MARCH 1995
COM:MISSIQN DECISIONS AND ORDERS
03-03-95
03-03-95
03-21-95
03-23-95
03-27-95
03-27-95
03-27-95

F.W. Contractors, Inc.
Consolidation Coal Company
Sec. Labor/Charles Dixon v. Pontiki Coal
BSC Construction, Inc.
Bridger Coal Company
Buck Creek Coal, Inc.
Mineral Transport, Inc.

CENT 94-198-M
WEVA 92-798
KENT 94-1274-D
WEVA 94-401
WEST 91-233
i.AKE 94-72
WEVA 94-391

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247
250
263
267
270
273
276

SE
95-11-RM
KENT 94-524-R
KENT 94-815
KENT 94-1260
KENT 94-456
KENT 94-1318
KENT 94-1319
KENT 94-1041-D
LAKE 94-631-M

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279
293
294
296
298
300
302
304
307

CENT 94-200-D
WEST 92-819-R
KENT 94-1208 ·
WEVA 94-80
WEST 93-182
WEVA 94-286-D
LAKE 93-241
KENT 94-521
KENT 94-1001
WEST 94 - 74-M
WEVA 93-312
KENT 94-1049
KENT 94-528
KENT 94-994
PENN 93-382-D
SE
93-262
PENN 94-247
WEST 95-151-D
KENT 94-275
KENT 94-975-R
SE
94 - 569
SE
94-570

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309
326
338
349
351
359
362
364
367
375
394
396
402

LAKE 93 - 261

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ADMINISTRATIVE LAW JUPGE DECISIONS
02-01-95
03-06-95
03-06-95
03-06-95
03-07-95
03-07 - 95
03-07-95
03-08-95
03-08-95
03-09-95
03-09-95
03-10-95
03-13-95
03 - 14-95
03-14-95
03-15-95
03-16-95
03-17-95
03-20-95
03-20 - 95
03-21-95
03-21-95
03 - 21-95
03-21-95
03-22-95
03-23-95
03-27-95
03-28-95
03-28-95
03-30-95
03-30-95

Savage Zinc, Inc. (reprinted in entirety)
Peabody Coal Company
Peabody Coal Company
Peabody Coal Company
KY Harlan Coal Company
Winn Transportation Corp.
Winn Construction Company
Jerry Slon e v. Hico Transport
Edward Schumacher
Carl Stoecker v. North Western
Resources Company
Energy West Mining Company
Broken Hill Mining Company
Fielding Hydroseeding
Pittsburg & Midway Coal Mining Co.
Richard Gawthrop v . Triplett Bros.
Buck Creek Coal Company
Green Coal Company, Inc.
Costain Coal, Inc.
John Cullen Rock Crushing & Gravel
JAL Coal Company, Inc.
Ebenezer Coal Company, Inc.
Sextet Mining Corporation
B & S Trucking Company
Sec.Labor/James Lamont v. Tanoma Mining
JEN, Incorporated
Power Operating Company
Sec. Labor/Keith James v. Cordero Mining
Day Branch Coal Company
Whitaker Coal Company
S & H Mining, Inc.
Gary Byrge employed by S & H

411

416
418
421
437
440
445
454
456

ADMINISTRAIIVE LAW JUPGE ORDERS
02-15-95
03-06-95
03-10-95
03-07-05
03-10-95
03-16-95
03-16-95
03-16-95
03-31-95

Buck Creek Coal, Inc.
Peabody Coal Company
Sec.Labor/Charles Dixon v. Pontiki
Southern Minerals, Inc., et al.
Mechanicsville Concrete Inc.
Jericol Mining Inc.
Jericol Mining Inc.
Harbor Rock, Inc.
Sec .Labor/Dixon v. Pontiki Coal

i

KENT 94-1321
KENT 94-1274-D
WEVA 92-15-R
VA
95-3-M
KENT 95-32
KENT 95-31
WEST 95-64-M
KENT 94-1274-D

457
462
464
465
483
486
489
492
Pg. 494

MABCH

1995

Reyiew was granted in the following cases during the month of Marchi

Secretary of Labor, MSHA v. F.W. Contractors, Inc., Docket No. CENT 94-198-M.
(Chief Judge Merlin, unpublished Default issued December 30, 1994)
Secretary of Labor, MSHA v. BSC Construction, Inc . , Docket No. WEVA 94-401.
(Chief Judge Merlin, unpublished Default issued February 21, 1995)
Secretary of Labor, MSHA v. Mingo Logan Coal Company, Docket No. WEVA 93-392.
(Judge Maurer, February 15, 1995)
Secretary of Labor·, MSHA v. Mineral Transport Inc. , Docket No. WEVA 94 - 3 91 .
(Chief Judge Merlin, unpublished Default issued February 21, 1995)
Secretary of Labor, MSHA v . Buck Creek Coal, Inc., Docket No. LAKE 94-72, etc.
(Judge Hodgdon, Interlocutory Review of February 15, 1995 Order Continuing Stay
- published in this volume)
Review was not granted in the following cases during the month of March;
Secretary of Labor, MSHA v. Cold Spring Granite Company, Docket No.
YORK 94-14-M.
(Judge Weisberger, January 23, 1995)
Secretary of Labor, MSHA v. Mingo Logan Coal Company, Docket No. WEVA 94-247 .
(Judge Fauver, February 2, 1995)

ii

COMMISSION DECISIONS AND ORDERS

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

March 3, 1995

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 94-198-M

v.

F.W. CONTRACTORS, INC.

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners

ORDER

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988). On December 30, 1994, Chief Administrative Law Judge
Paul Merlin issued an Order of Default to F.W. Contractors, Inc. ("F.W.") for its failure to
answer the Secretary of Labor's proposal for assessment of civil penalty or the judge's show
cause order of October 27, 1994. The judge assessed civil penalties of $2,700.

In a letter to the Commission dated January 6, 1995, F. W.'s safety director seeks relief
from the default order. He asserts that F.W. had answered the Secretary's petition for assessment
of civil penalty on October 20, 1994, in a letter to the Office of the Department of Labor's
Regional Solicitor in Dallas, Texas.
The judge's jurisdiction over this case terminated when his default order was issued on
December 30, 1994. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may be sought by
filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2);
29 C.F.R. § 2700. 70(a). If the Commission does not direct review within 40 days of a decision's
issuance, it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(l). F.W.'s letter
was received by the Commission on February 13, after the judge's default order had become a
final decision of the Commission.

247

Relief from a final Commission judgment or order is available to a party under Fed. R.
Civ. P. 60(b)(l) in circumstances such as mistake, inadvertence, or excusable neglect. 29 C.F.R.
§ 2700.l(b) (Federal Rules of Civil Procedure apply "so far as practicable" in the absence of
applicable Commission rules). E.g., Lloyd Logging, Inc» 13 FMSHRC 781, 782 (May 1991).
On the basis of the present record, we are unable to evaluate the merits of F.W.'s position. In the
interest of justice, we reopen the proceeding, treat F.W.'s letter as a late-filed petition for
discretionary review requesting relief from a final Commission decision, and excuse its late
filing. See, e.g., Kelley Trucking Co., 8 FMSHRC 1867, 1868-69 (December 1986). We remand
the matter to the judge, who shall determine whether final relief from default is warranted. See
Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990).

Arlene Holen, Commissioner

248

Distribution

Paul G. Johnston, Safety Director
F.W. Contractors, Inc.
P .O. Box 185219
Fort Worth, TX 76181
Jack F. Ostrander, Esq.
Office of the Solicitor
U.S. Department of Labor
525 Griffin St., Suite 50 I
Dallas, TX 75202
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

249

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, ITH FLOOR
WASHINGTON, D.C. 2000I

March _3 , 1995

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

v.

Docket No. WEVA 92-798

CONSOLIDATION COAL COMPANY

BEFORE: Jordan, Chairman; Doyle and Holen, Commissioners
DECISION
BY: Doyle and Holen, Commissioners
This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"), presents the issue of whether a
violation of30 C.F.R. § 70.20l(d) by Consolidation Coal Company ("Consol") was significant
and substantial ("S&S"). 1 Administrative Law Judge Jerold Feldman determined on cross
motions for swnrnary decision that the violation was not S&S. 15 FMSHRC 904 (May 1993)
(ALJ). For the reasons that follow, we affirm the judge in result.

1

30 C .F.R. § 70.201(d) provides:
During the time for abatement fixed in a citation for
violation of§ 70.100 ... , the operator shall take corrective
action to lower the concentration of respirable dust to within the
permissible concentration and then sample each production shift
until five valid respirable dust samples are taken.

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

250

I.

Back&round
A.

Factual Backwuod

Consol operates the Blacksville No. 2 Mine, an underground coal mine in West Virginia.
During December 1991, inspectors from the Department of Labor's Mine Safety and Health
Administration ("MSHA") inspected the mine pursuant to MSHA's "Spot Inspection Program"
(the "Program"). Under the Program, inspectors were instructed to issue a citation alleging a
violation of section 70.100(a) whenever the results of a respirable dust sample taken during a
single shift equaled or exceeded the level set forth in an MSHA table. 2 S. Mot. for Sum. Dec. at
5. A citation was to be issued if a single-shift sample at the No. 2 mine showed a dust
concentration of 2.5 or more milligrams of respirable dust per cubic meter of air ("mg/m3"). Id
at 5, 7.
On December 9 and 10, 1991, inspectors took samples over single shifts that showed the
longwall jack setter had been exposed to dust concentrations of 2.5 mg/m3 and 3.1 mg/m3 • 15
FMSHRC at 905 n.5. On December 11, Inspector Theodore Betoney issued to Consol a citation
alleging an S&S violation of section 70. l OO(a) for excessive concentrations of respirable dust.
The citation stated: "[t]he mine operator shall take corrective action immediately to lower the
amount of respirable dust at 041 non-designated occupation [longwall jack setter], and then
sample each consecutive shift until five (5) valid samples are obtained." S. Mot. for Sum. Dec.
Ex. C. The abatement time was set for December 16 and was later extended to December 18. 15
FMSHRC at 905 n.3.
On December 12, Consol informed Inspector Betoney that it would decide on the
appropriate corrective action after five samples were taken. S. Mot. for Sum. Dec. at 8. Those
samples showed excessive dust concentration. On December 19, Inspector Betoney issued a
withdrawal order, pursuant to section 104(b) of the Act, 30 U.S.C. § 814(b), alleging that Consol

2

30 C.F.R. § 70.lOO(a) provides:
Each operator shall continuously maintain the average
concentration of respirable dust in the mine atmosphere during ·
each shift to which each miner in the active workings . . . is
exposed at or below 2.0 milligrams of respirable dust per cubic
meter of air . . . .

Before the Program's initiation in July 1991, MSHA determined compliance with
section 70. lOO(a) on the basis of dust samples taken during multiple shifts. The Commission
considered the procedural validity of the Program in Keystone Coal Mining Corp., 16
FMSHRC 6 (January 1994), discussed infra.

2°51

had failed to lower the dust concentration within the time for abatement set forth in the
underlying citation. Later that day, he issued another withdrawal order, pursuant to section
104(d)(2) of the Act, 30 U.S.C. § 814(d)(2), alleging an S&S violation of section 70.20l(d),
caused by Consol's failure to take corrective action. That order, subsequently modified to a
citation, is the enforcement action at issue. 15 FMSHRC at 904 n. l .
On December 23, Consol submitted to MSHA a plan to lower respirable dust levels,
which was implemented following MSHA's approval. On December 26 and 27, Consol collected
samples showing an average dust concentration of0.9 mg/m3 • S. Mot. for Sum. Dec. at 9. The
section 70.201 (d) citation as well as the section 104(b) failure to abate order were then
terminated. Id; S. Mot. for Sum. Dec. Ex. E.
B.

Procedural Back~ound

Consol challenged both citations. The section 70. lOO(a) citation was assigned to
Administrative Law Judge Avram Weisberger as part of Docket No. WEVA 92-761; the instant
citation, which alleged a violation of section 70.20l(d), came before Judge Feldman.
1. Citation alle~:in~ Consol's violation of section 70. 1OO(a)
Judge Weisberger stayed the proceedings in Docket No. WEVA 92-761 , based on his
determination in Keystone Coal Mining Corp., 14 FMSHRC 2017, 2024-29 (December 1992)
(ALJ), that the Program was procedurally invalid because the Secretary had not engaged in
notice-and-comment rulemaking prior to implementing it. The Commission granted the
Secretary's petition for discretionary review in Keystone and Judge Weisberger continued the
stay in Docket No. WEVA 92-761, pending decision by the Commission in Keystone.
The Commission affirmed the judge's decision in Keystone, concluding that the Program
was invalid because it constituted a legislative-type rule that had been adopted without the
required notice-and-comment rulemaking. 16 FMSHRC at 10-16. The Commission's decision
was not appealed. Judge Weisberger subsequently dismissed the section 70.lOO(a) citation based
on the Commission's ruling in Keystone. Unpublished Order dated April 1, 1994. The Secretary
did not petition for review of the judge's order and it became a final decision of the Commission.
30 u.s.c. § 823(d)(l).
2. Citation alle~im~ Consol's violation of section 70.20l(d)
In the present proceeding, the parties moved for a stay pending final resolution of
Keystone. Judge Feldman stayed the proceedings only until Judge Weisberger issued his
decision. After the Commission directed Keystone for review, the Secretary moved for
continuance of the stay, pending the Commission's decision. The judge, however, denied the
Secretary's motion. He subsequently permitted.the parties to proceed on cross motions for
summary decision. Unpublished Order at 2 (March 26, 1993).

252

Because Consol conceded the violation of section 70.201 (d), the only issue before the
judge was whether that violation was S&S. 15 FMSHRC at 906. In his summary decision,
issued before the Commission's Keystone decision, the judge concluded that doubts regarding the
validity of the Program and, hence, the validity of the widerlying citation alleging a violation of
section 70.lOO(a) warranted the deletion of the S&S designation. Id at 907. The judge rejected
the Secretary's argument that the violation of section 70.201 (d) was presumptively S&S because
it arose from the failure to abate an S&S violation of section 70.1 OO(a). Id at 907-08. The judge
also stated that application of the Commission's S&S test set forth in Mathies Coal Co., 6
FMSHRC 1, 3-4 (January 1984), independently supported his determination that the violation
was not S&S. Id at 907. Accordingly, the judge deleted the S&S finding. He assessed a civil
penalty of $100. The Commission granted the Secretary's petition for discretionary review.

II.
Disposition
A violation is S&S if, based on the particular facts surrowiding 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 Div., Nat'! Gypsum Co., 3 FMSHRC 822, 825-26 (April
1981 ). The general test for determining whether a violation is S&S is set forth in Mathies, 6
FMSHRC at 3-4. In Consolidation Coal Co., 8 FMSHRC 890 (Jwie 1986), affd, 824 F.2d 1071
(D.C. Cir. 1987), however, the Commission held: "when the Secretary proves that a violation of
[section] 70.l OO(a) ... has occurred, a [rebuttable] presumption that the violation is a significant
and substantial violation is appropriate." Id. at 899.
In his petition for review, filed before issuance of the Commission's decision in Keystone,
the Secretary asserts, as he did before the judge, that the failure to timely correct a presumptively
S&S dust violation is also presumptively S&S.3 PDR at 4. He asserts further that the judge
determined that a short exposure to excessive respirable dust should not be considered
presumptively S&S and that such a determination conflicts with Consolidation. Id at 7. The
Secretary urges the Commission to reject any attempt to carve out an exception to the
presumption for even short periods of exposure to excessive dust. S. Br. at 10-13 & n.11.
Incorporating by reference his arguments to the Commission in Keystone, the Secretary asserts
that the judge erred in relying on his "doubts regarding 'the procedural and substantive merits of
the Secretary's single shift sampl[ing] proce_dure. 111 Id. at 5. He contends that the judge's doubts
regarding the validity of the Program pertain only to the fact of violation and are immaterial to
the S&S issue. Id at 6-7. The Secretary asks the Commission to reverse the judge and remand
for assessment of an appropriate civil penalty. '

3

The Secretary does not argue for application of the Mathies test.

253

.

Consol argues that the judge was correct in his determination that the violation was not
S&S. It argues further that M.SHA's enforcement actions improperly imposed duplicative S&S
sanctions for the same violation, an issue not reached by the judge because he deleted the S&S
designation. Consol Br. at 3-6.
With regard to the Secretary's argument that the judge erred in concluding that the
violation was not preswnptively S&S, we note that, on its face and as found by the judge, the
instant citation was based solely on the operator's failure to take timely action to correct the
conditions underlying the December 11 citation. Order No. 3720751; 15 FMSHRC at 905, 907.4
Consequently, determination of whether the instant citation is presumptively S&S depends upon
the validity of the underlying citation. The Secretary conceded this before the judge:
Resolution of ... whether the violation should be designated S&S, is
directly dependent on the validity of the single sample method. If the single
sample method is invalidated, then the .current citation for failure to take
corrective action to lower the respirable dust concentration ... cannot be S&S
because there would be no judicially acceptable proof that the respirable dust
concentration was violative.l5J.
S. Mot. for Stay at 3. The underlying citation was dismissed based on the Commission's ruling
in Keystone. Consequently, the judge did not err in determining that the violation was not
presumptively S&S. To the extent that he erred in deleting the S&S designation based on

4

Our dissenting colleague relies on the affidavit of Inspector Betoney in an attempt to
establish that the citation, which rests explicitly on the earlier test results, was issued not only
as a result of the operator's failure to take corrective action but also as a result of subsequent
dust sampling. Slip op. at 8. There is no indication in the judge's decision that he credited
the inspector's statement in this regard. Rather, it appears that he discredited the statement:
he found that the citation was issued "for the respondent's failure to take corrective action" (15
FMSHRC at 907) and that the violation "allegedly occurred because the respondent failed to
take remedial action" (15 FMSHRC at 905). Moreover, the inspector's affidavit is not
appropriately construed in the Secretary's favor to support his motion/or summary decision
and application of the S&S presumption, as our colleague suggests. She erroneously relies on
the law regarding construction of evidence in opposition to summary decision to support her
position, which, in essence, is to grant the Secretary's motion for summary decision.
5

This concession served as the basis for the judge's stay order. 15 FMSHRC at 906.
The dissent discounts this concession (Slip op. at 10) because it was made in a Motion for
Stay, which also set forth the terms under which the case would be settled following the
Commission's decision in Keystone. The statement was part of a legal argument made by the
Secretary in support of his motion. The statement was not a factual admission made during
settlement negotiations. See Fed. R. Evid. 408.

254

uncertainty regarding the underlying violation, that error is harmless because the Commission, in
Keystone, invalidated that citation. See Great W. Elec. Co., 5 FMSHRC 840, 842 (May 1983).
We also reject the Secretary's argument that violations of section 70.201(d) are
presumptively S&S under Consolidation. In that case, the Commission determined that a
rebuttable S&S presumption applies when the Secretary proves a violation of section 70.1 OO(a).
8 FMSHRC at 899. Contrary to the Secretary's assertions, the Commission has not extended that
presumption to violations of section 70.20l(d) or to any other respirable dust or mandatory
health standard. See Union Oil Co. o/Cal., 11FMSHRC289, 297 (March 1989).
A motion for sununary decision is not the appropriate means for pursuing extension of
the S&S presumption. We decline to decide on the present record whether violations of section
70.201(d) should also be considered presumptively S&S. In moving for sununary decision, the
Secretary foreclosed his opportunity to develop the type of record necessary to demonstrate the
appropriateness of such a presumption. See Union Oil, 11 FMSHRC at 297. Cf Consolidation,
8 FMSHRC at 892-94.

We conclude that the Secretary has failed to articulate persuuive legal grounds for
overturning the judge's determination. To the extent the judge sugge~ted_ that short periods of
exposure to respirable dust are exempt from the presumption established in Consolidation, we
agree with the Secretary that he erred. We do not reach the issue, raised by the operator, that
the Secretary's S&S sanctions were duplicative.

III.
Conclusion
For the reasons set forth, we affirm in result the judge's determination that Consol's
violation of section 70.201 (d) was not S&S.

Arlene Holen, Commissioner

255

Jordan; Chairman, dissenting:

·-

Unlike my colleagues, I consider Consolidation Coal Co., 8 FMSHRC 890 (June 1986),
ajj'd, 824 F.2d 1071 (D.C. Cir. 1987), to be dispositive of the S&S issue in this case. Accordingly, I conclude that the judge erred in failing to apply Consolidation, and in granting summary
decision in favor of the operator.
In Consolidation, the Commission was confronted with the question whether a violation
of 30 C.F.R. § 70. l 00 based on "a single incident of overexposure" to respirable dust in an
underground mine is S&S. Id at 898. The Commission, modifying the general test for
determining whether a violation is S&S set forth in Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984), concluded that such violations are presumptively S&S.

The present case involves the conceded violation of 30 C.F.R § 70.201(d), which
requires that "[d]uring the time for abatement fixed in a citation for violation of§ 70. I 00 ... , the
operator shall take corrective action to lower the concentration of respirable dust to within the
permissible concentration .. . ." In refusing to apply Consolidation, my colleagues rely on the
fact that the violation at issue here involves section 70.201(d) rather than section 70.100. I view
this as a distinction without a difference since the operator's failure to comply with section
70.20l(d) resulted in 1Qe same hazard, overexposure to respirable dust, which formed the basis of
the S&S presumption in Consolidation. That the citation involves a failure to abate a dust
violation, rather than a failure to comply with the dust standard in the first instance, does not
change the fact that miners in the affected area were exposed to higher levels of dust than
permitted under section 70. l 00.
In Consolidation the Secretary submitted testimony by medical experts who explained
why it was not possible to assess the precise contribution of a particular instance of overexposure
to the development of pneumoconiosis or other disease induced by respirable dust. See Consolidation Coal Co., 5 FMSHRC 378, 379-82 (March 1983) (ALJ). The medical evidence established that "the development and progress of respiratory disease is due to the cumulative dosage
of dust a miner inhales, which in turn depends upon the concentration and duration of each
exposure .. . ." Consolidation, 8 FMSHRC at 898. The Commission concluded that "the present
state of scientific and medical knowledge, as exemplified by the present record, do not make it
possible to determine the precise point at which the development of chronic bronchitis or
pneumoconiosis will occur or is reasonably likely to occur." Id. However, given the fact that
reducing the incidence of these diseases was one of the fundamental purposes of the Mine Act
and recognizing that "each unit of overexposure is an important factor in contributing to either
[chronic bronchitis or pneumoconiosis]," id at 894, the Conunission detennined that a departure
from the typical S&S analysis was justified:
[W]e hold that if the Secretary proves that an overexposure to
respirable dust in violation of section 70.100(a) ... has occurred, a
presumption arises that the third element of the significant and

256

substantial test -- a reasonable likelihood that the health haz.ard
contributed to will result in an illness - has been established.

Id at 899.
In the instant case, there is no dispute that the sampling conducted by the operator
between December 12 and 16 showed the average concentration ofrespirable dust to be 2.9
mg/m3• S. Mot. for Sum. Dec. at 7-8; Aff. of Theodore Betoney ii~ 11-14. Inspector Betoney
relied on these sampling results when he issued the citation at issue here. Id. The Secretary has
proved, therefore, that an overexposure to respirable dust occurred. Because the operator had
previously been cited under section 70.100, and had failed to take immediate steps to lower the
dust level, the instant citation referred to section 70.201 as the standard violated. S. Mot for
Sum. Dec. at 8-9; Betoney Aff. ~14. In light of this, my colleagues have determined that we
should not apply the S&S presumption for respirable dust violations in this case and should
instead require the Secretary "to develop the type of record necessary to demonstrate the
appropriateness of such a presumption." Slip op. at 6. As the record does not contain evidence
of a medical breakthrough permitting precise prediction of the likelihood of contracting lung
disease on the basis of a single instance of overexposure to respirable dust, I fail to see the
purpose of requiring the Secretary to "prove anew" that such overexposure endangers miners'
health and satisfies the four S&S elements set forth in Mathies. See Consolidation,
8 FMSHRC at 899.

The judge's decision does not even refer to Consolidation. Explaining he deleted the
S&S designation because, inter alia, the operator's "failure to take remedial action was cited
shortly after the abatement period expired," the judge concluded that "respondents' failure to
timely correct the alleged underlying violation one day after the time established for abatement
does not constitute a significant and substantial violation." 15 FMSHRC at 908. Even accepting
the one day time frame relied upon by the judge, Consolidation does not indicate that an
exception to the S&S presumption should apply .1
The Commission's decision in Consolidation recognized that the development and
progress of respiratory disease is due to the cumulative dosage of dust a miner inhales, which in
turn depends upon "the concentration and duration of each exposure .... 11 8 FMSHRC 898

1

The judge's one-day time frame does not appear to be supported by substantial
evidence. The judge computed the relevant time period from the December 18 deadline for
abating the section 70.100 citation to December 19, the date the operator received the citation
alleging a violation of section 70.201 (d). Although the operator received the failure-to-abate
citation on December 19, the record reflects that it did not abate the violation until December 23
at the earliest, when respondent submitted a plan of corrective action to MSHA. Betoney Aff.
Ex. Eat 2.

257

(emphasis added). Consolidation emphasiI.ed the importance that Congress placed on the fixed
ceiling for respirable dust exposure levels. The Commission noted:
The respirable dust standard ... is taken directly from section 202
of the Mine Act, 30 U.S.C. § 842, whic~ in tum, was earned over
without significant change from the [Federal] Coal [Mine Health
and Safety] Act [of 1969].
Id at 896. The Commission stressed that:

[I]n all cases, the standard is keyed to each individual miner. The
air he breathes, wherever he works in the mine, must not contain
more respirable dust during any working shift than the standard
permits.
8 FMSHRC at 897 (emphasis in original}, quoting Conference Report reported at 1 Legislative
History ofthe Federal Coal Mine Health and Safety Act of1969 at 1606 (1975). Because it is
undisputed that the miners here were exposed to "more respirable dust . .. than the standard
permits," I would find the violation to be S&S under Consolidation.
My colleagues' decision is also based on the dismissal of the underlying section 70.100
citation by a different judge in~ separate proceeding. Slip op. at 5. That dismissal was
predicated on the Secretary's use of a single-shift method for collecting dust samples. The
Commission later determined that the single-shift method was procedurally invalid because the
Secretary had not engaged in formal rulemaking prior to implementing it. Keystone Coal Mining
Corp., 16 FMSHRC 6, 10-16 (January 1994). In his ruling below, handed down prior to the
Commission's decision in Keystone, Judge Feldman concluded that "the uncertainties associated
with the underlying respirable dust standard violation .. . create mitigating circumstances
warranting the deletion of the significant and substantial characterization in [the citation]." 15
FMSHRC at 907.
The dismissal of the underlying section 70 .100 citation precludes the Secretary from
relying on the dust samples which precipitated that citation to prove that overexposure occurred
in this case. But the citation involved here does not rely on those invalid samples. . Inspector
Betoney explained that he issued the section 70.20l(d) citation because the operator failed to
take steps to abate the previous citation issued under section 70.100, and because subsequent
dust samples taken between December 12 and December 16 also showed a violative average dust
concentration of2.9 mg/m3• These samples were taken by the operator using the traditional
multi-shift approach, and there is no dispute about their validity. Given that the operator has
conceded a violation of section 70.201(d), and that samples show the violation resulted in

2 58

exposure to illegal levels of respirable dust, we should resolve the S&S issue by applying the
presumption articulated in Consolidation. 2
Because the 70.20l(d) citation only refers to the operator's failure to take corrective
action and does not make specific reference to the operator samples confirming the existence of
illegal levels of respirable dust between December 12 and 16, my colleagues question whether
these samples can properly be considered in assessing the S&S nature of the failure to abate
violation at issue here. Suggesting that the judge "discredited" the portion of Inspector Betoney's
affidavit which refers to these samples, they maintain that the S&S nature of the instant citation
must depend upon the validity of the underlying citation. Slip op. at 5 & n.4.
The judge's decision indicates that he considered the dust samples taken between
December 12 and 16 as "not dispositive of whether there was a basis for the issuance of [the
underlying] Citation . .. [issued] on December 11, 1991." 15 FMSHRC at 907 n. 9 (emphasis
supplied). The judge failed to address whether Inspector Betoney's evidence provided an
independent basis for concluding that the operator's failure to abate the earlier citation resulted in
exposure to excessive levels of respirable dust. The judge's finding that Inspector Betoney's
evidence did not cure the defective single shift sampling that had been conducted on December
11 is not the same as discrediting that evidence for purposes of showing that miners were
overexposed to dust on subsequent days. Indeed, the judge would have committed error had he
"discredited" the inspector's testimony.

2

My colleagues rely on an asserted concession by the Secretary that the Keystone
decision dictates dismissal of the S&S designation here. Slip op. at 5. I attach little weight to the
Secretary's statement cited by the majority, given that the statement appeared in a Motion to Stay
that was explicitly predicated on an offer to settle the matter based on the Keystone result. The
settlement apparently fell through. Mot. for Stay at 5-6; Unpublished Order at 2 (March 26,
1993). In any case, the Secretary subsequently modified his position on the connection between
Keystone and the S&S issue here, stating:
In the instant case, the five samples that the company collected on
December 12, 13 and 16, 1991, prior to taking corrective action,
revealed an average concentration of2.9 mg/m3 • Thus, these
samples, independent ofthe two sirigle samples that were collected
on December 9 and 10, 1991, demonstrate that the respirable dust
concentration for the long wall jack setter far exceeded the permissible maximum of2.0 mg/m3•
S. Mot. for Sum. Dec. at 20 (emphasis supplied). Significantly, on review the respondent has not
even cited the Secretary's earlier statement mentioned by my colleagues purporting to link the
Keystone outcome and the instant S&S issue.

2 59

While a question of credibility may be sufficient to forestall entry of summary decision, a
judge may not "discredit" record evidence as a means of granting summary decision, particularly
in view of the judge's inability to assess the witness's demeanor. See IOA Wright et al., Federal
Practice and Procedure § 2726 (2d ed. 1983). If the judge believed that lns"pector Betoney's
affidavit was inconsistent with the face of the citation, as my colleagues speculate, then he
should have denied summary decision and proceeded to trial on this material factual issue. See,
e.g., Leonard v. Dixie Well Serv. & Supply, Inc., 828 F.2d 291 (5th Cir. 1987). As the court
noted in Leonard, "the Supreme Court has not ... approved summary judgments that rest on
credibility determinations."3 Id at 294.
Accordingly, I would vacate the judge's decision and remand for application of Consolidation.4

3

My colleagues, misapprehending the dissent, conclude that I rely on the law requiring
construction of the evidence in favor of the party opposing sununary judgment to support my
purported "position, which, in essence, is to grant the Secretary's motion for summary decision."
Slip op. at 5 n.4 (emphasis supplied). The issue before the Commission is not whether summary
judgment was improperly denied to the Secretary, but whether the judge erred by refusing to
apply the S&S presumption of Consolidation. PDR at 1. The judge was not required to enter
summary decision in favor of the Secretary. See Wright, supra, at§ 2720. However, if the judge
erred by not applying Consolidation, as I conclude, then his grant of summary decision in favor
ofthe operator must be vacated. The filing of cross-motions for summary decision does not
relieve the judge of the obligation to resolve all doubts against the operator before granting that
party's motion for summary decision. Id at§ 2727. "The court must rule on each party's motion
on an individual and separate basis, detennining, in each case, whether a judgment may be
entered in accordance with the [summary judgment] standard." Id. at§ 2720 (citations omitted).
Thus, in considering whether the judge properly granted the operator's summary judgment
motion, the Secretary must be treated as--the party opposing entry of summary decision, and the
record evidence must be construed in his favor. ·
4

I am not persuaded by the operator's argument that upholding MSHA's enforcement
action imposes on respondent "two S&S special findings ... for the very same violative
condition .... " Consol Br. at 6 . The citation in the present case was for Consol's refusal to
timely abate the underlying citation, not for the underlying citation itself.

260

Marks, Commissioner, not participating:
I assumed office after this case had been briefed and considered at a Commission
decisional meeting. In light of these circumstances, I elect not to participate in this c e.

Marc Lincoln Marks, Commissioner

261

Distribution:
Jerald Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Elizabeth Chamberlin, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Administrative Law Judge Jerold Feldman
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

262

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 10006

March 21, 1995

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF CHARLES H.
DIXON, et al.

Docket No. KENT 94-1274-D

vs.

PONTIKI COAL CORPORATION

ORDER
On March 8, 1995, the Secretary of Labor filed with the Commission a petition for
discretionary review seeking review of Administrative Law Judge Gary Melick's February 6,
1995, Order Granting Partial Dismissal.
The petition seeks review of the judge's dismissal, for lack ofjurisdiction, of the Secretary's discrimination complaint under section 105(c)(2) of the Mine Act as it pertains to the 17
individuals named in the complaint other than Charles H. Dixon. Order at 4, 6. The judge based
his dismissal on the fact that only Dixon had filed a complaint with the Secretary. Id at 4 . The
Secretary aJso seeks review of the judge's limitations of the complaint regarding Dixon to matters
contained in his complaint to the Secretary and to acts occurring on or after April 15, 1994. Pet.
at 1-2.
The Commission's Procedural Rule 70, which implements section I 13(d)(2)(A) of the
Mine Act, 30 U.S.C. § 823(d)(2)(A), provides: "Any person adversely affected or aggrieved by a
judge's decision ... may file . .. a petition for discretionary review .. . ." 29 C.F.R. § 2700.70.
The Commission has held that a judge's decision is not subject to review under section 113 of the
Mine Act and the Commission's rules unless it ''finally disposes of the proceedings." Council of
S. Mountains v. Martin County Coal Corp., 2 FMSHRC 3216, 3216-17(November1980)
(emphasis in originaJ). Where a judge has disposed of less than all claims in multiple-party
proceedings, the Commission has applied Rule 54(b) of the Federal Rules of Civil Procedure in

263

determining whether the decision is final. 1 Emery Mining Corp., 11 FMSHRC 1, 2 (January
1989).
We conclude that the order is not final. The judge did not expressly direct that his
dismissal of the complaint as to the other 17 individuals be entered as a final decision, nor did he
find, pursuant to Rule 54(b), that there is no just reason for delay. Further, the judge subsequently modified the order and characterized it as interlocutory. See Amended Order

1

Rule l(b) of the Commission's Procedural Rules provides that the Federal Rules of Civil
Procedure shall apply "so far as practicable" in the absence of applicable Commission rules. 29
C.F.R. § 2700. l(b).
Rule 54(b) states in part:
(W]hen multiple parties are involved, the court may direct the entry
of a final judgment as to one or more but fewer than all of the
claims or parties onJy upon an express determination that there is
no just reason for delay and upon an express direction for the entry
of judgment. In the absence of such determination and direction,
any order or other form of decision, however designated, which
adjudicates . .. the rights and liabilities of fewer than all the parties
shall not tenninate the action as to any of the claims or parties, and
the order or other form of decision is subject to revision at any time
before the entry of judgment adjudicating . .. the rights and liabilities of all the parties.
Fed. R. Civ. P . 54(b).

264

Granting Partial Dismissal (May 9, 1995). Accordingly, we dismiss the Secretary's petition for
discretionary review as premature. See, e.g., McCoy v. Crescent Coal Co., 3 FMSHRC 2475
(November 1981).

<2-~tf. ~~

Joyce A Doyle, Commissioner

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

265

Distribution

Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D. C. 20004
Brian W. Dougherty, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd., Suite B-201
Nashville, TN 37215
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite l 000
Falls Church, VA 22041

266

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

March 23, 1995

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

v.

Docket No. WEVA 94-401

BSC CONSTRUCTION, INC.

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners

ORDER
BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act"). On February 21 , 1995, Chief Administrative
Law Judge Paul Merlin issued an Order of Default to BSC Construction, Inc. ("BSC") for failing
to answer the proposal for assessment of penalty filed by the Secretary of Labor on October 11 ,
1994, or the judge's Order to Respondent to Show Cause of December 21 , 1994. The judge
assessed the civil penalties of $800 proposed by the Secretary.
On March 2, 1995, the Commission received a letter from Roger Glover, BSC's
operations manager, in which Glover states that BSC had mailed a "letter of appeal" on August
25, 1994, to Caryl Casden, an attorney with the Department of Labor's Regional Solicitor's
Office in Arlington, Virginia. Glover states that, after he was informed that his letter had not
been received and, after receiving the show cause order, he mailed another appeal letter to
Casden by certified mail. He enclosed a copy of that letter, dated January 5, 1995, and a certified
mail receipt dated January 9, 1995.
The judge's jurisdiction in this matter terminated when his decision was issued on
February 21, 1995. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's
procedural rules, relief from a judge's decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). We deem BSC's March 2 letter to be a timely filed petition for discretionary

267

review, which we grant. See, e.g., Middle States Resources, lnc., 10 FMSHRC 1130 (September
1988).
On the basis of the present record, we are unable to evaluate the merits of BSC's position.
In the interest ofjustice, we remand this matter to the judge, who shall determine whether default
is warranted. See Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990).
For the reasons set forth above, we vacate the judge's default order and remand this
matter for further proceedings.

«-~tt ~

Joyce A. Doyle, CommissioM

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

268

Distribution

Roger L. Glover
Operations Manager
BSC Construction, Inc.
P.O. Box 945
Uniontown, PA 15401
Cary 1 L. Casden, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

269

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

March 27, 1995

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

Docket No. WEST 91-233

V.

BRIDGER COAL COMPANY

ORDER DISMISSING PETITION
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988). OnDecember29, 1994, the Commission granted the
Secretary of Labor's petition for discretionary review of the decision of Administrative Law
Judge August F. Cetti, in which he vacated a citation issued to Bridger Coal Company
("Bridger"). 16 FMSHRC 2310 (November 1994).
On February 24, 1995, the Secretary filed a motion for voluntary dismissal of the petition
pursuant to Fed. R. Civ. P. 41 (a) and Fed. R. App. P. 42 (b), stating that the motion was made
"in an effort to effectively utilize his resources." 1 Mot. at I. The Secretary asserts that counsel
for Bridger had been notified of the motion. The Commission has administratively determined
that Bridger does not oppose the motion.

Fed. R. App. P. 42 (b) provides in part: "An Appeal may be dismissed on motion
of the appellant upon such terms as may be agreed upon by the parties or fixed by the court."
Commission Procedural Rule 1 (b) provides that the Federal Rules of Civil
Procedure and the Federal Rules of AppeHate Procedure shall apply "so far a-; practicable" in the
absence of applicable Commission rules. 29 C.F.R. § 2700.1 (b).

270

Upon consideration of the Secretary's motion, we dismiss his petition for review. See
generally RBK Construction, Inc., 15 FMSHRC 2099, 2101 n.2 (October 1993).

Arlene Holen, Commissioner

271

Distribution
James Zissler, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Suite 400
Washington, D.C. 20037
Colleen A. Geraghty, Esq.

Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge August Cetti
Federal Mine Safety & Health Review Commission
1244 Speer Blvd., Suite 280
Denver, CO 80204

272

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, ITH FLOOR

WASHINGTON, D.C. 20006

March 27, 1995

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

Docket Nos.

LAKE 94-72, etc.

V.

BUCK CREEK COAL INC.

ORDER
On February 17, 1994, Buck Creek Coal Inc. ("Buck Creek") filed with the Commission a
petition for interlocutory review of Administrative Law Judge T. Todd Hodgdon's February 15,
1995, Order Continuing Stay (the 11 Stay Order").1 The judge bad previously stayed proceedings
for ninety days or until the United States Attorney made a detennination regarding the criminal
prosecution of Buck Creek. The Commission dismissed as moot the operator's petition for
interlocutory review of the judge's previous stay. Buck Creek Coal Inc. , 17 FMSHRC _
(February 1995). The Stay Order continues the stay until May 16, 1995, and directs the parties to
attend a status conference on that date for the purpose of deciding whether and under what
conditions the stay should be continued. Stay Order at 5.
Buck Creek urges the Commission to grant interlocutory review and to grant it relief from
the Stay Order so that it can defend itself against the 554 citations and orders in these consolidated dockets. Pet. at 4. The Secretary responds that the judge did not abuse his discretion in
granting the stay in light of potential adverse effects on the ongoing criminal investigation. S.
Opp'n at 4-6.

1

The Commission held th.is petition in abeyance pending the judge's ruling on Buck
Creek's late-filed motion for certification. Buck Creek Coal Inc., 17 FMSHRC _(March
1995). The judge has now denied Buck Creek's motion. Order Denying Mot. for Certification
at 6.

273

We conclude that the Stay Order involves a controlling question oflaw and that immediate
review may materially advance the final disposition of the proceeding. See Commission Procedural Rule 76(a)(2), 29 C.F.R. § 2700.76(a)(2). The Commission therefore grants Buck Creek's
·
petition.
We find that the issues are adequately addressed in the parties' submissions. If the parties
wish to file supplemental briefs, they must be received by the Commission by April 4, 1995.
At the hearing on continuing the stay, counsel for the Secretary represented that he may
be prepared to address, prior to May 16, 1995, the advisability of lifting the stay as to some
consolidated dockets. Tr. 17. We encourage the parties to confer promptly and report to the
judge regarding how the stay might be limited or modified before its expiration. During the
pendency of this matter before the Commission, the judge shall have continuing jurisdiction to lift
or modify the stay based on the parties' submissions.

Marc Lincoln Marks, Commissioner

274

Distribution

James G. Zissler, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Suite400
Washington, D.C. 20037
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
5203 Leesburg Pik~, Suite 1000
Falls Church, VA 22041

275

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

March 27, 1995

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 94-391

v.

MINERAL TRANSPORT, INC.

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners

ORDER

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act"). On February 21, 1995, Chief Administrative
Law Judge Paul Merlin issued an Order of Default to Mineral Transport, Inc. ("Mineral") for
failing to answer the proposal for assessment of civil penalty filed by the Secretary of Labor on
October 7, 1994, or the judge's Order to Respondent to Show Cause of December 21, 1994. The
judge assessed the civil penalties of $800 proposed by the Secretary.
On March 8, 1995, the Commission received a letter from Keith Martin, Mineral's
manager, in which he asserts that Mineral had sent its reply on January 5, 1995, to the
Department of Labor's Office of the Solicitor in Arlington, Virginia.
The judge's jurisdiction over this case tei;minated when his default order was issued on
February 21, 1995. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may be sought by
filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2);
29 C.F.R. § 2700.70(a). We deem Mineral's letter to be a timely filed petition for discretionary
review, which we grant. See, e.g., Middle States Resources, Inc., 10 FMSHRC 1130 (September
1988).

276

On the basis of the present record, we are unable to evaluate the merits of Mineral's
position. In the interest of justice, we remand this matter to the judge, who shall determine
whether default is warranted. See Hickory Coal Co., 12 FMSHRC 1201, 1202.(June 1990).
For the reasons set forth above, we vacate the judge's default order and remand this
matter for further proceedings.

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

277

Distribution

W. Keith Martin, Manager
Mineral Transport Inc.
P.O. Box 313
Fairmont, WV 26554
Caryl L. Castlen, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N. W., Suite 600
Washington, D.C. 20006

278

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

FEB 0 1 1995
SAVAGE ZINC, INC.,
Contestant

CONTEST PROCEEDINGS

v.

Docket No. SE 95-11-RM
citation No. 3882702; 10/14/94

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

:

Docket No. SE 95-57-RM
Order No. 4357221; 11/18/94
Elmwood-Gordonsville Mine
Mine ID 40-00864

UNITED STEELWORKERS OF
AMERICA (USWA) ,
Intervenor

PECISION
Appearances:

Henry Chajet, Esq., and James G. Zissler, Esq.,
(Maris E. McCambley, Esq., on brief), Jackson &
Kelly, Washington, o.c. for Contestant;
Robert A. Cohen, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia for
Respondent;
Henry Tuggle, Safety and Health Specialist, United
Steelworkers of America, Pittsburgh, Pennsylvania
for Intervenor.

Before:

Judge Hodgdon

These cases are before me on notices of contest filed by
Savage Zinc, Inc. against the Secretary of Labor and his Mine
Safety and Health Administration {MSHA) pursuant to Section 105
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 815.
The company contests the issuance of Citation No. 3882702
to it on October 14, 1994, and the issuance of Order No. 4357221
to it on November 18, 1994. For the reasons set forth below,
both the citation and the order are affirmed.
A hearing in the cases was held on December 7 - 9, 1994, in
Nashville, Tennessee. 1 Randy G. Helm, Kenny G. Hensley, David
Park, James B. Daugherty and Randy w. Dennis testified for the
Secretary. In addition, the Secretary called Roy L. Bernard as
1 The transcript incorrectly states that the hearing was
held on "September 7 - 9, 1994."

279

an adverse witness. Charles E. Hays and H. John Head testified
on behalf of Savage Zinc and Allan Cole, Richard E. Pulse and
Martin Rosta 2 were called as adverse witnesses by the company.
The parties have also f iled briefs which I have considered in my
disp?sition of these cases. 3
BACIGROtzND

The essential facts in this case are undisputed. The
Elmwood-Gordonsville Mine is a random room and pillar zinc mine
operated by savage Zinc, Inc. near Franklin, Tennessee. The mine
can be entered by a portal onto a roadway which continues from
the portal to the stonewall production area. The mine can also
be exited through six shafts, the No. 5 Shaft in the OMZ area,
the Nos. 1 and 2 Shafts in the Elmwood area, the No. 4 Shaft in
the South Carthage area, and the Nos. 3 and 7 Shafts in the
Gordonsville area . Some of these shafts, e.g. No . 3 1 are also
used as entrances to the mine.
The roadway is approximately five miles long and, after an
initial decline from the portal which levels off some five
hundred feet below the portal, goes up hills (inclines), down
hills (declines) and is level in places as it traverses through
the mine. The roadway begins in the Gordonsville area of the
mine, goes along the West B Drift and through the Elmwood area of
the mine. From the Elmwood area of the mine, the roadway becomes
known as the Stonewall Drive and terminates in the Stonewall
production area. The stonewall Drive is a decline which is about
a mile long and descends, on a 15 percent grade, in elevation
about 500 feet.
Development of the Stonewall Drive and the Stonewall
production area was begun in 1987, and completed in 1988 .
Construction of the No . .6 Shaft, which goes to the Stonewall
production area, was initiated in 1987 and completed in 1988.

2 Mr . Rosta, who had been subpoenaed, did not appear at the
hearing. His testimony was taken by deposition in Wa~hington,
o.c., on December 16, 1994. The deposition is admitted into
evidence as Contestantts Exhibit K.
3 The Contestant has also filed a Reply Brief. The
Secretary has filed a motion to strike the reply brief and his
motion has been joined in by the Intervenor. Reply briefs were
not contemplated in our discussion of a briefing schedule at the
hearing, (Tr. 820, 834}, nor provided for in my December 21,
1994, order scheduling briefs. Consequently, while I deny the
motion to strike, I have given no weight to the Contestant's
Reply Brief in this decision.

280

A hoist was installed in the shaft in November 1988. "Stonewall
is the lowest elevation of the (mine] complex • • • . "
(Tr.698.)
From 1988 until sometime in the spring of 1993, · the
stonewall Drive and the No. 6 Shaft were designated in the mine's
evacuation pla~ as the two escapeways from the stonewall
production area. In the spring of 1993, the mine operators
concluded that the No. 6 Shaft was no longer safe, due to
deteriorating ground conditions, to use as an escapeway and took
it out of use.
On August 2 5 , 1993, savage Zinc was issued Citation
No. 4092045 for failing to maintain an escape route , the No. 6
Shaft, in a travelable condition in violation of Section 57 . 11051
of the Secretary's Regulations, 30 C.F . R. § 57 . 11051 .
(Resp.
Ex. 10.) In September 1993, the company inquired of
Mr. Daugherty, the local MSHA metal and nonmetal mine supervisor,
whether a refuge chamber could be used instead of a second
escapeway. He adv ised them that he could not authorize it.
In December 1993, Savage Zinc filed a petition for
modification with MSHA seeking modification of the application of
Section 57.llOSO(a), 30 C.F.R. § 57.11050(a), to the mine by
replacing a second escapeway with a refuge chamber. The petition
was denied on June 23, 1994. The company then requested a
hearing on the petition before an Administrative Law Judge
assigned to the Department of Labor. The hearing was scheduled
for November 1, 1994. At Savage Zinc's request the hearing was
stayed until January 23, 1995. Savage Zinc filed an amended
petition for modification on October 17, 1994.
On October 14, 1994, Inspector Daugherty issued Citation
No. 3882702 to Savage Zinc for a violation of Section
57.11050(a). The citation stated that:
The mining and production area of Stonewall, the
lowest level of the mine, does not have two separate
properly maintained escapeways to the surface as
required by 30 CFR 57.11050(a). The No. 6 shaft which
was formerly designated as one of the two separate
escapeways to the surf ace from the lowest level of the
mine, is not travelable in the event of an emergency,
nor is it presently designated on the mine evacuation
plan as an escapeway.
(Resp. Ex. 5.) The company was given until November 14, 1994, to
abate the violation .

28 1

on November 18, 1994, Inspector Daugherty issued Order
No. 43572~1 ·pursuant to Section 104(b) of the Act, 30 u.s.c.
S 814(b}.
The order stated:
No apparent effort was made by the company to
' provide a second escapeway from the lowest level of the
mine.
All miners shall be immediately withdrawn from the
Stonewall mining and production area until a second
escapeway is provided.
(Resp. Ex. 6 . )
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Violation
Section 57.llOSO(a) requ i res that:
Eyery mine shall have two or more separate,
properly maintained escapeways to the surface from the
lowest levels which are so positioned that damage to
one shall not lessen the effectiveness of the others.
A method of refuge shall be provided while a second
opening to the surface is being developed. A second
escapeway is recommended, but not required, during
exploration or development of an ore body.

4

Section 104(b) provides:

If, upon any follow-up inspection of a coal or
other mine, an authorized representative of the
Secretary finds (1) that a violation described in a
citation issued pursuant to subsection (a) has· not been
totally abated within the period of time as originally
fixed therein or as subsequently extended,· and (2) that
the period of time for the abatement should not be
further extended, he shall determine the extent of the
area affected by the violation and shall promptly issue
an order requiring the operator of such mine or his
agent to immediately cause all persons • • • to be
withdrawn from, and to be prohibited from entering,
such an area until an authorized representative of the
Secretary determines that such violation has been
abated.

2 82

It is savage Zinc's position that this regulation W?S not
violated because the Elmwood-Gordonsville mine is a one level
mine with seven escapeways (the six shafts and the portal), thus
meeting the two escapeway requirements. The company further
argues that if it is determined that the mine has more than one
level, it cannot be found to have violated the regulation
because: (1) The Secretary's application of the regulation
denied Savage Zinc adequate notice and due process of law;
(2) The Secretary's application of the regulation in this case is
inconsistent, arbitrary, entitled to no deference, and denied
Savage Zinc due process of law; (3) The Secretary's application
of the regulation is not consistent with the requirements of
other sections of Section 57.11050, 30 u.s.c. § 57.11050; (4) The
Secretary's interpretation of "level" in applying the regulation
constitutes improper rulemaking; and (5) The Secretary's
application of the regulation diminishes safety.
I conclude that there is more than one level in the mine and
that failure to provide two escapeways from the Stonewall
production area violates Section 57.11050(a). I further conclude
that even if it were accepted that the mine· has only one level,
the regulation was violated. Finally, I reject Savage Zinc's
additional arguments as unpersuasive.
Whether the Stonewall area of the mine is required by
Section 57.11050(a) to have two escapeways must be evaluated
in light of what a "reasonably prudent person, familiar
with the mining industry and the protective purpose of
the standard, would have provided in order to meet the
protection intended by the standard." See, e.g., Canon
Coal Co., 9 FMSHRC 667, 668 {April 1987); Quinland
coal, Inc., 9 FMSHRC 1617-18 (September 1987).
Ideal Cement Co., 12 FMSHRC 2409, 2415 (November 1990).
As Judge Weisberger noted in Magma Copper, neither "level"
nor "levels" are defined in the Regulations. Magma Copper Co.,
16 FMSHRC 327, 331 (February 1994). However, it is clear that
"(a] regulation should be construed to give effect to the natural
and plain meaning of its words." Diamond Roofing v. OSHRC, 528
F.2d 643 (5th Cir. 1976) (citations omitted).
"Level" is a common word and most people would agree with
this definition from Webster's Thi'rd New International Dictionary
1300 (1986) that level is a "horizontal state or condition :
uniform altitude." On the other hand, the dictionary also
indicates that the term has a more particular meaning in mining
as "a : a horizontal passage in a mine intended for regular
working and transportation" or "b : the horizontal plane
containing a main level and other workings." Id.

283

The Bureau of Mines, u.s. Department of Interior, A
Dictionary of Mining, Mineral, and Related Terms 638 (1968),
defines "level," as pertinent to this case, as:
a. A main underground roadway or passage driven
along the level course to afford access to the stopes
or workings and to provide ventilation and haulageways
for the removal of coal or ore. • • • b. Mines are
customarily worked from shafts through horizontal
passages or drifts called levels. These are commonly
spaced at regular intervals in depth and are either
numbered from the surface in regular order or
designated by their actual elevation below the top of
the shaft . . • . c. In pitch mining, such as
anthracite, there may be a number of levels driven from
the same shaft, each being known by its depth from the
surface or by the name o~ the bed or seam in which it
is driven . . . . d. Mine workings that are
approximately at the same elevation . . . . j. All
openings at each of the different horizons from which
the ore body is opened up and mining started . • . •
As can be seen, all of these definitions have a common
element that goes back to the basic definit~on, that is that a
"level" is essentially on the "horizontal."
On the other hand,
the Contestant's~rgument that this is a single level mine is
based on a distorted definition of "level" which leaves out all
references to the horizontal.
Thus, Mr. Bernard, an expert testifying for Savage Zinc,
defined "level" as "a main underground passageway that connects
stopes and working places and provides ventilation and haulage
for the removal of ore from the mine." (Tr. 19.) Mr. Hays, the
company's Safety Supervisor, defined "level" as "an underground
passage or opening providing access to stopes or workings. It
also provides ventilation and haulage ways for the extraction of
ore." (Tr. 646-47.) Mr. Head, another expert witness for the
Contestant, said that "level" "is defined as a main underground
road or passageway that leads to production areas, stopes that
may be above or below that level, and the main road is used for
ventilation, for access, and for haulage of ore from working
places." (Tr. 763-64.)
5 The other definition of "level" mentioned in this case,
"[t]he horizon at which an ore body is opened up and from which
mining proceeds. The term is often used in the same sense as a
drift or to cover all horizontal workings on one horizon • •
"
found in Peele's Mining Engineer's Handbook § 10, 3 {3d Ed.
1941), also conforms to this central element.

28 4

Finally, in its brief, the Contestant argues that:
[t]he primary definition for "level" provided in the
BOM oictionary and discussed by Bernard and Head is
related to function rather than distance or elevation.
According to that definition, a "level" is:
a main underground passageway that connects
stopes and working places and provides
ventilation and haulage for the removal of
the ore from the mine.
(Cont. Br. at 26.)
All of these definitions purport to be a paraphrase of the
first definition in the Dictionary o f Mining, Mi neral, and
Related Terms. All of them leave out the phrase "driven along a
level course" from the definition. By leaving out these words,
the most significant characteristic of "level" is removed f~om
the definition. Followed to its logical conclusion, a mine with
a continuous roadway which declined into the earth at a 15
percent grade for 5 miles and off of which were working areas at
various elevations would still, by this definition, be a one
level mine .
Contrary to Savage Zinc's assertions, I find that it is
Savage Zinc's definition of "level" and what it means in this
regulation that is irrational and inconsistent with MSHA
enforcement actions, not MSHA's definition. Based on any, or
all, of the definitions of level from the Dictionary of Mining,
Mineral, and Related Terms, set out above, I concl~de that the
Elmwood-Gordonsville Mine has more than one level .
I further
conclude that the production level~ found· in the Stonewall area
are the lowest levels of the mine.
The obvious purpose of the regulation is to insure that
miners have two separate ways to get out of the mine in the event
of an emergency. I conclude that a reasonably prudent person
familiar with the mining industry and the purpose of this
standard would find that there is only one escapeway from the
Stonewall area, the Stonewall Drive, that the Stonewall area is
6 Unlike Magma Copper, which turned on whether an area was
a level based on the type of activity performed in the area, 16
FMSHRC at 332-33, there is no dispute that mining is performed in
the Stonewall area.
7 I also conclude that the Stonewall Drive is not part of
the Stonewall area of the mine, although whether it is or not
makes no difference to my conclusion that the stonewall area has
the lowest levels of the mine.

2 85

the lowest level of the mine, both in elevation and in location,
and that the rei'1lation requires two escapeways from the
Stonewall area.
It is also clear that Savage Zinc originally agreed with
thes·e conclusions. If it did not, the company's request of
Inspector Daugherty in August 1993 to be allowed to substigute a
refuge chamber for a second escapeway would make no sense.
Nor
would it's December 1993 petition for modification for a variance
of the application of Section 57.llOSO(a) to it by having a
refuge chamber instead of a second escapeway. This petition is
particularly telling in that it requested relief from the two
escapeway requirement, even though at that time Savage Zinc had
not been cited for not having two escapeways . Additionally,
there is no evidence that anyone connected with Savage Zinc ever
expressed the opinion to MSHA, prior to the institution of this
case, that they already complied with the two escapeway
requirement . Even when the citation was issu ed, no such claim
was made. {Tr. 498, 500.)
I further conclude that even if this were a one level mine,
the standard would still be violated. Section 57.llOSO(a)
requires that the two escapeways be "so positioned that damage to
one shall not lessen the effectiveness of the others" (emphasis
added). As Mr Hays testified, the Stonewall Drive is "part of
the primary escapeway out of Stonewall." {Tr. 744.) Even a
cursory glance at the mine map, (Resp. Ex. 1 or Cont. Ex. E),
makes it clear that if the mile long Stonewall Drive is blocked
or damaged, the effectiveness of any escapeways at the top of the
drive is considerably lessened.
Sayage Zinc's Due Process Arguments
The Contestant argues that the Secretary's witnesses were
unable to agree upon a consistent application of the regulation,
that this demonstrates that the Secretary's interpretation of the
regulation "fails to provide legally adequate notice to operators
of the standard's requirements" and that, therefore, savage Zinc
has been denied due process of law. (Cont. Br. 18.) This
argument is not supported by the evidence.
8 An examination of the mine map makes it obvious to
anyone, let alone a reasonably .prudent person familiar with the
mining industry, that the Stonewall area needs a second
escapeway.
9 The establishment of a refuge chamber itself indicates
that Savage Zinc believed that they needed a second escape way
since the regulation requires that "[a] a method of refuge shall
be provided while a second opening to the surf ace is being
developed."

2 86

It is true that the most consistent definition of "level"
was provided by Contestant's witnesses. However, as noted above,
this definition consistently left out the crucial element that
distinguishes a level from something that is not a level. On the
other hand, the Secretary's witnesses, i.e. those employed by the
Secretary even if called by Savage Zinc, were unanimous in
agreeing that the Stonewall area required two escapeways. While,
obviously, none of them had memorized a definition of level, they
all conveyed the sense of what Section 57.11050(a) reqµires even
if they were not able to articulate it to Contestant's
satisfaction.
What the MSHA employees imparted is what a reasonably
prudent person familiar with the mining industry would understand
from the regulation, proba.bly without even having to look up a
definition of "level . " Consequently, Savage had adequate notice
of what the regulation requires and was not denied due process.
Savage Zinc next argues that the Secretary has applied the
regulation inconsistently and arbitrarily in this case and that
it was denied due process. This argument· is based on the claim
that "level" anQ "lowest levels" are not defined in the
regulation or MSHA's Program Policy Manual, that in the past MSHA
has not issued citations in other mines or to this mine for
failing to have two escapeways from areas similar to the
stonewall area, and that for a period of time MSHA did not apply
the standard to the Stonewall area.
Once again, the evidence does not support these assertions.
The fact · that "level" and "lowest levels" are not defined makes
no difference since, as noted above, the regulation satisfies the
"reasonably prudent person" test.
With regard to the disparate treatment argument, there is no
evidence of disparate treatment . The general testimony given by
Contestant's witnesses that the witness is familiar with areas in
other mines similar to the Stonewall area and that they have not
been cited for not having two escapeways provides no basis for
concluding that Savage Zinc is being treated disparately or that
the regulation is being applied arbitrarily. There is no way to
determine how similar these other areas in other mines · are to the
case at hand . This is also true concerning the "229 area" in
this mine, which just from looking ·at the mine map, the only
evidence available, appears to have as many differences as
similarities.
Finally, the Contestant contends that MSHA's failure to cite
savage Zinc during two periods when the Stonewall area did not
have two escapeways establishes -that MSHA applied the regulation
arbitrarily. This claim is disingenuous. In the first place,
there is absolutely no evidence to show how long, if at all, a
period of time elapsed between the completion of development of

287

Stonewall and the installation of the hoist in No. 6 Shaft. The
only evidence is that Stonewall was completed in 1988, and that
the hoist was installed in November 1988. In the second place,
there is no evidence to show whether or not Savaqe Zinc complied
with the portion of the requlation set out in note 9, supra,
while the No. 6 Shaft was being developed. Obviously, there
cannot be two escapeways while the second escapeway is being
developed.
The second period that Savage Zinc relies on is the time
between the Auqust 1993 citation and the issuance of the citation
in this case. In effect, what -the company is claiming is that
the fact that MSHA gave them a break and did not seek further
enforcement action while Savage Zinc pursued its petition for
modification is evidence that MSHA applied the regulation
inconsistently and arbitrarily . This attempt to turn MSHA's good
faith forbearance against it does not merit further comment.
Savage Zinc's Wbole Act Argument
The Contestant argues that MSHA's interpretation of Section
57.11050(a} makes Sections 57.11050(b) and 57.11055, 30 C.F.R.
§ § 57.llOSO(b} and 57.11055, superfluous since they specifically
deal with time· and distance. Citing 2A Sutherland Stat . Const.,
§ 46.06, at 119 (5th Ed. 1992), the company asserts that this
violates the "whole act rule" which requires "that an instrument
is to be construed as a whole so that all of its prov isions are
harmonized and interpreted so as not to derogate from the force
of other provisions." (Cont . Br. 23-24.) I see nothing in
MSHA's interpretation of the two escapeway requirement that in '
any way annuls or lessens the requirement that a refuge be
provided for miners who cannot exit the mine through the
escapeways within one hour or the requirement that escapeways not
be inclined more than 30 degrees. consequently, I find this
argument unconvincing.
Sayage Zinc's Diminution of Safety Argument
The Contestant argu~s that the Secretary's application of
Section 57.llOSO(a} is hazardous to the health and safety of
miners and results in a diminution safety. This argument fails
for two reasons. First, as the Secretary correctly notes in his
brief, the commission h~s held that "diminution of safety may not
be raised as a defense ~o a violation in an enforcement
proceeding unless the S~cretary has first entered a finding of
such diminution in a moc1Hf ication proceeding." Clinchfield Coal
co., 11 FMSHRC 2120, 2130 (November 1989}; Otis Elevator co . , 11
FMSHRC 1918, 1923 (October 1989); Sewell Coal Co., 5 FMSHRC 2026,
2029 (December 1983); Penn Allegh coal Co., 3 FMSHRC 1392, 1398
(June 1981). That has not occured in this case.

288

Secondly, Savage Zinc's diminution of safety argument is a
misapplication of the concept. Essentially, the company argues
that putting in a second escapeway, either by rehabilitating the
No.6 Shaft, sinking a new shaft or excavating a new drive
parallel to the Stonewall Drive, involves work that is more
hazardous than normal mining and, therefore, a diminution of
safety results. In other words, it is the construction of the
second escapeway that diminishes safety, not the end result of
having two escapeways. Acceptance of this argument would mean no
mine would ever have to put in a second escapeway, since
constructing it would diminish safety.
Obviously, for the Contestant's argument to have validity,
it would have to show that safety is diminished by having two
escapeways. The record· is devoid of any evidence to support such
a theory and it would be surprising if such evi~ nce could be
found. Accordingly, this argument is rejected. 0
significant and Substantial
The inspector concluded that this violation was "significant
and substantial." A "significant and substantial" (S&S)
violation is described in Section 104(d)(l) of the Act as a
violation "of such nature as could significantly and
substantially contribute to the cause and effect of a coal or
other mine safety or health hazard." A violation is properly
designated S&S "if, based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a
reasonably serious _nature." Cement Division, National Gypsum
Co., 3 FMSHRC 822, . 825 (April 1981).
In Mathies Coal co., 6 FMSHRC 1, 3-4 (January 1984), the
commission explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of
Labor must prove: (1.) the underlying violation of
mandatory safety standard; . • • (2) a discrete safety
hazard--that is, a measure of danger to safety-contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be
a reasonably serious
nature.

of

lO I have also considered and rejected the Contestant's
argument that MSHA's application of Section 57.llOSO(a)
constitutes improper rulemaking in view of my conclusion that a
reasonably prudent person familiar with the mining industry would
interpret the regulation as MSHA has.
2 89

See also Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04
(5th Cir. 1988), aff'g Austin Power, Inc . , 9 FMSHRC 2015, 2021
(December 1987)(approving Mathies criteria).
·
In United States Steel Mining Co., Inc., 7 FMSHRC 1125, 1129
(August 1985), the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula 'requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury.•
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984) . We have emphasized that, in accordance with the
language of section 104(d) (1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75
(July 1984).
This evaluation is made in terms of "continued normal mining
operations." u.. s. Steel Mining 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).
By their very nature, escapeways only become important in
the event of an emergency. Therefore, continued normal mining
operations, in evaluating this violation, must assume the
existence of an emergency. The evidence indicates that there are
several types of emergencies that might require the use of an
escapeway which could occur in this mine. Among these are roof
falls, fire, explosions and inundation. Further, it is not the
likelihood of one or more of these disasters occurring which
determines whether this violation is S&S, but the likelihood of
serious injury occurring during an emergency situation when there
is not a second escapeway available.
Viewing the violation in this light, I have already
concluded that the violation occurred. I also conclude that the
failure to have two escapeways results in a discrete safety
hazard in that blockage of the primary escapeway means that the
miners are trapped in the mine. I further conclude that there is
a reasonable likelihood that the failure to have a second

29 0

escapeway in an emergency will result in an injury and that the
injury will be reasonably serious. Accordingly, I conclude that
the violation was "significant and substantial." 11
Reasonahlene11 of the &b•tuaent Period

Savage Zinc argues that it is unreasonable to have expected
them to abate the violation in this case in 30 days.
Consequently, the company asserts that the 104(b) order issued to
it for failing to abate the violation should be vacated. Since
it is uncontroverted that it would take any where from nine to 18
months to install a second escapeway, this claim has superficial
appeal. However, the testimony of Inspector Daugherty makes it
clear that MSHA did not expect the company to perform the
impossible and complete construction in 30 days, but only that
Savage Zinc begin taking steps to abate the violation . (Tr. 50910.)
In fact, at the time the 104(b) order was issued, Savage
Zinc had taken no action on the citation other than to contest
it. Nor is there evidence that the company had communicated to
MSHA any intention of abating the citation. Under these
circumstances, I conclude that the 30 day abatement period was
reasonable and that the 104(b) order was appropriate.
ORDER
I conclude that Savage Zinc, Inc. violated Section
57.11050(a) of the regulations by not having two escapeways from
the Stonewall area of its Elmwood-Gordonsville Mine, and that
·this violation was "significant and substantial" and the result
of, at least, moderate negligence. I further conclude that the
time given for abatement of this violation was reasonable.
Accordingly, it is ORDERED that Citation No. 3882702 and Order
No. 4357231 are AFFIRMED.

tf.~1if.

Administrative Law Judge

11 In reaching this conclusion, I have considered whether
the presence of the refuge chamber reduces the gravity of the
violation and have concluded that it does not. As everyone
agrees, the best place to be in a mine emergency is on the
surface. I find that it is reasonably likely that a mine
emergency can. be so devastating, e.g. an explosion, massive cavein, or wide ranging fire, that ·a serious injury could occur to
miners in the refuge chamber.

291

Distribution:
Henry Chajet, Esq., James Zissler, Esq., Jackson & Kelly,
2401 Pennsylvania Ave., N.W., Suite 400, Washington, D.C. 20037
Robert Cohen, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203
Mr. Henry Tuggle, United Steelworkers of America, Five Gateway

center, Pittsburgh, PA 15222
/lbk

292

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

MAR 6
PEABODY COAL COMPANY,
Contestant

v.

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

1995

.:• CONTEST PROCEEDING
: Docket No. KENT 94-524-R
Citation No. 3863265; 3/21/94
.. Hartwick
Underground Mine
I.O. No. 15-14074
..

ORDEB OF DISKISSAL
Appearances:

Before:

Carl B. Boyd, Jr., Esq., Peabody Coal Company,
Henderson, Kentucky for the Contestant;
Donna E. Sonner, Esq., Office of the Solicitor,
u·. s. Department of Labor, Nashville, Tennessee for
the Respondent.

Judge Melick

At hearing on January 31, 1995, this Contest Proceeding was
rendered moot by the settlement between the parties of the
associated penalty proposed for the underlying section 104(a)
citation (See Docket No. KEN 94-1321). Under the circumstances
this case is dismissed.

Distribution:
Carl B. Boyd, Jr., Esq., Meyer, Hutchi on, Haynes & Boyd, 120
North Ingram Street, Suite A, Henderson, KY 42420
Donna E. Sonner, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862
/jf

293

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

MAR 6 1995

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 94-815
A. C. No . 15-14074-03658
Martwick Underground Mine

PEABODY COAL COMPANY,
Respondent
DECISION APPRQVING SETTLEMENT
Appearances:

Donna E. Sonner, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
Carl B. Boyd, Jr., Esq . , Meyer, Hutchinson, Haynes
and Boyd, Henderson, Kentucky, for Respondent.

Before:

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section lOS{d} of the Federal Mine Safety
and Health Act of 1977 {the Act). At hearing, Petitioner filed
a motion to approve a settlement agreement and to dismiss the
case . A reduction in penalty from $378 to $302 was proposed.
I have considered the representations and documentation submitted
in this case, and I conclude that the proffered settlement is
acceptable under the criteria set forth in Section llO(a) of
the Act.
WHEREFORE, the motion for approval of settlement

GRANTED, and it is ORDERED that Respondent pay a pena
$302 within 30 days of this· order .

294

Distribution:
Donna E. Sonner, Esq . , Office of the Solicitor,
U. S. Department of Labor, 2002 Richard Jones Road,
suite B-201, Nashville, TN 37215-2862
Carl B. Boyd, Jr., Esq., Meyer, Hutchinson, Haynes
& Boyd, 120 North Ingram Street, Suite A, Henderson,
KY 42420
\lh

29 5

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

MAR 6 1995"

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

v.

CIVIL PENALTY PROCEEDING

.

Docket No. KENT 94-1260
A. C. No. 15-14074-03667
Martwick Underground Mine

PEABODY COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Donna E. Sonner, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
Carl B. Boyd, Jr., Esq., Meyer, Hutchinson, Haynes
and Boyd, Henderson, Kentucky, for Respondent.

Before:

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety
and Health Act of 1977 (the Act). At hearing, Petitioner filed
a motion to approve a settlement agreement and to dismiss the
case. A reduction in penalty from $2,000 to $1,300 was proposed .
I have considered the representations and documentation submitted
in this case, and I conclude that the proffered settlement is
acceptable under the criteria set forth in Section llO(a} of
the Act .
WHEREFORE, the motion for approval of settlement is
GRAN'l'ED, and it is ORDERED that Respondent pay a penalty of
$1,300 within 30 days of this or er

296

Distribution:
Donna E. Sonner, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862
Carl B. Boyd, Jr., Esq., Meyer, Hutchinson, Haynes
& Boyd, 120 North Ingram Street, Suite A, Henderson,
~v

~2420

\lh

297

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

MAR 7 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-456
A.C. No. 15-13331-03537
Prep Plant & Loading

KY HARLAN COAL CO., INC.,
. Respondent
DECISION

Appearances:

Joseph B. Luckett, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, fo1
Petitioner;
Rodney E. Buttermore, Jr., Esq., Buttermore,
Turner & Boggs, Harlan, Kentucky, for Respondent.

Before:

Judge Fauver

This is a civil penalty case under§ 105(d) of the Federal
Mine Safety and Health Act of 1·9 77, 30 U.S.C. §et~·
The case came on for hearing in Kingsport, Tennessee on
February 7, 1995.
The parties presented an oral motion to approve a settlement
agreement. Considering the presentations of counsel and the
documents submitted, I conclude that the settlement is consistent
with the purposes of § llO(i) of the Act.
ORDER

WHEREFORE IT IS ORDERED tnat:
1. The motion to approve the settlement agreement is
GRANTED.

298

2. Respondent shall pay the approved civil penalty of $4,000
in six monthly payments as follows:

April
1,
1,
May
1,
June
1,
July
1,
August
1,
September

1995
1995
1995
1995
1995

1995

$ 670
$ 666

$
$
$
$

666
666
666
666

Provided: If Respondent fails to make any monthly payment when
due, the total remaining balance will become due immediately and
interest thereon shall accrue from such date until the full
amount is paid. The rate of interest shall be the rate published
by the Executive Secretary of the Commission.

u)~ ~. . ~41

William r{~er
Administrative Law Judge

Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd ., Suite 516, Arlington, VA 22203
{Certified Mail)
Rodney E. Buttermore, Jr., Esq., Buttermoxe, Turner & Boggs, P.O .
Box 935, Harlan, KY 40831 - 0935 !Certified Mail)
/lt

299

FEDERAL MINE SAFETY AND HEALTH REVIEW COMKISSJ:ON
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, SUITE 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 7 1995·
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
:

v.

Docket No. KENT 94-1318
A.C. No . 15-16482-03503QVW
Browns Valley Mine

WINN TRANSPORTATION CORP.,
Respondent
DECISION APPROVING SETEiiEMENT
Appearances:

Before:

Mary Sue Taylor, Esq., Office of the Solicitor,
U. S. Department of Labor, Nashville, Tennessee for
the Secretary of Labor;
Carl Boyd, Esq., Henderson, Kentucky for the
Respondent.

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine -Safety and
Health Act of 1977 (the Act). At hearing Petitioner filed a
motion to approve a settlement agreement and to dismiss the case.
Respondent agreed to pay the proposed penalty of $800. I have
considered the representations and documentation submitted in
this case, and I conclude that the proffered settlement is
acceptable under the criteria set forth in Section llO(i) of the
Act.

WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORD:ERED that Respondent pay a penalty of $8 O within
30 days of· this order .
j

Gary Meli
Administr
30 0

ge

Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862
earl Boyd, Esq., 120 N. Ingram Street, Henderson, KY
/jf

301

42430

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

MAR 7 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
:

v.

Docket No. KENT 94-1319
A.C . No. 15-16482-03522

. Browns Valley Mine
.
WINN CONSTRUCTION COMPANY,INC.,
Respondent

Docket No. KENT 95-62
A.C. No. 15-17458-03504

.... Maxwell Mine

Docket No. KENT 95-63
A.C. No. 15-17376-03505
Free Silver Mine

DECISION APPRQYING S:ETTI·EMENT

Appearances:

Before:

Mary Sue Taylor, Esq., Office of the Solicitor,
u.s. Department of Labor, Nashville, Tennessee for
the Secretary of Labor;
Carl Boyd, Esq., Henderson, Kentucky for the
Respondent.

Judge Melick

These cases are before me upon petitions for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). At hearing Petitioner filed a
motion to approve a settlement agreement and to dismiss the
cases. A reduction in penalty from $27,500 to $9,700 was
proposed. I have considered .the ·representations and
documentation submitted in these cases, and I conclude that the
proffered settlement is acceptable under the criteria set forth
in Section llO(i) of the Act.

302

WHEREFORE, the motion for approval of settlement is GRANTED,
and i t is ORDERED that Respondent pay a penalty of $9,700 within
30 days of this order.

Gary Meli
Administr tive Law

1

Distribution:

Mary sue Taylor, Esq., Office of the Solicitor, u.s. Dept. of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862
.
earl Boyd, Esq., 120 N. Ingram street, Henderson, KY

/jf

303

42430

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLI NE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGI NIA 22041

MAR 8 1995

JERRY SLONE,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. KENT 94-1041-D
BARB CD 94 - 08

HICO TRANSPORT, INC. AND
JAY CRASE,
Respondents

Pine Branch Coal
Sales Prep Plant # 1

DEFAULT DECIS I ON
A default judgment is hereby issued in favor of
Complainant Jerry Slone, due to the failure of Respondents
to file an answer to the complaint and to respond to show
cause orders issued by Chief Administrative Law Judge Merlin
and the undersigned .
Mr. Slone filed a complaint with the Mine Safety and
Health Administration (MSHA} ~n or about November 22, 1993,
alleging that he had been discharged by Respondents in
retaliation for activities protected by the Federal Mine
Safety and Health Act, in violation of section lOS(c) of the
Act, 30 U. S.C. § 815(c). On June 16, 1994, MSHA advised
Complainant that it had concluded that a violation of section
lOS(c} had not occurred.
On July 20, 1994, Complainant commenced this action on
his own by filing a complaint with the Commission. This action
was filed pursuant to section 105(c) (3} of the Act which provides
that if the Secretary of Labor determines that no violation of
section lOS(c) has occurred, the complainant shall have the right
to file an action on his o wn behalf with the Commis sion .

304

The Commission's rules of procedure at 29 C.F.R. § 2700 . 43
require that within 30 days after the service of a discrimination
complaint, the respondent shall file an answer responding to each
allegation of the complaint . Respondents in the instant case
have not responded to the July 20, 1994, complaint.
On November 7, 1994, Commission Chief Administrative Law
Judge Paul Merlin issued an Order To Respondent To Show Cause.
In that order Respondents were ordered to file an answer within
30 days or show good reason, in writing, for their failure to
do so. A Domestic Return Receipt form (PS Form 3811, or "green
card") indicates that the show cause order was received by
Respondent Jay Crase at his address in Hallie, Kentucky, on
November 15, 1994.
It appears that the ·show cause order may
not have been served on Hunter McDonald III, who at one time was
HICO Transport'.s Registered Agent for Service of Process, in
Nashville, Tennessee.
On January 11, 1995, this matter was assigned to the
undersigned for "appropriate proceedings." I issued another
show cause order on January 13, 1995, essentially al l owing
Respondents another four weeks, until February 10, 1995, to
comply with the November 7, 1994 show cause order.
I specifi cally advised Respondents that failure to comply with my order
would result in the entry of a default decision in favor of
Complainant .
On February 10, 1995, I received a letter from one
Bruce L. Washburn stating that he had been forward a copy of
my January 13, 1995 order by Mr. Hunter McDonald, who was once,
but apparently is no longer, associated with HICO Transport ,
Inc. Mr. Washburn's letter indicates that he had discussed the
January 13 order with Mr. Crase, the owner of HICO Transport.
As the Commission did not have a return receipt from
Mr. Crase for the Janua·ry 13 order, the undersigned called him
on February 22, 1995, to advise him that he must immediately
file a substantive written response to the complaint, with a
copy to Mr. Slone's counsel to avoid a default decision.

305

Since Mr. Crase has received actual notice of both the
November 1994 show cause order and the January 13, 1995 show
cause order and has not filed a timely response, I find.him
in default and enter judgment in favor of the Complainant.

Administrative Law Judge
Distribution:
HICO Transport, Inc., c/o Bruce Washburn, c/o Hunter McDonald
III, . 1102 17th Avenue South, Suite 401, Nashville, TN 37212
(Certified Mail)
Jay Crase, HC 63, Box 1580, Hallie KY 41821 (Certified Mail)
Tony Oppegard, Esq., Mine Safety Project of the Appalachian
Research & Defense Fund of Kentucky, Inc., 630 Maxwelton Court,
Lexington, KY 40508 (Certified Mail)

/lh

306

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

MAR 8 1995

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 94-631 - M
A.C. No. 11-02742-05518A
Lacon Plant

EDWARD SCHUMACHER, Employed by
MIDWEST MATERIAL CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Lisa A. Gray, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois,
for the Petitioner;
Thomas G. Harvel, Esq., Westervelt, Johnson,
Nicoll and Keller, Peoria, Illinois, for
Respondent.

Before:

Judge Amchan

This case is before me upon a petition for assessment
of civil penalty under section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 .e.t. ~· At
hearing, the parties moved to approve a settlement agreement
and to dismiss the case . The terms of the settlement are
that the penalty is reduced from $9,500 to $1,500. The
penalty is payable in 10 equal inst~llments beginning within
30 days. The entire penalty is due if payment of any of the
installments is not made.
·
I have considered the representations and documentation
submitted and I conclude that the proffered.settlement is
consistent with the criteria in section llO(i) of the Act.

307

ORPER
WHEREFORE IT IS ORDERED that the motion f or approval
of settlement is GRANTED and Respondent shall pay t he
approved penalty as provided in the settlement agr eement .
Upon such payment this case is DISMISSED.

Od-~

Arfj{ur J. Amchan
Administrative Law Judge
Distribut ion:
Lisa A . Gray, Esq., Office of the Solicitor,
U.S. Departmen t of Labor, 8 t h Floor, 230 S . Dearborn St.,
Chicago, IL 60604
Thomas G . Harvel, Esq., Westervelt, Johnson, Nicoll
& Keller, 14th Floor, First Financial Plaza,
411 Hamilton Blvd., Peoria, IL 61602-1114

/lh

30 8

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

.MAR 9 1995

CARL STOECKER,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. CENT 94-200-D
MSHA Case No. DENV CD 94-11

NORTH WESTERN RESOURCES
COMPANY,
Respondent

Jewett Mine
DECISION

Appearances:

Carl Stoecker pro se, Groesbeck, Texas,
for the complainant;
Frank Parker, Esq., Meier & Parker, L.C.,
Bedford, Texas, for the respondent.

Before:

Judge Feldman

This case is before me based upon a discrimination complaint
filed on July 12, 1994, pursuant to section 105(c} (3) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c} (3)
(the Act} by the complainant, Carl Stoecker, against the
respondent, North Western Resources Company. 1 Stoecker alleges
that his March 9, 1994 , discharge was motivated by his protected
safety related activities that occurred on November 12, 1993,
February 22 , 1994 , and March 2, 1994. The respondent maintains
Stoecker was terminated for misconduct associated with his
repeated harassment of a fellow employee.
'
1

Stoecker ' s complaint which serves as the jurisdictional
basis for this case was filed with the Secretary of Labor on
March 21, 1994 , in accordance with section 105(c) (2) of the Act ,
30 U. S .C. § 815(c) (2) . Stoecker ' s complaint was investigated by
the Mine Safety and Heal th Administration (MSHA). On June 14 ,
1994, MSHA advised Stoecker that its i nvestigation disclosed no
section 105(c) violations. On July 12 , 1994, Stoecker filed his
d iscrimination compl aint with this Commission which is the
subject of this proceeding.
. 309

This case was heard on November 29 through December 1, 1994,
in Waco, Texas. At trial, the respondent stipulated that it is a
mine operator subject to the jurisdiction of the Mine Act.
The parties called a total of 23 witnesses. In support of his
complaint Stoecker testified in his own behalf. In addition,
Stoecker called a former employee of the respondent as well as
eleven current employees. The respondent's direct case consisted
of testimony by ten employees, seven of whom are management
personnel. The parties posthearing briefs are of record.
The complainant asserts his discharge was motivated by three
protected safety related incidents: (1) his November 12, 1993,
inquiry into the qualifications of substitute crusher facilities
operator Brian Hughes; (2) his February 22, 1994, expression of
concern regarding the phys~cal incapacity of fellow employee
Marty Pringle to perform moderate to heavy lifting; and
(3) his March 2, 1994, tool room conversation with Arlan Moravec
concerning the recent formation of the company's "I" Team safety
committee.
The respondent argues that safety complaints played no part
in Stoecker's discharge. Rather, the respondent maintains
Stoecker was discharged after March 2 and March 4, 1994,
incidents of severe harassment of fellow employee Arlan Moravec.
The latter incident involved a high speed chase and curbing of
Moravec's vehicle only hours after Stoecker had been placed on
suspension with pay (Decision Making Leave) for previously
harassing Moravec.
The issues in this proceeding are whether any of the
actions relied upon by Stoecker were protected under the act,
and, if so, whether Stoecker's March 9, 1994, discharge was, in
part, motivated by any protected act. If Stoecker prevails in
showing that his termination was influenced by prdtected
activity, the remaining issue is whether the respondent can
affirmatively defend by showing that Stoecker's unprotected acts
alone provided an independent basis for his discharge. For the
reasons discussed below, the evidence reflects the November 12,
1993, and February 22, 1994, actions of Stoecker were protected
by the Act. However, the respondent has met its burden of
establishing that it would have terminated Stoecker for his
unprotected misconduct alone without regard to any protected
activity.

310

Preliminary Findings of Fact

The respondent, Northwestern Resources Company~ is owned by
Montana Power, a publicly traded company listed on the New York
Stock Exchange. Montana Power is a public utility serving the
State of Montana and surrounding states with electricity and gas.
The respondent has approximately 425 employees at its open pit
mine in Jewett, Texas, which provides lignite coal to an ad]acent
power generating plant . operated by Houston Light and Power
Company.
Carl Stoecker was employed by the respondent from
February 1, 1988, until his discharge on March 9, 1994 . At the
time of his discharge, he was an Oiler at the Lignite Handling
Facility (crusher), a position he held since September 20, 1993.
Stoecker worked the day shift from 7:00 a.m. to 7:00 p.m.
William Posey, Crusher Oiler Supervisor, was Stoecker's
supervisor for the last several years of Stoecker's employment,
including at the time of his discharge . Posey reported to
Superintendent John Allred.
The respondent does annual performance reviews of all
employees. Posey evaluated Stoecker and discussed his appraisal s
with him. Stoecker's performance met or exceeded company
standards. However, Stoecker had an acknowledged problem with
loud, assertive and overbearing behavior that adversely affected
his ability to interact with fellow. employees. For example, at
trial Stoecker acknowledged, although minimized, his problem by
explaining that "not everybody is Henry Kissinger." (Tr. 101,
247). Stoecker also characterized himself as being "naturally
loud", doing everything "in a strong way", and using his hands in
a way that could be construed as "an intimidating factor." ·
(Tr. 242, 247). Stoecker's own witnesses described him as "an
intimidating person"; "high strung"; "disruptive"; "crawling up
management's leg"; "overzealous"; "outspoken"; and "definitely
not low-key".
(Tr. 115-16, 191, 193, 238, 330).
Stoecker's problem dealing with people was noted ·in his
evaluations. For example, for the review period ending July
1990, Stoecker was advised by Pos.ey that he needed improvement in
the area of his sensitivity to others. In response to this
evaluation, Stoecker conceded that he was working on improvement
in his communication skills. (Resp. Ex. 3). Subsequent
evaluations noted a continuing problem with periods of
improvement.
(Resp. Ex. 4-6).
In the year preceding his discharge, Stoecker openly
criticized many company benefits. He expressed doubts about the

311

company life insurance policy questioning whether it would pay in
the event of an employee's death; he criticized the company 401K
deferred savings plan; he was critical of the company's pension
plan; and he questioned the company overtime and promotion
policies.
(Tr. 583-588) .
Respondent witness Tool Room Keeper Arlan Moravec testified
there were company morale problems in 1993 in that employees
feared the reporting of accidents could adversely impact upon
their eligibility for wage increases.
(Tr. 7 42-44) . Vice
President and General Manager Carroll Embry testified that he
conducted a meeting in February 1993 with company personnel about
cost containment including a wage freeze and the elimination of
discretionary overtime. Embry stated Stoecker interrupted the
meeting by voicing objections. Embry characterized Stoecker~s
behavior at the meeting as an "outburst.'' (Tr. 652-53).
Stoecker apologized to Embry immediately after the meeting.
(Tr. 674-675). However, the seriousness of Stoecker's
misbehavior caused the respondent to prohibit Stoecker from
attending future meetings on the subject.
(Tr. 922}.
Embry opined there was a high level of anxiety and
"a terrible amount of union organizing activity at the mine in
1993." (Tr. 655-56). Beginning in May 1993 Stoecker developed
an interest in unionization and became the Chairman of the
International Brotherhood of Electrical Workers organizing effort
at the Jewett Mine.
(Tr. 7 99-802, 911-912, 924) . Posey and
Superintendent John Allred testified Stoecker campaigned for the
union when he should have been working.
(Tr. 800-01, 925-926).
Allred received reports from fellow employees that Stoecker was
spreading dissention by saying negative things about the company.
{Tr. 812-13). Allred stated that "[he] got the impression that
[Stoecker] had kind of self-appointed himself to be the job
steward for everybody ... [trying] to turn everything negative ... "
in order to stir up trouble and contention.
(Tr. 824). The
union organizing efforts ultimately failed.
The November 12, 1994, Brian Hughes Incident
On November 12, 1994, Stoecker became upset when he learned
form Day Shift Supervisor Bill Dygert that Brian Hughes was
assigned to cover the 7:00 p.m. to 7:00 a.m. night shift of Craig
Oates as Lignite Facilities Handling Operator (crusher operator).
The crusher operator has access to the control panel that
energizes the crusher dump and the conveyor belts that ultimately
transport the lignite to the utility power generating plant.
(Tr. 73-76). Oates, the regular shift crusher operator,
testified that he had trained Hughes for two or three shifts
prior to November 12, 1993. (Tr. 212). Oates also indicated

312

that he felt Hughes was task trained in that he was qualified to
be a substitute for one shift. Oates stated he would not have
taken the vacation day if he felt Hughes was not capable.
(Tr. 212, 215) . .
William Gist, the facilities operator on the day shift .
testified that Hughes was capable of filling in at the crusher.
Gist fe.l t Hughes would be in no danger if the crusher
automatically shut down as long as Hughes called maintenance as
he was instructed instead of attempting to fix anything himself.
(Tr. 71-72). Similarly, shift supervisor Greg Ivey indicated
Hughes was instructed to stay in the crusher control room and to
call maintenance in the event of any mechanical or electrical
problems.
(Tr . 699). In fact, even Stoecker conceded that
Hughes could not have injured himself or others if he followed
instructions by staying in the control room and calling
maintenance in the event of trouble.
(Tr. 553-60).
Stoecker was upset about Hughes' operation of the crusher
because a few qays earlier Stoecker had asked Posey about a
promotion from Operator IV to Operator III and was told there
would be no pay raise until he (Stoecker) was capable of
operating the crusher. Stoecker then asked Gist how Hughes could
be qualified to operate the crusher after one shift of training
if Posey thinks he (Stoecker) is not qualified after more than.
six months of relevant training and experience.
Stoecker then called Posey at home. Stoecker asked Posey
" ... how they could put Brian Hughes operating the crusher when he
was not qualified?" Stoecker stated Posey told him he was not
aware of the problem and that Posey suggested Stoecker talk to
night shift supervisor Greg Ivey.
(Tr. 465-466). Posey
characterized Stoecker's behavior during the phone call as
"incoherent", "loud", "hollering" and "fairly mad". Posey stated
Stoecker made no mention that his complaint was safety related
and Posey assumed Stoecker was upset because he had not had an
opportunity to run the crusher.
(Tr. 932-33). Posey told
Stoecker he would check into it when he returned to work.
(Tr. 933).
Stoecker then went to the ready room and spoke to oncoming
shift supervisor Ivey. Ivey testified Stoecker was angry at
first but calmed down quickly. Ivey indicated Stoecker thought
that he should have been given the opportunity instead of Hughes.
Stoecker asked Ivey for the MSHA phone number. Ivey told him
Safety Supervisor Dave Medick had it.
(Tr. 696-697).
Stoecker called Medick at home. Stoecker said he didn't
think Hughes was qualified to run the crusher from a safety

313

standpoint and that he {Stoecker) had been trying to get some
time on the crusher for advancement purposes. Although the
precise nature of Stoecker's safety concerns are unclear,
Stoecker testified that there were dangers associated with the
conveyors if they were not properly locked out in the event of a
shutdown.
{Tr. 29-30). Medick stated Stoecker was "very anxious
about it and so was I." (Tr. 677-78}. Medick called Ivey and
was assured that Hughes was qualified to fill in and that
precautions had been taken to prevent any hazard.
(Tr. 679). Stoecker called Medick later that evening at which
time Medick assured him Hughes could operate the crusher. Medick
described Stoecker as being "comfortable with the solution"
although "Stoecker was still concerned about his hours (on the
crusher] that he was not getting in." (Tr. 680}.
Supervisor Posey and Superintendent Allred investigated this
matter. They were determined to put an· end to Stoecker's
abrasive and confrontational style. They decided to make an
impression on him by getting his attention by putting him on
Positive Discipline with a written warning. Allred, Posey and
Stoecker met in Allred's office on November 18, 1993. Stoecker
secretly recorded the meeting. A transcript of the meeting was
admitted at trial without objection as Complainant's Exhibit 2.
The thrust of the conversation was that Stoecker was being
disciplined for disruptive behavior that undermined the company's
goals and disturbed others during working time. Allred stated
that the November 12, 1993, incident "put the icing on the cake."
(Comp. Ex. 2). A written reminder was issued to Stoecker by
Posey placing him on Positive Discipline for causing contention
and unrest in the work force. Stoecker was requested to modify
his behavior to alter his confrontational style so as to prevent
the intimidation of others.
(Resp. Ex. 1).
The February 22, 1994, Marty Pringle Incident
Upon reporting for work at approximately 6:10 a.m. on
February 22, 1994, Posey advised Stoecker that he, Marty Pringle
and Larry Bosworth were assigned to perform the bias test. The
bias test involves filling 35 gallon containers with random
samples of lignite and lowering the containers to the lower floor
where they are crushed and tested for B.T.U. quality.
(Tr. 3839, 488). The sample containers vary in weight between 40 to 100
pounds.
(Tr. 279-283).
Upon Pringle's arrival, Stoecker advised him that he,
Stoecker and Bosworth were scheduled to work at the crusher for
the bias test. Pringle, who is normally a heavy equipment
operator, told Stoecker that he did not think he could do the
lifting associated with the bias test because he had just

314

returned to work a few days earlier after hemorrhoid surgery.
Consistent with Pringle's demeanor at trial, Allred agreed that
Pringle is a non-assertive, non-aggressive individual.
(Tr. 824).
Stoecker related Pringle's concerns to Posey who said he
would check with supervisor Gary Cooper. Posey also spoke to
Allred.
(tr. 814-816). Posey characterized Stoecker's
conversation about Pringle as confrontational.
(Tr. 1003).
Allred described the conversation with Stoecker as a little
aggressive, explaining" ... I know Carl and I know how his nature
is." (Tr. 825). Stoecker's witness Don Williams described the
conversation with Posey and Allred as arguing in front of other
employees and trying to tell management what to do.
(Tr. 16465). Posey discussed the matter with Cooper who assigned Waylen
Levels to replace Pringle at the bias test. However, Levels, not
knowing he was replacing Pringle for medical reasons, became
upset. Thereafter, Pringle testified that Cooper insisted that
Pringle perform the bias test by asking Pringle if "[he] liked
working here.µ
(Tr. 255). Pringle testified he performed the
bias test to save his job because he was afraid Mr. Cooper "was
fixing to take me to the gate." (Tr. 258).
The March 2, 1994, Tool Room Incident With Moravec
Arlan Moravec has been employed by the respondent for nine
years and holds the position of Tool Room Keeper. Moravec is a
disabled, physically small person who is recovering from kidney
transplant surgery performed in June 1992. He also has
difficulty walking due to hip problems that are related to his
medication for his kidney condition.
(Tr. 772). Moravec is a
sensitive, good natured person who tries to make others happy by
avoiding conflict.
(Tr. 1006-07). His demeanor during his
testimony demonstrated he is an anxious, timid individual who is
easily confused.
(Tr. 370-372, 385, 737-38). However, he is a
competent maintenance mechanic and an asset to the company.
(Tr. 875). Arlan Moravec has a good relationship with his fellow
employees who like to joke with him and who affectionately refer
to him as "Big A" because of his small size.
(Tr. 961) .
As noted above, the Safety "1'11 Team was formed in January

1994. The "I" Team consisted of four hourly and three management
personnel that volunteered to form a committee to address safety
related issues at the Jewett Mine.
(Resp. Ex. 8). Posey,
Stoecker's supervisor, was a management member of the Team.
Moravec was enthusiastic about the -concept and he was proud to be
a Team member.
(Tr. 1008-09). On the morning of March 2, 1994,
Moravec was assigned to conduct a staff meeting, attended by
Stoecker, to explain the functio~ of the Team. Moravec explained

315

that the "I" Team sat as a committee in order to receive employee
suggestions about safety and communicate them to management for
possible implementation.
Shortly after Moravec finished the meeting, Stoecker went to
the tool room to reportedly get a hacksaw blade. Stoecker asked
Moravec about the "I" Team. Moravec explained that employees
bring problems or suggestions to the committee where they are
discussed and presented to management. Moravec testified
Stoecker stated " . . . what damn good does it do to go towards the
management and they don't do anything. They're going to do what
they want to do ." (Tr. 746). Stoecker repeatedly asked,
'what if the "I" Team brings a problem to management and they do
nothing about it?' Each time Moravec replied that if management
is not responsive, the committee will meet again and resubmit the
suggestion to management. Stoecker was not satisfied with
Moravec's answer and Moravec testified that Stoecker repeated the
same question "over and over and over." (Tr. 747).
The conversation was witnessed by several other employees
including Mark Smith, Chuck Lenox, David Flowers, Alan Savage,
Mike Adams, Bruce Szymanski and Bo Nelson, all of whom are hourly
employees. Stoecker called Smith, Lenox and Flowers who all
testified that Stoecker asked the same question two or three
times and who all opined that they did not think Moravec was
upset, although Smith admitted Moravec was easily excitable.
(Tr. 371). Significantly, there is no evidence that either
Smith, Lenox or Flowers has ever spoken to Moravec about the
incident to determine whether he was in fact upset.
(Tr. 365).
Savage and Adams were called by the respondent. They
testified Moravec was upset and uncomfortable.
(Tr. 724-25,
728). Adams stated the incident took 20 to 30 minutes and that
Moravec "was shook" by the ordeal. (Tr. 728-29). Putting this
question to rest, Moravec testified, "I wasn't getting anywhere
and I was getting ... ! was getting pretty excited, I was getting
hot." (Tr. 747). Moravec described the conversation as "loud".
(Tr. 749-50) .
Maintenance Supervisor Ronald Carmichael entered the tool
room after hearing loud voices arid the employees scattered.
Carmichael stated Moravec looked stressed in that he was shaking
and his face was red. Carmichael noted Stoecker's face was also
red. Carmichael heard Stoecker tell Moravec the "I" Team was
"just another bunch of bullshit." (Tr. 731-32). Carmichael
reported the incident to Supervisor Larry Hardy who in turn
reported it to Allred and Posey. (Tr. 81~). Posey couldn't
believe that Stoecker would get involved in a confrontation with
someone like Moravec. (Tr. 961).

316

Allred and Posey decided Posey and Employee Relations
Supervisor Bob Jenkines should investigate. Posey and Jenkines
interviewed Moravec on March 2, 1994. Posey found Moravec to be
pretty upset with his voice trembling. Moravec repeated that
Stoecker kept asking him the same question and wouldn't leave him
alone.
(Tr. 962). Posey concluded that Stoecker was out of
control and that the November 18, 1993, Positive Discipline
written reminder was ineffective. Posey and Allred decided that
nothing less than Decision Making Leave (DML) would . get
Stoecker's attention. DML is paid leave providing time for the
offender to consider his actions and to submit a written proposal
for improvement.
(Tr. 963).
On March 4, 1994, Posey and Allred called Stoecker to the
crusher control room to inform him that he was being placed on
DML. Stoecker secretly recorded the March 4 conversation which
was transcribed and admitted in evidence without objection.
(Comp. Ex. 2). Posey and Allred urged Stoecker to recognize his
problems in dealing with fellow workers. They advised him not to
be so overbearing and negative and to seek to contribute to a
positive working environment. Posey and Allred repeatedly told
Stoecker they were not trying to get rid of him. In fact, Posey
stated:
... I don't have any other, any other, a (sic) recourse
but to, but to let you think about it for a while Carl.
So I'm going to extend this written to a DML, and a
year from now we're going to work oh this, and we're
going to go ahead and continue to work on this thing.
And I want you to keep quiet about what's going on. I
want you to stay (to] yourself and to do your job. And
we'll go at it like that.
(Comp. Ex 2).
The memo from Posey to Stoecker placing him on DML reminded
Stoecker of his November 18, 1993, written reminder and requested
Stoecker to address in his written plan for improvement ways in
which Stoecker would:
(1) refrain from being disruptive in his conduct
toward co-workers during working hours;
(2) refrain from making comm.e nts to co-workers that
would cause contention and unrest;
(3) cease interrogating co-workers; and
(4) cease getting in other people's faces with his
opinions. (Resp. Ex. 2).
Stoecker was to report back to work with his written commitment
on March 10, 1994. The meeting placing Stoecker on DML ended at
approximately 2:00 p.m. on March 4, 1994.

317

The March 4, 1994, Chase and Curbing of Moravec
Stoecker left the mine site at approximately 2:00 p.m. on
March 4, 1994, after being placed on DML. He drove to the nearby
town of Jewett for a sandwich and returned to the mine entrance
to await Moravec whose workday ended at 2:30 p.m. When Moravec's
vehicle left the mine, Stoecker followed in his vehicle, a large
crew cab truck with dark windows. Moravec was not familiar with
Stoecker's truck and did not know who was following him.
Stoecker rapidly caught up to Moravec on Highway 39.
Stoecker followed Moravec onto Farm Road 80, a deserted road
with hills and curves. At t i mes the vehicles reached speeds of
70 miles per hour. Stoecker flashed his headlights but Moravec
was too frightened to pull over. Moravec's fear intensified and
he wished he could get out of this farm area to an area where
there were people. He was concerned that he could not defend
himself because his anti-rejection drugs impaired his hips and
his ability to run.
Moravec thought about leading the person following him to
his brother-in-law's house which was located just past the town
of Donie. As Moravec approached the town of Donie, where Highway
164 intersects with Farm Road 80, Moravec thought "I need to get
to people, and I knew never to drive to my own home if somebody
was after me." (Tr. 763). In Donie, Moravec hit traffic which
caused him to slow down. As Moravec attempted to turn left,
Stoecker's truck cut Moravec off forcing him to stop in the Donie
State Bank parking lot. Moravec kept his doors and windows
locked and his car running in case he needed to get away quickly.
Although Moravec thought it could be Stoecker, he was not sure
until Stoecker exited his truck and approached Moravec's
passenger side window.
As Stoecker approached, Moravec testified, "I didn't know
what to expect. You know, I've seen people where you think
people are nice, but can explode at the last minute. I really
didn't know what to think, but as Carl came around, he held his
cool." (Tr. 764-65). Once again, Stoecker secretly taped the
conversation with Moravec.
(Comp. Ex. 2). Moravec stated
Stoecker asked him if he (Stoecker) upset him the other day in
the tool room. Moravec replied, "yeah, Carl, you did."
Moravec was so upset that he called his brother-in-law
Dean Gatzemeier who is an engineer at the Jewett Mine. Then
Moravec, who had never previously been to Posey's home, went to
see Posey. Posey stated Moravec arrived trembling. Moravec
related his encounter with Stoecker earlier that day at the Donie
State Bank. Gatzemeier called Allred and criticized Allred and

318

Posey for identifying Moravec in the DML meeting. Gatzemeier
told Allred "you guys put Arlan in a heck of a fix ....• you put his
safety in jeopardy." (Tr. 831). Allred promised Gatzemeier he
would call Moravec. Allred called Posey to inform him about the
incident and was told that Moravec was at Posey's home. Allred
apologized to Moravec.
(Tr. 830-33, 968-71).
Allred, Posey and Jenkines decided the chase and curb
incident left no other recourse other than recommending
termination. The decision to discharge Stoecker was affirmed by
Vice President and General Manager Embry. On March 9, 1994,
Stoecker was called in to the personnel office. In the presence
of Allred, Posey and Jenkines, he was discharged for violations
of the company's pol i cy prohi bit i ng harassment.
(Tr. 895-96).
Stoecker was told his termination was for continued harassment of
fellow employees and no specific reference was made to the chase
and curbing incident to spare Moravec from further abuse.
(Tr. 842-44, 973-79, 1009-10).
Disposition of Issues

Further Findings and Conclusions
Discriminatory Discharge
The guiding principles governing whether Stoecker is
entitled to the statutory protection provided by section lOS(c)
of the Act are well settled. Stoecker, as the complainant in
this case, has the burden of proving a prima facie case of
discrimination under section lOS(c) of the Mine Act. In order to
establish a prima facie case, Stoecker must establish that his
November 12, 1993, February 22, 1994 and/or March 2, 1994,
actions constituted protected activity, and, that the adverse
action complained of, in this case his March 9, 1994, discharge,
was motivated, in part, by protected activity. See Secretary on
behalf of David Pasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2797-2800 (October 1980) rev'd on other grounds sub nqm.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981);
Secretary on behalf of Thomas Robinette v. United Castle Coal
Co., 3 FMSHRC 803, 817-18 (April .1981).
The respondent, Northwestern Resources Company, may rebut a
prima facie case by demonstrating either that no protected
activity occurred or that Stoecker's discharge was in no part
motivated by protected activity. Pasula, 2 FMSHRC at 2799-800.
If the respondent cannot rebut the prima facie case in this
manner, it may nevertheless affirmatively defend against the
prima facie case by establishing that it was also motivated by

319

Stoecker's unprotected .activity and that it would have discharged
Stoecker for the ~nprotected activity alone. 2 EMSHRC at 2800;
Robinette, 3 EMSHRC at 817-18; See also Jim Walter Resources,
920 F.2d at 750, citing with approval Eastern Associated Coal
Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v.
Stafford Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984};
Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)
(specifically approving the Commission's Pasula-Robinette test}.
The respondent has the burden of proving an affirmative defense.
Haro v. Magma Copper Company, 4 FMSHRC 19)5 (1982). However, the
ultimate burden of persuasion does not shift from the
complainant. Robinette, 3 FMSHRC at 817-18.
Protected Activity
It is axiomatic that a miner has an absolute right to make
good faith safety or health related complaints about mine
practices or conditions when the miner bel ieves such
circumstances pose hazards. Secretary of Labor ex rel. Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on
other grounds sub nom. Consolidation Coal Co. v. Marshall,
663 F.2d 1211 (3d Cir. 1981); Secretary of Labor ex rel.
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981).
A compl aining miner does not have an obligation to demonstrate
that the condition complained of contributes to an immediate
hazard if, as in this case, the complaint does not involve a work
refusal. Secretary o.b.o. Ronny Boswell v. National Cement
Company, 16 FMSHRC 1595, 1599 (August 1994}.
Communication of potential health or safety hazards and
responses thereto are the means by which the Act's purposes are
achieved. Once a reasonable good faith concern is expressed by a
miner, an operator, usually acting through on-the-scene
management personnel, has an obligation to address the perceived
danger. Boswell v. National Cement Co., 14 FMSHRC 253, 258
(February 1992}; Secretary o.b.o. Pratt v. River Hurricane Coal
Company, Inc., 5 FMSHRC 1529, 1534 (September 1983}; Secretary of
Labor v. Metric Constructors, Inc., 6 FMSHRC 226, 230 (February
1984}, aff'd sub nom. Brock v. Metric Constructors, Inc.,
766 F.2d 469 (11th Cir. 1985) . .An operator must address a
miner's concern in a way that reasonably quells the miner's
fears. Gilbert v. FMSHRC, 866 F. 2d 1433, 1441 (D.C. Cir. 1989}.
In summary, a miner's willingness to express safety and health
related complaints should be encouraged rather than inhibited.
Such protected complaints may not be the motivation for adverse
action against the complainant by mine management personnel.

320

A. The November 12, 1993, Complaint Concerning Hughes
. The Commission has noted that in order for a complaint to be
protected, the complaining miner must have a "good faith,
reasonable belief in a hazardous condition" and that a showing of
good faith requires an "honest belief that a hazard exists."
Thus, the complainant is not required to prove that an actual
hazard existed. He must only show that his complaint was
reasonable. See Secretary o.b.o. Clayton Nantz v. Nally &
Hamilton Enterprises,Inc., 16 FMSHRC 2208, 2211 (November 1994),
and cases cited therein.
In the current case, it is clear that Stoecker's November
12, 1993, inquiry concerning the qualifications of Brian Hughes
to run the crusher on an interim one shift basis was protected
under the Act. While I am not unmindful that Stoecker's primary
concern was his self interest in promotional opportunities, the
respondent concedes that Hughes was a novice crusher operator.
Both Safety Supervisor Medick and Shift Supervisor Ivey testified
that Stoecker's complaint justified further inquiry on their
parts to ensure that Hughes had been properly instructed on how
to avoid danger to himself or others in the event of an
unforeseen emergency. Although Stoecker's complaint was in large
part motivated by his desire for advancement, such desire does
not taint the reasonable safety related nature of his
November 12, 1993, complaint.
The November 12 Hughes incident precipitated the
November 18, 1993, Positive Discipline written reminder. While
the written reminder may also have addressed Stoecker's past
misbehavior, the respondent's assertion that Stoecker's
November 18, 1993, written reminder was not in any way related to
his contemporaneous Hughes complaint is unpersuasive. Therefore,
it is apparent that Stoecker's November 18, 1993, Positive
Discipline was based, in part, on his November 12, 1993,
protected complaint. However, the adverse action for which
Stoecker seeks relief is his March 9, 1994, discharge rather than
his November 18, 1993, Positive Discipline. Thus, the
dispositive issue is what role, if any, did the Positive
Discipline play in Stoecker' s termi.nation.
B. The February 22, 1994, Complaint Concerning Pringle
The testimony of Marty Pringle reflects that he had a
sincere and legitimate concern about his capacity to withstand
the rigors of the bias test given his recent hemorrhoid surgery.
This concern was recognized by Waylen Levels when he testified
that he would have volunteered to replace Pringle at the bias
test if he had known of Pringle's condition.

321

Allred conceded Pringle is a non-aggressive, non-assertive
individual. Therefore, it is not surprising that Pringle was
reluctant to communicate his incapacity to management personnel.
As noted above, the provisions of section lOS(c) of the Act are
intended to encourage operators to quell the fears of miner's
when they raise health related concerns. Management's implicit
threat to Pringle concerning 'whether Pringle liked to work
here,' is precisely the reaction the Mine Act seeks to dissuade.
Even counsel for the respondent conceded that Stoecker had not
"done anything horribly wrong" although it was just another
incident of Stoecker's tendency to meddle in other people's
business.
Consequently, it is obvious that Stoecker's complaint
regarding Pringle's medical condition was reasonable under the
circumstances and protected under the Act. The respondent
maintains that this incident had nothing to do with Stoecker's
discharge. 'However, Stoecker relies on Allred's reference to the
Pringle matter in his March 4 Decision Making Leave meeting as
evidence that this incident also motivated his discharge.

c. The March 2, 1994, Tool Room Incident
Stoecker maintains that his March 2, 1994, actions in the
tool room constitute protected activity because he was discussing
the "I" Team safety procedures with fellow employee Arlan
Moravec. I disagree. The question repeatedly asked by Stoecker
had nothing to do with safety procedures, was rhetorical in
nature and was not asked in good faith. Moreover, Stoecker's
behavior must be viewed in the context of his documented and
acknowledged problems involving his difficulties in relating to
others. Stoecker's shortcomings in his dealings with people was
best described by Stoecker when he stated, "I am not Henry
Kissinger . " (Tr. 53). Stoecker's admitted lack of diplomacy
could not have been focused on a more vulnerable victim than
Arlan Moravec.
Teasing, harassing and intimidating are not activities
protected by the Act. Such activities cannot be legitimized by a
transparent attempt to mask them in "a question about safety
procedures". An operator has an unfettered right to ensure that
its workers are not antagonized by fellow employees. Stoecker's
insistence that he did not upset Moravec in the tool room on
March 2, 1994, is unsupported by the reality of Moravec's
testimony. Moravec was a compelling witness who told a
regrettable story. His testimony is entitled to great weight.
Accordingly, I can construe nothing in Stoecker's conversation
with Moravec that even remotely resemb_les protected activity.

322

Finally, even Stoecker does not allege his March 4, 1994,
chase and forced interrogation of Arlan Moravec in the parking
lot of the Donie State Bank was protected activity.
(Tr. 998999, 1011-14). While presumably unintended, Stoecker's actions
terrorized Moravec. Obviously, such conduct provides a
reasonable basis for severe disciplinary sanctions.
Ultimate Findings and Concl°usiqns

As discussed above, the November 12, 1993, complaint
concerning Hughes and the February 22, 1994, complaint about
Pringle's incapacity are protected acts. Since the November 12,
1993, complaint was immediately followed by Positive Discipline
and the February 22, 1994, complaint was noted in the March 4,
1994, DML meeting, Stoecker has presented a prima facie case that
the adverse action he complains of, i.e., his March 9, 1994,
discharge, was motivated, at least in small part, by these
protected acts.
However, the relief provisions of section 105(c) of the Act,
which include back pay and reinstatement, are not available to a
complaining miner if his non-protected activity is so egregious
as to provide an independent basis for the adverse action
complained of. Such circumstances constitute an affirmative
defense to a miner's discrimination complaint. Under such
circumstances, a miner cannot · insulate himself from the
consequences of his own misconduct, which alone warrants
dismissal, simply because he has engaged in past protected
activity.
The Commission has noted that an operator may affirmatively
defend by proving that it would have disciplined a miner for
unprotected activity alone by showing prior consistent discipline
for similar infractions, the miner's unsatisfactory work record,
prior warnings to the miner, and rules or practices prohibiting
the conduct at issue. See Lonnie Ross and Charles Gilbert v.
Shamrock Coal Company, Inc., 15 FMSHRC 972, 975 (June 1993)
citing Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June
1982). In this matter, a significant contributing cause of
Stoecker's discharge was his harassment of Moravec in the tool
room on March 2, 1994. The proximate cause of termination was
Stoecker's terrorization of Moravec during his chase and
interrogation only two days later on March 4, 1994. This conduct
constitutes a blatant violation of the respondent's policy
prohibiting harassment.
With respect to a history of unsatisfactory conduct, it is
noteworthy that virtually every witness supported the
323

respondent's contention that Stoecker was frequently combative
and confrontational in his dealings with management and coworkers. The evaluations of record as well as the November 18,
1993, Positive Discipline as it relates to Stoecker's
confrontational style are convincing evidence of prior warnings
about his behavioral problem.
Moreover, despite Stoecker's past behavior, Stoecker's
secret tape of the March 4, 1994, DML meeting establishes that
Allred and Posey had no intention of firing Stoecker until the
chase incident occurred later that day. In fact, during the
meeting Posey encouraged Stoecker and stated he was willing to
work with Stoecker over the next twelve months in improving his
sensitivity to the feelings of others. Similarly, Allred's
incidental reference to the Pringle matter as evidence of
Stoecker's aggressive nature did not alter Allred's expressed
willingness to retain Stoecker's services.
However, inexplicably, less than one hour after being placed
on DML for harassing Moravec in the tool room, Stoecker was on
the chase and .at it again in the Donie State Bank parking lot.
This conduct demonstrated that Stoecker was incapable of change,
and, alone, provided a reasonable and justifiable basis for his
discharge.
Consequently, the respondent has met its burden of
establishing, by the preponderance of the probative evidence of
record, that although Stoecker had engaged in past protected
acts, his March 9, 1994, discharge was also motivated by
Stoecker's unprotected activities, and, that these activities
alone warranted his termination. Therefore, the respondent has
established an affirmative defense to Stoecker's assertion that
he was the victim of a discriminatory discharge.
As a final note, this Commission's jurisdiction is limited
to ensuring that miners' rights under the Act are protected. In
this regard, the Commission has stated its function is not to
pass on the wisdom or fairness of the asserted justifications for
a particular business decision, but rather to determine if such
justifications are credible, and, · if so, whether they' would have
motivated the operator as claimed. Bradley v. Be.lva, · 4 FMSHRC
at 993. Here, it is clear the respondent's reliance on
harassment as an independent justification for Stoecker's
discharge, particularly after the last act of harassment occurred
shortly after Stoecker was placed on Decision Making Leave for
harassment, is credible and not pretextual in nature. Whether or
not Stoecker's discharge was also motivated by his union
organizing activ.ities goes beyond the scope of this proceeding.
Accordingly, Stoe.cker' s complaint must be dismissed.
324

ORDER

Stoecker's participation in unprotected activity on March 2
and March 4, 1994, provided a justifiable and independent basis
for his March 9, 1994, discharge. Therefore, the discrimination
complaint filed by Carl Stoecker against the Northwestern
Resources Company IS HEREBY DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution:
Mr . Carl Stoecker, 504 Park Crest Circle, Groesbeck, Tx 76642
Frank Parker, Esq., Meier & Parker, L.C., P.O. Box 210484,
Bedford, TX 76095
/rb

325

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

MAR

ENERGY WEST MINING COMPANY,
Contestant

9 1995
CONTEST PROCEEDING
Docket No. WEST 92-819-R
Citation 3851235; 9/2/92

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

Cottonwood Mine
Mine I.D. 42-01944

CIVIL PENALTY PROCEEDING
Docket No. WEST 93-168
A.C. 42-01944-03613

v.
Cottonwood Mine
ENERGY WEST MINING COMPANY,
Respondent
DECISION
Appearances:

Timothy M. Biddle, Esq., Crowell & Moring,
Washington, D.C. for Energy West Mining Company;
Robert A. Cohen, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Secretary of Labor; Greg Hawthorne, Esq.,
United Mine Workers of America, Washington, D.C.,
for intervenor , United Mine Workers of America.

Before:

Judge Manning

These cases are before me pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U. S.C. § 801 et
seq . (1988) ("Mine Act" or "Act" ) following a remand from the
Commission.
16 FMSHRC 1414 (July 1994). The Commission reversed
and remanded the decision of former Administrative Law Judge
Michael A. Lasher, Jr. on the basis that he improperly granted
the Secretary of Labor's motion for summary decision.
Id. The
Commission concluded that summary decision was improper because
" central facts were disputed." Id. at 1419.
A hearing was held on November 30, 1994, in Salt Lake city,
Utah. The parties presented testimony and documentary evidence,
and submitted post- hearing briefs.
326

I.

FINDINGS OF FACT

on September 2, 1992, Fred Marietti, an inspector with the
Department of Labor's Mine Safety and Health Administration
("MSHA"), issued Energy West Mining Company ( " Energy West") a
citation alleging a violation of 30 C . F.R. § 75 . 326 1 at its
cottonwood Mine. The citation, as modified, states as follows:
The petition for modification, Docket
No. 86-MSA- 3, was not being complied with in
the 9th le f t two entry panel. The be l t was
in the No. 2 entry. The longwal l is being
set up for pillar retreat. 9th l eft is the
headgate entries . There were three diesel
Isuzu trucks that were not approved under 30
C.F.R. Part 36. This is required on page 41
'1(c)(4).
(Ex . G-1}.
On the citation, the inspector stated that the
alleged violation was not s i gnificant and substantial and was
caused by Energy West's moderate negligence.
Energy West contested this citation and the Secretary proposed a penalty of
$50.00.
A.

Background

The Cottonwood Mine is a deep coal mine with a coal seam
that is between 700 feet and 2,100 feet beneath the surface.
(Tr. 157). The mine's depth creates ground control problems,
including face and pillar bouncing, pillar bursts and roof control problems. Id . . Energy West extracts the coal using the
longwall method. It develops entries around a large block of
coal using continuous mining machines, sets up the longwall
equipment at the inby end of the block of coal, and then extracts
this block with the longwall equipment by retreating in an outby
direction. A block of coal typically is between 4,000 to 5,000
feet in length and 700 to 750 feet in width.
(Tr . 164). The
longwall equipment includes a large sheering machine that cuts
the coal, shields that support the roof at the face, and. a conveyor system that transports the coal out of the section . The
coal face, which i s about 700 feet wide, is along the inby side
of the rectangular coal block . The. block of coal is extracted
over a period of between 3 and 1 2 months with the longwall
equipment .
Id .
The cited safety standard provided, in pertinent part ,
that "the entries used as intake and return air courses shall be
separated from belt haul a ge entr ies ... " This safety standard was
sup erseded by 30 C.F.R. § 75.350, effective November 16, 1 992 .
For purposes of this proceeding , the two standards are identical
and I ref er to the old standard in this decision.
327

A minimum of three entries are required to be developed
along each side of the block of coal when a conveyor belt is used
to remove the coal. An MSHA safety standard provides, in part ,
that "entries used as intake and return air courses shall be
separated from belt haulage entries." 30 C. F . R . § 75.326. 2
These entries provide separate air courses for intake and return
ventilation, safe access to the working face through the intake
entry , and a separate route for the coal conveyer belt .
Because the depth of the overburden was causing ground
control problems at the Cottonwood Mine, Energy West filed a
petition for modification with MSHA pursuant to section lOl(c) of
the Mine Act, 30 U. S . C. § 8ll(c), seeking permission to develop
two rather than three entries along the sides of each block of
coal. 3 The petition was required because Energy· West planned on
using a belt to remove the coal and the belt entry would also
have to be used for intake or return air, thereby violating the
safety standard. The petition was granted by the Assistant
Secretary for Mine Safety and Health on July 14, 1989, following
administrative litigation before the Department of Labor.
(Ex .
11
)
·
G-7) .
The Assistant Secretary's Decision and Order ( "D&0
granting the petition contains a number of terms and conditions
not contained in Energy West's petition . As discussed below, one
of these conditions is the subject of this proceeding.
Two-entry mining in longwall sections has been a subject of
considerable discussion at MSHA and a task force was formed to
study it.
In 1985, the MSHA task force issued its report entitled Two- Entry Longwall Mining Systems - A Technical Evaluation .
(Ex . G-6). As a result of their study, the task force reached
the following conclusion:
After a through analysis of technical
data, review of available "bump" and roof
fall records, extensive review of in-mine
conditions, and deliberations among all Task
Force members, the Task Force concluded that
the 2 - entry technique for developing longwall
panels can be a justifiable mining procedure.
The Task Force, however, recognizes that
emergency evacuation is limited when using
2

See note 1, supra.

3

Since August 23, 1985, the date the petition was filed,
the Cottonwood Mine has been operated by Emery Mining corpor ation
("Emery" }, Utah Power and Light ·("UP&L"}, and Energy West. Emery
operated the mine until 1986 for the owner, UP&L.
In 1990 , UP&L
merged with Paci fic Corp. Energy West is a subsidiary of Pacific
Corp. · (Tr. 152-3). In this decision, I refer to the operator as
Energy West without regard to the corporate identity.
328

this technique and, therefore, recommends
that it be permitted only after the safe~
guards contained in this report have been
considered.
Id. at 2-3.
The task force reached this conclusion because
technical and historical data establish that the "2-entry technique, under adverse geologic conditions, has reduced the occurrence of pressure 'bumps,' roof falls, and other ground control
problems during mining operations . " Id. at 11.
Safeguard No . 6 in the task force report states: "All
diesel-powered equipment, operated on any longwall development or
longwall panel where both the intake and alternate escapeways are
ventilated with the same continuous split of air, be approved
under the provisions of 30 C.F.R. Part 36 and be provided with a
fire-suppression system." Id . at 58. The report concludes that
because diesel equipment creates additional fire hazards not
present with electrical equipment, the use of diesels is "too
hazardous for use in areas of a mine with limited escape routes."
Id. According·i y, the report recommends that only diesel equipment approved under Part 36 be permitted because "such equipment
has been designed to reduce the likelihood of a machine fire."
Id. 4
The Assistant Secretary's D&O accepted Safeguard No. 6, as
recommended by the task force.
(Ex. G-7 at 34, 41) .
Under the
heading "Requirements Applicable to Both Development and Retreat
Mining Systems," the D&O provides, at paragraph III(c) (4):
No later than two years from the date of this
order, and pursuant to a schedule developed
by the petitioner and approved by the District Manager, all diesel-powered equipment
operated on any two-entry longwall development or two-entry longwall panel shall be
equipment approved under 30 C.F . R. Part 36 .
Id. at 41.
Paragraph III(c) (5) of the D&O states that such
diesel equipment "operated on any longwall development or long-

4

Part 36, of 30 C.F . R. sets forth " requirements for mobile
diesel-powered transportation equipment to procure their approval
and certification as permissible for use in gassy noncoal
mines ••• "
30 C.F . R. § 36.1. There are no similar procedures for
obtaining the approval and certification of permissible diesel
t r ansportation · equipment in coal mines. Apparently, MSHA uses
these noncoal mine certification procedures to certify permissible diesel transportation equipment in coal mines where such
certification is deemed necessary.
{Tr . 41).
329

wall panel shall be provided with a fire suppression system."
Id. 5
In explaining this provision, the Assistant Secretary
stated:
As noted earlier, one of the .•. recommendations of the MSHA Task Force on longwall
mining was that only diesel equipment approved under 30 C.F.R. Part 36 and equipped
with a fire suppression system be used on
two-entry panels. The evidence before me
establishes that this recommendation should
be imposed as a requirement in this case.
Id . at 41 n . 16 (citations omitted).
B.

The two-entry lonqwall mining process

Under the petition for modification, as granted, Energy West
develops two headgate entries along one side of the block of
coal. Tailgate entries are usually present on the other side
from mining the adjacent block of coal. As the two headgate
entries are advanced, one entry is used as the air course for
intake ventilation, and the other entry is used for belt haulage
and return air.
(Ex . C-4). After the entries are developed, and
the longwall mining equipment has been set up, l ongwall retreat
mining begins. As the longwall retreats, one of the headgate
entries is used as the primary air course for intake air and the
other entry is used for belt haulage and as a secondary intake
air course on the same split of air. Id . The tailgate entries
are used for return air.
In general terms, return air is air
that has ventilated the last working place. 30 C.F.R. § 75.301.
During the time that the longwall equipment is being set up,
after the headgate entries have been developed but before longwall retreat mining begins, there is no return air .
(Tr. 38}.
The circulating air does not ventilate a working place.
(See, 30
C.F . R. §§ 75.2 and 75.301) . The ventilation system i~ modified
during the longwall installation period in preparation for
retreat mining .
C.

The citation

Inspector Marietti issued the citation on September 2 and no
coal production had taken place at the panel since August 18.
The two headgate entries (9th Left) had been completed with
continuous mining machines on August 18.
(Ex. C-8, C-9). The
5

The trucks cited by MSHA in this case were equipped with
fire suppression systems.
330

tailgate entries had been previously developed. Miners were
installing the longwall equipment in the "setup" entries that
connect the headgate and tailgate ·< ?ntries along the · inby (face)
side of the block of coal.
{See Ex. J-1). These activities are
summarized in Ex. C-8. The belt, which had been used when the
headgate entries were advanced, was being modified so that it
could be used with the longwall equipment on retreat. The belt
structure was still present, but the belt had been cut, sections
of the belt removed, and splices were being completed. These
activities are summarized in Ex. C-9.
(See generally Tr. 24450) .
The belt was not trained and ready for use in conjunction
with the longwall until September 17.
(Ex. C-8).
Longwall
retreat mining commenced on September 18 .
Inspector Marietti issued the citation because he observed
three nonpermissible trucks in one of the headgate entries.
He
believes that the D&O allows only permissible diesel trucks in
the longwall panel from the start of longwall panel development
until longwall retreat mining is completed. At the time the
citation was issued air was moving in an inby direction in the
headgate entry containing the trucks and was moving inby at a
slower rate in the entry containing the belt conveyor system.
This intake air was a single split and the air in the belt entry
was mixing with air in the intake entry containing the trucks.
(Tr. 223). The air was exiting the panel through one of the
tailgate entries and the bleeders. Additional air was entering
the panel through two of the tailgate entries. 6

II.
A.

SUMMARY OF THE PARTIES' ARGUMENTS

Secretary and UMWA7

The Secretary argues that Energy West cannot accept the
broad benefits of the D&O while limiting its applicability to
those times when coal is being extracted . The Assistant Secretary made clear in his D&O that he could consider safety factors
that do not directly relate to the . purpose of the standard being
modified.
By limiting the petition's te+rns to those periods when
coal is being extracted, Energy West ignores safety hazards that
are present at other times during longwall mining cycle. The D&O
does not include any language limiting its application to production periods. Many activities were occurring in the headgate and
setup entries between August 18 and September 18, and Condition
III(c) (4) should protect miners performing those tasks.
Finally,
the Secretary ~aintains that correspondence between MSHA and
6

On this particular panel, there were three tailgate entries.

7

The United Mine Workers of America did not file a brief
but stated in a letter that it 0 concurs with" the Secretary's
brief.

331

Energy West establish that Energy West recognized before the
citation was issued that the D&O required it to use permissible
diesel equipment during the longwall installation period. 8
B.

Energy West

Energy West argues that be.cause a functioning coal conveyer
belt was not present at the time the citation was issued, there
was no "belt haulage entry," as that term is used in 30 C.F.R. §
75.326. Accordingly, section 75.326 did not and could not apply
at that time.
Because section 75 . 326 did not apply, it follows a
fortiori that neither the petition for modification nor the D&O
applied . Therefore, Condition III(c) (4) of the D&O does not
pertain to longwall installation and the citation is invalid.
It
maintains that the petition cannot apply to longwall installation, as a matter of law, because there is nothing to modify.
Energy West maintains that at no time during the protracted
modification proceedings before the Department of Labor did
anyone suggest that the petition would cover longwall installation.
It emphasizes that neither the task force report nor the
D&O discuss longwall installation. As discussed in more detail
below, it argues that the specific language of the D&O, including
Condition III(c) (4), supports its position that longwall installation was not included.
Finally, Energy West argues that Condition III(c) (4) was
included because of the dangers inherent when miners are working
in an area ventilated by a single split of air with limited
escape routes.
It points out that at the time the citation was
issued, 9 Left was ventilated by two separate spits of air and
that there were five escape routes. It maintains that the trucks
did not present a fire hazard.
III.

DISCUSSION WITH FURTHER FINDINGS
AND

CONCLUSIONS OF LAW

Energy West makes several compelling arguments that Condition III(c) (4) should not apply during longwall installation.
I
find, however, that Energy West's factual assumptions, as described below, do not support its legal arguments.

8

The Secretary also argues that the conclusions of former
Administrative Law Judge Lasher are still valid. He states that
"nothing has changed (since] Judge Lasher originally weighed the
evidence . " s. Br. 5 . Judge Lasher, however, did not "weigh the
evidence" because he granted the Secretary's motion for summary
decision.
I have not considered Judge Lasher's analysis or
conclusions in reaching my decision in this case.
332

·, ·

Energy West's reasoning in this case is dependent on its
contention that the Assistant Secretary's D&O is not applicable
to the process of installing the longwall equipment and modifying
the belt ("longwall installation"). It bases this argument on
two underlying factual assumptions. First, it maintains that a
belt haulage entry does not exist during longwall installation
because the miners are modifying the belt and its structure at
that time for use with the longwall equipment and the belt is,
therefore, inoperable. Second, Energy West contends that the
language in the D&O, including the language in condition III(c)(4), excludes longwall installation. I find that the evidence
does not support Energy West's position .
It is undisputed that the one of the two entries in 9 Left
contained the belt structure, rollers, and other equipment
necessary for the operation of the belt, designated as the B
entry on Ex. J-1. It is also not disputed that the belt was not
in use on the date of the inspection and could not be used
because it was being modified for use with the longwall equipment.
Splices were being vulcanized, rollers added and other
changes made.
(Tr. 244-50). Energy West argues that the term
"belt haulage entry" in section 75.326 "does not refer to an
entry in which no belt haulage occurs."
(E.W. Br. 4). On this
basis, it maintains that because there was no belt haulage entry
on September 2, section 75.326 would not have applied and,
consequently, the D&O did not apply.
In spite of the fact that the belt was not in use and could
not have been used on September 2, 1992, I find that the entry
containing the belt and belt structure was a belt haulage entry
on that date, as that term is used in section 75.326. That entry
was a belt haulage entry during the development of the longwall
panel. The entry was a belt haulage entry when the longwall was
mining coal after September 17. I do not believe that this entry
ceased being a belt haulage entry during the 30-day period that
the belt and its structure were being modified for longwall
retreat mining. I find that the term "belt haulage" refers to a
belt conveyer system, and a belt haulage entry is an entry that
contains a belt haulage system. 9
The entry in question contained a belt haulage system and, therefore, was a belt haulage entry. 10
9

The term "haulage" refers to a track haulage system or a
belt conveyer system. See, Bureau of Mines, U.S. Department of
the Interior, Dictionary of Mining, Mineral, and Related Terms,
at 530 (1968).
10

In support of its position, Energy West points to the
testimony of Inspector Marietti that section 75.326 did not apply
at the time.
(E.W. Br. 9; Tr. 39). I interpret the inspector's
testimony to mean that the safety standard did not apply to the
Cottonwood Mine at all because it had been superseded by the. D&O.
333

If a longwall panel is put on inactive status after the
headgate entries are developed, the entry containing the belt
conveyer system would, perhaps, no longer be deemed a "belt
haulage entry." Under the facts of this case, however, Energy
West was proceeding directly through the mining cycle in order to
start retreat mining. The fact that longwall installation is a
complex process that takes 30 days, as opposed to a shift or two,
does not change this fact. 11
Energy West also argues that the language of the D&O precludes the application of Condition III{c) (4) to the period of
longwall installation. I disagree.
I believe that the language
of the D&O makes clear that the Assistant Secretary intended that
the terms of Condition III(c) (4) apply during the entire mining
cycle, from the time that development of a new longwall panel
commences until retreat mining has been completed . There is no
language in the D&O that excludes the longwall installation
process from the requirements of the condition or any other
provisions of the D&O.
In its brief, Energy West lists a number
of conditions under paragraph III that it believes demonstrates
that the longwa.11 installation process was excluded.
(E.W. Br.
13-14).
Some of these provisions, by their very nature, may be
inapplicable during longwall installation because there is no
working place or working section. Condition III(c) (4), however,
does not limit its application to periods when there is a working
place or working section.
More importantly, I believe that the language of the D&O
supports the Secretary's position. Condition III(c) (4) is
included under the heading: "Requirements Applicable to Both
Development and Retreat Mining Systems." Two of the Secretary's
witnesses testified that longwall installation .is part of longwall development. Robert Ferriter, chief of the ground support
division of MSHA's Denver Safety and Health Technology Center,
was Chairman of the MSHA task force. He testified that during
the task force's deliberations they discussed the longwall
installation phase and considered it to be "part of the development of the longwall panel." (Tr. 57}. He testified that the
task force recommendation concerning permissible diesel equipment
applies to the entire mining cycle and that there is no "time-out
(See also Tr. 18}. This interpretation is consistent with the
testimony of MSHA witness Davis (Tr. 86, 106).
11

Energy West states that it has used shuttle cars for
haulage in two entry longwall panels and argues that such a
system would not violate the safety standard.
{E.W. Br. 4 n.3).
I agree that such a haulage system would not have . violated the
safety standard and would not violate the D&O because a belt
haulage entry would not exist. This argument, however, does not
support its position in this case.
334

period." (Tr. 59). Allyn Davis, Chief of MSHA's Division of
Coal Mine Safety, testified that the Assistant Secretary "intended .•• that (the permissibility requirement) apply throughout the
use of the two-entry system •.. " (Tr. 85). He reached this
conclusion based on the language of the D&O and the fact that he
believes · that the hazards associated with using diesel trucks
continue to exist while the longwall equipment is being moved in
and set up. Id. I credit this testimony and find that longwall
installation is part of "longwall development," as that term is
used in the D&O.
Condition III(c) (4} provides that "all diesel-powered
equipment operated on any two-entry longwall development or
longwall panel shall be equipment approved under 30 C.F.R. Part
36. 11 Given my finding that longwall installation is a part of
longW'all development, I find that the condition . applied at the
time the citation was issued. There is no dispute· that the
diesel trucks in question did not meet these requirements.
Energy West is correct in stating that the panel was ventilated by two separate splits of intake air and that there were
more than two escape routes out of the panel. As Energy West
states, the primary reason that the condition was included in the
D&O is because the number of escape routes is limited in twoentry mining. During longwall installation more escape routes
are available than when the headgate entries or the longwall
panel are being mined. (Tr. 46, 97-98) . Nevertheless, I find
that the record establishes that nonpermissible diesel trucks
present a hazard in the longwall panel even under these circumstances. (Tr. 33, 85). The hazard is the risk of fire caused by
nonpermissible diesel equipment. The trucks' catalytic converters, the presence of diesel fuel and the risk that adequate
escapeways will not be available create hazards to miners in the
panel.
(Tr. 26, 33, 85). There would be more escape routes
available in the event of an emergency if the headgate and
tailgate entry sets were comprised of three entries each. In an
emergency one or more of the escape routes could be blocked. I
find, however, that the safety hazards are considerably less
during longwall installation than at other times. (Tr. 57-58,
75-76, 97-98).
Finally, Energy West states ' that Condition III(c) (4) was not
proposed in its petition for modification and was not included in
the proposed decision and order of the Administrator but was
"imposed on Energy West sua sponte by the Assistant Secretary."
(E.W. Br. 5). Energy West contends that the Secretary's unreasonable interpretation of condition III(c)(4) has likewise been
imposed on it without any prior notice . In a letter to David
Lauriski of Energy West, dated March 23, 1987, John w. Barton,
MSHA District Manager, made it clear that MSHA considers longwall
installation to be a part of development mining.
(Ex. G-2).
Although this letter was in reference to interim relief granted
33 5

by MSHA under a petition for modification at Energy West's Deer
Creek Mine, the principles are the same. Thus, Energy West
cannot claim that it did not know that MSHA considered longwall
installation to be a part of longwall development and that MSHA
might apply Condition III(c) (4) during that period.
(See also
Tr. 2 O, 2 2 6) •
I recognize that Energy West has been unable to find the
equipment necessary to make the Isuzu trucks permissible or find
other small permissible diesel powered vehicles.
I also recognize that these trucks have served as an important means of
transportation for men and materials in and out of longwall
panels during installation. Energy West believes that switching
to battery-powered vehicles or requiring miners to walk in and
out of the panel would result in a di~inution of safety.
(Ex. c7). I do not have the jurisdiction to consider this issue .
Taking into consideration the criteria of section 110(i) of
the Act, 30 u.s.c . § 820(i), I find that a civil penalty of
$50.00 is appropriate. I find that the violation did not create
a serious safety hazard because coal was not being extracted,
there were more that two escape routes out of the panel, and the
risk of fire was low. I also find that the violation was not
significant and substantial because there was not a reasonable
likelihood that the hazard will result in the injury. I agree
with the inspector's determination that the violation was the
result of Energy West's moderate negligence.
IV.

ORDER

Accordingly, Citation No. 3851235 is AFFIRMED and Energy
West Mining Company is directed to pay a civil penal
of $50.00
within 30 days of the date of this decision.

Richard W. Manning
Administrative Law Judge

33 6

Distribution:
Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 2220.3
(Certified Mail)
Timothy Biddle, Esq., CROWELL & MORING, 1001 Pennsylvania Avenue,
NW, Washington, DC 20004-2595 (Certified Mail)
Greg Hawthorne, Esq., United Mine Workers of America, 900 - 15th
Street, NW, Washington, DC 20005 (Certified Mail)

rwm

337

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

MAR 1 0 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-1208
A . C . No. 15 - 15637-03560 S

v.
No . 1 Mine
BROKEN HILL MINING COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-1209
A. C. No . 1 5-15637 - 03559 M
No . 1 Mine

DONALD KIDD, employed by
BROKEN HILL MINING COMPANY,
INCORPORATED,
Respondent

DECIS ION
Appearances:

Mark R. Malecki, Esq., Office of the Solicitor,
U. S . Department of Labor, Arlington, Virginia
for Petitioner;
Hobart W. Anderson, ·President, Broken Hill
Mining Co ., Inc . , Sidney, Kentucky, Pro . Se, for
Respondents

Before :

Judge Hodgdon

These cases are before me on petitions for assessment of
c i v il penalty filed by the Secretary of Labor, a cting t h r ough his
Mine Safety and Health Administration (MSHA) , against Br oken Hi l l
Mi n i n g Co., Inc. and Donald Kidd , an employee of Brok e n Hill,
p ursuant to Section s 1 05 and 110 of the Federal Mine Safety and
Health Act of 197 7, 30 u.s.c. § § 815 and 820. The petit i on
against the company alleges a v i olation of the Secretary ' s
338

...

mandatory health and safety standards and seeks a penalty .of
$2,500.00. The petition against Mr. Kidd alleges a violation of
Section 317(c) of the Act, 30 U.S ..C. § 877(c), and seeks a
penalty of $250.00. For the reasons set forth below, I modify
and affirm the citation against the company and assess a penalty
of $1,000.00 and I vacate the citation against Mr. Kidd and
·dismiss the petition.
The cases were heard on January 18, 1995, in St. Albans,
West Virginia . MSHA Inspectors Buster Stewart and Gary Gibson
and MSHA Coal Mine Safety and Health Specialist Cheryl S. McGill
testified for the Secretary. Donald Kidd and Charles R.
Lavender, Jr. testified on behalf of Broken Hill Mining.

FACTUAL SETTING

The facts in this case are undisputed. On May 19, 1995,
MSHA Inspectors Stewart, Gibson and Jimmy Brown arrived at the
Broken Hill Mine No. 1 to conduct a spot inspection for smoking
materials. After directing the mine employee on the surface not
to announce their presence to the people in the mine, Stewart and
Gibson went into the mine. On arriving at the working section,
the inspectors had the mine superintendent assemble all of the
miners and conduct a search for smoking materials.
When that was completed, those miners who had lunch buckets
were directed to get them. Inspector Stewart accompanied Donald
Kidd to the scoop Kidd operated to retrieve Kidd's lunch bucket.
Kidd opened the lunch bucket in the presence of Stewart and
Gibson. Inside were some keys, an ear spray, a half filled
bottle of Coca Cola, some headache pills, some yellow napkins
from Happy Mart and a yellow Cricket lighter.
As a result, Inspector Stewart issued Citation No. 4012941
to the company for a violation o~ Section 75.1702, 30 C.F . R.
§ 75.1702, of the Secretary's Regulations.
(Pet. Ex. 1.)
The citat!ion was subsequently modified on May 25, (Pet. Ex. 2),
June 2, (Pet . Ex. 3), and Septeniber 1, 1994, (Pet. Ex. 4).
As modified, it stated that:

339

The operator's search program approved May 16,
1991, is inadequate because Donald Kidd, the scoop
operator, was allowed to carry a yellow Scripto
disposable cigarette [lighter] underground . A search
of the employee's lunch bucket by the mine supt.
revealed the cigarette lighter in the lunch bucket.
The search was conducted in the No. 5 entry.
Citation No . 4227560 was issued to Donald Kidd.
It alleged
a violation o.f Section 317 (c) of the Act, and stated:
"A yellow
Scripto disposable butane cigarette lighter was observed in the
lunch bucket of Donald Kidd a scoop operator on the 001-0
Section. The ..lunch bucket was opened by Mr. Kidd in my presence
and later by Mine Supt. R. B. Hughes in No. 5 entry."
(Pet. Ex.
7.)

FINPINGS OF FACT AND CONCLUSIONS OF LAW
Section 317(c) of the Act and Section 75.1702 of the
Regulations are identical and provide, in pertinent part, that:
"No person shall smoke, carry smoking materials, matches, or
lighters underground . .
The operator shall institute a
program, approved by the Secretary, to insure that any person
entering the underground area of the mine does not carry smoking
materials, matches or lighters." With respect to individual
miners, the Act also provides in Section llO(g), 30 U.S.C.
§ 820(g), that:
"Any miner who willfully violates the mandatory
safety standards relating to smoking or the carrying of smoking
materials, matches, or lighters shall be subject to a civil
penalty assessed by the Commission, which penalty shall not be
more that $250 for each occurrence of such violation."
Donald Kidd
Turning first to the violation concerning Donald Kidd, I
conclude that the evidence does not establish that he willfully
violated the mandatory safety standard . While there are no
Commissio"n decisions defining the L .~rm "willfully, 11 Black ' s Law
Dictionary 1599 (6th ed. 1990) defines 11 ;.:illful 11 as "(p] roceeding
from a conscious motion of the will; voluntary; knowingly;
deliberate_.
Intending the result which actually comes to pass;
designed; intentional; purposeful; not accidental or

340

·;.

involuntary." There is no evidence in this record to show that
Kidd intentionally, knowingly or voluntarily carried a lighter
into the mine or to rebut his claim that he accidentally took the
lighter into the mine.

Mr. Kidd testified concerning the incident as follows:
And that particular day, when it was time to go to
work, I had a bottle of Swim Ear, not nasal spray; it
was Swim Ear - it's for the ears, and it's basically
the same thing. Just a bottle of stuff - a
screwdriver, ink pen and keys and a bottle of -- well,
it wasn't Excedrin. It was an off-brand medicine for
headaches.
The cigarettes, as he said, was outside in my
truck, which I told them where they were inside [the
mine], after they found the lighter -- or after I
showed them the lighter. And the cigarettes . . .
But it inadvertently got in the bucket.
(Tr. 178. }
Q.
A.

Did you know that lighter was in that bucket?
~.

(Tr. 179.}
I put my Swim Ear and my screwdriver and my keys
and my medicine in the bucket. And I took the coffee
jug in the office and I put the bucket on the scoop and
took the coffee jug in the office, I filled it up .
That was the first and only time I was in the bucket
that day .

. The lighter, I do not recall ever putting the
lighter in the bucket, period. To my knowledge, as I
assumed and everybody does, I put the lighter with the
cigarettes in the truck bed or in the seat of my truck.
They found the cigarettes in the seat of my truck but
no lighter.

341

So when I put ~he other stuff in my pocket, then
the lighter had to be, you know, just put in there [the
bucket] .

Yeah, at some point that morning I had to put the
lighter in there [the bucket]. No one else did.
(Tr. 19 2 - 9 3 . )
Inspector Stewart testified with regard to finding the
lighter:
"Well, Mr. Kidd told me that morning, told me when we
found the lighter, that he just got all of his material out of
his pockets and put it in his lunch bucket."
(Tr. 59.) He
further stated:
"But just as I've testified, there's a good
possibility that when he got his stuff out, that he didn't know
that lighter was in his bucket."
(Tr. 67.)
Finally, he related
that Mr. Kidd acted surprised when he saw the lighter in his
lunch bucket.
(Tr. 107.)
Concerning this violation, Inspector Gibson stated:
"Well,
in this situation here, at the time this occurred, I really don't
think that Mr. Kidd -- I mean, the way he acted when the lighter
was found and things, he acted like he was really sincere, that
he didn't know that it was there. 11
(Tr. 118.)
It is Mr . Kidd's contention that the lighter somehow got in
his lunch bucket when he emptied his pockets before entering the
mine, -placing his cigarettes in his truck and everything else in
the lunch bucket . He maintains that he did not have occasion to
open the lunch bucket, which apparently had no lunch in it
anyway, until asked to do so by the inspectors. Therefore, he
asserts that he did not "willfully" take the lighter into the
mine. This scenario is not implausible on its face.
Against this, the Secretary has offered only the finding of
the ligh~er and speculation that Mr. Kidd either had cigarettes
secreted somewhere else in the mine or planned to go out of the
mine with the lighter to smoke the cigarettes in his truck. This
do~s not stand up to _
s crutiny.
In the first place, the
inspectors corroborate Kidd by agreeing that he looked surprised
when the lighter was discovered.
In the second place, if Kidd

342

··.

were going to go to the trouble of secreting his cigarettes in
the mine, it seems logical that he would also have se~reted his
lighter.
Similarly, if he was going to go out of the m~ne to
smoke a cigarette, why keep his lighter in the mine.
Based on the evidence of record, I conclude that Mr. Kidd
did not willfully violate the Act.
Consequently, I will vacate
the citation and dismiss the civil penalty petition.
Broken Hill Mining Company
reach a different conclusion on the company's v i olation.
The Act imposes strict liability on mine operators for violation
of the mandatory standards regardless of fault.
Western FuelsUtah v. Fed. Mine Safety & Health, 870 F.2d 711, 716 (D.C. Cir.
1989); Bulk Transportation Services, Inc., 13 FMSHRC 1354, 1359
(September 1991); Republic Steel Corporation, 1 FMSHRC 5, 9-10
(April 1979). Th~refore, 11 [i]f smoking materials are found
underground, there is a violation of § 75.1702 and the operator
is liable without regard to fault." Mingo Logan Coal Co., 17
FMSHRC ~- (Judge Fauver, February 1995). Accordingly, I
conclude that Broken Hill violated the regulation.
I

The citation alleges that this violation was
"significant and substantial." A "significant and substantial"
(S&S) violation is described in Section 104(d) (1) of the Act as a
violation "of such nature as could significantly and
substantially contribute to the cause and effect of a coal or
other mine safety or health hazard." A violation is properly
designated S&S "if, based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a
reasonably serious nature." Cement Division, National GJIPSUID
Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set out criteria for determining whether a violation
is S&S. !See also Austin Power, Inc. v. Secretary, 861 F. 2d 99,
103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015,
2021 (December 1987) (approving Mathies criteria) . This
evaluation is made in terms of "continued normal mining
operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574

343

(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) .
The dangers of mine explosions are well known as are the
propensities of an open flame in a mine for causing explosions .
One has only to consider the recent Southmountain Coal Inc . and
the AA&G Elmo No. 5 explosions and resulting fatalities, alluded
to by Ms. McGill and believed to have been caused by smoking
materials in the mine, to recognize the seriousness of this
violation. Consequently, applying the Mathies criteria to this
case, I conclude that this violation was "significant and
substantial . "
The citation also alleges that Broken Hill was highly
negligent in permitting this violation to occur and that the
violation resulted from the company's "unwarrantable failure 11 to
comply with the regulation. The Commission has held that
"unwarrantable failure 11 is aggravated conduct constituting more
than ordinary negligence by a mine operator in relation to a
violation of the Act. Emery Mining Corp., 9 FMSHRC 1997, 2004
(December 1987); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007,
11
2010 (December 1987) .
Unwarrantable failure is characterized by
such conduct as 'reckless disregard,' 'intentional misconduct, 1
'indifference' or a 'serious lack of reasonable care.'
[Emery]
at 2003-04; Rochester & Pittsburgh Coal Corp., 13 FMSHRC 189,
193-94 (February 1991) ." Wyoming Fuel Co., 16 FMSHRC 1618, 1627
(August 1994) .
The evidence in this case does not support findings of high
negligence or "unwarrantable failure" on Broken Hill's part.
Broken Hill had in effect an underground search program required
by Section 75.1702 which had been approved by MSHA. The program
provided that searches would be conducted once a week at
irregular intervals and that apparently was done .
(Resp. Ex. A.)
There is no evidence that these searches were conducted with
indifference or incompletely. Furthermore, Broken Hill's policy

344

.·,.
·-~

that anyone caught taking smoking materials underground would be
terminated indicates that it did not take its responsibilities in
this area lightly.
Finally, having found that the violation in
this case was not willful, it cannot be inferred from the
violation that the company's program was ineffectual.
Accordingly, I conclude that this violation was not the
result of an "unwarrantable failure" by Bi;-oken Hill and that the
company was no more than moderately negligent in this instance.
The citation will be modified from a 104(d) (1) citation, 30
U.S . C. § 814 (d) {l), to a 104 (a ) citation, 30 U.S.C. § 814 (a).

CIYIL PENALTY ASSESSMENT
The Secretary has proposed a civil penalty of $2,500.00 for
this violation. Section llO(i) of the Act, 30 U.S.C. § 820(i),
sets out six criteria to be considered in determining an
appropriate civil penalty.
In connection with these criteria,
I find that Broken Hill has a lower than average history of
previous violations, with no evidence of previous smoking
violations; that the No. 1 mine is a small mine and Broken Hill a
small operator; and that the company demonstrated good faith in
abating the violation.
(Pet. Exs. 5 and 6.)
Broken Hill made no
claim at the hearing that the penalty proposed by the Secretary
was inappropriate to its size or that the penalty would adversely
affect its ability to remain in business. Finally, while I am
reducing the level of negligence, as I indicated earlier in the
decision this is ~ serious violation. Taking all of this into
consideration, I conclude that a penalty of $1,000.00 is
appropriate in this case.

ORDER
Citation No. 4227560 in Docket No. KENT 94-1209 is VACATED
and the civil penalty petition is DISMISSED. Citation No.
4012941 in Docket No. KENT 94-1208 is MODIFIED from a Section
104(d) (1) to a Section 104(a) citation by deleting the
"significant and substantial" designation and reducing the level
of negligence to "moderate." The citation is AFFIRMED as
modified.

345

Broken Hill Mining Company , Inc. i s ORDERED to pay a civil
penal ty of $1,000.00 withi n 30 days of the date of this decision.
On receipt of payment, this proceeding i s DISMISSED.

Y. T1!:!a~

Administrative Law Judge

Distribution:
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd . , Suite 400, Arlington, VA 22203
(Certified Mail)
Hobart Anderson, President, Broken Hill Mining Co . , Inc.,
P.O. Box 356, Sidney, KY 41101 (Certified Mail)
Donald Kidd, ·Broken Hill Mining Co . , Inc., P.O. Box 1360,
Ashland, KY 41101 (Certified Mail)
/lbk

. 346

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

MAR 17 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-1208
A. C . No. 15-15637 - 03560 S
No. 1 Mine

BROKEN HILL MINING COMPANY,
INC . I
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No . KENT 94-1209
A. C. No. 15-15637-03559 M
No. 1 Mine

DONALD KIDD, Employed by
BROKEN HILL MINING COMPANY
INC .
Respondent
I

ORDER CORRECTING DECISION

The first paragraph in the Order section of the March 10,
1995, Decision in the above captioned cases incorrectly states
that 11 [citation No. 4012941 in Docket No . KENT 94-1208 is
MODIFI ED from a Section 104 (d) (1). to a Section 104 (a) citat i on by
II
d e leting the 'significant and substantial ' designation .
11
It should read by deleting the ' unwarrantable failur e•
design ation . "

34 7

Accordingly, it is ORDERED, pursuant to Commi ssion
Rule 69(c), 29 C.F.R. § 2700.69{c), that the first paragr aph of
the Or der section on page 8 o f the Decision is CORRECTED to read
as fo l lows:
Citation No. 4227560 in Docket No. KENT 94-1209 i s
and the Civil Penalty petition DISMISSED.
Citation No. 4012941 in Docket No. KENT 94 -1208 is
MODIFIED from a Section 104(d) (1) to a Section 104(a)
citation by deleting the "unwarrantable failure"
designation and reducing the level of negligence to
"moderate." The citation is AFFIRMED as modified.

VACAT~D

J~~
T . Todd

H;d(a:~

.
Administrative·· Law Judge

Distribution:
Mark R . Malecki, Esq., Office of the Solicitor, U. S . Department
of Labor, 4 015 Wilson Boulevard, Suite 4 00, Arlingt on, VA 22203
(Certified Mail)
Hobart Anderson, President, Broken Hill Mining Company, Inc . ,
P. 0. Box 356, Sidney, KY 41101 (Certified Mail)
Donal d Kidd, Broken Hill Mining Company, Inc., P. 0. Box 1360,
Ashland, KY 41101 (Certified Mail)
dcp

34 8

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMI NISTRATIVE LAWJUDGES
2 SKYLINE, 10t h FLOOR
5203 LEESBURG PI KE
FALLS CHURCH , VIRGINIA 22041

MAR 1 3 1995

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 94-80
A.C. No. 46-08122-03502 NFZ

I

Mine: Murphy No. 1 Prep Plant
FIELDING HYDROSEEDING,
Respondent
DECI SION APPROVING SETTLEMENT
Before:

Judge Amchan

This· case is before me upon a petition for assessment of
civil penalty under section 105{d) of the Federal Mine Safety
and Heal th Act of 1977, 30 U.S.C. § 801 .e.t. .s..e..Q .
The Secretary
of Labor has filed a motion to approve settlement agreement.
The terms of the settlement are that the total proposed penalties
are reduced from $6,000 to $5 , 000 . Petitioner represents that
Respondent has agreed to pay this amount in an installment
payment plan specified in the settlement agreement.
I have considered the representations and documentation
su~mitted and I conclude that the proffered settlement is
consistent with the criteria in section llO(i) of the Act .

349

·.

ORDER
WHEREFORE IT IS ORDERED t h at the mot ion for · approva l of
settlement is GRANTED and Respondent shall pay the approved
penalties in accordance with the terms of the settlement
agreement . Upon such payment this case is DISMISSED .

D11~~

;.rtl.Jiu~r . J .- Amchan
Administrative Law Judge
Distribution:
Javier I. Romanach, Esq. , Office of the Solicitor,
U . S. Department of Labor, 4015 Wilson Blvd., Suite 516,
Arlington, VA 22203
M. Timothy Koontz, Esq . , 242 East Second Ave.,
P . O. Box 2180, Williamson, WV 25661

/lh

350

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-3993/FAX (303) 844- 5268

MAR 1 4 1995
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 93-182
A.C. No. 48-00086-03526

v.

Kemmerer

PITTSBURG & MIDWAY COAL MINING
COMPANY,
Responde nt
DECISION
Appearances:

Before:

Kristi Floyd, Of fice of the Solicitor, U.S .
Department of Labor, Denver, Colorado,
for Petitioner;
Ray D. Gardner, Esq., Englewood, Colorado,
for Respondent .

Judqe Cetti

This case is before me upon a petition for assessment of
civil penalties under Section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c . § , 801 et~ the "Act." The
Secretary of Labor on behalf of the Mine Safety and Health Administration, (MSHA), charges the Respondent, the operator of
Kemmerer Mine, with three violations of mine safety standards .
The operator filed a timely answer contesting each of the
alleged violations and the amount of the proposed penalties. The
issues raised at the hearing were whether the operator violated
the safety standard as alleged in the citations and, if so, whether or not each of the violations was significant and substantial and the appropriate penalty for each violation.
STIPULATIONS
The Secretary of Labor and the Respondent at the hearing
entered into the record the following stipulations:
1. Respondent is engaged in mining and selling of coal in
the United States, and its mining operations affect interstate
commerce . .
35 1

2. Respondent is the owner and operator of the Kemmerer
Mine, MSHA I.D. No. 48-00086.
3. Respondent is subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977, 30 U.,s.c. §§ 801 et seq.
("the Act") .
4.
matter.

The Administrative Law Judge has jurisdiction in this

5. The subject citations were properly served by a duly
authorized representative of the Secretary upon an agent of
Respondent on the date and places stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
6. The exhibits to be offered by Respondent and the
Secretary are stipulated to be authentic but no stipulation is
made as to their relevance or the truth of the matters asserted
therein.
7. The proposed penalties will not affect Respondent's
ability to continue in business.
8. The operator demonstrated good faith in abating the
violations.
9 . Respondent is a large mine operator with 17,520,572 tons
of production in 1992.
10. The certified copy of the MSHA Assessed Violations
History accurately reflects the history of this mine for the two
years prior to the date of the citations.
Citation No. 3243029

This citation charges the operator with the violation of 30
C.F.R. § 77.1104 which prov'ides as follows:
Combustible materials, grease, lubricants,
paints, or flammable liquids shall not be
allowed to accumulate where they can create a
fire hazard.
The citation reads as follows:
Combustible material[,] hydraulic oil and
coal dust was allowed to accumulate on the
hydraulic unit of the car . pusher located at

352

the Elkol tipple.
fire hazard.

The material created a

It is undisputed that combustible materials including coal
dust and hydraulic oil were allowed to accumulate on the hydraulic pump which drives the pump of the rail car mover located at
the Elkol tipple. The inspector testified that the depth or
thickness of the accumulated combustible material varied from
1/16 of an inch to 1/2 inch and covered the entire hydraulic
unit .
Evidence was presented that miners had been observed
smoking in the tipple area and that there were electri c lights .
and conduits in the area.
On the basis of the evidence presented I concluded that
combustible materials were allowed to accumulate .where they "can"
create a fire hazard. The violation of the safety standard in
question was established.
The citation designates the violation S&S. A violation is
S&S if, based on the particular facts surrounding the violation,
there exists a reasonable likelihood that the hazard contributed
to will result irr 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 (January 1984), the
Commission explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial ... , the Secretary of Labor must
prove: (1) the underlying violation of a
mandatory safety standard; ... (2) a discrete
safety hazard -- that is, a measure of danger
to safety -- contributed to by the violation;
(3) a reasonable likelihood that the hazard
contributed to will result in an injury; and
(4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature .
6 FMSHRC at 3-4. See also Austin Power, Inc. v . Secretary, 861
F.2d 99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021
(December 1987) (approving Mathies criteria). The commission has
held that the third element of the Mathies formula "requires that
the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an injury." U.S. Steel Mining Co. 6 FMSHRC 1834, 1836 (August
1984) (emphasis in original) .
The Secretary has the burden of proof. On evaluating the
evidence presented by each party, I find the preponderance of the
evidence does not establish the third element of the Mathies for -

353

mula. Accordingly, I delete the S&S designation .
as modified is affirmed.

The citation

The operator was negligent in allowing the combustible
material to accumulate on the hydraulic pump. On consideration
of this and all other factors set forth in § llO(i) of the Act
including Respondent's prompt good faith abatement of the violation, I find a penalty of $100 is appropriate.
Cit ation No. 3243027
§

This citation alleges 104(a) S&S violation of 30 C.F.R.
77.1600(c) which provides as follows:
(c) Where side or overhead clearances on
any haulage road or at any loading or dumping
location at the mine are hazardous to mine
workers, such areas shall be conspicuously
marked and warning devices shall be installed
when necessary to insure the safety of the
workers.

The subject haul road is used to haul material from the
gravel pit and to haul gravel from the storage area to other
parts of the mine where gravel was used to repair roads and as a
cover to help prevent slippage of vehicles on ice. Scrapers used
the road in question to haul gravel to various locations. All
mine equipment on occasion used the road, including garbage
trucks and gravel trucks . The vehicles using the road varied in
width from 11 to approximately 24 feet.
It is undisputed the
road in question was 35 feet wide, was 11 C" shaped and had a
gradual grade.
The inspector was concerned that since there were no warning
signs, two vehicles entering the 11 c 11 shaped curve in the road
from opposite directions might collide upon entering the curve at
the same time. There could be inadequate side clearance depending, of course, on the width of the vehicles involved. Under
these facts I find that a caution sign was needed to insure the
safety of the workers.
It was Respondent's position that except for haul trucks and
coal shovels, all the equipment c6uld safely pass in opposite
directions. Respondent presented evidence that coal shovels are
such large machines that during the few instances they use the
road, Respondent excludes all other equipment. Evidence was also
presented that when haul trucks are using the road, Respondent
restricted travel to a unilateral traffic pattern.
Everything considered, I agree with Respondent's assertion
that the likelihood of an accident is too remote to support a
"significant and substantial finding" . The preponderance of the

354

evidence does not establish the third factor of the Mathies
formula.
The citation is modified to delete the S&S . designation
and as so modified is affirmed.
The violation was timely abated by posting a caution sign.
On consideration of the statutory criteria in § llO(i) of the
Act, I find a civil penalty of $100 is appropriate for this
violation.
Citation No. 3243026

This citation charges Respondent with the violation of 30
C.F.R . § 77 . 400 subsection (a) which provides as follows:
(a) Gears; sprockets; chains; drive, head,
tail, and takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and
similar exposed moving machine parts which
may be contacted by persons, and which may
cause injury to persons shall be guarded.
It is well settled that in order to establish a prima facie
case of a violation of§ 77.400(a), Secretary must prove: (1)
that cited machine part is one specifically listed in the standard or is "similar" to those listed; (2) that the part was not
guarded; and (3) that unguarded part "may be contacted by persons" and "may cause injury to persons."
With respect to item (1) that the cited machine part must be
one specifically listed in the standard or similar to those spe~
cif ically listed, I find on review and evaluation of the evidence
presented in this case that the preponderance of the credible
probative evidence presented fails to establish that the return
belt rollers (idlers) in question are "similar" to the machine
parts that are specifically listed in subsection (a) of the
safety standard.
I credit the testimony of Mr. Dovey, Respondent's safety and
training manager, who testified that the bottom rollers in question are not similar to head pulleys, takeup pulleys or tail
pulleys because the bottom rollers in question are not driving
mechanisms for the belt line. Mr.' Dovey testified that all the
bottom rollers in question do is let the belt roll across the top
of these rollers. They do not apply power or pressure to the
·
belt line.
For this reason I believe they are significantly
dissimilar from the machine parts listed in the safety standard.
The drawing entered into evidence by Petitioner as Exhibit
G-3 depicts a "bend pulley" which unlike a bottom roller, is
designed to "apply pressure to the belt line" and "to keep tension on [the] belt." (Tr. 164). Although bend pulleys are not
expressly listed in 30 C.F.R. § 77.400(a) they are similar to
355

take-up" pulleys which are listed since they both apply pressure
It is undisputed that both the take-up
to the belt line.
pulleys
in this case were well guarded.
(Ex.
pulleys, the bend
4-A).
11

Subsection (c) of 30 C.F.R. § 77.400 specifically spells out
the requirements for guarding components of conveyor systems.
That subsection specifically covers guards at conveyor-drive,
conveyor head, and conveyor tail-pulley and makes no reference or
mention of "similar" machine parts of the conveyor system.
In
the present case it is undisputed that the tail pulley, head
pulley, takeup pulley and the bend pulleys of the conveyor system
in question were all properly and adequately guarded.
.,

In Rochester & Pittsburgh Coal Company 10 FMSHRC 1576
(November 1988) the inspector issued a citation alleging a
violation of an identically worded standard, 30 C.F.R.
§ 7 5 .1722(a).
The inspector issued the citation because of his
concern the miner might be caught between an unguarded bottom
roller and the moving conveyor belt. Judge Melick vacated the
citation stating the moving belt was not a "similar" exposed
moving machine part of the safety standard. The Secretary
appealed the decision on other grounds. The Commission in its
decision on reconsideration noted and left undisturbed the
Administrative Law Judge's finding and decision vacating the
citation because the machine part was not similar. Rochester &
Pittsburgh Coal Company 11 FMSHRC 2159 at 2161 (November 1989).
In Secretarv of Labor v. Mathies Coal Co., 5 FMSHRC 300
(1983), the Com.mission observed that this regulatory standard
applies to the specific machine parts listed and to other exposed
moving machine parts similar to those listed. The Commission
quoted the definition of the word "similar" as "l) having characteristics in common; very much alike •.. 2) alike in substance
or essentials . . . . "citing Webster's Third New International
Dictionary at p. 2120 (unabridged 1971) .
Although the return rollers in question have the common
characteristic of motion it is not "very much alike", or "alike
in substance or essentials" nor is it similar in function.
In the Mathies supra the Commlssion reversed the judge and
at page 301 stated:
On review, the Secretary argues that the
purpose of section 75.1722(a) 1 is to "protect miners from injury caused by moving
machinery," and that the elevator cage is
The
identical.

wording

of

Section

75.1722(a)

356

and

77.400(a)

are

subject to the standard "because it is an
'exposed, moving machine part which may be
contacted by persons and which may cause
injury."' Sec. br . . at 5. He (Solicitor)
like the judge, interprets the standard to
cover not only the listed machine parts but
all machine parts that are exposed and mov~
ing. Sec. br. at 5-6. We disagree. We find
that such an interpretation ignores the
grammar of the standard and makes the list of
items covered surplusage.
A standard must give an operator fair warning of the conduct
it prohibits or requires and should provide "a reasonably clear
standard of culpability to circumscribe the discretion of the
enforcing authority and its agents." The Cornmiss.i on in Mathies
supra quoted the observation of the Fifth Circuit in a case
arising under the Occupational Safety and Health Act of 1970, 29
u.s.c. § 651 et ~ (1976) as follows:
The [-Secretary] contend[s] that the regulalation should be liberally construed to give
broad coverage because of the intent of Congress to provide safe and healthful working
conditions for employees. An employer, however, is entitled to fair notice in dealing
with his government. Like other statutes and
regulations which allow monetary penalties
against those who violate them, an occupational safety and health standard must give
an employer fair warning of the conduct it
prohibits or requires, and it must provide a
reasonably clear standard of culpability to
circumscribe the discretion of the enforcing
authority and its agents . . . .
If a violation of a regulation subjects
private parties to criminal or civil sanctions, a regulation cannot be construed to
mean what an agency intended but did not
adequately express •••. We recognize that
OSHA was enacted by Congress for the purpose
stated by [the Secretary]. Nonetheless, the
Secretary as enforcer of the Act has the
responsibility to state with ascertainable
certainty what is meant by the standards he
has promulgated.
Diamond Roofing Co. v. OSHRC & Secretary of
Labor, 528 F.2d 645, 649 (1976)(citations
omitted). Accord, Phelps Dodge Corp. v.

357

FMSHRC & Secretary of Labor, 681 F2d 1189,
1193 (9th Cir. 1982).
The FMSHRC then stated:
As we have previously acknowledged, "Many
standards must be 'simple and brief in order
to be broadly adaptable to myriad circumstances'"· Alabama By-Products Corp., 4
FMSHRC 2128, 2130 (December 1982), quoting
Kerr-McGee Corp. 3 FMSHRC 2496, 2497 (November 1981). However, even a broad standard
cannot be applied in a manner that fails to
inform a reasonably prudent person that the
condition or conduct at issue was prohibited
by the standard. Alabama By-Products Corp.,
supra; U.S. Steel Corp., FMSHRC Docket No.
KENT 81-136 (January 27, 1983).
I find that the standard in question under facts in this
case does not give the operator fair warning that guarding of the
bottom rollers in question is required and for this reason the
citation is vacated.
ORDER

Citation Nos. 3243029 and 3243027 are AFFIRMED as modified,
Citation No. 3243026 is VACATED. Pittsburg & Midway Coal Mining
Company shall pay a civil penalty of $200 for the violations
alleged in Citation Nos. 3243029 and 3243027 within 30 days of
the date of this decision.
.

/.·

I /
i :

'

\

·C

(Lu~ d:~ ·' k
Au

;.:

.... F -

st F. Cetti .,,
Ad~'nistrative Law Judge

Distribution:
Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, suite 1600, Denver, co 80202-5716
'
(Certified Mail)
Ray D. Gardner, Esq . , John W. Paul, Esq . , PITTSBURG & MIDWAY COAL
MINING CO., 6400 South Fiddler's Green Circle, Englewood, CO
80111-4991
(Certified Mail)

sh
358

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

MAR 1 4 1995'

RICHARD E. GAWTHROP,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. WEVA 94-286-D
MSHA Case No. MORG CD 94-02

TRIPLETT BROTHERS EXCAVATING,
Respondent

Grant Town Power Plant

DECISION
Appearances:

Richard E. Gawthrop, ~ .s..e_, Rivesville,
West Virginia, and, Thomas G. Dyer, Esq.,
Clarksburg, West Virginia, on the Proposed
Order for Relief, for the Complainant;
Charles E. Anderson, Esq., Fairmont,
West Virginia, for the Respondent .

Before:

Judge Feldman

This case is before me based upon a discrimination
complaint filed on June 7, 1994, pursuant to section 105(c) (3) of
the Federal Mine Safety and Health Act of 1977 (the Act),
30 U.S.C. § 815(c) (3), by the complainant, Richard E. Gawthrop,
against the respondent, Triplett Brothers Excavating, Inc.
This matter was heard on October 13, 1994, in Morgantown,
West Virginia . On January 23, 1~95, a decision on liability was
released wherein it was determined that Gawthrop's January 11,
1994, discharge was discriminatorily motivated in violation of
section 105(c) of the Act. 17 FMSHRC 64.
With regard to damages, the parties were ordered to confer
for the purpose of stipulating the appropriate incidental damages
and back pay, plus interest, less deductions for unemployment and
earnings from other employment . The parties were also ordered to

359

stipulate to economic reinstatement if the complainant declined
reemployment by the respondent. The parties were ordered to file
a Proposed Order for Relief if they were able to stipulate to the
appropriate relief in this matter. 17 FMSHRC at 76-77.

A joint Proposed Order for Relief was filed on March 6,
1995. The terms of the parties' proposal are that Gawthrop will
accept $10,000 as economic reinstatement in lieu of actual
reinstatement. The parties stipulated that Gawthrop's back pay
plus interest, compounded from his January 11, 1994, discharge to
the present time, less deductions for unemployment and other
earnings, amounts to $9,086.
Finally, the parties stipulated to
incidental damages of $2,914 related to additional transportation
costs associated with his reemployment as well as other economic
losses.
Consequently, the parties proposed a total of $22,000 as
the appropriate relief in this case.
Payment of $22,000 was made
to Gawthrop by the respondent on February 27, 1995. ·
ORDER

In view of the parties' stipulations, the Proposed Order for
Relief IS GRANTED establishing the $22,000 payment to Gawthrop as
the appropriate relief under section lOS(c) of the Act. IT IS
ORDERED that all records pertaining to Gawthrop's January 11,
1994, discharge be expunged. This decision and the January 23,
1995, decision on liability constitute the final disposition in
this proceeding.

·-~

Jerold Feldman
Administrative Law Judge

360

Distribution:
Mr. Richard E. Gawthrop, Route 1, Box 253-A, Rivesville, WV 26588
(Certified Mail)
Thomas G . Dyer, Esq . , P.O. Box 1716, Clarksburg, WV 26301
(Certified Mail )
Charles E. Anderson, Esq., 200 Adams Street, Fairmont, WV 26554
(Certified Mai l )
/rb

361

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

MAR 1 5 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No . LAKE 93-241
A.C. No . 12-02033-03593

I

Buck Creek Mine
BUCK CREEK COAL COMPANY, INC.,
Respondent
DECI SION ON REMAND

Before:

Judge Hodgdon

On January 20, 1995, the Commission issued a decision in
this case reversing my conclusion that Buck Creek's violation
of Section 75.360(a), 30 C.F.R. § 75.360(a), was not "significant
and substantial." Buck Creek Coal Company, Inc., 17 FMSHRC 8
(January 1995) . The case was remanded to me " for reassessment
of a civil penalty consistent with [the Commission ' s] opinion. "
Id . at 17.
In view of the Commission's determination that thi s
violation was "significant and substantial," I find that it
involved a high degree of gravity . . Taking into consideration the
other criteria set out in Section l l O(i) of the Federal Mine
Safety and Health Act of 1 977 , 30 U. S . C. § 820(i) , which are
d iscussed in my pri or decision, Buck Cr eek Coal Company, Inc . ,
1 6 FMSHRC 1 33, 140 (1 994) , along with the increase in g ravity,
I conclude t hat a p enalty of $5 , 500.00 is appr opriate for t his
viol ation.

362

..
..

....~

·.:

ORDER
Accordingly, Buck Creek Coal Company, Inc. is ORDERED to pay
a civil penalty of $5,500.00 for its violation of the mandatory
safety standards within 30 days of the date of this decision. On
receipt of payment, this proceeding is DISMISSED.

tf.~~

Administrative Law Judge

Distribution:
Lisa A. Gray, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 S. Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail)
Patrick A. Shoulders, Esq., Ziemer, Stayman, Weitzel & Shoulders,
P.O. Box 916, Evansville, IN 47706 (Certified Mail)
/lbk

363

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

MAR 1 6 1995
·· .:

SECRETARY OF LABOR,
MINE AND -SAFETY AND ·HEALTH
ADM I NISTRATION (MSHA) ,
Pet i tioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 94 - 521
A.C. No. 15-16454-03552

v.

Henderson Mine No. 1

GREEN COAL COMPANY, INC.,
Respondent

Docket No. KENT 94 - 1249
A.C. No . 15-01982-03537
K-9 Mine

DECISION
Appearances :

Arthur J . Parks, Litigation Representative, Mine
Safety and Health Administration, Madisonville,
Kentucky, in Docket No. KENT 94-521,
Donna E. Sonner, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee, in
Docket No. KENT 94-1249, for the Petitioner;
James E . Curtis, Safety Director, Green Coal
Company, Owensboro, Kentucky , for the Respondent.

Before:

Judge Feldman

·.

These proceedings concern petitions for assessment of civil
penalties filed by the Secretary of Labor against the respondent
corporation pursuant to section . 110(a) of the Federal Mine Safety
and Health Act of 1977 (the Act), 30 U.S . C. § 820(a) . The
petitions in these single citation docket cases sought to impose
a total civil penalty of $559 for the alleged violations of the
cited mandatory safety standards.
These matters were called for hearing on February 22, 1995,
in Owensboro, Kentucky . At the commencement of the hearing, the
parties informed me that they had reached a s~ttlement.
364

Litigation Representative Arthur J. Parks presented the
settlement terms for the Secretary in Docket No. KENT 94-521.
This proceeding concerns a proposed civil penalty of $431 for
Citation No. 4056530 that cited an alleged significant and
substantial violation of ·the mandatory safety standard in section
77.512, 30 C.F.R. § 77.512. This standard requires cover plates
on electric equipment to be kept in place at all times. The
citation was issued because of an open door on a 60-amp circuit
breaker box at the de-watering pump motor starter cabinet. The
parties agreed to $125 as a reduced penalty in satisfaction of
this citation.
Donna E. Sonner presented the settlement terms in Docket No.
KENT 94-1249. This docket proceeding involves Citation
No. 4067042 issued for an alleged violation of section 72.620, 30
C.F.R. § 72.620, which requires the use of effective dust control
measures when drilling at surface mines. The respondent was
cited for failu~e to control coal dust because of malfunctioning
flaps on the highwall drill. The parties agreed to a reduction
in penalty from $128 to $50.
The reduction in penalty in these proceedings is based upon
the respondent's size and financial difficulties.
In this
regard, the Secretary stipulated that the respondent be a medium
size operator. The respondent's Safety Director, James E.
Curtis, testified that the company ·has recently ceased operation
at one mine site resulting in the layoff of 80 people, and, that
employment has been reduced from 148 to 120 at its other mine
site.
While a reduction in penalty in these proceedings from $559
to $175 will not materially impact on the respondent's ability to
pay the penalty or affect its ability to remain in business, I am
not inclined to interfere with the parties' agreement.
Consequently, I conclude that the proffered agreement should be
approved in that it is not inconsistent with the pertinent
settlement criteria in Section llO(i) of the Act, 30 U.S.C.
§ 820(i).
ORDER

In view of the above, the parties' motion to approve
settlement IS GRANTED. Accordingly, IT IS ORDERED that the

365

.·:·

respondent pay a total civil penalty of $175 in satisfaction of
the two citations in i s sue in these matters. Payment is to be
made to the Mine Safety and Health Administration within 30 days
o f the d ate of t his decision. Upon time l y receipt of the $175
payment, Docket Nos. KENT 94-521 and KENT 94-1249 A.RE DISMISSED.

---Jerold Feldman
Administrative Law Judge

Distribution :
Arthur J. Parks, Litigation Representative, Mine Safety and
Health Administration, 100 YMCA Drive, Madisonville, KY 42431
{Certified Mail)
Donna E. Sonner, Esq., Office of the Solicitor, U. S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville,
TN 37215 (Certified Mail)
James E. Curtis, Safety Director, Green Coal Company,
P.O . Box 841, Owensboro, KY 40962 {Certified Mail)
/rb

366

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

MAR 1 7 1995

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 94 - 1001
A.C. No. 15-13920-03846

V.

COSTAIN COAL, INC.,
Respondent

Docket No. KENT 94-1002
A.C. No. 15-13920 - 03849
Docket No. KENT 94 - 1056
A.C. No. 15 - 13920 - 03848

Mine:

Whea t croft

DECISION
Appearances:

Mary Sue Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
Carl B. Boyd, Jr., Esq., Henderson, Kentucky,
for Respondent.

Before:

Judge Amchan

At the outset of the hearing on January 4, 1995, the
outstanding civil penalty petitions in Docket Nos.
KENT 94-1001 and KENT 94-1056 were settled in their entirety.
In Docket No. KENT 94-1001, Respondent agreed to pay the
$50 penalties proposed for Citation Nos. 4067084 and 3862290.
A settlement of two other items in this docket was previously
approved by the undersigned.
In Docket No. KENT 94-1056, Respondent agreed to pay the
$288 penalty proposed for Citation No. 3859202. With regard
to the other item in the docket, Citation No. 4067314, the
parties agreed to modify the citation to a non-significant
367

and substantial violation and that Respondent would pay a
$50 penalty, rather than the $235 originally proposed1 •
The settlement of one of the contested penalties in
Docket No. KENT 94 - 1002 has been previously approved by
the undersigned. Remaining in the petition is Citation
No. 3859192, with a proposed civil penalty of $4,600, which
was originally issued as a section 104(d) (2) order on
February 3, 1994. This citation was modified to allege a
non-significant and substantial violation. The Secretary
has withdrawn its allegation that the violation was due to
Respondent's "unwarrantable failure" to comply with the Act
(Tr. 34). The issues before the undersigned are whether a
violation occurred, and if so, the degree of Respondent's
negligence and the civil penalty to be assessed.
Citation No. 3859192: Coal and Coal Dust
Accumulations in the longwall belt entry
In early January, 1994, MSHA representative Donald Milburn
began inspecting the 11-C conveyor belt at Respondent's
Wheatcroft Mine in western Kentucky (Tr. 18-19). This belt
transports as much as 6,000 tons of coal per shift from
Wheatcroft's longwall mining unit and operates 24 hours a day
(Tr. 20).
In reviewing Respondent's examination records for
the period of December 28, 1993 through January 11, 1994,
Milburn noticed that Respondent was having a recurring problem
with coal spillage on the belt, particularly between crosscuts
2 - 4, where the entry went downhill and then uphill following
the coal seam (this area is referred to as 11 the swag") (Tr. 19) .
On January 11, Inspector Milburn found isolated piles of
coal and coal dust, marginally adequate rock dusting_ and numerous
broken rollers on the conveyor in the 11-C belt entry (Tr. 2122). He discussed these conditions with Respondent ' s supervisory
personnel and told them that they needed to pay closer attent ion
to the recurring coal spillage problem (Tr. 23-24).

1

The terms of the settlement of Docket No. KENT 94 - 1056 are
not accurately reflected in the transcript (Tr. 6) . The terms
of the settlemen t herein are taken from the undersigned' s trial
notes and have been confirmed with counsel.

36 8

During January, 1994, Milburn also cited Respondent for a
violation of 30 C.F.R. § 75.1725 on the 11-C belt entry. This
citation was issued because he found three broken top rollers
and 30 broken bottom rollers on the conveyor belt {Tr. 25}.
Some of these broken rollers were turning in isolated piles of
coal dust. 2
MSHA Inspector Troy Davis issued Respondent another citation
for coal and coal dust accumulations on the 11-C beltline on
January 31, 1994 {Exh. R-3}. He found accumulations of between
7 to 15 inches between crosscuts 2 and 4, the area of the swag,
or hill, in the beltline {Tr. 82).
Milburn returned to the 11-C beltline entry on February 2,
1994, to determine whether Respondent had corrected the
conditions cited by Davis (Tr. 27-28). He determined that the
accumulations had been cleaned up on January 31 and February 1,
but he found ' that . coal spillage of up to 15 'inches had reoccurred
in the same area (Tr. 28-29, Exh. R-3, page 2, Exh. R-4).
Milburn therefore issued Respondent another citation.
On February 3, 1994, Milburn issued Order No. 3859192,
which is at issue in this proceeding. The order, now amended
to a section 104(a) citation, alleges a violation of 30 C.F.R.
§ 75.400 in that coal dust and loose coal up to four inches in
depth had accumulated on previously rockdusted areas between
crosscut 8 and crosscut 19 in the 11-C belt entry (Exh. P-1) 3 •
The area covered by Citation No .. 3859192 began about
360 feet inby the swag area at crosscut 4 and extended
approximately 1,000 feet in the direction of the longwall

2 Milburn's

testimony as to when he issued this citation is
somewhat confusing (Tr. 23-26). It . is unclear whether it was
issued on January 13, or January 31.
I find that it was issued
sometime in the month of January.
3 The

standard requires that loose coal, coal dust, including
float coal dust deposited on rock-dusted surfaces, and other
combustible materials be cleaned up and that they not be
permitted to accumulate in active workings, or on electrical
equipment, therein.

369

face {Tr . 18, 51-52). At hearing, Milburn described the coal
and coal dust spillage between crosscuts 8 and 19 as being
between O to 4 inches in depth (Tr. 52-53).
Inspector Milburn concedes that some spillage is normal
on a high volume conveyor belt such as belt 11-C (Tr. 60). He
was equivocal as to whether the spillage he found on February 3
was greater than what one would expect to find on a longwall
belt {Tr. 61-63).
The Secretary contends that Respondent was highly negligent
because of the constant recurrences of coal spillage on the
11-C beltline (Tr. 58) .
Inspector Milburn also noted that on
February 3, 1994, only one miner was assigned to shoveling coal
spillage on this belt and opined that this is insufficient
(Tr. 67).
Respondent's contentions
Respondent denies that any violation of section 75.400
on February 3, 1994, and argues that, even if it did,
a characterization of high negligence is unwarranted . First
of all, I find, as stated by miner Arden Gentry, that the
accumulations found by Inspector Milburn were not present at
the end of the day shift on February 2, 1994, the day prior
to the instant alleged violation (Tr. 96-97).
exi~ted

Due to the imprecision of Milburn's testimony about the
amount of coal dust present in the cited area, I credit the
testimony of Respondent's maintenance foreman, Daniel Menser4 ,
that a light film of rock dust and coal dust was on the floor
of the 11-C belt entry between crosscuts 8 and 19 on the morning
of February 3, 1994, except for the unspecified number of
locations at which Milburn measured four inches of coal dust
(Tr. 107-114).

4 Menser's

last name is incorrectly spelled "Mense" in the

transcript.

370

The Secretary failed to establish a violation of §75 . 400
In Old Ben Coal Company, 1 FMSHRC 1954 (December 1979),
the Commission held that the existence of any accumulation
0£ combustible materials establishes a violation of 30 C.F.R.
§ 75.400.
However, whether coal spillage constitutes an accumulation under the standard depends on the size and amount of the
spillage. Indeed, the Commission noted that " the Secretary does
not contend that the merest deposit of combustible material
constitutes a violation of the standard . " 1 FMSHRC 1954, at 1958
and n. 8 .
Subsequently, the Commission has held that an "accumulation"
exists where the quantity of combustible materials is such that,
in the judgment of the authorized representative of the
Secretary, it likely could cause or propagate a fire or explosion
if an ignition source is present. Old Ben Coal Co., 2 FMSHRC
2806, 2808 (October 1980). The inspector's judgment in this
regard is reviewed to determine whether a reasonably prudent
person familiar with the industry and purposes of the regulation,
would have recognized the cited conditions as hazardous.
Utah Power and Light Co., 12 FMSHRC 965, 968 (May 1990).
I find that the Secretary's evidence is insufficient to
establish that the spillage between crosscuts 8 and 19 on
February 3, 19 94, was an ".a ccumulation" within the meaning of
the standard.
In this regard, the undersigned asked Inspector
Milburn whether the spillage he observed on February 3 was
unusual compared to what he would normally expect to find on a
conveyor belt of that size and volume. He answered as follows:
I don't know how I can really answer that, Your Honor,
because he [Respondent's counsel] pointed out a belt
record book a few minutes ago that some days the~e
was no spillage on the belt, so to say it is a common
occurrence they have s .o me spillage every day, I couldn 1 t
honestly make that statement. He has already pointed
out some of the record books that there was no spillage
on this belt, so I can't really say that it was a nonoccurrence to have a spillage on this belt every day,
so it is out of the ordinary.
It is abnormal. (Tr. 61-62)

371

·-·:.

When asked again by Respondent's counsel whether the
spillage he saw was more than normal, Milburn responded, "I
would characterize i t as that" (Tr. 62).
I interpret the
inspector's responses as indicating that he regards any amount
of coal spillage to violate § 75.400.
I conclude, on the basis
of the Old Ben decisions cited above, that· he is incorrect to
do so.
The question remains, regardless of what I deem to be
Inspector Milburn's erroneous interpretation of the law,
whether the record establishes that the spillage cited was
of sufficient size and amount to constitute an accumulation
under the standard. The inspector did not describe the size
and amount of spillage he saw on February 3, other than to
state that at some places he measured a depth of 4 inches
(Tr. 16-18, 52-55). There is nothing in the record that
indicates the extent of four-inch piles of spillage or the
duration of their existence.
Inspector Milburn's testimony indicates that he issued
the instant citation largely because he had found coal spillage
on a recurring basis on the 11-C belt, rather than because the
size .and amount of coal spillage on February 3 was sufficient
t~ constitute an "accumulation" (Tr. 33-34).
On the other hand, maintenance foreman Menser, described
the cited coal spillage as a little film of dust (Tr. 113-14).
The record, as a whole, is insufficient to establish that a
reasonably prudent person would have regarded the cited coal
spillage as likely to propagate a fire or explosion.
I there fore find that the Secretary has not established that the cited
spillage constituted an accumulation of combustible materials
within the meaning of the standard and I vacate the citation
and proposed penalty.
Eyep Assuming that the record establishes a violation.
the Secretary has not established high negligence on
the part of Respondent
Given the possibility that this decision may be reviewed
and that the Commission could take a different view of whether
a violation was established, I deem it appropriate to address
the issue of Respondent's negligence to avoid an unnecessary
372

delay in the ultimate disposition of this case. Respondent
was experiencing recurr~ng coal spillage on the 11~c belt in
the month prior to the instant inspection. However, most of
these spillages occurred in the swag area between crosscut 2
and 4, not in the area covered by the instant citation.
Respondent's evidence indicates that the recurring coal
spillage problems between crosscuts 2 and 4 were caused by water
flowing backwards on the belt in the swag when the amount of
coal mined at the longwall was less than its maximum capacity
(Tr. 117-18).
Nothing in this record indicates any want of
care on the part of Respondent in preventing coal spillage on
the 11-C belt. Although Inspector Milburn suggested that
Respondent should have had additional personnel shoveling
coal spillage on the 11-C belt, there is no evidence that
indicates that it was highly negligent in not doing so.
Assuming that this record does establish a violation of
75.400 by virtue of the fact that Inspector Milburn measured
coal spillage of up to four inches at some points along the
11-C belt, I would find that the violation was due to the
ordinary negligence of Respondent.
I would assess a $100
penalty pursuant to the criteria set forth in section llO(i)
of the Act. The violation was modified to non-significant
and substantial, thus its gravity could not have been high.
There is no dispute that Respondent quickly abated the citation
(Tr. 32, 69-70) . Although Respondent had received several
section 75.400 citations on the 11-C belt just prior to the
instant citation, the lack of convincing evidence as to how
Respondent could have prevented these spillages persuades me
that a higher penalty is not warranted for Costain's prior
history.
§

ORDER

I conclude that the terms of the settlements in Docket
Nos. KENT 94-1001 and KENT 94-1056 are consistent with the
criteria in section llO(i) of the Act. Wherefore, the motion
for approval of the settlement terms is GRANTED. Respondent
shall pay the agreed upon amounts within 30 days of this
decision.

373

Citation No. 3859192 in Docket No. KENT 94 - 1002 and the
p enalty p r oposed therefor are hereby VACATED.

Administrative Law Judge
Distribution:
Mary Sue Taylor, Esq . , Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Rd.,
Suite B-201, Nashville, TN 37215 - 2862 (Certified Mail)
Carl B. Boyd, Jr . , Esq . , 120 N. Ingram St., Suite A,
Henderson, KY 42420 (Certified Mail)

/lh

374

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

MAR 2 0 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 94-74-M
A.C. No. 04-04420-05504
Docket No. WEST 94-75-M
A.C. No. 04-04420-05505

JOHN CULLEN ROCK CRUSHING
AND GRAVEL,
Respondent

Grant Pit

DECISION
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
John Cullen, owner, John Cullen Rock crushing &
Gravel, Pueblo, Colorado, for Respondent.

Before:

Judge Manning

These cases are before me on petitions for assessment of
civil penalties filed by the Secretary of Labor, acting through
the Mine Safety and Health Administration ("MSHA"), against John
Cullen Rock Crushing and Gravel ("Cullen"), pursuant t.o sections
105 and 110 of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. §§ 815 and 820. The petitions allege 27 violations of the
Secretary's safety standards. For the reasons ·set forth below, I
vacate three citations, modify other citations, and assess penalties in the amount of $912.00.
A hearing was held in these cases on January 19 and 20,
1995, in Pueblo, Colorado. The parties presented testimony and
documentary evidence, but waived post-hearing briefs.

I.

DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

At all pertinent times the Grant Pit, owned and operated by
Cullen, was a small sand and gravel pit located in Pueblo County,
Colorado. It employed about three to five miners. On July 21,
1992, MSHA Inspector Lyle Marti 1 inspected the mine and found a
number of violations of the Secretary's safety standards. When
Inspector Marti returned to the mine the following day to contin-

Inspector Marti's name is incorrectly spelled in the
transcript.
37~

ue the inspection, Mr. John Cullen confronted him in a manner
that he considered to be threatening and he discontinued the
inspection . 2 Three other MSHA inspectors continued the inspection on July 28, 1992.
Cullen maintains that the mine was no~ operating on the
dates of the inspection. I find that the evidence establishes
that the mine was in operation in July 1992 for purposes of the
Mine Act. While it appears that Cullen was having difficulty
keeping its cone crusher running, Cullen was operating the mining
equipment and processing material on July 21, 1992. I base this
finding on the testimony o f Inspector Marti and photographs that
show the pit in operation .
(Ex . G-13) . Cullen may not have been
operating at full production in July but, at a minimum, it was
running the equipment and processing material to troubleshoot the
problems it was having with the crusher. In addition, it is undisputed that mi ners were working at the mine on July 28 in an
attempt to repair the cone crusher. Although the portable generator providing power to the pit had not been started on that
date, miners were present doing repair work on the mining equipment .
Cullen also maintains that MSHA did not have jurisdiction
over that part of its operation which the parties referred to as
the experimental silica-free plant (''silica plant"). Within the
area of the Grant Pit, Cullen had set up a plant to reclaim mill
scale to make sandblasting grit .
(Tr. 10, 76, 201). Cullen
brought in slag material, screened and processed it, and bagged
the material at the silica plant. Id. The silica plant was
located in the pit adjacent to the crushing and screen1ng plant
for the sand and gravel mine. The equipment used at the silica
plant was similar to that used at the sand and gravel plant.
The same employees operated both plants .
I find that MSHA had jurisdiction over the silica plant
because it was located at the mine 3 and was operated by the same
2

A citation issued by Inspector Marti alleging a violation
of section 103(a) of the Mine Act, 30 u. s.c . § 813(a), for
Cullen's refusal to allow the inspection to continue was affirmed
by Administrative Law Judge August Cetti.
John Cullen Rock
Crushing and Gravel , 16 FMSHRC 909 (April 1994).
3

In relevant part, section J{h) (1) of the Mine Act defines
a mine to include "an area of land from which minerals are
extracted ... , and . .. lands, . .. structures, facilities, equipment. machines, tools, or other property ... , used in, or to be
used in, the work of milling of such minerals, or the work of
preparing .. . minerals . ... " 30 u.s.c . § 802{h) (1). The legislative history of the Mine Act indicates that this definition is
to be interpreted expansively. S . Rep·. No. 181, 95th Cong., 1st
376

employees using the same kind of equipment. As Mr. Cullen put
it, "We are a one-horse operation."
(Tr. 126). Mining equipment, such as conveyors, screening devices, and elec·tric motors,
were used at both facilities. The testimony indicated that parts
and supplies used at one facility could and would have been used
at the other facility. The miners that operated the crushing and
screening plant also operated the silica plant and were exposed
to the hazards presented by that plant. Given the integrated
nature of the operation, I find that the MSHA had jurisdiction
over all of the facilities at the Grant Pit.
See, W.J. Bokus
Industries, Inc., 16 FMSHRC 704 (April 1994} .
Section llO(i) of the Mine Act, 30 u.s.c. § 820(i), sets out
six criteria to be considered in determining the appropr iate
civil penalty. I find that Cullen was issued eight citations in
the 24 months preceding the inspection in this case.
(Ex. G-1).
I also find that Cullen was a very small operator, it employed
between three and five miners. Cullen no longer operates the
· Grant Pit and Cullen has sold most of the mining and crushing
equipment. Cullen contends that MSHA is, in large measure,
responsible for . running it out of the sand and gravel business.
Nevertheless, I ~ind that the civil penalties assessed in this
decision would not have affected its ability to continue in
business. The conditions cited in the citations were not corrected by Cullen. Instead, the citations were terminated by MSHA
because the Grant Pit is no longer operating and the mining
equipment has been removed from the site. The Secretary has not
alleged that Cullen failed to timely abate the citations.
A.

Electrical Citations

1.
Citation No. 3470641 alleges that the continuity of the
equipment grounding conductors and resistance of the grounding
rod had not been tested at the silica plant and the results
recorded, in violation of 30 C.F.R. § 56.12028.
Power at the
mine is supplied by a generator mounted on a trailer. The safety
standard provides, in part, that continuity and resistance of
grounding systems shall be tested at the time of installation and
annually thereafter. Inspector Jake DeHerrera testified that
this test had never been performed or recorded.
{Tr. 2·05-06) .
Mr. Cullen testified that the silica plant had only been there a
month and that an independent el~ctrician had come to the plant
and checked the grounding system. · (Tr. 293). The inspector
indicated that the electrician, Mike Simpson, was not sure how to
test the continuity and resistance of grounding systems.
(Tr.
281).
(Mr. Simpson was at the mine on the day of Inspector

Sess. 14 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 602
(1978).
377

DeHe~rera's inspection.)
Mr. Cullen stated that he is not an
electrician and that Cullen should not be held responsible for
electrical problems because it relied on an independent electrician and MSHA inspectors to set up the electrical system .

Based on the evidence, I find that the Secretary has established a violation. The Mine Act is a strict liability statute,
and the mine operator is legally responsible for violations that
occur at its mine. I agree with the inspector that the violation
was not significant and substantial ("S&S").
I also find that
Cullen's negligence was low, given that the silica plant had just
been installed. A penalty of $ 2 0.00 is appropriate.
2. Citation No. 347064 2 alleges that three electrical conductors between the cone crusher's starter box and another electrical box were not protected from mechanical damage, in violation of section 56.12004. The safety standard provides, in part,
that "(e]lectrical conductors exposed to mechanical damage shall
be protected." Inspector DeHerrera testified that the conductors
were not protected by an outer jacket and were subject to damage
by vibration or contact with other metal objects .
(Tr. 206-11 ;·
Ex. G-14). He stated that the primary hazard created i s an
electric shock if the insulation was damaged and the metal conductors contacted and energized the electrical boxes or other
metal surfaces. Id . He also stated that if a miner came into
contact with energized metal surfaces he could be fatally injured. Id.
Mr. Cullen testified that the cited electrical
conductors were used for running pumps and that there was no
electricity entering the electrical boxes at the time ,of the
inspection.
(Tr. 294-96). He stated that the electrical boxes
were not being used and that Cullen was not planning on using
them.
(Tr. 296).
Based on this evidence, I find that the Secretary has established a violation. The fact that the electrical boxes were not
being used at the time is not a defense. Assuming continuing
mining operations, the conductors could have been used in the
future and created a hazard. The inspector determined that the
violation was S&S. I find that the evidence does not establish
"a reasonable likelihood that the hazard contributed to will
result in an injury." Mathies Coal Co., 6 FMSHRC 1, 3-4 (January
1984). Given the location and -length of the conductors, I find
that it was unlikely that the insulation would be damaged or that
metal surfaces would become energized as a result.
I further
find that the violation was the result of Cullen's moderate negligence. A penalty of $30.00 is appropriate.
3. Citation No. 3470643 ·alleges that the 200 amp fuses protecting the cable supplying power to the cone crusher were inadequate to protect the circuit, in violation of section 56.12001.
The safety standard provides that "(c]ircuits shall be protected
against excessive overload by fuses or circuit breakers of the
378

correct type or capacity. " Inspeptor DeHerrera testified that
the cable should have been protected by a 70 amp fuse.
(Tr. 21116) .
The inspector testified that the cable may remain energized
and start a fire or energize electrical equipment in the event of
a short circuit.
Id. He further stated that such an event is
reasonably likely and that it is reasonably likely that an injury
would be fatal.
(Tr. 214). Mr. Cullen testified that the magnetic starters in the circuit contained three " heaters" (overcur rent devices) that adequately protected against a short circuit
or a problem with a motor.
(Tr. 296) . The inspector agreed that
the overcurrent devices were present, but stated that they are
designed to protect equipment and are time delayed.
(Tr. 270) .
He said the overcurrent devices would "take quite a bit longer"
to break the circuit than an "instantaneous fuse." Id. Cullen
also defends its electrical system on the basis that former MSHA
Inspector Barr had inspected the installation years earlier and
found i t to be in compliance with MSHA safety standards . With
respect to all of the electrical citations, Mr. Cullen stated
that "if someone had told me ... that (the fuses) needed to be
changed, believ~ me, I ' d change it, because electricity is one
damn dangerous thing . "
(Tr. 289).
Based on this evidence, I find that the Secretary has established a violation. Although the circuit was protected with
overcurrent devices to prevent motors from burning out, the fuses
were inadequate to instantaneously open the circuit in the event
of a short. That is, the fuses were not of the correct capacity.
At the time of the inspection, the inspector determined that the
violation was not S&S.
.
.At the hearing, counsel for the . Secretary
moved to have the citation changed to S&S based on the inspector ' s testimony.
(Tr. 214). Given that the circuit ~as protected by overcurrent devices, which provides some level of protection, I might not ordinarily find this violation to be S&S. As
the inspector noted, however, the electrical system at the Grant
Pit had a .significant other grounding and fusing problems.
(Tr.
215) .
Taken together these created a very hazardous situation.
Accordingly, I credit Inspector DeHerrera's testimony and find
the violation to be s&s. Mr. Cullen's testimony that h e relied
on former Inspector Barr ' s determination that t h e circuit complied with MSHA standards is not very persuasive.
By Mr. Cullen's own account , Mr. Barr has not inspected the mi n e for ten
years and it was unreasonable for Cullen to rely on those previous inspections.
I appreciate that it is difficult for a mine
operator to comply with a safety standard that is subject to
different interpretations by different inspectors.
In this
instance , however, that is not the case. Accordingly, I find
that the violation was caused by Cullen's moderat e negligence.
A penalty of $80.00 is appr opriate.
(

4.
Citation No. 3470644 alleges that the fuses protecting
the cable supplying power to the south belt motor were inadequate
to protect the circuit, in violation of section 56.12001 .
379

Inspector DeHerrera testified that the circuit should have been
protected with 20 amp fuses rather than the two 30 amp and one 45
amp fuses that was present.
{Tr. 216-18). H~ testified that a
fire and shock hazard was present. Id. As with the previous
citation, Cullen maintains that the circuit was adequately protected by overcurrent devices (heaters).
(Tr. 296-98). The
inspector did not deny that heaters were present.
(Tr. 271-72).
Based on this evidence, I find that the Secretary has established a violation, for the reasons set forth with respect to
Citation No. 3470644. The Secretary has not alleged that the
violation was S&S.
I find that the violation was caused by Cullen's moderate negligence. A penalty of $30.00 is appropriate.
5.
Citation No . 3470645 alleges that fuses protecting the
circuits for the feeder motor, under cone motor, unde~ screen
motor, under jaw motor, crossover motor and screen motor were
inadequate, in violation of section 56.12001. Each of these
circuits were protected by 200 amp fuses through starter boxes.
Inspector DeHerrera testified that these circuits should have
been protected by 20 and 30 amp fuses.
(Tr. 218-22). He stated
that the conditions created a fire and shock hazard.
Id. As
before, Cullen maintains that the circuit was adequately protected by heaters.
(Tr. 298-99) .

Based on this evidence, I find that the Secretary has established a violation, for the reasons set forth with respect to
Citation No. 3470644. The Secretary has not alleged that the
violation was S&S.
I find that the violation was caused by Cullen's moderate negligence. A penalty of $30 . 00 is appropriate.
6. Citation No. 3470646 alleges that grounding was inadequate at the crushing and screening plant because the majority of
the circuits were fused at 200 amps and the grounding conductors
were attached to starter boxes, in violation of section 56.12025.
The safety standard provides, in· part, that metal parts enclosing
electrical circuits shall be grounded or provided with equivalent
protection. Inspector DeHerrera testified that the standard was
violated because the grounding conductor was not capable of carrying fault current back to the source, the generator. · {Tr. 22329)
As a consequence, he stated that in the event of a fault,
metal surfaces of "a lot" of equipment could become energized .
(Tr. 223). He further stated that Cullen's outside electrician,
who was present during the inspection, generally agreed with the
electrical problems cited by the inspector.
(Tr. 255). The
inspector determined that this violation was S&S because of the
seriousness of the violation and because it could lead to a
fatality.
{Tr. 226). Mr Cullen testified that he thought the
grounding system was adequate based on what his outside electrician and former Inspector Barr had told him.
{Tr . 299-300).

380

.·

..

:

Based on this evidence, I find that the Secretary has established a violation. The evidence establishes that crushing and
screen plant was not adequately grounded. I also find that the
Secretary has established that the violation was S&S and that
Cullen's negligence was moderate. A penalty of $80.00 is appropriate.
7.
citation No. 3470647 alleges that the conductors supplying power to the crushing and screening plant were laying on the
ground and were not protected against mechanical damage, in violation of section 56.12004. The safety standard provides, in
part, that "(e]lectrical conductors exposed to mechanical damage
shall be protected." Inspector DeHerrera testified that power
conductors were on the ground in a roadway and were not protected
from mechanical damage from vehicles.
(Tr. 229-32; Ex. G-15).
Vehicles were in the area and the inspector observed that the
conductors were damaged. Id. Mr. Cullen testified that these
conductors are usually protected by railroad ties, but that these
ties were being used for another purpose at the time.
(Tr. 300-01).
Based on this evidence, I find that the Secretary has established a violation. The Secretary did not allege that the violation was S&S. I find that the violation was obvious and that
Cullen's negligence was greater than moderate.
A penalty of
$50.00 is appropriate.
8.
Citation No. 3470648 alleges that a hand-held disk
grinder was not equipped with ground protection because the
grounding prong on the plug was missing, in violation ~f section
56.12025.
The safety standard provides that metal enclosures
shall be grounded or provided with equivalent protection.
Inspector DeHerrera testified that the round grounding prong on
the plug was missing and that this condition created shock
hazard.
(Tr. 233-36; Ex. G-16). He stated that miners have been
killed in situations where a short circuit in a small hand tool
energized the metal surfaces.
Id. Mr. Cullen testified that the
disk grinder was plugged into a portable generator and that a
ground fault interrupter ("GFI") was attached to the generator.
{Tr. 301-02; 311-313). The inspector indicated that a GFI would
be equivalent protection.
(Tr. 282,) . A GFI is a device that
breaks a circuit in the event of a fault; plugs in newer home
bathrooms are equipped with such devices.
(Tr. 301).
·...
~

Based on this evidence, I find that the Secretary has established a violation. Although the GFI provided protection at that
location, miners could have used the disk grinder at other locations at the mine where a GFI was not present.
(Tr. 313).
At
the time of the inspection, the inspector determined that the
violation was not S&S. At the hearing, counsel for the Secretary
moved to have the citation changed to S&S based on the inspector's testimony.
(Tr. 236-37). Because the grinder was used in
381

a location that was protected by a GFI, I find that the evidence
does not establish " a reasonable likelihood that the hazard
contributed to will result in an injury ." A penalty of $30.00 is
appropriate.
9. Citation No. 3470649 alleges that the power cable entering the motor housing of the stacker conveyor at the silica plant
was not bushed, in violation of section 56.12008. The safety
standard provides, in part, that "[c]ables shall enter frames of
motors, splice boxes, and electrical compartments on l y through
proper fittings." Inspector DeHerrera testified that the cable
had been "pulled away from the splice box and the protection was
not there for the [inner] conductors ."
(Tr. 238). As a consequence, the insulation·· on the conductors could be damaged by the
rough edges of the opening or fitting of the splice box and a
fault could result, creating a shock hazard.
(Tr . 2 3 7-39).
Mr . Cullen testified that he bought many of the motors used and
that they did not always have a proper fitting on them.
(Tr.
302-03). He stated that he tried to tighten the cables down as
best as he could. Id. He also stated that the silica plant was
a temporary, experimental operation and that MSHA should not have
inspected it because it had nothing to do with the mine.
Id.
Based on this evidence, I find that the secretary has
established a violation. As set forth above, I find that MSHA
did have authority to inspect the silica plant. The Secretary
did not allege that the violation was S&S. I find that the
violation was caused by Cullen 1 s low negligence . A penalty of
$20.00 is appropriate.
10. Citation No. 3470650 alleges that the power ' cable
entering the motor housing of a water pump at the pond near the
silica plant was not bushed, in violation of section 56.12008.
Inspector DeHerrera testified that the hazards associated with
this alleged violation is the same as the previous violation.
(Tr. 239-41; Exs. G-3, G-19). Mr. Cullen testified that he did
not think that the pump was "hooked up " and that the inspector
should not have been at the silica plant.
(Tr . 303 - 0~) .
Based on this evidence, I find that the Secretary has
established a violation. As set forth above, I find that MSHA
did have authority to inspect the silica plant. The Secretary
did not allege that the violation was s&s.
I find that the
violation was caused by Cullen 1 s low negligence. A penalty of
$20 . 00 is appropriate.
11. Citation No . 3470654 alleges that the cover plate for
the secondary screen motor junction box at the silica plant was
not in place, exposing wires and connections , in violation of
section 56.12032. The safety standard provides that inspection
and cover plates on electrical equipment and junction boxes shall
be kept in place at all times except during testing or repair .
382

Inspector DeHerrera testified that because the cover was missing,
moisture could enter the junction box and possibly cause a short
circuit, creating a shock hazard.
(Tr. 250-53; G-18). Mr Cullen
testified that he buys used motors and that often the covers are
missing and he has to fabricate one.
(Tr. 308-09)°. He stated
that he does not think that the motor was ever used in that
condition.
Id.
Based on this evidence, I find that the Secretary has
established a violation. As set forth above, I find that MSHA
did have authority to inspect the silica plant. The Secretary
did not a l lege that the violation was S&S.
I find that the
violation was caused by Cullen's low negligence and was not
serious. A penalty of $10.00 is appropriate.
12. Citation No. 4119016 alleges that the cover plate on
the junction box at the drive motor for a specified conveyor at
the crusher was missing, exposing wires to moisture, in violation
of section 56.12032.
Inspector Gary Grimes testified that the
exposed wires created possible shock and fire hazards.
(Tr. 3437; Ex. G-6). Mr. Cullen testified that power to the drive motor
had been disconnected at the junction box.
(Tr. 101-04). That
is, power had been disconnected by removing the cover plate and
removing the wires supplying power to the junction box.
Id. The
power was disconnected because the miners were moving the equipment to repair the cone crusher. Id.
I credit the testimony of
Mr. Cullen in this regard, which is supported by Exhibit G-6.
It
appears that the wires supplying power to the motor had been
removed. Accordingly, it is appropriate that this citation be
vacated.
13. Citation No. 4121086 alleges that the metal enclosure
for the generator supplying power to the mine was not grounded,
in violation of section 56.12025. The safety standard provides
that all metal enclosing or encasing electrical circuits shall be
grounded or provided with equivalent protection.
Inspector Marti
testified that metal parts of the generator were not grounded to
the earth, presenting an electric shock hazard. 4
(Tr. 141-44,
162-63; Ex. G-11). Mr . Cullen testified that the generator was
properly grounded with a grounding rod, but that Inspector Marti
just did not see it because it was underneath the generator
trailer.
(Tr. 183-85). He also testified that Inspector DeHerrera told him on July 28, 1992, that the generator was grounded,
but the grounding rod was not long enough.
Id.
Inspector
DeHerrera testified that he did not see a grounding rod and told
Mr. Cullen what kind of rod would be required.
(Tr. 204).
4

Ms. Barbara Renowden, an MSHA Conference & Litigation
Representative, examined Inspector Marti for the Secretary and
cross-examined Mr. Cullen with respect to all of the citations
issued by Inspector Marti.
383

Based on this evidence, I find that the Secretary has
established a violation. The Secretary did not allege that the
violation was S&S.
I find that the violation was caused by
Cullen's moderate negligence and was serious. A penalty of
$50.00 is appropriate.
B.

Guarding Citations

;- . ,

1.
Citation No. 3470652 alleges that the drive belts and
pulleys on the boom truck air compressor were not guarded, in
violation of section 56.14107(a) . The safety standard provides
in part, that moving machine parts shall be guarded to protect
persons from contacting pulleys, flywheels and similar moving
parts that can cause injury.
Inspector DeHerrera testified that
the pinch point of pulley and belt was about four feet above the
ground and was at the back of the truck where miners could come
in contact with it .
(Tr. 243-47, 283-84 , 286; Ex . G-17) . He
stated the someone could get their hand caught in the rotating
parts or the pinch points . Id. Mr . Cullen testified that the
compressor is i~ the same condition as when he bought it and that
the moving parts· are protected by location between the compressor
motor and the air tank .
(Tr. 306-07).
He also stated that no
miner has been injured since he as purchased it about six years
before the citation was issued.
Id.
Based on this evidence, I find that the Secretary has established a violation. I do not agree that the location of the pulley provided any sign ificant degree of protection . At t h e time
of the inspection, the inspector determined that the ·v.iolation
was not S&S.
At the hearing, counsel for the Secretary moved to
have the citation changed to S&S based on the inspect~r's testimony.
(Tr. 247).
I agree and find that this violation was
significant and substantial. Specifically, I find that t he
Secretary established a reasonable likelihood that the hazard
contributed to will result in a serious injury. The evidence
establishes that miners worked around the truck, taking and
returning supplies kept there, and were exposed to the hazards
of the moving parts.
I find that the violation was caused by
Cullen's moderate negligence and was serious . A penalty of
$80.00 is appropriate.
2.
Citation No 3470653 alleges that a hand- held disk
grinder was not equipped with a disk guard , in violation of
section 56 . 14107(a). Section 56.14107(a) states:
Moving machine parts shall be
guarded to protect persons from
contacting gears, sprockets,
chains, drive, head, tail, and
tak eup pulleys , flywheels, couplings, shafts, fan blade s, and
384

similar moving parts that can cause
injury.
Inspector DeHerrera testified that the disk grinder did not have
a guard and that a miner could become injured if the disk wheel
disintegrates or comes in contact with the rotating disk.
{Tr.
247-50; Ex. G-16). He stated that Cullen violated that part of
the regulation that covers "similar moving parts.''
(Tr. 249).
Mr. Cullen testified that there was usually a shield for the
grinder but the miners must have taken it off to use the grinder
on the cone crusher.
(Tr. 307-08).
I find that the Secretary has not estab~ished a violation of
the safety standard because the rotating disk on the small handgrinder is not similar to gears, sprockets, chains, pulleys or
the other parts listed in the standard . The rotating disk on the
electric hand tool is used to grind and smooth metal surfaces and
does not have characteristics in common with pulleys, gears,
sprockets, flywheels, fan blades or the other moving parts.
Mathies coal co., 5 FMSHRC 300, 302 (March 1983); Rochester &
Pittsburgh Coal Co., 10 FMSHRC 1576, 1580 (November 1988) (ALJ).
Although the disk moves in a circular manner, it does not share
other characteristics with the moving parts specified in the
standard. While safety standards must often be broadly written
to cover a wide range of circumstances, they cannot be applied in
a manner that fails to inform a reasonably prudent person that
the condition at issue was in violation of the standard.
Ideal
Cement Co., 12 FMSHRC 2409, 2416 (November 1990).
I find that a
reasonably prudent person would not realize that the cited
standard applied to the disk grinder. Accordingly, it is appropriate that this citation be vacated.
3. Citation No. 4119014 alleges that the guard for the
drive belts and pulley for the jaw crusher had been partially cut
away exposing miners to moving machine parts, in violation ot
section 56.14112(a){2). The safety standard provides that guards
shall be constructed and maintained to ''not create a hazard by
their use." Inspector Grimes testified that the guard .that was
present had been partially cut exposing the flywheel, pulley
drive, and belts.
{Tr. 25-27; Ex. G-4). He stated that a person
slipping or falling could get caught in the pulley drive and lose
an arm or a hand.
(Tr. 26). Mr . Cullen stated that the holes in
the guard have been there since he purchased the crusher and that
the holes are so high off the ground that it would be very diff icult to get your hand in it.
(Tr. 94-96). He stated that he
owned the crusher for about nine years.
(Tr. 118-120).
Based on this evidence, I find that the Secretary has established a violation. I find that the holes cut into the guard
created a hazard. At the time of the inspection, the inspector
determined that the violation was not S&S. At the hearing,
counsel for the Secretary moved to have the citation changed to
385

S&S based on the inspector's testimony .
(Tr. 28) .
I pgree with
the inspector's original determination and find that t~is violation was not s&s. Although a discrete safety hazard was creat ed
by the violation, the Secretary did not establish that there was
a reasonable likelihood that the hazard contributed to will
result in an injury. Specifically, I find that the holes were
small and difficult to reach, even if someone were to slip and
fall.
That is, I find that the chance of someone getting his
hands or fingers in the unguarded area to be remote, at best .
I
find that the violation was caused by Cullen's moderate negligence . A penalty of $30.00 is appropriate.
4.
Citation No. 4119015 alleges that the guard on the tail
pulley for the No. 2 conveyor was not securely in place, in
violation of section 56 . 14112(b). The safety standard provides,
in part, that guards shall be securely in place while machinery
is being operated.
Inspector Grimes testified that the guard was
inadequate because it did not cover all the moving machine parts
and was not firmly attached to the structure.
(Tr. 28 - 34; Ex. G5).
He stated that someone could come into contact with the
moving tail pulley while cleaning up spilled material around the
belt.
Id.
Mr. Cullen testified that the only moving part was
the tail pulley and the only way to contact it would be to do so
on purpose.
(Tr. 98-101, 120-22) . He testified that miners
shovel away spilled material from the bottom and that they wou l d
not be exposed to the moving pulley. Id. He stated that other
MSHA inspectors have observed the guard and have not found it to
be in violation of the safety standard.
(Tr. 100).
Based on this evidence, I find that the Secretary has established a violation.
I find that the guard did not adequately
protect the tail pulley from contact by miners. At the time of
the inspection, the inspector determined that the violation was
not S&S. At the hearing, counsel for the Secretary moved t o have
the citation changed to S&S based on the inspector's testimony .
(Tr. 32). Whether this violation is S&S is a close call.
I find
tha t the Secretary established by a preponderance of the evidence
that there was a reasonable likelihood that the hazard contributed to would result in an injury and that such injury could be of
a reasonably serious nature.
The evidence establishes that
miners worked around the area, occasionally clean ed out loose
material while the belt was operating, and greased a fitt i ng.
I find that the violation was caused by Cullen ' s moderate negligence and was serious. A penalty of $50.00 is appropriate .
5 . Citation No . 4119017 alleges that the back of the self
cleaning tail pulley beneath the Telesmith crusher was not
guarded, in violation of section 56 . 14107(a) .
Inspector Grimes
testified that the tail pulley was about two feet above the
ground and that it was poss i ble for a miner to come in contact
with it i f he slipped and fell while cleaning up loose material
under the belt.
(Tr. 37 - 40; Ex . G-7). He stated that there was
386

at least one guard on the side .
{Tr. 39). Mr Cullen testified
that the guard had been taken off to clean material from the
area.
(Tr. 104-05) .
Based on this evidence, I find that the Secretary has
established a violation. I find that tail pulley was not adequately guarded. At the time of the inspection, the inspector
determined that the violation was not S&S. At the hearing,
counsel for the Secretary moved to have the citation changed to
S&S based on the inspector's testimony.
(Tr . 40).
I agree with
the inspector's original determination and find that this violation was not S&S. Although a discrete safety hazard was created
by the violation, the Secretary did not establish that there was
a reasonable likelihood that the hazard contributed to will
result in an injury.
~ find that it was unlikely that a miner
would come in contact with the tail pulley, even if he were to
slip and fall, given its location and the fact that there was at
least one guard on the side. I find that the violation was
caused by Cullen's moderate negligence.
A penalty of $30 . 00 is
appropriate.
6.
citation No. 4119018 alleges that the bottom drive pulley and belts on the Telesmith crusher were not properly guarded,
in violation of section 56.14107(a).
Inspector Grimes testified
that the existing guard did not extend far enough down to prevent
miners from coming in contact with the pulley.
(Tr. 40 - 44; Ex.
G-8).
He stated that a miner could slip on loose material and
touch the pulley or accidently put his hand on the pulley while
performing maintenance. Id. The pulley was about fqur feet
above the ground.
(Tr. 42) . Mr. Cullen testified that the guard
had been removed a few days before to work on the crusher.
(Tr.
105-08). He stated that the cone (Telesmith) crusher had become
jammed with material and the guard was taken off so that miners
could manually shake the pulley back and forth to get the materi al loose. Id .
Based on this evidence, I find that the Secretary has established a violation. I find that pulley was not adequately
guarded . At the time of the inspection, the inspector determined
that the violation was not S&S. At the hearing, counsel for the
Secretary moved to have the citat1on changed to S&S based on the
inspector's testimony.
(Tr . 44).
I agree with the inspector's
original determination and find that this violation was not S&S .
Although a discrete saf~ty hazard was created by the violation,
the Secretary did not establish that there was a reasonable likelihood that the hazard contributed to will result in an injury.
I find that it was unlikely that a miner would come in contact
with the pulley, even if he were to slip and fall.
I have taken
into consideration the fact that the cone crusher was under re pair and I credit Mr. Cullen's testimony that part of the guard
had been removed in an attempt to dislodge the material that was

387

jammed in the crusher. Thus, the hazard had not existed for a
long time. The crusher was never used again because it had to
be rebuilt.
(Tr. 108}. I find that the violation was caused by
Cullen's low negligence. A penalty of $20.00 is appropriate.
7. Citation No. 4119019 alleges that the tail pulley beneath the pioneer shaker screen was not properly guarded, in
violation of section 56.14107(a). Inspector Grimes testified
that the cited tail pulley was not guarded and that miners could
come in contact with it while cleaning loose material from the
area.
(Tr. 44-49; Ex. G-9). H~ stated that if someone contacted
the moving tail pulley, he could los.e a limb or be killed.
(Tr.
48). Mr Cullen testified that a guard was present, but that when
Cullen moved the cone crusher for repair, the guard was removed
as well because it was built into the conveyor system.
(Tr. 10810, 116-18). He stated that once the cone crusher had been repaired, the guard would have been replaced when the equipment
was put back into place.
(Tr . 118-18).
Inspector Marti, who had
been at the mine on July 21, 1992, testified that the tail pulley
was operating on that date and that a guard was not in place.
(Tr. 133) .

Based on this evidence, I find that the Secretary has established. a violation. The evidence establishes that tail pulley
was not guarded and that the pulley had been operating while the
guard was not in place.
I also find that the Secretary has established that the violation was S&S and that Cullen's negligence
was moderate . A penalty of $50.00 is appropriate.
8. Citation No. 4119020 alleges that the head pulley guard
op the conveyor belt underneath the pioneer screen was not securely in place, in violation of section 56.14112(b).
Inspector
Grimes testified that the head pulley was not guarded to prevent
employees from contacting the moving part or being caught in the
pinch point.
(Tr. 49-52; Ex. G-10). He stated that a guard was
there but that it had come loose.
Id. He testified that a miner
could trip and fall and accidently come in contact with the pinch
point. He also stated that miners would be in the area because a
grease fitting was next to the pulley. Mr. Cullen testified that
a person would have to stand on t~p of another conveyor to reach
the moving parts cited by the inspector.
(Tr. 110-11). He also
stated that miners do not grease the pulley when it is in operation because it must be shut down to get on top of the conveyor
to reach the grease fitting.
Id.
Based on this evidence, I find that the Secretary has established a violation. The Secretary did not allege that the violation was S&S.
I find that the violation was caused by Cullen's
low negligence and was not serious. A penalty of $20.00 is
appropriate.

388

~.

c.

Other Citations

1. Citation No. 3470651 alleges that three employees were
installing a new mantle on the Telesmith cone crusher and were
not wearing safety shoes, in violation of section 56.15003. The
safety standard provides that suitable protective footwear should
be worn in and around an area of a mine or plant where a hazard
exists that could cause an injury to the feet.
Inspector DeHerrera testified that the workers were wearing athletic shoes and
that they were working with heavy tools and other equipment.
(Tr. 241-43; Ex. G-16). He stated that if one of the men dropped
a tool or the heavy mantle on their foot they could receive a
permanently disabling injury. Id. Mr. Cullen testified that he
tells his employees that they must wear hard-toed work boots, but
they sometimes do not wear them.
(Tr. 305-06).
Based on this evidence, I find that the Secretary has
established a violation. The evidence establishes that three
miners were not wearing protective footwear in an area where
their feet could .be seriously injured.
I also find that the
Secretary has established that the violation was S&S and that
Cullen's negligence was moderate. A penalty of $50.00 is
appropriate.
2. Citation No. 4119013 alleges that the ladder to the
crusher deck did not extend to the ground, that a wooden block
was under the ladder as the first step, and that an employee
could fall.
The citation alleges a violation of section 56.11001, which provides that a safe means of access shall be
provided to all working places.
Inspector Grimes testified that
a 12-inch by 12-inch block of wood was used as a "stepping stone"
to reach the bottom of the ladder that is used to get onto the
crusher deck.
(Tr. 22-24). He stated that the wooden block was
"unsecured on unstable ground."
(Tr. 23). The ladder was not
supported by the wooden block.
Id. He stated that someone
stepping on the block could twist it, fall and hit their head on
the frame of the crusher deck.
(Tr. 24). Mr Cullen testified
that the ladder was attached to the deck, was equipped with a
handrail and the bottom step was usually was closer to the
ground.
{Tr. 96-98). He further stated that at this location
the block was put there as a bottom step.
Based on this evidence, I find that the Secretary did not
establish that there was not a safe means of acces$ to the
crusher deck. A mine is not an office building with smooth, flat
surfaces.
I credit Mr. Cullen's testimony that the ladder was
equipped with a handrail and I find that one could safely get up
to the deck by stepping onto the block and then the ladder.
There was no showing that the block was likely to flip over or
that it created hidden hazard that could injure a miner. Accordingly, it is appropriate that this citation be vacated.
389

3. Citation No. 4121087 alleges that a handrail was not
provided on the stair steps to the trailer for the generator or
on the outer edges of the trailer, in violation of section
56.11002. The safety standard provides, in part, that elevated
walkways, elevated ramps and stairways shall be provided with
handrails. Inspector Marti testified that miners have to go onto
the generator trailer to start, stop, and service the generator.
(Tr. 144-48; Ex. G-12). He-· stated that cables coming out of the
generator obstruct part of the walkway around the generator
creating a tripping hazard. He testified that the bed of the
trailer was about 42 inches above the ground and that a person
could be seriously injured if he fell off. Id. Mr. Cullen
testified that this trailer never had handrails, has never been
cited for lack of handrails, and nobody has ever fallen off the
trailer .
(Tr . 186).
Based on this evidence, I find that the Secretary has established a violation. The evidence establishes that handrails were
not provided on the elevated walkway and the stairs. A falling
hazard was presented. Although the hazard was not particularly
great, I find that the Secretary has established that the violation was S&S. I find that Cullen's negligence was low . A penalty of $40.00 is appropriate.
4. Citation No. 4121088 alleges that an access road at the
mine was not bermed, blocked or posted against entry, in viola tion of section 56.9300(d). The citation states that a drop-off
of about four to five feet existed on one side of the roadway for
about 250 feet creating a rollover hazard . The safety standard
provides, in part, that certain infrequently traveled ~oads need
not be provided with berms or guardrails if the roadway is protected by locked gates, warning signs are posted and delineators
are installed. Inspector Marti testified that the cited roadway
was not a regularly traveled road, but that it was open to travel
and presented a rollover hazard .
(Tr . 148-53; Ex. G-13). He
also stated that it was reasonably likely that a rollover would
occur because the drop-off was close to the roadway.
(Tr. 15051}. He testified that a very serious injury could occur in the
event of a rollover. Id . ae also stated that there were no
warning signs or delineators and that the hazard would be greater
if there was snow on the ground. , (Tr. 152-53}. Mr Cullen testified that nobody has any reason to go down the cited roadway because it is a dead end road that is never used and it does not
provide access to any part of the mine.
(Tr. 186-89).
Based on this evidence, I find that the Secretary has established a violation. The evidence establishes that there was a
drop-off close to this roadway that presented a hazard if traveled in bad weather. While the road was not often used, it was
open and could have been used. Although the hazard was not
particularly great , I find that the Secretary has established
390

that the violation was S&S. I find that Cullen's negligence was
low. A penalty of $40.00 is appropriate.
5.
citation No. 4121091 alleges that toilet facilities were
not provided at the mine, in violation of section 56.20008. The
standard requires toilet facilities that are compatible with the
mining operation and are readily accessible. Inspector Marti
testified that there were four persons employed at the mine and
that mines of this size usually provide portable toilets.
(Tr.
153-55). Mr. Cullen testified that their mining permit authorizes the employees to use the bathroom at a private residence that
is nearby and that the employees go to a local convenience store
several times a shift to buy sodas and use the facilities there.
(Tr. 189-90) .

Based on this evidence, I find that the Secretary has established a violation. The safety standard does not have an exemption for small mines and the facilities located off-property do
not meet the requirements of the standard. I also find, however,
that it was rea~onable for the miners to use the facilities at
the local convenience store. I find that the violation was not
serious and was the result of Cullen's low negligence. A penalty
of $2.00 is appropriate.
6.
Citation No. 4121092 alleges that the mine did not have
any fire extinguishers or other acceptable means to fight fires
in their early stages that could endanger a person, in violation
of section 56.4200. The safety standard provides, at subsection
(a) (l}, . that mines shall have onsite equipment for fighting fires
in their early stages and describes, at subsection (b) ,, the
specific equipment requirements. Inspector Marti testified that
fire extinguishers should be available to fight fires when they
first start and he did not find any on the property.
(Tr. 15559). He stated that the lack of fire extinguishers created a
hazard because it is a natural reaction of people to try to put
out a small fire and, without the proper equipment, someone could
become injured.
Id. A person fighting a fire without the proper
equipment could become overcome by smoke, or could catch their
clothing on fire and be seriously injured. Id. Mr. Cullen testified that he has repeatedly told his employees to get away if a
fire starts because none of Culle11's equipment is "worth risking
your life over."
(Tr. 190-93). He also stated that fire extinguishers were in the storage shed, in the fuel truck, and in the
tool truck.
Id. He stated that the storage shed was not locked
and was about 500 yards from the plant.
(Tr. 193-94). Inspector
DeHerrera testified that he also looked for fire extinguishers,
including in the fuel truck, and did not find any.
(Tr. 203-04).
He also stated that Mr. Cullen told him that there was nothing
but junk in the storage shed and that it was locked.
Id.
Based on this evidence, I find that the Secretary has established a violation.
I credit the testimony of the inspectors and
391

•:.

safety by trying to extinguish a fire with unsuitable equipment.
At the time of the inspection; the inspector determined that the
violation was not S&S. ' At the hearing, Ms. Renowden moved to
have the citation chahged to S&S based on the inspector's testimony.
(Tr. 158).
I agree that the violation should be designated S&S because there was a reasonable likelihood that the hazard
contributed to would result in an injury and the injury was reasonably likely to be serious.
I find that the violation was
serious and was the result of Cullen's moderate negligence. A
penalty of $50.00 is appropriate.

II.

CIVIL PENALTY ASSESSMENTS

Based on the criteria in section llO(i) of the Mine Act, 30
§ 820(i), I assess the following civil penalties as
discussed above:

u.s.c.

Citation Nos.

§

Assessed
Penalty

56.12025
56.11002
56.9300(d)
56.20008
56.4200
56.12028
56.12004
56.12001
56.12001
56.12001
56.12025
56.12004
56.12025
56.12008
56.12008
56.15003
56.14107
56.14107
56.12032
56.11001

$50.00
40 .00
40.00
2.00
50.00
20.00
30.00
80.00
30.00
30.00
80.00
50.00
30.00
2Q.OO
20.00
50.00
80.00
vacated
10.00
vacated

30 C.F.R.

WEST 94-74-M
4121086
4121087
4121088
4121091
4121092
3470641
3470642
3470643
3470644
3470645
3470646
3470647
3470648
3470649
3470650
3470651
3470652
3470653
3470654
4119013

392

WEST 94-75-M
4119014
41:19015
4119016
4119017
4119018
4119019
4119020

56.14112 (a) (2)
56.14112(b)
56.12032
56.14107(a)
56 . 14107(a)
56.14107(a)
56.14112(b)

$30.00
50.00
vacated
30.00
20.00
50.00
20.00

Total Penalty

$912.00

III.

ORDER

Accordingly, Citation Nos. 3470653, 4119013 and . 4119016 are
VACATED, all of the other above-listed citations are AFFIRMED as
modified, and Cullen Rock Crushing and Gravel is ORDERED TO PAY
the Secretary of Labor the sum of $912.00 within 40 days of the
date of this decision.

Richard W. Manning
Administrative Law Judge

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
{Certified Mail)
John Cullen, JOHN CULLEN ROCK CRUSHING AND GRAVEL, 4356 Blueflax
Drive, Pueblo, co 81001-1124 (Certified Mail)

RWM
393

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

20006

March 20, 1995

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

CIVIL PENALTY PROCEEDIN~

..

Docket No. WEVA 93-312
A. C. No. 46-06902-3602

:

v.
Little John Mine
J A L COAL COMPANY,
INCORPORATED,
Respondent
ORDER OF DEFAULT
Before:

Judge Merlin

on April 22, 1994, the Commission issued an order remanding
the above-captioned case to me to determine whether relief from
default is warranted.
The operator had requested that the order of default entered
in this case on April 22, 1994, be vacated and the matter set for
further proceedings.
on April 25, 1994, I issued an order vacating the order of
default and directing the operator to file an answer to the
Secretary•s penalty petition. The operator was also advised that
this Commission is an independent agency wholly distinct and
separate from the Secretary of Labor and MSHA. The file contains
the return receipt showing that the operator received a copy of
the April 25 order on May 3, 1994.
on August 1, 1994, an order to show cause was issued
directing the operator to file an answer to the penalty petition
or it would be held in default. The file contains the return
receipt showing that the operator received a copy of the show
cause order on August 6, 1994. The operator, however, has failed
to comply with the order by either filing an answer or by showing
cause why he did not do so. Numerous attempts to contact the
operator have been unsuccessful.
In light of the foregoing, it is ORDERED that the operator
be held in DEFAULT for the penalty amount of $3,900 and that it
PAY this sum immediately •

•
Law Judge
394

Distribution :

(Certified Mail)

Caryl A. Casden, Esq., Office of the Solicitor, u. s. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Mr. John · A. Laurita, President, JAL coal Company, 130 Fayette
street, Morgantown, WV 26505
/gl

395

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALL.S CHURCH, VIRGINIA

22041

MAR 2 11995

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 94 - 1049
A.C. No. 15-17291-035128
Mine: #1

EBENEZER COAL COMPANY, INC.,
Respondent
DECISION
Appearances:

Mark R. Malecki, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Billy R. Shelton, Esq., Baird, Baird, Baird &
Jones, P.S.C., Pikeville, Kentucky, for
Respondent.

Before:

Judge Amchan
MSliA'S smoking sweep and the instant citation

Respondent's No. 1 Mine in eastern Kentucky was one of
175 mines inspected on May 19, 1994, as part of an MSHA "smoking
sweep." This "sweep" was initiated as part of MSHA'S response
to two recent fatal mine explosions which the agency ~ttributes
to underground smoking. It involved the simultaneous inspection
of mines in Kentucky, West Virginia and Virginia to determine
whether miners were taking smoking materials underground in
violation of MSHA's regulations at 30 C . F.R. § 1702 and the
Federal Mine Safety and Health Act, 30 U.S.C. § 877(c). Another
objective of the sweep was to determine whether mine operators
were adequately implementing their approved smoking search
programs pursu~nt to the regulation .

396

At Respondent's No. 1 Mine, MSHA Inspector Danny Bryant
discovered an unopened pack of cigarettes underground in a
plastic grocery bag, which was being used as a lunch container
by miner Daniel King (Tr. 49-51). King asserted that he was
unaware of the presence of the cigarettes and that . his wife
(or girl friend) had plpced them in the bag without his
knowledge (Tr. 50, 57).
Bryant issued Respondent Citation No. 3376644 pursuant to
section 104(a) of the Act. The citation alleged a "significant
and substantial" violation of 30 C . F.R. § 75.1702. Bryant
characterized Ebenezer Coal's negligence as "moderate." He
also concluded that an injury was reasonably likely to result
from the violation and that such injury was likely to result
in lost workdays or restricted duty (Exh. P-1) .
After review by MSHA's national office, the citation was
modified to allege a section 104(d) (1) order, rather than a
citation. Respondent's negligence was recharacterized as
"high," rather than "moderate." The likelihood of injury was
recharacterized as "highly likely," the likely injury was
modified to "fatal," and the number of employees affected was
changed from one to ten (Tr. 40, Exh. P - 2). The penalty for
the modified order was specially assessed and a $2,500 civil
penalty was proposed.
Respondent concedes that a violation occurred and that it
was "significant and substantial" and due to moderate negligence.
It takes issue with the characterization of high negligence, the
conclusion that injury was "highly likely," and the amount of the
proposed penalty (Tr. 79-80).
Respondent's smoking search program prior to the citation
Prior to the instant citation/order, Respondent was
conducting smoking searches pursuant to a program approved
by MSHA's Pikeville, Kentucky District Office on December 29,
1992 (Exh. P-7) . That program required that all employees
were to be searched at the mine portal immediately before
going underground for smoking materials, matches, or lighters.
The searches were to be conducted at least once a week at
irregular intervals. Written records were required to be made

397

of the searches and additional searches were to be made if
there was any indication weekly searches were inadequate 1 •
Prior to May 19, 1994, searches were normally performed
by foreman Michael Richards. On occasions when he was observed,
Mr. Richards patted the miners down and searched their pockets
(Tr. 56). He was also observed searching for smoking materials
on mining equipment and in employees' lunch buckets left on
mining equipment (Tr. 56). Smoking searches were also occasionally made by superintendent John Paul Biliter (Tr. 67). There
is n o indication in the record that any smoking materials were
ever found underground at Respondent's mine prior to May 19, 1994
(Tr . 6 7 , 7 o) .
There is also no indication that Respondent did not follow
its approved smoking search plan. The Secretary has suggested
that the searches were performed at sufficiently regular intervals that employees might have been able to ·anticipate them
(Tr . 60-62). Close examination of Exhibit R-1 indicates that
the searches could have been more irregularly spaced, but does
not provide a basis for concluding that Respondent was "highly
negligent."
In the five months between December 13, 1993 and May 19,
1994, Respondent conducted 26 smoking searches. Eight were
performed on a Monday, four on Tuesdays, two on Wednesdays,
two on Thursdays, and ten on Fridays. From April 1, 1994
through May 13, 1994, there was a smoking search every Friday,
except April 29. During that period there were only two searches
conducted on days other than Fridays. Searches were conducted
on April 11, 1994, a Monday, and April 28, a Thursday .
From this record, I conclude that miners could have had
less reason to anticipate a search on days other than· Fridays
than they should have had . On the other hand, since May 19
was a Thursday, and a search had· been made on Thursday, April 28,
1 994, any miner taking smoking materials underground on May 19,
c ould not be sure that he would not be searched .
In conclusion,

1A

few day s a fter receiving the instant c i tation/order,
Respondent began searching its miners for s~oking mater ial s daily
(Tr . 55) .

398

insufficient randomness in Respondent's smoking searches may
support a finding of moderate negligence, but not "h~gh"
negligence.
The modifications of the instant citation/order were made
without regard to the adequacy or inadequacy of Respondent ' s
smoking search plan or its implementation (Tr. 31, 41). The
modifications were made on the theory that if a miner carried
smoking materials underground, the mine operator must have been
highly negligent (Tr. 20, 23, 30 -3 3 , 40, 44-45).
I am unable
to draw the same inference.
There are several alternative explanations for the discov~ry
of smoking materials in Mr. King's lunch bag. One explanation is
the one advanced by the Secretary, that Mr. King knew he would
not be searched on May 19, and only the unanticipated presence
of MSHA proved his assumptions in that regard incorrect. Another
is the explanation that Mr. King gave to the . inspectors, that
unbeknownst to him his wife (girl friend) placed the cigarettes
in his lunch bag (Tr. 50, 57). A third explanation is that
Mr. King was simply foolhardy in taking smoking materials underground since a search on Thursday, May 19, was just as likely as
the one performed on Thursday, April 28 . I conclude that all
three explanations are equally plausible.
In summary, I find the record supports a finding of moderate
negligence, rather than high negligence . Further, I find that
while it was reasonably likely that Mr. King would smoke underground and contribute to an occupational injury, it was not
"highly likely" as asserted by the Secretary (Tr. i2-16) .
It is certainly possible for smokers to refrain from smoking
for an entire workshift, even if they have a pack of cigarettes
in their possession. Moreover, Mr. King, as a scoop operator,
could have smoked during his shift on the surface (Tr . 57-59).
On the other hand , he may well have not resisted the temptation
to smoke underground, just as other miners have not done so
(Tr . 19) .
Citation No. 3376644 is affirmed as a "significant and
substantial" violation of secti on 104(a) of the Act.
I find
that it was due to the moderate negligence o f Resp ondent a nd

that it was reasonably likely to result in fatal injuries
(Tr . 19) .
Assessment of Civil Penalty
Considering the six penalty criteria in section llO(i)
of the Act, I as s ess a $250 civil penalty for this violation.
Respondent operates a relatively small mine which produces
approximately 100,000 tons of coal annually (Tr. 58) . There
is no indication t ha t a penalty even of the magni tude of the
$2,500 proposal would jeopardize Ebenezer' s ab i lity to stay in
business.
Good faith in quickly abating the vio l ation was demonstrated by Respondent's implementation of dai l y smoking searches
on May 24, 1 994 (Tr . 55, Exh . R-1, p . 6) . Respondent had no
prior history of related violations and its prior record of MSHA
violations generally (Exh. P - 8) does not affec t my assessment
in any manner.
Given the moderate negligence and the gravity of the
violation, I deem $250 an appropriate penalty. Although,
Respondent followed its MSHA- approved search plan, more randomness in its searches may have provided additional incentive to
miners to make certain that they did not have smoking materials
with them when they went underground.
Similarly, although
having a pack of cigarettes does not necessarily mean one will
smoke, it makes it much more likely that smoking will occur
than if one does not have cigarettes.
Congress, in prohibiting the possession of any smoking
materials underground when enacting the 1969 Coal Act clearly
deemed the presence of any such mate.rials to create a potential
for a catastrophic explosion.
Thus, even an unopened pack of
cigarettes underground is a serious hazard.
In assessing a $250 penalty, I deem this case distinguishable from Mi ngo Logan Coal Comp any, Docket No. WEVA 94-247 (Judge
Fauver, February 2, 1995). In that case a large operator did not
pat down its miners, but simply relied on their representations
that they did not have any smoking materials in thei r possession.
Moreover, Mingo Logan was on notice that its smoking s earch

400

program may have been inadequate since it had found smoking
materials underground on at least one prior occasion (slip op.
at page 6). A penalty of the $1,900 magnitude assessed by
Judge Fauver is not appropriate in the instant case.
ORDER
Citation No. 3376644 is affirmed as a violation of
section 104(a) of the Act. A $250 civil penalty is assessed.
The penalty shall be paid within 30 days of this decision.

(~
Administrative Law Judge
Distribution:
Mark R. Malecki, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Arlington,
VA 22203 (Certified Mail)
Billy R. Shelton, Esq., Baird, Baird, Baird .& Jones,
P.S.C., 415 Second St., P.O. Box 351, Pikeville,
KY 41502-0351 (Certified Mail)

/lh

401

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

MAR 2 l 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
SEXTET MINING CORPORATION,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 94-528
A.C. No . 15-17272-03512
Docket No. KENT 94-992
A.C. No. 15-17272-03515
West Hopkins No . 11 Mine
DECISION

Appearan9es:

Anne T. Knauff, Esq., and Susan E. Foster, Esq.,
Office of the Solicitor, U.S. Department of
Labor, Nashville, Tennessee, for the Petitioner;
Flem Gordon, Esq~, Gordon & Gordon, P.S.C.,
Madisonville, Kentucky for the Respondent.

Before:

Judge Melick

These cases are before me upon petitions for civil penalty
filed by the Secretary of L~bor pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S . C. § 801 ~
~' the "Act," charging Sextet Mining Corporation (Sextet) with
four violations of mandatory standards and seeking civil
penalties of $17,000 for those violations. The issue before me
is whether Sextet violated the standards as charged ~nd, if so,
what is the appropriate civil penalty to be assessed considering
the criteria under Section llO(i) of the Act. Additional
specific issues are addressed as noted.
Order No. 3547919, issued pursuant to Section 104(d} (1) of
the Act, 1 alleges a "significant and substantial" violation of .
1

Section 104(d) (1) reads as follows:
If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger, such
violation is of such nature as could significantly _and
substantially contribute to' the cause and -effect of ~a coal
or other mine safety or -health hazard, and if he finds such
402

the standard at 30 c.F.R. § 75.517 and charges as follows:
The trailing cable supply[sic] power (300 VDC) . to the
10 S/C shuttle car company number CA 10 being
operated on the Al Unit MMU IDOOl had heat damage
to approximately 30 feet of cable with 70 places that
the outer jacket and inner insulation .was damaged
exposing the bare phase conductors. Three other
damaged places were found with bare exposed conductors
in the remaining cable.
The cited standard, 30 C.F.R . § 75.517, provides in relevant
part that "power wires and cables . . . shall be insulated
adequately and fully protected . "
Ted Smith, a field office supervisor for the Mine Safety and
Health Administration (MSHA) who has 24 years experience in the
mining industry and as a coal mine inspector, was conducting a
routine health and safety inspection at · the West Hopkins No. 11
Mine on October 9, 1993, when he issued the subject order.
According to Inspector Smith, the cited 300 volt DC cable was
being used to provide power to the shuttle car. The shuttle car
had been used to transport coal from the face to the loading
point and, when cited, was located near the feeder . The shuttle
car was not then being used, however, since production had been
halted under a "Section 103(k)" order. The cable was connected
to the power center and to the shuttle car at the time it was
cited and no warnings had been posted regarding the damaged
cable.
Smith described the trailing cable as oblong shaped, two
inches wide, 3/4 inch thick and 550-600 feet long.
It consisted
Footnote 1 Continued
violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory hea l th or safety
standards , he shall include such findings in any citation
given to the operator under this Act.
If, during the same
inspection or any subsequent inspection of such mine within
90 days after the issuance of such citation , an authorized
representative of the Secretary finds another violation of
any mandatory health or safety standard and f i nds such
violation to be also caused by an unwarrantable failure of
such operator to so comply, he shall forthwith issue an
order requiring the operator to cause all persons in the
area affected by such violation, except those persons
referred to in subsection (c) to be withdrawn from, and to
be prohibited from entering , such area unti l a n a u thorized
representative of the Secretary determines that such
violation has been abated.

40 3

of an outer jacket with two phase wires inside protected by
additional insulation. As the shuttle car travels to the face,
some two to five crosscuts away, the cable ordinarily trails
behind the shuttle car on a spool. Thus the cable would
ordinarily be spooled-off when the shuttle car is operating at
the face.
The outer insulation along the cited 30 feet was "very
brittle" and "inflexible" according to Smith and cracks were
observed in the cable every five inches as it was reeled in. It
was cracked down to the bare phase wires and the cracks were up
to 1/4 inch wide. According to Smith, the inner insulation was
also cracked and the bare conductive wires could be seen inside.
There were actually 70 locations with this damage observed along
the 30-foot section of cable. Smith concluded that this damage
was caused by excess heat.
smith also cited three areas on the trailing cable with cut
and abrasion damage. At these locations the conductors were also
..exposed with the copper phase wires observed with a cap lamp. On
the basis of the above evidence, it is clear that the violation
has been proven as charged and, indeed, Respondent acknowledges
the violation.
Smith also opined that the violation was "significant and
substantial." A violation is properly designated as "significant
and substantial" if, based on the particular facts surrounding
that violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a
reasonably serious nature. Cement Division, National Gypsum Co.,
3 FMSHRC 822, 825 (1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4
(1984), the Commission explained:
In order to establish that a violation of a
mandatory standard is significant and substantial
under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety
standard, (2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to by the
violation, (3) a reasonable likelihood that the hazard
contributed to will result in an injury, and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious.nature.
See also Austin Power co. v. Secretary 861 F.2d
99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021
(1987) (approving Mathies criteria).
The third element of the Mathies formula requires that the
Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an
injury, U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (198~), and

404

also that the likelihood of injury be evaluated in terms of
continued normal mining operations. U.S. Steel Mining Co., Inc.,
6 FMSHRC 1473, 1574 (1984); see also Halfway, Inc., 8 FMSHRC 8,
12 (1986) and Southern Ohio Coal Co., 13 FMSHRC 912, 916-17
(1991) .
Since the violation is undisputed, i t is clear that the
shuttle car had been operating with this seriously damaged power
cable.
It may reasonably be inferred that it would also have
been returned to service when production resumed.
With 300 volts
of direct current flowing through these cables there was clearly
a discrete safety hazard. 2
Inspector Smith also noted that the mine floor in the area
in which the cable was being utilized was damp and would
contribute to the leakage of power along the outer jacket of the
cable and to persons nearby. Miners also handle the cable in the
normal course of mining. There was also evidence that the
defective cable could cause the frame of the shuttle car to
become a shock hazard.
As noted by the Secretary, there was
ample power to cause heart fibrillation and serious injuries to a
miner who would contact the defective cables· or energized shuttle
car. Under the circumstances and relying upon the credible
testimony of Inspector Smith, I find that the violation was ·
clearly "significant and substantial" and of high gravity.
In reaching this conclusion I have not disregarded the
testimony of Sextet's Safety Director Glenn Lutz that. every
person on the section had been issued rubber gloves. However,
the usage of such gloves and their insulating ability ·remains at
issue.
In addition, such gloves would not necessarily protect
persons leaning against an energized shuttle car.
Smith further concluded · that the violation was the result of
the operator's "unwarrantable failure" and high negligence.
"Unwarrantable failure" has been defined as conduct that is "not
justifiable" or is "inexcusable." It is aggravated conduct by a
mine operator constituting more than ordinary negligence.
Youghiogheny and Ohio Coal Company, 9 FMSHRC 2007 (1987); Emery
Mining Corp., 9 FMSHRC 1997 (1987).
The Secretary seems to argue that since the heat damage to
the cable was obvious and extensive, the condition had existed
for a long period and should have ·been discovered and corrected.
Smith also based his unwarrantability findings upon the fact that
2

It is further noted that imminent danger withdrawal order
No. 3547918, issued under Section 107(a) of the Act, was issued
for the same conditions cited in the order at bar. That order
has therefore become final and the assertions and the imminent
danger findings therein may accordingly be accepted as true.

405

·~

he had discussed with the mine superintendent and the chief
electrician the previous May a number of similar defects in their
trailing cables and about their cable maintenance program. The
record also shows that Sextet committed 17 violations of the
standard at issue within the two years preceding this violation.
This evidence shows a serious disregard in the maintenance and/or
replacement of its power cables. At a minimum this history and
the specific prior warnings given by Inspector Smith placed
Sextet on notice that greater care was needed with its power
cables. Within this framework of credible expert evidence I
conclude that, indeed, the violation was the result of aggravated
negligence and "unwarrantable failure."
In reaching this conclusion I have not disregarded the
testimony of Sextet witness and former coal mine inspector
George Siri. Siri testified that he personally would have been
unable to determine how long it would have taken for the amount
of heat damage found on the cited cable. Given the credible
expert testimony of Inspector Smith, however, I give this selfserving statement but little weight.
I note, moreover, that even
Siri agreed that the cited cable was compromised and should have
been replaced. Siri also acknowledged that trailing cables are
especially prone to heat damage on DC power and in particular
where there is a significant amount of cable on the reel. He
further agreed that when the cable loses flexibility and becomes
brittle it should be replaced. I have also considered the
testimony of Glenn Lutz .that the entire trailing cable is
visually examined during the weekly inspections. However, under
the circumstances of this case, it may reasonably be inferred
that such inspection had not been performed or had been performed
negligently.
Order No. 3547914, also issued pursuant to Section 104(d) (1)
of the Act, similarly charges a violation of the standard at 30
C.F.R. § 75.517 and alleges as follows:
The trailing cable supplying JOO VDC to the CA 2 lOSC
shuttle car being operated on the No. 1 Unit MMU IDOOl
had 7 places with damage to the inner and outer
insulation with the power conductors bare and exposed.
Sextet also admits to this violation but maintains that the
violation was neither "significant and substantial" nor the
result of its "unwarrantable failure." According to Inspector
Smith the cable cited .in this order was connected to the cited
shuttle car and the power center at the time of his inspection.
There was no evidence that the car or cable had been
tagged-out or that warnings were posted that the cable was
defective. The damage to this cable was not the result of heat
damage as in the previous violations, but rather from abrasions.
Smith observed seven torn areas in the cable exposing both power
conductors. smith concluded that it was highly likely for

406

serious injuries to result from this damage for the reasons
previously stated regarding the prior violation charged in
Order No. 3547919.
smith also concluded that the violation was the result of
"unwarrantable failure" because the damage was ttvery obvious."
According to Smith the areas had been scalped away and anyone on
the section could see the damage. Smith acknowledged, however,
that this damage could very well have occurred since the previous
required weekly electrical examination.
Even considering the
prior history, without establishing the length of time the damage
had existed, I have difficulty finding the requisite aggravated
conduct or ommission sufficient to support a finding of
unwarrantability and high negligence. The order must accordingly
be modified to a citation under Section 104(a) of the Act.
Citation No. 3856829, amended from an order issued pursuant
to Section 104(d) (1) of the Act to a citation with reduced
negligence under Section 104(a) of the Act, alleges a
"significant and substantial" violation of the standard at 30
C.F.R. § 75.400 and charges as follows:
Accumulation of combustible materials consisting of
coal dust and loose coal ranging in depth of 1/2 inch
to 3 inches in depth had been allowed to accumulate in
Entries 1 thru 9 and including No. 10 intake room
entry on the 001-0 MMU. Starting approximately 180 feet
outby the faces and continuing inby including the
connecting crosscuts to the last open crosscut.
Accumulations were measured with a wooden folden (sic]
ruler.
The cited standard requires that "[c]oal dust, including
float coal dust deposited on rock-dusted surfaces, loose coal,
and other combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings, or on electric
equipment therein."
Sextet acknowledges this violation but maintains that it was
not "significant and substantial." The factual allegations in
the citation establishing a violation are, therefore, accepted as
true. MSHA Coal Mine Inspector Donald Milburn described the
cited coal dust as black in color and concluded, therefore, that
it was combustible. According to' Milburn it was 1/2 inch to 3
inches deep in all nine entries and there was no rock dust on the
mine floor. Milburn opined that the accumulations resulted from
the overloading of haulage cars and that it had taken three
production shifts to accumulate to that extent. He based this
conclusion on an estimate that mining had advanced 50 feet per
shift and, with 180 feet of accumulations, it would, therefore,
have taken about three shifts.

40 7

Milburn noted that there had been no mining because of a
" Section 103(k)" withdrawal order that had been in effect since
5:00 p.m . two days before on October 7, 1993. Milburn further
noted that there had been an MSHA inspection of the same area of
the mine and that earlier inspection had taken place around 9:00
a.m . on October 7 . The mine was not then cited for the
accumulations Milburn found but Milburn concluded that there had
been sufficient time from the 9:00 a.m. inspection until 5:00
p.m. that day, when the 103(k) order was issued, for the coal
dust and loose coal to have accumulated as he found it on
October 9, 1993.
Milburn concluded that the violation was the result of
moderate negligence based upon his opinion that the condition had
existed for several days before the "103(k) " order had been
issued . This testimony is , however, inconsistent with Milburn ' s
testimony that the same unit had been inspected by another MSHA
inspector on the morning of October 7, 1993, and that no
accumulations were cited at that time .
I note, moreover, and
credit the testimony of Glen Lutz, that MSHA Inspector Oglesby
had entered the mine at 9:00 a . m. on October 7 and had remained
until 1:30 p.m. to complete his inspection. ·. Under the
circumstances the accumulations discovered by Inspector Milburn
would likely have been created between 1:30 p . m. on October 7 and
5:00 p.m. on October 7 when the Section 103(k) order was issued.
Accordingly I find Sextet to be chargeable with lower negligence.
However , based upon the existence of combustible
accumulations of coal dust and loose coal and considering the
electrical violations cited on the same date in the same mining
section there can be no doubt that this violation was
"significant and substantial."
Citation No . 3856828, also amended from an order issued
pursuant to Section 104(d) (1) of the Act to a citation with
reduced negligence under Section 104(a) of the Act , alleges a
"significant and substantial 11 violation of the standard at 30
C.F . R. § 75.402 and charges as follows:
Rock dust has not been adequately applied to the .mine
roof, ribs and mine bottom on the 001-0 MMU starting
approximately 180 feet outby the 1 thru 9 faces and
i n cluding the No. 10 intake xoom ent ry and t hen
continuing inby to 40 feet of faces and including
connecting crosscuts. Three rock dust spot samples were
collected to substantiate this violation.
The cited standard provides as follows:
All underground areas of a coal mine, except
those areas in which the dust is too wet or too
high in incombustible content to propagate an

408

explosion, shall be rock dusted to within 40 feet
of all working faces, unless such areas are
inaccessible or unsafe to enter or unless the .
Secretary or his authorized representative permits
an exception upon his finding that such exception
will not pose a hazard to the miners. All crosscuts
that are less than 40 feet from a working face shall
also be rock dusted.
30 C.F.R. § 75.403 sets forth the quantities of rock dust
required in Section 75.402 and provides as follows:
Where rock dust is required to be applied,
i t shall be distributed upon the top, floor, and
sides of all underground areas of a coal mine and
maintained in such quantities that the incombustible
content of the combined coal dust, rock dust, and
other dust shall be not less than 65 per centurn, but
the incombustible content in the return air courses
shall be no less than 80 per centum.
Inspector Milburn testified that although there was some
rock dust on the roof and ribs in the cited area there was none
on the mine floor which was black in color. According to
Milburn, the black color indicated inadequate rock dusting and
that it was combustible, i.e. it would support a fire or
explosion. If it had been properly rock dusted, it would be gray
or white. Milburn collected three rock dust samples in the
intake air courses at least 50 feet outby the face following the
band sampling procedure. Two of the three samples showed low
incombustible content at 26 and 22 percent. Milburn also
observed that the cited area was generally dry and that such dry
conditions would aggravate the fire hazard.
Milburn opined that the operator "should have known" of the
violation because of the vast area involved, i.e. all of the
entries Nos. 1 through 9. I note, however, the testimony of
former MSHA Inspector George Siri, who observed many of the
entries cited on October 9, 1993. According to Siri, these areas
were not problematic. In addition, as previously noted, MSHA
Inspector Oglesby had inspected the same area until 1:30 p.m. on
October 7, 1993, and found no violations. Moreover, from
5:30 p.m. on that date until the ~ime of the inspection by
Milburn, there had been no production. Under the circumstances I
find lesser negligence for the violation.
For the same reasons previously noted with respect to
Citation No. 3856829, I find that this condition did, however,
constitute a "significant and substantial" violation. The same
hazards existed and were reasonably likely to cause serious
injuries.

Considering the criteria under Section llO(i) of the Act I
find that the following civil penalties are appropriate:
Order No. 3547919

$8,500

Citation No. 3547914

$500

Citation No . 3856829

$500

Citation No. 3856828

$500
ORDER

Order No. 3547914 is hereby modified to a citation under
Section 104(a) of the Act and is AFFIRMED as modified. Order No.
3547919 and Citation Nos. 3856829 and 3856828 are AFFIRMED and
Sextet Mining Corporation is hereby directed to pay civil
penalties totalling $10,000 within 30 days of the date of this
decision.

Distribution:
Anne T. Knauff, Esq., Susan E. Foster, Esq., Office of the
Solicitor, U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862
(Certified Mail)
Flem Gordon, Esq., Gordon & Gordon, P.S.C., 1822 North Main
Street, P.O. Box 1305, Madisonville, KY 42431-1305
(Certified
Mail)

/jf

410

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

MAR 2 11995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-994
A.C. No. 15-05423-03501 Q7G

v.
Manalapan No. 1 Mine
B & S TRUCKING COMPANY,
Respondent
DECISION
Appearances:

Susan E. Foster, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
Susan c. Lawson, Esq., Harlan, Kentucky,
for Respondent.

Before:

Judge Melick

This case is before me upon the petition for assessment
of civil penalty filed by the Secretary of Labor pursuant to
Section 105(d} of the Federal Mine Safety and Health Act of
1977, J ·O u.s.c. Section 801, .eh~, the "Act," charging
B & s Trucking Company (B & S) with one violation of the
mandatory standard at 30 C.F.R. § 77.405(b) and seeking
a civil penalty of $1,800 for that violation. The issue
before me is whether B & S violated the cited standard as
alleged and, if so, what . is the appropriate civil penalty
to be assessed considering the crite~ia under section llO(i)
of the Act. Additional specific issues are addressed as noted.
The citation at issue, No. 4242292, alleges a "significant
and substantial" violation of 30 C.F.R. § 77.405(b) and charges
as relevant herein that "the operator of the No. 11 Mack Truck
was observed working under the unsupported raised bed of this
coal truck." The cited standard pr'o vides that "[n]o work shall
be performed under machinery or equipment that has been raised
until such machinery· or equipment has been securely blocked in
position."
Jim Langley, a coal mine inspector and accident investigator
for the Mine Safety and Health Administration (MSHA) testified
that he was conducting an inspection at the Manalapan Mining
Company (Manalapan) No. 1 Mine on October 17, 1993, when he
observed from the mine office about 110 feet away, a truck driver

- ~11

pass beneath the raised bed of a coal truck in the process of
fueling that truck. It was a 20 to 30 ton 10 wheel Mack diesel
and its bed was raised fully extended to four to eight feet. The
truck driver was working for B & s, which hauls coa·l for
Manalapan.
Langley maintains that he was only 100 feet away from the
truck at the time of this observation and had an unobstructed
view. He first observed the driver fueling the left side tank
then pass beneath the raised truck bed ·to fuel the other side.
Langley noted that the driver first passed the fuel hose -across
then walked beneath the unsecured bed. According to Langley
either a bed pin or crib blocks could have been used to secure
the raised bed safely and within compliance of the cited standard
but neither was used. Within the framework of this credible
testimony by the experienced and disinterested witness, Inspector
Langley, I conclude that the violation existed as charged.
Inspector Langley also maintains that the violation was
"significant and substantial." A violation is properly
designated as "significant and substantial" if, based on the
particular facts surrounding that violation, · there exists a
reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature.
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (1981).
In Mathies Coal Co., 6 FMSHRC 1,3-4 (1984), the Commission
explained:
In order to establish that a violation of a
mandatory standard is significant and substantial
under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety
standard, (2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to by the
violation, (3) a reasonable likelihood that the hazard
contributed to will result in an injury, and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
See also Austin Power Co. v. Secretary, 861 F.2d
99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, '2021
(1987) (approving Mathies criteria}.
The third element of the Mathies formula requires that
the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there
is an injury, U.S. steel Mining Co., 6 FMSHRC 1834, 1836 (1984),
and also that the likelihood of injury be evaluated in terms of
continued normal mining operations. U.S. Steel Mining Co., Inc.,
6 FMSHRC 1473, 1574 {1984); see also Halfway, Inc., 8 FMSHRC 8,
12 {1986) and Southern Ohio Coal Co., 13 FMSHRC 912, 916-17
·
(1991).

412

Based on his knowledge of prior fatalities resulting from
falling unsupported truck beds, Langley concluded that it was
highly likely for such a fatality to occur in this c~se.
According to Langley there was no way to determine from an
external examination of the hydraulic system whether the safety
check valve was indeed functioning or was about to fail and
apparently no mechanical examination was performed on the truck
at issue in this case to determine whether or not the safety
check valve was functioning. Within the above framework of
credible evidence I agree that indeed the violation was
0
significant and substantial." In this regard it is noted that
Manalapan Mining Company Safety Director Darrell Cohelia agreed
that if the violation had happened as alleged then it was indeed
a "significant and substantial" violation.
The Secretary also maintains that the violation was the
result of high operator negligence. His analysis in this regard
was set forth in his post-hearing brief as follows:
The operator had to have known, and ignored the fact,
that the design of the gas pumps at the No. 1 mine
encouraged drivers to engage in the violative practice
committed by Mr. Brock. The pumps were designed in a manner
which prevented the drivers from conveniently and
expeditiously refueling the tanks on each side of the truck.
Specifically, the pumps were situated so that a driver had
to pull alongside the pumps to refuel his truck.
However,
with the truck in that position, the hose was not long
enough to reach the tanks on both sides of the truck.
Accordingly, in order to fuel the second tank, the driver
was required to turn the truck around. However, as a more
expedient alternative, the driver could raise the bed of the
truck, throw the hose across the frame, and then either step
over the frame under the raised bed or walk around the
truck. Human nature being what it is, the operator must
have realized that its drivers, like Mr. Brock, were
stepping or leaning across the frame of the truck under the
raised bed. This would not pose any danger so long as the
driver used the bed pins to block the raised bed into
position. Here, however, power lines above the pumps
prevented the drivers from fully extending the bed of the
truck and, thus , the driver could not use the bed pins to
block the raised bed into pos,ition .
That the operator recognized the hazards posed by this
situation is suggested by the fact that the pumps at the
other mine sites were designed differently . Specifically,
they were designed so that the driver could pull nose first
up to the tanks. When designed in this manner, the gas hose
was long enough to reach the gas tanks on both sides of the
truck without having to move the truck or raise the bed.

413

There are three major problems with the Secretary's
argument.
First, there is insufficient evidence to establish
that the independent haulage contractor B&S had any authority
regarding the location and arrangement of the fuel pumps at
issue. The pumps were apparently under the control of a separate
corporate entity, Manalapan Mining Company. Second, even if B&S
had authorized the location of the pumps it is undisputed that
the haulage truck drivers could nevertheless have fueled both
their tanks from that configuration in compliance with the law.
Third, finding negligence retroactively by reliance upon
subsequent remedial measures i.e. by realigning the fuel pumps
into a position facilitating the safe fueling of haulage trucks,
is contrary to public policy and the objectives of the Act to
encourage mine operators to optimize safety. See also Rule 407,
Federal Rules of Evidence.
There is, moreover, no evidence of any prior violations or
similar practices at this or any other mine location and indeed
it is the undisputed testimony that the regular truck drivers
customarily filled the driver's side fuel tanks on one pass and,
upon returning, filled the other side tank -- a non-violative
practice.
I have also considered the evidence that B & S
employees had been provided required safety training, including
specific warnings against working under unsecured raised truck
beds. Even the truck driver at issue in this case, Charles
Brock, acknowledged having such training and admitted that he
knew working beneath raised unsecured truck beds was improper.
Under the circumstances, I find B & S chargeable with but little
negligence.
In reaching my conclusions in this case, I have not
disregarded the testimony of truck driver Charles Brock that he
worked beneath the raised truck bed only while passing the hose
across the truck frame and that he did not actually climb across
the truck frame itself.
I nevertheless find the disinterested
and credible testimony of Inspector Langley that he actually
observed Brock crossing the truck frame beneath its raised. bed,
to be entitled the greater weight. Langley had an unobstructed
view of Brock from a distance of only about 100 feet.
I also
note Brock's self-interest in avoiding possible discipline from
his employer for having violated known rules of safe conduct.
Under all the circumstances .and considering the relevant
criteria under. section llO{i) of the Act, I find that a civil
penalty of $400 is appropriate for the violation herein.

ORDER
Citation No. 4242292 is AFFIRMED as a "significant and
substantial" citation and B & s Trucking Company is hereby

414

directed to pay a civil penalty of $400 withi
date of this decision.

30 days of the

Distribution:
Susan E. Foster, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862 (Certified Mail}
Susan c . Lawson, Esq., Buttermore, Turner, Lawson &
Boggs, P.S.C., 111 s. First Street, P.O. Box 935, Harlan, KY
40831 (Certified Mail}
/jf

415

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

MAR 2 11995
SECRETARY OF LABOR,
MINE AND SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ON BEHALF OF
JAMES P. LAMONT,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No . PENN 93-382-D
MSHA Case No. Pitt CD 93-01

I

Tanoma Mine
SOL No. 3950131

TANOMA MINING COMPANY,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Feldman

This discrimination complaint was filed on June 9, 1993 , by
the Secretary on behalf of James P . Lamont pursuant to Sectio n
lOS(c) (2) of the Federa l Mine Safety and Health Act of 1977,
30 U.S . C. § 815(c) (2).
The subject complaint arises out of an
allegation by Lamont that he was illegally discri minated against
on September 15, 1992, when he received a disciplinary letter
after reporting four accidents in the previous year. The
disciplinary let ter was issued in conjunction with the
respondent's newly implemented accident reduction program.
On
July 13, 1993, the Secretary filed an amended complaint seeking,
in addition to the remedies sought on behalf of Lamont, to assess
a civil penalty of $3,000 against the respondent.
This matter was stayed on August 5, 1993, pending the
outcome of the Commission ' s decision in Swift v. Consolidation
Coal Company, 16 FMSHRC 201 (February 1994) .
Following the
Commission ' s decision in Swift, on November 25, 1994, I lifted
the stay and set this case for hearing on December 29, 1994.
The
case was continued without date a 'f ter counsel for the Secretary
advised that the parties had reached settlement. A joint motion
to approve settlement was filed on February 27, 1995.
For the purposes of settlement, the respondent has agreed:
to rescind its accident reduction program; to expunge any
references to the disciplinary letter in issue from Lamont ' s
personnel records; and to ensure that Lamon t will not be
discriminated against in the future . With respect to t he
proposed civil penalty, the respondent has agreed to pay a
reduced civil penalty of $500.
416

The parties ' settlement terms provide that the terms of
resolution are for settlement purposes only . The parties do not
admit liability in this matter and the parties agree that nothing
herein shall bind the parties in the event of future litigation
concerning issues that are similar to this case .
Under the circumstances herein, the parties' joint motion to
approve settlement IS GRANTED . The respondent shall pay a civil
penalty of $500 within 30 days of the date of this decision .
Upon timely receipt of payment and satisfaction of the settlement
terms, the discrimination complaint filed on behalf of James P .
Lamont IS DI SMISS ED with prejudice.

~~~
~
~)_--...;:,..-,
( /Jerold Feldman
Administrative Law Judge
Distribution:
Theresa C. Timlin, Esq., Office of the Solicitor, U.S. Department
of Labor , Room 14480, Gateway Building, 3535 Market Street,
Philadelphia, PA 19104
Joseph A . Yuhas , Esq., 1809 Chestnut Avenue, P.O. Box 25,
Barnesboro, PA 15714
/rb

41 7

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

.MAR 2 2 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA}
Petitioner
v.

JEN, INC.

CIVIL PENALTY PROCEEDINGS
Docket No. SE 93-262
A. C. No. 40-02804-03608
Docket No. SE 93-263
A. C. No. 40-02804-03607

I

Respondent
Docket No. SE 93-288
A . C. N9. 40-02804-03610
Docket No. SE 93-313
A. C. No. 40-02804-03609
Docket No. SE 93-329
A. C. No. 40-02804-03611
Docket No. SE 93-330
A. C. No. 40 -02804 -03612
Docket No. SE 93-331
A. C. No. 40-02804-03613

Docket No. SE 93-332
A. C. No. 40-02804-03614
Docket No. SE 93-346
A. C. No. 40-02804-03615
Mine No. 39

ORPER OF DEFAULT

On June 1 and June 28, 1993, the 'Secretary of Labor
(Secretary) filed petitions for the assessment of civil penalties
against JEN, Incorporated (JEN) in the above captioned cases. On
August 20 and September is , 1993, orders to show cause were

418

issued by Judge Merlin directing the operator, JEN, to file its
answers to these penalty petitions or show cause why it should
not be held in default. The files contain the return receipts
showing that JEN received these orders on August 23 and
September 20, 1993 . No answers were filed.
On March 8, 1994, Judge Merlin issued yet another order to
show cause, allowing JEN a further opportunity to file answers in
the captioned cases or show cause why it should not be held in
default . No answers were filed by JEN nor did it file any
response to the March 8, 1994 order. The file contains the
return receipt showing that JEN received the March 8 order on
March 12, 1994 .
In light of the foregoing, on May 9, 1994, Judge Merlin
issued an order of default in the captioned cases and ordered the
assessed civil penalties paid immediately.
There the matter stood until October 7, ' 1994, when the
Commission received a letter from JEN's president, Mr. James
Nunley, in which he requested relief from the default order, for
no particular reason that I am able to discern.
Nevertheless, the Commission on December 19, · 1994, "in the
interest of justice," reopened these proceedings and remanded the
matter to Judge Merlin for assignment to a judge, who should in
turn determine whether final relief from default is warranted.
On January 12, 1995, the undersigned issued an order to JEN
wherein JEN was "ordered to show cause within 30 days why final
relief from default is warranted." I specifically warned that
"[i]f it is unable to do so, another default order will issue
against JEN for the total amount of the assessed civil penalties,
as before." The file contains the return receipt showing that
JEN received .the January 12 order on January 17, 1995. There has
been no response to date.

419

Accordingly, it is ORDERED that the operator be held in
DEFAULT in the captioned cases and it is further ORDERED that the
operator pay the total assessed civil penalties in these cases,
i.e., $37,832, immediately.

Law Judge
Distribution:
Donna Sonner, Esq., Office of the Solicitor, U. S. Department of
Labor, 2002 Richard Jones Road, Suite B201, Nashville, TN 37215
(Certified Mail)
Mr. James E. Nunley, President, JEN, Inc., P. O. Box 328,
Whitwell, TN 37397 (Certified Mail)
dcp

420

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

MAR 2 3 1995
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.
I

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 94-247
A.C. No. 36-04999 - 03549
Mine: Leslie Tipple

POWER OPERATING COMPANY,
Respondent

Docket No. PENN 94-201
A.C . No. 36-02713-035~9
Docket No. PENN 94-210
A.C. No. 36-02713-03598
Docket No. PENN 94-271
A.C. No. 36-02713-03602
Mine: Frenchtown
DECISION

Appearances:

Theresa C. Timlin, Esq., Office of the
Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for Petitioner;
James J. Sullivan, Jr., Esq., Kathryn A. Kelly,
Esq., Pepper, Hamilton & Scheetz, Wilmington,
Delaware, and
Michael T. Farrell, Esq., Stradley, Ronon,
Stevens & Young, Philadelphia, Pennsylvania,
for Respondent.

Before:

Judge Amchan

The seven citations/or~ers and proposed penalties in
these cases arise from MSHA inspections of Respondent's mining
facilities in central Pennsylvania in the fall of 1993. The
Frenchtown surface coal mine, where the violation alleged in
Docket No. PENN ~4-201 occurred and the Leslie Tipple, where
the violations alleged in Docket Nos. PENN 94-210, PENN 94-247
and PENN 94-271 occurred, are five to ten miles apart (Tr. II:

421

..

.·

21-23). The Leslie Tipple includes the preparation plant and
refuse area for the Frenchtown Mine (Tr. II: 22) 1 •
Order No. 3710524:

Cut in dump truck tire

On September 30, 1993, MSHA Inspector Lester Poorman began
inspecting the Frenchtown surface coal mine at 8:30 a.m. (Tr . I:
50). Immediately upon his arrival at the pit, at which mining
was in progress, Poorman n oticed Caterpillar dump truck No. 130
suddenly leave the pit area and drive to the rnine's tire storage
area (Tr. I: 54). The inspector believed he saw a large cut on
the truck's right front tire (Tr. I: 55,57 ).
At the storage area, Poorman measured the cut and found it
to be 38 inches long, 20 inches wide , and two to three inches
deep (Tr. I: 55-56).
It extended from the inside sidewall in a
half - rnoonlike pattern to the portion of the tire touching the
roadway (Tr. I: 55-57~.
The inspector determined that the day-shift driver of truck
No. 130 had completed an equipment report at the end of his shift
the previous evening (6:00 p.m., September 29, 1993), which noted
a bad cut in the right front tire (Tr. I: 58-59, 63) 2 .
However,
the equipment report of the night-shift driver did not mention
the cut in the tire (Tr. I: 63, 80-81, 111-112).

1

The assessment control numbers assigned the proposed
penalties in these cases are not consistent with the mine
identification numbers for the locations at which the alleged
violations occurred.
2

Poorman also testified that the driver told him that
when he advised his foreman Robert Greenawalt of the cut,
Greenawalt told him that if he was not satisfied with the
condition of the truck, he coul~ go home (Tr. I: 64-65). The
import of this testimony is that the driver was forced to
use the truck in its defective condition.
I .decline to find,
solely on the inspector's hearsay testimony, that any such
conversation occurred. Moreover, even if such conversation
did occur, it is unclear when it took place (Tr. I: 67, 101-02).
This leaves open the possibility that the condition of the tire
was much less dangerous than when observed by Inspector Poorman.

422

.;.·

As a result of his observations and an interview with the
day-shift driver, Poorman issued Order No. 3710524, alleging
a violation of section 104(d) (2) of the Act and 30 C.F.R.
§77.404(a). The regulation requires that mobile and -stationary
equipment be maintained in safe operating condition and that
unsafe equipment be removed from service immediately. MSHA
subsequently proposed a $5,000 civil penalty for this order.
Respondent's defense to the order
Truck No. 130 was sent to the tire storage area by Foreman
Robert Greenawalt (Tr. I: 57, 94, 97) and the damaged tire was
replaced prior to 11:30 a.m. (Order No. 3710524, block 18,
Tr. 94-97).
I credit Greenawalt's testimony that he sent the
truck to tire storage area as soon as he was aware of the large
cut on the right front tire (Tr. I: 97, 101-02) . 3
This, however, does not end the inquiry into the question
of whether Respondent violated the cited regulation or whether
it was negligent in doing so. The fact that Greenawalt was
unaware of the defect in the tire until sometime on the morning
of September 30 is the result, in part, of the procedures set
up by Respondent for handling reports of defective equipment.
I conclude, on the basis of the operator's report and Inspector
Poorman's testimony, that the vehicle had not been in safe
operating condition at least since the end of the day shift at
6:00 p.m. on September 29 {Tr. I: 109).
I conclude further that this vehicle had been used and had
been available for use in an . unsafe condition for a period· of

3

I allowed Greenawalt to testify over Petitioner's
objection that Greenawalt was not listed in Respondent's
pre-trial exchange. Since my notice of hearing required the
parties to exchange witness lists only one week before hearing,
I fail to see how Greenawalt's "surprise" appearance prejudiced
Petitioner 1 s trial preparation. Moreover, Inspector Poorman had
been told by the driver during the inspection that Greenawalt had
sent him to the tire storage area {Tr. I: 57).
In the absence of
any prejudice, I see no basis for excluding Greenawalt 1 s testimony for Respondent's noncompliance with the directions in the
Notice of Hearing, DeMarines v. KLM Royal Dutch Airlines,
580 F. 2d 1193, 1201-02 (3d Cir., 1978).

423

14 hours due to Respondent's procedures for handling defective
equipment reports . Respondent contracted with Gem Industries
for maintenance of its equipment (Tr. I: 105-06). Drivers'
vehicle reports went to Gem Industries, not to Power Operating
or its foremen (Tr. I : 100, 105-06).
Gem Industries reviewed the equipment reports and informed
Respondent if any corrective action was warranted (Tr. I: 105 07) .
I conclude that Respondent cannot contract away its
responsibility to immediately remove unsafe equipment from
service . If the contract with Gem Industries failed to provide
a mechanism for prompt corrective action with regard to the
driver's September 29, 1993 report, Power Operating bares
responsibility for this failure under the Federal Mine Safety
and Health Act.
I credit the opinion of Inspector Poorman that continued
use of the truck in the condition in which it was reported on
September 29, and observed on Sep~ember 30, was reasonably
likely in the normal course of mining operations to result in a
blow-out of the tire.
Its condition made it reasonably likely
that miners would be seriously injured by flying objects (Tr. I :
66-67), Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984);
U.S . Steel Mining Co . , 6 FMSHRC 1573, 1574 (July 1984).
On the other hand, I do not believe that the record
supports a conclusion that Respondent's negligence was
sufficiently "aggravated" to constitute an "unwarrantable
failure" to comply with the regulation.
I deem Respondent's
negligence to be ordinary and affirm this violation as a
"significant and substantial" violation of section 104(a)
of the Act.
Considering the six penalty criteria in section llO(i)
of the Act, particularly the gravity of the violation, the
degree of negligence, and Respondent's immediate abatement
of the violation, I assess a $1 ,,500 civil penalty.
I believe
a penalty of this magnitude is warranted by the fact that this
truck was available for use in an unsafe condition for at least
14 hours after the defect was reported by the driver (Tr I: 69,
109-110) .

Respondent's handling of refuse at the preparation
plant; Order No. 3710451 (Docket No. PENN 94-210);
Order Nos. 3710505 and 3710506 (Docket No.
PENN 94-271); Order No. 3710674 and Citation
No. 3710675 (Docket No. PENN 94-247)
Four of the violations in these dockets concern whether
Respondent's procedures for handing refuse at its coal preparation plant comport with MSHA's regulations at 30 C.F.R.
§77.215. More specifically, the issues are whether refuse was
deposited and spread so as to minimize the flow of air ttirough
a refuse pile in conformance with §77.215(a), and whether the
piles were compacted in two-foot layers as required by
§77.215(h).
Order No. 3710451 (Docket No. PENN 94-210)
On October 13, 1993, MSHA Inspector Charles Lauver
inspected the 005 refuse pit at Respondent's preparation
plant (the Leslie Tipple) . Lauver observed a large number
of piles of refuse from the preparation plant that were
between four to eight feet high.
They were peaked in shape
and overlapped at the base (Tr. I: 124, 173). These piles had
not been spread or compacted. A bulldozer was pushing dirt
on top of the piles of coal refuse 4 •

4

This refuse is a mixture of rock, shale, dirt, clay and
fine coal that is cleaned from the raw coal by washing at the
preparation plant (Tr. I: 129, 157).
It must be deposited in
piles regulated by MSHA pursuant to §§77 . 214-77.215-4.
A major issue between MSHA and Respondent was the company's
practice of stacking large amounts of refuse adjacent to the
preparation plant prior to moving it to the refuse pile.
Although there was considerable testimony regarding this
practice, it appears to have little relevance to, the violations
alleged (Tr. I: 219-224). MSHA apparently believed that the
alleged failure to compact the refuse in accordance with its
interpretation of §77.215(h) was due to the large amount of
refuse being hauled from the preparation plant to the refuse
pile in October and November, 1993.

425

Because he determined that no effort was being made to
spread and compact the refuse in two-foot layers, Lauver issued
Order No. 3710451, alleging a violation of §77.215(h). That
regulation states that, ~After October 31, 1975 new refuse piles
and additions to existing refuse piles, shall be constructed in
11
compacted layers not exceeding two feet in thickness...
Power Operating•s procedure for compacting refuse was to
let it sit for a few days after being dumped at the refuse pile.
Then it covered the refuse with soil, spread and compacted it
(Tr. I: 152, 171). Respondent•s witnesses testified that the
refuse is up to 30 percent water when dumped and is too loose
to support the weight of the machines that compact and spread it
(Tr. I: 151 -52, 171-72, 174). Not only is this testimony not
controverted, it is essentially corroborated by Inspector Lauver
and the Secretary's expert, John Fredland . Lauver testified:
Q.

. ... this material is generally so soft that a
vehicle could sink into it if it were to drive
on top of it?

A.

Yes, sir.

Q.

You said that this is a thick mud material that
is soft enough for a vehicle to sink into it.
Does it make a difference in your mind whether
the vehicle is riding over a two or three-foot
layer of material as opposed to a six-foot pile
of material in terms of the likelihood of the
vehicle to sink into it?

A

.... In this case a bulldozer riding over a
two or three-foot layer of material, the tracks
are able to get purchase . [traction] even if it
begins to spin .
When it gets thicker than
that the machine will, what we call, belly out
on the track.
It will rest on the belly pan on
the underpart of the machine and the tracks will
be unable to get purchase and they'll sit there
and spin.
(Tr. I: 147-48).

(Tr. I : 14 6 - 4 7) .

426

Mr. Fredland agreed that a bulldozer would sink into
a refuse pile with moisture content of 30 percent or even
25 percent (Tr. I: 200, 207).
Respondent argues that nothing in the cited regulation
specifies a time period in which the refuse must be spread
and compacted in two-foot layers.
It contends further that
by compacting the material in two-foot layers after letting
it dry for two to three days it complies with the terms of
§77.215(h).
I reach the same conclusion.
Respondent also suggests that its procedures are consistent with the underlying rationale of the regulation which
is to minimize air flowing through the refuse pile so as to
prevent fire through spontaneous combustion (see ~r. I: 135 - 37,
194-95, 276 - 78). There is nothing in this record that persuades
me that waiting · several days before spreading and compacting the
refuse created a possibility of spontaneous combustion in the
newly deposited refuse (see Tr. I: 156).
There remains the issue of whether the Secretary proved its
case through an expert witness, John Fredland. Mr. Fredland
opined, based on testimony of Inspector Lauver and Respondent's
witnesses, that it would not be possible for Respondent to
achieve a two-foot layer, and that the refuse would end up
in layers as thick as four feet (Tr. I: 187-89, 192-94, 202-03) 5 •

I allowed Mr. Fredland to testify at the hearing despite
Respondent's objections that his testimony should be excluded
because the Secretary did not timely identify him as a witness
by October 11, 1994, as required in the notice of hearing.
Pursuant to my pretrial orders in this case, the parties were
not required to exchange th8 names of witnesses until _ a week
before the October 18, 1994 hearing. The Secretary did not
identify Mr. Fredland as a witness until October 14.
5

There are four factors that should be considered in deciding
whether to exclude testimony for failure to timely comply with
pre-trial notice requirements:
(1) the prejudice or surprise to
the other party, (2) the ability of the other party to cure the
prejudice or surprise, (3) the extent to which allowing the
witness to testify would disrupt the orderly and efficient trial
of the case, and (4) the bad faith or willfulness in failing to

427

Larry Kanour, Respondent's safety director, who saw the
piles in question on October 13, 1993, testified that they
"probably" were four to six feet in height (Tr. I .: 173) and
that from previous drilling in the refuse pile he knew that
the company was able to compact the mat~rial into two-foot
layers (Tr. I: 173). Given the state of the record I am not
sufficiently persuaded by Fredland's testimony to conclude that
the Secretary has met his burden of proving that Respondent
did not compact the refuse material into two foot layers.. I
therefore vacate Order No. 3710451 and the corresponding $1,800
proposed penalty.
Order Nos. 3710505 and 3710506 (Docket No. PENN 94-271)
On November 3, 1993, Inspector Lauver returned to the
005 Pit (Tr. I: 216). He observed two areas in which refuse
had been dumped several days earlier without being spread and
compacted (Tr. I: 217, 240, 246).
As the result of his observations, Lauver issued
Order No. 3710505 alleging another "unwarrantable failure" to
comply with §77.215(h) and Order No. 3710506, which alleged an
"unwarrantable failure" to ·comply with 30 C.F.R. §77.1713(a)
The latter regulation requires a examination of each surface

(Footnote. 5, continued)
comply with the pre-trial disclosure requirements, DeMarines
v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1201-02 (3d Cir.
1978)). Considering the above factors, I conclude that excluding
Mr. Fredland's testimony would ·have . been unwarranted.
I note that on June 9, 1994, Respondent served interrogatories on the Secretary requesting him, among other things
to, "Identify all persons who possess knowledge or information
relevant to the above-captioned matter." · r do not interpret
this interrogatory as asking for the identification of any
expert witness that may be called to testify at trial.
If I
did interpret the interrogatory as covering the identity of
potential expert witnesses, I may well have excluded
Mr. Fredland's testimony.
In part as the result of the instant
proceeding, I have changed my prehearing orders to require the
exchange of the names of potential witnesses, including experts,
at an earlier stage in the pre-trial process.

428

··.

installation of a coal mine at least once each shift. All
hazardous conditions must be recorded and corrected. The
gravamen of Order No. 3710506 was that a hazardous condition
had existed for several days at the 005 Pit due to Respondent's
failure to spread and compact the refuse cited in Order
No. 3710505 and no record had been made of it.
Respondent readily admits that the procedures it followed
at its 005 refuse pit were the same as when inspector Lauver
visited it on October 13 {Tr I: 254-55). Power Operating dumped
refuse in the left side of . the pit at the beginning of each week,
dumped in the center of the pit during the middle of the week,
and in the right side of the pit at the end of the week (Tr. I:
256) . The company has been following this procedure for at least
33 years (Tr. I: 268, 272-73).
In the middle of each week Respondent began to spread and
compact refuse dumped at the beginning of the week, which by
that time had dried significantly (Tr I: 256-257).
Indeed,
Inspector Lauver observed a bulldozer spreading and compacting
material in an area of the pit separate from those cov~red by
the order (Tr. I: 226, 252) 6 •
I vacate Order No. 3710505 for the same reason that I
vacated Order No. 3710451. MSHA's regulations do not require
that coal refuse be spread and compacted immediately upon being
dumped at a refuse pile. Moreover, there is nothing in this
record that would lead me to conclude that a reasonably prudent
person familiar with the mining industry and the protective
purposes of the standard would recognize that Respondent's
procedure for spreading and compacting refuse violated §77.215,
Ideal Cement Co., 12 FMSHRC 2409 (November 1990). Although
fire from spontaneous combustion is a hazard at refuse sites,
I am not persuaded that such a hazard exists as a result of
an operator waiting several days fpr refuse to dry out before
spreading and compacting it.

6Although

Lauver's testimony suggests that the bulldozer was
spreading and compacting refuse as it was dumped, Respondent's
evidence indicates that it never spread and compacted refuse that
had been through the wash plant until it had several days to dry
out (Tr. I: 265-66).
429

Order No. 3710506 is vacated because its validity rests
on Inspector Lauver's assumption that the failure to spread
refuse as soon as it is dumped is a hazardous condition.
Since I am not persuaded that Respondent's procedure for
spreading and compacting refuse was hazardous, the company ' s
failure to take 11 corrective 11 action or record the existence
of the condition did not violate §77.17l3(a).

·.
Order No. 3710674/Citation No. 3710675 (Docket PENN 94-247)
On October 20, 1993, MSHA Inspector Joseph Colton was
inspecting the areas leading to and surrounding Respondent's
preparation plant (Exh. G6-A). At about mid-day he observed
an area in which the +5 refuse material was deposited and saw
what he believed was smoke corning from the refuse (Tr. II : 20203, Exhs. Gll-15, Order No. 3710674, block 8). The area from
which the white substance was rising had a pungent odor similar
to sulfur (Tr. II : 206-07).
The +5 refuse is material that is too large to go through
the preparation plant and is separated from the coal and smaller
refuse by a rotary breaker (Tr II: 203, 299).
It consists of
shale, siltstone, sandstone and some impure coal (Tr. II: 299300}.
It felt hot to the touch of Colton's gloved hand (Tr. II:
204-06).
Colton issued imminent danger Order No. 3710674, pursuant
to section 107(a) of the Act. Shortly thereafter he issued
section 104(a} Citation No . 3710675 for the same condition,
alleging that Respondent violated §77.215(a), which requires
that refuse deposited on a pile be spread in layers and be
compacted in a manner so as to minimize the flow of air through
the pile. MSHA proposed a $3,000 civil penalty for this
citation/order.
At Inspector Colton's suggestion, the +5 material was moved
to an empty area near the preparation plant where it was spread
·and compacted {Tr . II: 210, 272-73). Respondent's normal
procedure for handling +5 refuse is to deposit it on the gr?und
by the preparation plant for three to four days and then p rocess
i t a second time in order to recover residual coal {Tr. I I: 290 9 2) .
It i s t h en hauled to the 005 refuse pit wher e i t i s spread
and compacted {Tr. II: 317-18).

430
·~t

\·.'....
·l:.

I vacate Citation No. 3710675 and the penalty proposed
therefor because §77.215(a} does not specify a time period in
which such refuse must be spread in layers and compacted.
I
also conclude that a reasonably prudent person familiar with
the mining industry and the purposes of the standard would not
necessarily conclude, on the basis on the instant record, that
Respondent's normal procedures for handling +5 refuse violated
the regulation.
In so · finding, I credit the testimony of Respondent's
witness, John Foreman, over that of Inspector Colton in
concluding that the white gaseous substance observed by Colton
was water vapor, rather than smoke, and the +5 refuse was not
on fire (Tr. II: 295-303} . 7 Inspector Colton believed that
miners were reasonably likely to incur permanently disabling
injuries due to exposure to noxious gases emitted from the
smoking +5 refuse pile (Tr. II: 221-22, Citation No. 3710674,
block 10) .
· Inspector Colton is a high school graduate and has been
trained as an electrical specialist by MSHA {Tr. II: 32-36).
Mr. Foreman has a college degree in geologica·l science and is
a consultant who permits, constructs and manages refuse piles

7

I allowed Mr. Foreman and several other witnesses to
testify over the objections of the Secretary's counsel. These
witnesses were not identified by Respondent in the prehearing
exchange.
I reiterate my conclusion that exclusion of such
witnesses was not warranted, see discussion at pages 6-7, n.5,
herein. This is particularly true in view of the fact that I
offered both sides the opportunity to reconvene the hearing at
a site agreeable to the parties to take additional testimony
in order to cure whatever prejudice either of them may have
suffered from 11 surprise 11 witnesses or exhibits (Tr. II: 308-311).
Neither party has availed themsel~es of this offer.
I acknowledge that, while the Secretary's 11 surprise"
witness and exhibits have little bearing on the outcome of
this case, Mr. Foreman's expert testimony is an important
factor in my resolution of Citation No. 3710675. It is his
testimony that persuades me that no hazard was presented to
miners by Respondent's procedures for handling +5 refuse.

431

(Tr . II: 295-299).
I conclude that Mr. Foreman is better
qualified to render an opinion of the nature of the emissions
from the +5 refuse pile than is Inspector Colton. Therefore,
I find that this record fails to establish that exposure to
the vapor from the +5 refuse exposed miners to a hazard .
Order No. 3710673 : Unsafe haulage roads
Upon his arrival at the Leslie Tipple on October 20, 19 93 ,
Inspector Colton started to drive up a hill on the _road leading
to the raw coal storage area. (Tr. II: 40-43, Exh. G6-A, road
"A"). At the base he noticed that the truck in front of him
was having difficulty negotiating the hi ll.
It was moving very
slowly and its wheels were spinning (Tr. II : 42).
October 20 was the fifth straight day that it had rained at
the Tipple and the mud on the road was approximately 18 inches
deep (Tr. II: 46, 143-44, Exh. 21). Colton saw another truck
coming down the hill which was travelling in short jerky movements, which indicated to the inspector that the driver was
trying to avoid a ~kid to the center of the road (Tr. II: 43).
One of the drivers told Colton that he had observed another truck
slide sideways on the hill earlier that morning (Tr. II: 49-50) .
Colton drove to the scale house at the preparation plant
to inform plant manager John Soltis that he was issuing a withdrawal order pursuant to section 104(d) (1) of the Act so as to
require Respondent to remove the accumulated mud from the roadway
(Tr II : 51) . As he was talking to Soltis, a front-end loader
drove by the scale house and entered an area where it travelled
through five feet of water (Tr. II: 51-52, Exh. G-6A, area " E").
The inspector issued 104(d) (1) Order No. 3710673 for both
these conditions. The order alleges a failure to comply with
30 C . F . R. §77 . 1608{a) . The standard requires that dumping
locations and haulage roads be reasonably free of water, debris
and spillage.
Colton was particularly concerned about the possibility of
a collision between two trucks on the haulage road, at a point
where it intersected with another r oad {Tr. II : 90-91 ). At the
other cite d l ocation he was concerned that a v ehic l e d river using

432

a fueling station adjacent to the scale house could drown in the
water impounded by +5 refuse (Tr. II: 70, 91-92, 116-17, 147,
151-54, Exhs. G7-9).
Respondent concedes that it was having trouble keeping the
haulage road free of mud, but suggests it was doing the best it
could.
It had scraped the mud from the road with a front-end
loader earlier that morning (Tr. II: 160). Power Operating
claims that the area in which water was allowed to accumulate
south of the scalehouse was not accessible to its vehicles.
It
contends that all drivers had been told not to enter the area
(Tr . I I : 16 3 , 16 6 - 6 7 , 177 - 7 8 , 19 2 - 9 3 ) .
I affirm this alleged violation as a "significant and
substantial" violation of §77.1608(a) with regard to both
areas and assess a $1,250 civil penalty. The Secretary has
not established that the violations in either area were the
result of Respondent's "unwarrantable failure" to comply
with the regulation.
I credit Inspector's Colton's testimony and find the
haulage road was not "reasonably free" of water and debris
and was in extremely dangerous condition. Respondent recognized that the wet conditions of the preceding days had made
the road dangerous and took some steps to eliminate the hazard
by pushing the mud to the bottom of the road (Tr. II: 190).
However, given the conditions observed by Colton, the company
obviously did not scrape the road often enough.
Respondent had knowledge of the propensity for this road to
become dangerously muddy. Thus, it was incumbent upon Respondent
to assure that hazardous conditions did not recur before letting
vehicles use the road. Since it failed to do this, I find its
conduct negligent, although not sufficiently aggravated to
sustain a characterization of "unwarrantable failure."
Given the conditions observed by Inspector Colton, I find,
however, that an accident resulting in serious injury was
reasonably likely and that these conditions were due to some
considerable degree of negligence on the part of Respondent.
I
conclude that the gravity of the violation and Power Operating's
negligence in allowing it to occur warrant a $1,250 penalty.

433

I also credit Inspector Colton ' s testimony that he
observed a front-end loader travelling through the impounded
water in the +5 refuse area. Further, I credit his testimony
that vehicle drivers using the fueling pump near the scalehouse
were endangered by this accumulation of water.
While ·1 credit Respondent•s testimony that it took steps
to prevent access to the accumulated water, I conclude that
these steps were insufficient, as evidenced by the direct observations of Inspector Colton. Since Power Operating management
realized the potential hazard posed by the impounded water, I
conclude that it was obligated to take more concerted measures
to preclude miners from entering this area.
The record does not
establish that Power Operating took measures that would have
assured that all miners would stay out of impounded water.
Given the action taken by Respondent to warn its employees,
I. conclude that its conduct does not rise to the leve l of
aggravated conduct, but was sufficiently negligent to warrant
the imposition of the $1,250 penalty assessed for the violations
in both areas.
The precautions taken by Power Operating to
prevent access to this area indicate its awareness that entry
into the impounded water area was reasonably likely to result
in serious injury.
Order No. 3710704; Accumulation of combustible
material in the old bucket shop
On October 26, 1993, Mr. Colton inspected. the old bucket
shop at Respondent•s preparation plant (Tr. II: 224). At the
north end of the shop is a door used by Respondent to bring a
front-end loader partially inside the building for lubrication.
Three 275 - gallon drums of lubricant and several smaller drums
were positioned by the door. There were oil soaked rags, wooden
containers, wooden pallets, grease and other combustible
materials around these drums of lubricant (Tr. II : 225-228).
Fluorescent lights, electrical sockets and an air compressor
were also in this area.
Inspector Colton believed the conditions
posed a fire hazard and therefore issued Order No. 3710704,
pursuant to section 104(d) (1) of t he ·Act, a l leging a viol ation
of 30 C . F . R. §77.1104. That standard prohibits the accumul ation
of combustible materials, lubricants and grease where such
substances can create a fire hazard.
434

•·.·

While I credit Inspector Colton's opinion that these
conditions at the north end of the bucket shop created a fire
hazard, I conclude that the Secretary has not proven that a fire
resulting in serious injury was reasonably likely. The record
also does not establish that Respondent was highly negligent
in allowing this condition to exist. I therefore affirm this
violation as a "non-significant and substantial" violation of
section 104(a) of the Act. Applying the six criteria in
section llO(i) of the Act, I assess a $400 civil penalty.
Respondent had applied some oil-dry, a substance which
soaks up grease and oil, in front of the tanks and drums.
While it should have cleaned up the area better, I deem its
failure to do so constitutes a moderate degree of negligence.
also conclude that the viola t ion was not nearly as
serious as assumed by the inspector. Mr. Colton was concerned
that a spark caused by a fault in an electrical circuit could
cause a fire (Tr. II: 234). The record, however, does not
establish that such a spark was reasonably likely to occur, or
that it was reasonably likely to cause a fire (Tr. II: 262-70,
287-93).
I

The inspector also based his opinion of the likelihood of
fire on an assumption that hot vehicle exhausts would enter the
bucket shop (Tr. II: 234). However, I credit the testimony of
Assistant Plant Manager Gary Crago that the only vehicle entering
the north end of the bucket shop is a front-end loader (Tr. II:
292).
I further credit his testimony that this vehicle enters
the shop only half-way with the exhaust (the hottest surface on
the vehicle) outside of the building (Tr. II: 289).
ORDER

Citation No. 3710524 is affirmed as a significant and
substantial violation of section 104(a) of the Act and a
$1,500 civil penalty is assessed.
Citation No. 3710673 is affirmed as a significant and
substantial violation of section 104(a) of the Act and a
$1,250 civil penalty is assessed:

435

·:.

·.....

Citation No. 3710704 is affirmed as a non-significant
and substantial violation of section 104(a} and a $400 civil
penalty is assessed .
Order Nos. 3710451, 3710505, 3710506 and Citation
No. 3710675 and the corresponding proposed penalties are
vacated.

,

:··.

The assessed civil penalties in this matter shall be
paid within 30 days of this order.

Def~~
Arthur J. Amchan
Administrative Law Judge
Distribution:
Theresa C. Timlin, Esq., Office of the Solicitor,
U.S. Department of Labor, 14480 Gateway Building,
3535 Market St., Philadelphia, PA 19104 {Certified Mail)
James J. Sullivan, Jr., Esq . , Kathyrn A . Kelly , Esq.,
Pepper, Hamilton & Scheetz, P . O. Box 1709, 1201 Market
Street, Suite 1401, Wilmington, DE 19899-1709 (Certified Mail)

/lh

436

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-3993/FAX (303) 844-5268

March 27, 1995
TEMPORARY REINSTATEMENT
PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of KEITH D. JAMES,
Applicant

Docket No. WEST 95-151 -D

v.

Cordero Mine
48-00992

CORDERO MINING COMPANY,
Respondent

DECISION APPROVING TEMPORARY REINSTATEMENT
and
ORDER OF DISMISSAL
Appearances:

Margaret A. Miller, Esq., Office of th e Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Applicant;
Charles W. Newcom, Esq., Sherman & Howard,
Denver, Colorado,
for Respondent.

Before:

Judge cetti
I

This Discrimination Proceeding concerns an Application for
Temporary Reinstatement. It was filed on January 20, 1995, by
the Secretary of Labor on behalf of Keith D. James. The action
was brought pursuant to the Federal Mine Safety and Health Act of
1977, 30 u.s.c. 801, et .§..filL.., Supp. 1, 1977, 30 u.s.c .
§ 815(c) (2) and Commission Rule 45, 29 C.F.R. § 2700.45.
Within 10 days following receipt of the Secretary's application to temporary reinstatement Respondent objected to the
application and requested a hearing.
The parties declined an immediate hearing, requesting
instead that the matter be heard on March 22-24, 1995, in
Gillette, Wyoming at the same time as the regular discrimination
hearing on the merits for permanent reinstatement and other
remedies as set forth by the Secretary in Docket No. WEST 95-226-

D.

437

II

Undisputed Facts

1. Respondent Cordero Mining Co. supervises, operates, and
controls mining activities at the Cordero Mine (MSHA I.D. No. 4900992) located in Campbell County, Wyoming, and is therefore an
"operator" as defined by Section 3(d) of the Act.
2. The products of the Cordero Mine enter and affect
interstate commerce.
3. At all times relevant to this proceeding Keith D. James
was employed by Respondent as an equipment operator and therefore
was a "miner" as defined in Section 3(g) of the Act.
4. On or about October 6, 1994, Respondent terminated the
employment of Keith D. James
5. Respondent is subject to the jurisdiction of the Federal
Mine Safety and· Health Act of 1977, 30 u.s.c. §§ 801 et~
("the Act").
6. The presiding Administrative Law Judge has jurisdiction
in this matter.
III

The hearing was held in Gillette, Wyoming on March 22 and 23
of ·1995. At the hearing the parties advised the Judge on the
record that the parties had mutually agreed to a voluntary economic temporary reinstatement beginning February 27, 1995 and continuing thereafter pending the decision in Docket No. WEST 95226-D which the parties are now briefing. The parties requested
the Judge's approval of their voluntary agreement. On review of
the present record I approved the voluntary temporary reinstatement agreement. There being no further issues in Docket No. WEST
95-151-D said proceeding for temporary reinstatement is
DISMISSED.

August F. Cetti
Administrative Law Judge

438

..

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
(Certified Mail)
Charles W. Newcom, Esq., SHERMAN & HOWARD, 633 17th Street, Suite
3000, Denver, co 80202
{Certified Mail)

sh

439

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

MAR 2 8 1995
SEC~ETARY

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

DAY BRANCH COAL CO., INC.,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No . KENT 94-275
A.C. No. 15-16418-03549
Docket No. KENT 94-921
A.C. No. 15-16418-03557
Docket No . KENT 94-388
A.C. No. 15-16418-03551
No . 9 Mine
Docket No. KENT 94-276
A.C. No. 15-16927-03543
Docket No. KENT 94-389
A . C. No. 15 - 16927-03547
Docket No . KENT 94-390
A.C. No. 15-16927-03548
No. 10 Mine
DECISION

Appearances:

Joseph B. Luckett, Esq., Office of the $olicitor,
U.S. Department of Labor, Arlington, Virginia, for
Petitioner;
Walter M. Jones, Jr., Esq., Wyatt, Tarrant &
Combs, Louisville, Kentucky, for Respondent.

Before:

Judge Fauver

These civil penalty cases were brought by the Secretary of
Labor for alleged violations of safety and health standards under
§ 105 (d) of the Federal Mine Safety and Health Act of 1977,
30 u .s .c . § 801 .e..t. ~440

Respondent is a small to medium sized operator. The cases
involve 40 alleged violations, 28 of which were the subject of
spe~ial assessments.
The total proposed penalties are $94,939.
Respondent concedes the violations, but contends the
penalties should be only nominal because the proposed penalties
would adversely affect Respondent's ability to continue in
business. No other defenses are raised.
Ms. Betty Cassim, the office manager and bookkeeper of
Respondent, testified that Respondent is owned by Mr. Bobby Joe
Hensley, the president of the corporation, who also owns other
corporations, such as Bob and Tom Coal Company. Respondent has
been operating at a loss for several years. Respondent and
another corporation owned by Mr. Hensley have outstanding debts
to vendors in the amount of $250,000 with more than half of this
amount owed by Respondent. Recently, a United States District
Attorney filed a collection suit against Respondent for over
$500,000 in final civil penalties and interest due under the Mine
Act. Ms. Cassim stated that Respondent is unable to pay the
amounts involved in that case.
Mr. James Laws also testified on behalf of the Respondent.
Mr. Laws is a tax consultant who has worked for Mr. Hensley for
approximately 15 years. He stated that Respondent had entered
into an agreement with the Internal Revenue Service for
installment payments of back taxes over $138,000, but IRS has
recently informed him that it intends to void the agreement ~or
nonpayment and to seize Respondent's assets and shut down its
operations. Mr. Laws stated that no litigation was expected by
Respondent to prevent this action by the IRS.
DISCUSSION WITH FURTHER FINPIHGS. CONCLUSIQNS
Section llO(i) of the Act provides six criteria to be
considered in assessing civil penalties:
The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil
monetary penalties, the Commission shall consider the
operator's history of previous violations, the
appropriateness of sue~ penalty to the size of the
business of the operator charges, whether the operator
was negligent, the effect on the operator's ability to

441

continue in business, the gravity of the violation, and
the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after
notification of a violation.
In proposing civil
penalties under this Act, the Secretary may rely upon a
summary review of the information available to him and
shall not be required to make findings of fact
concerning the above factors.
· The effect of a penalty on the operator's ability to
continue in business is not dispositive, but is one factor to
consider. The Act does not state that mine operators who are
operating at a loss are exempt from civil penalties or should
receive only nominal penalties.
Respondent has a long history of serious, repeated mine
safety and health violations and has regularly failed to pay
about 80 percent of the final c i vil penalties assessed against it
under the Mine Act. 1 This conduct plainl y jeopardizes its
employees while disadvantaging competitors who pay final civil
penalties due under the Act.
The instant cases involve numerous charges of high
negligence, unwarrantable failures to comply with the Act and
high gravity in exposing Respondent's employees to serious
hazards. Respondent has not contested the charges.
The record shows numerous liabilities incurred by Respondent
with no apparent intention of paying them. These total well over
$1 million in unpaid federal taxes, accounts due to banks,
suppliers and manufacturers, and civil penalties for mine safety
and health violations.
Thus, Respondent is a frequent, serious violator of mine
safety and health standards that seeks an exemption from civil
penalties (or to be assessed only nominal penalties) because of
financial hardship. On this record, I find that it would be
Under§ lOS(a) of the Act, proposed civil penalties that
are not contested by the operator, and penalties adjudicated
before the Commission, become final orders of the Commission.
These are not subject to review by any court or agency.
I find
that failure of the ope_r ator to comply with such order.s is an
adverse factor in assessing the operator's "history of previous
violations" under§ llO(i) of the Act.
1

442

:·-

contrary to the public interest and to the safety of Respondent's
employees, to allow Respondent to violate mine safety and health
standards with only nominal civil penalties.
Respondent's business conduct in failing to meet its
financial obligations, including federal income taxes, bank
loans, accounts payable, and civil penalties for serious mine
safety and health violations, may cause it to go out of business.
However, this result is not prohibited by§ llO(i) of the Act.
In balancing all the criteria in § llO(i), I find that the
proposed civil penalties in these cases should not be reduced.
CONCLUSIONS OF LAW
1. The judge has jurisdiction in these proceedings.

2. Respondent violated the safety and health standards as
alleged in the 40 citations and orders involved in these cases.
3. The proposed penalties are found to be appropriate for
the violations involved. Accordingly, Respondent is assessed
civil penalties of $94,939.
ORDER

WHEREFORE IT IS ORDERED that:
1. The 40 citations and orders involved in these proceedings
are each AFFIRMED.
2. Respondent shall pay civil penalties of $94,939 within 30
days from the date of this Decision. Provided:
the Secretary may
agree to a schedule of installment payments with accrued interest
if the Secretary determines that such schedule is appropriate and
in the public interest.

@~~~
Administrative Law Judge

443

Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862 (Certified Mail)
Walter M. Jones, Esq., Wyatt, Tarrant & Combs,
2600 Citizens Plaza, Louisville, KY 40202(Certified Mail)
/lt

..

:

··'

444

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

MAR 2 8 1995
WHITAKER COAL COMPANY,
Contestant

CONTEST PROCEEDING

v.

Docket No. KENT 94-975-R
Citation No. 4243171; 6/2/94

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

EAS No. 1 Mine
Mine ID 15-02085

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 95-65
A.C. No. 15-02085-03635

v.
EAS No. 1 Mine
WHITAKER COAL COMPANY,
Respondent

SUMMARY DECISION
Appearances:

Thomas A. Stock, Esq., Crowell & Moring, Washington, D.C., for the
Contestant/Respondent;
Brian W. Dougherty, Esq., Office of the Solicitor, U.S. Department of
Labor, Nashville, Tennessee, for the Respondent/Petitioner.

Before:

Judge Feldman

This consolidated contest and civil penalty proceeding is before me as a result of
Citation No. 4243171 issued on June 2, 1994, pursuant to section 104(a) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 814(a). The Secretary seeks to impose a
$50 civil penalty for this citation that was de~ignated as nonsignificant and substantial.
The citation alleges a violation of Whitaker Coal Company's (Whitaker's) smoking control
plan approved by MSHA in accordance with the provisions of section 75.1702, 30 C.F.R.
§ 75.1702,. of the Secretary's mandatory safety standards.
Citation No. 4243171 was issued because the Secretary has interpreted the
provisions of the smoking control plan as prohibiting any systematic underground searches
for smoking materials. The operative provision in the smoking control plan, approved by
MSHA on February 5, 1987, imposes an obligation on the operator to perform "[a]

445

systematic search for smokers' articles of all persons entering the mine ... at least weekly
at irregular intervals (emphasis added)." Thus, the issue for resolution is whether the
operator's periodic random searches of personnel for smoking materials both above and
below ground violates this provision. Alternatively stated, the question is whether the
terms of the approved smoking control plan noted above mandate that the operator
perform all random periodic searches aboveground.
MSHA approved the smoking control plan in accordance with section 75.1702.
This mandatory standard, which incorporates the provisions of section 317(c) of the Act, 30
U.S.C. § 877(c), provides:
No person shall smoke, carry smoking materials, matches, or lighters
underground, or smoke in or around oil houses, explosive magazines, or
other surface areas wher~ such practice may cause a fire or explosion. The
operator shall institute a program, approved by the Secretary, to insure that
any person entering the underground area of the mine does not carry
smoking materials, matches, or lighters. (Emphasis added).
The parties filed cross-motions for summary decision on February 27, 1995. On
March 7, 1995, I issued an Order scheduling the parties' motions for oral argument on
March 10, 1995, at the Commission's Office of Administrative Law Judges in Falls Church,
Virginia. Oral argument was scheduled on short notice with the agreement of the parties
to accommodate counsel for the Secretary who had already traveled to Falls Church,
Virginia, from Nashville, Tennessee, on another matter.
The Order requested the parties to address the following questions:
1. Whether the language of section· 317{c) of the Mine Act, section 75. 1702
of the regulations, and the provisions of the approved smoking control plan,
is ambiguous with regard to the required location of the search, and, if so,
how this ambiguity should be resolved.
2. Whether the primary purpose of the approved smoking control plan is
detection or deterrence of violations of the mandatory safety standard in
section 75.1702 which prohibits the carrying of smoking materials, matches,
or lighters underground.
3. The method of the contestant's searches with regard to procedure,
frequency and randomness, and whether such searches were effective or
perfunctory in nature.

446

4. Whether permitting underground searches for smoking materials under an
approved smoking control plan would render the smoking control plan
unenforceable by MSHA thereby undermining its effectiveness.
STATEMENT OF FACTS
Prior to the June 1994 issuance of the citation in question, Whitaker's smoking
control plan was in effect for more than seven years. Throughout this period Whitaker
conducted its weekly smoking control searches in random locations. These searches were
conducted both underground and on the surface. Whitaker recorded the date and location
of each search in the Mine's weekly smoking material examination book. MSHA
inspectors revi ewed the examination book during this period. Therefore, MSHA inspectors
were aware underground searches were being conducted. However, MSHA never
previously cited VVhitaker for violation of its smoking control plan.
The w eekly systematic searches are searches of all personnel on a given shift.
Whitaker's smoking control plan also requires "spot-check searches" of individuals to
ensure compliance with section 75.1702. However, the "spot-check searches" of
individuals are not substitutes for the systematic searches in issue as systematic searches
are performed on all miners on a given shift. The plan also requires "no smoking" signs to
be prominently displayed at all mine entrances. Whitaker has a strict policy prohibiting
the carrying of smoking materials underground and considers such conduct to be a
dischargeable offense. (Resp. Ex. 1). Prior to the issuance of Citation No. 42443171,
Whitaker was never cited for a violation of section 75.1702. (Joint Ex. 1, Stipulation 13).
Whitaker's EAS No. 1 Mine is accessible through three separate portals, allowing
miners to repeatedly enter, leave, and reenter the mine during a given shift. Whitaker
implemented its systematic searches under the smoking control plan to best address the
logistical difficulties presented by the mine's three portals. Whitaker believed weekly
searches in random locations, including underground, was the best method to assure that
smoking materials were not carried underground. The parties stipulated that Whitaker's
searches consist of pat-downs and searches of personal articles such as lunch pails.
(Tr. 17).
On June 2, 1994, MSHA Inspector Franklin Mayhew issued Citation No. 4243171
alleging a violation of Whitaker's smoking control plan approved by MSHA pursuant to
section 75.1702. The citation stated:
The operator's approved ... smoking program, which requires [at paragraph]
no. 2 ... [that] a systematic search for smoking articles of all persons
entering the mine shall be conducted at least weekly at irregular intervals,
was not being complied with in that the record of the weekly exarojnatjons
for smoking materials showed [that] the men were searched inside the mine

447

[during] the week[s] of May 23, May 16, May 9, May 2 and ... April 25,
1994[,] and did not show the men being searched on the surface. (Emphasis
added).
While Inspector Mayhew's citation gives the impression that the systematic searches
were conducted exclusively underground for from April 25 through May 23, 1994, in fact,
many searches were conducted on the surface during this period. Uoint Ex. 2). For
example, during the week of April 25, 1994, four searches were conducted underground
and ten searches were performed on the surface. 1 Uoint Ex. 2, p. 2). One underground
search cited by MSHA occurred in the elevator immediately after the miners had entered
the mine.
FURTHER FINDINGS AND CONCLUSIONS
At the outset it is significant that this case involves an alleged violation of an
approved smoking control plan rather than a mandatory safety standard. Pursuant to
section 101 of the Act, 30 U.S.C. § 811, mandatory safety standards are promulgated
through the rulemaking process and apply to all similarly situated mine operators.
However, often such general industry standards are ineffective when applied to
circumstances that are unique to a particular mine. Consequently, Congress provided for
MSHA to require mine operators to adopt comprehensive plans tailored to each mine that
address specific areas of health and safety such as roof control, ventilation or smoking
control. 30 U.S.C. §§ 862(a), 863(a) and 877(c). These plans must be submitted to the
MSHA District Manager for approval. While MSHA may consider conditions that are
common to many mines in considering a proposed plan, MSHA is prohibited from
i'mposing general rules applicable to all mines in the plan approval process. ~Peabody
Coal Company, 15 FMSHRC 381, 386 (March 1993) .ci.ti.o.g UMWA v. Dole, 870 F.2d 662,
669-72 (D.C. Cir. 1989); Carbon County Coal Company, 7 FMSHRC 1367 (September
1985); Zeigler Coal Co. v. Kleppe, 536 F.2d, 398, 406-07 (D.C. Cir. 1976).
Thus, Congress has mandated, through the provisions of section 317(c) of the Act,
that the Secretary "insure" compliance with the prohibition of carrying smoking materials
while underground through the flexibility of an "operator instituted" individualized
smoking control plan rather than through explicit mandatory search procedures applicable
to all mines. However, the provisions of individualized plans sometimes result in
·
disagreements in interpretation. Therefore, the Commission, in lim Walter Resources. Inc.,
9 FMSHRC 903 (May 1987) developed the legal framework for resolving disputes
involving mine specific plans. The Commission stated that the Secretary bears the burden

Although the plan only requires a minimum of one systematic search of all
personnel each week, searching miners during different shifts, as well as crews at different
locations, results in numerous searches each week.
1

448

::.•

of proving that a cited condition or practice·violates an approved plan provision. The
Commission further stated that a violation cannot be established when "the disputed
language of the plan provision is ambiguous" and the Secretary cannot "dispel the
ambiguity." kl. at 906-07.
A threshold question, therefore, is whether the operative provision in the smoking
control plan requiring searches of "all persons entering the mine" is ambiguous. Webster's
Third New International Dictionary, 1986 Edition (Webster's}, defines "entering" as "to go"
or come into a material place, to make a physical entrance." Webster's defines
"ambiguity" as "intellectual uncertainty; the condition of admitting of two or more
meanings, of being understood in more than one way."
I am unconvinced by the Secretary's assertion that there is no ambiguity if his
interpretation is reasonable even if there are other reasonable interpretations. (Tr. 28). A
plan provision is ambiguous if it is amenable to two or more reasonable interpretations.
The Secretary asserts that the search of "all persons entering the mine" must be construed
to mean a search on the surface before entering the mine. On the other hand, Whitaker
argues that this language can be interpreted as permitting searches before or after entering
the mine. Disposition the ambiguity question depends on whether the parties'
interpretations are harmonious with the intended purpose of the plan. Emery Mining Corp.
v. Secretary of Labor, 744 F.2d 1411, 1414 (10th Cir. 1984).

of

Here, the word "entering" must be interpreted in the context of the intended goal of
section 75.1702 and the stated purpose of the operator instituted smoking control plan that
is to "insure" that persons entering the mine do not "carry smoking materials"
underground. In addition, the contextual meaning of "entering" must be viewed with the
recognition that the plan only requires weekly searches of "all persons entering the mine."
Therefore, the provision in question does not mandate daily searches before entrance and
is not intended to make certain, through the act of searching, that smoking materials are
not brought underground.
At best, the term "entering" is problematical as the act of entering is not
accomplished until one crosses the threshold of the underground mine. This lack of clarity
is highlighted by the Secretary's assertion that searches on the elevator before miners reach
the underground level constitute a violation of the "entering the mine" provision. (Tr. 56).
Moreover, if the term "entering" assumes searches conducted on the surface at the
beginning of a shift, it is inconsistent with the plan language that the searches occur "at
irregular intervals." (52-53, 56-57).
While "entering the mine" can be reasonably interpreted to mean before enterin~
the mine, it is helpful to apply the reasonably prudent person test set forth by the
Commission in Ideal Cement Co., 12 FMSHRC 2409, 2416 (November 1990), to
determine if this is the~ reasonable interpretation. Under the J.de.al test, to ascertain
....

·

449

whether the language of a standard is opeh to an alternate interpretation advanced by an
operator, the Commission considers whether a reasonably prudent person familiar with the
mining industry and the protective purposes of the standard would have recognized the
requirement of the standard. The primary prohibition in section 75.1702 is the 11 carrying11
of smoking materials underground. Thus, the situs of the violation is underground in that
an individual violates section 75.1 702 when he possesses smoking material underground
even if he did not transport the material into the mine.
For example, smoking materials given to an individual underground, or, acquired
by an individual from a supply of cigarettes previously smuggled into the mine, constitute
violations of section 75.1702 although the individual acquired the smoking material~
entering the underground mine. The Secretary's insistence on surface searches of all
persons at least one day each week will not prevent miners from bringing smoking
materials underground on non-search days. The Secretary agreed smoking materials could
easily be smuggled into a mine on any day other than the weekly examination day.
(Tr. 72). The Secretary also conceded surface searches at the mine entrance could not
detect violations associated with the acquisition of smoking material after mine entry or
upon reentry. (Tr. 73-76). It follows, as the Secretary also acknowledged, that
underground searches of al I personnel may be of greater value than surface searches in
some instances. (Tr. 77).
As a general proposition, if searches were mandated on a daily basis, I would agree
that underground searches would be self-defeating. Thus, it is important to identify
whether the plan's primary purpose is detection or deterrence. Although the Secretary
maintains the primary purpose of the systematic search is detection, the plan only requires
weekly searches at irregular intervals. (Tr. 61 ). Moreover, the spot-checks of individuals
sanctioned under the plan are not substitutes for the systematic search of "all persons"
which is the subject provision in this matter. It is obvious, therefore, that a plan only
requiring searches of all miners entering the mine 20 percent of the time (one search every
five shifts assuming a five day work week) is not primarily intended for detection. By
analogy, how effective would an airport detection program be if passengers were only
required to pass through metal detectors one day each week? (Tr. 61-62). Rather,
Whitaker's smoking control plan primarily relies upon the deterrent effect of surprise to
encourage compliance.
Given the purpose of section 75.1702, .the deterrent effect of the plan, and, the
mine specific nature of the plan approval process, a mine operator should be afforded
reasonable discretion to devise an effective method of irregular periodic searches that take
into account the unique design or circumstances at its mine site. In the current case,
Whitaker asserts that its three portal entries render exclusive surface searches ineffective
since miners have access to come and go freely at all three portals. The Secretary has not
argued that there are any material unresolved issues of fact with respect to Whitaker's
assertion that the mine's three portal design renders exclusive surface searches ineffective.

450

Consequently, Whitaker's implementation of its plan to include systematic searches
underground is a reasonable interpretation of the plan's language.
Moreover, the Secretary does not contend that Whitaker's implementation of its
smoking control plan is perfunctory in nature or otherwise ineffective. (Tr. 96). In fact, the
Secretary has stipulated there is no history of section 75.1702 violations at Whitaker's mine
site since MSHA's approval of its smoking control plan in Febn.Jary 1987. Consistent with
Whitaker's apparent effective implementation of its smoking control plan, the Secretary is
only seeking to impose a $50 civil penalty in this matter.
Although the Secretary is not estopped from his current interpretation of the plan's
provisions, it is significant that there is no evidence of consistent enforcement in that
Whitaker has not previously been cited despite its continuing practice of performing
underground searches which were prominently documented in its smoking examination
records. lli lim Walter Resources, 9 FMSHRC at 907. In addition, at oral argument, the
Secretary failed to present any credible arguments to support his contention that permitting
a combination of surface and underground searches would be unenforceable, as such
searches are irregular and unscheduled regardless of where conducted. (Tr. 81-82).
Finally, it is significant that Whitaker is not the only operator that has interpreted its
smoking plan as permitting underground searches. Judge Morris recently addressed the
identical issue in C.W. Mining Company, 17 FMSHRC 175 (February 1995). There, the
operator occasionally conducted searches in the kitchen area, the first place miners went
when entering the underground area. The operator believed occasional kitchen checks
would discourage miners from hiding smoker's articles on the mantrip and removing them
when they exited the mantrip at the kitchen. Although Judge Morris concluded the kitchen
searches did not satisfy the plan provision of searching miners "entering" the mine, Judge
Morris did conclude the "[e]xaminations for such [smoking] articles at such places as the
kitchen are laudable." He, therefore, assessed a nominal civi I penalty of $10 for this
infraction. ld.. at 183-84.

...
...
·::

While Judge Morris found a technical violation of the mandator-Y standard in section
75.1702, he did not specifically consider the operator's kitchen searches wit~in the
parameters of the approved smoking plan process and purposes. The mine specific plan
approval process must encourage operators to conduct systematic searches that are
appropriate to the conditions of their mines. The mine operator is in the best position to
know how to address unique security problems at its mine. If an operator's interpretation
and application of its smoking control plan is "laudable," it follows that such interpret~tion
is reasonable. If the implementation of a smoking control plan is based on a reasonabte
interpretation of the plan's provisions, there is no violation of section 75.1702. Therefore,
while I differ with Judge Morris in result, I concur with him in principle.

451

·.. ·

In summary, MSHA's attempt to impose standard smoking control provisions
mandating~ (1) aboveground systematic searches, (2) occurring on random days

weekly, (3) at the beginning of a shift, and, (4) before miners enter the mine, on all
underground mine operators, despite the conditions or practices in a particular mine, is
contrary to the mine specific plan process. Moreover, this approach is contrary to the
express provisions of section 317(c) of the Act, and, section 75.1702 of the regulations,
which require the adoption of a plan instituted by the operator rather than mandatory
search standards as the method for ensuring compliance.
Consequently, the Secretary has failed to carry his burden of establishing, by the
preponderance of the evidence, that Whitaker's combined underground and surface
searches are contrary to its obligation to search "all persons entering the mine," given its
multi-portal entries and the deterrent nature of the searches. Rather, Whitaker's combined
surface and underground searches are a reasonable interpretation and implementation of
its smoking control plan that seeks to insure compliance with section 75.1702. This
standard prohibits miners entering the mine from carrying smoking materials while
underground. Accordingly, Whitaker is entitled to summary decision as a matter of law.
As a final note, this decision should not be construed as trivializing the smoking
materials search function. MSHA is free to cite operators who perform smoking
inspections that are perfunctory in nature, inappropriate to the specific mine conditions, or
otherwise ineffective. However, in the current case, Whitaker's underground searches are
not perfunctory, inappropriate in view of its three portal configuration, or, ineffective.

ORDER
In view of the above, I conclude that there are no outstanding issues of material fact
that require a hearing in this matter. The Secretary's Motion for Summary Decision
IS DENIED. Whitaker Coal Company's Motion for Summary Decision IS GRANTED.
Consequently, Whitaker's contest of Citation No. 4243171 IS GRANTED and this citation
IS HEREBY VACATED.

Jerold Feldman
Administrative La~ Judge

452 '

Di stri buti on:
Thomas A. Stock, Esq., Crowell & Moring, 1001 Pennsylvania Avenue, N.W., Washington,
D.C. 20004-2595 (Certified Mail)
Brian W. Dougherty, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard
Jones Road, Suite B-201, Nashville, TN 37215-2862 (Certified Mail)

/rb

453

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

."'"·,

OFFICE OF ADMINISTRARIVE LAW JUDGES
2 SKYLINE, SUITE 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 3 0 1995
CIVIL PENALTY PROCEEDING

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

Docket No . SE 94-569
A.C. No. 40-03011-3563 S

v.
Mine No. 7
S & H MINING, INC.,
Respondent

·•·.

DECISION APPROVING SETTLEMENT
Appearances:

Before:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee for
the Petitioner-;
Imogene A. King, Esq., Frantz, McConnell &
Seymour, Knoxville, Tennessee for the Respondent.
Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section lOS(d) of the Federal Mine Safety
and Health Act of 1977 (the Act). Following hearings the parties
filed a joint motion to approve a settlement agreement and to
dismiss the case. As a result. of evidence adduced at hearings
and a subsequent modification of the original citation, an
increase in penalty from $2,500 to $4,000 has been proposed. I
have considered the representations and documentation submitted
in this case, including the evidence at hearings, and I conclude
that the proffered settlement is acceptable under the criteria
set forth in Section llO(i) of the Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that Respondent pay a penalty of $4,000 within
30 days of this order.

Law Judge
454

Distribution:
Mark R. Malecki, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203
Imogene A. King, Esq., Frantz, McConnell & Seymour, P.O. Box 39,
Knoxville, TN 37901
/jf

455

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

SECRETARY OF LABOR,

MAR 3 0 1?9SCIVIL PENALTY PROCEEDING

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

Docket No. SE 94-570
A.C. No. 40-03011-3562 m

Mine No. 7
GARY BYRGE, Employed by S & H
MINING co. I
Respondent
DECISION APPROVING SETTLEMENT

Appearances:

Mark R. Malecki, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia for
the Petitioner;
Gary Byrge, Oliver Springs, Tennessee, tu:.Q ~

This case is before me upon a petition for assessment of
civil penalty under Section llO(c) of the Federal Mine Safety
and Health Act of 1977 (the Act). At hearing Petitioner filed a
motion to approve a settlement agreement in which Respondent
agreed to pay the proposed penalty of $1,000 in full.
I have
considered the representations and documentation submitted in
this case, and I conclude that the proffered settlement is
acceptable under the relevant criteria set forth in Section
llO(i) of the Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that Respondent p y a penalty of $1,000 in 6
months installments as set forth in th~ greement.

.

.
Gary Meli

Administr

Distribution:
Mark R. Malecki, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203
Imogene A. King, Esq., Frantz, McConnell & Seymour, P.O. Box 39,
Knoxville, TN 37901
/jf

456

.....

ADMINISTRATIVE LAW JUDGE ORDERS

.-:.:
;:.;

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

February 15, 1995
SECRETARY OF LABOR ,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 93-261
A.C . No. 12-02033 - 03596

v.
Docket No. LAKE 93 - 268
A.C. No . 12-02033 - 03597

BUCK CREEK COAL INC.,
Respondent

Docket No. LAKE 93-273
A . C . No. 12 - 02033-03598
Docket No. LAKE 93-278
A.C. No . 12 - 02033-03599
Docket No . LAKE 94 - 8
A.C. No. 12 - 02033-03600
Docket No. LAKE 94 - 13
A.C. No. 12-02033-03601
Docket No. LAKE 94 - 21
A.C . No . 12 - 02 0 33 - 03602
Docket No. LAKE 94-4 1
A.C. No . 12 - 02033 - 03603
Docket No . LAKE 94-42
A.C . No. 12 - 02033-03604
Docket No. LAKE 94 - 50
A.C. No. 12-02033-03605
Docket No. LAKE 94-72
A. C . No . 12 - 02033 - 03606

...

Docket No . LAKE 94-73
A . C. No. 1 2 - 02033-03607
Docket No . LAKE 94-81
A.C. No. 12 - 02033 - 03608
Docket No. LAKE 94-89
A.C. No . 12 - 02033 - 03610
Docket No . LAKE 94-111
A.C. No. 12 - 02033-03611

457

·-..

·-

Docket No. LAKE 94-128
A.C. No. 12-02033-03614

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

Docket No. LAKE 94-142
A. C. No. 12-02033-03615

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

Docket No. LAKE 94-143
A.C. No. 12-02033-03616

Docket No . LAKE 94-677
A.C. No. 12-02033-03640

Docket No. LAKE 94-210
A.C. No. 12-02033-03620

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

Docket No. LAKE 94-211
A.C. No . 12-02033-03621

..

Docket No. LAKE 94-709
A.C. No . 12-02033-03643

Docket No. LAKE 94-220
A.C. No. 12-02033-03622
Docket No. LAKE 94-433
A.C. No . 12-02033-03623

Docket No . LAKE 94-708
A.C. No. 12-02033-03642

..

Docket No. LAKE 94-710
A.C. No. 12-02033-03644
Docket No. LAKE 94-714
A.C. No. 12-02033-03645

Docket No. LAKE 94-435
A.C. No. 12-02033-03625

Docket No . LAI<E 94-745
A.C. No. 12-02033-03646

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

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

A. C.

Docket No. LAKE 94-601
No. 12-02033-03627

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

Docket No. LAKE 94-602
A.C. No. 12-02033-03629

Docket No. LAKE 95-49
A.C. No. 12-02033-03652

Docket No . LAKE 94-603
A.C. No. 12-02033-03630

Docket No. LAKE 95-50
A.C. No. 12-02033-03652

Docket No . LAKE 94-604
A.C. No. 12-02033-03631

Docket No. LAKE 95-:-51
A.C. No. 12-02033-03652

Docket No . LAKE 94-605
A.C. No. 12-02033-03632

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

Docket No. LAKE 94-606
A.C. No. 12-02033-03633

Docket No. LAKE 95-74
A.C. No. 12-02033-03653

Docket No. LAKE 94-669
A.C. No. 12-02033-03636

Docket No. LAKE 95-87
A.C. No. 12-02033-03654

458

:

-·

Docket No. LAI<E 94-434
A.C . No. 12-02033-03624

.

-;.:

·-:

Docket No. LAKE 95-94
A.C. No. 12-02033-03655
Docket No. LAKE 95-111
A.C. No. 12-02033-03656
Docket No. LAKE 95-112
A.C. No. 12-02033-03657
Docket No. LAKE 95-154
A.C. No. 12-02033-03658
Docket No. LAKE 95-158
A.C. No. 12-02033-03659
Buck Creek Mine
BUCK CREEK COAL INC.,
Contestant

v.

.

CONTEST PROCEEDINGS
Docket Nos. LAKE 94-162-R,
LAKE 94-253-R thru 94-394-R,
LAKE 94-356-R thru 94-357-R,
LAKE 94-370-R thru 94-394-R,
LAKE 94-408-R thru 94-409-R,
LAKE 94-.410-R thru 94-425-R,
LAKE 94-447-R thru 94-454-R
LAKE 94-461-R thru 94-562-R,
LAKE 94-569-R thru 94-597-R,
LAKE 94-607-R thru 94-613-R,
LAKE 94-618-R thru 94-629-R,
LAKE 94-637-R thru 94-646-R,
LAKE 94-660-R thru 94-667-R,
LAKE 94-672-R thru 94-674-R,
LAKE 94-681-R thru 94-691-R,
LAKE 94-697-R thru 94-703-R,
LAKE 94-717-R thru 94-744-R,
LAKE 95- 1-R thru 95- 14-R,
LAKE 95- 18-R thru 95- 22-R,
LAKE 95- 26-R thru 95- 42-R,
LAKE 95- 57-R thru 95- 73-R,
LAKE 95- 75-R thru 95- 77-R,
LAKE 95- 82-R,
LAKE 95- 96-R thru 95-104-R,
LAKE 95-115-R thru 95-118-R,
LAKE 95-136-R thru 95-154-R,
LAKE 95-158-R and 95-171-R.

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

BUCK CREEK MINE
Mine ID 12-02033
'.·:

459

::"· :·.

ORDER CONTINUING STAY

By an order dated September 8, 1994, all cases involving
Buck creek, before me or subsequently assigned to me, were stayed
for 90 days or until such time as the United States Attorney for
the Southern District of Indiana made a determination regarding
the prosecution of Buck Creek Coal, Inc. and any of its officers,
whichever occurred first. On December 7, 1994, the Secretary
filed a motion requesting a 90 day extension of the stay.
An extension of the stay was granted on January 10, 1995,
until a prehearing conference was held on February 9, 1995, to
determine whether the stay should be continued. At the
prehearing conference, the Secretary requested that the stay be
continued for 90 days. The Secretary's counsel stated that at
the end of 90 days the Secretary would be in a position to state
specifically which dockets and citations were involved in the
criminal proceedings, which were not, and whether the cases not
involved could proceed to disposition.
(Tr. 37-38.)
Buck Creek
opposes continuing the stay.
After weighing the interests of the parties, I conclude that
the reasons for originally granting the stay still apply.
Accordingly, it is ORDERED that the STAY in these cases is
CONTINUED until May 16, 1995. The provisions concerning the
lifting of the stay in individual cases set out in the September
8, 1994, order remain in effect.
It is FURTHER ORDERED that a status conference will be held
on Tuesday, May 16, 1995, for the purpose of determining whether
the stay should be continued beyond the conference; if so, under
what conditions; whether it will include all docketed cases as
well as future cases; and whether some cases can be separated
from the rest and proceed to disposition without prejudice to
either party. The conference will begin at 9:00 A.M. at the
following location:
Hearing Room
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041

J ~ i/,kJk,
T. Todd

H~~fa~n -

Administrative Law Judge
(703) 756-4570

460

·~·.

..
:~

Distribution:
Rafael Alvarez, Esq . , Office of the Solicitor , U.S. Department of
Labor, 230 s. Dearborn Street, 8th Floor, Chicago, IL 60604
{Certified Mail)
Henry Chajet, Esq., Jackson & Kelly, 2401 Pennsylvania Avenue,
N.W., Suite 400, Washington, DC 20037 (Certified Mail)
/lbk

.....

461

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2.2 041

..
··.. ·

MAR 6 1995"
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 94-1321
A. C. No. 15-14074-03669

v.
Martwick U. G. Mine
PEABODY COAL COMPANY,
Respondent
DECISION APPROVING PARTIAL SETTLEMENT
Alm
STAY ORDER
Appearances:

Before:

Donna E. Sonner, Esq., Office of the Solicitor,
U. s. Department of Labor, Nashville, Tennessee,
for the Secretary;
earl B. Boyd, Jr., Esq., Meyer, Hutchinson,
Haynes & Boyd, Henderson, Kentucky, for Respondent.

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section lOS(d) of the Federal Mine Safety and
Health Act of 1977 {the Act). At the hearing Petitioner filed a
motion to approve a partial settlement agreement proposing as to
Citation Nos. 3863265 and 3863054 a reduction in penalty from
$2,067 to $1,867. I have considered the representations and
documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the criteria set forth
in Section llO(i) of the Act.
WHEREFORE, the motion for approval of partial settlement is
GRANTED, and it is ORDERED that respondent pay a penalty of
$1,867 within 30 days of this decision .
Further proceedings as to Ci'tation No. 386 055 are hereby
STAYED pending further negotiations and testin
y the Parties .

..

e Law Judge

462

.....

Distribution:
Donna E. Sonner, Esq., Office of the Solicitor, U. S ~ Department
of Labor, 2002 Richard Jones Road, suite B-201, Nashville, TN
37215-2862 {Certified Mail)
Carl B. Boyd, Jr., Esq., Meyer, Hutchinson, Haynes & Boyd,
120 North Ingram Street, Suite A, Henderson, KY 41420 (Certified
Mail)
dcp

463

7EDERAL MINE SAJ'ETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1 0th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 1 0 1995.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF CHARLES H.
DIXON,
Complainant

:

DISCRIMINATION PROCEEDING

.

Docket No. KENT 94-1274-D
PIKE CD 94-16
Mine ID 15-09571

.

v.
PONTIKI COAL CORPORATION,
Respondent

AMENDED QRDER GRANTING PARTIAL DISMISSAL

At hearings held March 9, 1995, on the Respondent's Motions
to Dismiss, e v idence by way of an affidavit from Charles H. Dixon
was admitted indicating that he may have been a "representative
of miners" at some time prior to April 15, 1994. Accordingly
that part of the interlocutory Order issued February 6, 1995,
which held that Complainant Dixon had not become a
"representative of miners" before April 15, 1994, is amended by
deletion .
A determination as to when Mr. Dixon became a
"representative of miners" (and the related determination of
which alleged acts of discrimination may be considered; is,
therefore, deferred until hearing~ on the merits or otper
appropriate proceedings at which{/11 evidentiary a~ring of the
issue may be provided .
·
~
.'

t

t

f

-I

~

~

:1{
i
J

;.

Gary Melick\ (
Admin,i strat\tve Law Judge
Distribution:
Brian W. Dougherty, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
372-1 5-2862
Timothy M. Biddle, Esq . , Thomas c. Means, Esq., Crowell & Moring,
1001 Pennsylvania Ave., N.W., Washington, o.c. 20004-2595
/jf

464

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

March 7, 199 5

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

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

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

CIVIL PENALTY PROCEEDINGS

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

Docket Nos. WEVA 92-786
through WEVA 92-791

I

Fire Creek No. 1 Mine
SOUTHERN MINERALS, INC.,
TRUE ENERGY COAL SALES, INC.,
FIRE CREEK, INC.,
Respondents
ORDER DENYING CROSS MOTIONS FOR SUMMARY DECISION
Mm
NOTICE OF HEARING
These consolidated civil penalty and contest proceedings
arise under section 105 of the Federal Mine Safety and Health
Act of 1977 (Mine Act or Act), 30 U.S.C. § 815. They involve
101 alleged violations of mandatory safety standards for
underground coal mines for which aggregate civil penalties
of $576,681 have been proposed. They also involve 102 contests
of citations and orders.
The cases arise out of a fatal explosion on January 16,
1991, at Fire 'creek, Inc's (Fire Creek) No. 1 Mine.
Following
an investigation, tbe Secretary of Labor, through his Mine
465

Safety and Health Administration (MSHA), issued the contested
citations and orders to Fire Creek, Southern Minerals, Inc.
(Southern Minerals) and True Energy Coal Sales, Inc.
(True Energy) (collectively, the Contestants). The Secretary
contends that the three entities are liable jointly and severally
as operators of the mine. Southern Minerals and True Energy
respond that they are not operators within the meaning of the
Mine Act and therefore should not have been cited for the alleged
violations.
Fire Creek does not dispute the Secretary's
jurisdiction .
The proceedings were bifurcated so that the jurisdictional
status of Southern Minerals and True Energy would be resolved
prior to addressing the individual merits of the cases (~
Notice of Bifurcated Hearing (September 30, 1994)).
Following extensive discovery, the Secretary,
Southern Minerals and True Energy filed cross motions for
summary decision on the jurisdictional issues.
For the
reasons that follow, the motions are DENIED.
Summary Decision
Under the Commission's rules, a motion for summary decision
shall be granted only if the entire record shows, (1) no genuine
issue as to any material fact, and (2) the moving party is
entitled to summary decision as a matter of law (29 C.F.R .
§2700 . 67) .

The parties have not stipulated to undisputed facts.
Rather, the Secretary has set forth 122 "findings of fact" in
a memorandum in support of his motion (Sec. Mem . ), and the
Contestants have incorporated "material facts" into their motion
(Conts . Mot.) . By referencing the parties' factual assertions to
the record, it is possible to glean a factual basis to rule upon
the motions.
GENERAL FACTUAL BACKGROUND
Fire Creek's No . 1 Mine is an underground coal mine
located in McDowell County, West Virginia. On September 3,
1991, following an investigation of the accident, MSHA issued
t h e contested citations and orders, jointly naming the

466

Contestants as the operators of mine (Sec . Mem. 1-2; Conts.
Mot. 3-4) . The operators filed timely notices of contest
and the Secretary filed the subject civil penalty petitions.
The Contestants are closely held corporations that share
some common officers and directors. Fire Creek was organized
in 1988 by D.L . "Jack" Bowl ing, Brenda Bowling (Jack Bowling's
wife) and David Harold. The Bowlings and Harold were the
corporation's only share holders. David Harold was president
and director of Fire Creek and Ronda Harold (David Harold's
wife) was secretary/treasurer. In July 1989, Ronald Lilly
obtained 10 percent of the stock from Jack Bowling and Lilly
became secretary/treasurer. Harold left Fire Creek in October
1990, and the corporation bought back his shares (Sec. Mem. 7-8,
citing to Exh. K, Interrog. 3). Also, in October 1990, W. "Fred 11
St. John became president of Fire Creek. He and Jack Bowling
served as directors (Sec. Mern. 8, citing to Exh. K, Interrog . 3 )
Southern Minerals was organized in 1987 with Jack Bowling
as the sole stock holder . In October 1989, stock was divided
between Jack Bowling, his son, his daughter and St. John.
Jack Bowling served as president and director, St. John served
-as vice president and director and Brenda Bowling acted as
secretary/treasurer (Sec. Mern. 8, c i ting to Exh. 0).
True Energy was organized in 1986. At that time,
Jack Bowling and his daughter and son were the corporation's
shareholders.
I n October 1989, St. John acquired 20 percent
of Jack Bowling's stock, leaving J ack Bowling with 60 percent.
The other 20 percent continued to be owned by Bowling's
daughter and son . Bowl ing served as president and director,
St. John served as vice president and director, and Brenda
Bowling served as s.ecretary/treasurer (Sec. Mern. 8-9, citing
to Exh. P) .
Southern Minerals had no employees . In general, it held
coal leases and subleases, contracted with others, including
Fire Creek, to mine leased coal, and monitored coal production
for royalty purposes. Southern Minerals bought the coal and
sold it to True Energy. Fire Creek operated the No. 1 Mine
pursuant to a contract with Southern Minerals .

467

~·

Coal from the Fire Creek Mine was processed by an unrelated
company pursuant to a contract with True Energy and True Energy
sold the processed coal . True Energy also provided various
administrative and technical services to Southern Minerals'
contractors, including Fire Creek.
When Harold left Fire Creek in October 1990, Ward Bailey,
an employee of Fire Creek, took over as mine manager. Bailey
contacted MSHA officials after the explosion at the mine.
Neither Bailey, nor any other Fire Creek officials, notified
Southern Minerals or True Energy . Southern Minerals and
True Energy were not represented at the meetings con ducted
by MSHA during the investigation of the explosion. Neither
Southern Minerals nor True Energy received a citation or order
from MSHA regarding any aspect of the operations at the mine
until seven months after the explosion, when the contested
citations were issued (Conts. Mot. 10-11) . Fire Creek is out
of business and may not be capable of paying any penalties for
any violations found to have existed (Sec . Mem. 27).
Specific Facts Involving Relationship of Parties
Southern Minerals leased the mineral rights to the land
on which the mine is located from Pocahontas Land Company
(Pocahontas). Southern Minerals then contracted with Fire Creek.
Southern Minerals paid Fire Creek a royalty payment based on
the amount of coal produced at the mine. Southern Minerals
also loaned funds to Fire Creek to purchase mining equipment.
At times Fire Creek obtained advances from Southern Minerals
to cover operating expenses, such as payroll and supplies.
The funds were authorized by St. John, in his capacity as
vice president of Southern Minerals.
In general, advances
were secured by future coal production .
Administrative services provided by True Energy to
Fire Creek involved handling Fire Creek's business and
financial records, i.e., maintaining payroll and personnel
files, monitoring workers' compensation, medical insurance
and other employee benefits, depositing semi-monthly cash
receipts, maintaining accounts receivable files, maintaining
accounts payable files, monitoring cash flow, drafting checks
to pay vendor invoices on a semi-monthly basis, preparing
required reports to regulatory agencies, and preparing

468

~·

financial information for monthly financial statements and
tax returns . There also came a time when Fire Creek's
liability and other insurance was arranged and paid for by
True Energy (Sec. Mem. 11-12, citing to Exh. K, Interrog . 29)
Technical services provided by True Energy to Fire Creek
involved surveying, spad setting, map preparation and map
certification . True Energy began surveying for Fire Creek
in January 1990 . At that time, True Energy hired two spad
setters to work at the mine . Until July 1990, Fire Creek
paid True Energy for the technical services (Sec. Mem. 12-13)
Also in January 1990, True Energy hired a person to
prepare and certify maps for Fire Creek . According to
the Secretary, the person was paid by True Energy (Sec .
Mem. 12-14) .
PARTIES' ARGUMENTS
The Secretary first argues that Fire Creek was responsible
for the day-to - day operation and supervision of the mine .
Therefore, Fire Creek was an operator (Sec. Mem . 32).
The Secretary next argues that Southern Minerals
possessed the legal power to exercise control over numerous
aspects of the mine 1 s operations via its contract with Fire
Creek.
In addition, Southern Minerals exercised significant
direct and indirect control over the mine via its control of
engineering, finances, production and other matters. As such,
Southern Minerals met the statutory definition of "operator"
(Sec. Mem . 33, 35-39).
Finally, the Secretary argues that True Energy also
exercised control over the mine. The control arose 11 via the
common ownership and control· [True Energy] shared with the
mine•s owner-operator, Southern Minerals, and the mine•s
contract operator, Fire Creek" (Sec . Mem. 43). Additionally,
True Energy had control over "essential engineering matters,"
all financial matters, administration of payroll and personnel
and occasionally over production, personnel and safety (Id. 44,
47 /

48) •

469

The Contestants counter that the problem with the
Secretary's approach to jurisdiction is that South~rn Minerals
and True Energy were 11 passive 11 entities who did not exercise
the type of control or supervision envisioned by the statute .
In the Contestants' view, 11 control 11 refers to control of the
mine, not to control of the company. Further, 11 operates 11 and
"supervises" are words of action and "control" should be
understood likewise to require active participation in mining
(Conts' Mot. 22).
Such control is required because, under the Act's enforcement scheme, it makes sense for those who can prevent or abate
violations to be responsible for them (Conts . Mot. 24-25). Thus,
to be an "operator" within the meaning of section 3(d) of the
Act, one must have both status as an "owner," "lessee" or "other
person" and actively engage in "operat[ing] ," 11 control[ling] 11 or
11
supervis[ing] 11 a mine (Id. 26). The Contestants assert that
since the inception of the Act the Secretary enforced it against
those who actually mined, or those whose activities were so
closely allied with those who mined that the activities produce
hazards of a distinctly mining-related character (Id. 29) .
The Contestants also raise procedural challenges . They
argue that the Secretary's citation of Southern Minerals and
True Energy was such a clear departure from previous Secretarial
practice, it required rulemaking and a reasoned explanation
before implementation (Conts. Mot. 34-38, 38-40).
Finally, they
argue that the Secretary's interpretation of the statute was
unconstitutionally vague.
It was not implemented with fair
warning to those who become the targets of enforcement, and the
lack of standards or guidelines for enforcement deprived the
Contestants of procedural due process (l.Q.. 45, 49-52).
THE ACT
The meaning of the statutory definition of 11 operator 11 · is
central to the resolution of the motions. Once the meaning is
understood, the question of whether undisputed material facts
establish liability or whether they preclude such a finding may
be sorted out.

470

Analysis of the definition begins where it must, with the
words of the Act and with the assumption tha:t the Act's drafters
carefully chose the words to mean what they say. Analysis also
is u~dertaken with the understanding that when the words and
their grammatical structure are clear, it is not the province of
administrative bodies and ·ajudictors to interpret the words to
the contrary . They must avoid c onclusions based on what they
think Congress might have meant, but did not state.
Section 3 (d) defines an "operator" as, "[a] ny owner,
lessee, or other person who operates, controls, or supervises
a . .. mine or any independent contractor performing services
or construction work at such mine (30 U. S.C . §802(d)).
The clause, "who operates, controls, or supervises a coal
or other mine" describes or qualifies each noun in the preceding
phrases "any owner, lessee, or other person" (~ Elliot Coal
Mining Company, Inc . v . Director. Office of Workers' Compensation
Program, 17 F.2d 616, 629-630 (3rd Cir . 1994)) . The definition
clearly requires "owners, lessees or other persons" to participate in and/or have authority over the operation, control or
supervision of a mine. Accordingly, it is not correct to read
the definition as to make owners or lessees operators in and of
themselves.
{I find it noteworthy in this regard that it was the
definition of "mine," and not the definition of "operator" that
Congress desired be given "the broadest possibl[e] interpretation" (S. Rep . 95-181, 95th Cong . , 1st Sess., at 14, reprinted
in Senate Subcommittee on Labor, Committee on Human Resources,
95th Cong., 2d Sess.; Legislative History of the Federal Mine
Safety and Health Act of 1977, at 602 (1978)).
In addition to faithfully reflecting the statutory language,
this interpretation supports and strengthens the purpose of the
Act. Section 2(e) provides that the "operators" of the nation's
mines have primary responsibility for preventing the existence of
unsafe and unhealthful conditions (30 U.S.C. §801{e)).
Throughout the Ac.t, the entity charged with compliance is
referred to simply as the "operator" (See. e.g. §814(a), §815(a) ,
§820(a)) . It makes no sense within this context to place
liability on those who have not participated in creating the
conditions in a mine or who have no actual authority over

471

and responsibility for those conditions. On the other hand,
placing liability on an entity or entities who h~ve partici pated or who have that authority provides a spur to compliance
and to safer, more healthful working conditions.
Therefore, I agree with the Contestants that a purely
"passive entity" would not meet the statutory definition of
"operator" under the Act, provided the entity did not reserve
to itself authority to control mining operations or to control
the mine itself.
In other words, in a contract mining situation,
an entity that leased mineral rights and contracted with another
entity to mine coal would subject itself to Mine Act liability
if it made decisions with respect to how coal would be mined
and how the mine would be staffed and run, or if it had the
actual authority to make such decisions.
It would not be enough,
however, to simply establish the potential for control, for
example, by establishing interlocking corporate relationships
between parties and the normal business transactions attendant
thereto.
In reaching this conclusion, I note that the legislative
history of Titles I, II and III, unlike that of Title IV (the
Black Lung provisions) , contains no Congressional finding that
operators were attempting to evade liability under the safety
and health provisions of the Mi n e Act by manipulating corporate
form and contractual relationships, and I cannot assume such a
concern motivated the drafters of Titles I, II and III.
Compair Elliot Coal Mining, 17 F.2d at 632 .
Indeed, the words of the Act warrant an opposite assumption.
When the Act was drafted, contractual arrangements between the
owner or lessee of mineral rights and the on-site mine operator
were common and they remain common today.
The Act's initial
legislators chose to condition an operator's status 6n its active
participation (or, in my view, its authority to so participate)
in the actual operation, control, or supervision of a mine.
Congress has not chosen subsequently to amend that requirement.
As the Contestants note, if Congress had intended to hold all
owners or lessees of mineral rights liable, it could have simply
stated that an "operator" includes both.

472

This brings the analysis back to where it began, to the
words of the statute and to the requirements of Congress, as
expressed in Section 3(d), that an owner, lessee, or other person
operate, control, or supervise a mine. There is no inclusive
statutory definition of the aspects of participation or authority
necessary to make an entity a statutory operator. Nor has the
Secretary engaged in rule-making to set forth the aspects.
Lacking a statutory or regulatory definition and given the fact
that the forms of operation, control, or supervision may vary
from case to case, whether an entity meets section 3(d) of the
Act must be resolved on a case-by-case basis.
In this regard, the Commission has provided guidance . In
W-P Coal Company. the Commission gauged the owner-operator's
involvement with its contract operator by looking to things such
as involvement in the mine's engineering, financial, production,
personnel and safety affairs in order to determine whether there
was sufficient involvement for the Secretary to proceed against
the owner-operator (16 FMSHRC 1407, 1411 (July 1994)) . A similar
approach is applicable here, with the proviso that involvement be
viewed both in terms of actual participation and in terms of the
authority to participa~e.
THE CONTESTANTS AS OPERATORS
FIRE CREEK
The parties agree that the actual day-to-day operation of
the mine was conducted by Fire Creek, Inc. There is no dispute
that Fire Creek was an operator within the meaning of the Act.
SOUTHERN MINERALS
Involvement in Engineering
The Secretary states, as fact, · that when Harold was
president of Fire Creek, Jack Bowling, in his capacity as
president of Southern Minerals, met with Harold, Pocahontas
personnel and others to work on the mining projection maps for
the Fire Creek mine. Moreover, he states that Jack Bowling
contributed to the development of mining projections for the
mine and that he reviewed the mining projections before they

473

were submitted to MSHA or to the state. He also states that
Southern Minerals approval was required for all mining plans,
projections and maps of the mine .
In support of these statements, the Secretary cites to
a September 9, 1988, engineering invoice (Sec. Mem., Exh. D)
and to Harold's deposition (lsi.._, Exh. Rat 55).
In the
deposition, Harold states that although he mostly prepared
Fire Creek's mining projections, they were reviewed by Bowling
before they were submitted to MSHA and that Bowling had input
into the projections (Js;L_ 55-56) .
The Secretary also points to the contract between Fire Creek
and Southern Minerals, which states in part that 11 [Fire Creek]
shall present to [Southern Minerals] each quarter a certified
mine map of all mining operations conducted by (Fire Creek] "
(Sec . Mem., Exh. W, Para. 5). The Secretary does not note fact
that the contract also states, "[i]t is ... understood by the
parties . . . that [Southern Minerals] right to approve mining
plans, projections and maps is expressly and solely for the
purpose of coordinating the overall mining operations on
[Southern Minerals] leasehold property and is not for the
purpose of directing [Fire Creek's] overall or daily conduct
of its mining operations. The direction and control of all
mining rests solely with . .. (Fire Creek]" (l..d...).
The Secretary further states that Southern Minerals was
responsible for obtaining state and federal permits necessary
to initiate mining. The Secretary points out that the contract
provides that "(Southern Minerals] shall obtain, in its name,
the initial permits, and provide the bonding required to initiate
mining activity; and [Fire Creek] shall be bound by the terms
thereof .. . . Any modification to any permit shall be made . . .
only after having received [Southern Minerals] written
permission" (Sec . Mem . , Exh . W, Para . 3) .
I cannot determine from the present record whether
Southern Minerals 1 involvement in the engineering aspect of
the mine was such as to constitute the control envisioned by
the statute . The contract betw~en Souther~ Minerals and
Fire Creek clearly states that Southern Mineral's involvement
with mine projections and maps was to coordinate it:.s. overall
mining operations on leasehold property . If this was in fact

474

·.·:

the purpose of Southern Mineral's involvement with mine
projections and map preparation, it would not be an indicia
of control over the mine.
Further, the fact that Jack Bowling and St. John, along
with Harold and officials o.f Pocahontas, met with MSHA officials
to discuss changes in MSHA policy affecting the mine•s ventilation plan does not, without more, establish that Southern
Minerals was exercising control over the mine. The full nature
of the discussions is not revealed, nor are the proposed changes
explained. I note, as well, St . John's statement in his
deposition that his purpose at the meetings was to act as an
intermediary between Pocahontas and Fire Creek and not to provide
technical expertise on the mine's ventilation (Sec. Mem., Exh. Q
56-57).
In like manner, I cannot determine from the present
record whether the fact that Southern Minerals obtained initial
federal and st~te permits that allowed Fire Creek to initiate
mining is an indication that it was acting as an operator of
the mine. While I assume Fire Creek could not have operated
without the permits, there may have been reasons relating solely
to Southern Minerals status as lessor of mineral rights that
required it to obtain the permits and to retain, in effect, a
veto power over their modification.
I nvolvement in Finance
It is apparently true that Fire Creek obtained operating
capital from Southern Minerals. The Secretary cites the
deposition of David Harold, who agreed that Southern Minerals
regularly advanced Fire Creek funds to buy equipment, purchase
supplies and possibly to pay the miners (Sec. Mem. Exh. R, 6465) . Harold stated that Southern Minerals, in effect, paid the
bill s when Fire Creek could not cover expenses, that he knew
this would be done and that he qid not have to request the funds
(Id. at 66). According to Southern Minerals own statements,
advances between July 1-15, 1988 and October 19, 1990, totaled
at least $1,358,000 (Id., Exh. Q, Dep . Exh. 12) . The Secretary
also states that Harold discussed expenditures of more than
$5,000 with Jack Bowling (Sec. Mem., Exh . R, 13-17).

475

The advancement of funds to cover expenses might or might
not be an indication of control over mining operations. The
funds might have been provided solely to allow mining to proceed so that Southern Minerals could benefit from its contract .
Certainly, the maximization of profit is not prohibited by
the Act.
In other words, it is not clear, on the basis of the
record as it now exists, that Southern Minerals used its
financial leverage to control how mining was done at the mine
or to control the mine itself.
It is similarly not clear whether Harold's discussions
with Bowling regarding expenditures of more than $5,000 are
proof that Bowling, and through Bowling, Southern Minerals, was
trying to control how mining was done or to control the mine.
More needs to be know about the discussions, i.e., their overall
purpose, to what they referred and the context in which they
occurred.
Involvement in Production
In his deposition, Harold stated that he had a daily
telephone conversation with Bowling in that Bowling always
called to get a repqrt of the number of tons of coal mined the
previous day (Sec. Mem . , Exh. R 12-13). Harold stated that at
times during the conversations Bowling would offer suggestions to
problems Fire Creek was encountering in carrying out underground
mining. However, Harold also stated that Bowling did not give
specific directives in terms of what he did or did not want done
( Id., Exh . R. 17-21).
In his deposition, Bowling agreed that he discussed
production with Harold and that he went to the mine on occasion
to check on production and to visit with Harold (Sec . Mem . ,
Exh. S 6 - 7). According to Bowling, Harold had the reputation
of being "one of the [best] -- if not the best -- coal miner[s]
in southern West Virginia" and Bowling stated he "talked to
[Harold] and listened to him, but [Harold] made all of the
decisions" {~ 8). Bowling also stated that he never told
Harold that he wanted something done in a certain way {.Id..._ 9-10)
In addition, Bowling never went underground at the mine.

476

I cannot find thi s indicates such control of actual
mining , or of the mine itself , so as to make Southern Minerals
an operator.
If the discussions of production includ ed specific
directives from Bowling on how and where to mine that would be
one thing, but suggestions on such topics could have been nothing
more than normal conversations between the on-site operator and
the party for whom it contracted to -mine . Obviously, Southern
Minerals, which marketed all of the coal produced by Fire Creek,
had a vital interest in the status of production . The present
record raises unresolved questions of content and context.
Invo l vement in Employment
The Secretary states that Harold talked to Bowling about
potential employees he was considering hiring in order to
determine what kind of miners they would make and that he
discussed with Bowling the possible termination of some
employees . Harold, however, could not recall if Bowling ever
had a say in a person being fired or terminated (Sec . Mem.,
Exh. R 9-11) . Haro l d further stated that he did not discuss
other personnel matters with Bowling unless it was "really
something important" (Id . 11).
Again, I cann ot determine if Bowling's involvement on
behalf of Southern Mineral in Fire Creek's personnel matters was
indicative of operator status. Was he trying to control who was
h ired and f i red? Or, was he simply being asked for and possibly
· offering an opinion on whether someone he knew was a reliable
worker or whether someone should be let go? In addit i on, what
were the "really . .. important" personnel matters Harold and
Bowling discussed?

TRUE ENERGY
Involvement in Administrative Services
The Secretary states that True Energy provided Fire Creek
with the various administrative services · indicated above (Sec .
Mem . , Exh . K, Interrog . 29). The Secretary notes that Harold
stated that Fire Creek met monthly with True Energy, Southern
Minerals and the other companies mining under contract with

477

Southern Minerals to discuss the fee for the administrative
services (Id., Exh. R 37) and that beginning August 1989,
Fire Creek paid True Energy monthly fees for the .administrative services (Sec. Mem., Exh. Q 30-31). The last such
fee was paid in July 1990 (Id. 120-121).
The Secretary also states that True Energy recommended,
procured and paid for liability insurance policies for
Fire Creek and other contractor companies and developed
recommendations for medical insurance coverage. The Secretary
maintains that True Energy's insurance recommendations were
always accepted by Fire Creek (Sec. Mem., Exh. Q 24-25, 27,
80, 85) . Although St. John stated that the cost of the
liability insurance was built into the administrative fee
True Energy charged Fire Creek, there came a point after July
1990 when True Energy alone paid for the policies (Id. 85) .
I can not find that True Energy's involvement in the
administrative aspect of Fire Creek's business is necessarily
indicative of True Energy's operator status . It is not
unusual for a small to medium size operator to contract for
administrative services.
It would come as a great surprise
for contractors to learn that by providing such services they
were subjecting themselves to Mine Act liability for any and
all violations arising at a on-site operator's mine.
While, I suppose, it is conceivable that the administrative services provided were used by True Energy to control
how mining was carried out o r how the mine was operated,
I cannot conclude as much on the basis of the present record.
Involvement in Finance
The Secretary asserts that when St. John, as vi9e president
of True Energy, determined that Fire Creek did not have sufficient funds to cover operating expenses, he advanced necessary
funds from Southern Minerals account into Fire Creek's account.
St . John described True Energy's situation as that of a
contractor to Fire Creek. He stated that one of the things
True Energy contracted to do was to advance funds secured by
Fire Creek's coal production (lsi.... Exh . Q 101-103, 107).

478

It is possible that funding an on-site operator might
be an indication of actual control over mining operations
and over the mine itself, but it does . not necessarily follow
that such is always the case. In my opinion, there must be
evidence that the money actually was used to compel Fire Creek
to mine in a manner True Energy dictated or to run the mine as
True Energy wanted it run.. I can not determine on the basis
of the present record if this in fact happened.
Involvement i n Engineering
St. John stated in his deposition that from 1990 until
January 1991, True Energy provided Fire Creek with surveying
to align entries and with spad setting (Sec. Mem., Exh . Q,
33-34). Surveying was done at 5 to 10 day intervals and,
according to Harold, True Energy hired engineering personnel
to come to the mine twice a week on the average to set spads
(Id., Exh. R 49).
Surveying and spad setting frequently are contracted- out
by operators.
In my opinion, surveying of sight lines and
setting of spads does not, in and of itself, make the contractor
an operator for all purposes. There must be evidence that the
contractor was controlling or intending to control the actual
mining operations at the mine itself. I do not find such
evidence in the record as it exists to date .
Survey data was plotted on the mine maps (Sec Mem . ,
Exh. K., Interrog . 33) . After January 1, 1990, John E. Caffrey,
a retired engineer who was on retainer to True Energy, certified
these maps for Fire Creek (l.Q.. Exh . Q 58-59) . True Energy paid
him to certify the maps of August 30, 1990 and October 5, 1990
(Id . 48). The maps were submitted to MSHA as part of the
ventilation plan . St . John had no knowledge that anyone from
True Energy or Southern Minerals reviewed the maps or the plan.
(l..d...... 51) .

As with surveyi ng and spad setting, it is not unusual for
an on-site operator to contract-out the certification and
preparation of its maps .
While it is conceivable that in
providing this service a contractor could control the way an
on-site operator actually conducted mining operations or
controlled the mine itself, I do not find evidence of this

479

.
·.

..:...

~

in the record as it exists to date. I cannot conclude that
because True Energy provided this service to Fire Creek, it
was an operator for all purposes under the Act.

RQLING ON THE MOTIONS
Because I cannot find that the undisputed material facts
establish Southern Minerals and True Energy exercised such
con trol over mining or the mine itself so as to make either or
both statutory operators, the Secretary's motion for partial
summary decision is DENIED.
Conversely, because I also cannot find, on the basis of
t he present record, that the material facts establish that
Southern Minerals and True Energy did not exercise such control
over mining or the mine itself, the Contestants• motion also must
be DENIED.
Therefore, a hearing on t he issue of liability will be
necessary.
The burden of proof will be on the Secretary. He
must establish by substantial evidence of record that Southern
Minerals and/or True Energy exercised actual control over the
mining operations at the mine, or over the mine itself, or had
the power to exercise such control.

CONTESTANTS' OTHER ARGUMENTS
The Contestants argue that even if the Secretary properly
cited Southern Minerals and True Energy, the Contestants are
entitled to a dismissal of the proceedings because the citations
represent a significant departure from past practice. According
to the Contestants, rulemaking was required before the Secretary
could act (Cents . Mot. 33-38). They further assert that, even if
the Secretary could proceed without rulemaking, the cases must be
dismissed because the Contestants relied on the Secretary ' s
previous policy not t o cite those . with 11 no practical connection
to mining operations 11 (Id. 42).
These arguments are rejected. The central question is
whether the Contestants were operators as defined by the statute.
If they were and, if upon inspection or investigation, the
Secretary believed any mandatory health or safety standards
had been violated, the Act required they be cited. The Secretary

480

:·'',

certainly may proceed by adjudication to test the parameters
of his statutory authority, as indeed he has done frequently
in the past.
The Con testants point to no official policy enunciated
by MSHA upon which they have relied to their detriment. Even
were there such a po l icy, the consequence of their reliance
arguably would not be violative of due process. Section 110
of the Act would mitigate significantly the consequences of
such reliance by providing that monetary civil penalties
arising from citations be ameliorated by the operators' lack
of negligence (30 U.S.C. §820) .
Finally , because of my conclusions regarding the meaning
of section 3(d), I need not reach the Contestants other
arguments (Cants . Mot. 43) .
NOTICE OF HEARING

The parties are advised that these matters will be called
for hearing in Princeton, West Virginia, at 8:30 a.m. on May 2,
1995.
(A specific site will be designated later . ) The issue of
the Contestants liability will be decided on the basis of the
present record and such additional and specific evidence as the
parties shall present showing the Contestants control over the
actual mining operations at the Fire Creek No. 1 Mine, over the
mine itself, or the Contestants actual authority to exercise
such control.

Jc:~· > d 1: _/;~_.,/c~'-L.
David F . Barbour
Administrative La w Judge
703....:756 - 5232

481

Distribution:
Pamela S. Silverman, Esq., Office of the Solicitor,
U.S . Department of Labor, 4015 Wilson Bou~evard, Suite 516,
Arlington, VA 22203 (Certified Mail)
Robert I. Cusick, Esq., Marco M. Rajkovich, Jr . , Esq.,
,vyatt, Tarrant & Combs, 1 700 Lexington Financial Circle,
Lexington, KY 40507 (Certified Mail)
David Burton, Esq., P. 0. Box 5129, 1460 Main Street,
Princeton, WV 24740 (Certified Mail)

\lh

482

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

March 10, 1995

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

CIVIL PENALTY PROCEEDING
Docket No. VA 95-3-M
A.C. No. 44-06701-05506
Pit #1

MECHANICSVILLE CONCRETE INC.,
Respondent
ORDER
On February 10, 1995, the Secretary filed a motion to
preclude Mechanicsville, Concrete, Inc. (Respondent) from
relitigating the issue of whether it and its mine, Pit No. 1, are
subject to the jurisdiction of the Commission . The motion is
based upon the principle of collateral estoppel. 1
On July 7, 1994, in Secretary v. Mechanicsville Concrete .
.I.n.Q., 16 FMSHRC 1444 (July 1994), Respondent had raised the
defense that it was not subject to MSHA jurisdiction .
Judge Arthur Amchan ruled that the Respondent herein and its
mines, Pit No. 1 and Branchville Plant, were subject to MSHA
jurisdiction .
On August 16, l994, the Commission denied the Respondent's
petition for review of .th.i.s, ruling, but accepted the Respondent's
petition for review of other issues, and directed fil.l.a sponte for
review of other rulings contained in Judge Amchan's decision.

In its answer filed in this matter, Respondent asserted,
inter-alia. that the Commission does not have jurisdiction over
the Respondent or its mine, Pi t No. 1, and that the Federal Mine
Safety and Health Act of 1977 ( 11 the Act") is unconstitutional as
applied to this Respondent.
1

483

"Under the judicially developed doctrine of collateral
estoppel, once a court has decided an issue of fact or -law
ne cessary to its judgment, that decision is conclusive in a
subsequent suit based on a different cause of action involving a
party to the prior litigation." !L..S v. Mendoza, 464 U. S. 154,
158 (1984), citing Montana v . ll.....S......, 440 U. S. 147, 153 (1979).
The rationale for this doctrine was set forth by the Supreme
Court in Montana, supra, as follows: "To preclude parties from
contesting matters that they have had a full and fair opportunity
to litigate protects their ··adversaries from the expense and
vexation attending multiple lawsuits, conserves judicial
resources, and fosters reliance on judicial action by minimizing
the possibility of inconsistent decisions . " Montana v . !.L...S..._,
440 U.S. at 153-154.
Respondent has already litigated before Judge Amchan the
issue of the Act's jurisdiction over it and its mines.
Respondent asserts that the mine at issue before Judge Amchan was
close to the North Carolina border, whereas the case at bar
"deals only with a mine in the geographic center of the state . "
However, Respondent, in the instant proceeding does not seek to
litigate the issue of jurisdiction based upon a set of facts
differing in essential part from those presented in the case
before Judge Amchan. It is Respondent's position that "the Court
can address the legal (sic.) of the continuing viability of
Wicka rd without fact finding and testimony on the jurisdictional
issues . . . . Because this case will not involve the relitigation
of facts but simply the appropriateness of continuing to apply an
unworkable constitutional precedent this is not the kind of case
where collateral estoppel is appropriate."
Hence, since Judge Amchan made a decision regarding the
jurisdiction of the Act over Respondent and its mines, Respondent
is precluded from relitigating this issue before me .
The Secretary's Motiorr· is granted . 2 IT IS ORDERED that
Re spondent be precluded from relitigating the issue of whether

To the extent that Respondents' arguments are inconsistent
with this decision, they are rejected for the reasons set forth
above.
2

484

~::

it is subject to the Act, and that Judge Amchan's decision in
this issue is conclusive in the instant proceeding . . IT IS
FURTHER ORDERED that by March 23, 1995, the parties shall comply
with all the terms of the Prehearing Order previously issued on
January 23, 1995.

Avram Weisberger
Administrative Law Judge
Distribution:
Javier I. Romanach, Esq., Office of the Solicitor,
U.S. Department of Labor, Suite 516, 4015 Wilson Blvd.,
Arlington, VA 22203 (Certified Mail)
Arthur Anthony Lovisi, Esq., Mechanicsville Concrete, Inc.,
33211 Lees Mill Road, Franklin, VA 23851
(Certified Mail)
/ml

485

FEDERAL MINE SAFETY' AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, 0.C. 20006

March 16, 1995

SECRETARY OP LABOR,
KINB SAJ'BTY AND BBALTB
ADMINISTRATION (KSHA),
Petitioner

:
:
:
••

CIVIL PENALTY PROCEEDING
Docket No. DNT 95-32
A. C. No. 15-16627-03562

:

v.

JBRICOL MINING INCORPORATED,
Respondent

..•
•

No. 2 Darby

:

DECISION APPROVING PARTIAL SETTLEMENTS
DEClSION DISAPPROVING PARTIAL SETTLEMENT
ORDER TO SUBMIT IBFOBMATION

Before:

Judge Kerlin

This case is before me upon a petition for assessment of
civil penalties under section 105(d) of the Federal Kine Safety
and Health Act of 1977. The parties have filed a j oint motion to
approve settlements for the sixteen violations in this case. A
reduction in the penalties from $7,723 to $5,994 is proposed.
The parties propose to settle fifteen of the violations,
Citation Nos. 4240494, 4240495, 4470149, 4240496, 4240497,
4240498, 4240499, 4240500, 4482801, 4470154, 4470155, 4470156,
4470157, 4469837 and 4469839 in this case for the originally
assessed penalties. I have reviewed these violations in light of
the six criteria and determine that the proposed settlements are
appropriate.
With respect to the remaining violation the parties propose
a reduction in the penalty. Citation No. 4470153 was issued for
a violation of 30 c.F.R. § 7S.342(b)(2) because the methane
monitor on the continuous mining machine was not visible to the
person operating 20 to 25 feet behind the machine. According to
the parties, the operator•s witnesses would challenge the validity of the citation as well as the significant and substantial
designation by asserting that the operator was granted a waiver
which allowed it to make cuts that were 25 feet deep. At the
time the waiver was considered by KSHA, inspectors came to the
mine and recommended the waiver be granted and approved the
placement of the monitor. The operator would testify that the
monitor was in the same place on the miner when the citation was
issued as · wben MSBA inspected the miner for the waiver. The
operator would also present testi•ony that the miner operator
could see the monitor ~rom where be was operating the machine.
Based on the operator•a representations, the parties agree to
reduce the penalty from $1,779 to $50.
·

486

The motion as presented for this violation cannot be approved. The parties are reminded that the Commission and its
judges bear a heavy responsibility in settlement cases pursuant
to section 110(k) of the Act. 30 u.s.c. § 820(k); IJUl, s. Rep.
No. 95-181, 95th Conq., 1st Bess. 44-45, reprinted i.D Senate
Subcommittee on Labor, Committee on Human Resources, 95th Conq.,
24 sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 632-633 (1978). It is the judqe•s responsibility to determine the appropriate amount of penalty, in
accordance with the six criteria set forth in section 110(i) of
the Act. 30 u.s.c. § 820(i); Sellersburg Stone Company y.
Federal Mine Safety and Health Review Commission, 736 P.2d 1147
(7th Cir. 1984). A proposed reduction must be based upon
consideration of these criteria.
The parties in the instant motion have merely stated the
operator•s positions with respect to the violation. There is no
indication whether the Secretary agrees with the operator•s
assertions. Nowhere in the settlement motion is there any
suggestion that the citation designated as sig.n ificant and
substantial be modified. The penalty amount of $50 is usually
reserved for non-significant and substantial, violations. Under
the provisions of the Act, as set forth above, I can only approve
a settlement justifiable under the six criteria of section
llO(i), supra. Accordinqly, the parties must explain why the
proposed penalty should be reduced in light of the six criteria.
For instance, if the facts indicate a lesser degree of gravity or
negligence than first thought, the parties, and most especially,
the Solicitor, must say so.
In light of the foreqoinq, it is ORDERED that the motion for
approval of settlements for Citation Nos. 4240494, 4240495,
4470149, 4240496, 4240497, 4240498, 4240499, 4240500, 4482801,
4470154, 4470155, 4470156, 4470157, 4469837 and 4469839 be
APPROVED.
Xt is further ORDERED that the motion for approval of
settlement for Citation No. 4470153 be DENIED.
It is further ORDERED that within 30 days of the date of
this order the parties submit appropriate information to support
their settlement motion for Citation No. 4470153. Otherwise,
this case will be set for hearing.

-

•
Law Judge

487

·~

Distribution:

(Certified Mail)

Anne T. Jtnauff, Bsq., Office of the Solicitor, o.s • . Department of
Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215
Mr. Jim Baker, General Superintendent, Jericol Mining Inc.,
General Delivery, Holmes Mill, EY 40843
DOuglas White, Esq., counsel, Trial Litigation, Office of the
Solicitor, o.s. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
/gl

488

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K sntEET HW. 6TH FU>OR
WASHINGTON. D.C. 20006

Karch 16, 1995
8BCRBTllY OF LaBOR,
JlIHB SUETY UD BBALTB
&DXINISTRATIOB (K8BA),
Petitioner

v.

I
I
I

I
I
I

JBRICOL XIBIBG IBCORPORATBD,
Reapondent

CIVIL PBDLTY PROCBBDIBG
Docket Bo. DBT 95-31
A. C. Bo. 15-16627-03561
Jfo. 2 Darby

I

a

DIC!SION APPROVING PARTIAL SBTTLBMBJl'l'S
l)ICISIQH DISAPPRQVING PARTIAL SETTLIHIJl'l'S
OBDBR TO BVBMIT l:tflORMU'IOH

Before:

Judqe Merlin

This case is before me upon a petition for assessment of
civil penalties under section 105(d) of the Pederal Mine Safety
and Health Act of 1977. The parties have filed a joint motion to
approve aettlem•nts for the seven violations in this case. A
reduction in th• penalties from $3,411 to $2,830 is proposed.
The parties propose to aettle five of the violations,
Citation Boa. 4248716, 4248791 1 4487200, 4487825, and 4487826 in
this case for the oriqinally assessed penalties. I have reviewed
th••• violations in liqht of the six criteria and determine that
these proposed settlements are appropriate.
With respect to the two remaininq violations the parties
propose reductions in the penalties.
citation No. 4487169 was issued for a violation of 30 c.F.R.
75.202(a) because coal brows were found hanqing on the corners
of pillars and were not bolted or taken down. The inspector also
noted that the brows had been burned to the mine roof and were
difficult, if not impossible, to pull down with a slate bar.
According to the joint motion filed by the parties, the operator• a witnesses would challenqe the aiqnificant and aubstantial
designation by assertinq rock that has been burned to the roof is
not generally regarded as loose but as solid stable rock. The
operator would also present testimony that the roof conditions in
the area were 9004. Based on the. operator•s representations, the
parties agree to reduce the penalty from $431 to $50.
§

Citation No. 4248792 was issued for a violation of 30 c.F. R.
I 75.203(a) because the method of mininq had caused a pillar to
be cut short of the required size for effective control of the
roof and rib. The pillar measured 22 feet on the entry aide and
should have measured so feet. According to the parties, the
operator would challenge the siqnificant and substantial desicplation by presenting evidence that the roof conditions were very

489

;: .

9ood azad that roof aupport had been installed in accordance with
th• roof control plan. In addition, the operator would testify
that there were no ainera working in th• area. Baaed on the
operator•• representations, the parties agree to reduce the
penalty fro• $595 to $395.
Th• aotion as presented for th••• two violations cannot be
approved. Th• parties are reainded that the Commission and its
judges l>ear a heavy responsibility in aettleaent c•sea ·pursuant
to aection 110(k) of the Act. 30 u.s.c. I 820(k)I a.a, s. Rep.
wo. 95-181, t5th Cong., 1st
44-45, reprinte4 iJl Senate
Subcommittee on Labor, committee on Human Resources, tSth Cong.,
2d Seas., Legislative History Of the lederal Kine Safety and
Health Act of 1977, at 632-633 (1978). It is the ju4ge•a responsibility to 4eterain• th• appropriate amount of penalty, in
accor4ance with the aiz criteria set forth in section 110(i)
of the Act. 30 o.s.c. § 820(i); Sellers'.burg stone Company y.
rederal Kine Safety and Health Review Commission, 736 F.24 1147
(7th Cir. 1984). A propose4 reduction aust be baaed upon
consideration of these criteria.

8•••·

The parties in the instant aotion have merely stated the
operator•s positions with respect to the violations. There is no
indication whether the Secretary agrees with the operator••
assertions. Nowhere in the settlement aotion is there any
suggestion that citation No• 4487169 designate4 as significant
and substantial should be modified. The penalty amount of $50
for this citation is usually reserved for only non-aiqnificant
and substantial violations. Under the provisions of the Act, as
set forth above, I can only approve a settlement . justifial>le
under the aiz criteria of section 110(i), supra. Accordingly,
the parties must explain why the proposed penalties should be
reduced in light of the siz criteria. Por instance, if the facts
indicate a lesser degree of gravity or negligence than first
thought, the parties, and most especially, the Solicitor must aay
so.
In light of the foregoing, it is ORDERED that the motion for
approval of settlements for Citation Bos. 4248716, 4248791,
4487200, 4487825, and 4487826 be APPROVED.
It is further ORDERED that the motion for approval of
settlements for Citation Hos. 4487169 and 4248792 be DENIID.

490

Jt ia further ORDBRBD that within 30 daya of th• date of
thi• order th• parties aul>ait appropriate information to aupport
their aettl. .ent aotion for Citation Moa. 4487169 and 4248792.
Otherwise, thi• case will b• ••t for hearing.

Paul Merlin
Chief A411liniatrativ• Law Judge
Distribution:

(Certified Hail)

Ann• T. ltllauff, Baq., Office of the Solicitor, u.s. Department of
Lal:>or, 2002 Richard Jones Rd., suite B-201, Nashville, TN 37215
Jia Baker, General Superintendent, Jericol Kininq %no.,
General Delivery, Bolaea Mill, rr 40843

Jlr.

Douglas White, B~q., Counsel, Trial Litigation, Office of the
Solicitor, u.s. D•partaent of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203

491

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON. 0.C. 20006

March 16, 1995

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

v.
BARBOR ROCK, INCORPORATED,
Respondent

.:
..
.
.
:

CIVIL PENALTY PROCEEDING
Docket No. WEST 95-64-M
A. C. No. 45-02518-05517
Barbor Rock Portable

:

DECISION DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATION

Before:

Judge Merlin

This case is before me upon a petition for assessment of
civil penalties under section 10S(d) of the Federal Mine Safety
and Health Act of 1977. The parties have filed a joint motion to
approve settlements for the two violations in this case. A
reduction in the penalties from $3,000 to $959 is proposed.
Citation No. 4341585 was issued for a violation of Section
103(a) of the Mine Act, 30 u.s . c . § 813(a), because the operator's president and vice-president threatened the inspector and
ordered him off mine property. The originally assessed penalty
was $1,000 and the proposed settlement is $320.
Citation No. 4341658 was issued as a 104(d) (1) citation for
a violation of 30 C.F.R. § 56.11012 because a railing, barrier or
cover was not in place at the jaw crusher which was close to the
access into the crusher control booth. The originally assessed
penalty was $2,000 and the proposed settlement is $639.
The motion cannot be approved. The parties are reminded
that the Commission and its judges bear a heavy responsibility
in settlement cases pursuant to section llO(k) of the . Act.
30 o.s.c. § 820(k): ~, s. Rep. No. 95-181, 95th cong., 1st
sess. 44-45, reprinted in senate Subcommittee on Labor, committee
on Buman Resources, 95th Cong., 24 sess., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 632-633
(1978). It is the judqe•s responsibility to determine the
appropriate amount of penalty, in accordance with the six criteria set forth in section 110(i) of the Act. 30 o.s.c. § 820(i):
Sellersburg stone company y. Federal Mine safety and Health
Review Commission, 736 F.2d 114·7 (7th Cir. 1984). A proposed
reduction must be based upon consideration of these criteria.
The parties in the instant motion have offered absolutely no
explanation for the larqe reductions they recommend. Both
492

~

violations are egregious and serious and according to the parties
themselves, negligence is high. The proposed penalty reductions
are very substantial. To obtain a settlement of the type proposed, the parties must put forward persuasive arquments. I can
only approve a settlement justifiable under the six criteria of
section 110(i), supra. Accordingly, the parties must explain why
the proposed penalties should be reduced in light of the six
criteria or the case will go to hearing.
In light of the foregoing, it is ORDERED that the motion for
approval of settlement be DENIED.
It is further ORDERED that within 30 days of the date of
this order the parties submit appropriate information to support
their motion for settlement. Otherwise, this case will be set
for further proceedings.

Paul Merlin
Chief Administrative Law Judge
Distribution:
William w. ltates, Esq., Office of the . Solicitor, u. s. Department
of Labor, 1111 Third Avenue, suite 945, Seattle, WA 98101-3212
Douglas White, Esq., Counsel, Trial Litigation, Office of the
solicitor, u.s. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
Mr. Tim Bond, Secretary, Harbor Rock Inc., Box 246, South Bend,
WA 98586

/gl

49 3

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOTH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 31, 1995

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF CHARLES H.
DIXON,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. KENT 94-1274-D
PIKE CD 94-16
Pontiki No. 2 Mine
Mine ID 15-09571

PONTIKI COAL CORPORATION,
Respondent
ORDER DENYING MOTION TO DISMISS ON REMAINING ISSUES
The Order Granting Partial Dismissal issued February 6,
1995, (amended on March 10, 1995), left certain issues to be
resolved following limited evidentiary hearings. Hearings were
thereafter held on March 9, 1995. For the reasons set forth
herein, those issues are now resolved in favor of the
complainant.
One of the issues remaining from Respondent's Motion to
Dismiss was its claim that the Secretary's complaint in this case
was untimely filed. It is undisputed that on April 26, 1994,
Charles H. Dixon filed with the Mine Safety and Health
Administration (MSHA) a complaint alleging discriminatory acts
from around March 11, 1994, through April 15, 1994. This
complaint was received by the Secretary on April 26, 1994.
Accordingly, the 90 days within which the Secretary must notify
the complainant of his determination whether a violation has
occurred, expired on July 25, 1994. Section 105(c) (3) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et. seq., the "Act."
It is further undisputed that the Secretary did not until
September 2, 1994, file its complaint on behalf of Dixon with
this Commission. Moreover, it was not until September 15, 1994,
that the Secretary actually mailed to Dixon, with copies to
Respondent, a copy of the Secretary's written determination that
Dixon had been discriminated against and stating therein that a
complaint had already been filed with the commission on Dixon's
behalf. Thus, the complaint in this case which was not filed
with this Commission until September 2, 1994, was filed 129 days
494

after Dixon's initial complaint was received by the · secretary.
Furthermore, the Secretary's written determination issued in
accordance with Section 105(c)(3) of the Act on September 15,
1995, was issued some 142 days after the initial complaint was
received by the Secretary.
It is apparently on the basis of these delays that the
Respondent seeks dismissal for untimely filing. However, as the
Respondent notes, this Commission restated in Gilbert v. Sandy
Fork Mining Company, 9 FMSHRC 1317 (1987), rev'd on other
grounds, 866 F2d 1433 (D.C. Cir 1989), that the 90 day deadline
for completion of the Secretary .' s investigation and commencement
of a miner's discrimination complaint is not jurisdictional. The
Commission noted that this was the case because a "complainant
should not be prejudiced because of the failure of the government
to meet its time obligations".
In general, when dealing with late-filings of a few days or
even a few months, the Commission has determined that the time
limits in Sections 105(c)(2) and (3) are not jurisdictional and
that the failure to meet them should not result in dismissal
absent a showing of material legal prejudice. See, e.g.,
Secretary on behalf of Hale v 4 - A Coal Company, 8 FMSHRC 905,
(June 1986).
The delay in this case of only a few days is indeed quite
limited and Respondent has failed to show any legal prejudice
caused by the delay. In addition, I find, based on the affidavit
of Associate Regional Solicitor, Ralph York, that there was some
justification for the delay (Government Hearing Exhibit No. 1).
Accordingly, I find no basis for dismissal because of untimely
filing.
The next unresolved issue is Respondent's claim that Mr.
Dixon's Certificate of Representation, received by Pontiki on
April 15, 1994, was defective and not legally binding because it
failed to comply with the Secretary's regulations at 30 C.F.R.
§ 40.3(a).
The cited regulation specifically provides as
follows:
Section 40.3(a) - The following information shall · be filed
by a representative of miners with the appropriate district
manager, with copies to the operators of the affected mines.
This information shall be kept current: (1) the name,
address and telephone of the representative of miners. If
the representative is an organization, the name, address,
and telephone number of the organization and the title of
the official or position, who is to serve as the
representative and his or her telephone number.

495

The certification at issue in this case was submitted at
hearing (Government Hearing Exhibit No. 3) and, contrary to
Respondent's allegations, clearly sets forth the ~·title" or
"position" of Mr. Dixon as "international representative".
Furthermore, a telephone number is provided on the face of the
certificate which purports to be that of Dixon. The regulation
does not require the representative to provide a home telephone
numbe.r as Respondent seems to suggest. Under the circumstances,
Respondent's argument herein is clearly without merit.
Finally, Respondent has argued that the Secretary failed to
comply with Commission Rule 44(a), 29 C.F.R. S 2700.44(a), in
that the Secretary's amended complaint failed to include "a short
and plain statement of supporting reasons based on the criteria
for penalty assessment set forth in Section llO(i) of the Act".
Whether or not the Secretary's amended complaint failed to comply
with Commission Rule 44(a) is now moot however since the
Secretary has, in fact, filed a second amended complaint meeting
the requirements of the Rule. The Respondent's
gument on this
issue is, accordingly, also rejected.

Gary Me ick
Adminis rative Law Judge
703-756 6261

Distribution:
Brian W. Dougherty, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 2002 Richard Jones Road, suite B-201, Nashville, TN
37215-2862 {Certified Mail)
Timothy M. Biddle, Esq., Thomas c . Means, Esq., Crowell & Moring,
1001 Pennsylvania Ave., N.W., Washington, D.C. 20004-2595
'

/jf

496
•V.S. GOVE!lNMENT PRINTING 01'1'IC!: 1995-38 7-7'!0/33378

....