictionary definition of"inundation," and that "mine" is defined in Part 50 to
include enumerated portions of an entire mining facility. Id. at 9-10. She contends that her
interpretation of"inundation" as including an inrush of gas that is less than mine-wide is
consistent with the other specifications of"accident" contained in section 50.2, none of which
describe mine-wide incidents. Id. at 11-12. The Secretary also argues that her interpretation of
·'inundation" is consistent with the safety-promoting purpose of the regulation. I d. at 12-15.
Island Creek responds that the Secretary's interpretation of"inundation" is not entitled to ·
deference because it was not shown to be well established or consistently applied, and "was not
conceived. until after the decision below had been entered." I.C. Br. at 5-7. Island Creek
contends that it never received fair notice of the Secretary's interpretation of"inundation." !d. at
7. The operator asserts that, contrary to the Secretary's argument, the judge did not interpret
"inundation" to apply only to mine-wide incidents, noting that the judge found that the inrush of
gas did not flood "a large section of the workings." ld at 9 (citation omitted). Island Creek
argues that, under the Secretary's interpretation, every methane release, no matter how small in
magnitude, would constitute a reportable accident. ld at 11.
A.

Violation

Where the language of a regulatory provision is clear, the terms of that provision must be·
enforced as they are written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results. Dyer v. United States, 832 F.2d
1062, 1066 (9th Cir. 1987) (citations omitted). See also Utah Power & Light Co., 11 FMSHRC
1926, 1930 (October 1989) (citations omitted); Consolidation Coal Co., 15 FMSHRC 1555,
1557 (August 1993). If, however, a standard is ambiguous, courts have deferred to the Secretary's reasonable interpretation of the regulation. See Energy West Mining Co. v. FMSHRC, 40
F.3d 457, 463 (D.C. Cir. 1994). Accord Secretary of Labor v. Western Fuels-Utah, Inc., 900
F.2d 318, 321 (D.C. Cir. 1990) ("agency's interpretation ... is 'of controlling weight unless it is
plainly erroneous or inconsistent with the regulation"') (quoting Bowles v. Seminole Rock Co.,
325 U.S. 410, 414 (1945) (other citations omitted)). The Secretary's interpretation of a regulation is reasonable where it is "logically consistent with the language of the regulation []

18

and ... serves a·permissible regulatory function." General Elec. Co. v. EPA, 53 F.3d 1324, 1327
(D.C. Cir. 1995) (citation omitted). The Commission's review, like the courts', involves an
examination of whether the Secretary's interpretation is reasonable. Energy West, 40 F.3d at 463
(citing Secretary ofLabor on behalfof Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432, 1439
(D.C. Cir. 1989)). See also Consolidation Coal Co., 14 FMSHRC 956, 969 (June 1992)
(examining whether Secretary's interpretation was reasonable).
Section 50.10 provides that "[i)f an accident occurs, an operator shall immeqiately
contact the MSHA Di.strict or Subdistrict Office having jurisdiction over its mine." Section
50.2(h) defines "accident" to mean any of 12 events. One of those definitions, set forth in
section 50.2(h)(4), states that "accident" means "(a)n unplanned inundation of a mine by a liquid
or gas." Before the judge, it was undisputed that the core drill hole incident was not immediately
reported to MSHA. and that the cut-through was "unplanned" within the meaning of section
50.2(h)(4). 18 FMSHRC at 1501; Tr. 59. Thus, the main issue below was whether the flow of
methane onto the section constituted an ''inundation of a mine."
The regulations do' not define "inundation.'' In the absence of an express definition or an
indication that the drafters intended a technical usage, the Commission has relied on the ordinary
meaning of the word to be construed. Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996),
qf{'d, 111 F.3d 963 (D.C. Cir. 1997) (table). ''Inundate" and '' inundation'' are defined as '·a rising
and spreading of water over land not usu(ally] submerged: FLOOD ... DELUGE" and
"SUBMERGE ... to overwhelm by great numbers or a superfluity of something: SWAMP(.]"
Webster 's Third New lnt 'I Dictionmy (Unabridged) 1188 (1986). "Flood" is in turn defined, in
relevant part, as "an outpouring of considerable extent .. . a great stream of something ... that
flows in a steady course ... a large quantity widely diffused: SUPERABUNDANCE[.]" !d. at
873. "Deluge" is defined as "an. irresistible rush of something (as in overwhelming numbers,
quantity, or volume) ... a forceful jet of water (as from a fire hose)[.]" ld. at 598.
Because the meaning of the term "inundation" as used in the regulation is open to
alternative interpretations, as reflected in the dictionary definitions, we conclude that it is in some
respects ambiguous. See National R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S.
407, 418-19 (1992); Norman J. Singer, Sutherland Statutory Construction § 45.02, at 6 (5th ed.
1992) ("Ambiguity exists when a statute is capable of being understood by reasonably wellinformed persons in two or more different senses."). As the Court stated in Boston & Maine,
"[f]ew phrases in a complex scheme of regulation are so clear as to be beyond the need for
interpretation when applied in a real context." 503 U.S. at 418. Our conclusion that "inundation" is ambiguous·as applied to the methane inrush at the Ohio No. 11 Mine requires us to
decide whether the Secretary?s interpretation of the provision is reasonable. The judge essentially skipped this primary inquiry of whether the Secretary has advanced a permissible interpretation of the regulation, and proceeded directly to analyze the fair notice issue. Our precedent
makes clear, however, that these questions are distinct. See, e.g., Morton Int '1, Inc., 18
FMSHRC 533, 538-39 (April 1996).

19

The Secretary interprets ''inundation" to include less than mine-wide methane flows such
as occurred in this case. S. Br. at 6. The Secretary argues that the focus of the ordinary meaning
of"inundation" is on "the process of the water flowing in - not, as the j udge's interpretation
does, on whether the water has already spread so as to submerge all land not usually submerged."
!d. at 9. The judge, and Island Creek, rely on the definition of"inundation" contained in the U.S.
Dep't of Interior, Diction01y of Mining, Mineral, and Related Terms ("DMMRT'). 18 FMSHRC
at 1502; I.C. Br. at 8 n.5.
The Secretary correctly focuses on the process of inundation, apparently arguing that the
relevant fact was the "rising" and "spreading" of the gas that constituted the inundation, not the
size of the area where the substance eventually landed. S. Br. at 9. Furthermore, the definition
of"deluge" is consistent with the situation on the 004 section on April 7-8, as the core drill hole
essentially released a "forceful jet" of methane.
We note that other elements of the delinitions include "swamping" or "overwhelming·· of
the inundated area and the ..considerable extent" and .. widely diffused" nature of the inrushing
material. This last characteristic is featured in the DMMRT definition of"inundation.'>{'
However, the Secretary is not required to cover every aspect of the definitions, as long as her
interpretation is consistent with common usage and ordinary meaning.
Thus, although the judge appears to have rel ied on the DMMRT definition of"inundation," the Secretary is not obliged to adopt it in interpreting the regulation. It is true, as the judge
stated, that the Commission took note of this definition in Aluminum Co. ofAmerica, 15
FMSHRC 182 I, 1825 n.8. (September 1993). 18 FMSHRC at 1502. As Island Creek concedes,
however, that case "did not turn upon the definition of inundation," I. C. Br. at 8 n.5, and, as the
Secretary points out, the Commission did not expressly adopt the DMMRT reading.7 S. Br. at 10
n.3. In any case, while the DMMRTdefinition may be plausible, the Commission does not
substitute its judgment for the Secretary's so long as the Secretary's interpretation is reasonable.
See, e.g., General Elec., 53 F.3d at 1327.
The dissent, relying on several dictionaries and a thesaurus, mistakenly asserts that
"inundation" has only been defined to mean the "swamp[ing]" or "overwhelm[ing]" of "generally a large area." Slip up. at 14. While the reference works cited by the dissent contain this
reading of"inundation," some also include another sense of the term that supports the Secretary's
interpretation. For example, Webster's at 1188, the Random House Dictionary ofthe English
Language (Unabridged) 1002 (2d ed. 1987) and the Random House Thesaurus 393 (College ed.
1984) include the sense of"deluge" which, according to the Thesaurus, id. at 193, is synonymous

6

The DMMRT defines "inundation" as an "inrush of water on a large scale which floods
the entire mine or a large section of the workings." DMMRTat 587.
7

See also Loca/2333; UMWA v. Ranger Fuel Corp., 12 FMSHRC 363, 365-66 (March
1990) (less than mine-wide release of methane due to roof fall described as "inundation.")

20

with "barrage," ''torrent," and "spate." "Torrent" is in turn defmed in a sense similar to that of
"deluge," i.e., "a stream of water flowing with great rapidity and violence[;] a rushing, violent, or
abundant and unceasing stream of anything[. J" Random House Dictionary at 1999; see also
Webster's at 2413 ("a violent stream of a liquid").
This case is thus readily distinguishable from MCI Telecommunications Corp. v. AT&T,
512 U.S. 218 (1994), cited py the dissent (see slip op. at 16). MCI involved the "rarity" of"a
meaning set forth in a ~ingle dictionary ... which not only supplements the meaning contained in
all other dictionaries, but contradicts one of the meanings contained in virtually all other
dictionaries." 512 U.S. at 227. Here, the connotation of"inundation" as an inrush of material is
present in more than one source. In any case, the alternate definition of "inundation" as a
"deluge" and characterized by a "rising" and "spreading" of material does not contradict the
sense of "swamping" or "overwhelming" a given area, but rather supplements that aspect of the
defmition.
We note further that many of the dictionary definitions focus on "inundation" by water or
liquid. Being a gas that is lighter than air, methane is not constrained by the physical laws of
fluid hydrodynamics. Therefore it need not "swamp" or "overwhelm" a very large area of a mine
in order to accumulate in a specific location in sufficient concentration to be dangerously
explosive.
Moreover, in determining whether the judge correctly concluded that there was no
"inundation of a mine" within the meaning of section 50.2(h)(4), we must also consider related
regulatory definitions, keeping in mind that "regulations should be read as a whole, giving
comprehensive, harmonious meaning to all provisions." Morton, 18 FMSHRC at 536. We
therefore turn to the definition of the term "mine." Section 50.2(a), which tracks the definition of
the term in section 3(h)(l) of the Mine Act, 30 U.S.C. § 802(h)(l), defines "mine" to include
underground passageways, shafts, slopes, tunnels and workings,
structures, facilities, equipment, machines, tools or other property
... , on the surface or underground, used in ... the work of extracting . .. minerals from their natural deposits ....
30 C.F.R. § 50.2(a). Interpreting similar language in the Mine Act's predecessor, the Federal
Coal Mine Health and Safety Act of 1969,30 U.S.C. § 801 et seq. (1976) ("Coal Act"), the
Fourth Circuit noted: "A single shaft, tunnel, or tipple, and the land on which each of these
facilities is located, can constitute a separate coal mine within the [Coal] Act's definition."
Bituminous Coal Operators' Ass'n v. Secretary ofInterior, 547 F.2d 240,246 (4th Cir. 1977).
Citing Bituminous Coal Operators', the Commission recently held that "there can be muLtiple
mines at a single site." D.H Blattner & Sons, Inc., 18 FMSHRC 1580, 1586 n.9 (September
1996). The crosscut containing the cut core drill hole appears to be a "workingO ... or other
property

21

... underground, used in ... extracting ... minerals .. ." under section 50.2(a) and, thus, a
''mine" within the meaning of that provision.
In maintaining the position that "there was no ' inundation' of methane as that term is
used in the sense of a large volume of gas covering a large area," the dissent remains mum on
these key "contextual indications" supporting the Secretary's interpretation to the effect that the
inundation need not cover an extensive area. See MCI, 512 U.S. at 226. The dissent's silence on
the statutory and regulatory definition of''mine" does not alter the import of those P.rovisions.
Notably, the dissent does not dispute that the cross-cut containing the core drill hole is a "mine"
under the Act and regulations. This area, then, and not the entire mine property, is the proper
focus of the analysis of whether the Secretary's interpretation of "inundation" is entitled to
deference. Thus, contrary to the dissent, unless extant definitions of"mine" are to be thrown
overboard. even a relatively small area constituting a ''mine." such as the crosscut at issue here,
may be subject to an "inundation" \\·ithin the meani ng of section 50.2(h)(4).&
In addition, as the Secretary points out (S. Br. at 11- I 2), none of the other meanings of
"accident" set forth in section 50.2(h) appear to contain a '"mine-wide" component. See. e.g., 30
C.F.R. § 50.2(h)(5) (''unplanned ignition or explosion of gas or dust''); 30 C.F.R. § 50.2(h)(6)
("unplanned mine ti re not extinguished within 30 minutes of discovery"). Reading the Secretary's regulat ions as a whole and giving them comprehensive, harmonious meaning, we cannot
say that the Secretary' s reading of·'inundation" to encompass less than mine-wide methane
releases is unreasonable.
In construing the Secretary's Part 50 regulations, we are mindful of the well-established
maxim that regulations must be interpreted in a manner consonant with the safety-promoting
purposes ofthe Mine Act. Consolidation Coal Co., 14 FMSHRC 956,969 (June 1992) (citing
EmeryMiningCorp. v. SecretaryofLabor, 744F.2d 1411, 1414(10thCir. l984). MSHAneeds
to know immediately about inrushes of methane in order to be able to respond quickly and help
prevent explosions and loss of life. Notification is one of the necessary first steps following an
accident that enables MSHA to take appropriate action. See, e.g., 30 C.F.R. § 50.ll(a) (following notification, MSHA must promptly decide whether to conduct an accident investigation
which, if under taken, must commence "within 24 hours of notification."); 58 Fed. Reg. 63,528
( 1993) (MSHA toll-free telephone number for accident notification will be staffed by "24-hour
answering service [that] will respond to calls.)" Section 103(j) of the Min~ Act, 30 U.S.C.

8

We are not comforted by the dissent's observation that there was "only a single reading
of methane at an explosive concentration .... " Slip op. at 16. First, it should not be necessary
to point out that methane in the explosive range presents a serious hazard. Island Creek Coal
Co., 15 FMSHRC 339,34 1 n.3 (March 1993) (citations omitted). Such a hazard could affect
miners in other parts of the mine as well. Cf Buck Creek Coal Co., 17 FMSHRC 8, 14 (January
1995). Moreover, Gatlin eliminated his chances of taking further readings in the explosive range
by shutting off his methane detector after the first such reading. Gatlin Dep. 19.

22

§ 813 U), also requires operators to notify the Secretary of accidents.9 Congress recognized that
the Secretary must have maximum latitude to take protective measures in response to mining
accidents. The section of the Senate report dealing with what became section 103 of the Mine
Act stated:
The unpredictability of accidents in mines and uncertainty
as to the circumstances surrounding them requires that the Secretary or .his authorized representative be permitted to exercise broad _
discretion in order to protect the life or to insure the safety of any
person. The grant of authority in section [I 03(j)] to take appropriate actions and in section [1 03(k)) to issue orders is intended to
provide the Secretary with flexibility in responding to accident
situations, including the issuance of withdrawal orders.
S. Rep. No. 181, 95th Cong., 1st Sess. 29 ( 1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources. 95th Cong., 2d Sess. Legislative History ofthe Federal Mine
Safety and Health Act<~( 1977. at 617 (1978).
Moreover, we have previously noted that Congress, concern over the presence of high
levels of methane in mines was the basis of provisions in both the Mine Act and its predecessor,
the Coal Act. E.g, Wyoming Fuel Co., 13 FMSHRC 1210, 1214 (August 1991) (citing S. Rep.
No. 411, 91st Cong.. , 1st Sess. 59 (1969), reprinted in Senate Subcommittee on Labor, Committee on Labor and Public Welfare, 94th Cong., I st Sess., Part l Legislative Histmy ofthe Federal
Coal Mine Health and Safety Act of 1969, at 185 (1975) ("Coal Act Legis. Hist. "));see also 30
U.S.C. § 813(i) (spot inspections for mines with excess methane liberation); S. Rep. No. 411, at
25-35, reprinted in Coal Act Legis. Hist. at 151-161. In sum, the Secretary's interpretation of
this regulation, by requiring immediate notification of less than mine-wide inundations, furthers
the protectiye purposes of the notification requirement and the Mine Act. 10
We reject Island Creek's argument that the Secretary's interpretation is not entitled to
deference because "it was not conceived until after the decision below had been entered." I. C.
Br. at 7. First, it has been the Secretary's position throughout the litigation that the inrush of
methane at issue was an "inundation of a mine" within the meaning of section 50 .2(h)(4 ). See,
e.g., S. Proposed Findings ofFact and Conclusions of Law at 18-20. In addition, the Supreme

9

Section 103(j) provides in pertinent part: "In the event of any accident occurring in any
coal or other mine, the operator shall notify the Secretary thereof .... " 30 U.S.C. § 813(j).

° Contrary to the suggestion of our dissenting colleague, we have neither sanctioned 6hour delays in dealing with methane accidents nor held that deadly and silent methane releases do
not trigger the requirement of immediate notification of MSHA. The Secretary's interpretation
of section 50.2(h)(4) to include less than mine-wide inrushes of methane as inundations does not
exclude other types of inundations from the sweep of the provision.
1

23

Court has held that the Secretary's first-time articulation of an interpretation of analogous
regulations in the course of administrative litigation is, if reasonable, entitled to deference.
Martin v. OSHRC, 499 U.S. 144, 156-58 (1991).
Thus, reading the ordinary definition of"inundation" together with the regulatory
definition of"mine," we conclude that an "inundation of a mine" may include an outpouring of
methane affecting a portion of the entire mine. Accordingly, we conclude that the Secretary' s
interpretation of section 50.2(b)(4) to include an inundation that is less than mine-w_ide in extent,
such as occurred in the present case, is a permissible reading of her regulations. We reverse the
judge's implied holding to the contrary.
B.

Notice

Where an agency imposes a fine based on its interpretation, a separate inquiry may arise
concerning whether the respondent has received "fair notice.. of the interpretation it was fined for
violating. Energy West Mining Co., 17 FMSHRC 1313, 1317-18 (August 1995). "[D]ue process
... prevents ... deference from validating the application of a regulation that fails to give fair
warning of the conduct it prohibits or requires." Gates & Fox Co. v. OSHRC, 790 F.2d I 54. 156
(D.C. Cir 1986). An agency's interpretation may be ·•permissible" but nevertheless fai l to
provide the notice required under this principle of administrative law to support imposition of a
civil sanction. General Elec., 53 F.3d at 1333-34. The Commission has not required that the
operator receive actual notice of the Secretary's interpretation. Instead, the Commission uses an
objective test, i.e., "whether a reasonably prudent person familiar with the mining industry and
the protective purposes of the standard would have recognized the specific prohibition or
requirement ofthe standard." Ideal Cement Co., 12 FMSHRC 2409,2416 (November 1990).
As to the question whether a reasonably prudent person would have understood the
applicability of the reporting requirement of section 50.10 to the facts presented, we have already
indicated that some of the elements of the definition of"inundation," particularly the extent of
the outpouring and the "overwhelming" impact on the affected area, appear to be absent here.
After Cambron set timbers, hung curtains and increased the flow of air onto the section, elevated
methane levels were restricted to the core drill hole and the area adjacent to it. Moreover, this
dilution, if not control, of the escaping methane was accomplished within a short period of time
following the incident. However, by the time Gatlin contacted Beaven in Illinois, it should have
been apparent to Island Creek that it was dealing with a reportable accident. By then, Gatlin
knew that Island Creek, despite its efforts, had been unable to stop the flow of methane onto the
section, that methane had continue to flow with great force for over 6 hours, and that methane
readings were elevated, on one occasion in the explosive range, albeit in a limited area. These
conditions presented a safety hazard that should have alerted Island Creek to the necessity of
immediately reporting the incident as an accident to MSHA.''
11

Commissioner Marks wishes to express his view that, given the nature of this incident
- an unexpected, inrush of methane which continued to flow with great force for over 6 hours

24

Further, the actions and stated views oflsland Creek representatives support the notion
that Island Creek should have been aware that the core drill hole cut-through was not a routine
methane release, but rather an incident that needed to be reported under section 50.10. The
incident was serious enough to prompt the second shift mine foreman (Cambron) to notify the
general mine foreman (Gatlin) at home, for the general mine foreman to notify the superintendent
(Beaven) in another city, for the superintendent to notify his superior, the regional manager, a5
well as the regional safety director, for these individuals to discuss whether MSHA should be
notified, and for the superintendent to order MSHA contacted on the morning of Ap_ril 8 as a
"courtesy.'' Gatlin testified that the incident was more serious than initially reported to him, and
Cambron testified that in 25 years of mining he had never cut into a hole that blew methane as
hard and for as long a time as this core drill hole did. In light of these circumstances, the
Secretary' s interpretation of sections 50.10 and 50.2(h)(4) as requiring the reporting of the
incident as an accident does not seem ''so far from a reasonable person ' s understanding of the
regulations that they could not have fairly informed [the operator] of the agency ' s perspective."
See General Elec., 53 F.Jd at 1330. This is particularly the case in view ofthe absence of any
evidence that MSHA ever construed these regulations in a manner inconsistent with its position
in this case. C.f General Elec. Co. v. Gilbert. 429 U.S. 125, 1141-43 (1976).
Island Creek's notice argument is further undercut by the explicit definition of''mine." in
section 50.2(a) and Mine Act section 3(h)( 1), as a particularized portion of a larger facility. This
definition has gained wide recognition since the Bituminous Coal Operators · case interpreted
similar language under the 1969 Coal Act.
In addition, under the Commission's test, the ''reasonably prudent person" is charged with
knowledge of the "mining industry and the protective purposes of the standard," Ideal Cement,
I 2 FMSHRC at 2416. Here, the protective purposes of the notification requirement are obvious
and important. We therefore conclude based on all the evidence that a person familiar with this
purpose would have notified MSHA when faced with the situation at issue here.
Accordingly, we reverse the judge's determination that Island Creek did not have notice
that section 50.10 would apply to the incident at issue.

by the time the superintendent was notified, despite Island Creek's efforts to remedy it- there
could be no doubt that the operator should have been on notice that this was the type of
"unplanned inundation," as set forth in section 50.2(h)(4), that needed to be reported immediately
.
to MSHA.

25

III.
Conclusion
For. the foregoing reasons, we reverse the judge's determinations that Island Creek did not
violate 30 C.F.R. § 50.10 and did not have fair warning of its applicability to Island Creek, and
we remand for assessment of an appropriate civi l penalty.

Marc Lincoln Marks, Commissioner

26

Commissioner Verheggen, dissenting:
At issue in this case is whether a release of a mixture of air and methane, confined to a
small area oflsland Creek's Ohio No. 11 Mine, constituted an "inundation" as that term is used
in 30 C.F.R. § 50.2. My colleagues believe that the release was such an inundat~on. I respectfully disagree.
The Commission has long held that "[w]here the language of a statutory or r~gulatory
provision is clear, the terms of that provision must be enforced as they are written .... " Utah
Power & Light Co., 11 FMSHRC 1926, 1930 (October 1989). The Commission has also held
that. in the absence of a regulatory definition or technical usage of a word, the Commission
applies the ordinary meaning ofthe word. See Bluestone Coal Cm]J., 19 FMSHRC 1025, 1029
(June 1997): Peabody Coal C(J., 18 FMSHRC 686. 690 (May 1996), C{f('d, Ill F.3d 963 (D.C.
Cir. 1997) (table). I find that the ordinary meaning ofthe word "inundation" clearly refers to
something much more extensive in size and scope than the release of an air/methane mixture at
issue in this case.
The majority quotes several definitions which make this point self-evident. "Flood,''
..deluge:· ··submerge:· "swamp;· and ··overwhelm,'' terms cited by the majority to characterize
"inundation." all signify an event of considerable magnitude and breadth in which a large volume
of water or gas has spread across an area, and generally a large area. The essential element of
every definition of the term "inundation" I have found is, in the words of the majority, the
'"swamping· or 'overwhelming' of the inundated area" (slip op. at 7). Webster's Third New
international Diclionary 1188 (1986) ("Webster 's") (quoted by the majority); Random House
Dictionary of the English Language 1002 (2d ed. 1987) ("to t1ood; cover or overspread with
water; deluge ... to overwhelm"); Black's Law Dictionary 823 (6th ed. 1990) ("[t]o flood or
swamp ... [t)he overflow of waters by coming out of their natural bed or confines"); Dictionary
ofMining, fo1ineral, and Related Terms 284 (2d ed. 1997) ("DMMRT') ("inrush of water, on a
large scale"); 8 Oxford English Dictionary 33 (2d ed. 1989) ("OED") (''an overflow of water; a
flood"); see also Random House Thesaurus, College Ed 393 (1984) ("engulf, overflow, fill with
water, overspread, drench, submerge, flood, deluge, drown"). See Aluminum Company of
America, 15 FMSHRC 1821, 1825 n.8 (September 1993) (citing the DMMRT definition of
"inundation"). 1
"Inundation" thus refers to a quantity of water (or gas) that has swamped or overwhelmed
a given area. This essential meaning ofthe word is conveyed in Loca/2333, UMWA v. Ranger
Fuel Corp., 12 FMSHRC 363 (March 1990). In that case, an MSHA inspector discovered
explosive methane levels in the tailgate of a longwall section after a large roof fall in a nearby

I This essential element of"inundation" is also reflected in its metaphorical meaning,
which the OED defines as "(a]n overspreading or overwhelming in superfluous abundance;
overflowing, superabundance." !d. at 33. The word was used in this sense by President
Washington when, in 1798, he wrote: "I was inundated with letters, describing the crisis." !d.

27

gob area. !d. at 365. The inspector "believed that the immediate. cause of the methane concentration was a sudden inundation resulting from the roof fall." ld. Significantly, the inundation
overwhelmed the mine's bleeder system, which was unable to dissipate the methane, in part
because it was partially blocked by water. Jd.
Another element commonly appearing in definitions of "inundation" is, again in the
words of the majority, ''the 'considerable extent' and 'widely diffused' nature of the inrushing
material" (slip op. at 7).2 ·This sense of the word is an essential element of the DMMRT definition, which defines "inundation" as "[a]n inrush of water ... that floods the entire mine or a
large section ofthe workings." !d. at 284 (emphasis added). In keeping with this sense of the
word, Commission Administrative Law Judges have found inundations in the two instances
where the meaning of the term as used in section 50.2 was at issue where gases have spread over
a wide area. Silver State Mining Corp., 9 FMSHRC 691, 702 (April1 987) (entire interior of mill
enveloped in hydrochloric acid fumes); Helvetia Coal Co., 2 FMSHRC 1011, 1030 (April 1980)
("methane ... covered a large, undefined area of the mine"). I agree, however, with the Secretary's contention that an inundation need not be mine wide to be reportable. S. Br. at 9-10. This
issue is, however, a red herring because first there must be an inundation, which here there
clearly was not.
Although overwhelming authority establishes that, at the very least, an "inundation" is an
event during which water or gas swamps or overwhelms an area, the Secretary argues that "the
dictionary definition of 'inundation' focuses on the process of the water flowing in- not ... on
whether the water has already spread so as to submerge all land not usually submerged." S. Br.
at 9 (emphasis in original). As explained by my colleagues, the Secretary "apparently" means
that it ''was the 'rising' and 'spreading' of the gas that constituted the inundation." Slip. op. at 7.
This "interpretation" is at odds with the one common element found in every definition of the
term. An inundation may very well include the gush of water or gas that is its source,3 but under
the universally accepted common usage of the term, it cannot exclude the accumulation of water
or gas resulting from the gush. In essence, all the Secretary does is define the source of an

2

Webster's, for example, illustrates this sense of the word in the example "a tidal wave
[inundate]s the island." !d. at 1188. The OED cites usages ofthe word in this sense dating from
as early as 1548 ("The ryver rose so high that yt overflowed all the countrey .. By this
inundacion the passages were so closed ... "). Other usages cited by the OED refer to ''the period
when the Nile inundates }Egypt" (1791), "an annual overflow of the Amazon [that] inundate[s] a
great part ofBrasiP' (1796), and "rivers ... overflowing their banks and inundating the land"
(1898). !d. at 33.
3

In a circuitous semantic argument, the majority uses a variety of terms to characterize
this element of the term ''inundation," including ''torrent," "spate,'' and "barrage." Slip op. at 7.
Notably, none of these terms appear in any of the definitions of"inundation" in the five major
dictionaries I have consulted.

28

inundation and nothing more. Through this peculiar act of deconstruction, the Secretary robs the
term "inundation" of its essential character.
Notwithstanding its incoherence, my colleagues defer to the vague and elusive- and
wrong - interpretation offered by the Secretary, insisting that the term "is open to alternative
interpretations.,, Slip op. at 6. But her interpretation is owed no deference because it has no
basis in the common meaning of"inundation." Moreover, my colleagues err by deferring to the
Secretary to ascertain the plain meaning of a word. There is no ambiguity here that gives rise to
the issue of deference. Bluestone Coal Corp., 19 FMSHRC I 025, 1028 (June 1997). Instead,
there is the plain meaning of "inundation" as established by its common usage versus the
Secretary's strained focus on a nuance (the "process" of"the 'rising' and 'spreading' of the gas")
that blurs the meaning of the term beyond recognition. Taking my colleagues' approach to its
logical conclusion, each word in the English language could be considered ambiguous based on
only the slightest shades and nuances of meaning, the true meaning of which can only be
ascertained by the Secretary in the context of a given case, whether or not the Secretary's
meaning comports with common, ordinary meaning.
Determining the ordinary meaning of a word is not a matter of such technical complexity
that we must give way to the Secretary's expertise. See General Electric Co. v. EPA, 53 F.3d
1324, 1327 (D.C. Cir. 1995). Nor is this a case where we could appropriately defer to the
Secretary's choice of one alternative dictionary meaning over another within the same definition.
See National R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407,418-20 (1992).
Instead, this case is closer to the Supreme Court's decision in MCI Telecommunications Corp. v.
AT&T, in which the Court rejected a Federal Communications Commission interpretation of the
term "modify" based on a dictionary definition which the Court found was contradicted by
"virtually all otherO" dictionaries. 512 U.S. 218,225-28 (1994). In the MCI case, ordinary
meaning was derived from how "virtually all" dictionaries defined "modify," rather than from an
"out-of-step dictionary" containing a definition that robbed the word of any meaning. !d. at
226-27. The case thus illustrates the importance of ordinary meaning and warns of the pitfalls of
interpreting words in such a way that they have no intrinsic meaning. Here, my colleagues
unwisely defer to a deconstructive gloss the Secretary puts on "inundation" - a gloss which robs
the word of its essential character and is at odds with the word's ordinary meaning.
The conclusion that th~ release of methane at issue here was an "inundation" as that term
is ordinarily used in the sense of a large volume of gas overwhelming a given area has no support
in the record. The air flowing into the 004 Section through the core drill hole contained varying
quantities of methane, but at no time did methane concentrations reach sustained excessive levels
beyond the immediate vicinity of the hole. Tr. 142-44. Indeed, the record contains credible
evidence of only a single reading of methane at an explosive concentration, and that was when a
reading was taken directly over the hole. Gatlin Dep. Tr. 19-20. As my colleagues concede,
"elevated methane levels were restricted to the core drill hole and the area adjacent to it. ...
dilution, if not control, of the escaping methane was accomplished within a short period of time
following tlie incident." Slip Op. at 11. Throughout the incident, the operator was never unable

29

to dilute the methane and render it harmless. Tr. 143. Put another way, Island Creek's resources
to control the methane contained in the air venting from the core drill hole were never "overwhelmed" or "swamped."
The continuous miner cut through the core drill hole at the end of a cut measuring
approximately 30 feet "deep" by 10 feet wide, the first cut made to drive a crosscut between the
number 5 and 6 entries. R. Ex. C.; Tr. 81, 159.4 About halfofthis first cut was quickly placed
within the intake aircourse with a curtain, and was thus isolated from the gases venting from the
hole. Tr. 159. This enabled the operator to immediately dilute any methane that might have been
coming out ofthe hole (see Tr. 165, testimony of Mr. Cambron that he "deflected [the venting
gases] directly to the return"), as evidenced by the fact that at no time were explosive levels of
methane detected outby the hole. Tr. 143. As counsel for the Secretary stated at the hearing.
""what (Island Creek] did was dilute the harmful gases that might have been coming out."
regardless of the rate at which the gases were venting out through the hole. Tr. 164.
The only evidence in the record of elevated levels of methane outside the first cut is
restricted to readings in the three to four percent range taken in the number 5 entry approximately
10 feet from the tail end ofthc continuous miner. Tr. 135. The Secretary introduced no evidence
of elevated methane levels in any other area of the mine. including the open crosscut between the
number 5 and 6 entries closest to the tirst cut and the number 6 entry itself. The judge's finding
that ·'only the number five and six entries and the crosscut between them ... were impacted'"
( 18 fMSHRC at 1502) is thus not supported by substantial evidence; the area actually affected
was much smaller. The Secretary's argument that "gas from the hole was coursed throughout all
air which ran past the c0re drill hole, and [thus] affected all areas of the mine in which it was
coursed" (S. Br. at 10 n.2) grossly overstates the case. The air that ran past the hole was doing
just what it was supposed to be doing: diluting and rendering harmless any methane that was
being liberated before that methane had the chance to accumulate anywhere beyond the hole
itself. I find that the record compels no other conclusion but that there never was any area of the
mine that could have been characterized as being "im!ndated" with methane. To conclude
otherwise is to turn a deaf ear on the record evidence and to overlook the Secretary's obvious
inability to prove that methane accumulated anywhere in the Ohio No. 11 Mine as a result of the
breach of the core drill hole.
I therefore dissent from my colleague's departure from the common sense, ordinary
meaning of the term ''inundation." But I find even more extraordinary their finding that Island
Creek was on notice of the Secretary's interpretation of that term. Where an agency imposes a
fine based on its interpretation of a regulatory provision, a separate inquiry arises concerning
whether the respondent has received "fair notice" of the interpretation it was fined for violating.
4

The area affected by the release of air and methane at issue here was minuscule, no
more than part of a partially mined crosscut and a small section of the entry off which it was
driven. R. Ex. C & D. This area, to give an idea of the mine's size, lies three miles away from
the mine fan. Tr. 186-87.

30

Energy West Mining Co., 17 FMSHRC 1313, 1317-18 (August 1995). Once again, my colleagues cite the correct legal authority, but then fail to apply it. Slip op. at 11. Rather than
conduct an inquiry as to whether Island Creek was on notice of the Secretary's interpretation
under the Commission's "reasonably prudent person" test, my colleagues instead attempt to
provide wholly separate reasons why Island Creek should have known the methane release in this
case was a reportable accident. 5 Incredibly, none of the reasons provided by my colleagues refer
to the Secretary's interpretation ofthe word "inundation."

-

First, my colleagues argue that Island Creek was on notice because of the length of time
-some six hours- the air/methane mixture flowed out of the core drill hole without being
stanched (slip op. at II & n.I 0), notwithstanding the fact that the methane was immediately
brought under control through ventilation (Tr. I43 ).6 The majority also finds evidence of notice
in how news of the breakthrough passed up the ranks of Island Creek management.7 Slip op. at

5

I suspect the reason my colleagues did not conduct the proper inquiry as to whether
Island Creek was on notice of the Secretary' s interpretation was because the only conclusion they
could have reached was that Island Creek had no such notice. Essentially a post hoc rationalization of her enforcement action, this interpretation was never before ad,·anced by the Secretary. In
fact, at the hearing, the inspector who cited Island Creek testified that he considered there to be
an inundation because "the continuous miner machine cut off." Tr. 60. But even as further
refined in the course of these proceedings, the Secretary's interpretation regarding the scope of
section 50.10 has never been consistent with the common usage of the word "inundation," much
less the usage of the word in the mining industry as found in the DMMRT. !d. at 284. Whether
the Commission has adopted it or not, the DMMRT definition is relevant for the purpose of
determining what a reasonably prudent person in the mining industry would consider to be an
inundation. As such, no reasonably prudent person would have known in advance the Secretary's odd interpretation of the word- such as it is. Indeed, that the incident here could have
been an inundation never even crossed the minds of the Island Creek employees involved. Tr.
182.
6

I find unconvincing the argument that after six hours had passed, Island Creek was
required to immediately contact MSHA. See slip op. at 11 n.1 0. I fail to see how the passage of
six hours somehow transformed the incident into a reportable accident. Instead, I believe that if
at anytime, Island Creek had not been able to dilute and render harmless the methane venting
from the core drill hole so that an accumulation of methane spread into a large area of the mine,
at that point, under the ordinary meaning of"inundation," a reportable accident would have
occurred.
7

This is hardly probative that Island Creek was on notice to report this incident to
MSHA. Certainly, Island Creek cannot be faulted for consulting with its regional safety director
and others as to what action should be taken. See Consolidated Coal Co., 11 FMSHRC 1935,
1938 (October 1989). That Island Creek conducted thorough internal discussions only proves, if
anything, that it was the judgement oflsland Creek's management, based on their collective

31

11-12. In addition, my colleagues note that the unusual nature th~ incident should have put
Island Creek on notice. !d. The Secretary's interpretation of this regulation, however, says
nothing about duration, internal discussions, or the unusual nature of events. None of the facts
offered by my colleagues show why any reasonable person should have known that an inundation
was, in actuality, a "process" of''the 'rising' and 'spreading' of the gas," and that the methane
release in this case should therefore have been reported.
In the end, my colleagues suggest that Island Creek should have known the incident was
reportable since it is charged with knowledge of the protective purposes of the standard. Slip op.
at 12. As to the purpose of that standard, the majority sees it as the importance ofMSHA
knowing "immediately about inrushes of methane in order to be able to respond quickly and help
prevent explosions and loss of life." Slip op. at 9. The majority neglects to cite any authority for
this proposition. In fact, the Secretary's regulation setting forth the purpose and scope of her Part
50 regulations contains no such statement of purpose. On the contrary, her stated purpose for
Part 50 relates strictly to record keeping and the calculation of injury occurrence and severity
rates. 30 C.F.R. § 50.1. Again, this tells Island Creek little about the Secretary' s view that an
inundation should be viewed as a "process" of''the 'rising' and 'spreading' of[a] gas." I thus
consider the majority's insistence on holding Island Creek liable in the absence of any real notice
of the conduct expected of it as a violation of the company's due process rights. Gates & Fox
Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986).
Assuming, however, that the true purpose of the standard (as distinct from its stated
purpose) is to provide MSHA with immediate notice of accidents in order for it to take appropriate remedial action, I believe that my colleagues' opinion sends a mixed message. First, given
the very limited scope of this methane release, one might conclude after today that any methane
release - regardless of the extent of its impact - should now be reported immediately to
MSHA. In the alternative, by focusing on the "process" rather than the magnitude of the
methane release, one could read the majority' s opinion to say that the critical factor in determining whether there has been a gas inundation is the nature by which the gas was released. Under
such a reading, forceful jets or gushes of gas would be reportable events, while silent - and far
more deadly- methane releases are not. See, e.g., Helvetia Coal Co., 2 FMSHRC at 1030. By
focusing on the duration of the event, my colleagues send the message that operators have up to
six hours in which to remedy a situation before it need be reported, a result plainly contradicted
by the regulation itself, which requires immediate notification. 30 C.F.R. § 50.10.
Rather than sow these seeds of confusion - and possibly worse - I would affirm the
judges' decision based on the ordinary meaning of the word "inundation." I would also urge the
Secretary - insofar as she apparently wishes to deviate from this ordinary meaning - to clarify
her views, either formally or informally, so that in the future all parties will be on notice as to

experience, that the incident did not amount to a reportable "inundation." Cf Tr. 182 ("We
hadn't had an ignition, no serious injury and no roof fall, and inundation never crossed our
minds.").

32

what events should be reported to MSHA immediately. See Diamond Roofing Co. v. OSHRC,
528 F.2d 645, 649 (5th Cir. 1976) ("the Secretary as enforcer of the Act has the responsibility to
state with ascertainable certainty what is meant by the standards (she] has promulgated").

33

Distribution

Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
John T. Bonham, II, Esq.
Jackson & Kelly
P.O. Box 553
Charleston, WV 25322
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

34

ADMINISTRATIVE LAW JUDGE DECISIONS

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

JAN

6 1998

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 93-63
A. C. No. 15-17081-03507

v.

Docket No. KENT 93-259
A. C. No. 15-17081 -03511

SUNNY RIDGE MINING COMPANY,
INC.,
Respondent

Docket No. KENT 93-863
A. C. No. 15-17081-03513
No.9 Mine

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-453
A. C. No. 15-17081-03516 A
No. 9Mine

MITCH POTTER Employed by
SUNNY RIDGE MINING COMPANY,
INC.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-454
A. C. No. 15-17081-03517 A

v.
No. 9Mine
TRACY DAMRON Employed by
SUNNY RIDGE MINING COMPANY,
INC.,
Respondent

35

DECISION ON REMAND .
Appearances:

MaryBeth Bernui, Esq., Office of the Solicitor, U.S. Department of
Labor, Nashville, Tennessee, for Petitioner;
Reed D. Anderson, Esq., Harrison and Anderson, Pikeville,
Kentucky, for Respondent.

Before:

Judge Weisberger

These consolidated cases are before me based upon the Commission's decision in this
matter, 19 FMSHRC 254 (1997), remanding the following issues:
1. the liability of Sunny Ridge Mining Company and Tracy Damron for violating 30
C.F .R § 77 .405(b) as alleged in citation number 4020202;
2. the appropriate penalty to be assessed Tracy Damron concerning order numbers
4020210, 4020075, and 4020076; and
3. the appropriate penalty to be assessed against Mitch Potter concerning order number
4020076. 1 Pursuant to notice, a hearing was held on November 5, 1997, to resolve the issues
raised by the Commission's remand. On December 15, 1997, Respondents' filed a brief, and on
December 18, 1997, the Secretary filed a brief on remand.

I.

The violation by Respondents of30 C.F.R. § 77.405(b) as alleged in Citation No.
4020202.

The parties entered into an agreement, based on the evidence presented at the original
hearing and the Commission's decision, 17 FMSHRC supra, to modify the original violation
from a Section 104(d) citation assessed at $3,000 to a Citation 104(a) significant and substantial
violation of mo·derate negligence with a penalty of $431. The parties also agreed to vacate the
Section 11 0(c) violation against Damron. Considering the representations of the parties, the
evidence presented at the initial hearing, and the Commission's decision, 17 FMSHRC supra, I
conclude that the settlement is appropriate under the terms of the Federal Mine Safety and Health
Act of 1977 ("the Act").
II.

The penalty to be assessed· against Mitch Potter concerning order number 2020076.

The parties stipulated that Potter has no previous or pending 11 0(c) violations, and that,
in light of his incom~ and family support obligations and the effects of the penalty, he has the
ability to pay a penalty of$6,000. With regard to Potter's responsibiLities and duties of the mine
the record indicates that he was the president of the company, was present at the mine site on the

These cases were initially remanded to Judge William Fauver who p~esided at the initial
hearing and issued the initial decision, but were subsequently reassigned to the undersigned.
1

36

date the order was issued, and was familiar with the conditions of the high walls and the
spoil bank at issue. Based on all these factors, and considering the criteria set forth in Section
11 O(i) of the Act, as interpreted by the Commission in its decision, 17 FMSHRC supra, I find
that a penalty of$6,000 is appropriate.
III.

The penalty to be assessed Tracy Damron concerning order numbers 4020210. 4020075.
and 4020076.

Damron was in charge of making preshift inspections, was responsible for making sure
equipment was repaired, and was responsible for scheduling and job assignments of employees.
Both Damron and his wife testified regarding his income and family and support obligations.
Taking into account hi s income, and family and support obligations as testified to at the hearing,
and his not having had any history of previous or pending Section 11 0(c) violations, and
considering the other factors set forth in Section IIO(i) ofthe Act as established at the initial
hearing, I find that the following penalties are appropriate for the violations established in the
following orders: 4020210 - $300. 4020075 - $400 and 4020076-$500.

ORDER
It is ordered as follo.ws:

1.
2.
3.
4.

The Section 11 0(c) Petition against Damron for a violation of Section 11 0(c)
relating to citation number 4020202 shall be dismissed;
Respondent Sunny Ridge Mining shall pay a civil penalty of $431 within 30 days
of this Decision;
Respondent Potter shall, within 30 day of this decision, pay a civil penalty of
$6,000; and
Respondent Damron shall, within 90 days of this decision, pay a total civil
penalty of$1,200.

b__
eisberger
Administrative Law Judge
Distribution:
MaryBeth Bemui, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road, Suite B-20~, Nashville, 1N 37215-2862 (Certified Mail)
Reed D. Anderson, Esq., Harrison and Anderson, P. 0. Box 279, Pikeville, KY 41502 (Certified
Mail)

lit

37

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730KSTREET, N.W., ()THFLOOR
WASHINGTON, D. C. 20006-3868

January 7, 1998
CIVTI.., PENALTY PROCEEDING

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

Docket No. SE 97-251-M
A. C. No. 40-00168-05574 A

V.

DOYAL MORGAN, EMPLOYED BY
ASARCO INCORPORATED,
Respondent

Young Mine

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
WAYNE LARKINS, EMPLOYED BY
ASARCO INCORPORATED,
Respondent

CIVIL PENALTY PROCEEDING

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

CIVIL PENALTY PROCEEDING

Docket No. SE 97-252-M
A. C. No. 40-00168-05573 A
Young Mine

Docket No. SE 98-1-M
A. C. No. 40-00168-05575 A

V.

STEVEN RAMSEY, EMPLOYED BY
ASARCO INCORPORATED,
Respondent

Young Mine

ORDER OF DISMISSAL

Before:

Judge Merlin

These cases are three petitions for the assessment of civil penalties filed by the Secretary
of Labor against the respondents named above under section 110(c) of the Federal Mine Safety
and Health Act of 1977, hereafter referred to as the "Act". Respondents have filed motions
seeking to have the petitions dismissed on the grounds that the Secretary failed to act in a timely
manner.
On October 30, 1995, a citation was issued to respondents' employer, Asarco Incorporated, under section 104 (d) of the Act, 30 U.S.C. § 814 (d), for an alleged violation of section
57.3200 of the Secretary's regulations. 30 C.F.R. § 57.3200. The citation was issued, as a result
of an accident that occurred the previous day. The accident report of the Mine Safety and Health
Administration, hereafter referred to as "MSHA", was completed and dated November 9, 1995.
The citation was terminated on November 13, 1995.

38

The following events occurred with respect to the case against the operator: on April15,
1996, a proposed penalty assessment was issued against the operator; on April 25, 1996, the
operator requested a hearing; on June 3, 1996, the Regional Solicitor filed a penalty petition with
the Commission; on June 10, 1996, the operator filed an answer; and by order dated June 21, the
case was assigned to a Commission judge.
Thereafter, on July 5, 1996, the Regional Solicitor filed a motion to stay the case against
the operator on the ground that an investigation was under way to determine whether individual
penalties should be preposed under section IIO(c). By response filed July 12, the operator
opposed the stay. On August 1 the Regional Solicitor renewed the motion for stay stating, inter
alia, that on July 30, the specialllO(c) investigators advised that their investigation and report
were complete, that the report had been forwarded to senior reviewing officials, and that a
decision on whether to proceed would be made within 30 days. Once again, the operator
opposed a stay, but on August 8, an order of stay was issued.
By letter dated January 6, 1997, the MSHA district manager advised the respondents that
assessment of civil penalties against them individually was warranted and that they could request
a conference. Respondents requested a conference which was held on February 4, 1997.
On February 10, 1997, the case involving the operator was reassigned to me and on that
day I issued an order requiring the Regional Solicitor to advise on the status of the· II 0(c)
investigation. On March 10, she responded that MSHA had completed its investigation, that an
informal conference was held on February 4 with the parties and their representatives, and that
MSHA had forwarded its recommendation on individual liability to the national office.
According to the Regional Solicitor, consideration by the national office was expected to be
completed by the end of March. Not having heard from the Regional Solicitor, my law clerk
telephoned her on May 21 at which time she stated that she would check and send something out
by the end of the week. However, no report was sent and on July 1 my law clerk again telephoned her. By letter dated July 8, the Regional Solicitor represented that the case was under
active consideration and a decision would be made by the end of the month.
Fimilly, on September 2, 1997, proposed assessments were issued against the individual
respondents under section 11 0(c). Between September 8 and September 17, respondents
requested hearings before the Commission and their requests were given the Commission docket
numbers captioned as above. Subsequently, on October 28, the Regional Solicitor filed penalty
petitions and on November 3 she flied a motion to lift the stay in the case against the operator
and consolidate it with these 110 (c) cases. On November 13, respondents filed a motion
opposing consolidation and requesting that these cases be dismissed because of the delay
in bringing them and because respondents had been prejudiced by the delay. The parties
subsequently filed additional motions which are considered herein.
At the outset I consider the motion filed by the Arlington Solicitor to strike respondents'
motion to dismiss these cases on the ground that their motion filed by fax was different from the
motion filed the following day by express mail. The Arlington Solicitor's motion cannot be
granted. The transmittal letter accompanying the mailed motion advised that the wrong version
had been faxed on the preceding day and requested that the faxed copy be replaced with the
mailed version.
The Arlington Solicitor further complains that affidavits completed by respondents as
well as their mailed motion contain the misrepresentation that in March 1996, the Regional

39

Solicitor told counsel that the 11 0(c) actions would be dropped. 1 . Respondents' reply brief
admitted that the statement was incorrect. I find that the misstatement is not a sufficient basis
upon which to reject respondents' motion. However, respondents' counsel should realize that
erroneous statements, particularly in sworn affidavits, reflect poorly upon his efforts as well as
upon respondents themselves.
I have reviewed the allegations of respondents that the Regional Solicitor made material
misrepresentations in her status reports. I reject these allegations and find that she furnished
information to the best of her ,knowledge in accordance with what she had been told. Wherever
the responsibility for the elapsed times in these cases may lie, it is not with the Regional
Solicitor.
It is further noted that respondents' recitation of the chronology of these cases is flawed.
In both its initial motion (p. 5) and its reply (p. 3) respondents through their counsel complain of
the 14 months between completion of the special investigation and the proposed notices of
assessments. As respondents well know and acknowledge elsewhere in their briefs, an informal
conference was held at their request in February 1997, in the midst of this period. Whether the
elapsed time was reasonable must be determined in light of relevant circumstances. But a
presentation which omits relevant facts damages respondents by making it more difficult to
accurately evaluate their claims.
In any event, respondents are entitled to have their claims evaluated on the basis of what
actually happened and in accordance with applicable law. Section 11 O(a) provides that a citation
be issued to an operator within a reasonable time. The legislative history speaks in terms of
reasonable promptness for the issuance of such citations. S. Rep. No. 181, 951h Cong., I sl Sess.
30 (1977), reprinted in, Senate Subcommittee on Labor, Committee on Human Resources, 95 1h
Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 618
( 1978). No such requirement specifically applies under section 11 0(c), but elemental fairness
requires application of this condition to 11 0(c) cases. Relevant to the meaning of this requirement is the legislative history which specifically recognizes that there may be instances where
issuance of a citation will be delayed because of the complexity of the issues raised, a protracted
accident investigation or other legitimate reason. S. Rep. No. 181, m at 30, Le2islative
History, supra at 618.
The tests by which delayed proposed penalty assessments under 110(c) are judged are
the same as those for delayed penalty petitions and proposed penalty assessments under section
llO(a). Steele Branch Minim~. 18 FMSHRC 6, 14 (January 1996)? The Commission has
permitted late filing of penalty petitions where the Secretary demonstrates adequate cause and
where respondent fails to show prejudice from the delay. .Salt Lake County Road D~artment,
3 FMSHRC I 714, 1716 (July 1981). The Secretary must establish adequate cause for the delay
in filing, apart from any consideration of whether the operator was prejudiced by the delay. If
the Secretary fails to demonstrate adequate cause, the case may be subject to dismissal. RhonePoulenc ofWyomin2 Co., 15 FMSHRC 2089 (October 1993),~, 57 F.3d 982 (10 Cir. 1995).
1

Even if true, respondents' argument which amounts to a claim of estoppel would be
without merit. Estoppel does not lie against the government. Kin2 Knob Coal Company,
3 FMSHRC 1417 (June 1981).
2

This holding was set forth in the decision of the Commission. The Commission tied 2
to 2 on the merits.

40

I reject, as contrary to Commission precedent, the Arlington Solicitor's contention that respondents must show both unreasonable delay and prejudice. Such an approach also would be
contrary to sound public policy because the Secretary could prevail despite endless procrastination as long as targeted individuals could not sustain their burden of proving prejudice. 3
As already set forth, the special investigation was completed and the report forwarded to
senior officials on July 30, 1996, ten months after the citations were issued. Five months later,
on January 6, 1997, the District Manager wrote respondents that penalties would be assessed
against them. The requested conference was held on February 4, and on March 10 the Regional
Solicitor informed me that additional investigation had been completed and recormriendations
were forwarded to the national office. Almost six months later, on September 2, proposed
penalty assessments were issued. It took a total of22 months after the citations were issued for
MSHA to issue the notices of proposed assessments.
I have held that a prolonged or complicated investigation may justify a long delay. In
James Lee Hancock, 17 FMSHRC 1671 (September 1995), I denied a motion to dismiss where
the delay was seventeen months, but the Solicitor explained in detail what transpired during the
investigative phase. In Hancock. the investigation was prolonged because two additional
citations were issued during its course and the investigative file consisted of more than 400
pages. Although I found adequate cause for the time taken in that case, I cautioned that such
delays were troubling. See also Wharf Resources USA Incorporated, 14 FMSHRC 1964
(November 1992). In the instant cases there has been no allegation that the investigation Wa$
prolonged or complicated.
Delay has also been allowed where there have been special circumstances such as a
government shutdown. Roger Christensen. 18 FMSHRC 1693 (September 1996). No such
circumstances are present here. A high number of 11 0 (c) investigations and a rise in the number
of 11 0(c) contests are factors to be considered in allowing late filed penalty petitions. See
Hancock, supra, at 1674. This consideration also does not obtain here since Commission records
show that the number of 11 0 (c) cases filed with the Commission dropped from 196 in FY 1995
to 56 in FY 1996 to 70 in FY 1997.
The Arlington Solicitor advances a number of arguments in his sur-reply brief which
must be addressed. He states that the Secretary was handicapped because respondents refused to
furnish written or oral evidence to MSHA investigators. According to the Solicitor, the refusal
complicated review. This argument is rejected. Respondents are under no obligation to give
evidence, particularly since criminal investigation and prosecution are possible. The Arlington
Solicitor next argues that MSHA would have completed action on January 6, if respondents had
not requested the informal conference which was held on February 4. In his view, to penalize
MSHA for the addi~ional time taken after the conference, would have a chilling effect on the
agency in carrying out its functions and result in meaningless conferences. This argument is also
rejected. It places responsibi_Iity for the time taken by MSHA upon respondents because they
3

Respondents claim prejudice because an eyewitness to the accident who has retired for
psychological reasons is not available to testify. In addition, they state that a second witness who
has retired because of age is unavailable due to age. The Regional Solicitor's argument that the
testimony of these individUals can be had in written form is unpersuasive, because cross
examination as well as examination from the bench would not be possible. Even if prejudice
were a consideration, respondents would be entitled to offer further support for their allegations
on this issue and a determination about going forward on the merits could not be made until that
was done.

41

requested a conference. The chilling effect would be upon individuals who would be forced to
choose either not to have a conference or have one and be held responsible for elapsed times over
which they have no control. The suggestion that the conferences would become meaningless if
MSHA were held accountable for the time it took to reach a decision is disapproved as demonstrating a lack of confidence in MSHA's abilities. Finally, the Arlington Solicitor's unsupported
reference to July 30, 1997, as the date MSHA ultimately decided to proceed, is unfounded. Even
assuming some internal decision was made on that date, it has no significance for respondents
who did not learn of MSHA' s position until the notices of proposed assessments dated September 2, 1997. Use of July 30 is a rather artless attempt to shorten the time MSHA used to decide
whether or not to proceed.
-

The Arlington Solicitor does not allege any complications with respect to the investigation and offers no specific information with respect to what transpired during the 22 months it
took to issue the notices of proposed assessments. He merely states the evidence was very
seriously considered at the local and national levels ofMSHA and by the Solicitor's office. But
beyond those generalities there is nothing to explain what took 22 months. The Solicitor
attempts to justify various time frames within the 22 months. However, the task here is not to
evaluate the time it took to complete each phase from investigation to review to decision. A
determination must be made based on the total time. Because the record indicates no difficulties
in either investigation or evaluation and because no acceptable reason has been given to explain
the delay, I find that adequate cause does not exist to justify the 22 months MSHA and the Office
of the Solicitor took to complete action and issue the notices of proposed assessments. This is
not to say that 22 months would be too long in every case. The determination of timeliness must
be made on a case by case basis.
These cases are similar to Raymond P. Ernst, 18 FMSHRC 1674 (September 1996)
where late filed penalty petitions were dismissed. In that case I held as follows:
The reasons offered by the Solicitor in these cases to justify the late
filings fall short of what is required for a showing of adequate cause. The
Solicitor makes the briefest of responses which contains only general statements
about events which allegedly caused the untimeliness. The specific circumstances are not addressed. The Solicitor refers to many hours of review, but the
actual times spent and the chronology of those times are undisclosed. He
mentions many meetings between interested parties, but does not say who the
parties were or when the meetings took place. Finally, the Solicitor fails to
sufficiently answer respondents' allegations because he does not distinguish
between the delay in filing the penalty petition and the delay in the investigation
phase. Because the Solicitor's explanation is general and vague, it could apply
to any 11 0(c) case where timeliness becomes an issue.

lit. at 1676. The holding in Enill applies to these cases.
In light of the foregoing, it is ORDERED that respondents' motion to dismiss
is GRANTED.
It is further ORDERED that these cases are DISMISSED.

-

-

\\
Paul Merlin
Chief Administrative Law Judge

42

Distribution: (Certified Mail)
Mark Malecki, _Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203
Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard
Jones Road, Suite B-201 , Nashville, TN 37215-2862
Mark N. Savit, Esq., Patton Boggs, L.L.P., 2550 M Street, N.W., Washington, DC
20037-1350
.
/gl

43

FEDERAL Ml:NE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 1 5 1998
SECRETARY OF LABOR,
MINE SAFETY AND HEALTil
ADMINlSTRATION (MSHA)
on behalf of RONALD MAXEY,
Complainant
v.

: Docket No. KENT 97-257-D
: BARB CD 97-07

LEECO, INCORPORATED,

: Mine No. 68
: Mine ID No. 15-17497

: DISCRIMINATION PROCEEDING

Respondent
DECISION
Appearances:

Mary Beth Bemui, Esq., Office of the Solicitor, U.S. Dept. of Labor,
Nashville, Tennessee, on behalf of the Secretary of Labor;
Tony Oppegard, Esq., Mine Safety Project of the Appalachian Research
and Defense Fund of Kentucky, Inc., Lexington, Kentucky,
on behalf of Ronald Maxey;
Marco Rajkovich, Jr., Esq. and Julie 0. McClellan, Esq., Wyatt, Tarrant &
Combs, Lexington, Kentucky, on behalf of Leeco, Incorporated.

Before:

Judge Melick

This case is before me upon the Coll)plaint filed by the Secretary of Labor, pursuant to
Section 105(c)(2) of the Federal Mine Safety Health Act ·o f 1997, 30 U.S.C. § 801 et. seq., the
''Act," alleging that Ronald Maxey was discharged by Leeco, Incorporated (Leeco), in violation
of Section 105(c)(1) of the Act. 1

1

Section 1OS(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 exercise of the statutory rights of
any miner, representative of miners or applicant for employment in any coal or other mine
subject to this Act, because such miner, representative of miners or applicant for employment has
filed or made a complaint under or related to the 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 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

44

In her Complaint, the Secretary alleges as follows:
On or about February 11, 1997, Maxey was discharged by
respondent because he had exercised rights under the Act by complaining
to representatives of the Mine Safety and Health Administration about
WlSafe working conditions at the No. 68 mine. These conditions included
no brakes or lights on the railrunners and the "white tub" mantrip,
railrunners sticking on point, no track communication, sanders not functioning on railrunners due to water on the track, no jacks or bars on
the railrunners, overcrowded mantrips, switches installed incorrectly on
the track and railrunners colliding with each other because of no lights or
brakes.
At hearings on the Secretary's Application for Temporary Reinstatement, held July 2,
1997, Senior Special Investigator for the Mine Safety and Health Administration (MSHA)
Ronnie Brock, testified that on February 5, 1997, he talked to Maxey by telephone? Maxey was
then in another MSHA office with Special Investigator Maurice Mullins. Brock testified that
Maxey claimed he had been suspended because he made safety complaints to the operator.
Brock then explained to Maxey his right to file a "I 05(c)" complaint.· Maxey declined, stating
that he would wait. Brock told Maxey that he was nevertheless obligated to send an inspector to
the mine based upon Maxey's allegations of safety hazards. Brock documented the conversation
and told Mullins to obtain details of the allegations from Maxey.
Don Baker, a regular MSHA inspector at the Leeco No. 68 Mine, who was familiar with
Maxey, received a telephone call from Maxey on the evening of February 4. Maxey reported that
he was having trouble with the company and needed to talk. Baker met with Maxey the next day
at the MSHA office and referred Maxey to Special Investigator Mullins, who was also then
present in the office. On February 6, Baker's supervisor gave him a checklist of items to be
inspected at' the .No. 68 Mine (Gov't Exh. 5).
Early in the morning ofFebruaiy 7, Baker and MSHA engineer Scott Whitaker proceeded
to the No. 68 Mine to conduct the inspection. Meeting initially with second shift mine foreman
Ricky Campbell, Baker stated that he was continuing his regular inspection and would be looking
at, among other things, the escapeway. Baker did not immediately inspect the rail equipment, the

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 this Act.
By agr~ment of the parties, the July 2, 1997, record of the Temporary Reinstatement
Proceedings is incorporated herein by reference. The transcript of those proceedings is
designated as "Tr. I" and the transcript of proceedings on the merits held September 30, 1997, is
designated as "Tr. II." It should be noted that the decision ordering temporary reinstatement
dated July 8, 1997, was issued without benefit of the completed record now available. Final
credibility determinations have now been made based on this completed record.
2

45

. .
subject of Maxey's complaints, but proceeded first to the escapeway. He then proceeded to the
track entry to deal with the issues in Maxey's complaint. As a result of his inspection on
February 7, Baker issued one citation and four notices-to-provide-safeguards relating to the rail
equipment. (Gov't Exh. 6 and 7). Baker had never previously issued this many safeguards at
one time and, indeed, had only once before issued a safeguard at the mine. Baker returned to the
mine on February 9, and issued two additional citations for violations on the rail equipment.
Baker testified that he did not give Leeco the list of safety problems furnished by Maxey nor did
he tell anyone that he was present because of Maxey's complaint.
Maxey testified that he had worked for Leeco for sixteen years prior to his suspension and
had been a railrunner for the previous ten years. He had been a railrunner at the subject mine for
one and one half years. He explained that it is an underground mine with three sections. His job
was to haul supplies to the head drives and to the working sections. He worked the 6:00 am. to
3:00p.m. day shift, primarily in the 003 Section. At the time of his discharge, Vic Lewis was his
supervisor.
According to Maxey, on February 4, 1997, he arrived at work around 6:00am. and met
with Lewis. Maxey acknowledged that on the previous day he was supposed to have taken
"eight-by-eight's" to the section to be used for track support. Maxey reportedly told Lewis that he
had not done so, claiming he had not had time because he and Lewis had built a cement-block
wall the day before. According to Maxey, Lewis then responded, "then you need to go to 004
section ... so you'll know what coal mining is about" (Tr. l. 76). Maxey refused to go to the
section and Lewis then told him to report to mine superintendents Amon Tracey or Everett Kelly.
When Tracey later arrived, Maxey reported that Lewis had sent him to meet with him. Tracey
conferred with Lewis and returned saying, "it sounds like to me that you quit," and told Maxey to
get off mine property (Tr. I. 77).
Maxey denied to Tracey that he quit but, as he was leaving the mine property, he ran into
Talmadge Mosley, Leeco's President. Mosley intervened with Tracey and, 20 or 30 minutes
later, Maxey was called back and told that, rather than be fired he would only be suspended for
five days. According to Maxey, Tracey then told him to return on February 11, to operate the
"Lo-Lo," maintaining cables and shoveling loose coal at the belt. Tracey then asked Maxey if he
had any written warnings and Maxey purportedly responded that he "didn't think so.. (Tr. I. 81).
That same day Maxey called MSHA Inspector Baker and followed up with a visit to the
MSHA office the next day. He reportedly told Baker that he was suspended because of
complaints he made to mine officials regarding the condition of the hoist and the railrunners. He
subsequently met with Special Investigator Mullins and provided him with a checklist of items
(Gov't Exh. 5).
Maxey thereafter returned to work on February 11, at about 5:40am. No one from Leeco

had contacted him after his February 4 suspension. As he was dressing for work, Lewis told him
to see Tracey. According to Maxey, Tracey told him that, after reviewing his records and, in
light of his refusal to work, he had decided to terminate him. Maxey maintains that he was
shown three written warnings, one each in 1984, 1985 and 1987, and that he told Tracey that

46

these were ten years old. Tracey purportedly did not respond. · Maxey testified that, on February
4th, he did not recall that he had received these earlier warnings, although he did remember when
shown them on February 11.
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 persuasion that he engaged in
protected activity and that the adverse action complained of was motivated in any part by that
activity. Secretary on. behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(October 1980) rev'd on grounds, sub nom. Consolidation Coal Co. v. Marshall, 663 F2d 1211
(3rd Cir.l981 ); and Secretary on behalfofRobinette v. United Coal Co., 3 FMSHRC 803, 81718 (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. Pasula, 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, 119 F.2d 194, 195-96 (6th
Cir.1983) (specifically approving the Commission's Pasula-Robinette test). Cf NLRB v.
Transportation Management Corp., 462 U.S. 393, 397-413 (1983) (approving nearly identical
test under National Labor Relations Act).
It is undisputed in this case that Maxey engaged in protected activity by reporting safety
complaints to MSHA on February 4 and 5, 1997, and that he subsequently suffered adverse
action (discharge). As noted, the second element of a prima facie case of discrimination is a
showing that the adverse action was motivated in any part by the protected activity. As this
Commission observed in Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (November 1981)
"[d]irect evidence of motivation is rarely encountered; more typically, the only available
evidence is 'indirect." The Conunission 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."

Leeco maintains in this case that it had no knowledge of Maxey's protected activity at the
time of his discharge and, therefore, it was not, and could not have been, motivated in any part by
such protected activity. More specifically, Leeco maintains that Mine Superintendent Amon
Tracey made the decision to discharge Maxey on February 6, 1997, when Tracey purportedly
confirmed that Maxey had six prior warnings in his personnel file and therefore believed that
Maxey had lied to him on February 5 in denying that he had any prior warnings. If Tracey did in
fact make the decision to discharge Maxey on February 6, 1997, then it is apparent that the
discharge was not motivated by Maxey's protected activity and that the discharge was therefore

47

not in violation of the Act.3 The Complainant maintains, on the other hand, that Tracey did not
in fact decide to discharge him on February 6, but rather made that decision only after the MSHA
inspections on February 7 and 9. The Complainant argues that it may reasonably be inferred
from the circumstantial evidence that Tracey knew of these inspections, that he believed that
Maxey had triggered such inspections and that Tracey did not actually decide to discharge Maxey
until sometime after those inspections.
Leeco's case depends on the testimony of its Superintendent, Amon Tracey. ·Tracey
testified that he first learned of a problem with Maxey around 7:30 on the morning of February
4th when he called mine foreman Victor Lewis. Lewis, who was Maxey's super\Tisor, reported
that Maxey had failed to take some "eight by eight's" into the mine and that he was going to
send Maxey to the 4 Section in the belief that he needed closer supervision. When Tracey later
arrived at the mine around 9 a.m., Maxey reported to him that there had been a mix-up and that
he was told· by Vic Lewis to see him. Tracey then conferred with Lewis who reported that Maxey
had twice refused to go to.the 4 Section. Tracey concluded that Maxey had quit by refusing a
direct work order. Tracey then asked Maxey if he had any other disciplinary slips and Maxey
said, ''No." Tracey directed Maxey to leave mine property on the basis of his belief that Maxey
had quit or had been fired for disobeying a direct work order.
At that time Leeco's President, Talmadge Mosley, pulled up and conversed with Maxey.
A few minutes later, Mosley asked Tracey about Maxey's status and intervened on his behalf.
Mosley indicated that Maxey he had been with the company a long time and suggested that the
punishment may have been too harsh. He asked Tracey to reconsider. Tracey then recalled
Maxey and gave him a five day suspension. Maxey was to return on February 11th, reporting to
the 4 Section as a belt man or scoop man.
According to Tracey, that evening or the following day, February 5, he told mine foremen
Everett Kelly and Victor Lewis about Maxey's problem and both reported having issued Maxey
prior verbal warnings. Based on this information, Tracey called the company personnel office
located in London, Kentucky, to check on Maxey's past discipline. According to Tracey,
Maxey's prior warnings were read over the phone by "personnel man" A.B. Foreman. Tracey
testified that Fred Shannon. Leeco's safety director, brought the disciplinary slips from the
London office on February 6, and after looking them over, commented to Shannon that he was
going to flre him because he lied "(Tr. I. 22). Tracey maintains that he was then unaware of
Maxey's visit to the MSHA offices.
Tracey maintains that he thereafter talked to Talmadge Mosley on the telephone about
Maxey's prior disciplinary slips and received Mosley's approval to fire Maxey. Tracey
maintained that he did not then call Maxey because he did not have his correct telephone number
and did not "feel like going up and knocking on the man's dooru even though he lived .only three

3 There is no allegation or evidence that, prior to the February 7, MSHA inspection, any

Leeco personnel knew or had reason to know of Maxey's confidential complaints to MSHA on
February 4 and 5.

48

quarters of a mile away (Tr. I. 274). When Maxey returned to·work on February 11th, Tracey
showed him the six disciplinary slips, told him that he had lied and discharged him. These
copies had been sent from the London office by facsimile on February 1Oth. Tracey maintains
that he did not complete the discharge notice until February 11th, although he had previously
decided to discharge him on February 6th. Tracey testified that he told Vic Lewis, Talmadge
Mosley, Fred Shannon and possibly Everett Kelly, prior to February 11th, that he was going to
fire Maxey.
Fred Shannon testified that Maxey told him on February 4th that he "messed up bad,
thought that he'd fooled around and lost his job" (Tr. l. 304). Maxey admitted to Shannon that
he had refused to report to the No. 4 Section as he was told. Shannon claims that he became
aware of Maxey's six warning slips on February 5. He purportedly picked up the original
warning slips that same evening from the company's London office and delivered them to Tracey
the following day, Thursday, February 6. Aecording to Shannon, Tracey looked at the warning
slips in his presence and then stated that he had decided to terminate Maxey. Shannon explained
that the warning notices he hand-delivered to Tracey on February 6, were returned to Maxey's
personnel file and that copies of the notices were subsequently faxed on February 10, upon
Tracey' s request.
At hearings on the merits, Shannon explained that on February 5th, he overheard the
telephone conversation between A.B. Foreman and Tracey. From what he was able to hear,
Tracey was discussing the warning slips and said that he needed copies. "A.B." apparently then
put them in an envelope for Shannon to pick up, and Shannon did in fact pick them up at the
London office that evening. On February 6, the following morning, Shannon brought the
envelope to Tracey's office and it was opened in his presence. Tracey said that there were six
warning slips and that Maxey had lied to him. Later that day Shannon returned the slips to
Maxey's file in the London office.
On Monday, February 10, the next time he talked to Tracey, Tracey purportedly asked to
see the Maxey file again. Shannon thought that he had told Tracey the file was back in London,
but said that he would have the reports faxed to him. Shannon explained that the disciplinary
files for company employees are kept in the personnel files maintained at the London offices.
Shannon was present when the warning slips were faxed to Tracey in his office.
Shannon testified that he was not aware on February 7th, that inspector Baker was at the
mine. He subsequently learned either on Saturday, February 8th, or the following Monday that
Baker had been at the mine. Shannon testified, however, that it did not surprise him that Baker
was inspecting on a Friday and Sunday, as this was not unusual. He also observed that during
January 1997, the mine had twenty inspection days and had fourteen in ·f ebruary. He also noted
that the mine had been inspected on a Friday only the week before the hearings.
James Everett Kelly is now a mine superintendent at Leeco's No. 68 Mine. He was an
assistant to Tracey during relevant times. Vic Lewis told Kelly on February 4th that he wanted to
transfer Maxey to the 4 Section. Kelly agreed. Kelly later learned that Maxey had refused to go
to the 4 Section and that disciplinary action had been instituted. Kelly maintains that he told

49

Tracey that he thought Maxey should have been terminated for refusing to work. According to
Kelly, one or two days following the February 4th suspension of Maxey, Tracey told him that he
was going to tenninate Maxey because he had lied about his disciplinary record.
Kelly became aware on February 9th, while working at another mine, that inspector Baker
was at the No. 68 Mine. Kelly was not, however, surprised that Baker inspected on a Sunday
and did not find it unusual for Baker to be at the mine on a weekend. He was unaware that
Maxey had visited the MSHA offices on February 9th. On cross-examination Kelly explained
that he had seen the prior warning slips when Tracey showed them to him some two or three days
after February 4th, i.e., either on the 6th or 7th. He was certain that it was not after the weekend.
At that time Tracey said that he was going to terminate Maxey.
A.B. Foreman is Leeco's worker's compensation coordinator. His office was located in
London, Kentucky, where the personnel files are kept. He recalled that Tracey had called and
asked if Maxey had any warning slips in his personnel file. According to Foreman, Tracey held
on the phone line while he searched for the warning slips and then reported them over the phone
to Tracey. Tracey then allegedly told Foreman that he would have Shannon pick them up and
Shannon in fact picked them up later that afternoon. Foreman recalled that it was a few days
later when Tracey again called and said he needed more copies of the.warning slips, and needed
them right away. Foreman then faxed those copies to Tracey on February lOth as noted on the
top of the warning slips in evidence as Government Exhibit 3.
Talmadge Mosley, Leeco's President, recalled meeting with Maxey on February 4, 1997,
right after he had initially been fired. Maxey told Mosley "they fir~d me and I don't know why"
(fr.II. 201). Mosley then intervened with Tracey on Maxey's behalf arguing that Maxey had
been with the mine a long time and that discharging him may have been "a little too harsh" (fr.
II. 203). Maxey purportedly also told Mosley that he had no other disciplinary actions. On
Thursday, February 6th, Mosley purportedly talked to Tracey by telephone. Tracey claims that
he told Mosley that Maxey bad lied to him and that in fact he had six warning slips in his file.
According to Mosley, Tracey said that he was therefore going to fire Maxey 8nd he approved
(fr. II. 205).
Evaluation of the Evidence
While the testimony of the operator's witnesses might superficially appear to support its
claims that it in fact discharged Complainant on February 6, 1997, prior to the MSHA
inspections, upon closer scrutiny and upon evaluation of the documentary evidence (and lack
thereof), I find that its claims fail the test of credibility. It is the combination of a number of
inconsistencies that leads to this conclusion. In particular the credibility of two key witnesses,
general mine superintendent Amon Tracey and safety inspector Fred Shannon, must be viewed in
light of inconsistent statements and testimony. For example, at the unemployment insurance
hearing held on June 24, 1997, prior to the temporary reinstatement hearing, Tracey testified on
three separate occasions that "the engineers" from Leeco's London, Kentucky office, which is
located approximately 70 miles from Tracey's office at Jeff, delivered the written warnings to
him on February 6th.

so

In addition, when asked why copies of the written warnings were faxed from Leeco's
London office to Tracey's office on February lOth, the day before Maxey's discharge, Tracey
testified that he "couldn't find" the copies that had been personally delivered to him on the 6th,
so he called A.B. Foreman at the London office on the lOth and asked Foreman to fax him
another set of copies.
Tracey also testifieq, however, that he subsequently found the copies that had been
delivered to him on the 6th and those copies, not the fax copies, were the ones he purportedly
showed Maxey when he discharged him on February 11th. More specifically, Tracey testified at
the unemployment insurance hearings that "I later recovered my copies. I have them now, the
originals, that Ronnie Maxey looked at" (Jt. Exh. 1). In contrast, Tracey testified at the
temporary reinstatement hearing that Fred Shannon, who he identified at trial as "our safety man"
(and who had been safety director for two years and whose office was located next to Tracey's)
and not the engineers from the London office, had hand-delivered the packet of written warnings
to him on February 6th (Tr. I. 271, 291). While Respondent notes that Shannon previously
worked in the engineering department the record shows that that had been 4 Yz years earlier.
Tracey himself never explained this inconsistency.
Fred Shannon' s explanation of what happened to the warning. slips that he supposedly
hand-delivered to Tracey on February 6th also contradicted Tracey's testimony at the
unemployment insurance hearing. Shannon testified that on the afternoon of February 6th (after
he had delivered the envelope of warning slips to Tracey) Tracey gave the written warnings back
to him and told him to keep them for him (Tr. II. 92-93, 103-105). Shannon claimed that he then
unwittingly placed the warning notices in Maxey's training file, and took the training file to the
London office where he put it in Leeco's "safety department filing cabinet" (fr. II. 106-109, 9395).
According to Shannon, four days later, on February 1Oth, Tracey came to his office and
said he needed the warning slips back to show to Maxey the next morning (when he was going to
discharge Maxey). At that point, Shannon allegedly remembered that he had accidentally put the
warning slips in the training flle, and put the training file in the safety department file in London
(fr. II. 95-96, 109-11 0). Because the warning slips were back in the London office, and Tracey
needed them the following morning, Tracey said be would just have A.B. Foreman fax him
another set of the notices (Tr. II. 96, 123).

As already noted, however, Tracey testified at the unemployment hearing that on
February 11th be bad shown Maxey the same written warnings that had been personally delivered
to him on February 6th and not the copies that were faxed to him on the 1Oth. Indeed, if
Shannon's version of events was true, Tracey could not have shown Maxey the band-delivered
copies on the 11th because they supposedly were sitting in a file cabinet 70 miles away.
Shannon's testimony about how he came to pick up and personally deliver the warning
slips to Tracey on February 6th also contradicts Tracey's testimony at the unemployment
insurance hearing. At the hearing on the merits of this case, Shannon testified that he went into
Tracey's office on February Stb and overheard Tracey talking to Foreman on the telephone

51

"about some warning slips, and he needed a copy of them, that he needed to see them" (fr. n.
90). Shannon said that Tracey "was still on the phone when I told him if he [Foreman] would put
it in an envelope ... I could pick them up for him" (fr. II. 90-91).4
Shannon alleged that when he personally delivered the packet of warning slips to Tracey
on February 6th, Tracey opened up the envelope in his presence, looked at the written warnings,
and declared that the "was going to fire him [Maxey]" (fr. IT. 91-92 and 123-124, Tr. I. 311).
However, at the unemployment hearing, Tracey testified that he did not talk about Maxey on
February 6th wi~ anyone other than Talmadge Mosley and Everett Kelly (UI141, Q42). Indeed,
although Shannon purportedly played a prominent role in support ofLeeco's cases, Tracey never
mentioned Shannon during his testimony in the unemployment hearing (Jt. Exh. 1, pp. 126-185).
In addition to the inconsistencies between the testimony of Tracey and Shannon, it is also
noteworthy that i.p his statement to MSHA, Shannon did not mention supposedly picking up the
warning slips and delivering them to Tracey. In fact, on March 12th, the date of Shannon's
statement, the extent of his pwported knowledge about Maxey's discharge was as follows:
On Thursday, February 6, 1997, Amon Tracey told me that he bad followed up on
Ronnie Maxey's file & found out that he had been wrote up 6 times. He also said
that Everett had verbally warned him [Maxey] & so had Vic. He told me be was
going to call Talmadge & tell him that he was going to fire Ronnie Maxey after
finding he had lied to him (Gov. Exh. 8, p.3).
·
As Complainant observes in his brief, it defies common sense that Tracey would have
told Shannon that he had checked on Maxey's personnel file and learned about the written
warnings if, as Shannon testified, he (Shannon) had personally delivered the warnings to Tracey
on February 6th, and watched Tracey read the warning slips in his presence.s
Leeco's claim that the written warnings were personally delivered on February 6th to
Tracey, whose office·was located 70 miles from the company's London office, rather than simply
faxed to him in the first instance, is also suspect. In this regard, it is undisputed that Leeco
regularly faxed from the London office to Tracey's_office at the No. 68 mine its daily reports
regarding MSHA citations issued to the company (fr. I. 288-290). In light of the contradictory
testimony of Tracey and Shannon, and Shannon's inconsistent accounts of how he came to
volunteer to pick up the warning slips in the first place, Leeco's assertion that the written
warnings were hand-delivered to Tracey on February 6th is indeed not credible.
\

4

Shannon thereby also contradicted his own testimony at the temporary reinstatement
hearing, wherein he stated that he bad talked to Tracey about picking up the warning slips
sometime after Tracey had talked to Foreman, i.e., he did not claim to have walked in on
Tracey's phone conversation with Foreman (fr. I. 310).
s It should also be noted that Tracey, in his statement to MSHA, likewise did not allege
that Shannon bad delivered the warning slips to him. ~ Joint Exhibit 2.

52

As Complainant further notes in his brief, Leeco's version of events requires that one
ignore both its contradictory testimony and common sense while the Complainant, on the other
hand, has proof that copies of the written warnings were faxed to Tracey on February lOth, one
day after MSHA had completed its second inspection at the No. 68 mine, and one day before
Maxey was discharged. (Gov't Exh. 3).
The reason advanced by Leeco as to why Tracey purportedly decided to check Maxey's
personnel file in the fi.r st place, i.e., his suspicion that Maxey had lied about his disciplinary
history, is also suspect. Tracey testified that when Vic Lewis and Everett Kelly both told him
shortly after he had suspended Maxey on February 4th that they had previously given verbal
warnings to Maxey, "that kind of rung a bit of a bell with me" (Tr.l. 269, 294). In light of
Tracey's testimony that he asked Maxey on February 4th whether he had ever received any
"disciplinary slips" (i.e., written warnings) it strains credulity that thereafter learning about verbal
warnings would have prompted Tracey to investigate Maxey's work history. Indeed, in his
MSHA statement, Tracey claimed that he had held the opinion that Maxey "was not a very good
worker" for 6-12 months before he fired Maxey. If that was true, it is highly unlikely that Tracey
would have been surprised to hear that Maxey had previously been given verbal warnings.
Moreover, at the unemployment hearing, Tracey admitted that he had known about Vic
Lewis' purported verbal warning to Maxey for several months before the suspension of Maxey.
Thus, the only verbal warnings that Tracey could have learned about after suspending Maxey
were those purportedly given by Everett Kelly. It is also noted that when he was questioned at
his deposition in this proceeding, Kelly did not say that he had told Tracey about verbally
warning Maxey (Tr. II. 163-166). Kelly likewise in his statement to MSHA, did not mention any
disciplinary problems he had had with Maxey (Tr. II. 166-167). While Kelly could have
inadvertently omitted this information in his deposition and statement to MSHA, it is
nevertheless another factor to consider in evaluating the credibility of Kelly's trial testimony that
he had informed Tracey of having given verbal warnings to Maxey. It is significant moreover,
that even if Kelly had told Tracey about alleged verbal warnings he bad given Maxey, Kelly
himself admitted that such warnings would not .have been considered by Leeco in disciplining its
miners (Tr. II. 168).
The documentary evidence, and lack thereof, also fails to support Leeco's claiins. As
previously noted, Leeco has produced no documentary evidence establishing that Tracey's
decision to discharge Maxey was made on February 6th. Indeed, the documentary evidence, i.e.,
the written warnings that were faxed to Tracey on February 1Oth (Gov't Exh. 3) and the
discharge notice dated February lith (Gov' t Exh. No. 2), suggests otherwise. In addition, the
absence of telephone records.to corroborate the alleged February 6th telephone conversation
between Tracey and Leeco President Talmadge Mosley is significant. Mosley testified that on
Thursday, February 6th, while he was in Pennsylvania on company business, he called Tracey.
According to Mosley, Tracey told him during that conversation that he was going to fire Maxey
because Maxey had lied about his disciplinary history (Tr. ll. 204). This testimony mirrored
Tracey's testimony at the temporary reinstatement and unemployment insurance hearings (fr.l.
273).

53

However, when Mosley gave his statement to MSHA on March 12th, in the presence of
Tracey and Marco Rajkovich, Leeco's attorney, he stated that Tracey had called him on the
morning of February 6th. This inconsistency is significant in light ofthe fact that Tracey
likewise told MSHA on March 12th, just 5 weeks after the alleged phone conversation of
February 6th, that he had called Mosley. Thus, both Tracey and Mosley told MSHA that Tracey
bad initiated the phone call on February 6th, yet both testified inconsistently at the discrimination
and unemployment hearings that Mosley had made the call.
Th.is inconsistency may be significant because if Tracey had initiated the telephone call
from Leeco's offices it would be a simple matter to prove such a call by the production of
Leeco's own telephone records. It may reasonably be inferred under all the circumstances that
after it was realized that such a call could not be corroborated by Leeco's records, since there was
in fact no such call, both Mosley and Tracey's testimony was modified to reflect this problem.
Thus, their testimony was subsequently changed to suggest that Mosley had initiated the call.
As Complainant also observes in his brief, the inference that Leeco's defense was
fabricated may also be derived from two other compelling circumstances. First, the evidence
suggests that Maxey was indeed not frred for allegedly lying, thereby supporting the conclusion
that the decision to fire Maxey was not made on February 6th. In this regard it is undisputed that
Tracey made the decision to discharge Maxey, and that he wrote the discharge notice himself on
February lith (Tr. I. 280-281). The notice states as follows:
After nwnerous times of written warning Ronnie Maxey' s work is still
unsatisfactory. Also disobeyed a direct order. (Gov't Exh. No.2).
If, in fact, Tracey had decided on February 6th to discharge Maxey on the grounds that he

lied about his disciplinary history, it is inconsistent and therefore suspect that Tracey did not
indicate on the discharge notice that lying was in fact the basis for the discharge. Instead, Tracey
stated that Maxey's work was unsatisfactory because he had refused a work order (which was the
basis for his previous 5 day suspension) after having previously received "numerous" written
warnings. Moreover, Tracey did not offer any j~cation or explanation at either the
discrimination or unemployment hearings for his failure to state on the discharge notice that
Maxey was being fired for lying or dishonesty.
The second circumstance is based on the actions of Shirley Grant, Leeco's assistant
human resources coordinator, in filing Leeco's responses to Maxey's unemployment claim. This
evidence also circumstantially leads to the inference that Maxey was not fired for alleged lying.
Grant testified that it was her responsibility to respond to unemployment claims against Leeco
(fr. ll. 67). When a worker from the local unemployment office called Grant, sometime after
February 20th, to get the company's.position as to why Leeco had discharged Maxey, Grant
responded that Maxey had been fired for refusing two direct work orders. At trial, Grant
attempted to explain this inconsistency by testifying only that the unemployment office "wanted a
reply very, very shortly," and she therefore could only talk with Vic Lewis, Maxey's immediate
fo~ and not with Tracey, who had discharged Maxey (fr. n 80-82).

54

In additio~ Leeco's appeal of the initial unemployment insurance determination (in

Maxey's favor) further suggests that Leeco's claim that Maxey was fired for lying was pretextual.
In this regard, the following colloquy ensued at the unemployment bearings regarding Grant's
testimony:
Attorney: And who instructed you to appeal?
Grant: It came from Amon [Tracey], from the job, from the superintendent. I
can't remember if it was exactly from Amon to me. It might have went
from Amon to my supervisor to me .. .
Q:

And who - did someone instruct you to state what your reason was for
appealing?

A:

Yes, insubordination, yes. I mean, that's what we said all along is that he
failed to follow two orders.

Q:

Okay, but what I'm asking you is, that's not something that you wrote on
your own. You were told that that was the reason; that's what you should
put in your appeal notice?

A:

Yeah, we discussed that. I mean, that was the reason, misconduct.

Q:

Who was "we?"

A:

With Amon and- yeah, I can't remember if Everett [Kelly] was there. I
don't remember that.

Q:

So, as best you remember, Mr. Tracey and perhaps Mr. Kelly told you to
appeal, and the basis for appealing was insubordination or the reason for
discharge was insubordination.

A:

lnsubordinatio~ yes (Tr. II. 71-72).

.

No mention is made that Maxey bad been fired for lying or dishonesty. Grant indicated
that the company's position "all along" was that Maxey bad been discharged for
"insubol'd.i.Ution" - i.e., for "fail(ling] to follow two orders."
Subsequently however, when Grant testified at the instant discrimination hearing, she
initially claimed that Tracey bad told her to appeal the unemployment claim because Maxey bad
been fired for refusing to follow work orders and for lying (Tr. ll. 70). She explained, only after
she was presented with her prior testimony from the unemployment hearing, that she "should
have" mentioned lying as a basis for the discharge during that earlier testimony (Tr. n. 73). This
explanatio~ given all of the other inconsistencies in Leeco's case, does not ring credible.

55

In sum, all of the docwnentacy evidence in this proceeding (i.e., the written warnings that
were faxed to Tracey on February lOth, the discharge notice of February 11th, and Leeco's
unemployment appeal notice of March 5th (Gov't Exhibit 11) support the Complainant's
contention that the decision to discharge him was made only after Tracey's receipt of the warning
slips on February lOth, and that he was not fired for lying as Leeco now claims. At the same
time there is no documentary evidence that supports Leeco's claim that Tracey decided to fire
Maxey on February 6th for lying.
Finally, the fact that Leeco made no attempt to contact Maxey prior to February 11th,
regarding his purported discharge, supports the conclusion that the discharge decision was not
made until after the London office faxed the warning slips to Tracey on February 1Oth. Tracey
claims that when he saw a "598" prefix listed for Maxey's phone number, he knew it wasn't the
right number. He therefore did not call the number, for example, to try to contact someone who
could then get in touch with Maxey- because Maxey "was the man [he] wanted to see" (Tr. I.
285).
It is undisputed that Tracey knew that Maxey lived within a mile of the No. 68 mine (Tr.
I. 300) and no doubt also knew that he lived on property owned by Leeco (Tr. ll. 124-125).
Nonetheless, Tracey admits that during the 5 day period between Tracey's purported decision to
fire Maxey and Maxey's return to the mine on February 11th, he made no effort to contact Maxey
other than supposedly checking a list of employee telephone numbers on his office wall (Tr. ll.
283-286). Specifically, Tracey did not attempt to send Maxey a discharge notice in the mail (Tr.
II. 285), did not go to his home, and did not make any effort to determine Maxey's phone number
despite his admission that immediately contacting a discharged employee is the proper thing to
do. In this regard, the following colloquy occurred at the instant hearings: ·
Tracey:

I was going to call [Maxey] and tell him that he was discharged.

Attorney:

Why?

A:

Well, you know, I felt like that I should. lfindcP..d he has a five-day
suspension and thinks that he's.coming back to work .•• only to come
back to be discharged, the man might go somewhere else and get him a job
and start to work. That would save him being .•. without pay for those
few days. I try to be very honest and square with my people.

Q:

So, in other words, you thought it was the fair and right thing to do when
you discharged somebody . . . to notify them right away.

A:

Yes, sir. I even phone ~pleat home. Even if they quit my job. I call
them at home (Tr. I. 283-284).

In conclusion, considering all of the evidence and circumstan~ I do not find Leeco's
claim that it made the decision to discharge Maxey on Febnwy 6, 1997, to be credible. ·
~oreover, I find that the operator's efforts to create a fictional account to support such a claim is,
56

in itself, compelling evidence and, in conjunction with the coincidence in timing, it is clear that
the decision to discharge Maxey on February 1Oth or 11th was motivated by the knowledge or
suspicion that Maxey had made safety complaints to MSHA resulting in the inspection of the No.
68 mine on February 7 and 9, and the issuance by MSHA of citations and notices-to-providesafeguards in that mine. Accordingly, I find that Maxey's discharge was motivated by his
protected activity

In its posthearing briefLeeco raised, for the first time, the alternative argument that,
"Amon Tracey would have tenninated Maxey whether or not he had knowledge of Maxey's
complaint to MSHA, due to Maxey's inadequate job performance, failure to follow the direct
orders of his supervisor, Vic Lewis, and directly lying to Amon Tracey when confronted with his
failure to follow Mr. Lewis' instructions." (Respondent's Briefp.2).
It is not explained and therefore it is not clear what Respondent is referencing in its
statement that Maxey was "directly lying to Amon Tracey when confronted with his failure to
follow Mr. Lewis' instructions." It presumably is its claim, disputed by Complainant, that
Complainant lied about his prior disciplinary record. Considering, however, the damage Leeco
has brought upon its credibility in this case I can give but little weight to its version of this
disputed event. Accordingly, I reject its apparent affirmative defense that, even if it had
knowledge of Maxey's protected activity (which it vehemently denies), it would have discharged
him in any event, based on his unprotected activity alone. Under all the circumstances I find that
Maxey was discharged in violation of section I 05(c)( 1) of the Act.
ORDER

Discrimination Complaint Docket No. KENT 97-257-D, IS GRANTED. The Secretary
is directed to file a brief on or before February 3, 1998, addressing each of the criteria under
section 11 O(i) of the Act, citing supportive evidence in the record and arguing how that evidence
supports her proposed penalty in this case. The Respondent may also file a brief on this issue on
or before the same date.
The parties are further directed to confer with the objective of reaching agreement on
issues relating to costs and damages, and to report the results to the undersigned on or before
February 3, 1998. This decision is accordingly not yet final and will not be final until such time
as all remaining issues as to costs, damages and a civil penalty are re~lved.

i....,

\~

,

t.

\··~it· LA,:v~
,1

Melick

4 v e Law Judge

57

Distribution:
Mary Beth Bemui, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215 (Certified Mail)
Tony Oppegard, Esq., Mine Safety Project of the ARDF of Kentucky, Inc., 630 Maxwelton
Court, Lexington, KY 40508 (Certified Mail)
MarcoM. Rajkovich, Jr., Esq. and Julie 0. McClellan, Esq., Wyatt, Tarrant & Combs,
1700 Lexington Financial Center, 250 West Main Street, Lexington, KY 40507 (Certified Mail)
\mea

58

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

January 27, 1998

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

DISCRIMINATION PROCEEDING
Docket No. WEST 97-96-DM

J & J Pit
Mine I.D. 05-04517

v.

DURANGO GRAVEL,
Respondent

DECISION
Appearances:

Kristi Floyd, Esq., Office of the Solicitor, U. S. Department of Labor,
Denver, Colorado, for Petitioner;
Jim Helmericks, owner, Durango Gravel, Durango, Colorado,
for Respondent.

Before:

Judge Marming

This case is before me on a complaint of discrimination brought by the Secretary of Labor
on behalf of Clay Baier against Durango Gravel under section 105(c) of the Federal Mine Safety
and Health Act of 1977,30 U.S.C. §815(c) (the "Mine Act"). The complaint alleges that
Durango Gravel terminated Mr. Baier from his employment in violation of section lOS(c). A
hearing in this case was held in"Ourango, Colorado.
I. FINDINGS OF FACT

Durango Gravel owns and operates a sand and gravel pit in La Plata County, Colorado.
Durango Gravel is a sole proprietorship owned by James Helmericks. The mine consists of a pit
and a crusher. It is a small operation that generally employs two individuals in addition to Mr.
Helmericks. The mine is not very profitable. The crusher is old and breaks down frequently.
Mr. Baier testified that the crusher operated only about eight hours per week. (Tr. 69). He stated
that the crusher would work for about two hours and then it would break down. ld. He also
testified that it was broken down about 99 percent of the time. !d. Mr. Helmericks testified that
the crusher is "old and slow" and cannot crush very much rock in a given month. (Tr. 313- 14).

59

Clay Baier started working for Durango Gravel as a truck driver in April 1996. All
employees perform a wide variety of tasks as directed by Mr. Helmericks. Mr. Baier would
frequently operate the loader, repair equipment including the crusher, and perform other tasks.
Mr. Helmericks terminated Mr. Baier from his employment on August l, 1996.
On May 20, 1993, MSHA Inspector Dennis Tobin issued an imminent danger order to
Durango Gravel because he observed an employee using a loader to dig at the toe of a highwall.
The order charged a violation of 30 C.F.R. § 56.3131 because the inspector was concerned that
the highwall could fail and injure or kill the equipment operator. (Ex. P-3). In Aprill996,
MSHA received a complaint from a miner concerning hazardous conditions at the mine. (Ex. PI). One of the hazards mentioned in the complaint was that the operator was undercutting the
wall at the face to remove the gravel. (ld. at 2).
In July 1996, MSHA Inspectors Royal Williams and George Renton inspected the mine in
response to the complaint. (Tr.212). The inspectors talked to Mr. Helmericks and his employees
about mining under the toe of the highwall. Inspector Williams testified that there was an area
along the high wall where an overhang existed and that it is his belief that miners were removing
material from the toe of the highwall at that location. (Tr. 213). Inspector Williams told Mr.
Baier not to dig into the face ofthe highwall because the highwall could fail and seriously injure
or kill him. He advised Mr. Baier that if rock was needed to feed the crusher, material should be
pushed down from the top of the highwall and scooped up with the loader. Mr. Baier told the
inspector that he had been digging into the toe of the highwall. (Tr. 215). Because neither
inspector observed anyone digging into the highwall, no citations were issued.
The facts surrounding Mr. Baier's discharge are seriously disputed by the parties. Mr.
Baier testified that he started pushing material down from the.top of the highwall with the loader
in the weeks that followed the MSHA inspection but that Mr. Helmericks told him not to go on
top of the hig~wall. He further testified that on August 1, 1996, he arrived at work at about 7:00
a.m. He stated that Mr. Helmericks and his son, Jim Helmericks, Jr., ("Jim, Jr.") arrived soon
after. Baier stated that Helmericks fired him immediately after he arrived on the property. Baier:
testified that Helmericks told him that he did not belong at the mine and that he verbally
threatened him. Baier testified that he was fired because he insisted on pushing material from the
top of the highwall rather than digging at the toe of the high wall. Baier testified that on the ·
Monday before he was terminate.d, Helmericks observed him pushing material off the top of the
highwall and Helmericks "jumped all over me again." (Tr. 33). He stated that Helmericks did
not give a reason for his termination and that Durango Gravel did not pay him for his final week
and one-half of work.
Mr. Helmericks testified that on the day that Mr. Baier was terminated the crusher was
down for repairs. He stated that upon his arrival at the mine, he assigned his two employees, Mr.
Baier and Jim, Jr., the task of repairing the crusher. Mr. Helmericks then left the mine to get
parts in Farmington, New Mexico. Helmericks testified that when he returned to the mine later
that day, Baier was up on the highwall with a loader pushing material down from the top of the
highwall. He stated that he terminated Baier for not doing his assigned task, repairing the

60

crusher. He testified that he did not want Baier up on the high~all because: (I) the crusher
needed to be repaired; (2) the mine had enough loose rock to feed the crusher once it was
repaired without pushing any more material down; and (3) he believed that pushing material
down with a loader was not safe. Helmericks testified that if the mine needed additional loose
material to feed the crusher, he would push material down from the top of the highwall using a
track-mounted bulldozer. He stated that he did not want any employee other than himself
pushing material over the edge of the highwall and that he did not want loaders used· for that
purpose. Helmericks stated that he did not terminate Baier because he refused to dig into the toe
of the highwall, but because he did not follow his direction to assist Jim, Jr., in the repair of the
crusher and to not push material from the top of the highwall.
I find that cutting into the highwall at Durango Gravel with a loader is very hazardous.
Such a procedure is likely to decrease the stability of the wall. It is highly likely that material
will fall from the highwall and injure or kill the loader operator if such a procedure is used.
II. DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS OF LAW
Section I 05(c) of the Mine Act prohibits discrimination against miners for exercising any
protected right under the Mine Act. The purpose of the protection is to encourage miners "to
play an active part in the enforcement of the [Mine] Act" recognizing that, "if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation." S. Rep. No.
181 , 95 1h Cong., I51 Sess. 35 ( 1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95'h Cong., 2nd Sess., Legislative History ofthe Federal Mine Safety and
Health Act of I 977 at 623 (1978).
A miner alleging discrimination under the Mine Act establishes aprimafacie 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. Secretary of Labor on behalfof
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980), rev 'don other
grounds, 663 F .2d 1211 (3d. Cir. 1981 ); Secretary ofLab9r on behalfofRobinelte v. United
Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981 ). The mine 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. Pasula, 2 FMSHRC at 2799-800. If the mine
operator cannot rebut the prima facie case in this manner, it nevertheless may defend 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. /d.; Robinette, 3 FMSHRC at 817-18; see also Eastern
Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639,642 (41h Cir. 1987).

61

A. Did Clay Baier Engage in Protected Activity?
1. Baier's Discussions with MSHA Inspectors

For the reasons set forth below, I find that Mr. Baier engaged in activity that is protected
by section 105(c) of the Mine Act when he spoke with MSHA inspectors during their inspection
in July 1996. He asked whether he should cut into the toe of the highwall when getting rock to
run through the crusher.. The record makes it clear that Mr. Helmericks was upset that the
inspectors talked to Mr. Baier. Mr. Helmericks was not at the mine at the time of the inspection
and he believed that the inspectors should have obtained any information about mining practices
from Jim, Jr., who was "in charge" whenever Helmericks was absent from the mine. As I
explained at the hearing, MSHA inspectors are authorized to speak with miners during their
inspections without the approval of the mine operator. Indeed, inspectors often spend more time
talking with miners than with representatives of the operator. Mr. Baier's conversation with the
inspectors about safety issues was protected activity.
2. Baier's Refusal to Dig into the Toe of the Highwall
Section 105(c) also protects "a miner's right to refuse to work under conditions that he
reasonably and in good faith believes to be hazardous." .John A. Gi/berl v. FMSHRC, 866 F.2d
1433, 1439 (D.C. Cir 1989)(citations omitted). The "perception of a hazard must be viewed
from the miner's perspective at the time of the work refusal." /d. Such a work refusal is
protected under section 105(c).
It is clear that after discussing the issue with Inspector Williams, Mr. Baier reasonably
and in good faith believed that digging material from the toe of the highwall created a sig.nificant
risk to his safety. Accordingly, if Mr. Baier were ordered or otherwise required to dig material
from the high':-"all and he refused to do so, his refusal would constitute protected activity. I
discuss this issue in considerable detail below because this dispute is central to the case.
Mr. Baier testified that he was told by Mr. Helmericks to dig material from the toe of the
highwall on many occasions. (Tr. 15-16). He stated that he did not know that this practice was
dangerous until the MSHA inspectors told him in July that he should get "product from the top
and push it down." (Tr. 17). Mr. Baier testified that whenever he attempted to follow the
procedures recommended by the MSHA inspectors, Mr. Helmericks would become angry and
say that the inspectors "don't know what they are talking about." ( 17-19). Baier also testified
that Helmericks told him to tell the inspectors that he was pushing material down from the top
rather than digging at the toe of the highwall. ld
Baier testified that on August 1, Helmericks cursed at him, said "you don't bel9ng here,"
and terminated him. (Tr. 22-23). He stated that Helmericks did not give him a reason for the
termination. (Tr. 22-24). Baier stated that Helmericks terminated him in the morning after Baier
had started all of the equipment in preparation for operations. He testified that the crusher was
not down for repairs that morning. Baier stat~d that on the Monday before his termination, he

62

was pushing material off the highwall when Helmericks "jumped all over me again." (Tr. 33).
Baier believes that on August 1, Helmericks was still angry at him for his refusal to dig into the
highwall on the previous Monday. (fr. 39). He stated that he does not know why Helmericks
terminated him three days after his work refusal rather than at the time of the altercation on
Monday.

Mr. Helmericks testified that he had instructed loader operators to dig into the highwall in
previous years because he "didn't know any better." (Tr. 266). He stated that once he received
the citation in 1993, he stopped that practice. ld Helmericks testified that, since that time, he
has instructed employees to obtain easily available material. He explained that the highwall itself
is hard near the bottom, but t!lat material naturally falls from the top and is deposited near the
base of the highwall. (Tr. 265, 325-27). He testified that these deposits are easy to scoop up and
that removing them does not endanger the loader operator. (Tr. 264-66). He also testified that he
had stripped off the top 10 feet of the highwall in preceding years with a bulldozer. (Tr. 328-29).
He stated that in the weeks before Baier's termination, he instructed him to get this "easy,
available material" when he needed feed for the crusher. (Tr. 262). Helmericks stated that these
deposits are illustrated in the photographs in Exhibits R-8 and J-1. He testified that although
these photographs were taken the week before the trial, the conditions at the mine had not
changed because mining had not progressed significantly since August 1, 1996. (Tr. 263; 287) . .
Inspector Williams testified that he observed loose material in front of the highwall at the time of
his inspection in July 1996. (Tr. 217-18). He also testified that scooping up material along the
outer edge of this loose material would not present a hazard. (Tr. 235).
Mr. Helmericks testified that on August I the crusher was down because the tail roller
"had a bad bearing and the belt had received some damage." (Tr. 249). He stated that he
instructed Baier and Jim, Jr., to start repairing the belt and tail roller. Mr. Helmericks testified
that he went to Farmington to get parts needed at the mine. When he returned at about II :00 that
morning, Jim, Jr., was working on the crusher, but Baier was on top of the highwall in a loader
pushing material off the edge. (Tr. 250-51). Helmericks testified that he drove to the top of the
highwall and asked Baier why he was up on the highwall. He stated that Baier replied that the
MSHA inspectors told him to mine from the top of the highwall. (Tr. 251-52). Helmericks told
Baier that he had previously warned Baier not to go up on the highwall with the loader anymore.
!d. Helmericks then told Baier that he was fired. An altercation followed concerning pay that
Baier claimed was due him.
Helmericks testified that he fired Mr. Baier because he had been assigned to work on the
crusher and he had taken it upon himself to push material off the highwall with the loader. (Tr.
266-67). Helmericks further.testified that there was no need for Baier to be up on the highwall at
that time because the crusher was down and there was plenty of loose material around the pit to
feed the crusher once it was repaired in any event. (Tr. 258-59; 264, 283-85, 3 I 3). Helmericks
testified that he only wanted himself working on top of the highwall because he preferred to use a
bulldozer to push down material. (Tr. 264, 267, 313) He stated that when the scoop of a loader
is full of material, the balance point is at the front tires. (Tr. 268-69). He further testified that the
top of the highwall is angled towards the edge. (Tr. 268-69, 303-04; Ex. J-1). He believes that
63

pushing or dumping material off the edge of the highwall with the loader at the J & J Pit is
dangerous. ld
·
Mr. Helmericks denies that he terminated Mr. Baier early in the morning of August 1
after Baier had started all of the equipment, including the crusher. He stated that the crusher was
out of order that day and that he terminated Baier around 1I :00 a.m. for failing to help his son
repair the crusher as directed. Helmericks testified that he did not want Baier pushing material
from the top of the highwall and Baier believed that Inspector Williams authorized him to do so.
(Tr. 274-76, 331-32). The testimony of Jim, Jr., is consistent with Mr. Helmericks' testimony in
this regard. (Tr. 375-82, 394-98).
The Secretary takes the position that Mr. Helmericks ~ontinued to require Baier to dig
into the toe of the high wall to get material for the crusher and that when Baier attempted to get
the material by pushing it down from the top, he was terminated from his employment. Baier
testified that the mine had no material for the crusher "unless I was digging under the toe." (Tr.
449). Durango Gravel takes the position that the crusher was not operating on the day of his
termination and that the mine had plenty of material to feed the crusher without the necessity of
digging into the toe or going on top of the highwall. Helmericks testified that he did not fire
Baier for refusing to dig into the toe, but for taking it upon himself to push material off the top of
the highwall with a loader despite repeated instructions not to do so.
There is evidence in the record to support each party. On the one hand, Baier's testimony
is supported by the testimony of William Elvidge. Mr. Elvidge was employed at the J & J Pit for
a period of time up to April 1996. (Tr. 164-65). He testified that he was required to dig at the
toe of the highwall when he was employed by Durango Gravel because there was not enough
material available from the "safe side" to feed the crusher. (Tr. 167). He stated that Mr.
Helmericks showed him how to dig at the toe of the highwall. ld Elvidge stated that whenever
he asked Mr. .tielmericks to push material from the top of the highwall, his response was that he
would do it later. (Tr. 168, 181 ): Mr. Elvidge is the miner who filed the safety complaint with
MSHA that prompted the July inspection. (Tr. 169; Ex. P-1 ).
Baier's testimony is also supported by Mr. Helmericks' attitude towards work refusals
related to safety, as exhibited at the hearing. For example, he stated that a miner must always
follow the orders of his supervisor and that he ''has the opportunity to quit if he feels he has been
in danger." (Tr. 79). Although it is well within Mr. Helmericks' right to demand that employees
strictly comply with his orders at the pit, he cannot make such demands if a miner raises
legitimate safety concerns. While Mr. Helmericks may believe that he should have that right, the
Mine Act provides otherwise.
The testimony of Inspector Williams also supports a finding that employees half been
required to dig at the toe of the high wall. He stated that, although he did not observe anyone
digging at the toe, he believes that miners were cutting into the toe of the highwall at one
location. (Tr. 213-14). He reached this conclusion based on the shape of the wall. Mr. Baier
told him he had been digging at the toe. (Tr. 215).
64

On the other hand, Mr. Helmericks' testimony is supported by the testimony of Jim, Jr.,
and to a lesser extent, the testimony of Inspector Williams and the photographs. Mr. Williams
and the photographs indicate that there was a considerable amoWlt of loose, easily available
material at the pit. (Tr. 217~ 18; Exs. J~ 1, R~8). It is not controverted that the crusher was old and
slow and could not process much material at any one time. Thus, this evidence would indicate
that it was not necessary for anyone to dig into the toe to get material for the crusher.
Based on my review of the record, I find that miners were cutting into the toe·to obtain
material for the crusher in'the weeks prior to Mr. Baier's termination. I also find that even if Mr.
Helmericks did not directly order his employees to obtain material from the toe, he was aware of
their actions and did not stop them. The record makes clear that the material at the pit was not all
the same and that it was not uncommon to mix loose rock with other material, such as claybearing material or sandy material, to obtain feed for the crusher to meet customer specifications.
(Tr. 276-78).
With respect to the events that took place on August 1, 1996, I find Mr. Helmericks'
testimony to be more credible. After observing Helmericks' conduct during the course of this
hearing, I do not believe that he would have fired Mr. Baier in the manner described in Baier's
testimony. Instead, Helmericks would have fired Baier at the time he observed Baier using the
loader on the highwall. He would not have waited two or three days. Mr. Helmericks is a
volatile individual with strong beliefs as to how a pit should be operated. He prides himself on
running a tight ship. If he observed Baier using the loader to push material off the high wall, after
warning him not to do so, he would not wait three days to take action. Accordingly, I find that it
is highly likely that Mr. Baier was using the loader to push material down from the highwall on
August 1. The issue of whether Mr. Helmericks had ordered Baier to help Jim, Jr., repair the
crusher is discussed in more detail below.
I find that Baier's refusal to dig into the toe of the highwall was protected activity, but
that his decision to push material from the top of the highwall was not protected. Baier had the
legal right under the Mine Act to refuse to perform an unsafe act, but he did not have the right to
take a loader to the top of the high wall to obtain material. A miner cannot refuse to work
because of a difference of opinion over the proper way to perform a particular task if the refusal
is not safety related. Sammons v. Mine Service Co., 6 FMSHRC 1391, 1398 (June 1984). Mr.
Helmericks, as the owner/operator of the J&J Pit, has the right to direct his 'workforce and decide
who is going to do what job. Helmericks decided that he would be the only individual who
would push material off the highwall and that he would use a bulldozer. He apparently
communicated this information to Baier prior to the incidents that gave rise to this proceeding.
Mr. Baier's refusal to follow Helmericks' direction not to go up on the highwall with the loader
is not, by itself, protected under the Mine Act.

B. Was C lay Baier's Termination Motivated in any Part by the Protected Activity?
In determining whether a mine operator's adverse action was motivated by the miner's
protected activity, the judge must bear in mind that "direct evidence of motivation is rarely

65

encountered; more typically, the only available evidence is indirect." Secretary ofLabor on
behalfofChacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (November 1981 ), rev 'don
other grounds, 109 F.2d 86 (D.C. Cir 1983). "Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial evidence." Id (citation omitted).
Based on the evidence presented at the hearing, I find that Clay Baier's termination was
motivated at least in part by his protected activity.
A mine operator~s knowledge of the protected activity is one factor to evaluate when
determining whether an adverse action was motivated by protected activity. Mr. Helmerick.s
knew that Clay Baier had discussed safety issues with MSHA inspectors and that the inspectors
had advised Mr. Baier not to cut into the highwall with the loader. Mr. Helmericks also knew
that when Mr. Baier went to the top of the highwall to push material over the edge of the
highwall, he did so on the advice oflnspector Williams. Baier put Helmericks on notice that he
·
did not believe that it was safe to dig at the toe of the highwall.
Another factor is the mine operator's hostility towards the protected activity, often
referred to as "animus." It is clear that Mr. Helmericks was extremely hostile towards MSHA in
general, as well as Mr. Baier's conversation with Inspector Williams about safety issues at the
mine. Mr. Helmericks contends that the inspectors should not have talked with Baier but should
have talked only with Jim, Jr. Mr. Helmericks considered Mr. Williams' advice to Mr. Baier to
be a direct threat to his supervisory authority. Helmericks did not approve of Baier's discussion
of safety issues with MSHA. Helmericks also demonstrated animus towards Baier's actions in
response to Mr. Williams' advice.
Finally, the tem1ination of Mr. Baier occurred shortly after the July 1996 MSHA
inspection. The termination also occurred immediately after Helmericks observed Baier pushing
material off the highwall. While this activity was not protected, as discussed above, it was
related to the ~afety concerns Baier raised with Inspector Williams. This proximity in time is
another factor that indicates that the termination was motivated in part by the protected activity.
Based on the above, I find that the Secretary established a prima facie case that Mr. Baier
engaged in protected activity and that his termination from employment was motivated at least in
part by that activity.

C. Durango Gravel's Case
As stated above, a mine operator may rebut the Secretary's 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. I find that Durango Gravel did not rebut the Secretary's case in this
manner. The preponderance ofthe evidence presented at the hearing shows that Mr. Baier
engaged in protected activity and that his termination was motivated, at least in part, by that
activity. I find that Mr. Helmericks decided to terminate Mr. Baier, in part, because Baier had
discussed safety issues with Inspector Williams in July 1996. The record shows that Helmericks
resented the fact that Baier raised these issues with the inspector.

66

The evidence concerning Baier' s alleged work refusal merits further analysis. When
evaluating a miner's allegation that he refused to perfonn work because he reasonably and good
faith believed that the work was not safe, a judge must consider whether the miner
conununicated his concerns to the mine operator. "When reasonably possible, a miner refusing
to work should ordinarily communicate or at least attempt to conununicate, to some
representative of the operator, his belief in the safety or health hazard at issue." Secretary of
Labor on behalfofDunmire and Estle v. Northern Coal Co., 4 FMSHRC 126, 133 (february
1982). I find that Baier·attempted to communicate his concerns about digging into the highwall
to Mr. Helmericks. Whether Helmericks fully understood that Baier traveled to the top of the
highwall because of his own personal safety concerns is not entirely clear. Nevertheless, I find
that Helmericks understood that Baier would not dig into the highwall because of his safety
concerns.
Another consideration is whether, after he learned of Baier's concerns, Helmericks took
steps to address the perceived danger. A mine operator has an obligation to explain why the
work area is safe or explain that any problems have been corrected. To put it another way, a
miner' s work refusal is not protected if the operator addresses his safety concerns "in a way that
his fears reasonably should have been quelled." Gilbert, 866 F.2d at 1441.
Mr. Helmericks' testimony concerning his prior discussions with Baier about going up on
the highwall center around issues of authority. Helmericks testified that Baier told him that he
pushed down material from the top of the highwall because Inspector Williams told him to do so
to get material for the crusher. (Tr. 274-75). Helmericks testified that Baier was "a little mixed
up about who really had authority to give directives at the pit." (Tr. 275). Although Helmericks
recognized that Inspector Williams "was responsible for pointing out safety issues," he told Baier
that the inspector had no authority to tell Baier to go up on the highwall. Id. When Baier
repeated what the inspector had told him, Helmericks replied that "you are not going to do it
(Inspector Williams' way] because it is unsafe and I told you not to do it." Id.
The credible evidence in the record demonstrates that Mr. Helmericks did not attempt to
explain that he and Inspector Williams were in agreement that miners should not dig into the toe
of the highwall. Helmericks could have easily attempted to allay Baier's fears by explaining that
he should not dig into the toe of the highwall and that if more material was needed to feed the
crusher he should wait until Helmericks was able to push material down from the highwall using
the bulldozer. As stated above, the protected activity was Baier's refusal to dig into the toe of the
highwall, not his actions in pushing down material from the top with a loader. Even though
there was some loose material around the pit, Baier still reasonably believed that he was required
to dig into the high wall to g~t material. 1 Helmericks did not allay his fears by explaining to Baier

1

It was also reasonable for Baier to be concerned about digging into loose material that was
immediately adjacent to the base of the highwall. Removing such material may weaken a highwall,
especially ifthe material has been present for a considerable length of time. In addition, a loader
operator could inadvertently cut into the highwall while trying to remove such materiaL

67

that he would no longer be required to do that. Instead, he treated Baier's actions as a threat to
his supervisory authority.
Thus, Helmericks was angry that Baier continued to follow the inspector's advice, but
Helmericks did not attempt to tell Baier why the hazard did not exist or how it would be
eliminated. I find that the evidence demonstrates that the actions Baier took in response to his
safety concerns were a factor in Mr. Helmericks decision to terminate Mr. Baier.
If the mine operator cannot directly rebut the Secretary's case, it nevertheless may defend
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. This issue requires further analysis.
The Commission described this defense in Pasula, as follows.
The employer may affirmatively defend ... by proving by a
preponderance of all the evidence that, although part of his motive
was unlawful, (I) he was also motivated by the miner's
unprotected activities, and (2) that he would have taken adverse
action against the miner in any event for the unprotected activities
alone... . It is not sufficient for the employer to show that the miner
deserved to have been fired for engaging in unprotected activity; if
the unprotected conduct did not originally concern the employer
enough to have resulted in the same adverse action, we will not
consider it. The employer must show that he did in fact consider
the employee deserving discipline for engaging in the unprotected
activity alone and that he would have disciplined him in any event.
2 FMSHRC at 2799-800 (emphasis in original). In Bradley v. Be1va Coal Co., the Commission
further refined this analysis, as follows:
Ordinarily, an operator can attempt to demonstrate [that it would
have terminated the miner for the unprotected activity alone] by
showing, for example, past discipline consistent with that meted
out to the alleged _discriminatee, the miner's unsatisfactory past
work record, prior warnings to the miner, or personnel rules or
practices forbidding the conduct in question. Our function is not to
pass on the wisdom or fairness of such asserted business
justifications, but rather only to determine whether they are
credible and, if so, whether they would have motivated the
particular operator as claimed.
4 FMSHRC 982,993 (June 1982). See also Chacon, 3 FMSHRC at 2516-17.

68

Durango Gravel bears the burden of proof on this issue. Mr. Helmericks proceeded in
this case without the benefit of coWlSel. Accordingly, I granted Durango Gravel wide latitude in
presenting evidence at the hearing and attempted to provide as much guidance to Mr. Helmericks
as I reasonably could about the legal issues involved and the evidence he would need to present
to defend against a discrimination complaint. For the reasons set forth below, I fmd that he did
not establish that he would have terminated Mr. Baier for his unprotected activities alone.
As stated above, Mr. Baier's actions in taking it upon himself to push material down from
the top of the high wall with a loader were not protected. Mr. Helmericks was also motivated to
terminate Mr. Baier because of this unprotected activity. I find that Mr. Helmericks did not
establish that he would have terminated Baier for these actions alone. For purposes of this
discussion, I assume that the events that took place on August 1, 1996, were as Mr. Helmericks
described. That is, Helmericks terminated Baier after he returned from Farmington and observed
Baier pushing material from the top of the highwall rather than repairing the crusher as.he had
instructed.
I find that Baier's actions were directly related to his refusal to dig into the highwall. The
only reason presented in the record for Baier's decision to push material off the highwall was to
avoid having to dig into the highwall. He took these actions because of advice he received from
Inspector Williams. Although this "self-help" measure was not protected, it arose out of Baier's
safety concerns and, as discussed above, Helmericks did little to attempt to allay Baier's fear that
he could be seriously injured while working under the highwall. Thus, if Baier were terminated
solely for being up on the highwall, the termination was too closely related to his protected work
refusal, given that Mr. Helmericks did not reasonably allay his fears, to conclude that such a
termination was for his unprotected activity alone.
More importantly, I believe that the evidence establishes that Helmericks' animosity
towards MSHA played a significant role in his decision. If Baier had not raised safety issues
with MSHA during their July inspection and Williams had not provided guidance to Baier
concerning how to safely mine the highwall, it is unlikely that Helmericks would have terminated
Baier for being up on the highwall on August l. It is more likely that Helmericks would simply
have chewed him out. As stated above, Helmericks saw Baier's actions in conjunction with
Inspector Williams' July inspection as a direct threat to his supervisory authority. Durango
Gravel did not establish that it .would have terminated Baier for being on top of the high wall on
August I ifhis activities did not spring from his safety complaints to MSHA.
At the hearing, Durango Gravel presented evidence that it terminated Mr. Baier for a
number of other reasons related to his work performance. For example, Mr. Helmericks testified
that Baier was an unsafe equipment operator. Helmericks pointed to the fact that Baier damaged
a loader when he backed into the stacker. (Tr. 27, 267). This accident occurred about 10 days
prior to his termination. (Tr. 312). There is conflicting testimony as to whether ~elmericks was
concerned about the accident at the time. The evidence establishes that there was no left side
mirror on the loader at the time of the accident. (Tr.28). Mr. Helmericks also stated that Baier

69

damaged his welding trailer with the loader on another occasion. Mr. Helmericks did not
terminate Baier at the time of either of these accidents.

Mr. Helmericks also testified that Baier did not respect his authority or his property at the
pit. Helmericks referred to a number of instances in which Baier was openly disrespectful
towards him and caused damage to his property. For example, on one occasion Baier taunted
Helmericks in front of Sharon Helmericks, his wife, by stating that she was cute and-would leave
him someday. (Tr. 160..,62, 246-47). Helmericks referred to a number of instances where Baier
caused damage to property, such as when his dog wrecked a welder while chasing a chipmunk.
(Tr. 134-35). Helmericks testified that he had previously warned Baier not to bring his dog to the
pit. Until Baier raised safety concerns following MSHA's inspection, however, none of the
alleged insubordinate and disrespectful actions Helmericks refers to caused him to terminate
Baier's employment with Durango Gravel.
Durango Gravel spent a significant time at the hearing attempting to discredit the
testimony of Mr. Baier and his witnesses. Much of this effort was devoted to calling Baier and
his witnesses liars and criminals. Name-calling does not establish the truth of the allegation.
Throughout this proceeding, Mr. Helmericks sought to introduce evidence of Baier's alleged
criminal activity. In evaluating this issue, I relied upon Rule 609 of the Federal Rules of
Evidence. That rule provides that evidence that a witness was convicted of a crime shall be
admitted if the crime was punishable by imprisonment in excess of one year, if the crime
involved dishonesty or false statement, or if the court determines that the probative value of
admitting the evidence outweighs its prejudicial effect. Baier admitted that he was convicted of a
misdemeanor charge in Arizona in 1986 or 1987. (Tr. 454). He paid a monetary penalty but was
not incarcerated. I find that this conviction does not relate to Baier's veracity at the hearing. 2
At t~e hearing and in its brief, Durango Gravel raised issu~s as to the honesty and integrity
of Kristi Floyd, counsel for the Secretary. Mr. Helmericks believes that Ms. Floyd participated in
a conspiracy to withhold information about Mr. Baier's criminal activity and dishonest actions. (Tr.
350-52, 453-54). He stated that he intends to take steps to have her disbarred. In his brief, Mr.
Helmericks referred to Ms. Floyd as a "bully." (D.Gr. Br. 6). During discovery, Mr. Helmericks
sought information from the Secretary about Baier's criminal record and employment history. After
reviewing the record, I find that there is no evidence that Ms. Floyd engaged in any unethical
conduct in this case or that she attempted to withhold evidence or information from Mr. Helmericks.
2

As to the criminal record, Ms. Floyd represented in answers to discovery that Baier did not
have a felony conviction. In a supplemental response, Ms. Floyd stated that Baier had never been
in prison and did not have a criminal record. At the hearing, Ms. Floyd represented that she had no
knowledge of the misdemeanor conviction until the day before the hearing. Once she le~ed about
it, she provided such information to the judge. When Mr. Helmericks continued to raise questions
about it, she voluntarily revealed it in open court. I determined that information about this
conviction would not be admissible under Rule 609.
(continued ... )

70

Mr. Helmericks also maintains that Baier stole tools owned by him. The record reveals
that the tools were in the trunk of Baier's car on the day he was terminated. They had been put in
his car by Jim, Jr., because he often car pooled to work with Baier. Jim, Jr., forgot that they were
in the car on the day of Baier's termination. Baier sought to keep the tools until Helmericks paid
him the wages he believed he was owed for his last week and one-half of work. I find that Baier
did not steal Helmericks' tools and his action in using the tools as leverage to get his final pay
check does not show that his testimony is not credible.
Helmericks also attempted to show that Baier's testimony was not credible because of
discrepancies in his time cards. Each employee was responsible for reporting the nwnber of
hours he worked every day to Mr. Helmericks. After Baier was terminated, Helmericks
discovered that Baier reported more hours worked than Jim, J~. , on days that they car pooled to
work. It must be noted that Helmericks did not discover this fact until after Baier was terminated
and it could not have been a reason for his termination. Such false reporting of time can be the
basis for the termination of an employee and does bear on a witness's credibility. I have taken
Mr. Helmericks' testimony into consideration in assessing credibility in this case.
Finally, Mr. Helmericks also contends that the testimony of Baier and his witnesses
contained numerous conflicts and contradictions. I have reviewed their testimony and cannot
find any significant contradictions. Mr. Baier's testimony is also reasonably consistent with his
interview with the MSHA special investigator taken on August 26, 1996. More importantly, for
purposes of analyzing whether Durango Gravel would have terminated Baier for his unprotected
conduct alone, I accepted Mr. Helmericks description of the essential facts that transpired in the
week before Baier's termination.
In conclusion, I find that the Secretary established a prima facie case of discrimination
and Durango Gravel did not rebut the Secretary's case by showing that it did not fire Baier for his
protected activity or showing that it would have terminated for his unprotected activity alone.
The Secretary seeks the following remedy: (l) Mr. Baier's pay for the week and three days that
he worked for Dunmgo Gravel but was not paid, that is, any time he worked July 21 through July
31, 1996~ (2) two weeks of back pay~ and (3) a civil penalty of$2,500. Durango Gravel contends
that it does not owe Mr. Baier any back pay because he caused extensive damage to equipment at
the pit. It seeks to offset any back pay award with the cost of repairing damaged equipment. As
stated above, Durango Gravel did not establish that it would have terminated Baier for damaging
equipment at the mine. The evidence shows that Baier damaged the door of the loader when he

2

{ • • • continued).
The record reveals that Baier was employed by a large number of companies prior to his
employment by Durango Gravel. Baier worked for some of these employers for only a few weeks.
In her response to·interrogatories and her supplemental response, Ms. Floyd provided a list of his
prior employers. At the hearing, Baier revealed that he worked for a few employers that were not
provided on Ms. Floyd's lists. He stated that he had forgotten about them. I credit his testimony in
this regard.

71

struck the stacker, but that it was accidental. Mr. Helmericks did not require Baier to pay for the
damage at the time of the accident. Durango Gravel did not repair the damage until the week
before the trial in this case. Accordingly, I hold that Durango Gravel is not entitled to withhold
the cost of repairing equipment from any back pay award under the Mine Act.

III. ORDER
Counsel for the Secretary is ordered to file a brief, on or before, February 16; 1998,
setting forth the amount of back pay she contends Durango Gravel owes Mr. Baier. The brief
shall include any supporting documentation. The brief shall show the calculations the Secretary
used to arrive at a the proposed back pay award. For the period prior to Baier's termination, the
brief shall show the hours of work on a daily basis. The Secretary's brief shall also address each
of the criteria under section IIO(i) of the Mine Act and cite evidence in the record to support her
proposed penalty in this case.
Durango Gravel shall have ten days after it receives the Secretary's brief to file a
response. In the response, Durango Gravel shall cite evidence to refute the Secretary's
calculation of back pay and civil penalty. This decision is not final until I enter a final order
awarding a specific amount of back pay and assess an appropriate civil penalty.

Richard W. Manning
Administrative Law Judge

Distribution:
Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202-5716
Mr. Jim Helmericks, Durango Gravel, 995 Highway 3, Durango, CO 8130 I

RWM

72

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 2 9 1998
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 97-197
A.C. No. 15-04670-03842

v.
No. 37 Mine
ARCH OF KENTUCKY,
Respondent
DECISION

Appearances:

Mary Sue Taylor, Esq., U.S. Department of Labor, Nashville,
Tennessee, for the Petitioner;
Frenchette C. Potter, Esq., Arch Mineral Corp. St. Louis, Missouri
for Respondent.

Before:

Judge Weisberger

This case is before me based upon a petition for assessment of civil penalty filed
by the Secretary of Labor ("Secretary") alleging violations by Arch of Kentucky
("Arch") of various mandatory safety standards set forth in Title 30 of the Code of
Federal Regulations. Subsequent to notice, the case was heard in Kingsport, Tennessee
on October 14, 1997. At the hearing, the parties indicated that three of the four citations
at issue had been settled. 1 Art evidentiary hearing was held concerning the remaining
citation, number4581310. On December 19, 1997, Respondent's Briefwas filed. On
December 23, 1997, Petitioner's Brief was filed.
I. Citation No. 4581310
A. Violation of30 C.F.R. § 75.1403-6(b)(3)

On January 21 , 1998, a Joint Motion to Approve Settlement regarding these citations
was filed. The Motion is disposed of infi-a, (II).
1

73

1. Factual Background
Arch of Kentucky operates the No. 37 mine, an underground coal mine in Lynch,
Kentucky. A diesel propelled track-mounted mantrip is used to transport
eight miners and an operator to and from the L-15 section. The outby and inby ends of
the mantrip are each equipped with two sanders located over, and in front of a steel
wheel on opposite sides of the mantrip. The sanders are operated by a lever tocated in
front of the operator who sits in the middle of the mantrip. When activated, the sanders
release sand through a two-inch diameter opening on the bottom of the sanders. The
sand falls in front of the front wheels in order to provide traction to slow the mantrip,
keep it from sliding over wet rails, and allow it to climb up grades.
On February 4, 1997, a mantrip operated by Tony Cox, left the L-15 section at
approximately midnight at the end of the second shift. The following miners were
passengers on the m3!1trip: W. William Carter, Kenneth Russell, Kenneth Bomng, Jr.,
Vass Mellon, Bill Tolliver, Billy Boggs, Otis Halcomb, and Charlie Walker. As the
mantrip traveled outby, it entered a dip under an overcast, but was unable to climb out of
the dip even though Cox activated the sanders. Cox reversed the mantrip and, by
increasing the speed, was able to drive the mantrip up the grade and out of the dip. The
mantrip continued to travel outby over the tracks which were wet and slippery. As the
mantrip continued it started to slide. Russell observed Cox operating the sander, but did
not sense any "effect" (Tr. 40). According to Bolling, someone yelled out for Cox to hit
the brakes, and Cox responded " I am, I am, I am" (Tr. 59). Carter indicated that after
the mantrip started to slide, he heard a " metal against metal" (Tr. 27, 28) sound which
indicated to him that the lever had been pulled to operate the sanders. However, the
mantrip did not slow down. According to all witnesses, after the mantrip started to slide,
a light was observed from an oncoming battery locomotive. Approximately five seconds
after this was observed, the locomotive hit the mantrip causing injuries to Russell,
Bolling and Carter resulting in their being hospitalized.
Shelby Brewer, an MSHA inspector, who was in another mantrip traveling outby
behind the one at issue, came upon the accident scene, and then rode outby to the portal
in the mantrip at issue approximately 1,000 feet to the portal. According to Brewer, once
the mantrip was on the surface, approximately 20 minutes after the accident, he observed
Bob Anderson, the third shift miner's representative, working the sand levers but "no
sand came out" (Tr. 108). Brewer testified that he checked inside the boxes ofthe
sanders. He said that the boxes were only half full with sand, and the sand, was '1ust
tight" (Tr. 108). According to Brewer, in order for the sander to operate properly, the

74

sand must be loose, as it has to exit through a two-inch hole in order to fall on the track
and provide traction.
On February 4, at approximately 10:00 a.m., William Johnson, an MSHA
inspector, inspected one outby sander and one inby sander, and each sander box was half
full with sand. He indicated that the sand "seemed to be compacted ... because I
worked one of the levers and nothing came out" (Tr. I24). According to Johnson, the
lever operating the inby sanders had a fresh weld conn·e cting the lever with the sander
plunger. The lever on the outby side did not move. According to Johnson, he worked
one lever, and no sand came out. Johnson issued a citation alleging a violation of30
C.F .R. Section 7 5 .I403-6(b)(3) which provides, as pertinent, that self-propelled
personnel carriers should "[b ]e equipped with properly installed, and well-maintained
sanding devices ...."
2. Discussion
The purpose of the sanders at issue is to apply traction to aid in slowing and
stopping the mantrip. For the reasons that follow, I conclude that the record establishes
that the sanders were not adequately maintained to achieve this·purpose.
An examination of the sanders approximately I 0 hours after the collision at issue
indicated·that the sand in the sander box was compact. This condition would hinder and
impede the flow of sand from the sander to the tracks through a release hole with only a
two-inch diameter. Arch asserts that the mantrips are thoroughly inspected before they
are placed in operation, and that if no problems are found then the inspection forms are
not provided to the safety department. However, no evidence was adduced from anyone
having personal knowledge relating to a specific examination of the sanders at issue at a
specific point in time prior to the collision. There is thus no direct proof of the condition
of the sanders prior to the collision. However, it might be reasonably inferred that their
condition, when observed I 0 hours after the collision, is probative of their condition
prior to the collision. I reject, as being too speculative, Arch's argument that water could
have gotten into the sanders causing the sand to compact if it was raining when the
mantrip was inspected on the surface after the collision; or that water from the water hole
at the portal could have co~pacted the sand when the mantrip was taken out of the mine
to be inspected.
James Vicini, Arch's safety manager, presented hearsay testimony that Cox told
him and MSHA personnel that when he "came out of the dip" he "laid down sand", and
that he knew that the sanders were working as he heard a "squeal" that they make when
"it takes traction" (Tr. I68;169). I do not assign much weight to this hearsay testimony

75

of Vicini. I note that Arch did not call Cox to testify on it~ behalf. Nor did it indicate
that Cox was not available to testify.
On the other hand, all eyewitnesses who testified agreed that the mantrip was
unable to ascend out of the dip prior to the accident in spite of the application of the
sanders whose operation is designed to provide traction in such circumstances by placing
sand in front of the frQnt wheels. Since all eyewitnesses who testified were in agreement,
I accept their testimony. Accordingly it might reasonably be inferred that the sanders
were not functioning properly 2 •
Vicini presented hearsay testimony that Cox said, in essence, that the track was
slick prior to the collision, and that when he saw the oncoming vehicle he couldn't stop
the mantrip. Vicini indicated that he had interviewed the following miners who were
passengers in the man trip at issue, and that none of them told him that the sanders did not
operate: Tolliver, Halcomb, Walker, and Cox. They told him that the track was slick.
· However, Arch did not proffer the testimony of any of these miners, nor did it indi~ate
that any of them were not available. I thus do not accord much weight to this hearsay
testimony of Vicini. On the other hand, I observed the demeanor of Carter, Bolling, and
Russell and found their testimony credible that they either observed or heard Cox operate
the sander lever, and heard him acknowledge that he was operating the sander. The
eyewitnesses' direct testimony appears to support a conclusion that the sanders, although
activated, were not operational in that sufficient sand was not released to slow the
mantrip or provide traction. Arch did not offer any eyewitness testimony to contradict
these witnesses. Therefore, I accept their testimony.
For ali the above reasons, I find that it has been estabiished that when cited, the
sanders were not '~well-maintained". I thus find that it has been established that the
operator violated Section 75.1403-6(b)(3) supra. 3

1 I note that the mantrip carrying Brewer which followed the mantrip at issue
experienced a similar difficulty ascending the dip, but Brewer did not cite this mantrip for not
having a well-maintained sanding device. However, I fmd this insufficient to rebut an inference
that the sanders in the mantrip at issue were not maintained properly to provide sufficient flow of
sand to allow the mantrip to ascend out of the dip.
2

3

I According to Vicini, even if the sanders were not working properly the accident at

issue still would have occurred as the track was extremely wet and the conditions overall were
extremely wet. This testimony is probative of the cause of the accident. However, the issue
before me is not the cause of the accident, but rather whether the sanders were well-maintained.

76

B: Significant and Substantial
According to inspector Johnson, the violation at issue should be characterized as
significant and substantial.
A "significant and substantial" violation is described in section 104(d)( 1) of the
Mine Act as a violation "of such nature as could significant and substantially contribute
to the cause and effect of a coal or other mine safety or health hazard." 30 C.F.R.
§ 814(d)(I).
A violation is properly designated significant and substantial, "if, based upon the
particular facts surrounding the violation there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably serious nature.
Cement Division. National Gypsum Co .. 3 FMSHRC 822, 825 (April 1981 ).
In Mathies Coal Co. 6 FMSHRC 1, 3-4 (January 1984 ), the Commission
explained its interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum the Secretary of Labor
must prove: (I) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard- that is, a measure of danger to safetycontributed 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.
In United States Steel Mining Company. Inc .. 7 FMSHRC 1125, 1129; the
Commission stated further as follows:
We have explained further that the third element of the·Mathies formula
required that the Secr~tary establish likelihood that the hazard contributed
to will result in an event in which there is an injury. U.S. Steel Mining Co..
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)( 1), it is the continuation of
a violation to the cause and effect of a hazard that must be significant and
substantial. U.S. Steel Mining Company. Inc.. 6 FMSHRC 1866, 1868
(August 1984); U.S. Steel Minim: Co.. Inc.. 6 FMSHRC 1573, 1754-75
(July 1984).

77

As set forth above, the evidence of record establishes a violation of a mandatory
safety standard i.e., Section 75.1403-6(b)(3) su.vra. Further, it is clear that, as a
consequence of the failure to maintain the sanders properly by allowing the sand inside
to compact and impede its flow down to the track so that adequate traction may not have
been provided, the hazard of a collision was contributed to. Hence, the fi~st two
elements set forth in Mathies SJ!Jlfl1. have been met, leaving the third and fourth elements
to be resolved. In this .connection, I note Vicini's hearsay testimony that Cox. stated that
once he became aware of the hazard of a collision he applied the brakes, but that there
was no time to operate the sanders. I also note his opinion that the accident that occurred
might have occurred even if the sanders were working properly. Hence, it might be
inferred that the violative condition did not cause the accident that occurred. However,
the focus of the analysis is whether, given continued normal operations, it was
reasonably likely that the violative condition would have contributed to the hazard of a
collision. Taking into account the fact that the track over which the mantrip travels
contains downgrades and curves, and considering the fact that the mantrip traverses the
track at least twice daily, I find that, within the context of these factors, it has been
established that there was indeed a reasonable likelihood of a collision. Further, since at
least three miners were hospitalized as a consequence of such a collision, I find that the
fourth element set forth in Mathies supra has been met. I thus find that it has been
established that the violation was significant and substantial (See, Mathies supra).
C. Penalty
Since the violation herein could have led to serious injuries, I find that the level of
gravity was relatively high. The sanders are inspected in preshift examinations. Such an
examination would have revealed that the sand in the sander boxes was compacted as
this condition was. easily observable once the cover of the sander boxes was removed. I
thus find that the negligence of the operator was moderate. I find that a penalty of
$1,019 is appropriate.
II. Citation Nos. 4581267.4582658. and 4071531
Subsequent to the hearing a joint motion to approve settlement agreement
regarding these citations was filed. A reduction in penalty from $801 to $367 is
proposed. I have considered the representations and documentation submitted in the
motion, and I conclude that the proffered settlement is appropriate under the criteria set
forth in Section 11 O(i) of the Act. Therefore, the motion for approval of settlement is
granted.

78

ORDER

It is ordered that, within 30 days of the date of this decision, Arch shall pay a total
civil penalty of $1 ,3 86.

Lb;;

Administrative Law Judge

Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard
Jones Blvd., Suite B-20 1, Nashville, TN 37215 (Certified Mail)
Frenchette C. Potter, Esq., Arch Mineral Corp., CityPlace One, Suite 300, St. Louis, MO
63141 (Certified Mail)
/It

79

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

.JAN 2 9 1998
TILDEN MINING COMPANY, L.C.,
Contestant

CONTEST PROCEEDINGS
Docket No. LAKE 97-42-RM
Citation No. 4537230; 2/19/97

V.

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

Docket No. LAKE 97-43-RM
Citation No. 4537231 ; 2119/97
Tilden Mine
Mine ID No. 20-00422

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

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 97-60-M
A. C. No. 20-00422-05670
Docket No. LAKE 97-92-M
A.C. No. 20-00422-05680

TILDEN MINING COMPANY, L.C.,
Respondent

Docket No. LAKE 97-94-M
A.C. NO. 20-00422-05681
Tilden Mine

DECISION
Appearances: Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago,
Illinois, for Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll, P.C., Pittsburgh, Pennsylvania, for
Respondent.
Before:

Judge Hodgdon

These consolidated cases are before me on Notices of Contest and Petitions for
Assessment of Civil Penalty filed by Tilden Mining Company, L.C., against the Secretary of
Labor, and by the Secretary of Labor, acting through her Mine Safety and Health Administration
(MSHA), against Tilden, respectively, pursuant to section 105 of the Federal Mine Safety and

80

Health Act of 1977, 30 U.S.C. § 815. 1 The company contests the issuance to it of a combined
order and citation and a citation. The petitions allege four violations of the Secretary's
mandato~ health and safety standards and seek penalties of$8,618.00. For the reasons set forth
below, I approve the parties settlement agreement with respect to Docket No. LAKE 97-60-M,
vacate the order and modify and affirm the citation in Docket Nos. LAKE 97-42-RM and LAKE
97-92-M, vacate the citation in Docket Nos. LAKE 97-43-RM and LAKE 97-94-M, and assess
penalties of$559.00.
A hearing was held on September 24, 1997, in Marquette, Michigan. The parties also
submitted post-hearing briefs on the contested violations.
Settled Docket
At the beginning of the hearing, counsel for the Secretary announced that the parties had
settled Docket No. LAKE 97-60-M. The agreement provided that Citation No. 4536738 would
be vacated and that Citation No. 4536737 would be modified to allege a violation of section
56.1101, 30 C.F .R. § 56.110 I, rather than section 56.15005, 30 C.F.R. § 56.15005, and to have
the description of the condition or practice read: ..A safe means of access was not provided on
the bed of a flat bed truck being used to transport the new crusher into the secondary crusher
building. Three employees were on the truck and the bed of the truck and the timbers on the bed
were covered with snow. One employee was standing on wet and slippery tires which provided
insufficient footing." The penalty for the modified citation would remain as originally assessed,
$309.00.
After considering the parties' representations, I concluded that the settlement was
appropriate under the criteria set forth in section IIO(i) ofthe Act, 30 U.S.C. § 820(i), and
informed the parties that I would approve the agreement. (Tr. 9-12.) The provisions of the
agreement will be carried out in the order at the end of this decision.
Contested Matters
Background
Ore at the Tilden iron mine is hauled from the ore pit to a primary crusher to be reduced
in size. The primary crusher is located in a building at the bottom of a 20-foot deep crusher pit.
Trucks back up to the east and west sides of the building and dump ore into the pit. A bumper,
2 feet high and 6 feet wide, prevents trucks from backing into the pit. On the south side of the pit
is a control room and on the north side is a repair bay.

Docket No. LAKE 97-94-M, a civil penalty proceeding concerning Citation No.
4537231, which was contested in Docket No. LAKE 97-43-RM, had not been flied at the time of
the hearing. The parties agreed, however, that when the civil penalty was flied it could be
consolidated with these matters and adjudicated without a further hearing. (Tr. 14.) It was flied
on September 29, 1997, and consolidated with the rest of the cases on October 30, 1997.
1

81

Ore is fed by gravity into the crusher bowl located in th~ center of the pit. The crusher
bowl is 10 feet wide at the top and its walls slope inward so that it is 9 feet, 1 inch wide at the
bottom. Inside the bowl is a cone-shaped mantle, narrow at the top and wider at the bottom. It is
held in place by a ••spider" bushing which is connected to opposite sides of the bowl and which
rises several feet above floor level. The mantle moves back and forth concentrically, crushing
the ore, so that at the narrowest point of the bowl and the widest point of the mantel there are 8 to
9 inches on the closed side and ll to 12 inches on the open side. The crusher bowl-is about 7 or
8 feet deep.
On February 17, 1997, the crusher bowl became clogged by ore and would not operate.
Normal methods of unstopping it were unsuccessful and on February 18 the company decided to
attempt to drill through the material to unclog it. Ore material on the east side of the pit had to
be removed by a backhoe before an air track drill could be placed in the northeast corner of the
pit. Drilling on February 18 failed to achieve a breakthrough.
The company began removing material with the backhoe from the west side of the pit on
February 19 so that the drill could be moved if necessary. In the meantime, drilling on the
northeast side continued. At about I 0:00a.m. that day Inspector Stephen W. Field, who was
conducting a regular inspection of the mine, left the secondary crusher building to go to the
primary crusher building. On his way to the building he observed Terry Kainulainen, a Tilden
employee, on the west side of the primary crusher building. He believed that Kainulainen was
within 2 feet of the pit and that he was not wearing a safety line.
The inspector followed Kainulainen into the repair bay on the north side of the building.
From the repair bay he observed the drill operator and his assistant drilling the material in the
crusher bowl. They appeared to be standing on the edge of the bowl. Neither had on a safety
line. Inspector Field observed a hole in the material in the bowl where they were working which
he estimated to be 8 feet long, 44 inches wide and 7 feet deep. Based on this observation, he
informed the company representative that he was issuing a verbal 107(a) order, 30 U.S.C.
§ 817(a), to remove the two employees from the area of the crusher bowl until safety lines were
furnished to them.
From the repair bay, the inspector went to the control room where he interviewed the two
employees and their supervisors: Safety lines were set up, and the drilling continued. It turned
out that a steel shank and tooth from the bucket of shovel, used to mine the ore, had become
lodged between the mantle and the crusher bowl wall. It was necessary to cut the shank and
tooth into pieces with "oxygen lanes"2 to remove it.

2

"Oxygen lanes" are "magnesium rods that are 10 feet long and they're hooked up to
high pressure oxygen." A rod is "lit with a torch.... once it gets hot enough, it will start burning
on its own." (Tr. 198.)

82

On February 21, Inspector Field issued Order and Citation No. 4537230 and Citation
No. 4537231 to the company. Both alleged violations of section 56.15005 of the regulations,
30 C.F.R. § 56.15005. 3 Order and Citation No. 4537230 stated:
A verbal imminent danger withdrawal order was issued to
Scott Perry, coord. on February 19, 1997 at 10:05 am. Two
employees were standing on the metal rim of the primary crusher
bowl while attempting to unplug the crusher. Safety belts and lines .
were not being used to prevent them from falling into the opening,
approximately 8' in length by 7' in depth, between the crusher
mantle and bowl. One employee was leaning over the very edge of
the bowl while working the boom controls of the R-61 Gardner
Denver Air Track drill. The other emph..>yee was standing on the
edge of the bowl while loosening material directly below him with
a water hose. Mine management failed to insure that fall
protection was used, constituting more than ordinary negligence.
(Govt. Ex. 1.) Citation No. 4537231 declared:
A means was not provided to prevent persons from falling,
approximately 20' into the primary crusher cavity from the east and
west sides dump ramps. Both ramps had been filled to the top of
the bumper blocks with shot rock to allow the backhoe to clean out
the cavity. An employee was standing within 2' of the edge on the
west side while directing the backhoe and the lead coordinator was
standing with 3' of the edge on the east side. A person falling onto
the shot rock on the bottom of the crusher cavity would most likely
sustain fatal injuries. The lead coordinator involved was
previously issued two citations during this inspection for violation
of this standard. The lead coordinator engaged in aggravated
conduct constituting more than ordinary negligence in that this
condition was allowed to exist. This is an unwarrantable failure.
(Govt. Ex. 3.)
Order/Citation No. 4537230. Docket Nos. LAKE 97-42-RM and LAKE 97-92-M
Order/Citation No. 4537230 was issued as a combined 107(a) Order and 104(a) citation.
Tilden argues that both the order and the citation should be vacated. The Secretary contends that

Section 56.15005 requires, in pertinent part, that: "Safety belts and life lines shall be
worn when persons work where there is a danger of falling ...."
3

83

both should be affirmed. I find that the order cannot be sustained, but that the Secretary has
established a 104(a) violation.
Imminent Danger Order
Tilden maintains that because the imminent danger order was issued verbally, and not
reduced to writing and served on the operator until2 days after the alleged imminent danger, it
was not issued in conformance with Section 107 of the Act. While it appears to be the
company's position that an imminent danger order must always be issued in writing and can ·
never be issued verbally and then reduced to writing, I find that based on the facts in this case,
the order was improperly issued.
Section 107 of the Act states, in pertinent part:
(a) If, upon any inspection or investigation of a coal or
other mine which is subject to this Act, an authorized
representative of the Secretary fmds that an imminent danger
exists, such representative shall determine the extent of the area of
such mine throughout which the danger exists, and issue an order
requiring the operator of such mine to cause all persons ... to be
withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines that
such imminent danger and the conditions or practices which caused
such imminent danger no longer exist.

(c) Orders issued pursuant to subsection (a) shall contain a
detailed description of the conditions or practices which cause and
constitute an imminent danger and a description of the area of the
coal or other mine from which persons must be withdrawn and
prohibited from entering.
(d) Each finding made and order issued under this section
shall be given promptly to the operator of the coal or other mine to
which it pertains by the person making such finding or order, and
all such findings and orders shall be in writing .. ..
Clearly, the plain meaning of the Act is that an imminent danger order must be in
"writing" and given "promptly" to the operator. Does this mean that if an itnnllnent danger order
is given verbally and then reduced to writing it is invalid? I think not. Although it bas never
directly addressed this question, the Commission in denying a claim for compensation under
section 111 of the Act, 30 U.S.C. § 821, based on a verbal imminent danger order, said the
following:

84

The mandate of section 107(d) that an imminent danger
order be written is explicit. It reflects congressional concern that
an operator be adequately advised of the imminent danger so that
corrective action may be taken. In so doing it offers protection to
an operator's property and to a miner's life and limb. Moreover, it
offers all parties procedural protection in any subsequent litigation
by placing them on notice as to the conditions which constitute the
alleged ~mminent danger and the conditions under which the order _
arose. Presumably this eliminates much of the speculation and
dispute an oral order would almost surely engender. This is not to
say that a claim for compensation may never be based upon an oral
finding of imminent danger. There may well be extraordinary
circumstances wherein an inspector who makes such a finding fails
in or is prevented by subsequent events from confirming it in a
written order of withdrawal. However, no such special
circumstances were pleaded by the union. The mere assertion that
an inspector's statements are tantamount to an oral order without
assertions that he intended to issue an imminent danger order and
as to why the inspector was prevented from reducing it to writing
will not support a claim.

Williamson Shaft Constructing Co_, 3 FMSHRC 32, 33 (January 1981) (footnote omitted).
Williamson implies that imminent danger orders can be issued orally and then reduced to
writing. That makes sense. To take Tilden's argument to its logical extreme, if an inspector saw
a rock about to fall on a miner, it would be ridiculous to expect him to remain silent until he
issued a written order telling the miner to move. Consequently, I conclude that an imminent
danger orde~ may be issued verbally and then reduced to writing.
The next question then is, how soon does it have to be reduced to writing? Since the
written order has be given promptly to the operator, it follows that the order must be reduced to
writing promptly. The dictionary defines "promptly" as "in a prompt manner : at once :
immediately, quickly." Webster's Third New International Dictionary (Unabridged) 1816
(1986). Black 's Law Dictionary 1214 (6th Ed. 1990) states: "To do something 'promptly' is to
do it without delay and with reasonable speed." In determining what similar words, "forthwith"
and "expedite," mean in section 107(e), 30 U.S.C. § 817(e), the Commission decided: "We
conclude that sections 107(e)(1) & (2) require the Commission to provide an opportunity for a
hearing on an imminent danger order with dispatch and without undue delay but, nevertheless,
within a period of time reasonable under the circumstances of each case. The terminology
requires promptness, but does not require immediacy under all circumstances." Wyoming Fuel
Co., 14 FMSHRC 1282, 1287 (August 1992).
Based on the dictionary defmitions and the Commission's language, I conclude that
section 107(d) requires that an imminent danger order be reduced to writing and given to the

85

operator "without undue delay but, nevertheless, within a period of time reasonable under the
circumstances of each case." Turning to the circumstances of this case, I find that the order was
not promptly reduced to writing and given to the operator.
It is undisputed that Inspector Field observed what he believed to be an imminent danger
from the north bay, issued the verbal order and then proceeded to go to the control where he
interviewed witnesses and made notes. However, the written order was not given to Tilden until
2 days later. No reason·was provided for this delay. Indeed~ no reason was offered-as to why the
order could not have been reduced to writing when the inspector was in the control room. The
act requires a written "detailed description of the conditions or practices which cause and
constitute an imminent danger and a description of the area . . . from which persons must be
withdrawn" so that an operator can be adequately advised of the imminent danger. Tilden did
not receive such a description until 2 days later. Such delay, without adequate reasons, renders
the requirements of the Act meaningless. Therefore, I will vacate the 107(a) order.

Crusher Bowl Citation
There is no dispute that when Inspector Field observed the drill operator and his assistant
working at the crusher bowl they were not wearing life lines. There is, however, disagreement as
to exactly where they were standing and the size of the hole in the material clogging the crusher.
The inspector, who was standing in the north bay and had his view partially obstructed by the
spider head and parts connecting it to the crusher, testified that they were right on the edge of the
lip and that the hole was 7 feet deep, 8 feet long and 44 inches wide. 4 The drill operator and his
assistant testified that only the operator was on the edge of the crusher bowl and that the hole that
had been opened was only 3 feet long and 25 inches wide.
Based on this, Tilden argues that until a hole large enough to fall into was developed fall
protection was not necessary. Nevertheless, the company did recognize that at some time fall
protection would ·be needed for the drill operator and his assistant. In fact, at the time that the
inspector made his ·observations, Clem Anderson and Donald Powrozek, the company
supervisors in the area, had already ordered that safety lines be brought in for the drillers.
Powrozek said that this was done because they realized that as the hole developed there could be
a fall hazard.
I find the Respondent's attempt to distinguish between what had developed and what
could develop too contrived. The company had no way of knowing how fast a hole might
progress once a breakthrough occurred. Thus, it was possible, both at the time the decision was
made not to have the drillers wear safety lines and at the time safety lines were ordered, that they
would arrive too late. The essence of the Act and the regulations is that operators sho~d err on

4

Given the dimensions of the crusher bowl and the fact that it was effectively cut in half
by the spider, this estimate seems to be excessive. If the hoJe had been that large, the job of
unplugging would have been almost done.

86

the side of safety: See, e.g., Cleveland Cliffs Iron Co., Inc., 3 FMSHRC 291,293-94 (February
1981 ). Consequently, I find that the drillers should have already had safety lines attached at the
time the inspector observed them and that, therefore, the company violated section 56.15005 of
the regulations.
Significant and Substantial
The Inspector f~mnd this violation to be "significant and substantial." A "significant and
substantial" (S&S) violation is described in Section I 04(d)(l) of the Act as a violation "of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard." A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
con~ributed to will result in an injury or illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822,825 (Aprill981).
In Mathies Coal Co., 6 FMSHRC I, 3-4 (January 1984), the Commission set out four
criteria that have to be met for a violation to be S&S. ·See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 10304 (5th Cir. 1988), affg Austin Power, Inc. , 9 FMSHRC 2015,2021 (December 1987)(approving
Mathies criteria). Evaluation ofthe criteria is made in terms of"continued normal mining
operations." US. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of
whether a particular violation is significant and substantial must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 1007 (December 1987).
While I have found that a fall was possible in this instance, I do not view such a
happening as being reasonably likely. The problem had existed for 2 days. None of the usual
methods oftmclogging the bowl had been even minimally successful. Drilling had commenced
the day before and had not produced significant results. In fact, because the regular methods
were tried again the night before the inspection, what little progress had been made by drilling
was reversed and the problem was worse than ever. With this history, it was not likely that an
immediate hole posing a fall hazard would develop. Accordingly, I find that the third criterion of
the Mathies test, that there was a reasonable likelihood that the hazard contributed to would
result in an injury, was not present. Therefore, I conclude that the violation was not "significant
and substantial."
Negligence
The inspector characterized the negligence of this violation as "high" because he believed
that the hazard was obvious, supervisors were present during the drilling and he had previously
issued citations to the company for violations of the same standard. The evidence does not
support a finding that the hazard was obvious. The fact that Powrozek and Anderson believed
that a hazard could develop, and took steps to deal with it, indicates that they were aware of the
necessity for safety lines and were not just oblivious to the situation. Furthermore, their

87

experience with this specific problem was that nothing was working. Drilling had not produced
any breakthroughs. Since there was little likelihood of a fall hazard developing, based on past
experience with this situation, their failure to require the use of safety lines from the start was not
"highly" negligent. Accordingly, I conclude, based on these extenuating and mitigating factors,
that the level of negligence involved in this violation was "low" and will modify the citation to
reflect that conclusion.
Citation No. 4537231. Docket Nos. LAKE 97-43-RM and LAKE 97-94-M
This citation includes two alleged violations of section 56.15005. The first instance
involves a Tilden employee who was assisting the backhoe operator to clean shot rock out of the
pit. The second involves a supervisor looking into the pit to see how work was progressing. I
find that the Secre~ary has not proved either of them.
Turning to the easier one first, the inspector testified that Clem Anderson came to within
3 feet of the edge of the pit, stood there for about 15 seconds and then walked away. Anderson
had a tough time recalling this incident because the inspector did not question him about it when
it happened,5 but he speculated that it occurred when he was checking to see that the safety lines
were being installed.
This allegation reduces the regulation to an impractical extreme. In the first place, I find
that there was no danger of falling when Anderson stood 3 feet from the edge for 15 seconds to
make sure the safety lines were being installed. In the second place, it makes no sense to require
a supervisor to put on a harness and safety line, an act which apparently takes far longer than
15 seconds, to do no more than observe what is going on in the pit unless there is a real danger of
falling. Therefore, I conclude that this instance did not violate the regulation.
Nor did the Secretary prove that the first instance violated the regulation. The inspector
testified that: "Upon accessing the crusher, we observed an employee on the west side standing
within 2 feet of the ·edge of the west dump ramp. Upon--- as we progressed toward the crusher,
this employee left the west side dump ramp and traveled to the north side dump ramp." (Tr. 48.)
The inspector stated that the employee was not "wearing a safety belt line." (Tr. 52.) He related
that he made this observation when he was between 125 and 150 feet away from the employee.
He further testified that while they were still approaching, when they were about 75 feet away,
the employee moved from where he was and went into the north repair bay of the crusher
building.
The citation was issued based solely in the inspector's observations set out above. The
inspector never discussed the incident with John Lusardi or Scott Perry, who were accompanying
him during the inspection. He never discussed it with Terry Kainulainen, the employee who
allegedly committed the violation. And he never questioned anyone at the scene, including

s The company was not served with the citation until2 days later.

88

Anderson and Powrozek, as to whether Kainulainen was wearing a safety line or if he was not,
why he was not. Therefore, he did not know that Kainulainen .had been wearing a safety line,
that he just taken it off because his spotting on the west side had been completed and he was
going inside where a safety line was not needed.
Six witnesses testified at the hearing that Kainulainen was wearing a safety line. The
inspector had not questioned any of the six prior to the hearing. Powrozek testified that he
instructed Kainulainen to wear a harness and safety line that morning and that som~time later he
observed Kainulainen working with the harness and safety line on. Kainulainen testified that he
had trouble getting the harness on and had to get help from another employee to do it. He further
testified that he wore the harness and safety line while serving as a spotter on the west wall for
the backhoe operator. His testimony was corroborated by Ed Schultz, the backhoe operator.
Anderson and Dennis Van Buren and Wesley Nordeen, the drill operators, also testified that they
saw Kainulainen working with a safety line attached.
None of this testimony is inconsistent with the inspector's observations. While neither
Kainulainen nor Schultz noticed the inspection team and, therefore, could not specifically say
what was occurring when the inspector arrived at the crusher building, they did testify that there
came a point in time when Kainulainen could no longer spot by looking over the west wall and
that he then went into the north repair bay to spot from the north wall. Since there was a waist
high wall on the north side, a safety line was not needed, and Kainulainen had taken off the
safety harness. From the totality of the evidence, I find that this is what happened as the
inspector was approaching the crusher building.
On the other hand, it appears that the inspector observed Kainulainen and then assumed
that he had been working all morning without a safety line. Further investigation at the time may
have verified this assumption or it may have convinced the inspector that no violation had
occurred. I~stead, no additional facts or statements were obtained. Consequently, all that the
Secretary has presented is the inspector's assumption, which was overwhelmingly rebutted by
the testimony of six apparently credible witnesses. This falls far short of proving the violation.
Accordingly, I conclude that neither J\nderson nor Kainulainen violated section 56.15005 and
will vacate the citation.

Civil Penalty Assessment
The Secretary has proposed a civil penalty of$4,000.00 for Citation No. 4537230 and the
parties have agreed on a penalty of $309.00 for the settled citation. However, it is the judge's
independent responsibility to. determine the appropriate amount of penalty in accordance with the
six penalty criteria set out in section 11 O(i) of the Act. Sellersburg Stone Co. v. FMSHRC, 736
F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 FMS;HRC 481,483-84 (April 1996).
In connection with the penalty criteria, the parties stipulated that the Tilden Mine worked
I,731,443 man-hours from June 3, 1996 to June 3, 1997, that payment of civil penalties would
not affect Tilden's ability to continue in business, that Tilden had been cited for 322 violations in

89

the 24-months preceding June 3, 1997, and that those violations had been issued during 255
inspection days. Based on this, I fmd that Tilden is a large company and that its history of prior
violations is average for a company of its size. I have already found that the violation in Citation
No. 4537230 was not "significant and substantial." In accord with that finding, I find that the
gravity of the violation was not serious. I have also found that the degree of negligence for the
violation was "low."
Taking all of this into consideration, I conclude that $250.00 is an appropriate civil
penalty for Citation No. 4537230 in Docket No. LAKE 97-92. I further conclude that $309.00 is
an appropriate penalty for Citation No. 4536737 in Docket No. LAKE 97-60, as agreed to by the
parties.

ORDER
Accordingly, Citation No. 4536737 is MODIFIED to allege a violation of section
56.11001, instead of section 56.15005, and is AFFIRMED as modified, and Citation
No. 4536738 is VACATED in Docket No. LAKE 97-60-M; 107(a) Order No. 4537230 is
VACATED and Citation No. 4537230 is MODIFIED by deleting the "significant and
substantial'' designation and reducing the level of negligence from "high" to "low" and
AFFIRMED as modified in Docket Nos. LAKE 97-42-RM and LAKE 97-92-M; and Citation
No. 4537231 is VACATED in Docket Nos. LAKE 97-43-RM and LAKE 97-94-M.
Tilden Mining Company, LC, is ORDERED TO PAY civil penalties of $559.00 within
30 days of the date of this decision. On receipt of payment, these cases are DISMISSED.

~~~

Administrative Law Judge

Distribution:
R. Henry Moore, Esq., Buchanan Ingersoll Professional Corporation, One Oxford Centre,
301 Grant Street, 20th Floor, Pittsburgh, PA 15219 (Certified Mail)

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, 8th Floor, 230 South
Dearborn Street, Chicago, IL 60604 (Certified Mail)

/fb

90

FEDE·R AL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280 .
DENVER. CO 80204-3582
303-844-3577/FAX 303-844-5268
I

JAN 2 9 1998
DISCRlMINATION PROCEEDfNG

TOM SPERRY,
Complainant

Docket No. WEST 97-248-DM
v.

Whitehill Sand& Gravel Pit
GRANITE CONSTRUCTION,
Respondent

Mine LD. 42-0038 1

DECISION
Appearances:

Tom Sperry, prose, Magna, Utah, for Complainant;
Roy Vlaovich, Jr., Gibbons & Reed Company, Salt Lake City, Utah,
for Respondent.

Before:

Judge Manning

This case is before me on a complaint of discrimination brought by Mr. Tom Sperry
against Granite Construction under section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. §8 15(c)(3) (the "Mine Act"). The complaint alleges that Granite
Construction terminated Mr. Sperry from his employment in violation of section lOS(c). A
hearing in this case was held in Salt Lake City, Utah. For the reasons set forth below, the
complaint of discrimination is dismissed.
I. FINDINGS OF FACT
Granite Construction purchased Gibbons and Reed Company about three years ago.
Granite Construction generally does business as Gibbons and Reed in the Salt Lake City area.
Granite Construction operates a number of facilities in Utah, including the Whitehill Sand and
Gravel Pit, on a seasonal basis. Mr. Sperry first worked for Gibbons and Reed in the summer of
I 992. He worked for either Gibbons and Reed or Granite Construction every working season
between 1992 and· 1997. Mr. Sperry started working at the Whitehill Pit on May 6, 1997, as a
scraper operator. When he arrived at the pit, he believed that there was no drinking water at the
mine. He asked his foreman, Bruce Noel, if potable water could be provided at the pit. Later in
his shift, he again asked Mr. Noel about drinking water. Sperry testified that Noel told him that
pit superintendent Dan Bunnell was not sure if water could be provided. (Tr. 9). That evening,

91

Mr. Sperry contacted his union business agent about the problem. Mr. Sperry stated that Granite
Construction provided water at the pit the next day.

Mr. Sperry testified that "[f]rom that point on, I felt pressures, pressures from the job and
from outside pressures, to comply with the mine owner in the demands to forfeit my rights as a
miner· and a United States citizen." (Tr. 9-10). He stated that he "was Wlderconstant pressure to
not drink the water that was provided." (Tr. 10). When asked to describe these pres$ures, Mr.
Sperry responded that these pressures were the result of"outside influence" and stated that they
were "probably government controlled pressures." (Tr. 12). He also felt that the company
should have provided water at the job site without being asked. He believes that most miners
brought their own water in plastic bottles.
Mr. Sperry also testified that in 1993 he worked at another Gibbons and Reed project
where water and toilet facilities were not initially provided. (Tr. 17-18). He also stated that the
service brakes on his scraper were not always properly adjusted by the maintenance personnel.
He stated that in 1995, at another Gibbons and Reed project, the operator of another piece of
equipment rammed his scraper and that management did nothing to protect him. (fr. 19-20).
Finally, he testified that he had to request drinking water at a project in 1996. (Tr. 21 ).
Mr. Sperry testified that on May 15, 1997, he was given two paychecks. (Tr. 15). When
he asked Mr. Noel why he received two checks, Noel replied that the company was letting him
go because it was not satisfied with his work. (Tr. 16). He then filed the present discrimination
complaint.
Mr. Bunnell testified that Granite Construction provided drinking water at the Whitehill
Pit prior to the date Mr. Sperry started working there. (Tr. 42-43). He stated that the mine office
has a water faucet and equipment operators typically fill a half-gallon plastic container of water at
the office upoo their arrival at the pit and carry the water in the cap of their equipment. (Tr. 43,
50-51). The cabs are air--conditioned. (Ex. C-4). The mine office was about 2,000 feet from the
area of the pit where the scrapers generally operated. (Tr. 47). Mr. Bunnell testified that after
Mr. Sperry complained about the lack of water, potable water was provided in a "ten-gallon igloo
type cooler" in an area that was closer to the scraper operations. (Tr. 46-47). He testified that
there was a one-day delay in providing this cooler after Sperry's request because the cooler
needed to be sanitized and cups and other supplies needed to be purchased.
Bunnell testified that the work being performed at the Whitehill Pit required more highly
skilled scraper operators than most of the company's other projects. Each scraper operator was
required to work in conjunction with the other scraper operators to keep the dump area safe and
the stockpiles in proper order. (Tr. 47; Ex. C-4). He stated that he decided to terminate Mr.
Sperry because his skill level was not high enough for this particular job. (Tr.45, 57-58; Ex. R2). He testified that he would hire him again at other projects, but not at the Whitehill Pit. (Tr.
45). Finally, Mr. Bunnell stated that Mr. Noel advised Mr. Sperry on prior occasions that his
operating skills were not sufficient for the job. (Tr. 48). Mr. Sperry denied that he was given any
prior warnings.

92

II. DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS OF LAW
Section l 05(c) of the Mine Act prohibits discrimination against miners for exercising any
protected right under the Mine Act. The purpose of the protection is to encourage miners "to
play an active part in the enforcement of the [Mine] Act" recognizing that, "if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation." S. Rep. No.
181 , 95 1h Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 9511t Cong., 2nd Sess., Legislative History ofthe Federal Mine Safety and
Health Act of 1977 at 623 (1978).
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. Secrelary of Labor on behalfof
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980), rev 'don other
grounds, 663 F.2d 1211 (3d. Cir. 1981); Secretary ofLabor on behalfof Robinette v. United
Castle Coal Co., 3 FMSHRC 803,817-18 (April1981). The mine 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. Pasula, 2 FMSHRC at 2799-800. If the mine
operator cannot rebut the prima facie case in this manner, it nevertheless may defend by proving
that it was also motivated by the miner's unprotected activity and would have taken the adverse
actiqn for the unprotected activity alone. /d.; Robinetle, 3 FMSHRC at 817-18; see also Eastern
Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639,642 (41h Cir. 1987).

A. Did Tom Sperry Engage in Protected Activity?
Sand and gravel operators are required to provide potable water at all active working
areas. 30 C.F.R. §56.20002. The failure of a mine operator to provide potable water can affect
the health of miners, particularly in hot weather. Miners can become seriously dehydrated and
suffer other health effects. For purposes of this decision, I hold that Mr. Sperry's complaint
about the lack of potable water was protected activity under section l 05(c) of the Mine Act.

B. Was Mr. Sperry's Termination Motivated in any Part by the Protected Activity?
In detennining whether a mine operator's adverse action was motivated by the miner's
protected activity, the judge must bear in mind that "direct evidence of motivation is rarely
encountered~ more typically, the only available evidence is indirect'' Secrelary of Labor on
beha(fofChacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 25 I 0 (November 1981 ), rev 'don
other grounds, 709 F.2d 86 (D.C. Cir 1983). " Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial evidence." ld. (citation omitted).
Based on the evidence presented at the hearing, I find that Tom Sperry's termination was not
motivated in any part by his protected activity. In making this finding I credit the testimony of
Dan Bunnell, the pit superintendent.

93

A mine operator's knowledge of the protected activity is one factor to evaluate when
determining whether an adverse action was motivated by protected activity. Mr. Bunnell had
knowledge of Mr. Sperry's request for water. I credit Bunnell's testimony that potable water was
available at the pit in the office. In addition, Granite Construction provided water closer to
Speny's work site the day after Speny made his complaint.
Another factor is the mine operator's hostility towards the protected activity, often
referred to as "animus.". There has been no showing that Granite Construction or Btinnell
exhibited any hostility towards Speny's protected activity. Mr. Sperry referred to "pressures" he
felt after he made his complaint, but he was not able to articulate any specific examples. He
attributed these pressures to "outside" influences and stated that such pressures were "probably
govemment controlled." Although he testified that he was pressured not to drink the water that
was provided, he could not des~ribe how this pressure manifested itself.
I find and conclude that Mr. Speny's request for drinking water was not a factor in
Granite Construction's decision to terminate his.employment with the company. I credit the
testimony of Mr. Bunnell that the company was not satisfied with his performance at the
Whiteh~ll Pit. In addition, the company did not take any adverse action against him when he
complained about the Jack of water at other Gibbons and Reed operations. There has been no
showing that the adverse action was motivated in any part by the protected activity. Finally, 1
lind that even if Speny's complaint about the lack of potable water was taken into consideration
when Respondent decided to terminate him, Respondent would have terminated him for his
unsatisfactory work performance alone. That is, Granite Construction would have terminated
Mr. Sperry for his work performance even if he had not complained about .the lack of water.

III. ORDER
For the reasons set forth above, the complaint filed by Tom Sperry against Granite
Construction under-section l05(c) of the Mine Act in this case is DISMISSED.

\.

Richard W. Manning
Administrative Law Judge
Distribution:

Mr. Tom Sperry, 3852 Miriam Circle, Magna UT 84044-2615 (Certified Mail)
Mr. Roy Vlaovich, Jr., Gibbons and Reed Company, P.O. Box 30429, Salt Lake City, Utah
84130-0429 (Certified Mail)

94

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., 6T" FLOOR
WASHINGTON D.C. 20006-3868
.January 8,. 1998

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

CIVIL PENALTY PROCEEDING

v.
GEORGES COLLIERS INCORPORATED, :
Respondent

Pollyanna No. 8 Mine

Docket No. CENT 98-1 I
A. C. No. 34-01787-03530

ORDER TO SHO\V CAUSE
This case is before me pursuant to section 105(d) ofthe Federal Mine Safety and Health
Act of 1977. 30 U.S.C. § 815(d).
On December 29. 1997, the Conference and Litigation Representative (CLR) filed the
penalty petition with an enclosed exhibit for this case. However, the exhibit does not include a
copy of MSHA' s assessment sheet identifying the violations contested. Commission rule
2700.28(b), 29 C.F.R. § 2700.28(b), requires that the petition list the alleged violations and the
proposed penalties, identify each violation by the number and date of the citation or order and the
section of the Act or regulations alleged to be violated. Therefore, the petition is incomplete and
the CLR must provide the requisite infonnation before this case can proceed.
On November 18, 1997, I issued an order to show cause, copy enclosed, in Quapaw
Company, 19 FMSHRC 1927, (Dec. 1997) pointing out that there were an increasing number of
recent cases where the Secretary's representatives failed to attach required exhibits to penalty
petitions. On November 21, 1997, the Associate Solicitor, for Mine Safety and Health wrote
Solicitors and CLRs regarding insufficient penalty petitions.
It is ORDERED that within 21 days the CLR file the necessary infonnation for his
penalty petition to fulfill the requirements set forth in the Commission rules or show cause why
this case should not be dismissed for inadequate filing.

Paul Merlin
Chief Administrative Law Judge

95

Enclosure
Distribution: (Cert:fied Mail)
Ned Zamarripa, Conference and Litigation Representative, U.S. Department of Labor, MSHA,
CMS&H, P. 0 . Box 25367, Denver, CO 80225

Mr. G. Matt Richardson, President, George Colliers Inc., Route 3, Box 696, Henryetta, OK
74437
/gl

96

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W. 6fll FLOOR
W ASffiNGTON D.C. 20006-3868
November 18. 1997

CIVIL PENALTY PROCEEDING

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

Docket No. CENT 97-198-M
A. C. No. 34-01273-05531

V.

Drumright Quany
QUAPAW COMPANY,
Respondent

ORDER TO PETITIONER TO SHOW CAUSE
ORDER TO SUBMIT INFORMATION
This case is before me pursuant to section 105(d) of the Federal Mine Safety and Health
Act of 1977. 30 U.S.C. § 815(d).
On September 11, 1997, the Secretary received the operator's notice of contest of civil
penalties, a copy of which was filed with the Commission on September 18, 1997, and assigned
the above-captioned docket number.
On November 6, 1997, the Solicitor on behalf of the Secretary mailed a petition for
assessment of penalty for this case which was received at the Commission on November 10,
1997. There were no attached exhibits to the Solicitor's petition.
Commission rule 2700.28(a), 29 C.F.R. § 2700.28(a), requires the Secretary to file a
penalty petition within 45 days of receipt of a contest of a penalty. Filing is effective upon
mailing. 29 C.F.R. § 2700.5(d). The petition in this case should have been filed on October 27,
1997. Therefore, it is l 0 days late and the Solicitor must explain why his petition was untimely.
Furthermore, Commission rule 2700.28(b) and (c), 29 C.F.R. § 2700.28(b) and (c),
requires that the petition list the alleged violations and the proposed penalties, identify each
violation by the number and date of the citation or order and the section of the Act or regulations
alleged to be violated, and that a legible copy of each citation contested be attached. The penalty
petition filed by the Solicitor does not contain this information. Therefore, the petition is
incomplete and the Solicitor must provide the requisite information before this case can proceed.

97
ATTACHMENT for CENT 98-11

This case is one of an increasing number of recent cases where the Secretary's
representatives fail to attach required exhibits to the penalty petitions. These cases involve
both Solicitors and CLRs. The Commission's riling requirements are easily understood
and well known to the Secretary's representatives. However, the Commission's docket
office is spending a great deal of time telephoning the Secretary's representatives to obtain
the necessary documents. It is not the Commission's responsibility to continually remind
the Secretary's representatives to furnish documentation necessary to perfect filing so that
the cases can proceed. Henceforth, show cause orders will be issued in these cases.
In light of the foregoing, it is ORDERED that within 21 days the Solicitor show cause
why this case should not be dismissed for untimely filing.
It is further ORDERED that within 21 days the Solicitor file the necessary information
for his penalty petition to fulfill the requirements set forth in the Commission rules or show
cause why this case should not be dismissed for inadequate filing.

=?~~
Paul Merlin
'""-----.
Chief Administrative Law Judge

Distribution: (Certified Mail)
James E. White, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street,
Suite 501, Dallas, TX 75202
Ed Clair, Esq., Associate Solicitor, Office of the Solicitor, U. S. Department of Labor, 4015
Wilson Boulevard, Suite 420, Arlington, VA 22203
Mr. Robert L. Childress, President, Quapaw Company, P. 0. Box 609, Stillwater, OK 74076
/gl

98