DECEMBER 2001

COMMISSION DECISIONS AND ORDERS

12-04-2001 Arch of West Virginia
12-14-2001 Kinder Morgan Operating L.P. "C"

WEVA 2000-55
KENT 2000-128-R

Pg. 1285
Pg. 1288

CENT 2001-30-M
KENT 2001-142
WEVA 98-72-R
WEST99-50
CENT 2000-233-RM
CENT 99-178
YORK 99-39-M

Pg. 1301
Pg. 1310
Pg. 1316
Pg. 1325
Pg. 1330
Pg. 1346
Pg. 1418

WEVA 2001-58

Pg. 1422

ADMINISTRATIVE LAW JUDGE DECISIONS

12-05-2001 The Doe Run Company
12-11-2001 Ohio County Coal Company
12-13-2001 Eagle Energy, Inc.
12-18-2001 Canyon Fuel Company, LLC
12-18-2001 Ormet Primary Aluminum Corporation
12-26-2001 Georges Colliers, Inc.
12-27-2001 Douglas R. Rushford Trucking
ADMINISTRATIVE LAW JUDGE ORDERS

12-27-2001 CC Coal Company

i

DECEMBER 2001

No cases were filed in which Review was granted during the month of December:

No cases were filed in which Review was denied during the month of December:

ii

COMMISSION DECISIONS AND ORDERS

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

December 4, 2001
SECRETARY OF LABOR.
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
and
UNITED MINE WORKERS OF AMERICA

Docket No. WEVA 2000-55

v.
ARCH OF WEST VIRGINIA
BEFORE:

Verheggen, Chairman; Jordan, Riley and Beatty, Commissioners
ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) (''Mine Act"). In this case, the Secretary of Labor issued two citations to
Arch of West Virginia ("Arch") for the condition of fuel trucks alleging violations of 30 C.F.R.
§ 77 .1606(c), which provides: "Equipment defects affecting safety shall be corrected before the
equipment is used." Arch ~_ontested the citations and the United Mine Workers of America
("UMWA") intervened in support of the Secretary's position. After a hearing, Administrative
Law Judge Hodgdon vacated the two citations. 23 FMSHRC 447, 452-53 (Apr. 2001) (ALJ).
Although the UMWA filed a petition for discretionary review with the Commission, the
Secretary did not.
After granting the UMWA's petition, the Commission issued a briefing order directing
the parties to address the issue of the standing of the UMWA to file an appeal when the Secretary
has not sought review of a judge's decision. The Commission also invited the Secretary to
address-the standing issue. Pursuant to that order, the Secretary filed a brief, in which she stated
that it was her intention not to enforce the citations and to vacate them if the case proceeded.
Sec'y Br. at 1. Subsequently, the Secretary vacated both citations.

1285

In light of the Secretary's vacation of the citations at issue, we vac~te
review and dismiss these proceedings.

_

our direction for

..,...
I~

.. ..........

Theodore F. Verheggen, Chai

~\~c..~
Varnes C. Riley, Commissioner

Robert H. Bea~ty~ Jr., Commissioner

1286

Distribution
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203 ·
Judith Rivlin, Esq.
United Mine Workers of America
8315 Lee Highway
Fairfax, VA 22031
Anne Wathen 0 'Donnell, Esq.
Arch Coal, Inc.
CityPlace One, Suite 300
St. Louis, MO 63141
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1287

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

December 14, 2001
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos.
v.

KENT 2000-128-R
KENT 2000-129-R
KENT 2000-130-R
KENT 2000-168

KINDER MORGAN
OPERATING L.P. "C"

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

DECISION
BY THE COMMISSION:
In this consolidated contest and civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), the
Department of Labor's Mine Safety and Health Administration ("MSHA") issued to Kinder
Morgan Operating L.P. "C" ("Kinder Morgan") three citations alleging violations of mandatory
safety standards. At issue iiwhether Administrative Law Judge T. Todd Hodgdon correctly
determined that the site at which the violations allegedly occurred constitutes a "mine" within the
meaning of section 3(h)(l) of the Mine Act, 30 U.S.C. § 802(h)(l). 23 FMSHRC 73 (Jan. 2001)
(ALJ). We granted Kinder Morgan's petition for discretionary review challenging the judge's
determination ofjurisdiction. In addition, the Commission heard oral argument on the matter.

Commissioners are evenly divided regarding the disposition of this case. The effect of
the split decision is to leave standing the judge's affirmation of the citations and assessment of
penalties: See Pa. E/ec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff'd on other grounds,
969 F.2d 1501 (3d Cir. 1992). The portion of the decision upon which all Commissioners agree
is followed by the opinions of Commissioner Jordan and Commissioner Beatty, and of Chairman
Verheggen and Commissioner Riley, respectively, setting forth their separate views.

1288

I.

Factual and Procedural Background
The facts underlying the alleged violations are not contested. Joint Stipulation ("JS") at
1. Kinder Morgan operates the Grand Rivers Terminal (the "Terminal"), a marine terminal near
Grand River, Kentucky. 23 FMSHRC at 74. The Terminal consists of three separate areas: (1) a
rail-to-ground unloading and storage facility ("GRT-1"); (2) a rail-to-barge loading facility
("GRT-2"); and (3) a barge-to'-ground unloading and ground-to-barge loading facility ("GRT-4").
Id. Kinder Morgan annually receives an average of approximately 10 million tons of processed
coal from various mines at the Terminal by rail (95%) and by barge (5%). Id.; JS at 3. It is a
bailee of the coal in that the coal is owned by the end user, rather than by Kinder Morgan, and
Kinder Morgan is responsible for the coal only from the time that it is unloaded until the time
that it is subsequently reloaded. 23 FMSHRC at 74. More than 95% of all coal received by the
Terminal is owned and shipped to the Tennessee Valley Authority ("TVA"), which purchases the
coal for use in its 11 coal-fired plants. Id. Alabama Power and West Kentucky Energy have
historically delivered and received the non-TVA coal. Id. at 76.
1

No washing, screening, crushing, or sizing of coal occurs at the Terminal. Id. at 74.
TV A requires the coal of each coal producer to meet certain specifications, and it is the
responsibility of the coal producer or supplier to meet those specifications prior to loading the
coal on to trains or barges at the coal producer's or supplier's loading facilities. JS at 4-5. For
instance, in its various contracts with different producers of Illinois basin coal and Western coal,
TVA requires the coal of each producer to meet certain specifa:ations such as moisture content,
ash content, percentage of volatile matter, heating value (BTU), S02 content, grindability and
chlorine content. Id. at 4. Kinder Morgan is not a party to TVA's contracts with the coal
producers, and has no responsibility to deliver coal to TV A that meets the contract specifications.
23 FMSHRC at 74.
As described more fully below, coal shipments are processed through the Terminal in
three ways: (1) rail-to-stoclCpile-to-barge; (2) barge-to-stockpile-to-barge; and (3) rail-to-barge.
Id.
TVA Coal: Rail-to-Stockpile-to-Barge. When coal is processed from rail to stockpile to
barge, the coal is first unloaded from rail cars into a 100-ton hopper at GRT-1. 2 Id. at 74. From

1
,

The Secretary of Labor and Kinder Morgan stipulated to the facts in this proceeding.
23 FMSHRC at 74.
2

The parties stipulated that "[a]pproximately 95% of coal received by rail is unloaded by
Kinder Morgan at GRT-1 (the remainder being direct dumped at GRT-2)." JS at 5. That
stipulation appears somewhat inconsistent with the parties' stipulation that "[a]pproximately
twenty percent (20%) of the coal arriving at the Terminal by rail is unloaded from bottom dump
1289

the hopper, coal is fed on to two stationary inclined belts which transfer the coal either to surface
stockpiles (approximately 60% of the coal) or to a conveyor belt transfer system ("BTS"),
connecting GRT-1 and GRT-4 (approximately 40%). Id. Coal in the surface stockpiles is
subsequently moved by dozers and trucks into hoppers which deposit it on to the BTS, which
conveys the coal to GRT-4. Id. at 75. Kinder Morgan maintains up to 18 working stockpiles for
TVA's coal. Id. TVA selects coal from suppliers it designates and chooses the working
stockpile where Kinder must place it. Id. .
When the coal arrives at the GRT-4 via the BTS, it is dumped by a chute on to a 150-foot
inclined belt on a radial stacker. Id. The radial stacker segregates the coal into separate
stockpiles at GRT-4. Id. The radial stacker cannot create the required number of stockpiles, so
some of the coal is pushed by dozers into stockpiles, and some of the coal is loaded into haulage
trucks by front-end loaders for dumping into stockpiles. Id.; JS at 6.
When the stockpiled coal is to be loaded into a barge, it is pushed into one of four
feeders. 23 FMSHRC at 75. The feeders are computer controlled to facilitate precise "layerloading"3 from different surface stockpiles. Id. Each feeder transfers coal at a predetermined
rate on to the main belt in a 605-foot draw-off tunnel in the underground coal layer-loading
facility. Id. The tunnel is concrete-lined throughout, and ventilated by two 30-inch diameter
exhaust fans. JS at 6. Methane is monitored by hand-held methane detectors. Id. TVA
identifies which stockpiles ¥e to have coal removed and the amount to be removed. 23
FMSHRC at 75.
After leaving the draw-off tunnel, the coal is transferred on to a portable rail-mounted belt
conveyor. Id. Samples of each coal load are then taken by TVA's independent laboratory, which
collects, bags, and removes samples on a daily basis and sends them by courier to TVA's
facilities in Tennessee for analysis. Id. The conveyor then loads the layered coal into barges for
shipment as fuel to TV A. Id.; JS at 6.
TVA Coal: Barge-to..-Stockpile-to-Barge. Approximately five percent of the coal
processed at the Terminal arrives by barge at GRT-4. 23 FMSHRC at 75. Coal unloaded by
barge at GRT-4 is never transported to GRT-1 or GRT-2. JS at 7. Coal is unloaded from barges
at GRT-4 by a crane, which places it in a feeder for a 735-foot inclined belt on a stacker. 23
FMSHRC at 75. The coal is then stockpiled, as directed by TVA. Id. When the coal is to be
loaded on to a barge, it is layer-loaded in an identical manner, described above, as the coal
arriving at GRT-4 from GRT-1 on the BTS. Id.

rail cars at GRT-2 ...." Id. at 7. The judge did not resolve this apparent discrepancy. See 23
FMSHRC at 75. Nor was the matter clarified during oral argument. Oral Arg. Tr. at 12-13 . ·
3

Layer-loading occurs when coal is "loaded on top of other coals, akin to a parfait." JS

at 5.
1290

TVA Coal: Rail-to-Barge. When coal is moved fro~ rail to barge, it is unloaded from
rail cars at GRT-2 into a surge bin. Id. at 76. It is then directly loaded on to TVA barges. Id.
There is no on-the-ground storage or layer-loading of coal at GRT-2. Id. Coal is sometimes
temporarily stored on the rail cars until it is time to load the barges. Id.
Non-TVA Coal. Non-TVA coal accounts for less than five percent of the coal received at
the Terminal. Id. The non-TVA coal is unloaded, stored and loaded at the Terminal by Kinder
Morgan in the same manner as TV A coal. Id.
Beginning in 1989, the Terminal was inspected by MSHA inspectors from the Division
for Metal and Non-Metal Mine Safety. JS at 3. Jn 1998, the Terminal was first inspected by
MSHA inspectors from the Division for Coal Mine Safety.4 Id. On February 2, 2000, an MSHA
inspector issued three citations to Kinder Morgan alleging significant and substantial ("S&S")
violations of 30 C.F.R. §§ 77.205(b), 77.202, and 77.1104, which describe accumulations of coal
and coal dust on the walkway of a load belt, on the belt and floor of the sample room, and in the
load-out tunnel.5 Citations Nos. 7641076, 7641077, 7641078. Kinder Morgan challenged
MSHA's jurisdiction, although it did not challenge the facts underlying the alleged violations.
23 FMSHRC at 74. The parties stipulated to the facts and submitted briefs, and the matter was
decided by Judge Hodgdon. Id.
The judge concluded that the Terminal was a "mine" subject to Mine Act jurisdiction. Id.
at 79. He first relied on the definition of mine in section 3(h)(l) of the Mine Act, 30 U.S.C .
. § 802(h)(l), which includes "facilities . . . used in ... the work of preparing coal," and the
definition of"work of preparing the coal" in section 3(i) of the Act, 30 U.S.C. § 802(i). Id. at 76.
The judge then reasoned that because Kinder Morgan engages in three functions listed in the
definition of''work of preparing the coal," namely, "storing," "mixing," and "loading," the
Terminal is subject to the Act under the "functional analysis" employed by the Commission in
RNS Services, Inc., 18 FMSHRC 523, 529 (Apr. 1996), aff'd, 115 F.3d 182 (3d Cir. 1997). Id. at
78. In addition, the judge noted that the delivery of coal in this case is a step earlier than delivery
to the consumer after it is processed, which the Fourth Circuit Court of Appeals had stated would
not fall within the coverage-of the Mine Act. Id. at 78, citing United Energy Services, Inc. v.
MSHA, 35 F.3d 971, 975 (4th Cir. 1994). He explained that Kinder Morgan was not the
consumer of the coal and it engaged in further processing by layeP·loading. Id. at 78-79. He
further distinguished the marine terminal found to be outside Mine Act coverage in Oliver M
Elam, Jr., Co., 4 FMSHRC 5 (Jan. 1982), from the Terminal, on the basis that, unlike Elam,
Kinder Morgan engaged in coal preparation usually performed by a mine operator by layer-

4' The Terminal has not been inspected by the Occupational Safety and Health

Administration. JS at 3.
5

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.
§ 814(d)(l), which distinguishes as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health hazard."
1291

loading coal to.meet TVA's specifications and to render the c~al fit for TVA's particular use. Id.
at 79. Accordingly, the judge affirmed the citations and assessed penalties in the sum of $187 for
all three citations, which the Secretary had proposed. Id. at 79-80.
Kinder Morgan argues that the judge erred in concluding that the Terminal is subject to
Mine Act jurisdiction. KM Br. at 5-19. It asserts that the Mine Act does not apply to the
handling of coal after it has been rendered useable and fully marketed to its final consumer, and
that by the time that Kinder Morgan receives the coal, it is processed and marketed. Id. at 5-9.
Kinder Morgan also submits that contrary to the judge's conclusions, coal is considered delivered
to a consumer when it -is loaded on trains or barges at a coal producer's loading facilities. Id. at
14-15. In addition, it contends that layer-loading does not constitute "mixing." Id. at 16.
The Secretary responds that the judge correctly concluded that the Terminal is subject to
the Mine Act. S. Br. at 9. She submits that Kinder Morgan's storing, mixing and loading of coal
constitutes the work of preparing the coal set forth in section 3(i) of the Mine Act. Id. at 13. The
Secretary asserts that the test for jurisdiction set forth in Elam is satisfied because Kinder Morgan
prepares coal to meet certain specifications,. and prepares it for a particular use. Id. at 14-19.
Accordingly, the Secretary requests that the judge's decision be affirmed. Id. at 24.

II.
Separate Opinions of the Commissioners
Commissioner Jordan and Commissioner Beatty, in favor of affirming the judge:
Section 4 of the Mine Act provides that "[e]ach coal or other mine, the product of which
enter commerce, or the operations or products of which affect commerce, ... shall be subject to
the provisions of this Act." 30 U.S.C. § 803. Under section 3(h)(l) of the Mine Act, "coal or
other mine" is defined as including "lands, ... facilities, equipment, machines, tools, or other
property ... used in, or to b~ used in ... the work of preparing coal .... " 30 U.S.C.
§ 802(h)(l). Section 3(i) of-the Mine Act defines "work of preparing the coal" as "the breaking,
crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal,
lignite, or anthracite, and such other work of preparing such coal as is usually done by the
operator of the coal mine." 30 U.S.C. § 802(i).
The legislative history of the Mine Act indicates that Congress intended a broad
interpretation of what constitutes a "coal or other mine" under the Act. The Senate Committee
stated that "what is considered to be a mine and to be regulated under this Act [shall] be given
the broadest possibl(e] interpretation, and ... doubts [shall] be resolved in favor of ... coverage
of the Act." S. Rep. No. 95-181, 95th Cong., at 14 (1977), reprinted in Senate Subcomm. on
Labor, Comm. on Human Resources, 95th Cong., Legislative History ofthe Federal Mine Safety
and Health Act of 1977, at 602 (1978) ("Legis. Hist."). See Marshall v. Stoudt's Ferry
Preparation Co., 602 F.2d 589, 591-92 (3d Cr. 1979), ·cert. denied, 444 U.S. 1015 (1980) ("[T]he

1292

statute makes clear that the concept that was to be conveyed J:>y the·word [mine] is much more
encompassing that the usual meaning attributed to it - the word means what the statute says it
means.").

In considering the phrase '~ork of preparing the coal," the Commission has inquired not
only into whether the entity performs one or more activities listed in section 3(i), but also into the
nature of the operation performing such activities. Elam, 4 FMSHRC at 7-8. In Elam, the
Commission explained that '"work of preparing [the] coal' connotes a process, usually
performed by the mine operator engaged in the extraction of the coal or by custom preparation
facilities, undertaken to make coal suitable for a particular use or to meet market specifications."
Id. at 8. It concluded that although Elam performed several of the functions included in coal
preparation at its commercial loading dock, it did so solely to facilitate its loading business rather
than to meet customers' specifications or to render the coal fit for any particular use, and that,
accordingly, its facility was not a mine. Id.
In contrast, in Mineral Coal Sales, the Commission determined that the handling of coal
at a loading facility constituted "work of preparing the coal" because the work was performed to
make the coal suitable for a particular use or to meet market specifications. Mineral Coal Sales,
Inc., 7 FMSHRC 615, 620 (May 1985). Such handling included custom blending or mixing the
coal to meet the specifications and needs of a broker's customers, in addition to storing, crushing,
sizing, and loading the coal on to railroad cars. Id. at 616-18, 620.
Applying the above criteria, we conclude that Kinder Morgan engages in the '~ork of
preparing the coal," thereby bringing the Terminal within Mine Act jurisdiction. First,
substantial evidence supports the judge's determination that Kinder Morgan engages in three
activities listed in section 3(i) of the Mine Act as .'~ork of preparing the coal." 23 FMSHRC at
78. It is undisputed that Kinder Morgan engages in "storing," and "loading" of coal at the
Terminal. S. Br. at 14 n.3; KM Reply Br. at 2 ("If the Act applies to Kinder Morgan, then it
applies to every entity who stores or loads coal . . .."). In addition, substantial evidence supports
the judge's determination that Kinder Morgan engages in "mixing," by layer-loading the coal. 23
FMSHRC at 78. 6 The contract between Kinder Morgan and TVA, entitled "Transloading and
Blending Contract," refers to work performed by Kinder Morgan as blending and sets forth
requirements for Kinder Morgan's operation and maintenance ofits "blending systems." Rudd
Aff. Ex. A at 1, 2; JS at 4. Thus, by layer-loading, Kinder Morgan engages in blending or
mixing.7

6

The term ''mix" is defined as meaning "to stir, shake, or otherwise bring together with
ofloss separateness or identity; to bring together in close association." Webster's Third New
International Dictionary 1448 (1993). Synonyms for "mix" include "mingle," "com.mingle," and
"blend." Id. In layer-loading the coal, coal from different stockpiles is "brought together in close
association," and has lost the separateness that was maintained by individual stockpiles.

of

7

The Commission previously has noted that a purpose of coal preparation has been
described as increasing the value of fuel by making it more suitable for uses of the consumer in
part by_"mixing or blending." Elam, 4 FMSHRC at 8 n.5.
1293

Furthermore, substantial evidence supports the judge's determination that the second
prong of the Elam test is satisfied, that is, that Kinder Morgan engages in work usually performed
by the operator of a coal mine by undertaking the activities to make coal suitable for a particular
use or to meet market specifications. As stipulated by the parties, Kinder Morgan maintains 18
working stockpiles for TVA's coal, and TVA designates which coal from which suppliers will be
placed into each working stockpile. JS at 5. In addition, TVA determines the individual working
stockpiles from which coal is to be removed for.layer-loading in the draw-off tunnel and for
loading into barges~ Id. at 7. Thus, it appears that Kinder Morgan engages in storing and mixing
to meet TVA's specifications and to render the coal fit for TVA's particular use, i.e., as fuel in its
power plants. 22 FMSHRC at 78-79. Because non-TVA coal is treated in the same manner as
TV A coal (JS at 8), the same conclusions may be applied to handling of non-TVA coal.
Therefore, the Terminal may be distinguished from the marine terminal found to be outside of
Mine Act jurisdiction in Elam, which engaged in listed activities for its own loading purposes.
Rather, like the loading dock held to be a "mine" in Mineral Coal Sales, 7 FMSHRC at 620, the
Terminal handles coal to meet market specifications and for a particular purpose other than for its
own use.
In concluding that the nature of the Terminal brings it outside of Mine Act jurisdiction,
our colleagues rely upon factors that they conclude were applied in Herman v. Associated
Electric Cooperative, Inc., 172 F.3d 1079 (8th Cir. 1999). Slip op. at 9, 1O. That decision ·
involved an electric utility, which is distinguishable by its nature from the Terminal. Moreover,
unlike the Terminal, the electric utility at issue in Associated Electric was the end-use consumer,
a factor which the court found significant. 172 F.3d at 1080, 1083 ("If Congress wishes to
expand the Act to cover consumers of coal such as utilities ... , it is better suited to that task than
this court.). In fact, other courts reviewing coal handling by utilities have concluded that such
utilities fall within Mine Act j.urisdiction. See Pa. Elec. Co. v. FMSHRC, 969 F .2d 1501, 1504
(3d Cir. 1992), aff'g 11 FMSHRC 1875 (Oct. 1989); United Energy Services, 35 F.3d at 975.
Further, at least one court has noted its disagreement with the decision in Associated Electric.
See In Re: Kaiser Aluminum & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000), cert. denied, 121
S.Ct. 1354 (2001) ("We do not entirely agree with the majority opinion of the Eighth Circuit in
Herman and distinguish the facts from our present case ....").8 In sum, we conclude that Kinder
Morgan engages in the "work of preparing the coal" at the Terminal, and MSHA properly
asserted its inspection authority over the facility.

8

As evident in this case, Mine Act jurisdiction turns on the particular facts relating to
each operator's activities. Thus, we do not share our colleagues' concern over MSHA~s failure
to articulate a bright line "uniform national standard" delineating the limits of that jurisdiction.
Slip op. at 10.
1294

For the foregoing reasons, we would affirm the judge's determination that the Terminal is
a mine and uphold the citations and penalties.

1295

Chairman Verheggen and Commissioner Riley, in favor of reversing the judge:
Our colleagues believe that the marine transportation terminal (the "Terminal") operated
by Kinder Morgan Operating L.P. "C" ("Kinder Morgan") constitutes a "mine" within the
meaning of section 3(h)(l) of the Mine Act, 30 U.S.C. § 802(h)(l). We disagree.
Section 3(h)(l) of the Act defines a "coal or other mine" in part as "lands, . . . facilities,
equipment, machines, tools, or other property ... used in, or to be used in .. . the work of
preparing coal." 30 U.S.C. § 802(h)(l). Section 3(i) defines "work of preparing the coal" as "the
breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous
coal, lignite, or anthracite, and such other work of preparing such coal as is usually done by the
operator of the coal mine." 30 U.S.C. § 802(i).
fu concluding that the Terminal constitutes a mine, our colleagues apply the test set forth
in Oliver M Elam, Jr., Co., 4 FMSHRC 5 (Jan. 1982), and opine that Kinder Morgan engaged in
the "work of preparing the coal" within the meaning of section 3(i) of the Act. Slip op. at 6-7.
In Elam, the Commission recognized that the determination of whether an operator engages in
coal preparation involves an inquiry not only into whether the operator performs the activities
listed in section 3(i), but also into the nature of the operation. 4 FMSHRC at 7. The
Commission stated that "simply because [a company] in some manner handles coal does not
mean that it automatically is a 'mine' subject to the Act." Id. The Commission further explained
that '"work of preparing [the] coal' connotes a process, usually performed by the mine operator
engaged in the extraction of the coal or by custom preparation facilities, undertaken to make coal
suitable for a particular use or to meet market specifications." Id. at 8.

As the connection with the mining industry or proximity to the mine site or related
facilities becomes more attenuated, factors other than those considered by our colleagues are
relevant to the nature of the cited operation because they more fully illustrate whether the work
performed at a facility is that "usually performed by the mine operator engaged in the extraction
of the coal or by custom preparation facilities, undertaken to make coal suitable for a particular
use or to meet market specifications." 1 Id. Such factors include whether the coal has been sold
or has entered interstate commerce; whether MSHA has exercised jurisdiction over the entity that
handled the coal before or after the cited company; the degree of handling performed; and
whether such handling is the type usually performed by an end-use consumer. See Herman v.
Associated Elec. Coop., Inc., 172 F.3d 1078, 1082-83 (8th Cir. 1999)(finding no Mine Act
jurisdiction based on such factors as whether coal had entered the stream of commerce; the
degree to which the coal was processed by the cited entity; and whether such handling was that
which is usually performed by an end-use consumer); RNS Servs., Inc. v. Sec '.Y ofLabor, 115
F.3d 182; 185 (3d Cir. 1997) (finding Mine Act jurisdiction based in part on consideration that
1

Thus, such factors more fully define whether the coal handling being performed is that
which is "usually done by the operator of the coal mine" within the meaning of section 3(i) of the
Act. 30 U.S.C. § 802(i).
1296

MSHA exercised jurisdiction on company that handled coal after the cited entity), ajf'g RNS
Servs. Inc. , 18 FMSHRC 523 (Apr. 1996). These factors must be balanced in accordance with
the facts of each particular case.
As our colleagues have stated, it is undisputed that Kinder Morgan engages in at least two
of the activities listed in section 3(i) at the Terminal. Slip op. at 6; see S. Br. at 14 n.3; KM
Reply Br. at 2. We disagree, however, that our colleagues' cursory inquiry into the nature of the
facility establishes that the.Terminal is subject to Mine Act jurisdiction. Instead, we find that,
after applying and balancing the factors set forth above, the work performed at the Terminal falls
outside of Mine Act jurisdiction. Before any coal reaches the Terminal, it has already entered the
stream of interstate commerce in that it has been sold to customers outside the mining industry.
JS at 3, 8. In addition, there is no evidence in the record that MSHA has asserted jurisdiction
over barges or railroad cars bringing coal to the Terminal, over barges transporting coal from the
Terminal to l;'VA or other electric utilities, or over the utilities that unload, handle, and consume
the coal. See KM Br. at 17 (suggesting that if Mine Act jurisdiction extends to the Terminal, it
must also extend to such carriers and utilities). Here, the Secretary has selectively proclaimed
MSHA jurisdiction over an island in the stream of interstate commerce without articulating a
uniform national standard delineating the limits or extent of Mine Act authority over the
transportation or utility industry.2 Before plunging ahead, as the Secretary exhorts, the
Commission would do well to ascertain how far along in that commercial current MSHA is
inclined to drift and what other creatures inhabit the stream.
Moreover, given the degree to which the coal has already been processed before arriving
at the Terminal, the degree of coal handling by Kinder Morgan is minimal. See JS at 4-5
(providing that the coal producer processes the coal to meet TVA' s contract specifications before
loading the coal on to railroad cars or barges en route to the Terminal). Further, it appears that
the type of handling performed by Kinder Morgan is the type usually performed by an end-use
consumer. See Oral Arg. Tr. at 7-8 (asserting that Kinder Morgan' s activities are essentially the
type of work regularly done by electric utilities). Thus, given that the coal has already been
processed to meet market &pecifications and entered the stream of commerce, we conclude that
more than the de minimis handling of coal performed by Kinder Morgan is required to bring the
Terminal within Mine Act jurisdiction. See Associated Elec., 172 F.3d at 1083 ("[A]fter a mine
delivers processed, marketable coal to a utility[,] any further operations to prepare the coal for
combustion are not subject to MSHA jurisdiction.").

2

The record does not even provide a definitive answer to the question of whether the
MSHA jurisdiction sought here applies to other marine terminals on the East or West Coast, the
Great Lakes, or elsewhere on our inland waterways where commercial transport or shipping
companies handle coal or other extracted minerals. See, e.g. , Oral Arg. Tr. 19-20.
1297

Accordingly, we would reverse the judge's determination that the Terminal is subject to
the Mine Act, and vacate the citations and associated civil penalties.

r.
Theodore F. Verheggen,

1298

Distribution
James Park, Jr., Esq.
Warren Hoffinan, Esq.
Medrith Lee Norman, Esq.
Brown, Todd & Heyburn, PLLC
2700 Lexington Financial Center
250 West Main Street
Lexington, KY 40507
Charles E. Allen, Esq.
Brown, Todd & Heyburn, PLLC
400 West Market St., 32nd Floor
Louisville, KY 40202
Tina Peruzzi, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1299

ADMINISTRATIVE LAW JUDGE DECISIONS

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

December 5, 2001
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 2001-30-M
A.C. No. 23-01787-05549

v.
West Fork Mine/Mill
THE DOE RUN COMPANY,
Respondent

DECISION
Appearances: Gregory Tronson, Esq. and Lydia Tzagoloff, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado;
R. Henry Moore, Esq., Buchanan fugersoll, Pittsburgh, Pennsylvania.
Before:

Judge Bulluck

This case is before me upon Petition for Assessment of Penalty filed by the Secretary of
Labor, through her Mine Safety and Health Administration ("MSHA"), against the Doe Run
Company ("Doe Run"), pursuant to Section 105(d) of the Federal Mine Safety and Health Act of
1977 ("the Act"), 30 U.S.C. § 815(d). The petition seeks a civil penaltyof$25,000.00 for an
alleged violation of section 57 .15005, 30 U.S.C.
§ 57.15005.
A hearing was he}d..in St. Louis, Missouri. The parties' Post Hearing Briefs are ofrecord.
For the reasons set forth below, the citation shall be AFFIRMED, as modified.

I. Stipulations
1. Doe Run operates the West Fork Mine, MSHA ID No. 23-01787, an underground lead
and zinc mine near Bunker, Missouri.

2. Doe Run and its mine are subject to the jurisdiction of the Federal Mine Safety and
Health Act of 1977 ("the Act"), 30 U.S.C. § 801 et seq.
3. fu the year 2000, Doe Run worked 1,719,972 hours and West Fork worked 228,525
hours. West Fork was a medium-sized mine and Doe Run is a medium-sized operator.

1301

4. In the 24 months prior to January 24, 2000, the West Fork Mine had 28 assessed
violations in 42 inspection days.
5. The presiding Administrative Law Judge has jurisdiction over these proceedings,
pursuant to Section 105 of the Act, 30 U.S.C. § 815.
6. The parties stipulate to the authenticity of their exhibits, but not to the relevance or
truth of the matters asserted therein. .
7. Citation No. 7880464 was issued pursuant to Section 104(a) at Doe Run's West Fork
Mine on January 24, 2000, alleging a violation of30 C.F.R. § 57.15005.
8. Under the heading and caption "Condition or Practice" the citation alleges as follows:
A shaft maintenance man was fatally injured at this operation on October
18, 1999, when his lanyard snagged a bolt on a shaft guide fish plate. The lanyard
had not been attached to the hoist cable, instead it was left with both clips
attached to the belt D-ring. Standing on the guard elevated the worker above the
handrail, allowing a 32 inch loop to overhang the handrail and hook the bolt on
the skips ascent.
9. The citation was tenninated on January 12, 2000, when a newly redesigned cage was
installed.
·
10. The subject citation was properly served by duly authorized representatives of the
Department of Labor upon agents for Doe Run on the date and at the place indicated therein.
11. The subject citation may be admitted into evidence to establish the issuance, but not
for the truth of any statement asserted therein.
12. Doe Run's mining operations affect interstate commerce.
13. Mining at the West Fork Mine was conducted by room and pillar mining by a process
of drilling and shooting the faces and then loading the material into trucks for transport.
14. In 1998, the Doe Run Company took over the operation of West Fork froin Asarco
Incorporated.
15. The mine was normally operated two, ten-hour shifts per day, five days a week.
Total employment was 101 employees. The mine is no longer producing ore and no longer has a
separate MSHA ID number.

1302

16. The ore body was drilled, blasted, loaded onto haul trucks, and transported to the
production shaft.
17. The ore was hoisted by skip to the surface where it was crushed and conveyed to the
mill.
18. This case arose out of an accident on October 18, 1999. At about 9:30 a.m. on that
day, James W. ("Billy") Vest, a shaft maintenance repairman, was fatally injured while
performing a routine shaft inspection . .
19. Mr. Vest was working with another employee, Willard Cooper, another maintenance
repairman.
20. The accident occurred during the weekly hoist and shaft inspection that was typically
performed on Monday mornings.
21. Mr. Vest and Mr. Cooper had already inspected the ·service hoist first that morning
and were in the process of starting the inspection process of the production hoist and shaft.
22. The inspection involves riding the work deck on top of the production skip.
23. The work deck on top of the skip was provided with a top handrail, midrail and 3
inch high toe board around the perimeter of the work deck on all four sides. The top handrail
was 40 inches above the deck floor and the midrail was 22 inches above the work deck floor.
The top guide rollers projected above the.work deck floor and were guarded by expanded metal
enclosures 26.5 inches high x 12 inches deep x 30 inches wide. The work deck was protected by
a 54 x 53 inch bonnet installed at a height of93.5 inches above the deck floor.
24. The railings on the entrance side to the work deck were removed immediately after
the accident to provide better access to provide assistance to Mr. Vest. The photographs taken
after the accident do not show the two railings on one side of the work deck but they were
present at the time of the accident.
25. The shaft opening was guarded with a handrail and provided with a gate for access
onto the top of the skip. Additionally, the collar level access was restricted by a fence equipped
with a gate. The skip blocked the shaft when it was in position at ~e collar level of the shaft.
26. Mr. Vest and Mr. Cooper positioned the production skip at the shaft collar so they
could step onto the work deck on top of the skip.
27. Mr. Vest and Mr. Cooper had accessed the work deck on top of the production skip.
28. Both Mr. Vest and Mr. Cooper were wearing safety belts and lanyards when they got
1303

on the work deck.
29. Mr. Vest radioed Gary Huffinan, hoistman, at approximately 9:30 a.m. to raise the
skip so he and Mr. Cooper could inspect the ore chutes in the head frame.
30. Mr. Vest received internal injuries from the safety belt and lanyard pulling him down
against the handrail.
31. Mr. Vest had a total of 13 years and 9 months experience, all at West Fork. He had
held the job of shaft maintenance repairman for 2 years and 9 months. He and Mr. Cooper had
received the required training, including task training, in accordance with 30 C.F.R. Part 48. He
and Mr. Cooper were experienced in the inspection of the hoist and shaft.
32. MSHA conducted an investigation with the assistance of mine management and
selected employees.
33. After the accident, MSHA did a thorough inspection of the production hoist's
electrical circuits and mechanical components and they were functioning properly. Tests were
performed on the limit switches, speed and over travel devices, as well as the bell signal and all
were functional and working properly.

II. Factual Background
On the morning of October 18, 1999, after completing a visual inspection of the service
hoist that transports miners into and out of the underground levels of the mine, shaft maintenance
repairmen Billy Vest and Willard Cooper began a weekly inspection of the production hoist and
shaft (Tr. 24, 149-50). The production hoist moves ore from the mine to an above ground,
elevated chute, and then dumps it into a bin (Tr. 64-65, 176). Inspection of the production hoist
involves riding up to the top._of the head frame to the ore chutes, on the work deck atop the
production skip, for·a maintenance check of the liners and scrolls, and a check of the shaft guide
rails and fishplates during ascent and descent for build-up of calcium deposits, cracks, loose bolts
and any conditions that could be hazardous in the shaft (Tr. 24, 34, 175-76, 202, 205-06). There
are actually two skips, side-by-side, in the shaft; when one is up dumping ore the other is
underground for loading (Tr. 63-64). After bringing the north skip to .the collar, Billy Vest
stepped onto one of two elevated wheel guard cages on the work deck, followed by Willard
Cooper who stepped onto the other (Tr 150-151, 158-59). Both miners had on safety belts with
lanyards (Stip. 28; Tr. 150, 152, 156). Cooper tied-off above the thimble on the rope, then turned
his back to Vest, facing the shaft rails for the visual inspection on ascent (Tr. 156-59; Ex. P-2,
p. 5). The last time Cooper saw Vest before the accident, Vest was standing on the wheel guard
cage, facing the center hoist cable with his back to the guide rails and his lanyard attached to the
back of his belt (Tr. 75-76, 159). As soon as Cooper tied-on, at approximately 9:30 a.m., Vest
radioed to hoistman Gary "Sugarbear" Huffman to take them up to the chutes, and the skip began
1304

moving slowly (Stip. 29; Tr. 152, 159-60). At the same time, having not seen Vest tie-off,
Cooper asked Vest what he was hooked onto, and as he turned around to face Vest, Vest was
already caught (Tr. 152, 160-61, 167). Vest's lanyard, hanging outside of the moving skip into
the shaft, ·had snagged a bolt on a fishplate and pulled him down against the railing (Tr. 25).
Cooper found Vest sitting on top of the wheel guard cage with his left leg underneath him and
the other on the work platform floor, with his back against the top handrail (Tr. 16, 53, 152-55,
187). Cooper itilmediately belled the skip to a stop, then down, until he saw slack in Vest's belt
(Tr. 153-54). The skip had traveled about a foot when the lanyard snagged the.bolt, and an
additional two feet before it stopped (Tr. 25). Cooper immediately released Vest's belt and
radioed Huf.fin.an for help (Tr. 155-56). While workers were administering first aid to Vest,
he commented, "I killed myself," and ultimately died as a result of internal injuries (Tr. 78, 165).
MSHA Inspector Michael Davis arrived on-site on October 19th and, along with MSHA
Inspectors Robert Seelke and Vern Miller, conducted an accident investigation. On January 12,
2000, prior to issuance of Citation No. 7880464 by Inspector Davis on January 241h , Doe Run
abated the hazardous condition by redesigning the cage, and the citation was terminated the same
day it was issued (Tr. 45, 77). The work platform floor surrounding the rope attachment and
thimble was raised above the wheel guard cages to increase the standing and work surface, and
screening was installed to prevent objects from extending beyond the cage (Tr. 191-92). Citation
No. 7880464 alleges that Doe Run' s violation of section 57 .15005 was "significant and
substantial" and the result of the operator's moderate negligence.

ID. Findings of Fact and Conclusions of Law
A. Fact of Violation

30 C.F.R. § 57.15005 provides, in pertinent part, that "[s]afety belts and lines
shall be worn when persons work where there is danger of falling ...." Like the surface
companion to the underground standard at issue herein, the mandate that safety belts and lines
be worn under section 57.1.005 necessitates that they be worn properly. Mar-Land Industrial
Contractor, Inc., 14 FMSHRC 754, 757 (May 1992), citing Austin Power, Inc., 9 FMSHRC
2015 (December 1987), aff'd 861F.2d99 (51h Cir. 1988). Furthermore, the Commission has
held that "(t]he fact that belts are not worn properly is a violation under this standard for which
the operator is liable irrespective of employee misconduct." Id. (citations omitted).
The parties have stipulated that safety belts and lanyards were worn by Billy Vest and
Willard Cooper when the .accident occurred (Stip. 28). Doe Run has conceded that there was a
danger of falling from the wheel guard cages on the skip (Tr. 224-25, 239-40). However, the
company challenges that there was a danger of falling from the work platform floor, where it
contends that Vest had been standing, because of the two-tiered handrails surrounding the skip.
Moreover, Doe Run argues that there was no violation because Vest did not actually fall. Since
it is undisputed that there was a danger of falling from the wheel guard cage, the issue, then, is
whether that danger existed from the work platform floor, ifl find that Vest had been standing

1305

there. An actual fall need not have occurred for a violation to.be established. Under applicable
precedent, a determination must be made as to whether a reasonably prudent person familiar
with the mining industry and the protective purposes of the standard would have recognized a
danger of falling under the circumstances in this case. Ideal Cement Co., 12 FMSHRC 2409,
2416(November1990); Lanham Coal Co., 13 FMSHRC 1341, 1343 (September 1991).
Inspector Davis testified that he interviewed witnesses, took measurements, photographs
and made sketches of the accident scene, compiled field notes, and concluded that Billy Vest's
death was caused by.his failure to properly wear his fall protection while riding the skip (Tr. 1415, 18-19; Ex. P-1, P-2, P-3). Davis's conclusion was based, in part, on his findings that the size
of the skip's work platform floor restricted work activity, and that Vest had been standing on one
of the wheel guard cages when his lanyard snagged the bolt (Tr. 22-23, 29, 31-32). Davis
testified that, in positioning Vest on the wheel guard cage, he considered the length of Vest's
lanyard, the location of the bolt, the amount of travel of the skip, Vest's location after the
accident, interview statements, and particularly Willard Cooper's statement that Vest had been
standing on the cage (Tr. 25-26). That position, he explained, would have put the top handrail
approximately 13 to 14 inches above Vest's foot (midcalt) (Tr. 27, 71; Ex. P-2, p.6). Finally,
Davis testified that, because the hoist is a moving conveyance, the potential for falls always
exists, irrespective of whether workers stand on the floor or elevated above the handrails on the
wheel guard cages, due to unforseenjerks, sudden stops and falling objects, as well as the leaning
and moving required of the workers in performance of their maintenance duties (Tr. 32-34, 85).
In the instant case, he opined, had Vest's back not slammed into the shaft guide rail, he would
have been pulled from the cage (Tr. 85-86). Therefore, he concluded, fall protection is always
required "[a]ny time that they step on top of that conveyance" (Tr. 33-34).
In addition to testifying that Billy Vest had stepped onto the wheel guard cage just before
the skip began its ascent, Willard Cooper also maintained that, because the work platform floor's
standing room allowance of 8 Yi inches was "just too tight to turn around," and because the floor
was generally wet, the maintenance crew always rode the skip standing on the cages (Tr. 164,
166, 168, 172-73; see also T.r. 22-23, 32). Myron "Rat" Halbert, whom Vest had been training
to perform shaft inspections; similarly testified that he and Vest had always ridden on the wheel
guard cages during entire inspections (Tr. 174, 178).
Gharib Ibrahim, a civil engineer at MSHA's Bruceton Research Center in Pittsburgh,
Pennsylvania, assisted in determining Billy Vest's position at the time of the accident, and
testified as an expert witness for the Secretary. Ibrahim testified that he had spoken with one of
the investigators, reviewed the investigative notes, sketches and photographs, and run a computer
analysis of the accident data (Tr. 94-95, 110). The two possible scenarios of where Vest had
been standing, he explained, result in different horizontal and vertical forces exerted by his body
on the top handrail: if he had been standing on the work platform floor the force would be
downward with at least 1/3 of that force pushing outward, whereas standing on the guard cage
would exert downward force with outward force almost diminished to zero (Tr. 96, 98-99, 10102, 103-06, 144). Based on the downward deflection of 10 Yi inches and negligible outward

1306

deflection of the top handrail, Ibrahim opined that Vest had b.een standing on the wheel guard
cage when the accident occurred (Tr. 97, 99-103, 120; Ex. 2, p.4; see Ex. 15). Vest had not
been pulled out of the skip, he testified, because the shaft guide rail provided a barrier (Tr. 11920, 125).
Doe Run's witnesses disagreed with Garhib Ibrahim's conclusion as to Vest's placement
on the skip. Safety specialist Owen Erickson opined, based on his own common sense, that no
matter where Vest had been standing, because he was not a fixture, only vertical force would
have been exerted on the handrail by his body (Tr. 217-20). Therefore, he reasoned, no
conclusion as to Vest's position could be drawn from the defection of the top handrail (Tr. 220).
Safety manager David Brown testified that, in his opinion, more time had elapsed than Cooper
realized between Cooper's last view of Vest and when he found him injured, and that Vest had
probably stepped down from the guard cage; otherwise, if he had been elevated on the cage, he
would have fallen down the shaft (Tr. 252-55, 266-67, 271, 279). Neither Erickson nor Brown
have any background or training in engineering, and for that reason I give their opinions little
weight {Tr. 222, 266).
I have considered the evidence in its entirety respecting where Vest was situated when the
accident occurred, including the MSHA video simulating a similar type of accident (Ex. R-1 ).
Based on credible evidence that Vest had last been seen standing on the wheel guard cage, that he
and other shaft maintenance workers had routinely conducted shaft inspections riding the cages,
and Ibrahim's placement of Vest on the cage from an engineering analysis, I find that Vest had
been standing on the cage when his lanyard snagged the fishplate bolt. It is also my finding that
fall protection was required from all locations on the skip, and that a reasonably prudent person
would have recognized the danger of falling for the reasons that Inspector Davis enumerated--it
is a moving conveyance that can become unstable at any time, and the full range of maintenance
duties requires movement on the part of the workers.· As the Commission noted, finding a
violation of section 56.1005 applicable to surface mines, where an employee had been standing
on an 18 foot ladder installing a light fixture without benefit of a safety belt, "[e]ven a skilled
employee may suffer a lapse of attentiveness, either from fatigue or environmental distractions,
which could result in a fall!' Great Western Electric Co., 5 FMSHRC 840, 842 (May 1983).
Indeed, Doe Run recognizes the danger of falling from moving hoists and provides safety belts at
no cost to its employees. The company's Safety Rule Book, its Handbook of Safe Practices, and
its Preventive Maintenance Work Order require use of·safety belts and ropes during performance
of shaft inspection or work (Tr. 34-39, 212-15; Ex. P-5, p. 25, P-6, p. 7). Moreover, Doe Run's
Part 48 annual training of its employees and its weekly safety meetings address fall protection
(Tr. 188, 196, 227-33; Ex. R-4, R-5, R-6). In this case, it is clear that Vest's failure to wear his
safety belt and lanyard properly, as required, violated the standard. As a consequence, Doe Run
is strictiy liable.

1307

B. Significant and Substantial

Section 104(d) of the Act designates a violation "significant and substantial"
("S&S") when it is "of such a nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine or safety hazard." A violation is properly designated
S&S "if, based upon the particular facts surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a 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 set forth the
four criteria that the Secretary must establish in order to prove that a violation is S&S under
National Gypsum: 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 Buck Creek Coal, Inc.
v. FMSHRC, 52 F.3d 133, 135 (71h Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 10304 (51h Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).
Evaluation of the third criterion, the reasonable likelihood of injury, should be made in the
context of"continued mining operations." U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July
1984). Moreover, resolution of whether a violation is S&S must be based "on the particular
facts surrounding the violation." Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1998).

Inspector Davis testified that he determined the violation to be S&S because of the
resultant fatality (Tr. 40). The violation involved in this case created the discrete hazard of
falling. Tragically, Billy Vest suffered the ultimate consequence of his failure to use fall
protection properly and, furthermore, there is·convincing evidence that, had the shaft guide
rail not acted as a barrier, he would have fallen down the shaft. Because· his injuries were fatal,
I find that the violation was S&S and very serious.

C. Penalty
While the Secretary has proposed a penalty of$25,000.00, the judge must independently
determine the appropriate assessment by proper consideration of the six penalty criteria set forth
in Section l lO(i) of the Act, 30 ffS.C. § 820(j). See Sellersburg Co., 5 FMSHRC 287, 291-92
(March 1993), aff'd, 763 F.2d 1147 (7th Cir. 1984).
Doe Run is a medium-sized operator, with no violations of the same standard at issue in
its two year history (Stips. 3, 4; Ex. 12). The proposed penalty will not affect Doe Run's ability
to remain in business (Resp. Br. at 8).
The remaining criteria involve consideration of the gravity of the violation and Doe
Run's negligence in causing it. As stated previously, I find the violation to be very serious. My
1308

assessment of Doe Run's negligence, however, differs substantially from that of the Secretary.
Inspector Davis testified that he found Doe Run moderately negligent because there was no
supervisory oversight of shaft inspections to ensure use of fall protection, by spot-check
observation or accompaniment, despite the heightened potential for falls in this line of work,
and also because the lanyard was overly long (Tr. 40- 43, 44-45, 83). Respecting the lanyard;
other than the bare allegation, no evidence has been presented to support this conclusion. On
the other hand, the record is replete with evidence that Doe Run is a safety conscious operation,
and that use of fall protection had been "pounded" into the shaft maintenance crew not only by
management, but also by Billy Vest as trainer of many junior workers, and that fall protection
had been properly and uniformly used at the mine (Tr. 55-56, 59-61, 77-78, 160-62, 166, 168-69,
175-80, 185-86, 188-90, 193-99; Ex P-1 ). Additionally, there is some evidence that management
had periodically observed its maintenance crew riding the hoists (Tr. 184-85, 192-98). This level
of observation, combined with Part 48 annual training and weekly safety meetings, leads me to
conclude that Doe Run satisfied the level of care necessary to ensure the safety of its shaft
maintenance crew and that the company was not negligent. The record in its entirety is simply
lacking in evidence that Doe Run should have anticipated Vest's failure to tie-off, nor is there
any indication that spot-checks would have prevented Vest' s deviation from his routine,
compliant behavior. Doe Run bears no duty, by law or regulation, to have supervisors present
each time employees tie-off. See Mar-Land, 14 FMSHRC at 759. Therefore, having considered
Doe Run' s medium size, insignificant history of prior violations, seriousness of the violation,
lack of negligence, and good faith abatement, I find that a civil penalty of $5,000.00 is
appropriate.

ORDER
Accordingly, it is ORDERED that Citation No. 7880464 is AFFIRMED, as modified to
reduce the level of negligence to "none," and the Doe Run Company is ordered to PAY a penalty
of $5,000.00 within 30 days of the date of this decision. Upon receipt of payment, this case is
DISMISSED.

Jae eline R. Bulluck
Administrative Law Judge
Distribution: (Certified Mail)
Gregory Tronson, Esq. and Lydia Tzagoloff, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
R. Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre, 301 Grant Street, 20th Floor,
Pittsburgh, PA 15219-1410
nt
1309

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

December 11, 2001
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 2001-142
A. C. No. 15-17587-03572

OHIO COUNTY COAL COMPANY,
Respondent

Freedom Mine
DECISION

Appearances: Arthur J. Parks, Conference & Litigation Representative, U.S. Department
of Labor, Mine Safety and Health Administration, Madisonville, Kentucky,
and J. Phillip Giannikas,, Esq., Office of the Solicitor, U.S. Department of
Labor, Nashville, Tennessee, on behalf of Petitioner;
.
Flem Gordon, Esq., Gordon & Gordon, P.S.C., Madisonville, Kentucky,
on behalf of Respondent.
Before:

Judge Melick

This case is before me upon the Petition for Civil Penalty filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801,
et seq. (1994), the "Act" charging the Qhio County Coal Company (Ohio County) with three
violations of mandatory standards and proposing civil penalties of $423.00 for those violations.
The general issue before me is whether Ohio County violated the cited standards as· alleged and,
if so, what is the appropriaty_civil penalty to be assessed considering the criteria under Section
11 O(i) of the Act.
Citation No. 7645093 alleges a violation of the standard at 30 C.F.R. § 75.1725(a) and
charges that "[t]he belt was running into the framing and was hot to the touch in the following
locations along the No. 4 belt entry at spad number 3+30, 4+90, 13+30, 14+00, 19+60, 23+10
and crosscut No. 17 the company removed from service immediately." The cited standard, 30
C.F.R. § 75.l 725(a), provides that "[m]obile and stationery machinery and equipment shall be
maintained in safe operating condition and machinery or equipment in unsafe condition shall be
removed·from service immediately."

Inspector Charles Jones of the Department of Labor's Mine Safety and Health
Administration (MSHA), has been a coal mine inspector since September 1999. He has 21 years
underground coal mine experience and for 14 of those years he served as a safety committeeman.
1310

Jones testified that on October 19, 2000, he was inspecting the No. 4 belt entry accompanied by
miner's representative Chris Johnson. He found that at seven locations the belt was running into
and cutting into the bottom of the metal belt framing. At those locations the frame was too hot to
hold. While Jones opined that the violation was not "significant and substantial" and that
injuries and illnesses were unlikely, he nevertheless believed that if the belt would cut further
into the frame there was a possibility of coal -spillage and, because of the heat generated by belt
friction, there could be fire or smoke from burning coal. He believed that the described hazard
was unlikely, however, because the.area had been rock dusted and there was no loose coal.
Based on the credible testimony of Inspector Jones, I find that indeed, there was a violation of the
cited standard of low to moderate gravity.
Inspector Jones found moderate negligence basing his conclusion on the fact that none of
the seven violative conditions had been reported in the belt examiner's book. He noted however
that the belt had cut about one inch.into the steel framing so he concluded that the belt had been
misaligned for at least a week. Jones also opined that there had been at least two previous belt
examinations during which the violative condition should have been observed. Indeed, the belt
had already cut through the support bracket and had already cut into the frame itself about one
inch at the time of its discovery. Under these circumstances I agree that the operator is
chargeable with mo.derate negligence.
·
In reaching these conclusions I have not disregarded the testimony of mine superintendent
Ricky Brown. However, for the reasons stated below, I find his testimony to be entitled to but
little weight. Brown was not present at the time the citations were issued and only later appeared
at the scene to realign the belt. Brown did not deny that the belt was cutting into the metal frame
as described by Inspector Jones and testified only that he did not notice it. Brown readjusted the
belt with "cowhide" gloves and did not, with such gloved hands, find the frame to be hot at the
locations he held it. This qualified testimony accordingly does not negate the affirmative
testimony of Inspector Jones.
Citation No. 7645100 alleges a "significant and substantial" violation of the standard at
30 C.F.R. § 75.400 and charges as follows:
Loose coal and float coal dust 0 to 1 ft. deep, 5 ft. wide, and for a distance
of 8 ft. was allowed to accumulate under the takeup located at the No. 6 header.
The belt and header was [sic] energized and this mine deliberates [sic] 19,634
cubic feet of methane in a 24 hours [sic].
T~e cited standard, 30 C.F.R. § 75.400, provides 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 diesel-powered and electric
equipment therein."
On October 30, 2001, Inspector Jones, accompanied by Andy Schultz, a miner's

1311

representative and belt examiner, observed loose coal and float coal dust under the take-up located
at the No. 6 header. Coal and float coal dust was, according to Jones, 1 foot deep and 5 feet wide
for a distance of 8 feet. He measured the accumulation with a measuring stick. The condition
was particularly hazardous according to Jones because the belt was running in the coal dust and
indeed, the dust at that location had begun to crystallize. The material was black in color. The
take-up was also kicking.up dust and coal dust was being suspended in the air. Jones noted on the
face of the citation that "injury or illness" was "reasonably likely" and could reasonably be
expected to cause "lost workdays or restricted duty." He opined at hearing that the belt running
against the coal accumulation with sufficient heat to cause crystallization, could result in smoke
and fire. Jones opined that even should the accumulation have been wet it would have made no
difference under the circumstances presumably because the heat generated would have dried the
coal. He further opined that one person would likely have been affected. He opined that the
carbon monoxide monitor would trigger an alarm outside and that a person would enter the mine
to locate the cause thereby becoming exposed to the smoke. Within this framework of evidence I
find that indeed the violation has been proven as charged and was "significant and substantial"
and .ofhigh gravity.
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 (April 1981). In Mathies Coal Co., 6 FMSHRC 1,34 (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 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 Inc. v. Secretary, 861 F .2d 99, 103-04 (5th Cir. 1988), affg 9
FMSHRC 2015, 2021(December1987) (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 (US.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984)). The likelihood of such injury must be
evaluated in terms of continued normal mining operations without any assumptions as to
abatement. US. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); See also Halfway,
Inc., 8 FMSHRC 8, 12 (January 1986) and Southern Ohio Coal Co.,
13 FMSHRC 912, 916-17 (June 1991).
Jones opined that the violation was the result of only moderate negligence because the

1312

condition bad not been listed in the belt examiner's books as a hazard. Jones also opined however
that the condition should have been discovered during a proper pre-shift examination, noting that
the condition had existed for at least 48 hours - - sufficient time for the coal dust to become
crystallized. Based on this credible evidence I agree that the operator is chargeable with moderate
negligence.
In reaching these conclusions I have not disregarded the testimony of pre-shift and belt
examiner Andrew Schultz who accompanied Jones on his inspection. Schultz had initially agreed
with Jones that the materials cited were in fact coal and coal dust but testified that he later
changed his mind after the inspector had departed and as he cleaned up the material. He then
purportedly concluded that the.material was not coal at all but only mud and fire clay. I find for
several reasons however that this testimony is entitled to but little weight. First, I note that
Schultz, as the belt examiner, was a person responsible for reporting violative conditions in the
ex.µnination books. Since the violative condition alleged herein had not been reported, be would
have been motivated not to find the cited condition to be violative. Second, it is undisputed that
the take-up was " kicking up" coal dust and that coal dust was being placed in suspension.
Schultz did not deny or otherwise account for this in his testimony. Third, Inspector Jones has 21
years of underground coal mining experience, 14 of which as a safety committeeman. Clearly he
is well qualified to ascertain the identity of coal, crystallized coal and coal dust. His expert
testimony in this regard is entitled to significant weight and I find in this case that it is controlling.
Citation No. 7645101 charges a "significant and substantial" violation of the standard at
30 C.F.R. § 75. l 725(a) and charges as follows:
The No. 7 belt was not being maintained. The belt was rubbing and
cutting into the wood timbers located at crosscut No. 19·. These wood timbers
were hot and there was loose coal and coal float dust 0 to 4 inch [sic] deep on top
of rock dust surface in the immediate area. Company removed this belt from
service immediately.
As previously noted, the cited standard requires that mobile and stationary machinery and
equipment be maintained in safe operating condition and machinery or equipment in unsafe
condition be removed from service immediately.

According to Inspector Jones, the No. 7 belt was in fact rubbing and cutting into wood
timbers located at crosscut No. 19, where there was also loose coal and float coal dust. The top
belt was cutting into several timbers when coal was off the belt and the timbers were scorched
and hot to the touch. Inasmuch as there was up to 4 inches of loose coal in the vicinity, Inspector
Jones concluded that should the timbers catch fire from the friction then coal nearby could also
ignite resulting in smoke and fire. On the face of the citation he opined that "injury or illness
was reasonably likely" and could reasonably be expected to result in "lost work days or restricted
duties." He also concluded therefore

1313

that the violation was "significant and substantial." I find that the credible evidence supports
these findings and that the violation was of.high gravity.
Jones opined that the violation was a result of moderate negligence -because the hazardous
condition was not listed on the belt examiner's report. Jones also opined that the condition had
existed for at least two days and that the scorched timbers were obvious. Indeed, according to
Jones, he smelled wood burning from the scorched timbers several crosscuts from the cited
condition. Within this framework of credible evidence I conclude that the violation was the result
of moderate negligence.

In reaching these conclusions I have not disregarded the testimony of belt examiner
Schultz. Schultz maintains that Inspector fones failed to mention to him that there were hot
timbers and accumulations. Schultz admits however that there was in fact evidence that the belt
had been rubbing on the timbers. Schultz claimed that he ·did not in fact remove the timbers and
claimed that he did not know whether they were in fact ever removed. Inspector Jones credibly
testified in rebuttal however that he observed Schultz himself remove the timbers and loose coal
after Schultz was.told that a citation would be issued. lalso note that Schultz did not deny that
the cited loose coal existed in proximity to the cited timbers. Under the circumstances I do not
find reason to discount the inspector's testimony.
Civil Penalties

Under Section 11 O(i) of the Act, the Commission and its judges must consider the
following criteria in assessing a civil penalty: the operator's history of previous violations, the
appropriateness of such penalty to the size of the business of the operator charged, whether the
operator was negligent, the effect on the operator's ability to 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.
Gravity and negligence findings have been previously noted in this decision. Respondent
has a significant history of violations but the great majority of those violations were not deemed
"significant and substantial" and were subject to minimal $55.00 penalties. As a result I find that
the operator had a moderate history of violations. It has been stipulated by the parties that the
operator produced 684,797 tons of coal. Presumably this is the annual tonnage for a recent year
and would place the operator in a medium to large size category. It has been further stipulated
that the penalties proposed by the Secretary "are appropriate to the size of this operator's
business and will not affect its ability to continue in business." It has also been stipulated that
the operator "demonstrated good faith in attempting to achieve rapid compliance after being
notified of the violation." Under the circumstances the following civil penalties are found to be
appropriate: Citation No. 7645093 - $55.00, Citation No. 7645100 - $200.00, Citation No.
7645101 - $200.00.

1314

ORDER
Citations No. 7645093, 7645100 and 7645101 are hereby affirmed as written and the
Ohio County Coal Company is directed to pay civil penalties of$455.00, within 40 days of the
date of this decision.

Distribution: (Certified Mail)
Arthur J. Parks, Conference & Litigation Representative, U.S. Department of Labor, Mine Safety
and Health Adm. (MSHA), 100 YMCA Drive, Madisonville, KY 42431

J. Phillip Giannikas, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones Rd.,
Suite B-201, Nashville, TN 37218
Flem Gordon, Esq., Gordon & Gordon, PSC, 1822 C North Main St., P.O. Box 1305,
Madisonville, KY 42431
\mca

1315

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

December 13, 2001

EAGLE ENERGY, INC.,
·contestant
v.

CONTEST PROCEEDINGS
Docket No. WEVA 98-72-R
Citation No . 7166391; 3/ 11/98

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

Docket No. WEYA 98-73-R
Citation No. 7166392; 3/11/98

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 98-123
A.C. No. 46-07711-03674

V.

Mine No. 1
EAGLE ENERGY, INC.
Respondent

REMAND DECISION
Before:

Judge Feldman

· These consolidated contest and civil penalty cases have been remanded by the
Commission. 23FMSHRC~l107 (Oct. 2001). These matters concern the failure of three
Eagle Energy, Inc. (Eagle Energy) foremen to note nine hazardous kettle bottoms during the
course of 17 preshift and onshift examinations. The kettle bottoms were observed by MSHA
inspectors on February 26, 1998, shortly after they arrived at the No. 1 mine to investigate an
unrelated fatal rib roll accident. Id.
A kettle bottom is the oblong or cylindrical fossilized remains of a tree trunk that is
embedded in a mine roof Id. at 1108 n.2. Kettle bottoms are exposed during the mining process
and they ~e frequent occurrences at Eagle Energy's No. 1 mine. Id. at 1108. Kettle bottoms are
hazardous because they can drop ·o ut of a mine roof without warning, sometimes causing serious
injuries to miners. Id. at 1108 n.2. Thus, kettle bottoms require supplemental roof support·to
ensure that they do not suddenly fall from the roof. Id. at 1108-09.

1316

When kettle bottoms are exposed during the course of mining, it is common for
Eagle Energy's foremen to identify them with spray paint to alert roofbolters that additional
support is needed. Id. at 1109; Tr.II 558, 850-51 . 1 The proper way to support a kettle bottom is
to secure the kettle bottom's perimeter with bolted half-headers or roof plates to prevent its
separation from the roof. Id. at 1109.
Three of the nine kettle bottoms were located in close proximity to each other, in a
cluster, in a heavily traveled area of the mine in the No. 2 entry 27 feet inby.the dumping point.
Id. These three kettle bottoms were highlighted by orange spray pajnt. Id. The painted
kettle bottom cluster was photographed by Mine Safety and Health Administration (MSHA)
inspector Vaughn Gartin. Id.; Gov. Ex. l lA-E. After six additional unpainted kettle bottoms
had been detected by MSHA inspectors, Eagle Energy vice-president Larry Ward instructed
safety director Jeffrey Bennett to use orange spray paint to identify these six conditions for
additional roof support. 23 FMSHRC at 1111.
One of the three painted kettle bottoms had a line spray painted through it. The initial
decision determined that the line was a centerline that typically is drawn by the section foreman,
or at his direction, at the completion of a mining cycle to ensure that the continuous miner
stays on course as it advances during the next cut. Eagle Energy, Inc., 22 FMSHRC, 860, 863
(July 2000)(ALJ); Tr.IT 248, Tr.ID 62, 445.
The initial decision determined Eagle Energy's repeated failures to note these hazardous
roof conditions were significant and substantial (S&S) violations of30 C.F.R. §§ 75.360(b)
and 75.362(a)(l). These mandatory safety standards require adequate preshift and onshift
examinations. Id. at 874-76. The initial decision also determined the cited violations were
attributable to Eagle Energy's unwarrantable failure. Id. at 876-78.
fu its remand, the Commission affirmed the fact of occurrence of the violations of
sections 75.360(b) and 75.362(a)(l) as well as their S&S nature. 2 23 FMSHRC at 1118.
However, the Commissionyacated the unwarrantability determination and the $12,000 civil
penalty imposed and remanded these matters for reevaluation consistent with its opinion.
Specifically, the Commission rejected application of the "missing witness" rule to draw the
adverse inference that Eagle Energy failed to call the foreman responsible for drawing the
centerline through the kettle bottom because that foreman's testimony would have been
unfavorable to Eagle Energy. The Commission concluded application of the missing witness
rule was unreasonable because the identity of the witness who painted the kettle bottoms
apparently was not known to either party. 23 FMSHRC at 1120. .

1

The hearing in these matters was conducted in three sessions. The transcript pages are
referred to by session using Roman Numerals I, II and Ill, followed by the page number.
2

As noted by the Commission, Eagle Energy did not appeal the initial S&S
determination. 23 FMSHRC at 1113, n. l 0.
1317

Consequently, the Commission directed that ...
[oJn remand, the judge must reexamine the record and any reasonable inferences
[footnote omitted] to .be drawn from it to determine whether the Secretary has
established by a preponderance of the evidence that the kettle bottoms were
painted as early as February 24, whether they were painted later, or whether there
is evidence in the record as to when they were painted. [Footnote omitted]. If the
Secretary failed to establish when the cluster of kettle bottoms was painted, the
judge must nevertheless also consider whether any miners saw or should have
discovered the kettle bottoms.
23 FMSHRC 1121.
As a threshold matter, in remanding these cases, the Commission concluded that all of the
nine subject roof conditions were hazardous kettle bottoms that were exposed during the nomial
mining cycles between February 24 and February 26, 1998, rather than the harmless roof
irregularities alleged by Eagle Energy. 23 FMSHRC at 1118. With respect to the three painted
kettle bottoms, the Commission concluded they were exposed during the mining cycle on
February 24, 1998. Id. Finally, the Commission concluded the orange paint sprayed on the
cluster of kettle bottoms was a signal that additional roof support was needed, rather than graffiti
or doodling as claimed by Eagle Energy. Id. at 1117. These Commission findings are important
considerations in resolving the unwarrantability issue. While it is understandable that preshift
and onshift examiners would repeatedly ignore harmless roof irregularities or graffiti, it is
inexcusable that these examiners would fail to note hazardous kettle bottoms, especially those
that had been identified because of their need for supplemental roof support.
Discussion
During the period February 24 through February 26, 1998, preshift and onshift
examinations at Eagle Energy's Mine No. 1 were performed by.section foreman. For the reasons
discussed below, the Secretary has met her burden of proving that the line painted through the
painted kettle bottom was a centerline that was painted by, or at the direction of, the day shift
section foreman on February 24, 1998. The Secretary has also demonstrated, by circumstantial
evidence, that the foreman responsible for painting the centerline also contemporaneously
identified the kettle bottom cluster with spray paint to alert the roof bolter that additional roof
support was required. Moreover, even if the foreman who painted the centerline failed to detect
and paint the kettle bottom that intersected it, such failure by that foreman to note the kettle
bottom hazard in subsequent onshift and preshift examinations would still constitute
unwarrantable conduct. In addition, the repeated failure of preshift and onshift examiners to note
these painted hazards was unwarrantable even if the examiners lacked actual knowledge of the
conditions because they failed to see them. In this regard, the examiners' failure to know that a
subordinate had identified a dangerous roof condition would evidence inadequate supervision
and training that would also constitute unwarrantable conduct attributable to Eagle Energy.
1318

Finally, based on common law principles of agency, Eagle Energy cannot prevent imputation of a
foreman's negligence by asserting that it is unable to identify the foreman, or that it was unaware
of the foreman's conduct.
·
A linchpin in determining when the kettle bottom cluster was painted is the line spray
painted through one of the painted kettle bottoms. For it is reasonable to infer that the person
who was responsible for painting the line through the kettle bottom, in close proximity to two
other kettle bottoms, noticed these three dangerous roof conditions at that time and highlighted
them for additional roof support, particularly in view of the fact that the kettle bottom cluster was
highlighted with the identical color spray paint as the subject line painted on the roof. 22
FMSHRC at 863, 865; see Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984)
(substantial evidence standard may be met through reasonable inferences drawn from indirect
evidence). This conclusion is supported by the practice of Eagle Energy's foremen who
identify kettle bottoms with spray paint to alert roof bolters that additional roof support is
needed. 23 FMSHRC at 1108-09.
Eagle Energy section foremen Larry Sanders, Thomas Fisher and Carter Miles all
maintained they could not be certain whether the line through the kettle bottom, depicted in the
photographic evidence, was a centerline, a belt hanger line, or some other unidentifiable line.
Gov. Exs. l lA-C and 1 lE. For example, when provided with the photographs of the painted
kettle bottom cluster taken by inspector Gartin, Saunders claimed he was unable to identify any
lines depicted in the photographs that were painted on the roof in the vicinity of the kettle .
bottoms. 3 Tr.II 540-42; Gov. Exs. 1 lA-C and l lE.
The foremen's inability to identify the lines in proximity to the painted kettle bottom
cluster shown in the photographs might be plausible if they had never personally observed the
area. However, the citations in issue charged these foremen with the repeated failure to identify
dangerous roof conditions during their mine examinations. These dangerous conditions were
observed by MSHA during the course of a fatal accident investigation. It is reasonable to
conclude that in the days following February 26, these foremen viewed the cited painted kettle
bottom area after it was fir&,~ observed by MSHA, particularly since it was located in a heavily
traveled area of the mine. Thus, the purported inability of Saunders, Fisher and Carter to identify·
guidelines routinely painted on the roof at their direction during the mining cycle lacks
credibility.
On the other hand, The Secretary presented credible evidence that the subject line
drawn through the kettle bottom was a centerline. In this regard, I credit the testimony of
Richard Keith Casto, an Eagle Energy miner with 24 years experience, including past experience
as a continuous miner operator, that the line intersecting the kettle bottom was a centerline.
Tr.I 197:.99, 244-49.
Having concluded the subject line was a centerline, the focus shifts to who painted the
centerline and when the centerline was painted. As previously noted, the Commission has

3

The evidence reflected there were two lines in the photographs, one of which was a

centerli~e and the other was a belt hanger line.

1319

concluded the kettle bottom cluster inby the dumping point was exposed during the normal
mining cycle during the day shift on February 24, 1998. It follows tnat the centerline through the
kettle bottom was painted during the day shift on February 24, 1998. Larry Saunders was the day
shift section foreman during the relevant period. Eagle Energy does not contend-that anyone else
was directly responsible for the section's mining activities during that shift.
Saunders denies the line drawn through the kettle bottom was painted by him or at his
direction. In addition, Saunders asserts that he never observed either the line painted through the
kettle bottom, or the kettle bottom cluster. In the absence of any evidence that another individual
was directly responsible for mining of the section during the day shift on February 24, Saunders'
denials simply are not credible. In this regard, it has been noted that it was not surprising that
Eagle Energy management personnel would be reticent to admit knowledge of the presence of
hazardous unsupported painted kettle bottoms during the two day period from February 24 to
February 26, 1998, that immediately preceded a fatal rib-roll related roof accident. 22 FMSHRC
at 872.
Assuming, for the sake of argument, that Saunders was not the foreman responsible for
painting the centerline, Eagle Energy's reported inability to determine the true identity of the
responsible foreman is not material to the issue of unwarrantable failure. The centerline was
painted on February 24 by, or under the supervision of, a section foreman. A section foreman is
a mine operator's agent. 4 At common law, acts and knowledge of an agent are attributable to a
principal. Martin Marietta Aggregates, 22 FMSHRC 633, 637 (May 2000) citing Pocahontas
Fuel Co., 8 IBMA 136, 147 (Sept. 1977), aff'd, 590 F.2d 95 (4'h Cir. 1979).
The Commission consistently has held, based on common law principles of agency, that
the negligent acts of a foreman are imputable to a mine operator for penalty assessment and
unwarrantable failure purposes, even in instances where an operator is unaware of a foreman' s
negligence. Mettiki Coal Corporation, 13 FMSHRC 760, 772(May1991); Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194-98; !February 1991); Southern Ohio Coal Co., 4
FMSHRC 1459, 1463-64 (A_ugust 1982) ( "SOCCO").
Thus, even Eagle Energy's claimed ignorance of the identity of the supervisor responsible
for painting the centerline is not a defense. Put another way, Eagle Energy cannot, as a matter
of law, insulate itself from the extremely high negligence manifest in this case by a supervisor
based on its assertion that it is unable to determine the identity of that supervisor. 5

4

Section 3(e) of the Mine Act defines "agent" as "any person charged with responsibility
for the operation of all or a part of a . .. mine or the supervision of the miners in a ... mine . .. "
30 U.S.C. § 802(e).
5

With respect to the issue of the ultimate burden of proof, it is important to distinguish
the act of painting the subject centerline, from the act of painting the kettle bottoms. Contrary to
Eagle Energy's claims, the Secretary should not have the burden of proof with respect to
1320

Although Eagle Energy cannot avoid responsibility for knowing which of its foremen
painted the centerline, the Secretary bears the burden of proving that Eagle Energy's conduct was
unwarrantable. Garden Creek Poccahontas Co., 11FMSHRC2148, 2152 (Nov, 1989).
Similarly, the Secretary bears the ultimate burden of proof with respect to establishing when the
kettle bottom cluster was painted. The ultimate burden of proof, also known as the burden of
persuasion, never shifts and remains with the Secretary. Courts, however, have noted that,
"[u]nfortunately, the etymology of the phrase 'burden of proof is such that the phrase can be
used to mean solely the burden of persuasion, solely the burden of production, or both."
Greenwich Collieries v. Director, OWCP, 990 F.2d 730, 734 (3rd Cir. 1993). The burden of
persuasion requires a party to prove the fact in issue. Id. at 735. The burden of production
requires a party to make a prima facie showing of the fact in issue. Id. at 734.
The burden of production, also called the burden of going forward, is initially borne by
the party with the burden of proof. After the party with the burden of proof satisfies its burden of
production by producing sufficient evidence to support its case, the burden of production shifts to
the other party, who must, in tum, produce enough evidence to rebut the opposing party's case by
introducing enough evidence to raise material questions of fact. Bruner v Office ofPersonnel
Management, 996 F.2d 290, 293 (Fed. Cir. 1993).
The Secretary has satisfied her burden of production by demonstrating that the subject
kettle bottom cluster inby the dumping point was exposed during the normal mining cycle on
February 24. In addition, the Secretary presented evidence that the line drawn through one of the
kettle bottoms was a centerline that was painted shortly after the kettle bottoms were exposed.
As previously discussed, this evidence supports the inference that the foreman responsible for
painting the centerline through.the hazardous kettle bottom recognized the need for additional
roof support and painted the kettle bottoms to alert the roof bolter. Thus, the Secretary has
presented a prima facie case that the cluster of kettle bottoms was painted by, or at the
direction of, the section foreman when first observed during the day shift on February 24, 1998.
Although the burdeg of proving when the kettle bottom cluster was painted remains with
the Secretary, having presented prima facie evidence on this issue, the burden of going forward

identifying the foreman responsible for painting the centerline. It is a " ... familiar principle that,
'when the true facts relating to [a] disputed issue lie particularly within the knowledge of one
party, the burden of proof may properly be assigned to that party 'in the interests of fairness."'
ITS! TV Productions v. Agricultural Associations, 3 F.3d 1289, 1292 (9th Cir. 1993), ajf'd at 70
F.3d 1278, citing United States v. Hayes, 369 F.2d 671, 676 (9th Cir. 1966) and United States v.
New York, N.H. &H.R.R. Co., 355 U.S. 253, 256 n.5, 78 S.Ct. 212, 214-15 n.5, 2 L.Ed.2d 247
( 1957) ("the ordinary rule, based upon considerations of fairness, does not place the burden upon
a litigant of establishing facts peculiarly within the knowledge of his adversary"). Between the .
Secretary and Eagle Energy, only Eagle Energy can know who was responsible for the subject
centerline. Thus, the burden of proving when, and by whom, the centerline was painted should
more properly be assigned to Eagle Energy.
1321

shifts to Eagle Energy to rebut the Secretary's case. The fact µiat the kettle bottoms were painted
is indisputable. Eagle Energy has failed to present any evidence concerning when the kettle
bottoms were painted, relying instead on the assertion, rejected by the Commission, that the paint
was doodling or graffiti.
In the absence of Eagle Energy's satisfaction of its burden of going forward, the Secretary
has demonstrated, by a preponderance of the evidence, that the kettle bottom cluster was painted
on February 24, 1998. · After these kettle bottoms were painted, Saunders failed to note them
during his onshift examination on February 24. In addition, Eagle Energy section foremen
Saunders, Fisher and Miles collectively performed 16 subsequent preshift and onshift
examinations during the period beginning on February 24 until the painted conditions were
observed by MSHA on February 26, 1998, without noting any hazardous roof conditions. Like
Saunders, Fisher and Miles also deny any knowledge of the painted kettle bottoms. Similarly, all
three section foremen also deny painting, or even seeing, the centerline that was painted through
the kettle bottom.

Testimony by Eagle Energy foremen that they did not see any unsupported, painted kettle
bottoms during their examinations does not mean they were unpainted or otherwise undetectable.
22 FMSHRC at 870. Their repeated failure to note the painted kettle bottom cluster for
approximately 17 examinations is aggravated, unjustified and inexcusable conduct constituting
an unwarrantable failure whether or not they were aware of these conditions. Emery Mining
Corp.; 9 FMSHRC 1997, 2003-04 (Dec. 1987).
Obviously, the repeated failure of Saunders, Fisher and Miles to note·hazardous roof
conditions during their examinations despite actual observation of the conditions would
constitute aggravated conduct. However, even if their testimony that they were unaware of the
painted kettle bottoms were credible, their lack of knowledge would be an aggravating, rather
than a mitigating factor, that is imputable to Eagle Energy. A section foreman is responsible for
the adequate supervision of his subordinates, as well as for his awareness of hazardous roof
conditions in his section, especially those highlighted with reflective spray paint. Fort Scott
Fertilizer-Cul/or, Inc., 17 FMSHRC 1112, 1116 (July 1995); Western Fuels-Utah, Inc., 10
FMSHRC 256, 261(March1988); SOCCO, 4 FMSHRC at 1464.
Although the evidence supports the inference that the kettle bottoms were painted
during the day shift on February 24, I note; parenthetically, that even if they were painted later,
Eagle Energy's conduct would still be unwarrantable. The uncontroverted fact is that these
dangerous roof conditions were not reported by preshift and onshift examiners even after these
hazards were identified by orange reflective paint. As I previously noted, "even the failure to
note hazardous roof conditions that were marked for remedial action during the course of one
preshift or onshift examination may constitute unwarrantable conduct." 22 FMSHRC at 877
(emphasis in original).

1322

Finally, putting aside the issue of when the kettle bott9ms were painted, suppose the
kettle bottoms had never been painted. Under such circumstances, the failure by the foreman
responsible for drawing the centerline through the kettle bottom to note this hazardous roof
condition during successive preshift and onshift examinations from February 24 through
February 26 evidences a reckless disregard that could provide an independent basis for an
unwarrantable failure.
In its remand, the Commission also directed me to consider the impact of the degree of
obviousness of all nine cited kettle bottoms, rather than just the painted ones, on the
unwarrantability and civil_penalty issues.6 The remaining six unpainted kettle bottoms ranged
from six to ten inches in diameter and were located in less frequently traveled mine areas. The
unwarrantability and civil penalty determinations in the initial decision primarily were based on
Eagle Energy's failure to correct the obvious painted kettle bottoms that were located in a heavily
traveled area of the mine.
Given Eagle Energy's failure to note and correct the obvious, its additional failure to note
six additional relatively obscure roof conditions demonstrates an additional degree of negligence
when viewed from a cumulative perspective. However, while the failure to note these six kettle
bottoms during mine examinations may constitute moderately high negligence, given their small
size and rather remote locations, in the absence of the three unnoted painted kettle bottoms, such
failure would not provide a basis for an unwarrantability finding or an increase in civil penalty.
Turning to the civil penalty issue, the initial decision imposing a total $12,000 civil
penalty relied on the duration of the unsupported painted kettle bottoms since February 24 as a
basis for increasing the $6,000 total civil penalty initially proposed by the Secretary. The
Commission has directed me to reconsider my gravity and negligence findings in light of my
findings and conclusions on remand. Having concluded that kettle bottom hazards remained
unnoted in the examination books on February 26, although they were first observed and painted
on February 24, I can find no mitigating circumstances to justify a reduction in the $12,000 civil
penalty assessed in the initi~ decision. In this regard, these hazardous roof conditions were
obvious and posed a high degree of danger; they were located in a frequently traveled area of the
mine inby the dumping point; and, despite Eagle Energy's knowledge of these hazards, the
preshift and onshift examiners allowed these hazards to continue to exist for an extended period
oftime. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994). In short, the violations
were extremely grave and attributable to a reckless disregard. Accordingly, the $12,000 civil
penalty for the violations of sections 75.360(b) and 75.362(a)(l) is reinstated.

6

One of the cited unpainted kettle bottoms had a roof plate secured by a roof bolt driven
through its center. This method was ineffective given the slickensided nature of kettle bottoms
that can cause them to separate and fall from the roof at any moment. 22 FMSHRC at 863.
1323

ORDER
In view of the above, IT IS ORDERED that 104(d)(2) Order Nos. 7166391 and 7166392
reflecting that the cited violations of 30 C.F.R. §§ 75.360(b) and 75.362(a)(l) governing preshift
and onshift examinations, respectively, were attributable to Eagle Energy, Inc. 's unwarrantable
failure ARE AFFIRMED.

IT IS FURTHER ORDERED that Eagle Energy, Inc., shall pay a total civil penalty of
$12,000 in satisfaction of 104(d)(2) Order Nos. 7166391 and 7166392. Payment is to be made
within 40 days of the date of this decision. Upon timely receipt of payment, these consolidated
contest.and civil penalty matters ARE DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution:
Robin Rosenbluth, Esq., Office of the Solicitor, U.S. Department of Labor; 4015 Wilson Blvd.,
Suite 400, Arlington, VA 22203 (Certified Mail)
Julia Shreve, Esq., Jackson & Kelly, PLLC, P.O. Box 553, Charleston, WV 25322
(Certified Mail)
/hs

1324

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

December 18, 2001
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADM1NISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 99-50
A.C. No. 42-01566-03635

v.
Skyline Mine No. 3
CANYON FUEL COMPANY, LLC.;
Respondent
DECISION
Appearances: Kristi Floyd, Esq. Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado on behalf of Petitioner.
Anne Wathen O'Donnell, Esq., Arch Coal, Inc., St. Louis, Missouri,
on behalf of Respondent
Judge Cetti ·

Before:

This case is before me upon a petition for civil penalty filed by the Secretary of Labor
(Secretary) through her Mine Safety and Health Administration (MSHA), against Canyon Fuel
Company, L.L.C. (Canyon Fuel), pursuant to Section 105(d) of the Federal Mine Safety and
Health Act (Mine Act or Act), 30 U.S.C. § 801, et seq. Canyon Fuel filed a timely answer
denying that the longwall foreman walked under an unsupported roof. The citation also charged
that the alleged violation was an unwarrantable S&S violation of the standard. That standard
30 C.F.R. § 75 12202(b) simply and plainly states:
No person shall work or travel under unsupported
roof unless in accordance with this subpart.
Upon careful evaluation of all the evidence, I find.and conclude that the preponderance
of the evidence presented fails to establish the alleged violation of the standard. The reasons for
this finding and conclusion are discussed below after the Stipulations entered into the record by
the parties at the hearing.
STIPULATIONS

1.

Respondent is engaged in mining and selling of coal in the United States and its
mining operations affect interstate commerce.

1325

2.
Respondent is the owner and operator of the Sl<yline No. 3 Mine, MSHA
Identification No. 42-015663.
3.
Respondent is subject to the jurisdiction of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. Section 801, etc~ of the Act.
4.

The Administrative Law Judge has jurisdiction in this matter.

5.
The subject citation was properly served by a duly authorized representative of the
Secretary upon an agent of respondent at the date and place stated therein, and may be admitted
into evidence for the purpose of establishing its issue and not for the truthfulness or relevancy of
any statement stated there.
6.
The exhibits to be offered by the Respondent and the Secretary are stipulated to be
authentic, but no stipulation is made as to their relevance or to the truth of the matters asserted
therein.
7.
business.

The proposed penalty will not affect the respondent's ability to continue in

8.

The operator demonstrated good faith in abating the violation.

9.

Respondent is a large mine operator with 10,362,687 ton-hours of production in

1998.
10.
The certified copy of the MSHA assessed violations entry accurately reflect the
history of this mine for the two years prior to the date of this citation.
FINDINGS AND CONCLUSIONS

Skyline Mine No. 3, on August 27, 1998, had an unintentional roof fall in the stageloader
area of the 4 left Longwall Headgate, Entry #1, inby the 42 crosscut. No one was hurt. Canyon
Fuel immediately reported the unintentional fall to MSHA.
The longwall foreman, Kenneth DeMille, is charged in Inspector Lemon' s citation with
walking under unsupported roof in the caved area. DeMille is the only fully percipient witness as
to where he traveled and the conditions of the area traveled. When DeMille came to work the
morning after the roof fall, he was instructed by his superior to check the longwall shields to
make sure the tops of the shields were pressed against the roof. This was a necessary safety
measure after a fall immediately outby the longwall shield. The longwall shield is shown to be
immediately inby the fall area in Gov. 's Exhibit Nos. 3 and 5. This is also shown in the
Inspector's field notes received in evidence as Respondent's Exhibit No. I , page 4. This
longwall shield extended from the inby edge of the fall area about.800 feet to the tailgate area.
1326

Just before foreman DeMille was going to start his inspection of the longwall, he was
informed by the crew on the prior shift that the tailgate area was unsupported. Not being able to
get to the longwall shield through the unsupported tailgate, he went to the headgate area by way
of crosscut 42. His purpose was to make sure the shield supports were up against the roof and to
make the tailgate entry passable. He stopped at the danger sign closest to the cave to evaluate the
area. He did not hear any flaking of cribs or coal and detected no indication of movement in the
strata. He observed that there was a narrow supported pa8sageway along the right rib wall to the
longwall shield. The passageway was between the right rib wall and the two eight-inch by eightinch timbers that were on four-foot centers. The distance from the most inby timber to the tip of
the protecting canopy of the longwall shield was four to five feet. He traveled along this
supported passageway to the protection of the longwall shield. He then traveled along the 800foot long shield to the tailgate area and observed that the tailgate entry was unsupported. Tr. 234,
line 10-13. He then traveled along the shield back to the headgate.
As he stood under the protection of shields No. 1 and No. 2 of the longwall at the headgate, DeMille saw through the darkness of the caved area two cap lights and thought it might be
some of his crew. To make sure they did not come through the fall area, he called out. "Don't
come through here." The two cap lights were those of Inspector Lemon and Jack Hatch, the
mine' s safety person. Lemon was 30 or more feet away on the opposite side of the caved area. In
the darkness, both men could only see cap lights and yelled to each other back and forth through
the darkness. Inspector Lemon shouted asking DeMille if he got there through the tailgate.
DeMille replied, ''No," that he came along the rib and walked between the rib and the timbers.
DeMille shouted back, "You shouldn't ha".e done that. It's a dangerous thing to do. I am going
to have to issue you a citation." He also told DeMille to return through the tailgate. DeMille
apologized for doing something the Inspector thought was hazardous. DeMille testified he went
back to the tailgate and only after working on it, he made it safe so he could exit through the
tailgate.
The testimony of DeMille that he walked along the side of the right rib between the eightinch by eight-inch timbers and the rib is corroborated by the testimony of the mine superintendent, Richard Parkins, who: on checking, observed the footprints in the 20-inch wide passageway
between the rib and the eight-inch square timbers on four-foot centers adjacent to the cave area.
FURTHER FINDINGS. AND DISCUSSION

After careful review of the testimony of each of the witnesses and the record as a whole,
I determined and concluded that DeMille, the longwall foreman, did not walk under unsupported
roof in v_iolation of the cited standard. He did not travel through the fall area but through a
passageway adjacent to it. This 20-inch wide passageway had all the support required by the
roof-control plan. I credit DeMille's ·testimony.
A major portion of the Secretary's presentation was evidence of two specific roof-falls
not in Skyline Mine No. 3 but in other mines that occurred a number of years ago where the
1327

original fall with the passage of time continued so as to encompass an area of the mine larger
than the original ·immediate area of the fall. Gov. Exhibits 8 and 9 are investigation reports of
falls at other mines, not reports of the mine at issue.
Since there was a possibility of the fall continuing, there was arguably some hazard for
DeMille to travel the _20-inch wide passageway to the shield. I find, under the facts.presented in
the case, that this mere possibility is insufficient to carry the Secretary's burden of proof
establishing a violation of the plain wording of the cited section which prohibits walking under
an unsupported roof.
Although Inspector Lemon was _u nder the impression that DeMiUe walked through a
portion of the caved area, he was in a poor position to observe.how DeMille traveled to the
longwall shield. There were cribs in front of the Inspector as he peered into the darkness of the
cave area where no bodies could be seen. It appears from the testimony of the safety man Hatch,
who accompanied Inspector Lemon, that he and the Inspector only saw some flashes of light
from DeMille's cap light. Hatch testified that it appeared to him that DeMille did, in fact, eI).ter
the 20-inch wide supported passageway by going between the eight-inch square timbers and the
rib.
The fact that the mine made plans, after the unintentional fall, for a wider and more solid
passageway for its miners to reach the face is not persuasive to establish that the 20-inch wide
passageway traveled by DeMille was not supported as required by the mine's roof-control plan.
See Respondent's Ex. 6 for measurements of the supporting roof structures. Lik~wise, I am not
persuaded by DeMille's spontaneous apology for doing something that the Inspector apparently
thought was hazardous. It only indicates DeMille's respect for the Inspector's opinion even
though the Inspector took no measurements nor did he make any close inspection of the passageway that DeMille traveled. It appears from DeMille's testimony that he was always under
supported roof.
I find that the prepo~derance of the evidence fails to establish that DeMille walked under
unsupported roof. The citation should be dismissed.
·

ORDER

Citation No. 4715196 is VACATED and this Penalty Proceeding is DISMISSED.
Citation No. 4891490 was previously vacated by the Secretary.

Au ust F. Cetti
Administrative Law Judge
1328

Distribution:
Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202-5716
Anne Wathen O'Donnell, Esq., ARCH COAL, INC., City Place One, Suite 300, St. Louis, MO
63141
/ek

1329

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

December 18, 2001
ORMET PRIMARY ALUMINUM.
CORPORATION, BURNSIDE
ALUMINA DNISION,
Contestant

CONTEST PROCEEDINGS
Docket No. CENT 2000-233-RM
Citation No. 7884162; 3/14/2000

v.

Docket No. CENT 2000-234-RM
Citation No. 7884168; 3/14/2000

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

Docket No. CENT 2000-235-RM
Citation No. 7884188; 4/4/2000
Docket No. CENT 2000-236-RM
Citation No. 7884189; 4/4/2000
Docket No. CENT 2000-237-RM
Citation No. 7884193; 41512000
Docket No. CENT 2000-322-RM
Citation No. 7885282; 61512000
Docket No. CENT 2000-323-RM
Citation No. 7885279; 5/17/2000
Ormet Corporation
Mine ID 16-00354

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

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 2000-331-M
A. C. No. 16-00354-05548
Docket No. CENT 2000-435-M
A.C. No. 16-00354-05549

V.

ORMET PRIMARY ALUMINUM,
CORPORATION, BURNSIDE

Docket No. CENT 2001-182-M
A.C. No. 16-00354-05550

1330

ALUMINA DNISION,
Respondent

Ormet Corporation

DECISION
Appearances: Brian Duncan, Esq., Office of the Solicitor, U.S. Department of Labor, Dallas,
Texas, on behalf of Petitioner;
John C. Artz, Esq., Polito & Smock, P.C., Pittsburgh, Pennsylvania, on behalf of
Respondent.
Before:

Judge Zielinski

These cases are before me on Notices of Contest filed by Ormet Primary Aluminum
Corporation and corresponding Petitions for Assessment of Civil Penalty filed by the Secretary of
Labor pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 ("Act").
30 U.S.C. § 815. The petitions allege that Ormet is liable for seven violations of mandatory
safety and health standards applicable to surface metal and nonmetal mines. A hearing was held
in Baton Rouge, Louisiana. 1 The parties submitted briefs following receipt of the transcript. 2 At
the commencement of the hearing, the Secretary withdrew two of the alleged violations and the
petitions as to those citations will be dismissed. The Secretary proposes civil penalties totaling
$769.00 for the remaining charges. For the reasons set forth below, I find that Ormet committed
two of the alleged violations and impose civil penalties totaling $315.00.
Findings of Fact - Conclusions of Law
During March and April, 2000, MSHA inspector John Ramirez conducted an inspection
of Ormet's Burnside Aluminum Division's alumina mill in Ascension County, Louisiana. He
issued several citations alleging violations of mandatory safety and health standards. On May 17,
2000, fellow MSHA inspector, James Bussell, performed a follow-up compliance inspection to
determine whether violatiOfls cited by Ramirez had been abated. He also visited the mine on
June 5, 2000, and issued a citation for failure to timely report a work-related accident. Both

The civil penalty proceeding as to Citation No. 7885282 had not yet been filed at
the time of the hearing. The issues raised by Ormet' s related contest proceeding, as well as
penalty issues common to all of the citations were heard and, by agreement of the parties, this
decision disposes of all issues raised in the subse.quently filed civil penalty proceeding, Docket
No. CENT 2001-182-M.
2

Substantial delays were experienced in obtaining the transcript. It was necessary
to request further review of the court reporter's notes to supply some 27 pages that had been
omitted from the transcript initially submitted. The official transcript consists of pages numbered
1 through 40, followed by pages numbered 40-1through40-27, followed by pages numbered 41
through 314. See the Amended Briefing Order entered on September 19, 2001.
1331

Ramirez and Bussell have 14 years of experience as MSHA inspectors and both have
considerable prior mining experience. They also had inspected Ormet's facility on several prior
occasions.
The citations are discussed below in the order that they were presented at the hearing.
Citation No. 7884162
Citation No. 7884162 was issued by Ramirez on March 14, 2000, and alleged a violation
of 30 C.F.R. § 56.9300(a), which requires that: "Berms or guardrails shall be provided and
maintained on the banks of roadways where a drop-off exists of sufficient grade or depth to cause
a vehicle to overturn or endanger persons in equipment." The conditions he observed were noted
on the citation as:
Berms or guardrails were not provided on the banks of roadways where a drop-off
existed of sufficient grade and depth to cause a vehicle to overturn. Fatal injuries
could occur as a result of the condition. The affected roadway runs east and west ·
along the pipelines to the mud lakes and two other roads running south from that
same road. tire tracks were observed as close as one foot from the edge. Only
persons that check and maintain the pipeline use the road. It is traveled at least
once a shift.
He concluded that it was unlikely that the violation would result in an injury - but that an
injury could be fatal, that the violation was not significant and substantial, that one person was
affected and that the operator's negligence was moderate. The citation was subsequently
modified to reduce the operator's negligence to low because the condition had existed for a long
·
time and had not been noted in prior inspections.
Ramirez was concerned about two areas that he determined were "roadways," neither of
which had berms or guardrails separating the traveled·surfaces from drainage ditches running
alongside them.
The area of Ramirez's primary concern consisted of cleared ground running north/south
for about six-tenths of a·mile along the pipeline, on which theI'e were numerous vehicle tracks.
The area was accessed from a short east/westroad but did not connect with any other road or
portion of Ormet's facility. A picture taken by Ramirez showed marks where a tracked, as
opposed to a wheeled, vehicle traveled within one foot of the edge of a drainage ditch. (Ex. S-4,
Tr. 119). Ramirez believed that the area was part of the pipeline inspection road that was used
once each shift by Ormet's employees. (Tr. 20). The area is depicted in exhibits S-4 and 0-9.
The other area was an unpaved road approximately two-tenths of a mile long that ran
east/west connecting the paved plant access road with another unpaved road that ran north/south
alongside a pipeline from the plant to the ''mud lakes," or settlement ponds, about one mile

1332

away. 3 The road was used once per shift by an employee in a pickup truck to inspect the
pipeline. A drainage ditch about five feet deep ran along the north side of the east/west road and
was closest to it near its intersection with the paved plant access road. As it proceeded away
from that intersection, the road curved gradually away from the ditch, such that it ran roughly
parallel to the ditch for only about half of its length, i.e. about one-tenth of a mile. The road had
a shoulder which measured six feet wide at its closest proximity to the ditch. Both the Secretary
and Ormet introduced pictures of the short east/west road into evidence. (Ex. S-5, 0-7, 0-8).
Ramirez had inspected Ormet' s facility on more than six prior occasions, but had never
determined that the mud lakes road posed a safety hazard and had not issued any citations to that
effect. He issued the instant citation because his observation of a track mark within one foot of
the edge of a ditch raised a concern that a vehicle might be inadvertently driven into the ditch,
injuring the driver.

In an enforcement proceeding under the Act, the Secretary has the burden of proving an
alleged violation by a preponderance of the evidence. In re: Contests ofRespirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff'd., Secretary ofLabor v.
Keystone Coal Mining Corp., 151F.3d1096 (D.C.Cir. 1998); ASARCO Mining Co.,
15 FMSHRC 1303, 1307 (July 1993); Garden Creek Pocahontas Co., 11FMSHRC2148, 2152
(Nov. 1989); Jim Walter Resources Inc., 9 FMSHRC 903, 907(May1987).
I find that the Secretary has not carried her burden of proof with respect to this alleged
violation. The area primarily focused on by Ramirez was not a roadway and the drainage ditch
running alongside the short east/west road did not present a hazard to vehicle operators.
Ormet' s witnesses and exhibits, including an aerial photograph of the area (Ex. 0-1 ),
clarified that the roadway used to inspect the pipeline starts at the plant access road, proceeds
west for two-tenths of a mile and then runs about seven-tenths of a mile south along the pipeline.
However, the north/south portion is on the opposite side of the pipeline from the area depicted in
exhibits S-4 and 0-9. TheFe is a small, approximately one foot deep, drainage ditch running
alongside the north/south roadway, but it does not present a hazard. The north/south portion of
the mud lakes road is shown in exhibit 0-10.
Ramirez did not recall whether there was a roadway on the other side of the pipeline from
the area depicted in exhibit S-4. (Tr. 61 ). However, he later admitted that it was possible that
there was such a roadway used for inspection of the pipeline and that the area he cited was used
only temporarily to clean out the drainage ditch. (Tr. 122). His field notes, which may have
refreshed his recollection and clarified his testimony, were not available because he had not
brought.them with him to the hearing.

3

The east/west road was also used by a farmer to access land beyond the
north/south mud lakes road.

1333

Ramirez mistakenly concluded that the area depicted in exhibit S-4 was part of the
pipeline inspection road. In fact, it was not a roadway at all. It was simply. ground that had been
traversed by a tracked backhoe that had dredged out the drainage ditch. It was not normally
traveled by Ormet employees and was used only to maintain the ditch every few years or to make
repairs to the pipeline that could not be effectuated from the north/south mud lakes road.
The short east/west road was part of the pipeline inspection road and there was a drainage
ditch that ran alongside it. However, that ditch was sufficiently far away from the road that it did
not present an appreciable hazard to the operators of vehicles. As noted above, the road curves
gradually away from the ditch such that it was close to it for only about one-tenth of amile
nearest the plant access road. A vehicle traveling that portion of the road would be moving
relatively slowly because the driver would have just turned onto the road or would be preparing
to turn onto the plant access road. Olin K. Dart, Jr., Ph.D., testified as an expert in the field of
civil engineering, specializing in highway design and traffic engineering. He inspected the area
and measured the width of the shoulder on the ditch side of the east/west roadway as six feet for
the short distance that the ditch paralleled the road and testified that, in his opinion, the shoulder
presented sufficient protection from the hazard of a vehicle overturning in the ditch and was
typical ofroadway/ditch configurations in that area.
Ramirez testified that he observed tire marks within one foot of the ditch at that location.
However, that testimony is inconsistent with the weight of the evidence and I find that the only
vehicle tracks he observed in close proximity to a ditch were the tracks made by the backhoe
depicted in exhibit S-4. Both exhibit S-5, depicting the east/west road, and exhibit S-4, depicting
the area traversed by the backhoe, bore the notation that tire marks were observed within one foot
of the edge of the ditch. Vehicle tracks, made by the tracked backhoe, are shown close to the
edge of the ditch in exhibit S-4. Any vehicle tracks within one foot of the ditch running
alongside the east/west road would have had to have been on the shoulder, several feet from the
roadway surface, and Ramirez would surely have taken a picture of them.
If Ramirez had not mistakenly concluded that the area used by the backhoe was part of
the mud lakes pipeline road,-it is highly unlikely that he would have concluded that a violation
existed. Ramirez had inspected the mud lakes road during six· to eight prior inspections and, like
other MSHA inspectors that inspected Ormet's facilities twice yearly, had determined that the
road's proximity to the ditch did not violate the regulation. While he testified that conditions in
both of the described areas were the bases for the citation, it is apparent that the work area
depicted in exhibit S-4 was the primary, if not the exclusive, focus of his violation assessment.
The citation itself initially refers to "roadways," but goes on to describe the "affected roadway"
as one that "runs ... along the pipelines to the mud lakes." It was the presence of the tracks
within orie foot of the ditch that prompted his concern. But, those tracks were not on a roadway.

TI:ie Secretary has not proven the violation alleged in Citation No. 7884162.

1334

Citation No. 7884168
Citation No. 7884168 was issued by Ramirez on March 14, 2000, and alleged a violation
of 30 C.F.R. § 56.20003(b), which requires that "[t]he floor of every workplace shall be
maintained in a clean and, so far as possible, dry condition." The conditions he observed were
described in the citation as follows:
Poor housekeeping was evident on the north side of the red mud tank in the 368
area. The mud does contain caustics and a bum hazard existed if a person slipped,
tripped or fell into the mud. The build up was up to 12 inches deep in some areas.
Two pumps were observed with worn out packing, causing a large amount of
leakage. A supervisor stated that they were hard to keep up with. Evidence (foot
prints) of persons entering and leaving the affected area could be seen. Lack of
maintenance on the pumps and sump areas created the hazard. It is also evident
that the build up has been there for an extended time.
He concluded that it was reasonably likely that an injury would result from the violation
and that an injury could be permanently disabling, that it was significant and substantial, and that
two persons were affected. He initially assessed the degree of operator negligence as moderate,
but later modified it to low because the mud had a low caustic content and an emergency eye
wash station was in the area.
The Violation
The area in question is a concrete deck or pad with an approximately one foot high wall
or curb around its perimeter. It was designed to collect and retain leakage from pumps and other
sources. The red mud is removed from the alumina solution by presses, is washed to remove
caustic used in the alumina extraction process and is then pumped to the mud lakes, or settlement
ponds, about a mile from the plant. Because of the nature of the material and the process
involved, leaks from pump.packing and other sources occur on an ongoing basis. The leakage
collects on the pad and is periodically cleaned up. The floor of the concrete pad is sloped
downward slightly to a drain feeding into a sump pump, which pumps the material back into the
pressing/washing process. The area is cleaned with a hose using water extracted as part of the
process. The water contains a small amount of caustic and is used to wash the mud, in
suspension, down to the sump pump drain. The only work performed in the area is periodic
cleaning and occasional pump maintenance and repair.
On the day the citation was issued, the sump pump was not operational and had not been
for several days. Efforts had been made to repair it, and Ramirez observed footprints in the mud
most likely made by workers involved in the repair effort. There is some dispute as to the
thickness of the mud. Ramirez estimated it as 12 inches by measuring the height to which mud
was deposited on the boot of the miners' representative. Pictures of the area, taken before and
after it had been cleaned, depict a concrete step at the base of a ladder which was measured to

1335

have been six inches higher than the pad floor. Before cleaning, the level of the mud solution
was lower than the step, although it was more likely higher in the thicker mud where Ramirez
observed the footprints. (Ex. S-8, S-9, 0-2, 0-3).
I find that Onnet is liable for the violation cited in Citation No. 7884168. The area had
not been cleaned in some time, apparently because of the failure to repair the sump pump. No
evidence was introduced to establish that the pump could not have been promptly repaired. The
buildup of slippery mud in the area presented a hazard to miners maintaining and repairing the
sump and other pumps.
Significant and Substantial
A significant and substantial ("S&S") violation is described in section 104(d)(l) of the
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." A violation is properly designated
S&S "if, based upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious
nature." Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:

In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: ( 1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.

Mathies Coal Co, 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); See also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (71h Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), ajfg, Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).
In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
provided additional guidance:
We have explained further that the third element of the Mathies fonnula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l ), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel

1336

Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co.,
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 at 1574. The question of whether a particular violation is
significant and substantial must be based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (Apr. i988); Youghiogheny & Ohio Coal Co., 9 FMSHRC
1007 (Dec. 1987).
Ramirez, s S&S assessment was based upon his conclusion that a ~er falling while
walking through the area might get some of the caustic mud in his eyes and/or ears and suffer a
permanent loss of sight or hearing. (Tr. 40-5). I find that possibility too remote to support the
S&S designation. Ramirez admitted on cross examination that he did not know the caustic
content of the mud or the effect that it would have on human tissue. (Tr. 78). He had previously
suffered a burn from caustic material. However, it did not occur at Ormet's facility and his
assessment was based upon an assumption that the mud at Ormet's facility was comparable to the
substance he had previously encountered. The Secretary did not introduce any evidence
quantifying the risk of permanent injury posed by the limited exposure assumed by Ramirez.
There is no dispute that workers in the area have access to and use appropriate safety equipment,
including eye goggles. There is an. eye wash station in the immediate area, and emergency
showers and clean clothing are available. Assuming that a fall was r~asonably likely, it is
considerably less likely that caustic material would get into a miner's eye or ear, and there is no
evidence to support a finding that relatively prompt flushing at the eye wash station would not be
sufficient to avoid injury, much less a reasonably serious injury.
I find that the violation was not S&S and that, while an injury may have been reasonably
likely, the injury would result in no more than lost work days or restricted duty. I agree with
Ramirez's conclusion that the operator's negligence was low.
Citation No. 7884183 and Order No. 7885279
Citation No. 7884183 was issued by Ramirez on April 4, 2000, and alleged a violation of
30 C.F.R. § 56.11001, which requires that "[s]afe means of access shall be provided and
maintained to all working places." The conditions that he observed were noted on the citation as:
A safe means of access was not provided to persons through the filtration area. It
included: the press floor, the half deck, and the pad area. The grating between the
p_resses was irregular and bent, scale was observed throughout the half deck and
on the floor, hoses, scrap pipe and mud was observed. A slip, trip and fall hazard
existed as a result of the condition.
He concluded that it was unlikely that an injury would occur as a result of the violation but that an injury could result in lost time or restricted duty, that it affected one person, and was

1337

the result of the operator's moderate negligence. He required.that the violation be corrected by
April 24, 2000. Ormet did not contest the citation.
The press floor of the plant is about 20 feet above the concrete pad area. The presses
remove the "liquor" containing the dissolved alumina from the solids, the red mud-like
substance. It is a dirty process and there is spillage throughout the press floor. The presses are
separated by aisles and the flooring consists largely of open steel grating, bridging drainage
channels that allow for the area to be washed down with hoses. Ramirez observed pieces of
grating that were bent and/or not seated properly and loose pieces of pipe and hose that he
determined were tripping hazards. (Ex. S-11 ).
The half deck refers to a platform that is suspended about five feet below the press floor.
It contains piping, conduit and equipment associated with the presses, and has narrow walkways
with hand railings and floors consisting of grating. Leakage from the presses drips onto the half
deck and builds up on the surfaces of the pipes, conduit and equipment. The deposits are referred
to as "scale." Some of the material hardens as it drips down, resulting in stalactite-type
formations. The formation of scale is an ongoing process and Ramirez recognized that there
would always be some scale present. He felt that the buildup had been allowed to go too fat.
(Tr. 40-18). Some of the scale was loose and some was very hard. Scale is dense material and
its weight had caused deflection in at least one horizontal piece of electrical conduit. Ramirez
was concerned about loose scale falling on persons who might be traversing or working on the
pad area some 15-20 feet below, and about heavy deposits deforming and breaking the electrical
conduit. Although he noted the scale buildup in the body of the citation, the only hazard he
specifically identified was the trip and fall hazard presented by the grating and materials on the
press floor.
Ramirez testified that he took a conservative approach to the violations that he observed
in the area and chose to issue one citation encompassing several conditions that could have been
cited separately. He also stated that, in retrospect, the violation may have been more properly
evaluated to have presented.a reasonably likely possibility of an injury occurring fyom a slip and
fall and that, if a heavy deposit of scale fell and struck a miner on the pad floor, a permanent or
fatal injury could result. He, like Bussell later, rated the possibility of an injury to a miner on the
pad floor as remote because no-one worked in that area; they merely passed through occasionally.
On May 17, 2000, Bussell visited Ormet's plant to, among other things, terminate
Citation No. 7884183. He concluded that some of the conditions cited by Ramirez had not been
abated by Ormet and issued Order No. 7885279, pursuant to section 104(b) of the Act, barring
access to the pad area below the press floor and half deck until the unsafe conditions were
corrected and inspected by MSHA for compliance. He described the conditions in the body of
the order as follows:
A safe means of access was not provided to persons working or traveling in the
pad area below the press floor. The buildup of material on top of the piping,
1338

conduit, and framework above the pad area had not been taken down sufficiently
to protect persons from the hazard. The pad area below the press floor was
barricaded off and entry to the area is denied except to remove the material
creating the hazard, and until MSHA can inspect the area for compliance.
Bussell was satisfied that Onnet had abated the unsafe conditions on the press floor that
Ramirez had itemized on the citation as presenting the "slip, trip, and fall hazard.'' (Tr. 179-80).
Bussell's concern wa5 the scale buildup on the half deck. Although he was not present when
Ramirez issued the citation on April 4th, he saw no-one working on scale removal and concluded
that virtually no effort had been devoted to removing the scale. He observed what he considered
to be loose scale on conduit and throughout the half deck area, as well as deteriorated pipe
insulation. His order essentially closed-off the pad area below the half deck. He allowed the
barricades barring access to the closed area to be moved as progress was made removing the
scale, a process that took nearly two months.
Terry E. Bozeman, Ormet's superintendent of the digestion/filtration area, was present
when Ramirez made his inspection and issued the citation. He testified that Ramirez told him
that, in order to abate the citation, Ormet needed to eliminate the slip and fall hazards on the
press floor and remove the loose scale, not the hard cemented-on scale, on the half deck. Ormet
employs two persons to do scaling and assigned one of them to work solely on the half deck.
Bozeman observed the person working on a daily basis and testified that all of the loose scale
was removed within one week of Ramirez's inspection and that by the time Bussell came to
abate the citation, approximately 50% of the remaining scale had been removed. The hard scale,
which was similar to concrete, had to be chiseled off by hand or with an air hanuner.
Bozeman was surprised and aggravated by Bussell's assessment of the abatement effort
on the half deck. He felt that all of the loose scale, which was Ramirez's concern, had been
removed and that the miners' representative who had also accompanied Ramirez on the
inspection was.also of the opinion that the scale problem had been corrected. Bussell, however,
had no recollection of anyone at Ormet, including the miners' representative, claiming to have
made an effort to eliminate lhe scale buildup. Rather, Ormet officials told him that, due to
vacation schedules and other demands, there had been essentially no time available to remove the
scale.
It is apparent that the citation issued by Ramirez, which is not contested by Ormet, was
properly issued and that the gravity and negligence factors were correctly assessed. It is also
clear that Ramirez and Bussell differed considerably on their respective evaluations of the
condition of the half deck scale. Neither inspector explained how he determined whether scale
was Joose or cemented and it appears, from the single photograph depicting scale observed by
Bussell, that it would be difficult to make such a determination from observation alone. (Ex.
S-15). Of course, Bussell was not present when Ramirez issued the citation. The evaluation of a
general condition like that noted by Ramirez ("scale was observed throughout the half deck") is
somewhat subjective and it is not surprising that inspectors would differ in their evaluations of

1339

such conditions.
The parties' dramatically different positions on Ormet's efforts to abate the scale buildup
cannot be reconciled, even when the subjective nature of the evaluation is considered. Bussell
did not make his compliance inspection until six weeks after Ramirez had issued the citation,
well past the 20 days that had been allowed for abatement. Had Ormet actually removed all of
the loose scale within the first week,. and had one person been exclusively assigned to remove
scale for the additional five weeks prior to Bussell' s inspection, it is virtually impossible that
Bussell would have reached the conclusions that he did. He testified that if he had seen any
evidence of progress on abatement of the scale buildup he most likely would have extended the
time allowed for compliance. However, he concluded from his observations that virtually no
effort had been made. I find that, while Ormet may have devoted some effort to removal of the
half deck scale between April 4 and May 17, 2000, it had not taken adequate steps to abate the
hazard posed by the scale.
Ormet's claim of having made a good faith effort to abate the hazards identified by
Ramirez also has support in the record. The only hazard specifically identified by Ramirez in the
body of the citation was the trip, slip, and fall hazard presented by the grating and obstacles on
the walkways of the press floor. There is no dispute that those conditions were satisfactorily
abated. While Ormet should have done more to remove the scale buildup; its abatement effort
cannot properly be categorized as completely non-compliant, which resulted in imposition of an
additional 10 points in the penalty calculation, as well as loss of the 30% reduction in the
originally proposed penalty. See 30 C.F.R. § 100.3(f). A more appropriate penalty would be that
which would have been assessed without addition of the 10 penalty points added for failure to
abate the violation.
Citation No. 7884193
Citation No 7884193 was issued by Ramirez on April 5, 2000, for what he perceived to
be a violation of 30 C.F .R. §-56.11001, which requires that a "[s]afe means of access shall be
provided and maintained to all working places." The conditions that resulted in the violation
were described on the citation as:
A safe means of access was not provided to persons in the 350 area shaker floor.
A buildup of alumina up to 5 feet deep was observed on the roof area between the
#1 and #2 kilns. The weight of the material was not known but the hazard of
structural failure could exist. Persons work under the affected area.
He concluded that it was unlikely that an injury would result from the violation - but that
an injury could be fatal, that the violation was not S&S, that one person was affected, and that the
operator's negligence was moderate. The roof area is depicted in exhibits S-15 and 0-5.

1340

The roofin question is adjacent to kilns that are used to dry Ormet's final product,
alumina, which is a white crystalline substance. It js abrasive and eventually wears through the
walls of the kilns' cooling equipment. Alwnina leaking through such openings,. as well as
smaller amounts that simply escape the drying/cooling process, accwnulates alongside the kilns
on the roof. There are three kilns, which operate at very high temperatures, approximately 2,500
degrees Fahrenheit, effectively preventing access to the roof Every three months, the kilns are
shut down, one of them is repaired and refurbished and the alumina accumulated in the area is
removed.
Ramirez did not go onto the roof In consultation with the miners' and management
representatives, he estimated the thickness of the deposit at five feet at its highest point.
However, he did not know the slope of the roof. (Tr. 96). Nor did he know the composition of
the roof. (Tr. 47, 100). There was a vertical corrugated steel wall at the far end of the roof. He
observed the underside of the roof from the affected area and concluded that it was likely that the
roof deck was constructed of a similar corrugated material. The structural ~omponents of the
roof appeared to be of "pretty heavy construction" and were in good condition. (Tr. 55). He
observed no deflected or corroded members. (Tr. 100). He based his assessment on the
possibility that, under the weight of the alumina, the roof decking might give way between the
supports and that pieces of the roof structure might strike persons working in the affected area.
(Tr. 54-56).
Ormet' s witnesses and exhibits established that the roof is not constructed·of corrugated
material, as Ramirez had assumed. Rather, it is constructed of steel decking with an overlay of
steel plate. (Tr. 249-50). A picture taken in May of 2000, also shows that there is a slope to the
roof, such that the depth of the material observed and photographed by Ramirez was likely no
more than three feet. (Ex. 0-5). The photographs also show an outline on the corrugated metal
wall of a prior, considerably thicker accwnulation. Jeffery Yeager, who had been Ormet's safety
services manager at the Burnside facility, related an incident when one of the coolers fell onto the
roof The cooler weighed about 1,500 pounds and fell from a distance of five feet causing no
damage to the roof. The May 2000, photograph, moreover, depicts a somewhat smaller, but
comparable, accumulation that Bussell concluded was sufficient to abate a similar violation that
he had issued.
Ramirez noted that the alumina was exposed to rain which might dramatically increase its
weight. However, the heat from the kilns would tend to dry the alwnina and Yeager testified that
the material tended to crust over when rained on, such that water penetrated only one to two
inches. I accept this testimony and find that rainfall would only marginally add to the weight of
the accumulations.
I find that the Secretary has failed to carry her burden of proof with respect to this alleged
violation, i.e., that the buildup of alwnina posed a safety risk to the workers in the affected area.
While the quantity of alumina was not as great as Ramirez estimated, the main failing is that his
conclusions were based upon an erroneous asswnption about the structure of the roof It was not
1341

made of relatively light corrugated material. Rather, it was made of steel decking with an overlay
of steel plate and had safely supported, not only considerably greater accumulations, but the
impact of the 1,500 pound cooler. Bussell, a similarly experienced inspector, had concluded that
comparable accumulations did not violate the regulation.
Citation No. 7885282
Citation No. 7885282 was issued on June 5, 2000, by inspector Bussell. It alleged a
violation of 30 C.F.R. § 50.20(a), which requires that certain occupational injuries be reported to
MSHA within 10 working days. The grounds for the charge were noted on the citation as:
A miner ... was injured on March 31, 2000, which resulted in 11 days loss of
work. The employee received a fractured finger due to accidently striking his
right index finger with a knocker while operating a hitting valve. The Company
failed to complete and submit an MSHA 7000-1 (Mine accident, injury and illness
report) within the 10 working days required by this standard.
MSHA 's attention was called to the potential violation by Ormet' s submission of a report
regarding the accident. (Ex. S-17). The report had been prepared on April 18, 2000, and bore a
notation that the "accident did not turn into a LTA until 4/6/00." Potential late reporting
violations are discussed at staff meetings in the MSHA office. The inspectors and their
supervisor review the circumstances of each case and it is determined whether or not a citation
should be issued. Where an operator claims extenuating circumstances, an inspector reviews
them and has discretion to accept a late submission. (Tr. 113, 189-91). As noted on the report,
Ormet claimed extenuating circumstances.
The miner had left work on March 31, 2000, at the end of his shift, but returned from the
parking lot to the guard station and claimed to have suffered-an on-the-job injury to his finger.
According to Yeager, who investigated the accident, the guard checked the finger, which did not
appear to have suffered trauma, and the miner was able to move it freely. The guard asked the
miner to fill out paperwork reporting the injury, but the miner declined and left. 4 The following
day, a Saturday, the miner apparently went to a hospital emergency room. The hospital called
Ormet to verify his workmen's compensation coverage, which triggered the investigation by
Yager. Ormet was skeptical that the miner had been injured while.on-the-job, but eventually
concluded on April 6, 2000, that he may have been so injured. Yeager filled out the report form,
MSHA 7000-1, on April 18, 2000, and it was mailed. Yeager testified that, consistent with
longstanding company practice, it was most likely mailed on the 18th. Bussell testified that,
according to his recollection, the envelope had not been postmarked on the 18th, but "more like
the 20th.;, However, he had thrown away the envelope shortly after it was received. The date of

4

A miner reporting an injury must undergo drug and alcohol screening. It is
possible that the miner declined to file the report to avoid that obligation. The miner was
subsequently terminated on the basis of a positive drug/alcohol test.
1342

mailing is considered to be the date the report was submitted.. (Tr. 207).
Regardless of whether the report was mailed on the 18th or the 20th, it was submitted
timely based upon Bussell's testimony. Bussell did not recall the specifics of Ormet's
justification, but testified that he determined that the injury became reportable on April 6, 2000.
(Tr. 191, 203). Bussell apparently accepted Ormet's claim that the injury was not reasonably
determined to be work-related ~til April 6, 2000. The regulation requires that the report be
submitted within 10 working days of becoming reportable. The 6th was a Thursday and the 20th
was the tenth working day after the 6th.
The Secretary advances several alternative arguments in support of the citation.
However, her arguments are inconsistent with the evidence. It is argued that Ormet was notified
of the claimed injury on March 31st and April 1st, and that a report prepared on April 18th was
untimely using either of those dates as the starting point for the reporting period However, both
Ramirez and Bussell testified that inspectors have discretion to take into consideration
extenuating circumstances when determining whether a report is timely. Bussell's testimony
regarding this citation was somewhat inconsistent due to his limited recollection of the facts, and
he clearly struggled in his attempts to reconstruct the events surrounding issuance of the citation.5
He testified that he could not recall the circumstances surrounding this report, concluding that he
must not have found any extenuating circumstances. (Tr. 190-91). He was fairly firm, however,
in recalling that he used April 6th as the date the injury became reportable. Under the
circumstances, I find that the starting date for the reporting period was April 6, 2000, the date
Ormet obtained sufficient information to justify a determination that an on-the-job injury may
have occurred.
The Secretary also argues that, even if April 6th is used as the starting date, the report was
untimely because Ormet's plant operates seven days a week, such that the report should have
been submitted by April.16, 2000. Ormet counters that only weekdays should be counted
because the term "working days" does not normally include weekends and holidays, that
Bussell's testimony is consistent with its interpretation, and that the office staff responsible for
preparing such reports does -not work on weekends. Ormet's arguments are well taken. The term
''working days" does not normally include weekends and holidays, and Bussell's testimony,
although unclear, indicates that he counted only weekdays in determining the period within
which the report should have been submitted. The Ormet personnel responsible for preparing
and submitting the reports did not work on weekends. (Tr. 208). I find that only non-holiday
weekdays can properly be used to determine the reporting period.

5

For example, he testified that April 6th was "evidently'' when the miner received
(not sought) medical treatment, thereby making the accident reportable. (Tr. 191 ). In fact, the
miner sought, and may have obtained, medical treatment on April 1, 2000, when he visited the
hospital emergency room.
1343

April 6, 2000, was a Thursday. The report was submitted the date it was postmarked.
Whether it was postmarked on April 18th, as Yager testified was probable, or on April 20th, as
Bussell recalled, it would have been submitted on or before the 10th work day after Bussell
determined that the injury became reportable.
As noted previously, Bussell's testimony with regard to this citation was inconsistent.
Obviously, if he used April 6th as the starting date for the reporting period and the 18th as the
submission date, as he·stated at one point, he must have miscalculated the number of working
days. Even if he used April 20th as the submission date, he would have had to have made a
mistake. It may be that he, in fact, did not find any extenuating circumstances to justify tolling of
the reporting period. However, his inability to recall the circumstances and his fairly certain
recollection that he used the 6th as the starting date, can justify no other conclusion but that the
Secretary has failed to carry her burden of proof as to this violation.
The Appropriate Civil Penalty

In excess of 500,000 man-hours are worked per year at Ormet's mine, which makes it a
relatively large mine and a medium-sized controlling entity. The parties have stipulated that the
payment of the proposed civil penalties would not threatenOrmet's·ability to continue in
business. I find that neither payment of the proposed civil penalties, nor payment of the reduced
civil penalties imposed by this decision, will impair Onnet's ability to continue in business. I
also find that the civil penalties imposed below are appropriate to the size of Ormet's business.
Ormet has a relatively good history of violations, with 47 violations having been issued over 69
inspection days in the 24 months preceding March 14, 2000.
The proposed civil penalty for Citation No. 7884168 was $184.00. The violation is
sustained. However, the violation presented a reasonable likelihood of an injury resulting in lost
work days or restri'Cted duty, rather than. a permanent injury, and is not S&S. Talcing into
consideration all of the factors required to be·addressed under section 11 O(i) of the Act, I impose
a civil penalty of $100.00 for that violation.
The proposed civil penalty for Citation No. 7884183 and Order No. 7885279 was
$420.00. The violation is sustained. However, the imposition of 10 penalty points for failure to
abate the violation, in addition to loss of the 30% reduction in penalty for good faith abatement,
is too harsh and is not supported by the evidence. Taking into consideration all of the factors
required to be addressed under section l lO(i) of the Act, I impose a civil penalty of $215.00 for
that violation.

ORDER
As to the citations withdrawn by the Secretary, Citation Nos. 7884188 and 7884189, the
petition in Docket No. CENT 2000-435-M is DISMISSED.

1344

Citation Nos. 7884162, 7884193 and 7885282 are hereby VACATED and the related
petitions for assessment of civil penalties are DISMISSED as to those citations.
Citations Nos. 7884168 and 7884183 and Order No. 7885279 are AFFIRMED, as
modified, and Respondent is directed to pay a civil penalty of$315.00 within.45 days.

~~~~\~
ielinski
tive Law Judge

Distribution:
John C. Artz, Esq., Polito & Smock, P.C., Four Gateway Center, Suite 400, 444 Liberty Ave.,
Pittsburgh, PA 15222-1220 (Certified Mail)
Brian Duncan, Esq., Office of the Solicitor, U.S. Department of Labor, 525 South Griffin St.,
Suite 501, Dallas, TX 75202 (Certified Mail)
/mh

1345

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

December 26, 2001
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CNIL PENALTY PROCEEDINGS

v.
GEORGES COLLIERS, INC.,
Respondent,

Mine: Pollyanna No. 8

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

Docket No. CENT 2000-391
A.C. No. 34-01787-03576-A

Docket No. CENT 1999-178
A.C. No. 34-01787-03543

Mine: Pollyanna No. 8
V.

VINCENT SMEDLEY, Employed by
GEORGES COLLIERS, INC.,

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

Docket No. CENT 2000-400
A. C. No. 34-01787-03578-A
Mine: Pollyanna No. 8

v.
.

KENNETH CLARK, Employed by
GEORGES COLLIERS, INC.,

Docket No. CENT 2000-40 I
A.C. No. 34-01787-03578-A

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

Mine: Pollyanna No. 8

V.

TIM BALL, Employed by
GEORGES COLLIERS, INC.,

. 1346

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

CNIL PENALTY PROCEEDINGS
Docket No. CENT 2000-157
A.C. No. 34-01707-03532

v.

Docket No. CENT 2000-197
A.C. No. 34-01707-03531

GEORGES COLLIERS
INCORPORATED,
Respondent.

Docket No. CENT 2000-263
A.C. No. 34-01707-03533
Docket No. CENT 2000-264
A .C. No. 34-01707-03534
Docket No. CENT 1999-278
A.C. No. 34-01707-03530
Docket No. CENT 2000-326
A.C. No. 34-01707-03535
Docket No. CENT 2000-474
A.C. No. 34-01707-03537
Docket No. CENT 2000-475
A.C. No. 34-01707-03538
Pollyanna No. 6
Docket No. CENT 1999-50
A.C. No. 34-01787-03541
Docket No. CENT 1999-51
A.C. No. 34-01787-03542
Docket No. CENT 1999-179
A.C. No. 34-01787-03544
Docket No. CENT 1999-180
A.C. No. 34-01787-03545
Docket No. CENT 1999-181
A.C. No. 34-01787-03546

1347

Docket No. CENT 1999-182
A.C. No. 34-01787-03547
Docket No. CENT 1999-183
A.C. No. 34-01787-03548
Docket No. CENT 1999-211
A.C. No. 34-01787-03550
Docket No. CENT 1999-234
A.C. No. 34-01787-03551
Docket No. CENT 1999-279
A.C. No. 34-01787-03552
Docket No. CENT 1999-303
A.C. No. 34-01787-03554
Docket No. CENT 1999-304
A.C. No. 34-01787-035553
Docket No. CENT 1999-339
A.C. No. 34-01787-03555
Docket No. CENT 2000-158
A.C. No. 34-01787-03560
Docket No. CENT 2000-159
A.C. No. 34-01787-03561
Docket No. CENT 2000-160
A.C. No. 34-1787-03562
Docket No. CENT 2000-161
A.C. No. 34-1787-03563
Docket No. CENT 2000-164
A.C. No. 34-01787-03565
Docket No. CENT 2000-165
A.C. No. 34-01787-03566
Docket No. CENT 2000-166
A.C. No. 34-01787-03567
1348

Docket No. CENT 2000-167
A.C. No. 34-01787-03568
Docket No. CENT 2000-196
A.C. No. 34-01787-03559
Docket No. CENT 2000-255
A.C. No. 34-01787-03569
Docket No. CENT 2000-265
A.C. No. 34-01787-03570
Docket No. CENT 2000-290
A.C. No. 34-01787-03571
Docket No. CENT 2000-291
A.C. No. 34-01787-03572
Docket No. CENT 2000-292
A.C. No. 34-01787-03573
Docket No. CENT 2000-299
A.C. No. 34-01787-03556
Docket No. CENT 2000-300
A.C. No. 34-01787-03564
Docket No. CENT 2000-327
A.C. No. 34-01787-03574
Docket No. CENT 2000-328
A. C. No. 34-01787-03575
Docket No. CENT 2000-418
A.C. No. 34-01787-03582
Docket No. CENT 2000-420
A.C. No. 34-01787-03583
Docket No. CENT 2000-426
A.C. No. 34-01787-03579

1349

Docket No. CENT 2000-427
A.C. No. 34-01787-003580
Docket No. CENT 2000-428
A.C. No. 34-01787-03581
Docket No. CENT 2001-6
A.C. No. 34-01787-03585
Docket No. CENT 2001-7
A.C. No. 34-01787-03589
Pollyanna No. 8
Docket No. CENT 2000-163
A.C. No. 34-01790-03509
Milton Mine

DECISION

Appearances: Christopher V. Grier, Esquire, and Brian Duncan, Esquire, Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for the Secretary;
Elizabeth M. Christian, Esquire, San Antonio, Texas, for the Re_spondent.
Before:

Judge Barbour

These consolidated e.ivil penalty cases arise under Sections 105 and 110 of the Federal
Mine Safety and Health Acfof 1977 (Mine Act or Act) (30 U.S.C. §§815, 820). 1 They involve
allegations that Georges Colliers, Inc. (GCI) and its named supervisory agents were responsible
for several violations of mandatory safety standards for underground coal mines, as well as
allegations that GCI alone was responsible for numerous other violations. The cases were heard
in Fort Smith, Arkansas. Counsels have submitted briefs.

At the hearirig counsel for GCI stated that one of the cases, Docket No. CENT 2000-157, is
associated With a section l lO(c) (30 U.S.C. § 820 (c)) proceeding the Secretary is preparing to file against GCI
employee, Al Lolly. (Section 11 O(c) provides that whenever an agent of the operator knowingly violates a
mandatory safety standard a civil penalty will be assessed against the agent.) Counsel maintained Docket No.
CENT 2000-157 should be tried with the section 110(c) proceeding. Therefore, counsel orally moved that Docket
No. CENT 2000-157 be severed from the consolidated cases and be stayed pending the filing of the case against
Lolly. Over the objection of counsel for the Secretary, the motion was granted (Tr. 10-11 ). The oral order severing
and staying Docket No. CENT 2000-157 is affirmed.

1350

In the cases involving GCI and its supervisory agents (Docket Nos. CENT 1999-178,
etc.), the issues are whether GCI violated the standards as alleged, and whether the agents
knowingly violated them. If violations are found to have occurred, the questions become the
amounts of the civil penalties that must be assessed against the company and against the
individuals in light of the statutory civil penalty criteria.

Jn the cases involving the violations that are not associated with the individual civil
penalty cases (DocketNos. CENT 2000-197, etc.), the parties have submitted extensive
stipulations effectively limiting the cases to the single issue of whether the amount of the civil
penalties assessed will affect GCI's ability to continue in business.

DOCKET NOS. CENT 1999-178, ETC.,
STIPULATIONS
The parties agree as follows:
l. [GCI] is engaged in mining and its mining operations
affect interstate commerce . . .[;]
2. [GCI] is. the owner and operator of the Pollyanna No. 6
[Mine], Pollyanna No. 8 [Mine], and [the] Milton [Mine] ... but
. . . no longer operate[s] any of those mines as of December 1,
2000 ... [;]
3. [GCI] is subject to the jurisdiction of the [Act] . .. [;]
4. (The] ... Administrative Law Judge has jurisdiction in
this matter[;]
5. [T]he subject citations were properly served by Fred
Marietti, Earl R. Simmons and Gary W . Jones, duly authorized
representatives of the Secretary upon .. . agent[s] of .. . [GCI] on
the date and place 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. [T]he exhibits to be· offered by [the Respondent] and the
Secretary are stipulated to be authentic but no stipulation is made
to their relevance or the truth of the matter asserted therein[;]

1351

7. [GCI] is a mine operator with 407,034 tons of
production in 1997 and 334,912 tons of production in 1998[;] 2
8. [C]ertified copies of ... [MSHA's] assessed violations
history accurately reflect the history of the mine for two years prior
to the date of the citations and/or orders[;]
9. Tim Ball, Kenneth Clark and James V. Smedley are no
longer employed by [GCI][;J
10. Tim Ball, Kenneth Clark and James V. Smedley have
no previous history of being cited for violations of the [A]ct as
agents nor as miners (Tr.13-15; see also Tr. 481).

GCI, ITS MANAGEMENT PERSONNEL, AND THE POLLYANNA NO. 8 MINE
Craig Jackson, the president of GCI, testified regarding the history ofGCI and
its involvement with mining. Jackson explained that GCI came into existence in the early
1990s, when it was formed to take over the operations of P&K[3] and HMI, two small eastern
Oklahoma coal operators. Both P&K and HMI faced financial difficulties and both sought
financial aid from Heller Financial, Inc., a Chicago investment firm. Heller acquired the assets
of the companies, including the Pollyanna No. 8 Mine, and GCI was formed to own and operate
the mines (Tr. 522).
GCI borrowed funds from Heller to finance its operations. As part of the loan
arrangements, GCI gave Heller production estimates, which if maintained, would provide GCI
with sufficient revenue to generate a profit and to service the loan payments.
When GCI's initial attempts at profitability were unsuccessful, Craig Jackson was hired
to reverse GCI's financial situation (Tr. 522-523). Jackson, was named'vice president for
underground operations and was put in.charge of the underground operations at the Pollyanna
No. 8 Mine (Tr. 522-523). Under Jackson's direction the economic situation improved, but GCI
still did not meet its production.projections. As a result GCI continued to have difficulty making
a profit and servicing its loan.

2

The parties also agree that the company employs less than 50 persons and is small in size (Tr. 110-

111).
3

The transcript erroneously refers to the company as PNK, rather than to its correct name, P&K

(see GCI Br. 5 n. l ).

1352

In January 1998, Jackson was named president (Tr. 52.3-524, 575). As president; Jackson
was responsible for running the entire company. The company's individual mine superintendents
were responsible for day-to-day operations at its mines. Jackson's primary task remained to
make GCI profitable (Tr. 558) and Jackson was candid about the difficulties he faced. He stated,
"[GCI had] . . . severe violation problems. Production was not up to par. We [also] had
administrative structural problems" (Tr. 524). One of the "administrative structural problems"
was finding proper personnel to fill management positions (Tr. 525-526). Jackson believed this
was due to "shortcomings in [mining] experience" among potential supervisors in eastern
Oklahoma (Id.).
After becoming president, Jackson instituted personnel changes. He put Tim Ball in
charge of purchasing supplies and equipment for the Pollyanna No. 8 Mine. He also assigned
Ball to help train miners (Tr. 639). Ball had other duties as well. Jackson believed he could rely
on Ball, in part, because Ball knew the mine. Ball had worked at Pollyanna No. 8 Mine before
GCI took over (Tr. 638-639). Ball viewed himself, in some ways, as a de facto mine
superintendent (Tr. 641, 685).

In October 1998, Jackson hired Steve Brown as the actual superintendent of the Pollyanna
No. 8 Mine (Tr. 532, 640 ). Until then, Ball believed that he was "pretty much running [the]
mine" (Tr. 640). However, Jackson wanted more coal cut, so Jackson brought Brown in to make
the mine more productive.
Jackson testified that in addition to his concern about productivity, he was concerned
about the number of alleged violations cited at the mine and about the relationship between mine
and MSHA personnel (Tr. 530). He stated that Brown's "primary focus" was "to try to safely get
production up and ... [to] try to alleviate ... some of the conflict ... between [GCipersonnel]
and MSHA" (Id.). Jackson thought that Brown was very experienced and a good miner (Tr.
528).
When Brown became supervisor, Ball was "moved up" to the position of business unit
manager because Jackson had "some issues with .. . Brown's ability to do . . . administrative
work" (Tr. 535-536). According to Jackson, the change "allow[ed] ... Brown to concentrate on
the underground aspects of the mine, and . .. allow[ed] . . . Ball ... to handle the administrative
. . . [and] other .. . project-related aspects ... of the mine" (Id.). Ball agreed that as a result of
the change Brown ''was handling the underground operations" and he, Ball, "was handling the
surface administrative operations" (Tr. 694, see also Tr. 650, 691-692). In addition, Brown had
authority to hire and fire employees and to authorize pay raises (Tr. 533). In Jackson's view, it
was Brown who had ultimate responsibility for the operation of the mine. Brown was
responsible for implementing mine plans and for overseeing mining (Tr. 555). Jackson did not
give Brown directives (Tr. 533). However, when it came to health and safety, Jackson agreed
that it was not entirely clear who was responsible (Tr. 555, 558). The legal identity report that
Jackson signed on behalf of the company identified both Ball and Brown as "Person[s] with
Overall Responsibility for a Health and Safety Program at All of the Operator's Mines" (Tr. 555,

1353

558, 560; Resp. Exh. 1).

After Brown became the superintendent, production increased. However, Brown's
relationship with the miners was far from smooth. Jackson heard that Brown was abrupt and
rough. Brown denied the allegations, but the rumors continued to come to Jackson's attention
(Tr. 529, 534).
Shortly after November 3, 1998, Brown was demoted to section foreman, and Ball was
assigned to act as superintendent (Tr. 691). A few weeks thereafter, Brown was formally warned
about the way he related to other employees. Brown's problems with the miners continued and
early in 1999, Brown was fired (Tr. 687-688; Resp. Exh. 15, Resp. Exh. 16). Ball signed
Brown's warning and separation notices (Tr. 689, 691; Resp. Exh. 15, Resp. Exh. 16).

THE NOVEMBER 3, INSPECTION
On the evening of November 3, 1998, MSHA inspectors arrived at the Pollyanna No. 8
Mine. Among the inspectors was Fred Marietti. Brown and Ball were not at the mine. They had
left for the day and gone home. How~ver, Jackson stopped by the mine on his way home from
the GCI office. The MSHA authorities told Jackson "they had come to the miile to conduct an
inspection. Jackson wanted a GCI management official at the mine during the inspection. Since
Brown was coming back to the mine at 4:00 a.m. the next morning, he decided that Ball should
"cover" until Brown returned (Tr. 549). Jackson called Ball and asked him to return to the mine
(Tr. 549, 655). Jackson especially wanted Ball present because Ball had worked with Jackson on
submitting a request to MSHA to approve taking 30-foot cuts during advance mining. Jackson
stated he knew "that the 30-foot cuts were going to be an issue" (Tr. 549, 563, see also Tr. 551552).4
It was Inspector Marietti's first visit to the mine (Tr. 53). Prior to arriving, Marietti was
told to be on the lookout fofl:xtended cuts and inadequate ventilation (Tr. 27). When he got to
the mine, Marietti was joined by MSHA inspection supervisors, Art Gore and Gary Jones, and by
4

Early in 1998, Ball drafted a proposal to allow continuous mining machines (continuous miners or
miners) to take 30-foot cuts. The company submitted the plan to MSHA for approval (Tr. 652). According to Ball,
sometime between August and September 1998, Jackson went to the MSHA District Office in Denver to discuss the
plan. MSHA approved a restricted version of the plan that allowed the company to take 30-foot cuts, but only
during retreat mining. The company then sought specific approval to take 30-foot cuts during advance mining (Tr.
543-544). ·MSHA responded by allowing the cuts on a temporary basis in the presence of an MSHA technical
inspector (Tr. 544). The agency never gave unrestricted approval for 30-foot cuts.

1354

MSHA inspector Earl Simmons (Tr. 53). On November 3, th~re were approximately nine
persons working underground and one person working on the surface (Tr. 25, 27).
After Marietti changed his clothing, he and Simmons proceeded underground (Tr. 54).
They traveled to the 001 section. They proceeded to the No. 1 and the No. 2 entries, then to the
No. 3 entry where mining was underway. There, Simmons and Marietti observed conditions that
lead Simmons to issue all but one of the citations and orders that are contested in the individual
civil penalty proceedings (Tr. 56).

THE DECEMBER 4, INSPECTION
On December 4, 1998, Jon.es returned to the mine to finish the November 3, inspection
(Tr. 274). As an inspector, Jones was required to issue a citation or order whenever he observed
what he believed to be a violation of the Act or the regulations. Jones traveled to the 001 section
where active mining was taking place. He walked into the area between the No. 5 and No. 6
cross cuts. There, Jones observed conditions that lead him to cite the remaining violation that is
at issue in the individual civil penalty proceedings.

MSHA'S DECISION TO CHARGE THE INDIVIDUAL RESPONDENTS WITH
SECTION llO(c) LIABILITY
In late February or early March 1999, MSHA assigned Inspector Danny Vetter to further
investigate the citations and orders that were issued in November and December 1998, and to
recommend whether any individuals should be held liable personally for the alleged violations.
Vetter traveled from his Colorado office to Oklahoma where he spoke with miners who worked
at the Pollyanna No. 8 Mine.
As part of the investigation, Vetter attempted to determine the persons who were in
charge at the mine. One ofthe first persons he interviewed was Danny Hill, the continuous
miner operator on the November 3 and December 4, evening shifts (Tr. 306). In addition to Hill,
Vetter also interviewed Jarnes Smedley. Vetter testified that Smedley identified himself as the
evening shift foreman and supervisor (Tr. 312-313). Vetter also spoke with Kenneth Clark who
Vetter believed was the foreman of the afternoon shift- the shift prior to Smedley' s. Vetter did
not speak with Tim Ball (Tr. 308-310), but Vetter testified that his investigation revealed that
Ball was one of those "calling the shots" at the mine (Tr. 313). This was confirmed by many of
the hourly employees to whom Vetter spoke (Id.). Vetter acknowledged that positions and titles
at a mine change frequently. Therefore, what Vetter looked for was whether the miners regarded
a persori' as having supervisory authority and whether that person actually had some control over
the operation of the mine (Tr. 314, 484). In Vetter's opinion, Ball met these criteria (Tr. 485).
As a result of the investigation, Vetter recommended that Smedley, Clark and Ball be
charged with individual liability for knowing violations of the regulations (Tr. 481 ).

1355

ALLEGATIONS OF VIOLATIONS AND §llO(c) LIABILITY
CITATION/ORDER NO.
4715067

DATE
1113/98

30 C.F.R.§
75.370(a)(l)

Order No. 4715067, which was issued pursuant to section 104(d) of the Act, states:
The operator failed to comply with page 8, of the Ventilation Plan
approved 9/30/98 in that 3,000 cfm of air was not maintained
where the roof bolting machine was installing roof bolts in the No.
3 entry left cross cut on the 001 MMU. No air movement could be
detected at the roof bolter when checked with an anemometer. The
line brattice was observed not properly installed. 0.6% of methane
was detected where the roof bolter was observed drilling (Gov.
Exh. I).
At approximately 10: 11 p.m., Marietti saw a roof-bolting machine in the No. 3
entry, left cross cut. Tim Sisco, operator of the machine, was beginning to install roof bolts (Tr.
63, 81, 83). In addition, Marietti observed a continuous miner operated in the entry. The miner
was backing out of a cross cut (Tr. 83-84). Danny Hill was operating the miner (Tr. 63-64). As
best Marietti could recall, Smedley was the only supervisory person on duty during the shift (Tr.48).
Marietti approached the roof-bolting machine. He checked the velocity of air at the
machine with an anemometer. The mine ventilation plan required a velocity of at least 3,000
cubic feet per minute (c:fm) to flow over the machine (see Tr. 32, 37, 59; Gov. Exh. 17 at 17).
Marietti' s anemometer detected no air movement. The lack of ventilation was due to the fact
that a line brattice was dislodged (Tr. 35). Although the brattice should have extended on a
diagonal across the No. 3 entry, 16-feet of it had fallen to the floor (Tr. 35, 41, 47-48; Gov. Exh.
12) where part of it was "kind of rolled up in a ball", crumpled, and "covered with muck and mud
and coal" (Tr. 51 , 317, see also Tr. 45, 319; Gov. Exh. 12). The fallen brattice was obvious (Tr.
41).
The mine had a history of liberating methane. In fact, Hill told Marietti when coal was
cut at the mine, "a lot" of methane was liberated (Tr. 63). Marietti checked the atmosphere
around tlie roof-bolting machine and found .6 % methane (Tr. 61). This was not an excessive
amount of methane, but there was no ventilation to remove it nor to remove any subsequently
liberated methane (tr. 61). Marietti believed without ventilation there was a danger the methane
would accumulate and reach the point where it would ignite (Tr. 38). Smedley also thought this
was possible (Tr. 724). An ignition source for the methane could be the arcs and sparks that

1356

sometimes resulted during roof bolting (Tr. 38). Also, the ro9f-bolting machine had electrical
components and the machine's trailing cable carried electricity (Id., 60). An ignition could be
fatal to miners (Tr. 39). Marietti also feared that dust from drilling the roof could present a
respirable health hazard since there was no ventilation (Tr. 37-38).
Seven miners who worked in close proximity to one another in the entry, were exposed to
the hazards (Tr. 38-39). Furthermore, Marietti believed the lack of ventilation was a significant
and substantial contribution to a mine safety hazard (S&S) because as mining continued without
ventilation, an ignition was reasonably likely to occur (Id.).
Marietti found the violation was caused by Gers unwarrantable failure to comply with
its ventilation plan. Sisco and Hill told Marietti that Smedley had been on the section, in the
vicinity of the roof-bolting machine, shortly before Marietti arrived (Tr. 49). Sisco said that
Smedley told him the entry was ready for mining and that he should begin roof bolting (Tr. 41 ).
Vetter testified that four or five months later when he too spoke with Sisco, Sisco's story had not
changed. Sisco told Vetter that Smedley said "everything's fine, I took the gas check, just go in
and [roof] bolt" (Tr. 316, see also Tr. 318, 322, 339). However, everything was not "fine".
There was no ventilation.
Marietti believed Smedley should have known from seeing the fallen brattice that there
was inadequate air at the roof-bolting machine (Tr. 44). Indeed, since the ventilation
requirements of the plan could not be met without a properly installed line brattice, Marietti was
certain that Smedley knew the ventilation was inadequate. Marietti also believed that the brattice
was allowed to remain down on purpose so the roof-bolting machine could be operated in the left
cross cut while at the same time the continuous miner could be operated in the opposite cross cut.
Hill told Marietti this was what actually happened (Id., Tr. 316-317).
Smedley responded that when the inspectors arrived he was working in a different entry
- approximately 200 feet from the No. 3 entry. He maintained he never saw the brattice on the
mine floor and did not know about the lack of ventilation at the roof-bolting machine until after
the.condition was cited (Tr.-705-706). Smedley asserted that he had been in the entry prior to the
roof bolter moving into the left cross cut. At that time the brattice was properly installed (Tr.
720-721; see Gov. Exh 12. ). Smedley pointed out that the continuous miner could have tore
down the line brattice after he left the area (Tr. 727, 733).5
Smedley stated that he was not always present while the continuous miner machine and
the roof-bolting machine were operating (Tr. 728). Moreover, he was the only foreman on the
shift. He had many responsibilities including the training of newly employed and inexperienced
miners (tr. 708). He did not have a full crew on November 3 (Tr. 706). He acknowledged that

5

Although the brattice looked as though it had not been used in «awhile" (Tr. 45), Marietti
acknowledged if it had been pulled down by the continuous miner, it could have become dirty and crumpled in very
little time (Tr. 66-67), and that it could have been tom down after Smedley made his on-shift examination (Tr. 68).

1357

he had not said much to the inspectors when they questioned him about conditions on the section,
but this was because he found the inspectors "very intimidating" (Tr. 726).

THE VIOLATION
Section 75.370(a)(l) requires an operator to "develop and follow a [mine] ventilation plan
approved by the [Secretary]" (30 C.F.R. §75.370(a)(l)). Once the plan is approved and adopted
its provisions are enforceable as mandatory standards (Freeman United Coal Mining Co., 11
FMSHRC 161, 164(February1989),Jim Walter Resources, Inc., 9 FMSHRC 903, 907 (May
1987); see also Zeigler Coal Co. v. Kleppe, 536 'f.2d 398, 409 (D.C. Cir. 1976)). Here, the
approved and adopted plan required a minimum quantity of 3,000 cfm of.air to pass by the roofbolting machine while the machine was operating (Tr. 32, 37, 59; Gov. Exh. 17 at 17). Marietti's
testimony that he attempted to measure the air and was not able to detect any movement was not
refuted (Tr. 35). The violation existed as charged.

·

GRAVITY AND S&S

The hazards posed by the violation-those of a dangerous methane build up and/or of
exposure to respirable dust-were described by Marietti. It is true that Marietti measured only
.6% methane. However, without ventilation the quantity-of methane reasonably could have been
expected to increase. All of the witnesses agreed that the Pollyanna No. 8 Mine liberated
methane, and Marietti 's testimony that be was told it liberated "''a lot" of methane was not
disputed (Tr. 63). Moreover, the testimony established that several potential ignition sources
were present. The act of drilling into the roof could have resulted in arcs and sparks, and the
roof-bolting machine itself had electrical components which could have malfunctioned (Tr. 60).
Ignition of the methane could have caused Sisco's death or serious injury. It also could have ·
endanger the other miners working on the section.
The explosion hazard was augmented by the fact that without perceptible air movement,
respirable dust created by the drilling could not escape (Tr. 37-38). While this hazard was not as
immediate as that posed by a build up of methane, it nevertheless contributed to the overall
danger caused by failing to comply with the approved ventilation plan.

In addition to being very serious, the violation was S&S. 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 (Ap~l 1981)). In Mathies Coal Co., 6 FMSHRC 1,_3-4 (January 1984), the
Commission explained:
1358

In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum the Secretary must prove:
( l) 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 nat:ure. (See also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-104
(5th Cir. 1988), affg 9 FMSHRC 2015, 2021(December1987) (approving Mathies
criteria)).
The third element of the Mathies formula requires the Secretary to establish a reasonable
likelihood that the hazard contributed to will result in an event in which there is an injury (US.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984)). The likelihood of such injury must be
evaluated in terms of continued normal mining operations without any assumptions as to
abatement (U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574(July1984); see also Halfway,
Inc., 8 FMSHRC 8, 12(January1986); Southern Ohio Coal Co., 13 FMSHRC 912, 916-17 (June
1991)).
The Secretary's proof satisfies all of the elements of Mathies. There was an underlying
violation of section 75..370(a)(l). The violation contributed to the hazard of methane
accumulating in the atmosphere around the roof-bolting machine operator. As mining and roof
bolting continued there was a reasonable likelihood that methane would reach dangerous levels
given the total lack of ventilation and the propensity of the mine to liberate methane. No one
disagreed with Marietti that the roof-bolting machine had electrical components that could arc or
spark and that the very act of drilling into the roof could produce sparks (Tr. 38, 60). If methane
accumulated due to the lack ofventili}tion and an explosion resulted, it was reasonably likely that
Sisco and perhaps the other miners on the section would have been seriously burned or even
killed.

NEGLIGENCE AND UNWARRANTABLE FAILURE
Negligence is the failure to exercise the care due under the circumstances. Smedley, the
section supervisor, was responsible for making sure there was compliance with the ventilation
plan. The plan required a minimum of 3,000 cfm of air at the roof-bolting machine. Therefore,
Smedley was required to ensure that the air velocity met the requirement.
Smedley testified that when mining was taking place in the No. 3 entry, he was working
about 200-feet away; and that he was not always present when the continuous miner and the roofbolting machine were operating (Tr. 706-708). He also maintained that he had other
responsibilities requiring his presence and attention (Tr. 728). I have no doubt all of this is true,

1359

but it is beside the point. The other duties and the demands on his time did not divest Smedley of
responsibility. Rather, supervisors are held to a higher standard of care because of their many
responsibilities.
Smedley knew that coal Was being cut and the roof was being bolted in the No. 3 entry.
Smedley also knew that the mine liberated methane. While these operations were on-going,
Smedley should have determined whether there was adequate ventilation as specified in the plan.
There is no indication he did. In failing to ensure compliance with the plan while roof bolting
and mining were talcing place, Smedley, and through Smedley, GCI, failed :to meet the standard
of care required. Therefore, I conclude GCI was negligent.
In Emery Mining Corp., 9 FMSHRC 1997 (December 1987), the Commission determined
that unwarrantable failure is aggravated conduct constituting more than ordinary negligence (9
FMSHRC at 2001). The Commission stated the conduct is characterized by "reckless disregard",
"intentional misconduct", "indifference", or a "serious lack of reasonable care" (9 FMSHRC at
2003-04; Consolidation Coal Co., 22 FMSHRC 340, 353 (March 2000) see also Buck Creek Co.
Inc. v. FMSHRC, 52 F.3d 136(7th Cir. 1995) (approving Commission' s unwarrantable failure
test)). ·
Whether conduct is "aggravated" in the context of unwarrantable failure is determined by
looking at all of the facts and circumstances of the case. Factors that maybe indicative of
aggravated conduct include the length of time the violation has existed; whether the violation is
obvious or poses a high degree of danger; whether the operator has been placed on notice that
greater efforts are necessary for compliance; the operator's efforts in abating the violative
condition; and the operator's knowledge of the existence of the violation (see Cyprus Emerald
Resources Corp., 20 FMSHRC 790, 813 (August 1998), rev'd on other grounds, 195 F .3d 42
(D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (January 1997); Mullins & Sons
Coal Co. , 16 FMSHRC 192, 195(February1994); Peabody Coal Co., 14 FMSHRC 1258, 1261
(August 1992); BethEnergy Mines, Inc. , 14 FMSHRC 1232, 1243-44 (August 1992); Quin/and
Coals, Inc., 10 FMSHRC 705,709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July
1984)).
The testimony establishes that the failure to comply with the ventilation plan was caused
by the fact that the line brattice was down. Vetter testified, without dispute, that there was no
way to meet the plan's ventilation requirements without the brattice being in place (Tr. 316-317).
Marietti believed that the fallen brattice was so obvious Smedley should have known there was
inadequate ventilation (Tr. 41). However, although Marietti thought the brattice had been on the
floor for "awhile" (because it was covered with dirt and coal residue) he agreed that it could have
become that way by being pulled down recently by the continuous miner (Tr. 66-67). Moreover,
he admitted it could have been pulled down after Smedley visited the area (Tr. 68).
This is exactly what Smedley said happened. He was adamant that the brattice was in
place when he was in the area. Further, Smedley was not contradicted when he testified that the

1360

continuous miner was configured in such a way Hill might not have known if the machine tore
down the brattice (Tr. 727, 733). If Smedley did not visit the entry after the brattice was tom
down, then he would not have known of the situation. Further, if Hill was unaware the brattice
had fallen, then he could not have alerted Smedley to the problem.
The Secretary did not establish the brattice was on the floor when Smedley was in the
entry, and a preponderance of the evidence does not establish that Smedley, and through
Smedley, GCI, was on notice that the violation was in existence a long period of time. The
record does not support finding that Smedley was more than ordinarily negligent in failing to
discover and correct the ventilation deficiency when roof bolting was. taking place. Therefore, I
find that GCI did not unwarrantably fail to comply with section 75.370(a)(l).

SMEDLEY'S llO(Cl LIABILITY
The proper inquiry for determining liability under section 110(c) is whether the corporate
agent knew or had reason to know of the violative condition (Kenny Richardson, 3 FMSHRC 8,
16(January1981), aff'd on other grounds, 689 F.2d 632 {6 1~ Cir. 1982, cert. denied 461 U.S. 928
(1983); accord Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362-362 (D.C. Cir.
1997)). To establish l lO(c) liability the Secretary must prove only that the individual knowingly
acted, not that the individual knowingly violated the law (Warren Steen Constr., Inc., 14
FMSHRC 1125, 1131(July1992)(citing United States v. Jnt'l. Minerals & Chem. Corp., 402
U.S. 558, 563 (1971)). An individual acts knowingly where he is "in a position to protect
employee safety and health [and] fails to act on the basis of information that gives him
knowledge or reason to know of the existence of a violative condition" (Kenny Richardson, 3
FMSHRC at 16). Moreover, section 110(c) liability is predicated on aggravated conduct
constituting more than ordinary negligence (Target Industries, Inc., 23 FMSHRC 945, 963
(September 2001)).
Smedley was the se&tion supervisor and therefore an agent of GCI. However, because the
necessary predicate of conduct constituting more than ordinary negligence does not exist,
Smedley is not individually liable for the violation of section 75.370(a)(l).
CITATION/ORDER NO.
4715068

DATE
11/3/98

30 C.F.R.§
75.362(d)(2)

Order No. 4715068, which was issued pursuant to section 104(d) of the Act, states:
The roof bolter operator and the foreman did not do an adequate
on-shift examination in that neither person made the methane test
at the face from under permanent roof support using an extendable
probe or other acceptable means before the roof bolter was brought
into the No. 3 entry left cross cut of the OOlMMU. The roof bolter
1361

was observed bolting roofin this entry. When_questioned by the
.. . (inspector}, the foreman and the roof bolter operator stated that
neither had made the required test at the face. The foreman made a
methane test at the last row of roof bolts according to the foreman,
Vince Smedley, and did not use an extendable probe. The coal
face was-about 20 feet inby the last row of permanent roof support.
0.6% methane was detected when tested by MSHA at the last row
ofroofbolts. This entry was cited on... [Order] No. 4715067 for
not having any ventilation in this entry while roof bolting (Gov.
Exh. 2).
While Marietti was in the left cross cut and after he confirmed there was no ventilation,
he asked Sisco whether methane checks were being made at the face. Sisco replied that he did
not have an extendable probe (Tr. 90, 108). 6 Smedley had a methanometer in his possession, but
the extendable probe was on another roof-bolting machine, approximately 150- to 200-feet from
the No. 3 entry (Id.). Marietti believed that not using a probe to check for methane was a
violation of section 75.362(d)(2), a regulation that in part requires a qualified person to test for
methane "at the face from under permanent roof support, using extendable probes" (Tr. I 08, see
also Tr. 102).
Marietti spoke with Smedley about the situation. Smedley said that he tested for methane
but did not use a probe. Smedley did not say where the test took place (Tr. 100-101). However,
Sisco told Marietti that Smedley took the test at the last row of roof bolts (Tr. 93).
f;ven though there never had been an explosion at the mine (Tr. 103), Marietti believed
failing to take the methane reading at the face with an extendable probe was "highly likely" to
result in conditions leading to one. The lack of ventilation meant that methane could build up
rapidly (see Tr. 90-91, 94). Also, roof bolting activities could result in a spark which in turn
could serve as an ignition source. If a concentration of methane migrated back to the roof bolting
machine and ignited, the explosion could result in a serious burn injury to Sisco or in his death.
Marietti also noted that because the entry recently had been cut, no rock dust was present to
reduce chances that an explosion would propagate throughout the entry (Tr. 96). He stated
"basically this could [have] resulted in a catastrophic accident" in which all of the miners on the
section could have died (Id.) . Without testing at the face, Smedley could not know if methane
had built or was building to a dangerous level (Tr. 102).
Crediting Sisco' s statement that Smedley had checked for methane at the last row of roof
bolts not at the face, Marietti thought it should have been obvious to Smedley that he was
checking.from the wrong location (Tr. 98-99). Smedley was the supervisor. Despite the fact he

6

An extendable probe is a device that allows a person to check for methane from under supported
roof. A methanometer is attached to the end of a pole. A person stands under supported roof and extends the pole
inby to the face where the methanometer records the methane content.

1362

knew or should have known what was required, he did not CO!Jlply (Tr. 101 ). In Marietti' s
opinion, this was aggravated conduct.
Based on his interview with Sisco, Vetter thought that Smedley should be found liable for
the violation (Tr. 336, 340). Vetter noted that when Marietti asked Smedley why he did not take
the test with a probe, Smedley replied that he "just didn' t" (Tr. 340).
Smedley listed several problems he had while running the section - a new haulage
system that frequently stopped; employee absenteeism; and inexperienced miners who required
training. Because of these problems Smedley stated he had delegated the responsibility for
taking the tests to Sisco (Tr. 710). In a mine as small as Pollyanna No. 8, Smedley believed such
a delegation was "fairly normal" (Tr. 711).
THE VIOLATION
Section 75.362(d)(2) requires a qualified person to make tests for methane "at the face
from under permanent roof support, unless extendable probes or other acceptable means are
used". The evidence establishes that the face in the cross cut was located 20-feet inby the last
row of roof supports (Gov. Exh. 2). Therefore, it was impossible for a certified person to
conduct a methane test at the face from under permanent roof support without using an
extendable probe.
An extendable probe was not located in the vicinity of the roof-bolting machine. Marietti
did not see one, and his testimony that he was told it was between 150- to 200-feet away from the
roof-bolting machine was not contradicted (Tr. 108). In addition, Marietti' s testimony that Sisco
admitted he did not check for methane at the face because the probe was unavailable was not
refuted, and I credit it (Tr. 90, 108). I also believe that Smedley told Marietti he took the test but
that he did not use a probe (Tr. 101). Smedley appeared as a witness. Had he taken a test at the
face with a probe, it would have been in his self interest to say so.

Smedley was the supervisor. He was certified to test for methane and he was responsible
for making sure such tests were conducted properly. The evidence establishes that neither
Smedley (nor anyone else) tested for methane "at the face from under permanent roof support" as
required by the standard, and I therefore find that the violation existed as charged.

GRAVITY AND S&S
The violation was very serious and S&S. Because the mine freely liberated methane it
was imp.ortant to make sure the requirements for methane testing were observed. Failing to test
for methane at the face meant that the point where methane was most likely to be liberated was
not checked. As a result, methane could build to dangerous levels without anyone knowing.
Because Sisco was engaged in roof bolting, potential ignition sources were present. An arc or
spark from the act of drilling into the roof or from a defective component of the roof-bolting

1363

machine could ignite the methane if it migrated from the face .outby. An ignition could have lead
to Sisco's serious injury or death, and also could have endangered others on the section.
A potentially explosive methane buildup was reasonably likely to occur. Likelihood must
be viewed in the context of all of the conditions that existed in association with the violationnamely, the fact that there was no measurable ventilation in the area of the roof-bolting machine,
and the fact that the mine freely liberated methane. Without ventilation, methane was reasonably
likely to build and to do so in conjunction with continuing roof bolting activity. A disaster was
likely to ensue.

NEGLIGENCE AND UNWARRANTABLE FAILURE

As the· section supervisor, it was Smedley's duty to ensure a methane test was conducted
at the face. He should have made certain an extendable probe was at or near the roof-bolting
machine, not 150 to 200 feet away (Tr. 108). When he checked for methane he should have used
that probe. Smedley knew of the propensity of the mine to liberate methane. ·Nevertheless, he did
not properly check, nor make sure anyone else did. In failing to ensure the methane check was
properly conducted Smedley, and through Smedley, GCI, was highly negligent.
Moreover, when viewed in the context of other conditions that existed on the section, the
failure to ensure a methane test was conducted at the face represented aggravated conduct. The·
mine's tendency to liberate methane and Sisco's roof bolting activities should have alerted
Smedley to be especially diligent about methane testing because taken together the conditions
created the potential for a very serious accident. Despite Smedley' s assertion that Sisco should
have tested for methane (Tr. 710), it was Smedley, not Sisco, who ultimately was·responsible,
and there is no indication Smedley reacted nor made the least effort to ensure compliance. For
these reasons I conclude thatSmedley, and through Smedley, GCI, unwarrantably failed to
comply with section 75.362(d)(2).

SMEDLEY'S §llO(c) LIABILITY

Smedley, the supervisor and agent of GCI, failed to ensure the test was conducted
properly despite the fact he knew the mine had a propensity to liberate methane, and despite the
fact he knew Sisco was engaging in roof bolting. His failure to make sure the test was properly
conducted, combined with what he knew about the mine and what he knew or should have
known about the conditions on the section, means that his negligence was more than ordinary
and that he was responsible for a knowing violation of section 75.362(d)(2).
CITATION/ORDER NO.

DATE

1364

30 C.F.R.§

4715083

11/3/98

75.342(c)

The citation, which was issued pursuant to section 104(d) of the Act, states in part:
The methane monitor on the 2G Long Airdox mining machine was
not being maintained as required. The monitor was tested with a
2.5 % known calibration mixture of methane and it would not go
up to 1·%. The wet coal fines were cleaned from the sensor head
and the methane applied and it went up to 1.3% and the machine
did not de-energize automatically as required. There was 1.1 to
1.4% CH4 tested with a calibrated hand-held methanometer when
the machine had been cutting in the No. 3 entry and right cross cut
and was just backing out when observed. The methane monitor
had not been calibrated since 09/22/98 (Gov. Exh. 3).
Section 75.342(c) requires a methane monitor on a continuous miner to "automatically
deenergize electric equipment ... when - (1) The methane concentration at any methane
monitor reaches 2.0 percent; or (2) The monitor is not operating properly". Marietti
maintained the monitor on the continuous miner was not operating properly. Methane could not
enter the monitor's sensors because "the sensor head [of the monitor] was plugged with coal"
(Tr. 114). Moreover, when the sensor head was unplugged and a known 2.5% concentration of
methane was applied to the sensor, the monitor showed a concentration of 1.3% and the
continuous miner did not shut down (Id.).
Hill, the continuous miner operator, had backed the machine out of the right cross cut (Tr.
134). Hill told Marietti that a rock had hit the monitor when the machine was making a cut (Tr.
114). Marietti estimated this occurred 20 to 25 minutes before Hill backed out of the cross cut
(Id., Tr. 115). He speculated that the monitor was "smashed down" into accumulated coal and
that the monitor's methane sensors became clogged (Id.).

In Marietti's view, the condition of the monitor was hazardous to all of the miners on the
section. As the continuous miner cut coal, methane undoubtedly was liberated. Because the
machine did not deenergize automatically as required when methane reached 2.0%, the
machine's electrical components presented an ignition source for the methane. The combination
could have lead to an explosion causing serious injuries, even deaths (Tr. 115-117). Further, as
mining continued Marietti believed an explosion was highly likely (Tr. 116). 7
While Marietti agreed that Hill might not have known the methane monitor was damaged
7

Marietti also found that the explosive hazard combined with other conditions affecting the
continuous miner created an imminent danger and he issued an order withdrawing the continuous miner from
service (Gov. Exh. 27; Tr. 122, 124). The other conditions affecting the miner were pennissibility violations;
accumulations of combustible materials "all over the machine" (Tr. 129); and the fact that the fire suppression
system on the miner was not operating at full capacity (Tr. 121, 124-125). GCI did not contest the order.

1365

when it first was struck by the rock (Tr. 129-130), he believeq that both Hill and Smedley
subsequently knew. Hill told Marietti that he discussed the condition of the monitor with
Smedley; that they determined the monitor "wasn't a problem"; and that Hill should continue
mining (Tr. 117, 120). Marietti testified he asked Smedley about this conversation and that
Smedley replied he "didn't know anything about it" (Id., 128). However, Marietti believed Hill
and accepted as fact that Smedley had told Hill "to go on mining." (Tr. 120-121, 127-128). In
Marietti's view, Smedley should have had Hill shut down the continuous miner and repair the
monitor (Tr. 120).
For his part, Smedley maintained that he knew nothing about the condition of the
methane monitor until after the alleged violation was cited (Tr. 712). The monitor is located on
the right side of the continuous miner. It is not readily visible to the continuous miner operator
(Tr. 714). Because of its out-of-the-way location, Hill normally would not find the damaged
methane monitor until after he finished cutting and was moving to a new location (Tr. 715).
Vetter believed that Smedley should be held responsible for a "knowing" violation of the
Act. Vetter based his opinion on Marietti 's notes which indicated Hill told Marietti that he and
Smedley discussed the fact that the monitor had been damaged but that Smedley said to go ahead
and operate the continuous miner (Tr. 329). In addition, Vetter believed Smedley should have
seen the damaged monitor because it was dangling by its wires (Id.).

THE VIOLATION
Marietti's testimony regarding the condition in which he found the methane monitor was
unrebutted. The methane monitor was clogged with coal fines. Methane could not fully register
at the sensor heads (Tr. 114). If the methane content of the atmosphere could not register
accurately, then the monitor could not "automatically deenergize ... when ... [t]he methane
content reache[d] 2.0 percent'', and the monitor was "not operating properly". The condition
violated section 75 .342(c).

GRAVITY AND S&S
The violation was both very serious and S&S. As has been frequently noted, the mine
tended freely to liberate methane. In fact, a test was conducted and it was found that Hill had
been cutting coal in a methane concentration of 1.1 to 1.4 percent (Gov. Exh. 2; Tr. 112). While
this methane Jevel was not itself hazardous, methane liberation could have continued in the
presence ·of the energized continuous miner. Had an ignition occurred, it easily could have
seriously injured or killed Hill and perhaps others on the section.
.
.
Moreover, there was a reasonable likelihood of an accident. The possibility of an
explosion caused by the failure to deenergize the .monitor must be viewed in the context of all of

1366

the conditions that existed in association with the violation. Methane liberation was common
and could be expected to continue. Moreover, there was an actual potential ignition source
present in that permissibility violations on the continuous miner would have allowed
accumulated methane to seep into the continuous miner's electrical components where an arc or
spark could have ignited the gas (Gov. Exh. 27 at 2).

NEGLIGENCE AND UNWARRANTABLE FAILURE
It was Smedley's duty as the section supervisor to make sure the methane monitor was
operating properly. Smedley knew that the mine had a propensity to liberate methane and that
Hill was mining in the cross cut. The continuous miner had to be examined before it began
operating. Smedley, therefore, knew or should have known that half of the water sprays of the
continuous miner's fire-suppression system were not working and that the continuous miner
contained permissibility violations (Gov. Exh. 27). These conditions made it all the more
important that the machine's methane monitor function properly when coal was cut. Smedley's
failure to detect and correct the condition of the monitor reflected his failure to exercise the care
required by the circumstances and established his and GCl's negligence.

However, Smedley and the company did not unwarrantably failed to comply with section
75.342(c). The Secretary's contention that their negligence was more than ordinary rests upon
what Marietti recalled he was told by Hill - that Hill advised Smedley of the condition of the
monitor and that Smedley told him to continue mining (Tr. 117, 120). .
Hill was not called to testify by the Secretary. This left Smedley in the position of
refuting what Hill supposedly told Marietti by cross examining Marietti. The Secretary, who
bore the burden of proof, offered no explanation as to why Hill did not appear as a witness.
Smedley contended that prior to the citation of the violation he did not know anything about a
conversation with Hill regarding the condition of the monitor (Tr. 128), and that he learned about
and discussed with Hill the_condition of the monitor only after the citation of the violation (Tr.
712). This was neither inherently improbable nor unbelievable. The monitor was not located in
an area of the continuous miner where it was readily visible. The rock damaged the monitor only
20 to 25 minutes before Marietti observed the violation (Tr. 114-115). If Hill did not learn about
the condition of the monitor until after the violation was cited, there is no reason Smedley should
have told Hill to continue mining despite the monitor's inability to function properly. Under
these circumstances I cannot find the out-of-court statement of non-witness Hill established that
Smedley exhibited an inexcusable and unjustifiable lack of care. In other words, on the basis of
the existing record, I cannot find that Smedley's lack of care rose to the level of unwarrantable
failure. ·-

SMEDLEY'S llO(C) LIABILITY

1367

As has been previously noted section I I O(c) liability i~ predicated on aggravated conduct
constituting more than ordinary negligence (Target Industries, Inc., 23 FMSHRC at 945). Here,
that necessary predicate does not exist.
CITATION/ORDER NO.
4896090

DATE
11/3/98

30 C.F.R.§
75.220(a)(l)

Citation No. 4896090, which was issued pursuant to section 104(d) of the Act, states in
pertinent part:
The approved roof control plan dated Mar[ch] 8, [ 19]96 is not
being followed. [A d]eep cut measuring approximately 30 feet. ..
is present in the No. 3 entry inby [cross]cut 32 off West mains. The
roof control plan states on page 12 that only 20 feet is maximum
depth . .. [The f]oreman was present on section and should have
known that deep cuts were being taken (Gov. Exh. 4).

On November 3, Marietti and Simmons arrived in the No. 3 entry around 9:30 p.m. At
that time advance mining was taking place (Tr. 163). Marietti and Simmons noticed a large area
of unsupported roof that appeared to exceed 20-feet in length (Tr. 138-139, 148). The approved
roof control plan limited a cut to 20-feet. Marietti and Simm:ons believed that the unsupported
area was cut near the beginning ofSmedley's shift (Tr. 148). Smedley was not present in the No.
3 entry when the inspectors first arrived. He appeared shortly thereafter (Tr. 156).
At first, Marietti and Simmons tried to measure the cut by throwing a tape measure into
the unsupported area. The measurements were inaccurate, so the inspectors waited until the roof
was bolted and they measured again (Tr. 139). They found that the cut measured approximately
30-feet in length (Tr. 146-147; Gov. Exh. 12). Simmons issued Citation No. 4896090 to ·
Smedley, charging GCI with_violating the roof control plan (Tr. 160-161, 421-422; Gov. Exh. 18
at 35).
Marietti spoke with the continuous miner operator, Hill, who confirmed that he had in
fact been making 30-foot cuts (Tr. 159, see also Tr. 347). Marietti remembered Hill saying that
Smedley had been in the No. 3 entry "most of the time they were making the cuts" (Id.). Hill
said that Smedley left the entry just before Marietti and Simmons arrived (Id., Tr. 167).
Marietti understood that prior to November 3, GCI requested MSHA to approve 30-foot
cuts during advanced mining, but that MSHA authorized them only for a limited time and only
when MSHA personnel were present (Tr 140-145, 170; Gov. Exh. 18 at 1, Gov. Exh. 28).
Before MSHA would give the kind of approval GCI sought-unrestricted approval-the agency
wanted to evaluate the mine' s ventilation plan and be certain there was adequate ventilation to

1368

keep extended cut areas free of methane (Tr. 146-147). 8
It was obvious to Marietti that extended cuts might lead to ventilation that was inadequate
to dilute and render harmless methane (147-148). As Marietti stated, "[T]he longer the cut[,] the
stronger the air current you need to ventilate [the] cut" (Tr. 148). It also was obvious to Marietti
that extended cuts created a roof-fall hazard. The more unsupported roof, the more likely the
roof was to collapse. If the roof fell, it would endanger Hill and the fall could carry over the last
inby row of roof bolts.endangering miners working outby (Tr. 148). All of the miners reasonably
could be expected to suffer concussions, broken bones, internal injuries, or death (Tr. 150).

As supervisor, Smedley was required to conduct examinations of the area. To Marietti
the extended cut was "very obvious" and he thought Smedley should have observed it during his
examinations (Tr. 151-152). Marietti maintained he asked Smedley why the continuous miner
operator was taking 30-foot cuts, but Smedley did not reply (Tr. 153). To Marietti "it was
obvious that .. . Smedley knew or should have known that [the] 30-foot cuts were ... made" (Tr.
158).
Marietti further concluded that Smedley and Ball shared responsibility. Although Ball
claimed he had not been in the area of the cut and was unaware of it until he joined the inspectors
(Tr. 659), Marietti did not consider Ball's actual knowledge to be determinative. Rather, he
focused on Ball's responsibilities. Marietti believed that Ball was both the mine's safety
coordinator and its functioning superintendent. Marietti noted Ball was listed on the mine's legal
identity report as a "person ... in Charge and Health and Safety" (Tr. 202-203, 485; Resp. Exh.
1). Further, Marietti knew that in April 1998, Ball sent GCI' s ventilation plan to MSHA for
approval, which indicated to Marietti that Ball was acting on behalf of mine management (Tr.
213; Gov. Exh. 17 at 2). Ball was responsible for making certain everything possible was done
to encourage compliance with the approved plan.
Vetter agreed with Marietti about Smedley's and Ball's responsibilities for the extended
cut. Vetter testified that Si~co told him Smedley was in the area of the cut A mobile bridge
conveyor operator also said-that Smedley went to the area while mining was taking place (Tr.
343-345), and this was reiterated by a second mobile bridge conveyor operator (Tr. 347).
Finally, although Hill initially told Vetter he could not recall Smedley being in the area, during a
subsequent interview Hill said if he told Marietti and Simmons that Smedley was in the area,
then Smedley was there (Tr. 348).
Vetter thought that when determining whether an individual was responsible it was
important to examine the person's actual and perceived authority (Tr. 449-451). Like Marietti,

8

Marietti noted that the agency was concerned because in the past it had found problems with the
ability of the ventilation system to keep 30-foot cuts methane free. During one MSHA supervised test up to 5%
methane was recorded, and in all tests at least I% methane was found (Tr. 172).

1369

Vetter believed that Ball had authority to act on behalf of GCI. Vetter interviewed rank-and-file
miners who told Vetter that Ball "had the most day-to-day authority over the [mine]" (Tr. 403 ).
In fact, Sinedley and Hill told him that they reported to Ball (Tr. 404, see also Tr. 460).

In addition, Keith Springer, a mobile bridge conveyor operator who worked on Smedley's
crew, told Vetter that approximately two weeks before the inspection, MSHA and the company
conducted a test to determine whether roof and ventilation conditions would permit 30-foot cuts
(Tr. 397, 416; see Gov.. Exh. 16 at 1). The test extended over several days. While it was ongoing
MSHA allowed 30-foot cuts to be made at the mine, but restricted them to a specific test area and
permission to make the cuts terminated with the test (Tr. 417, 424). Springer told Vetter that
despite the fact that the test ended without approval, Ball told the miners they could continue
making 30-foot cuts (Tr. 397-398, 416) and that it became "normal rather than abnormal" to
make them (Tr. 399) ..
The practice of routinely making 30-foot cuts also was described by Jeff Tripp, Springer's
brother-in-law and a mobile bridge conveyor operator. He told Vetter that "it was general
knowledge around the mine, and supported by management including ... Smedley and
. . . Ball, that a 30-foot cut plan was approved" (Tr. 401).

Neither Springer nor Tripp appeared as a witnesses for the Secretary (Tr. 439, 400). Both
are sons-in-law ofBrown. Counsel for GCI maintained that theiriStatements were "possibly
biased [against] . . .Ball" (Tr. 681). Vetter recognized Springer and Tripp might have an interest
in making Ball appear responsible (Tr. 442, 455) in that not only are they related to Brown, but
they knew that Ball terminated Brown's employment with GCI {Tr. 677, 679). However, Vetter
noted that disinterested miners also told him much the same things as Springer and Tripp. For
example, John Bear, a mobile bridge conveyor operator, said that Ball told " all of us that the
[roof control] plan had been __approved .. . [and] for us to start making 30-foot cuts" (Tr. 412) and
that after this, it became "normal" to make 30-foot cuts {Tr. 413). Vetter also testified that
Darrell Cash, the afternoon continuous miner day-shift operator, said that Ball told the miners
that approval of 30-foot cuts was "in the mail" and that miners should "start taking the 30-foot
cuts" (Tr. 414). Jn so doing they should "experiment with the top and see if it . . . [would] hold
up" (Id.). Finally, John Davis, a roof bolter, said that Ball "told everybody 30-foot cuts were
approved and to take the cuts" (Tr. 415).

THE VIOLATION
Section 75.220(a)(l) requires each mine operator to "develop and follow a[n approved]
roof control plan". The roof control plan that was in effect on November 3, 1998, limited "cuts
into the coal face . .. a maximum distance of20-feet inby the last full row of permanent roof

1370

supports" (Gov. Exh. 18 at 35). The citation charges GCI with talcing a cut of 30-feet in the No.
3 entry (Gov. Exh. 4). Marietti's testimony that the inspectors measured the cut after the
unsupported area was roof bolted and that they found the area to be 30-feet in length was not
disputed by GCI (Tr. 146-147;_Gov. Exh. 12). The testimony confirms that the violation existed
as charged.

GRAVITY AND S&S
The violation was both very serious and S&S. Marietti was articulate regarding the dual
hazards posed by the violation. Advancing the face beyond the approved limit of 20 feet could
mean that the ventilatio~ would be inadequate to carry away methane liberated .while the coal
was cut and that methane could accumulate rapidly to dangerous levels (Tr. 147-148). Also,
extending the cut to 30-feet could mean the area of exposed, unsupported roof"wouldn't support
itself' (Tr. 147). If the roof fell, then serious. injury or death was likely to result (Tr. 150). Both
of the dangers were actual. Both of them endangered Hill and other miners on the section.
Either of the hazards was enough to malce the violation very serious.
Management personnel knew that effective ventilation and roof control were essential to
safety. They did not know the effects of extending by 10-feet the normal and approved cut. By
foregoing approved ventilation and roof control to gambling on the unknown, the personnel

engaged in a practice that was so potentially risky, its result must be found to have been
reasonably likely to contribute to an injury causing methane ignition and/or roof-fall, and this
was especially true in the Pollyanna No. 8 Mine, where methane liberation was common.

NEGLIGENCE AND UNWARRANTABLE FAILURE
~

Gers efforts to obtain approval from MSHA to extend cuts to 30-feet provide a telling
backdrop to the violation. Since at least August 1998, GCI had tried without success to get
approval for such cuts during advance mining (Tr. 543-544). Less than two weeks before
November 3, MSHA's on-site investigation of GCI's extended cut proposal ended without such
approval (Tr. 417, 424). It is simply inconceivable that GCI was under the impression that talcing
extended cuts during advance mining was permissible.
Therefore, as mining advanced, GCI should have been alert to the need to talce only 20foot cuts. The evidence establishes that GCI was far from alert.. The extended cut at the face in
the No. 3 entry and the other extended cuts that existed on the section (and which will be
discussed subsequently) easily support the inference that GCI was not exercising the care
required to ensure compliance with its roof control plan. Rather, when it came to extended cuts,
GCI was highly negligent.
1371

The evidence also establishes that GCI, through Smedley,
unwarrantable
failed to comply
.
.
with section 75.220(a)(l). While there is no way to know from the record exactly when the
violative cut was made, vis-a-vis Smedley's on-shift examination (see e.g. Tr. 184), the
testimony is more than adequate to conclude that Smedley either was aware of the cited extended
cut and ignored it or was more than ordinarily negligent in failing to recognize the cut.
Because it is logical and usual for a section supervisor to visit an area that is being mined
under his direction and to do so repeatedly while mining was taking place, I credit the statements
the miners made to Marietti and Vetter that Smedley was present when most of the cuts were
made and that he left just before the inspectors arrived (Tr. 159-157, 167). The reports of his
presence are fully consistent with his duties and are entitled to belief. It follows, therefore, that
Smedley almost certainly was·present when the subject cited cut was made or right after it was
made. As a result, Smedley either knew or should have known of the cut (Tr. 167). In addition,
Smedley either knew or should have kno'Wn that the extended cut was not approved. He was the
section supervisor and it was his responsibility to be aware of the provisions of the roof control
plan. Either by purposeful inaction or by seriously neglectful inattention, he allowed a violation
that posed a very real threat of injury or death to Hill. His conduct, and through him GCI' s
conduct, was unwarrantable.
I also conclude that Ball was more than ordinarily negligent. Five different miners, three

of whom had no apparent interest in discrediting Ball, told Vetter that Ball misinformed them
that a 30-foot cut plan had been approved and that "they should continue making the 30-foot
cuts" (Tr. 398, see also Tr. 397, 399, 401, 412-416). Based on these reported consistent
statements-especially those of the apparently disinterested miners- it is reasonable to conclude
that Ball mislead miners into thinking the practice was permissible, and that he encouraged them
to make the cuts (Tr. 399-400). Although the record does not establish that Ball knew of the
cited extended cut until it was pointed out to him by the inspectors- this is not critical. Ball's
culpability stems from the fact that the violation arose from misinformation he provided miners
about the roof control plan and from his encouragement of extended cuts. Ball's actions, and
therefore GCI' s, were more .than ordinarily negligent.

SMEDLEY'S AND BALL'S llO(C) LIABILITY
The Secretary charges Smedley and Ball with a knowing violation of section
75.220(a)(l). To find that the Secretary has proven her case, I must find that Smedley and Ball
knowingly authorized, ordered or carried out the extended cut at the face of the No. 3 entry.
Smedley was the supervisor, and he was present on the section either while or right after the cut
was made. He saw or should have seen the cut area. Clearly, he was "in a position to protect
employee safety" (Kenney Richardson, 3 FMSHRC at 16). Despite this; he took no action to
prevent the cut nor to support the roof afterwards even though he had "knowledge or reason to
know of the [extended cut]" (Id.). His failure was unaccountable and inexcusable, and I
conclude that Smedley is liable under section l lO(c).
1372

I also find that Ball is liable. He too was in a positioD: to protect miners' safety. The
testimony established that the miners looked to him as the person with the most "day-to-day
authority" over the mine (Tr. 403). The testimony also established that he mislead miners
regarding MSHA's approval of the extended cut provision and that he encouraged the practice of
taking such cuts. The extended cut in the No. 3 entry was a logical result of Ball's knowing
violation of section 75.220(a)(l).

CITATION/ORDER NO.
4896091

DATE
11/3/98

30 C.F.R.§
75.220(a)(l)

Order No. 4896091, which was issued pursuant to section 104(d) of the Act, states in
relevant part:
The approved roof control plan dated Mar[ch] 8, [19)98 is
not being followed. A deep cut measuring approximately 30 feet
past the last roof bolts [is located] in the No. 3 right [cross)cut ....
Page 12 of roof control plan and page 6 of ventilation plan states
that only 20 feet maximum cuts are to be taken. [The f]oreman was
present on ... [the] section and should have known that deep cuts
were being taken (Gov. Exh. 5).
Marietti stated that the order was issued because a 30-foot cut existed in the right cross
cut off of the No. 3 entry. When the inspectors arrived the continuous miner was backing out of
the cross cut and down the entry (Tr. 186; Gov. Exh. 12). As with the previous citation,
Simmons and Marietti confirmed the·cut was 30-feet long by measuring it (Tr. 186).
Marietti testified that the extended cut violated the roof control plan and created a
potentially unstable roof. A roof-fall could endanger the continuous miner operator, and because
it could pull down supported as well as unsupported areas, it also could endanger miners working
outby the cross cut (Tr. 187). In addition, there was danger that the ventilation in the cross cut
would be inadequate to clear away methane (Id.). For the same reasons as stated regarding the
prior citation, Marietti believed that the violation created hazards that were reasonably likely to
cause serious injury or death. Therefore, he found that the violation was S&S (Tr. 187-188). ·
In Marietti's view, the violation was the result of high negligence on GCI's part (Tr. 188).
Marietti was told that Smedley was present in the entry just prior to Marietti's arrival and while
the continuous miner was cutting. Marietti believed that by looking at the roof, Smedley easily
could have seen the extended cut (Tr. 188, 190). Even if he did not look at the roof he could
have known the cut exceeded 20-feet by observing where the continuous miner's "20-foot mark"
was located in relation to the supported roof (Id.).

As with the prior citation the Secretary charged both Smedley and Ball with personal
liability. Vetter testified that both should be held liable for the same reasons he stated previously
1373

(Tr. 356, 409). Also, as before, Ball maintained he was unaware of the extended cut in the right
cross cut until he reached the section on the evening of November 3, when Simmons "showed
me some of the worst things that ... [the inspectors) had found" (Tr. 661).

THE VIOLATION

The citation charges, and the testimony confirms, a cut in the No. 3 right cross cut of 30feet beyond the last row of roof supports (Gov. Exh. 5; Tr. 186). The cut violated the approved
roof control plan (Gov. Exh. 18 at 35), and I find the violation existed as charged.

GRAVITY AND S&S

Testimony regarding the gravity and the nature of the violation tracked that for the
previous violation. For the same reasons I find the violation was both very serious and S&S.

NEGLIGENCE AND UNWARRANTABLE FAILURE

Further, I conclude the cut in the right cross cut was due to GCI's high negligence. The
conclusion is based upon my view that Smedley and GCI were well aware that extended cuts
were not approved but that they did nothing to prevent the taking of the cut in the right cross cut
nor to support the area after it was cut. I have credited the hearsay statements of the miners
regarding Smedley's presence in the entry during the time the extended cuts -- including the cut
at issue -- were taken. As I have noted, it was reasonable and logical for a person in his position
to be present during such times. Also, Marietti's testimony was not rebutted that even if
Smedley did not look at the roof, he should have known that Hill was in the process of taking an
extended cut by observing the "20-feet" mark on the continuous miner (Tr. 188-190). Thus,
Smedley either knew or shoQ.ld have known of the cited cut. As the supervisor on the scene
Smedley was responsible for understanding the requirements of the plan and for e~uring they
were carried out. Smedley either should have stopped the cut or should have had the cut area
supported. He totally failed in this regard.

In addition, Smedley' s unaccountable failure to act in the presence of the very serious
hazard created by the violation was inexcusable and aggravated. The inspector correctly found
the violation was due to Smedley's, and thus ·GCl's, unwarrantable failure.
GCI's unwarrantable failure also was the result of Ball' s more than ordinary negligence.
He was involved in GCI's attempt to have 30-foot cuts approved. He knew such cuts were not
approved. Nevertheless, the testimony supports finding he encouraged miners to believe the
practice was permissible. Therefore, I find that the violation was the direct result of the
misinformation he provided and of his purposeful lack of care.
1374

SMEDLEY'S AND BALL'S llO(C) LIABILITY
For the same reasons as stated regarding Citation No. 4896090, I also conclude that
Smedley and Ball are liable under section 110(c).

CITATION/ORDER NO.
4896094

DATE
11/3/98 ·

30 C.F.R.§
75.220(a){l)

Order No. 4896094, which was issued pursuant to section 104(d) of the Act, states in
part:
The approved roof control plan dated Mar[ch] 8, [19)98 is
not being complied with on the 001-1 MMU. A deep cut
measuring 30 feet has been taken in [cross] cut 31 between [the]
No. 5 and [No.] 6 entry.... [The fjoreman was present on 001-0
MMU and should have known that deep cuts were being taken
(Gov. Exh. 6).
Marietti testified that he and Simmons also observed a cross cut that had been driven
through the No. 5 entry to connect with a corresponding cross cut in the No. 6 entry (Tr. 193).
From looking at the unsupported cut-through area Marietti believed it was cut "in excess of20feet" (Tr. 194, 206). Simmons measured the cut-through and found it was 30-feet long. Marietti
was not present when the area was measured, but Simmons told Marietti how he made the
measurement and recorded its result (Tr. 194).
Marietti explained the exposed, unsupported roof could fall and the fall could override
and pull down the bolted roof The fall could endanger not only the continuous miner operator
but also miners working in or traveling through adjacent areas {Tr. 195). The cut-through was
open-ended, which Marietti._thought made it even more dangerous than the other cited extended
cuts {Tr. 196).
Marietti believed the cut-through occurred between 3:00 p.m. and 4:00 p.m. on the shift
prior to his arrival (Tr. 197-198, 199). If so, miners had been exposed to its dangers for 6 or 7
hours (Tr. 198-199, 204).
Marietti also believed the cut-through was due to GCrs "high" negligence because the
cut area was visually obvious and Smedley either saw it or should have seen it during the
examination for his shift (Tr. 199). In addition, Kenneth Clark, the foreman of the prior shift,
also should have been aware of the cut-through since it occurred on his shift {Tr. 200-202).
Ball testified that he first saw the cut-through on the evening of November 3 (Tr. 661).
Ball agreed the area looked like an extended cut (Id.). However, he did not think the condition

1375

was readily obvious because the area was dark. The only illumination was light from cap lamps
and equipment (Tr. 663).'
Cash, the afternoon-shift continuous miner operator, told how the cut-through happened.
He first cut the cross cut from the No. 5 entry. He then went to the No. 6 entry and cut the
corresponding cross cut. Inadvertently, he cut too far and broke through the wall of coal
separating the cross cuts (Tr. 664-666). Clark confirmed Cash's version of the events. However,
Clark stated that when he did an examination for the oncoming shift, the cut-through had not yet
been made (Tr. 666-668).
With regard to personal liability for the violation, Marietti believed that Ball was
culpable. Ball" was working with . .. [MSHA] on . .. plans for the 30-foot cuts. So basically ..
. he was the person responsible and . . . he knew or should have known ... [whether] they were
authorized, and his people should have been trained or informed on that process specifically in
that the plan needs to be explained to the miners" (Tr. 206-207).

THE VIOLATION
The citation charges GCI with an extended cut of30-feet in adjacent cross cuts between
the No. 5 and No. 6 entries (Gov. Exh. 5). Thirty feet of unsupported roof was observed by
Marietti and Simmons and was measured by Simmons (Tr. 193-194, 196, 206). Even Ball
agreed that the cut-through "looked like" an extended cut (Tr. 661). The cut-through violated the
roof control plan (Gov. Exh. 18 at 35), and the violation existed as charged.
GRAVITY AND S&S
The violation was both very serious and S&S. Its dangers were even greater than those
associated with the previous._violations of section 75.220(a)(l). As Marietti persuasively
explained, support for the roof was weaker because by joining the cross cuts the continuous ·
miner eliminated one of the roofs main supporting walls (Tr. 196). Further, because the cross
cuts were joined, miners in both entries were subject to the possibility of overrides (Tr. 195).
While it is true Marietti did not·see miners working in the area (Tr. 210), the section was engaged
in active mining and it is reasonable to assume that as mining continued, miners would have been
working or traveling in the areas of the conjoined cross cuts. Thus, any roof-fall was reasonably
likely to cause serious injury or death.

NEGLIGENCE AND UNWARRANTABLE FAILURE
The violation was due to GCI's high negligence. I credit Marietti's opinion that the cutthrough occurred on the shift prior to Smedley's (Tr. 197-199). This is what Ball was told by
1376

Cash (Tr. 664-666). I agree with Marietti that while there is no w.a y to determine precisely when
the cut-through happened, the evidence points to it occurring near the very end of the afternoon
shift. Nothing in the record indicates Clark was not being truthful when he stated the cut-through
was not present when he conducted the examination for the oncoming shift (Tr. 667).
Since the cut-through occurred near the end of Clark's shift, it was present during
Smedley's shift. Even if the cut-through was as difficult to see as Ball maintained (Tr.663), the
other extended cuts made during Smedley's shift should have alerted Smedley to the possibility
of extended cuts made prior to his shift. Given the danger to the miners caused by the extended
cuts and Smedley's high degree of responsibility for the safety of the miners he supervised,
Smedley's failure to det~ct the unsupported roof represented more than ordinary negligence.

In addition, because Ball mislead miners about MSHA's approval of extended cuts and
because he encouraged the practice, I attribute more than ordinary negligence to Ball, and
through Ball to GCI. For the same reasons as stated previously, I conclude the Secretary proved
the violation also was the result of Ball's, and thus GCI's, unwarrantable failure.

BALL'S llO(C) LIABILITY
However, I also conclude the Secretary did not prove that Ball knowingly violated
section 75.220(a)(l). Unlike the other extended cuts, the cut-through was not the result of a
knowingly taken 30-foot cut. Rather, its cause was a mistake by Cash who took two cuts of less
than 30-feet and unintentionally joined them creating 30 feet of unsupported roof and the
violation (Tr. 664-666). Thus, the violation was not the logical result of Ball misinforming the
miners about the 30-foot cut provision and of his encouragement of the practice. In addition, I
credit Ball's testimony that he was unaware of the cut-through until it was pointed out by the
inspectors (Tr. 659, see also Tr. 226).

CITATION/ORDER NO:

DATE

4896095

11/3/98

30 C.F.R.§
75.400

Order No. 4896095, which was issued pursuant to section 104(d), states:

An excessive accumulation of loose coal, coal fines and
coal dust has been allowed to accumulate on the 001-0 mmu
beginning at [the] face and extending outby for 3 cross cuts in all
entries and connecting cross cuts. The accumulations measured up
to 20 inches in depth with a section entry average of approximately
10 in[ches]. The accumulations [were] powder dry in areas, damp
and wet in areas. Ignition sources of belt and rollers rubbing
against accumulations on the continuous haulage belt [were]
1377

present and permissibility violations [were present] on [the] miner.
[The] foreman was present on [the] section (Gov. Exh. 7).
Section 75.400 prohibits accumulations of coal dust, loose coal and other combustible
materials in active workings and on electric equipment in active workings. Marietta explained
that when he and Simmons arrived in the No. 3 entry they observed accumulations of loose coal,
coal fines and coal dust in the entry from the last open cross-cut to the belt tail piece. Upon
inspection of the entire section, they determined the accumulations existed in all six entries of the
section (Tr. 229-230; Gov. Exh. 13). The accumulations were present at the faces of the entries,
and they were present in the roadways where equipment was located (Tr. 232). They extended
up to 500-feet from the faces (Tr. 228; Gov. Exh. 13). The accumulations ranged in depth from
approximately 10- to 20-inches. The accumulations had not been rock dusted (Tr. 236, 238).
After the condition was cited, GCI removed the accumulations from the mine, and Marietti
testified Ball told Simmons that 400 tons of the material were removed (Tr. 232, 247).
Marietti feared the accumulations would ignite. Trailing cables from electrical equipment
provided potential ignition sources (Tr. 233). He also noted that the continuous miner working
on the section was not maintained in permissible condition and that its methane monitor was not
working properly (Tr. 234). If methane seeped into the continuous miner's electrical
compartments and exploded, it could provide an ignition source for the accumulations (Id.). All
of the miners working on the section were reasonably likely to be burned, to suffer from smoke
inhalation, or worse (Tr. 236-237).
Because of the amount and extent of the accumulations, Marietti believed they had
existed from two to four days (Tr. 228). He was sure they had not come into existence during a
single shift (Tr. 249, 252, see also Tr. 255). He also believed if GCI had cleaned up loose coal
and coal dust during each shift's mining cycle, as was required, it could have prevented the
accumulations (Tr. 233).
Smedley responded that on November 3, his shift lacked that ability. The scoop had
broken down during the previous shift and he and another miner did not repair it until around
7:30 p.m. or 8:00 p.m. (Tr.734). Smedley also implied that much of the accumulated material
could have been due to a sudden, recent spillage. The mobile bridge conveyor (MBC) haulage
system was new and it had a propensity to "spill a great amount of coal" (Tr. 734-735).
Marietti discounted these possibilities. On November 3, no one mentioned to him that
clean up efforts had been hampered or discontinued (Tr. 259). No one mentioned to him that the
company was having problems with the MBC (Tr. 256). Indeed, when Marietti asked Smedley
about the accumulations, Smedley said nothing (Tr. 239).

In Marietti's view, Smedley was highly negligent in allowing the accumulations to exist.
They had been in existence for several days (Tr. 237). Smedley was responsible for examining
the area. The results of the pre-shift and on-shift examinations had been recorded and there was
1378

no reference in the reports to the accumulations (Tr. 257-258).

In addition, Marietti believed Kenneth Clark, foreman of the afternoon shift, also was
"highly" negligent (Id.). The accumulations existed on his shift as well. In Marietti's opinion
they were so obvious and extensive "any prudent miner" would have known they were there and
would have had them cleaned up (Tr. 238).
With regard to·personal liability, Marietti and Vetter agreed that Smedley was culpable.
Vetter noted that 400 tons of material was taken from the mine to abate the violation (Tr. 382,
385) and that 400 tons was more than sometimes was mined during the course of an entire day
(Tr. 357; 360; see Gov. Exh. 14). The implication Vetter drew from this was that the
accumulations were so large that Smedley simply had to have known of them. Despite his
knowledge, he allowed them to continue (Tr. 358, see also Tr. 386, 387-388).
Vetter spoke with Smedley about the situation. The only thing Smedley said was that he
was training a person on the scoop to do clean up work (Tr. 361 ). Vetter then spoke with the
scoop operator, Todd Brown. He told Vetter that although one of his duties was to clean the
section, he never had sufficient time to do it; that either he had to haul supplies; the scoop was
inoperable; or the mobile bridge conveyors were constantly running and blocking his way (Tr.
358).
Vetter also thought personal liability extended to Clark. The amount of the
accumulations meant that much of the material was present on Clark's shift {Tr. 374-375), and
Clark was more than ordinarily negligent in failing to remove it (Tr. 376-378):

THE VIOLATION

In one of its earliest cases, the Commission stated that section 75.400 is violated ''when
an accumulation of combustible materials exists" (Old Ben Coal Co.., 1 FMSHRC 1954, 1956
(December 1979)). GCI did not offer testimony refuting Marietti 's description of the
accumulations, of their location, and of their extent {Tr. 228-230, 232, 236, 238; Gov. Exh. 13).
Ball did not deny that he told Simmons 400 tons of accumulated material were removed in
response to the order (Tr. 247). Thus, it is certain that a very large amount ofloose coal, coal
fines and coal dust accumulated on the section. The accumulated material was combustible, and
I find that the violation existed as charged.

GRAVITY AND S&S
The violation was both very serious and S&S. The danger was that an electrical fault or a
methane explosion would ignite the coal, coal dust, and coal fines, and that once ignited the fire
would spread endangering everyone on the section (Tr. 233). There is no evidence challenging
1379

Marietti's testimony in this regard.
Moreover, the presence of potential ignition sources in the immediate vicinity of the
combustible material meant that as mining continued, a fire was reasonably likely. Injuries
resulting from a fire would have been reasonably serious or worse.

NEGLIGENCE AND UNWARRANTABLE FAILURE
The violation was due to GCI's high negligence and unwarrantable failure. The extent
and the amount of accumulated material indicated that the accumulations had existed at least
since Clark's shift and perhaps longer (Tr. 357-358, 360). The material was obvious. Clark and
Smedley both should have noted the condition during their respective shifts and should have
taken steps to eliminate it. Neither did. The evidence fully supports finding that both either
knew of the accumulations and ignored them or were irresponsibly oblivious to them.
I do not credit Smedley's testimony that the scoop was inoperable (Tr. 734). This excuse
appears to be a post-citation rationalization given the fact that at the time the violation was cited
Smedley did not mention the scoop to Marietti. Surely, if the scoop was the reason the
accumulations were not cleaned up or were not in the process of being cJeaned up, Smedley
would have said so. In addition, there is no factual evidence to support Smedley's suggestion
that the accumulations were caused by a sudden and recent malfunction of the MBC. As with the
scoop, had it been the case, Smedley would have mentioned it.
The extent of the violative condition and the operator's efforts in abating the condition
are among the factors that may signal aggravated conduct constituting more than ordinary
negligence (see Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001)). Here the two
factors are conclusive. Only indifference or a serious lack of reasonable care can explain why
Smedley and Clark, and through them GCI, allowed the cited extensive accumulations of loose
coal, coal fines and coal dust to exist and why they were not eliminated or were not in the process
of being eliminated at the time they were observed by the inspectors.

SMEDLEY'S AND CLARK'S 110(C) LIABILITY
Smedley and Clark were section supervisors. Both were "in a position to protect
employee safety" (Kenney Richardson, 3 FMSHRC at 16). Their presence on the section meant
that they ~ere aware of the accumulations. By taking no action to clean up the accumulations
Smedley and Clark failed to act in a manner commensurate with their responsibilities. Their
failure was more than ordinary and in the midst of such an obvious and very serious violation
established their knowing violation of section 75.400.

1380

CITATION/ORDER NO.
4896096

DATE
11/3/98

30 C.F.R.§
75.362(a)(l)

Order No. 4896096, which was issued pursuant to section 104(d), states:

An inadequate onshift has been conducted by the 001-0 section
foreman that has been on the section for approximately 7 hours
with nUmerous hazards present with none being addressed
consisting of deep cuts, excessive accumulations, ventilation
controls not in place, and warning devices not installed for
unsupported places. With these conditions present[,] injuries could
occur to the 001-1 personnel (Gov. Exh. 8).
Section 75.362(a)(l), requires a certified person to conduct an on-shift examination of
each section where anyone is working during the shift. The examination must be made at least
once during the shift or more often if necessary for safety. The person conducting the
examination must check for hazardous conditions; test for methane; and determine whether air is
moving properly. Section 75.363 requires that any hazardous condition found during the on-shift
examination be corrected (see Tr. 260-261).
The order was issued by Simmons. Marietti, who was with Simmons and who observed
the same conditions that lead Simmons to issue the order, testified that the allegation of an
inadequate examination was based on the previously referenced excessive cuts and the
accumulations. Marietti described the conditions as creating "obvious" hazards (Tr. 261, see
also Tr. 266). In addition, Marietti noted the standards required the hazardous conditions to be
corrected, and they were not (Tr. 266).
Smedley, was responsible for conducting the on-shift examination for the evening shift.
Marietti spoke with Smedley but he could not recall whether Smedley stated he had in fact
conducted the examination (Tr. 262, 267). In addition, Marietti could not recall whether there
was any record to show Smedley actually conducted it (Tr. 267). However, because of the cited
conditions, even if Smedley had conducted the required on-shift examination, it was Marietti's
view that the examination was inadequate and therefore a violation of the standard (Tr. 268).
The hazard created by an inadequate on-shift examination was that ifthe excessive cuts
and the accumulations went unreported and uncorrected, then a roof-fall and/or a fire could
result. · There were energized cables lying in the accumulations and there was energized
equipment operating on the section. The cables and the equipment represented potential ignition
sources °(Tr. 262-263). In addition, the excessive cuts weakened the roof (Id.).
Marietti believed that Smedley lmew or should have known the hazardous conditions
existed. They would have been obvious to any " prudent miner just walking in the area" (Tr.
264). Vetter agreed and thought that Smedley should be held personally liable. He stated that
1381

during his investigation, he spoke with two miners who told him they had seen Smedley
performing the on-shift examination before the inspectors aniyed on the section (Tr. 364-366).
The accumulations and excessive cuts existed then and Smedley should have had the conditions
corrected.
THE VIOLATION

Smedley confirmed that usually he conducted the on-shift examination, and that he
usually did so at the beginning of the shift when he first went on the section. He maintained that
when he examined the section on November 3, none of the cited conditions existed (Tr. 737).
Given my previous findings regarding the cut-through and the accumulations, I do not credit this
assertion.
The cut-through occurred on the afternoon shift and certainly was present at the start of
Smedley's shift (Tr. 664-666). The cut-through created a hazardous roof condition that Smedley
should have noted when he conducted the on-shift examination. The accumulations also were
present on the afternoon shift and thus at the start of Smedley's shift (Tr. 357-358, 360). They
were another hazardous condition that Smedley should have noted.
As stated, section 75.362(a)(l) requires an on-shift examination to be conducted and
hazardous conditions to be noted. Section 75.363 requires the hazardous conditions to be
corrected immediately. Compliance with section 75.363 is dependent upon compliance with
section 75.362(a)(l). If hazardous conditions are not noted then they cannot be corrected, the
examination has failed its purpose, and the standard is violated. Thus, a failure to correct
hazardous conditions which should have been noted is prima facie evidence of an inadequate onshift examination and of a violation of section 75.362(a)(l ). The existence of the accumulations
and the cut-through provide more than enough evidence to establish Smedley's on-shift
examination was inadequate and violated section 75.362(a)(l).

GRAVITY AND S&S

The violation was both very serious and S&S. The danger was that miners working on
Smedley' s crew were subjected to the dual hazards of unsupported roof in the cut-through and of
excessive accumulations of loose coal, coal dust, and coal fines throughout the section. Had
there been an adequate on-shift examination the hazards would have been noted and corrections
would have been initiated. In assessing the gravity and the S&S nature of the violation I must
look to the gravity of the hazards created by the conditions, and to the likelihood the hazards
would have occurred. The hazards of the cut-through and of the accumulations were found to
have been very serious and reasonably likely to occur. The same conclusions are applicable

1382

here.9

NEGLIGENCE AND UNWARRANTABLE FAILURE
I conclude that the violation was due to GCI's high negligence and unwarrantable failure.
The cut-through and the accumulations were present when Smedley conducted his on-shift
examination. The conditions were visually obvious. The regulatory requirement of section
75.362, that he travel throughout the section when conducting the examination, means that he
should have seen the cut-through and the accumulations. Because mining was continuing on the
section he should have realized the conditions created the danger of roof-fall and fire. Had
Smedley complied with the spirit as well as the letter of section 75.362(a)(l), he would have
taken steps to eliminate the hazards. He did nothing. Given the obvious nature of the conditions
and his blatant failure to address them, Smedley, and through Smedley, GCI, was highly
negligent in inadequately examining the section.
Moreover, because the conditions were so obvious and the hazards they created were so
serious, Smedley' s lack of care was aggravated, and through Smedley, GCI unwarrantably failed
to comply with section 75.362(a)(l).

SMEDLEY'S llO(C) LIABILITY
I have no doubt that Smedley' s inadequate on-shift examination was a ''knowing"
violation. Smedley was "in a position to protect employee safety and health" and he failed to act
even though he "had reason to know of ... violative condition[s]" (Kenny Richardson, 3
FMSHRC at 16). As GCI's agent, Smedley was responsible for recognizing the serious hazards
posed by the unsupported roof in the cut-through and by the accumulations. It was incumbent

upon him to conduct his examination with care proportionate to the hazards and-purpose of the
standard. He did not. Either he was oblivious to the hazards or, if he recognized them, he was
purposefully neglectful in carrying out his duty to conduct an adequate examination. In either
case, his violation of section 75.362(a)(l) subjects him to personal liability.

CITATION/ORDER NO.
4367676

DATE
12/4/98

9

30 C.F.R.§
75.362(d)(2)

In addition, a failure to conduct an adequate on-shift examination is a serious violation in its own
right in that the inadequate nature of the examination means that a linchpin of miners' safety is fundamentally
flawed.

1383

The section 104(d)(I) order 4367676, which was issued pursuant to section 104(d) states
in part:
The required 20 minute methane checks have not been properly
made for the Lee Norse roof drill ... located in and roof bolting in
the 5 to 6 cross cut of the 001-0MMU. The roof bolter operator
stated that the foreman made the methane test at the last row of
permanent roof support located about 10 feet from the coal face.
The foreman admitted this and stated that he had no excuse. The
roof bolter operator was not proved with a methane testing device
and no probe was available on the drill. 0.3% methane was
detected about 10 [feet] from the face with a hand held
methanometer. This mine liberates methane and ... a [section]
104(d)(l) order was issued previously on this inspection for this
type of violation (Gov. Exh. 9).
Section 75.362(d)(2) requires tests for methane at 20-minute intervals during the
operation of equipment in working sections and requires they be made at the face from under
permanent roof support using an extendable probe or other acceptable means (see Tr. 275).
Inspector Gary Jones came to the Pollyanna No. 8 Mine on December 4, to finish the
November 3, inspection (Tr. 274). Jones testified that when he arrived, advanced mining had
reached its limits and retreat mining was in progress (Tr. 275). ·
Jones went underground accompanied by Tim Ball and Steve Brown. After proceeding a
short distance Brown left the group and Ball and Jones traveled together (Tr. 281). When they
reached the 001 section they walked inby to the area of the No. 5 and No. 6 cross cut. Near the
face they observed an entry that had been roof bolted to within IO-feet of the face (Tr. 282). Also,
they saw a miner, John Davis, who was operating a roof-bolting machine (Tr. 278; see Gov. Exh.
13). Jones asked to see Davis' methanometer. Davis replied he did not have one. Jones
believed that section 75.362(d)(l)(iii) required a qualified person to check for methane at the face
every 20 minutes and to do so from under supported roof. Jones testified that to test at the face
from under supported roof, a person needed an extendable probe. So, Jones asked Davis if there
was an extendable probe on the roof-bolting machine. Davis said, "No" (Tr. 277). Jones then
asked who was making the required methane checks and how they were being made. Davis
responded that the foreman, Clark, was making the checks-that he was checking with a
methanometer wh~le standing at the end of the .line curtain under the last row of roof bolts (Tr.
276). 10
Shortly thereafter Clark arrived. Jones asked Clark whether he was testing for methane.

10

Vetter testified that during his investigation Davis changed his story. Davis told Vetter that, in .
fact, Clark was not checking for methane (Tr. 390-391).

1384

Clark replied that he was. Jones then asked Clark where he was conducting the tests, and Clark
replied at the last row of roof bolts. Jones inquired whether Clark knew the tests had to be made
at the face. According to Jones, Clark replied he did and that he had "no excuse" for not doing
so (Tr. 282). Jones maintained that during their conversation Clark never stated that anyone
other than he was responsible for making the tests. Nor did Clark ever state that he was testing
for methane at the face (Tr. 283). In Jones' view, by failing to test at the face, Clark violated
section 75.362(d)(2). Because Clark did not make the test at the proper place and knew it, Jones
also believed Clark's;and therefore GCI's negligence was "high". In addition, Jones believed
the violation was unwarrantable (Tr.289).
After talking to Clark, Jones tested for methane at the last row of roof bolts and found
0.3%. The explosive range of methane is between 5% and 15% (Tr. 291 Gov. Exh. 9). Jones
feared that if tests were not made at the face, methane accumulating there would not be detected.
Jones agreed that there was good air movement in the entry, but maintained the air movement did
not ensure a safe level of methane at the face. He stated, "If we've got 0.3(%] at the end of [the]
ventilation device, Lord only knows what we've got at the face" (Tr. 293). He believed it
possible that the continuous miner machine would cut into a methane feeder; that methane would
accumulate quickly; and that it would reach an amount where it would migrate to the area where
Davis was working (Tr. 295-296).
The electrical components of the roof-bolting machine presented a possible ignition
source for any methane (Tr. 283, 295). In addition, the act of installing roof bolts could result in
a spark if a roof bolt struck the metal plate used to secure the bolt or struck a rock (Tr. 283-284).
Jones believed that the presence of methane in the area; the act ofroof bolting; and the electrical
components of the roof-bolting machine, made an ignition of methane highly likely (Tr. 287288). Seven miners were working on the section, and an ignition could have been fatal to them
all. Under these circumstances, failing to test properly for methane was a significant and
substantial contribution of a mine safety hazard (Tr. 288).
Jones also believed·C lark knowingly violated section 75.362(d)(2). fu addition to the
discussion Jones had with Clark on December 4, Jones based his opinion on the fact that (in his
view) Clark should have been especially alert to ·the requirement to test at the face. The company
had been cited for a similar violation on November 3, and Clark should have seen the order in
which the previous violation was cited since the order was required to be posted on the mine's
bulletin board (Tr. 286).

THE VIOLATION

The company did not dispute that methane tests were not conducted at the face. Jones'
testimony fully established both the mandate for the tests and that the mandate was not fulfilled.
1385

The violation of section 75 .362(d)(2) existed as charged.

GRAVITY AND S&S
The violation was both very serious and S&S. Jones persuasively testified·that the failure
to check for methane at the face meant that gas could accumulate and migrate from the face
toward the roof-bolting machine. A small amount of methane already was present in the
atmosphere at the last row of roof bolts, and as Jones stated, "Lord only knows what we've got at
the face" (Tr. 293). Moreover, several potential ignition sources were present- sources which
Jones described in full (Tr. 283-284,287-288, 295). Additional methane could have accumulated
suddenly, without warning. Failing to check for methane at face while mining was ongoing and
while miners were present on the section was reasonably likely to have resulted in serious
injuries or death to Davis.

NEGLIGENCE AND UNWARRANTABLE FAILURE
The violation was due to GCl's high negligence and unwarrantable failure. The failure to
check for methane at the face violated a fundamental safety requirement. Whether Clark actually
checked for methane from under the last row of roof bolts, as Davis first told Jones, or whether
he did nothing, as Davis later told Vetter - Clark did not conduct the required test at the face.
Either he was ignora.q.t of the requirement of section 75.362(d)(2) that he check at the face, or he
purposefully disregarded it. His failure to meet the standard of required care represented more
than ordinary negligence on his, and through him, on GCI' s part.

CLARK'S SECTION llO{C) LIABILITY
Clark was a supervisor and an agent of GCI. As a supervisor he was in a position to
protect miner safety and health and was presumed to know what section 75.362(d)(2) requires.
No excuse was offered (to Jones, to Vetter, nor·at the hearing) for not having and using an
extendable probe to test for methane at the face. Given the hazard posed by a methane
accumulation at the face, it was incumbent upon Clark to comply. He did not. As a result he
knowingly violated section 75.362(d)(2), and he is liable under section l lO(c) of the Act.

THE ABILITY TO CONTINUE IN BUSINESS
AND THE SIZE CRITERIA AS APPLIED TO THE INDIVIDUAL RESPONDENTS

Jn assessing civil penalties against individuals who are liable under section 110(c), the
1386

Commission has instructed its judges to "make findings on each of the [statutory penalty] criteria
[of section 11 O(i)] as they apply to individuals" (Sunny Ridge Mining Co., 19 FMSHRC 254, 272
(February 1997)). In Ambrosia Coal and Construction Co., the Commission stated that "the
relevant inquiry with respect to the criterion regarding the effect on the operator's ability to
continue in business as applied to an individual, is whether the penalty will affect the individual's
ability to meet his [or her] financial obligations" and that"[ with] respect to the 'size' criterion ..
. as applied to an individual, the relevant inquiry is whether the penalty is appropriate in light of
the individual's income and net worth" (19 FMSHRC 819, 824 (May 1997)). The Commission
further has mandated that its judges "engage in a two-step analysis .... First, they must
determine a section l lO(c) defendant's household financial condition. Second, they then must
make findings on the section 1 lO(i) 'size' and 'ability to continue in business' criteria on the
basis of the defendant's share of his or her household's net worth, income and expenses"
(Warren R. Steen, employed by Ambrosia Coal & Construction Co., 20 FMSHRC 381, 385
(April 1998)). In sum, the judge must make findings based on the "individual's share of the
household's income and financial obligations" (Id.).

JAMES V. SMEDLEY AND TIM BALL

Neither Smedley nor Ball presented evidence in this regard, and I conclude the size of any
civil penalties assessed against them will not affect their abilities to meet their financial
obligations.
KENNETH CLARK

Kenneth Clark presented extensive testimony regarding the criteria. He stated that he
began working for GCI in May 1996. He stopped working for the company on July 9, 2000, the
day GCI ceased mining at Pollyanna No. 8 Mine (Tr. 490-491). On July 9, he held the position
of outby foreman, and he was earning approximately $1, 100 a week.
Presently, he works ·at the same mine. It now is operated by Sunrise Coal Company
(Sunrise) (Tr. 492). Clark continues to hold the position of outby foreman. Also, he has some
management responsibilities (Tr. 508). When he began working for Sunrise, he was earning
$937 a week before taxes (Tr. 492). His net earning was approximately $700 (Tr. 494).
Currently, his gross salary is $1,145 weekly which is $59,540 annually (Tr. 518).
Clark's wife does not work. In 1998, for federal tax purposes, the couple reported a joint
adjuste4 gross income of$54,866 (Tr. 497; Resp. Exh. 2). The Clarks' only source of income
was the salary Clark received from GCI (Tr. 497). In 1999, Clark again was the family's only
wage earner. The family's income came from his GCI salary (Tr. 498). In 1999, the couple
reported an adjusted gross income of $55,117 (Resp. Exh. 2 at 5). In 2000, they reported an
adjusted gross income of $50,019 and, again, their reported income consisted solely of Clark's
salary (Tr. 498; Resp. Exh. 2 at 8).

1387

Clark testified that currently he has a savings account with a balance of $10 (Tr. 500). He
and his wife do not have a checking account. Clark's unmortgaged home is valued at $75,000
(Tr. 501). Clark values his household possessions at $6,500. He and his wife own a 1987 Isuzu
Pup and a 1998 Mercury Sable (Tr. 501-502). The Isuzu is paid for, and the Clarks' owe
approximately $12,000 on the Sable (Tr. 502). Clark believes all of his current assets are worth
$95,037 (Tr. 503, Resp. Exh.2 at 13).
Clark listed his creditors. He owes $12,686.75, to Ford Credit, with monthly payments of
$333.58. He owes a credit card company $4,550 and makes a monthly payment of $116. He
owes Sears $4,895.03 and makes a monthly payment of$117. He has two other credit card
balances totaling $924.43, on which he is paying $40 a month. He owes $600 to a medical clinic
on which he pays $25 a month. He makes insurance payments of $156 a month. Also, he claims
gasoline and incidental expenses that total $400 a month (Tr. 504-507). Groceries and household
items are indicated by Clark to cost $800 a month (Tr. 509). (This is despite the fact that only he
and his wife live in their home (Tr. 519)). Safety clothing costs him approximately $30 a month
(Tr. 510). Further, he gives his son approximately $100 a month to help support his son's two
children (Id.). Electrical bills at his home average $60 a month and water averages $25 a month
(Tr. 512). He contributes approximately $80 a month to his church (Tr. 513). Although Clark
receives health insurance from Sunrise, the insurance does not cover all prescription drugs, and
his wife is under the care of a physician for high blood pressure (Tr. 495, 509).
Clark claims that his total monthly liabilities are approximately $4,885.50, excluding
maintenance on his home and automobiles (Tr. 515-516). He testified that in view ofhis
liabilities, paying the proposed civil penalties would be a financial hardship (Tr. 516). The
Secretary states she "does not dispute" Clark's financial evidence (see Sec. Br. 55).
It is noteworthy that Clark's income is derived solely from his salary. His current take
home pay is $700 a week (Tr. 494). This means that at the end of the month, Clark has
expendable income of$2,800. His monthly expenses total approximately $2,127( 11 )-not
including the cost of prescription drugs and maintenance on the Clarks' vehicles and home. It
therefore appears that despite Clark's adjusted gross annual income of somewhat more than
$50,000, Clark's monthly take home pay is almost totally expended to meet legitimate financial
obligations.

The Clarks' main assets are their home and pickup truck, both of which they own
outright. The Clarks' have been straightforward about their financial situation. The record
contains no indication Clark has tried to hide assets. I do not believe in a situation such as this
the Act c_ontemplates an individual having to encumber his or her home or vehicle to meet a large
civil penalty obligation.

II

Clark's testimony that monthly expenses for food and household items average $800 at first
glance seems excessive, but given the fact that his two grandchildren, for whom he provides voluntary support,
regularly and frequently visit. I believe it is not so far outside the realm of possibility to be discounted.

1388

For this reason, I find that the civil penalties proposed to be assessed against Clark will
affect adversely Clark's ability to meet his financial obligations, and I conclude that a marked
reduction in the civil penalties assessed is warranted. However, this conclusion does not apply to
the penalty assess for the violation of section 75.362 (a)(l) (Order No. 4896096). As counsel for
the Secretary notes (and for reasons that escape me) Clark's coµnsel withdrew Clark's financial
evidence as it pertains to this violation (Tr. 745; Sec. Br. 55).

GCl'S ABILITY TO CONTINUE IN BUSINESS
GCI also presented extensive evidence regarding the effect of civil penalties on its ability
to continue in business. Jackson was an articulate and forthright witness. He testified that he
was privy to all of the company's financial dealings and to its financial condition (Tr. 571). As
has been noted, Jackson testified about GCI' s formation and Heller's original loan to GCI of
$13.5 million (Tr. 572-573). According to Jackson, by the second quarter of 1997, it became
apparent that GCI would not be able to meet the principal and interest payments on the loan (Tr.
573). Jackson described Heller officials as "very, very upset" (Id.).
GCI has remained behind on the loan, and Heller can foreclose at .a ny time (Tr. 584). As
a result, the company's continued exist{'.nce is subject to Heller's day-to-day forbearance (Tr.
576). Heller holds a first lien position on all the assets of GCI inclusive of its stock. It also holds
a security interest in all assets, including all of Gel's revenue and contracts (Tr. 573-574).
Heller's lean position means that it has an initial right to all of the remaining money and assets of
GCI, should GCI default (Tr. 574). In the meantime, interest is accruing on the loan (Resp. Exh.
10).
Prior to January 1998, when Jackson took over as president of GCI, the company had
what Jackson described as "substantial loses" (Tr. 584). When Jackson became .president,
Jackson hired the accounting firm, Arthur Anderson, to audit the company's financial situation.
Anderson reported that the book value of the company's assets was between $8 and $9 million
(Tr. 575). At that time, the.principal amount due on the loan was $13.5 million (Id.). Since
1998, GCI has continued to loose money.
Heller receives all of GCI's revenues. It retains approximately .5% of the monies in an
escrow account. It sends the balance back to GCI to pay the company's obligations (Tr. 620621 ). Although GCI' s accounts payable have grown, the company thus far has been able to meet
its payroll (Tr. 585, 613).

In July 2000, the company ceased active mining and went from employing approximately
50 miners to employing between 12 and 15 (Tr. 584-585). The employees are primarily involved
in reclamation work to satisfy the company's $1.5 to $1.8 million reclamation liability. Because
Heller is accountable for the liability should GCI declare bankruptcy, it is in Heller's current
interest to keep GCI viable. The money passed back to GCI from Heller has allowed GCI to pay

1389

those creditors who are absolutely necessary to keep the company in business (Tr. 586.
According to Jackson, paying creditors continues to be a "struggle" (Tr. 597).
As of February 2001, GCI has liabilities of$19,796,593.80 (Resp Exh. 8 at 1; Tr. 596).
Of this amount, $14, 078,754.88, is the long term debt owed to Heller (Id.). The company has
assets of $8,755,500.07 (Resp. Exh. 8 at 1, 596). The company's cash comes from accounts
receivable (Tr. 596-597). Excluding the long-term debt owed to Heller, the company has current
cash of $112,000 to $113,000 to pay its liabilities (Tr. 599). The current total value of GCI to its
stockholders is a negative $12,239,036.53 (Tr. 606).
GCI no longer is involved in active mining (Tr. 580-581 ). However, GCI still has
contracts to provide coal, which it does through leasing its coal rights to other operators. For
example, the Pollyanna No. 8 Mine is operated by Sunrise (Tr. 581-582) (Tr. 581 ). GCI has no
present plans to mine actively and could not do so anyway because under its lease agreements the
contract operators have the exclusive right to mine (Tr. 610-611, 616). The income GCI makes
from its leases was described by Jackson as "very minimal" (Tr. 583).
Jackson, who has declined a salary in order to aid the company, was of the opinion that
the company can not pay the civil penalties assessed in these cases without foregoing payments
to its debtors (Tr. 606-608). He stated that with its current debt load, it will be some time in the
future before GCI has a positive cash flow (Tr. 608). In addition, the company is negotiating
with the Internal Revenue Service to make payment arrangements for its existing excise and
payroll tax debts (Tr. 627, 630). In its 1999 federal tax corporate return, the company reported a
loss of$4,l 13,778 (Resp. Exh. 11 at 2). 12 However, Jackson agreed that he could request Heller
to approve allocation of some of the company's funds to pay civil penalties (Tr. 614-615).
Jackson's testimony and the documentary evidence submitted by GCI establish that the
company's position is-precarious. Basically, it continues to operate at the sufferance of Heller.
The more obligations the company accumulates, the less likely it is that income will be present to
pay the expenses necessary for it to remain viable and, after its lease arrangements expire, to
return to active mining. In addition, there is the ever present danger that the company's debt load
will become too large for Heller to tolerate, at which point GCI's remaining assets will be sold
and the company will cease to exist. Since the company's present assets do not increase in value,
any additional debt brings the company closer to that day.

For these reasons, I agree with Jackson that imposition of the proposed assessments will
adversely affect GCI' s ability to continue in business. I conclude that a substantial reduction in
what I otherwise would assess is warranted.

12

The 1999 return is the last year GCI filed federal taxes. The company received an extension on
filing its year 2000 corporate return (Tr. 631 ).

1390

GOOD FAITH ABATEMENT
GCI exhibited good faith in abating all of the violations in a timely fashion. As Marietti
stated, the company "systematically [took] care of the violations" (Tr. 155).

HISTORY OF PREVIOUS VIOLATIONS
The Secretary offered into evidence a printout of the violations cited at the Pollyanna No.
8 Mine between December 4, 1996 and December 3, 1998 (Gov. Exh. 19). The printout is
accurate (see Stip. 8). It lists a total of 384 violations in the two year period (Id. at 10). This is a
large history.

CIVIL PENALTY ASSESSMENTS

A. DOCKET NO. CENT 1999-178, ETC.
In assessing civil penalties the Act mandates that I consider .all of the criteria enumerated
in section 11 O(i)(30 U.S.C. §820(i)). With regard to the violations in Docket No. CENT 1999178 that are associated with the section 110(c) proceedings and with regard to the same
violations that are alleged in the individual civil penalty proceedings - Docket Nos. CENT
2000-391, CENT 2000-400, and CENT 2000-401-I have made findings regarding the gravity
and negligence of the violations. I also have found that GCI' s applicable history of previous
violations is large and that the individual respondents have no history of previous violations. In
addition, I have noted that the company is small in size (Tr. 110-111). Further, I have found that
the size of any penalties assessed against Smedley and Ball will not affect their ability to meet
their financial obligations but that the size of any penalties assessed against Clark will. I also
have found that GCI established the size of any penalties assessed will affect its ability to
continue in business.
With regard to the violations in Docket CENT 1999-178, that are not associated with the
individual civil penalty proceedings, the parties have stipulated to all of the civil penalty criteria
(Joint Stips.) except the effect of any civil penalties assessed on the company's ability to continue
in business. The stipulations are incorporated herein by reference. The assessments made for the
non-ass9ciated violations reflect the parties stipulations as well as my finding that the size of any
penalties assessed will affect GCI's continuation in business.

1391

DOCKET NO. CENT 1999..178

CITATION/
ORDER NO.

DATE

30 C.F.R.§

Proposed Penalty

Assessed Penalty

4715067

1113/98

75.370(a)(l)

$10,000

$2,000

The violation was very serious an4 was due to ordinary negligence. 13 The parties have
stipulated and I have found a large history of previous violations (Joint Stip. 1, Stip. 8; Gov. Exh.
19). The violation was abated in timely fashion. Given the large history of previous violations,
the small size of the operator, and the effect of penalties in GCI' s ability to continue in business,
I assess a penalty of $2,000 for this violation.

CITATION/
ORDER NO.

DATE

30 C.F.R.§

Proposed Penalty

Assessed Penalty

4715068

1/3/98

75.362(d)(2)

$15,000

$3,000

The violation was very serious and was due to more than ordinary negligence. The
violation was abated in a timely fashion. Given the large history of previous violations, the small
size of the operator, and the effect of penalties on GCI's ability to continue in business, I assess a
penalty of $3 ,000 for this violation.

CITATION/
ORDER NO.

DATE

30 C.F.R.§

Proposed Penalty

Assessed Penalty

4715083

1113/98

75.342(c)

$15,000

$2,000

The violation was very serious and was due to ordinary negligence. The violation was
abated in a timely fashion. Given the large history of previous violations, the small size of the
operator, and the effect of penalties on GCI's ability to continue in business, I assess a penalty of
$2,000 for this violation.

CITATION/
ORDER NO.

DATE

30 C.F.R.§

Proposed Penalty

Assessed Penalty

4715084

1113/98

75.400

$ 9,000

$1 ,800

The parties stipulated that the violation existed. They also stipulated the violation was
timely abated. It is apparent from the stipulations that this was a serious violation and was due to
ordinary negligence. Given the large history of previous violations, the small size of the

13

The parties have stipulated that when these violations were cited the operator owed a "high degree
of care" and that the gravity of all of the violations in this docket is "high" (Joint Stip. 1). I interpret these
stipulations as not inconsistent with my gravity and negligence fmdings.

1392

operator, and the effect of penalties on GCI' s ability to continue in business, I assess a penalty of
$1 ,800 for this violation.

CITATION/
ORDER NO.
4896090

DATE
11/3/98

30 C.F.R.§
75.220(a)(I)

Proposed Penalty
$2,000

Assessed Penalty
$400

The violation was very serious and was due to more than ordinary negligence. The
violation was abated in a timely fashion. Given the large history of previous violations, the small
size of the operator, and the effect of penalties on GCI's ability to continue in business, I assess a
penalty of $400 for this violation.

CITATION/
ORDER NO.
4896091

DATE
11/3/98

30 C.F.R.§ Proposed Penalty
75.220(a)(l) $2,000

Assessed Penalty
$400

The violation was very serious and was due to more than ordinary negligence. The
violation was abated in a timely fashion. Given the large history of previous violations, the small
size of the operator, and the effect of penalties on GCI' s ability to continue in business, I assess a
penalty of $400 for this violation.

CITATION/
ORDER NO.
4896094

DATE
11/3/98

30 C.F.R.§ Proposed Penalty
75.220(a)(l) $2,000

Assessed Penalty
$400

The violation was very serious and was due to more than ordinary negligence. The
violation was abated in a timely fashion. Given the large history of previous violations, the small
size of the operator, and the effect of penalties on GCI's ability to continue in business, I assess a
·
penalty of $400 for this violation.

CITATION/
ORDER NO.
4896095

DATE
11/3/98

30 C.F.R.§
75.400

Proposed Penalty
$6,000

Assessed Penalty
$1,200

The violation was very serious and was due to more than ordinary negligence. The
violation was abated in a timely fashion. Given the large history of previous violations; the small
size of the operator; and the effect of penalties on GCI's ability to continue in business, I assess a
penalty of $1,200 for this violation.

CITATION/
ORDER NO.
4896096

DATE
1113/98

30 C.F.R.§ Proposed Penalty
75.362(a)(l) $6,000

1393

Assessed Penalty
$1,200

The violation was very seri9us and was due to more than ordinary negligence. The
violation was abated in a timely fashion. Given the large history of previous violations, the small
size of the operator, and the effect of penalties on GCI's ability to continue in business, I assess a
penalty of $1 ,200 for this violation.

CITATION/
ORDER NO.
4715069

DATE
·11/4/98

30 C.F.R.§
75.1100-3

Proposed Penalty
$4,500

Assessed Penalty
$900

The parties stipulated that the violation existed. They also stipulated the violation was
timely abated. It is apparent from the stipulations that this was a serious violation and was due to
ordinary negligence. Given the large history of previous violations, the small size of the
operator, and the effect of penalties on GCI' s ability to continue in business, I assess a penalty of
$900 for this violation.

CITATION/
ORDER NO.
4715085

DATE
11/4/98

30 C.F.R.§
75.512

Proposed Penalty
$15,000

Assessed Penalty
$3,000

The parties stipulated that the violation existed. They also stipulated the violation was
timely abated. It is apparent from the stipulations that this was a serious violation and was due to
ordinary negligence. Given the large history of previous violations, the small size of the
operator, and the effect of penalties on GCI's ability to continue in business, I assess a penalty of
$3,000 for this violation.

CITATION/
ORDER NO.
4715086

DATE
1114/98

30 C.F.R.§
75.503

Proposed Penalty
$9,000

Assessed Penalty
$1,800

The parties stipulated that the violation existed. They also stipulated the violation was
timely abated. It is apparent from the stipulations that this was a serious violation and was due to
ordinary negligence. Given the large history of previous violations; the small size of the
operator; and the effect of penalties on GCI' s ability to continue in business, I assess a penalty of
$1,800 for this violation.

CITATION/
ORDER NO.
3557719

DATE
1115/98

30 C.F.R.§
Proposed Penalty
75.360(b)(6)(ii) $4,000

Assessed Penalty
$800

The parties stipulated that the violation existed. They also stipulated that the vi<1>lation
was timely abated. It is apparent from the stipulations that this was a serious violation and was
1394

due to ordinary negligence. Given the large history of previous violations; the small size of the
operator; and the effect of penalties on GCI's ability to continue in business, I assess a penalty of
$800 for this violation.

ORDER NO.
3557720

DATE
11/5/98

30 C.F.R.§
75.360(a)(i)

Proposed Penalty
$5,000

Assessed Penalty
$1,000

The parties stipulated that the violation existed. They also stipulated that the violation
was timely abated. It is apparent from the stipulations that this was a serious violation and was
due to ordinary negligence. Given GCI's large history of previous violations; the small size of
the operator; and the effect of penalties on GCI's ability to continue in business, I assess a
penalty of$1 ,000 for this violation.

ORDER NO.
4367676

DATE
12/4/98

30 C.F.R.§
Proposed Penalty
75.362(d)(2) $15,000

Assessed Penaltv
$3,000

The violation was very serious and was due to more than ordinary negligence. The
violation was abated in a timely fashion. Given the large history of previous violations; the small
size of the operator; and the effect of penalties on GCI' s ability to continue in business, I assess a
penalty of $3,000 for this violation~
TOTAL:
$119,500.00
$22,900.00

DOCKET NO. CENT 2000-391
CITATION/
ORDER NO.
4715067

DATE
1113/98

30 C.F.R.§
75.370(a)(l)

Proposed Penalty
$1 ,800

Assessed Penalty
$0

I have found that Smedley did not knowingly violate section 75.370(a)(l). According,
no civil penalty is assessed."

CITATION/
ORDER NO.
4715068

DATE
11/3/98

30 C.F.R.§
Proposed Penalty
75.362(d)(2) $3,000

Assessed Penalty
$750

I have found that Smedley knowingly violated section 75.362(d)(2). I also have found
that the .violation was very serious and was abated in good faith. Smedley presented no evidence
that the size of a penalty assessed against him would affect adversely his ability to meet his
financial obligations. The parties have stipulated that Smedley has no history of previous
knowing violations. Given these factors I assess a civil penalty of $750.

1395

CITATION/
ORDER NO.
4715083

DATE
11/3/98

30 C.F.R.§
75.342(c)

Proposed Penalty
$3,000

· Assessed Penalty ·
$0

I have found that Smedley did not knowingly violate section 75.342(c). Accordingly,
no civil penalty is assessed.

CITATION/
ORDER NO.
4896090

DATE
1113/98

30 C.F.R.§ Proposed Penalty
75.220(a)(l) $600

Assessed Penalty
$175

I have found that Smedley knowingly violated section 75.220(a)(l). I also have found
that the violation was very serious and was abated in good faith. Smedley presented no evidence
that the size of a penalty assessed against him would affect adversely his ability to meet his
financial obligations. The parties stipulated that Smedley has no history of previous knowing
violations. Given these factors I assess a civil penalty of $175.

CITATION/
ORDER NO.
4896091

DATE
11/3/98

30 C.F.R.§ Proposed Penalty
75.220(a)(l) $600

Assessed Penalty
$175

I have found that Smedley knowingly violated section 75.220(a)(l). I also have found
that the violation was very serious and was abated in good faith. Smedley presented no evidence
that size of a penalty assessed against him would affect adversely his ability to meet his financial
obligations. The parties have stipulated that Smedley has no history of previous knowing
violations. Given these factors I assess a civil penalty of $175.

CITATION/
ORDER NO.
4896095

DATE
1113/98

30 C.F.R.§
75.400

Proposed Penalty

Assessed Penalty

$1,000

$250

I have found that Smedley knowingly violated section 75.400. I also have found that the
violation was very serious and was abated in good faith. Smedley presented no evidence that
size of a penalty assessed against him would affect adversely his ability to meet his financial
obligations. The parties have stipulated that Smedley has no history of previous knowing
violations. Given thes~ factors I assess a civil penalty of $250.

CITATION/
ORDER NO.
4896096

DATE
11/3/98

30 C.F.R.§ Proposed Penalty
75.362(a)(l) $1,000
1396

Assessed Penalty
$250

I have found that Smedley knowingly violated section 75.362(a)(l). I also have found
that the violation was very serious and was abated in good faith. Smedley presented no evidence
that size of a penalty assessed against him would affect adversely his ability to meet his financial
obligations. The parties have stipulated that Smedley has no history of previous knowing
violations. Given these factors I assess a civil penalty of$250.
TOTAL:
$11,000
$1,600

DOCKET NO. CENT 2000-400
CITATION/
ORDER NO.
4896095

DATE
11/3/98

30 C.F.R.§
75.400

Proposed Penalty
$1,000

Assessed Penalty
$100

I have found that Clark knowingly violated section 75.400. I also have found that the
violation was very serious and was abated in good faith. Clark established that the size of any
penalty assessed against him would affect adversely his ability to meet his financial obligations.
The parties have stipulated that Clark has no history of previous knowing violations. Given these
factors I assess a penalty of $100 for this violation.

ORDER NO.
4367676

DATE
12/4/98

30 C.F.R.§ Proposed Penalty
75.362(d)(2) $3,000

Assessed Penalty
$800

I have found that Clark knowingly violated section 75.362(d)(2). I also have found that
the violation was very serious and was abated in good faith. Clark would have established that
the size of any penalty assessed against him would affect adversely his ability to meet his .
financial obligations, but his counsel withdrew the evidence (Tr. 745). The parties have
stipulated that Clark has no history of previous knowing violations. Given these factors I assess
a penalty of $800 for this violation.

TOTAL:

$4,000

$900

DOCKET NO. CENT 2000-401
CITATION/
ORDER NO.
4896090

DATE
11/3/98

30 C.F.R.§ Proposed Penalty
75.220(a)(l) $1,300

Assessed Penalty
$400

I have found that Ball knowingly violated section 75.220(a)(l). I also have found that the
violation was very serious and was abated in good faith. Ball presented no evidence that the size
of a penalty assessed against him would affect adversely his ability to meet his financial
obligations. The parties have stipulated that Ball has no history of previous violations. Given

1397

these factors I assess a penalty of $300 for this violation.

CITATION/
ORDER NO.
4896091

DATE
11/3/98

30 C.F.R.§ Proposed Penalty
75.220(a)(l) $1,300

Assessed Penalty
$400

I have found that Ball knowingly violated section 75.220(a)(l). I also have found that
the violation was very serious and was abated in good faith. Ball presented no evidence that the
size of a penalty assessed would affect adversely his ability to meet his financial obligations. The
parties have stipulated that Ball has no history of previous violations. Given these factors I
assess a civil penalty of $300.

CITATION/
ORDER NO.
4896094

DATE
1 f/3/98

30 C.F.R.§ Proposed Penalty
75.220(a)(l) $1,300

Assessed Penalty
$0

I have found that Ball did not knowingly violated section 75.220(a)(l). Accordingly, no
civil penalty is assess.
TOTAL:
$3,900
$800

B. DOCKET NOS. CENT 2000-197, ETC.,
The parties stipulated to all of the civil penalty criteria except the effect of any penalties
assessed on GCI's ability to continue in business. I have found that the size of any penalties
assessed will affect adversely GCI's ability to continue in business. Given the parties
stipulations, which are incorporated by reference, and the finding regarding GCI's ability to
continue in business, I assess the following penalties:

CENT 2000-197
CITATION/
ORDER NO.
7599497
7599498
7599499
7599500
7599701
7599721
7599722
7599723
7599724

DATE
8118/99
8/18/99
8/18/99
8/18/99
8/18/99
9101199
9101199
9101199
9/01/99

30 C.F.R.§
77.1607(p)
77.1605(d)
77.410(c)
77.400(a)
77.1607(i)
77.1605(d)
77.410(c)
77.1605(d)
48.28(a)

Total:
1398

Pronosed Penalty
$ 55.00
184.00
184.00
184.00
196.00
184.00
184.00
184.00
264.00
$1,619.00

Assessed
Penalty
$ 20.00
70.00
70.00
70.00
75.00
70.00
70.00
70.00
75.00
$590.00

CENT 2000-263
CITATION/
ORDER NO.
7599738
7599739
7599740
7599743
7599744
7599745
7599746
7599747
7599748
7599749
7599750
7599751
7599752
7599753
7599754
7599755
7599756
4367589

DATE
12/01199
12/01199
12/01199
2/01/00
. 2/01/00
2101100
2101100
2/01/00
2/01/00
2/01/00
2/02/00
2102100
2/02/00
2/03/00
2/03/00
2103100
2/03/00
2/10/00

30 C.F.R.§
77.404(a)
77.404(a)
77.1605(k)
77.1109(e)(l)
48.29(a)
77.502-2
77.1605(d)
77.404(a)
77.1104
77.1200
77.1605(a)
77.1104
77.1605(a)
77.400(a)
71.501
77.1605(b)
77.1104
77.404(a)

Total:

ProRosed Penalty
$ 207.00
207.00
150.00
150.00
55.00
150.00
150.00
150.00
150.00
55.00
150.00
150.00
150.00
55.00
55.00
161.00
150.00
150.00
$ 2,445.00

Assessed
Penalty
$ 75.00
75.00
55.00
55.00
20.00
55.00
55.00
55.00
55.00
20.00
55.00
55.00
55.00
20.00
20.00
60.00
55.00
55.00
$895.00

ProRosed Penalty
$600.00
161.00
$761.00

Assessed
Penalty
$160.00
60.00
$220.00

ProRosed Penalty
$ 161.00
55.00
161.00
161.00
55.00
161.00
55.00
161.00
207.00
173.00
$1,350.00

Assessed
Penalty
$ 60.00
20.00
60.00·
60.00
20.00
60.00
20.00
60.00
75.00
65.00
$500.00

CENT 2000-264
CITATION/
ORDER NO.
7599737
4367803

DATE
12/01/99
3/27/00

30 C.F.R.§
77.404(a)
77.404(a)

Total:
CENT 1999-278
CITATION/
ORDER NO.
7599482
7599483
7599485
7599486
7599487
7599489
7599488
7599490
7599491
7599492

DATE
4106199
4106199
4106199
4106199
4106199
4106199
4107199
4107199
4/07/99
4/08/99

30 C.F.R.§
77.1607(0)
77.130l(c)(9)
77.1605(k)
77.1104
77.1301(c)(l0)
77.404(a)
77.1110
77.1104
72.620
77.1607(i)

Total:

1399

CENT 2000-326
CITATION/
ORDER NO.
7599790
7599791

DATE
4/12/00
4/12/00

30 C.F.R.§
77.1104
77.1605(b)

Total:

Pronosed Penalty
$ 131.00
131.00
$ 262.00

Assessed
Penalty
$ 50.00
50.00
$100.00

Pronosed Penalty
$ 131.00
131.00
184.00
140.00
131.00
131.00
140.00
131.00
131.00
131.00
161.00
131.00
131.00
131.00
140.00
131.00
140.00
140.00
184.00
$2,670.00

Assessed
Penalty
$
50.00
50.00
70.00
52.00
50.00
50.00
52.00
50.00
50.00
50.00
60.00
50.00
50.00
50.00
52.00
50.00
52.00
52.00
70.00
$1,010.00

Proposed Penalty
$ 140.00
131.00
$ 271.00

Assessed
Penalty
$ 52.00
50.00
$102.00

Pronosed Penalty

Assessed
Penalty

CENT 2000-474
CITATION/
ORDER NO.
4367611
4367612
7600681
7600683
7600684
7600685
7600687
7600689
7600690
4367614
7600691
7600692
7600693
7600694
7600696
7600697
7600698
7600690
7600700

DATE
7/05/00
7105100
7105100
7105100
7105100
7105100
7105100
7105100
7105100
7105100
7/17/00
7/ 17/00
7117100
7/ 17/00
7/17/00
7117/00
7/ 17/00
7/17/00
7/17/00

30 C.F.R.§
77.1605(d)
77.410(a)(l)
77.1607(b)
77.1605(b)
77.1104
77.404(a)
77.1605(d)
77.404(a)
77.404(a)
77.1710(h)
77.1607(i)
77.404(a)
77.1104
77.1104
77.1605(a)
77.1104
77.1605(a)
77.404(a)
71.603(a)

Total:

CENT 2000-475
CITATION/
ORDER NO.
7600702
7600703

DATE
7/18/00
7/18/00

30 C.F.R.§
77.1605(a)
77.1605(k)

Total:

CENT 1999•50
CITATION/
ORDER NO.

DATE

30 C.F.R.§
1400

4367449
4367450
4367451
4367452
7599364
7599365
7599366
7599367
7399368
7599369
7599370
7599371
7599372
7599373
7599374
7599375
7599376
7599377

8/11/98
8/11/98
8/11/98
8/11198
8/11/98
8/11/98
8/11/98
.8/11/98
8/11/98
8/11/98
8/11/98
8/11198
8/11/98
8/12/98
8112/98
8/12/98
8/12/98
8/12/98

75.400
75.370(a)(l)
75.370(a)(l)
75.220(a)(l)
75.1403
75.1100-3
75.1100-3
75.l 100-2(e)(2)
75. l 713-7(b)(4)
75.517
75.516-2(c)
75.516-2(c)
77.1104
75.370(a)(l)
75.370(a){l)
75.503
75.503
77.400(a)

Total:

$ 294.00
475.00
1,122.00
557.00
993.00
277.00
277.00
277.00
277.00
277.00
277.00
277.00
277.00
277.00
993.00
993.00
993.00
993.00
$9,906.00

$ 82.00
95.00
234.00
111.00
199.00
75.00
75.00
75.00
75.00
75.00
75.00
75.00
75.00
75.00
199.00
199.00
199.00
199.00
$2,192.00

ProRosed Penaltt
$ 993.00
340.00
4,096.00
$5,429.00

Assessed
Penaltt
$ 199.00
84.00
819.00
$1,102.00

ProRosed Penaltt
$ 55.00
55.00
55.00
55.00
55.00
55.00
55.00
2,391.00
399.00
55.00
399.00
399.00
399.00

Assessed
Penaltv
$ 20.00
20.00
20.00
20.00
20.00
20.00
20.00
586.00
88.00
20.00
88.00
88.00
88.00

CENT 1999-51
CITATION/
ORDER NO.
7599378
7599379
9895007

DATE
8/12/98
8/26/98
8/27/98

30 C.F.R.§
77.404(a)
75.32l{a)(l)
70.lOO(a)

Total:

CENT 1999-179
CITATION/
ORDER NO.
3557707
3557708
3557709
4367661
4367662
4367663
4367664
4715061
4715062
4715063
4715064
4715065
4715066

·.

DATE
11103/98
11103/98
11/03/98
11103/98
11103/98
11103/98
11103/98
11103/98
11/03/98
11103/98
11103/98
11/03/98
11/03/98

30 C.F.R.§
75.383(b)(l)
75.383(b)(2)
77.208(e)
75.1715
77.502
77.513
77.502
75.601-1
75.601-1
75.807
75.601-1
75.601-1
75.602
1401

4715339
4715340
4896082
4896083
4896084
4896085
Total:

11/03/98
11/03/98
11103/98
11103/98
11/03/98
11/03/98

75.l 103-9(d)
75.400
75.400
75.l 722(b)
75.1104
75.1722(b)

399.00
399.00
399.00
399.00
55.00
399.00
$6,477.00

88.00
88.00
88.00
88.00
20.00
88.00
$1,558.00

Prouosed Penalty
$ 55.00
399.00
399.00
399.00
399.00
55.00
55.00
55.00
55.00
399.00
55.00
55.00
55.00
55.00
399.00
55.00
55.00
55.00
55.00
$3,109.00

Assessed
Penalty
$ 20.00
88.00
88.00
88.00
88.00
20.00
20.00
20.00
20.00
88.00
20.00
20.00
20.00
20.00
88.00
20.00
20.00
20.00
20.00
$788.00

Pronosed Penalty
$ 55.00
55.00
399.00
1,122.00
55.00
399.00
399.00

Assessed
Penal!l'.
$ 20.00
20.00
88.00
234.00
20.00
88.00
88.00

CENT 1999-180
CITATION/
ORDER NO.
4896086
4896088
4896089
4896092
4896093
4896097
4896098
3557710
3557711
3557712
3557713
3557714
3557715
3557716
3557741
3557742
3557743
3557744
3557745

DATE
11/03/98
11103/98
11103/98
11/03/98
11103/98
11103/98
11/03/98
11104/98
11/04/98
11/04/98
11/04/98
11/04/98
11/04/98
11104/98
11104/98
11104/98
11/04/98
11104198
11104798

30 C.F.R.§
75.333(h)
75.208
75.370(a)(l)
75.208
75.370(a)(l)
75.360(e)
75.1713-7(c)
77.516
77.400(a)
77.400
75.516-2(c)
77.904
75.508
70.210(b)
75.400
75.21 l(d)
75.1715
75.312{d)
75.312(c)

Total:
CENT 1999-181
CITATION/
ORDER NO.
3557746
3557747
3557748
3557749
3557750
3557751
3557752

DATE
11104/98
11104/98
11/04/98
11/04/98
11/04/98
11104/98
11/04/98

30 C.F.R.§
75.360(f)
77.208(c)
75.503
75.1100-3
75.1100-3
75.503
75.400
1402

3557753
3557754
3557755
4367665
4367666
4367667
4367668
4715070
4715072
4715081
4896099
4896100

11/04/98
11104/98
11/04/98
11/04/98
11/04/98
11/04/98
11104/98
· 11/04/98
11/04/98
11104/98
11104/98
11/04/98

75.1100-3
75.l 107-9(a)(l)
75.380(d)(4)(ii)
77.404(a)
48.25
77.502
75.1715
75.342(a)(4)
75.l 107-16(a)
75.1100-3
75.400
75.21 l(d)

Total:

55.00
55.00
55.00
55.00
1,419.00
55.00
55.00
55.00
399.00
399.00
399.00
55.00
$5,540.00

20.00
20.00
20.00
20.00
284.00
20.00
20.00
20.00
88.00
88.00
88.00
20.00
$1,266.00

Proposed Penalty
$ 55.00
1,122.00
399.00
55.00
399.00
55.00
475.00
55.00
55.00
399.00
55.00
55.00
55.00
55.00
399.00
399.00
399.00
55.00
55.00
$4,596.00

Assessed
Penalll'.
$ 20.00
234.00
88.00
20.00
88.00
20.00
95.00
20.00
20.00
88.00
20.00
20.00
20.00
20.00
88.00
88.00
88.00
20.00
20.00
$1,077.00

Proposed Penalty

Assessed
Penalty

CENT 1999-182
CITATION/
ORDER NO.
3557717
3557718
3557756
3557757
3557758
3557759
3557760
3560485
3560486
3560487
3560488
3560489
3560490
3560491
3560492
3560493
3560494
3560495
3560496

DATE
11/05/98
11/05/98
11105/98
11/05/98
11/05/98
11/05/98
11/05/98
11/05/98
11105/98
11/05/98
11105/98
11105/98
11105/98
11/05/98
11105/98
11/05/98
11/05/98
11105/98
11105/98

30 C.F.R.§
75.370(a)(l)
75.503
77.404(a)
77.404(a)
77.1605(d)
77.l 103(a)
77.408
77.l 103(a)
77.404(a)
77.502
77.516
77.502
77.404(a)
77.400(a)
77.400(a)
77.400(a)
77.400(c)
77.516
77.516

Total:

CENT 1999-183
CITATION/
ORDER NO.

DATE

30 C.F.R.§
1403

3560497
3560498
3560499
3560500
4715071
4715087
4896185
4367247
4367248
4367674
4367675

11105/98
11/05/98
11/05/98
11105/98
11105/98
11/05/98
11105/98
11117/98
11/18/98
12/04/98
12/04/98

77.l 109(d)
77.1710(h)
50.40(b)
77.502
75. l 714-3(b)
75.506-1
77.516
75.203(d)
75.370(a)(l)
75.208
75.21 l(d)

Total:

$

55.00
55.00
55.00
399.00
1,122.00
1,122.00
55.00
55.00
55.00
399.00
55.00
$3,427.00

$ 20.00
20.00
20.00
88.00
234.00
234.00
20.00
20.00
20.00
88.00
20.00
$784.00

CENT 1999-211
CITATION/
ORDER NO.
3590059
3590060
4057939
4367252
4361254
4367255

DATE
10/20/98
10/21/98
10/21/98
1127199
1/27/99
1127/99

30 C.F.R.§
75.400
75.383(a)
75.380(d)(2)
75.1100-3
75.807
75.1914(a)

Total:

Prouosed Penalty
$ 1,270.00
872.00
1,270.00
55.00
55.00
993.00
$ 4,515.00

Assessed
Penal!!
$254.00
162.00
254.00
20.00
20.00
195.00
$905.00

ProRosed Penal!!
$ 760.00
55.00
760.00
760.00
1,771.00
1,771.00
2,168.00
2,168.00
55.00
872.00
259.00
760.00
760.00
55.00
$12,974.00

Assessed
Penal!!
$ 158.00
20.00
158.00
158.00
354.00
354.00
434.00
434.00
20.00
174.00
72.00
158.00
158.00
20.00
$2,672.00

CENT 1999-234
CITATION/
ORDER NO.
7599673
7599674
7599676
7599677
7599678
7599679
7599684
7599685
7599686
3849642
4367541
7600008
7600009
7600010

DATE
2109199
2/09/99
2109199
2/ 10/99
2110199
2/10/99
3/04/99
3104199
3/04/99
3/10/99
3131199
4105199
4/05/99
4105199

30 C.F.R.§
75.503
75.517
75.800-3(c)
75.32l(a)(l)
75.370(a)(l)
75.360(a)(l)
75.503
75.503
75.1722(a)
75.350
75.342(a)(4)
75.362(a)(l)
75.321(a)(l)
75.400

Total:

1404

CENT 1999-279
CITATION/
ORDER NO.
7599604
7599675
4862082

DATE
11110/98
2109199
3110199

30 C.F.R.§
75.601-1
75.803
75.380(f)(5)(i)

Total:

ProRosed Penalty
$ 2,000.00
9,500.00
55.00
$11,555.00

Assessed
Penalty
$ 400.00
1,900.00
20.00
$2,320.00

CENT 1999-303
As~essed

CITATION/
ORDER NO.
4862088
4862089
4862091
4862092
4862093
4862094
4862095
4367519

DATE
3/11/99
3/11/99
3/11199
3/11/99
3/11/99
3/13/99
3/13/99
5/27/99

30 C.F.R.§
75.1722(a)
75.1104
77.402
77.404(a)
77.402
77.516
50.20(b)
75 .330(b)(1 )(ii)

Total:

ProRosed Penaltv
$ 55.00
55.00
55.00
55.00
55.00
55.00
55.00
1,771.00
$2,156.00

Penaltv
$ 20.00
20.00
20.00
20.00
20.00
20.00
20.00
354.00
$494.00

CENT 1999-304
CITATION/
ORDER NO.
4862147
4862148
4862149
4862150
4862151
4862152
4862153
4862081
4862083
4862155
1862156
4862157
4862158
4862159
4862160
4862084
4862085
4862086
4862087

As~essed

DATE
3109199
3109199
3109199
3109199
3109199
3/09/.99
3/09/99
3110199
3/10/99
3/10/99
3/10/99
3/10/99
3/10/99
3/10/99
3/10/99
3/11/99
3/11199
3/11/99
3/11199

30 C.F.R.§
75.312(c)
75.312(d)
75.1101-l(b)
75.503
75.333(b)(3)
77.403
75.370(a)(l)
75.1403-6(a)(2)
75.400
75.512
75.400
75.1715
75.900
75. l 713-7(b)(4)
75.1104
75.360(b)(8)
75.1715
75.400
75.1100-3
1405

ProRosed Penaltv
$ 55.00
55.00
55.00
55.00
55.00
55.00
399.00
55.00
399.00
55.00
399.00
55.00
55.00
55.00
55 ..00
55.00
55.00
399.00
399.00

Penalty
$ 20.00
20.00
20.00
20.00
20.00
20.00
88.00
20.00
88.00
20.00
88.00
20.00
20.00
20.00
20.00
20.00
20.00
88.00
88.00

Total:

$2,765.00

$720.00

CENT 1999-339
CITATION/
ORDER NO.
4862090
4862096
3849649
3849650

DATE
3/11/99

3113199
6/09/99

6109199
Total:

30 C.F.R.§
ProJ!osed Penalll'.
75.220(a)(l)
$ 3,500.00
75.l 720(c)
872.00
75.370(a)(l)
5,000.00
30 U.S.C.§814{d)(2)
7,000.00
$16,372.00

Assessed
PenalD:
$ 700.00
174.00
1,000.00
1,400.00
$3,274.00

CENT 2000-158
CITATION/
ORDER NO.
7600026
7600033
7600038
7600044
7599938
4367689
7602610
7602611
7602613
7602614
7602615
7625405
7625406
7625407
7625409
7625410
7625411
7625412
7625413

DATE

5119199
5/21/99
5/21/99
5/27/99

6101199
6/15/99
8/31/99
8/31/99
8/31/99
8/31/99
8/31199
8/31199
8/31199
8/31/99
8/31/99
8/31/99
8/31/99
8/31/99
8/31199

30 C.F.R.§
75.901
77.502
75.370(a)(l)
75.514
75.400
75.330(b){1 )(ii)
75.503
75.400
75.362(a)(l)
75.400
75. l 106-3(a)(2)
77.516
77.208(e)
75.1100-3
75.l 722(a)
75.1104
75.333(b)(3)
75.33383
75.400

Total:

ProJ!osed Penalll'.
$ 5,000.00
5,000.00
8,800.00
7,500.00
1,200.00
9,500.00
55.00
277.00
655.00
277.00
55.00
55.00
55.00
55.00
55.00
55.00
55.00
55.00
55.00
$38,759.00

Assessed
PenalD:
$1,000.00
1,000.00
1,740.00
1,500.00
240.00
1,900.00
20.00
75.00
130.00
75.00
20.00
. 20.00
20.00
20.00
20.00
20.00
20.00
20.00
20.00
$7,860.00

PrOJ!OSed Penalll'.
$ 55.00
55.00
55.QO
55.00

Assessed
PenalD:
$ 20.00
20.00
20.00
20.00

CENT 2000-159
CITATION/
ORDER NO.
7625414
7625415
7625416
7625417

DATE
8/31199
8/31/99
8/31/99
8/31/99

30 C.F.R.§
75.l 107-l(a)(3)(ii)
75.1722(b)
75.904
75.904

1406

7625418
7625419
7625420
7625421
7625422
7625423
7625555
7625556
7625557
7625558
7625559
7625560
7625561
7625562
7625563

8/31 /99
8/31/99
8/31/99
8/31/99
8/31/99
8/31/99
8/31/99
. 8/31199
8/31199
8/31/99
8/31199
8/31199
8/31199
8/31/99
8/31199

75.516-2(c)
75.400
75.360(a)(l)
75.520
75.520
75.516
77.1104
77.llOl(c)
77.llO l (a)
77.1109(d)
75.400
75.364(b)(4)
75.202(a)
75.1100-3
75.1106-5(a)

Total:

55.00
340.00
294.00
55.00
55.00
55.00
55.00
55.00
55.00
55.00
655.00
55.00
399.00
55.00
55.00
$2,513.00

20.00
84.00
82.00
20.00
20.00
20.00
20.00
20.00
20.00
20.00
130.00
20.00
85.00
20.00
20.00
$681.00

Prouosed Penalty
$ 55.00
55.00
399.00
399.00
55.00
55.00
55.00
55.00
277.00
55.00
277.00
277.00
277.00
277.00
277.00
55.00
55.00
55.00
. 277.00
$3,287.00

Assessed
Penalty
$ 20.00
20.00
88.00
88.00
20.00
20.00
20.00
20.00
75.00
20.00
75.00
75.00
75.00
75.00
75.00
20.00
20.00
20.00
75.00
$901.00

CENT 2000-160
CITATION[
ORDER NO.
7625564
7625565
7625566
7625573
7625574
7602616
7602617
7602618
7602619
7602620
7602621
7602622
7602623
7602624
7602625
7602626
7602627
7602628
7602629

DATE
8/31199
8/31/99
8/31/99
8/31/99
8/31/99
9101199
9101199
9101199
9101199
9/0IL99
9101199
9/01/99
9101199
9101199
9101199
9101199
9101199
9101199
9101199

30 C.F.R.§
75.807
75.807
75.202(a)
77.809
75.311(£)
75.383(b)(2)
75.383(b)(3)
75.1702
75.202(a)
75.503
75.503
75.520
77.205(a)
77.205(a)
77.404(a)
77.1607(u)
77.1104
77.502
77.1710(e)

Total:

1407

CENT 2000-161
CITATION/
ORDER NO.
7602630
7602631
7625424
7625426
7625427
7625428
7625567
7625568
7625569
7625570
7625571
7625572
4367540

DATE
9101199
9101199
9101199
9101199
9101199
9101199
9101199
9101199
9101199
9101199
9101199
9/01/99
9129199

30 C.F.R.§
77.1104
77.404(a)
75.503
48.9(a)
48.9(a)
75.1711-3
75.202(a)
77.1104
77.1104
77.516
77.400(a)
77.1104
75.503

Total:

Prol,!osed Penalty
$ 277.00
277.00
655.00
55.00
55.00
55.00
277.00
55.00
55.00
55.00
277.00
55.00
277.00
. $2,425.00

Assessed
Penalty
$ 75.00
75.00
130.00
20.00
20.00
20.00
75.00
20.00
20.00
20.00
75.00
20.00
75.00
$645.00

Progosed Penalty
"$ 55.00
55.00
55.00
55.00
55.00
55.00
55.00
55.00
55.00
55.00
55.00
242.00
55.00
55.00
475.00
475.00
475.00
55.00
242.00
$2,679.00

Assessed
Penalty
$ 20.00
20.00
20.00
20.00
20.00
20.00
20.00
20.00
20.00
20.00
20.00
75.00
20.00
20.00
95.00
95.00
95.00
20.00
75.00
$715.00

CENT 2000-164
CITATION/
ORDER NO.
7599973
7599974
7600085
7600086
7600087
7600088
7600089
7600090
7600091
7600092
7600094
7600095
7600096
7600109
7600112
7600113
7600116
7600118
7600119

DATE
11115/99
11/15/99
11115/99
11/15/99
11115/99
11115/.99
11115/99
11115/99
11115/99
11115/99
11115/99
11115/99
11115/99
11/15/99
11/15/99
11115/99
11/15/99
11/15/99
11/15/99

30 C.F.R.§
75.1100-2(e)(l)
75.1100-2(e)(2)
77.206(c)
77.1104
77.404(a)
77.1104
77.202
77.1104
77.1104
77.502
77.1103(d)
75.203(e)(2)
75.1718
75.516-2(c)
75.1100-3
75.l 107-16(c)
75.1725(a)
75.370(a)(l)
75.370(a)(l)

Total:
1408

CENT 2000-165
CITATION/
ORDER NO.
7600121
7599976
7599977
7600123
4366803
7600098
7600099
7600100
7600141
7600142
7600145
7600146
7600147
7600148
7600149
7600150
4366805
4367701
4367702

DATE
11115/99
11117/99
11/17/99
. 11117/99
11118/99
11118/99
11118/99
11/18/99
11118/99
11/18/99
11/22/99
11122/99
11/22/99
11/22/99
11/22/99
11/23/99
11/29/99
11129/99
11/29/99

30 C.F.R.§
75.370(a)(l)
75.1725(a)
75.400
77.404(a)
75.400
75.1914(a)
75.503
75.400
75.1914(a)
75. l 914(a)
75. l 713-7(a)
75.606
75.400
75.807
75.400
77.206(c)
75.1909(a)(3)(i)
7 5. l 909(b)(4)
75.1905(b)(5)

Total:

Pronosed Penalty
$ 475.00
55.00
242.00
55.00
242.00
55.00
55.00
55.00
655.00
655.00
55.00
55.00
317.00
55.00
55.00
317.00
242.00
55.00
55.00
$3,750.00

Assessed
Penalty
$ 95.00
20.00
75.00
20.00
75.00
20.00
20.00
20.00
130.00
130.00
20.00
20.00
85.00
20.00
20.00
85.00
75.00
20.00
20.00
$970.00

Pro,Rosed Penalty
$ 55.00
242.00
55.00
55.00
55.00
55.00
259.00
475.00
55.00
55.00
242.00
242.00
340.00
55.00
55.00

Assessed
Penalty
$ 20.00
75.00
20.00
20.00
20.00
20.00
76.00
95.00
20.00
20.00
75.00
75.00
84.00
20.00
20.00

CENT 2000-166
CITATION/
ORDER NO.
7599978
7599979
7600151 .
7600152
7600153
4366811
4367703
4367704
4367705
4366812
7600129
7600130
7600131
7600132
7600133

DATE
11/29/99
11/29/99
11/29/99
11/29/99
11/29/99
12/01/99
12/01199
12/06/99
12/06/99
12/07/99
12/21/99
12/21/99
12/21/99
12/21/99
12/21/99

30 C.F.R.§
75.364(b)(4)
75.503
77.1104
75.400
75.1906(d)
75.516-2(c)
75.342(a)(4)
75.370(a)(l)
75.360(a)(l)
75.503
75.364(b)
77.208(d)
75.400
75.516-2(c)
75.333(e)(l)(ii)

1409

7600134
4541921
4541922

12/21199
12/27/99
12/27/99

75.361(b)
75.360(f)
75.807

Total:

55.00
55.00
55.00
$2,460.00

20.00
20.00
20.00
$720.00 .

CENT 2000-167
CITATION/
ORDER NO.
4366814
4366815
4366816
4366817
4366818
4366819
4366820
7600154
7600155
7600156

DATE
1107/00
1107100
1107100
1107100
1/07/00
1/07/00
1107100
1107100
1/07/00
1/10/00

30 C.F.R.§
75.516-2(c)
75.516-2(c)
75.333-(c)(2)
75.333-(c)(2)
75.516-2(c)
75.333-(c)(2)
75.601-1
75.601-1
75.902
75.400

Total:

ProRosed Penaltt
$ 55.00
55.00
55.00
55.00
55.00
55.00
55.00
55.00
55.00
55.00
$550.00

Assessed
PenaltI
$ 20.00
20.00
20.00
20.00
20.00
20.00
20.00
20.00
20.00
20.00
$200.00

Progosed Penaln
$55.00
55.00
55.00
55.00
55.00
$275.00

Assessed
Penaln
$ 20.00
20.00
20.00
20.00
20.00
$100.00

Progosed Penaln
$ 9,000.00
399.00
399.00
399.00
399.00
55.00
55.00
224.00
224.00
55.00
55.00

Assessed
Penaln
$1,800.00
90.00
90.00'
90.00
90.00
20.00
20.00
70.00
70.00
20.00
20.00

CENT 2000-196
CITATION/
ORDER NO.
4367389
4367392
4896874
4896875
7600105

DATE
9/0li99
9101199
9101199
9/01/99
9121199

30 C.F.R.§
50.20(a)
50.ll(b)
50.11.(b)
50.20(a)
75. l 722(c)

Total:

CENT 2000-255
CITATION/
ORDER NO.
7602612
7600110
7600111
7600114
7600115
7600117
7600120
7600124
7600125
4366006
4366807

DATE
8/31199
11/15/99
11115/99
11115/99
11115/99
11115/99
11115/99
11117/99
11/17/99
11/29/99
11129/99

30 C.F.R.§
75.400
75.400
75.400
75.400
75.400
75.333(e)(l)(ii)
75.333(e)(l)(ii)
75.400
75.400
75.1910(g)
75. l 909(a)(3)(x)
1410

4366808
4366809
4366810
4367706
4367707
4367708

11129/99
11129/99
11/29/99
1/31/00
1/31/00
1/31/00

75.1909(a)(IO)
75.1910(i)
75.1910(j)
75. l 909(a)(3)(i)
75.202(a)
75.364(b)(4)

Total:

55.00
55.00
55.00
55.00
196.00
55.00
$11,735.00

20.00
20.00
20.00
20.00
75.00
20.00
$2,555.00

ProRosed Penal!}'.:
$ 55.00
55.00
150.00
242.00
$502.00

Assessed
Penal!}'.:
$ 20.00
20.00
55.00
75.00
$170.00

ProRosed Penal!}'.:
$ 3,500.00
55.00
55.00
55.00
196.00
55.00
55.00
55.00
55.00
196.00
196.00
55.00
55.00
55.00
55.00
55.00
196.00
55.00
-196.00
$5,195.00

Assessed
Penalty
$ 700.00
20.00
20.00
20.00
75.00
20.00
20.00
20.00
20.00
75.00
75.00
20.00 .
20.00
20.00
20.00
20.00
75.00
20.00
75.00
$1,335.00

CENT 2000-265
CITATION/
ORDER NO.
3557635
3470271
4367711
4367712

DATE
2/17/00
3/07/00
3/09/00
3/14/00

30 C.F.R.§
75.400
75.380(d)(4)
75.202(a)
75.403

Total:
CENT 2000-290
CITATION/
ORDER NO.
4367459
3557621
3557622
3557623
3557624
3557625
3557626
7633535
7633536
7633537
7633538
7633539
7633540
7633541
7633542
7633543
7633544
7633545
3557627

DATE
11/18/99
2/15/00
2/15/00
2/15/00
2/15/00
2/15/00
2/15/00
2/15/00
2115100
2/15/00
2/15/00
2/15/00
2/15/00
2/15/00
2/15/00
2/15/00
2/15/00
2/15/00
2/16/00

30 C.F.R.§
75.1100-3
75.364(b)(4)
75.400
75.1910(f)
75.400
75.191 l(a)(4)
75.1909(d)
75.1101-l(b)
75.l 103-4(b)
75.1722(b)
75.1722(b)
75.400
75.400
77.404(a)
77.205(b)
77.1110
77.1103(a)
75.203(e)
75.202(a)

Total:

1411

CENT 2000-291
CITATION/
ORDER NO.
3557628
3557629
3557630
3557631
3557632
4704677
4704678
4704679
7633546
7633547
7633548
7633549
7633550
7633551
7633552
7633553
3557633
3557634
3557636

DATE
2/16/00
2/16/00
2/16/00
2/16/00
. 2/16/00
2116100
2116100
2116100
2/16/00
2/16/00
2/16/00
2/16/00
2/16/00
2/16/00
2/ 16/00
2/16/00
2/17/00
2/17/00
2/17/00

30 C.F.R.§
75.516
75.202(a)
75.333(c)(3)
75.364(g)
75.1202-l(b)(3)
75.364(h)
75.364(b)
75.372(a)(l)
75.1720(a)
75.400
75.194(f)
75.1914(a)
75.202(a)
75.400
75.1713-7(c)
75.202(a)
75.360(e)
75.202(a)
75.l 103-8(b)

Total:

Pronosed Penalty
$55.00
196.00
55.00
55.00
55.00
55.00
55.00
55.00
207.00
196.00
55.00
196.00
55.00
55.00
55.00
55.00
55.00
196.00
55.00
$1,761.00

Assessed
Penalty
$ 20.00
75.00
20.00
20.00
20.00
20.00
20.00
20.00
75.00
75.00
20.00
75 :00
20.00
20.00
20.00
20.00
20.00
75.00
20.00
$655.00

Pronosed Penalty
$196.00
55.00
55.00
196.00
55.00
150.00
55.00
$762.00

Assessed
Penaltt
$ 75.00
20.00
20.00
75.00
20.00
55.00
20.00
$285.00

Pronosed Penaltv
$ 55.00
55.00
55.00
317.00
317.00

Assessed
Penalty ·
$ 20.00
20.00
20.00
85.00
85.00

CENT 2000-292
CITATION/
ORDER NO.
7633554
7633555
7633556
4367709
4367713
4367714
4367715

DATE
2117/00
2/17/00
2117/QO
2129100
3/23/00
3/23/00
3128100

30 C.F.R.§
75.604(b)
75. l 107-9(a)(l)
75. l 107-9(a)(l)
75.208
75.1909(b)(5)
75.220(a)(l)
75.1200-l(h)

Total:

CENT 2000-299
CITATION/
ORDER NO.
7600043
7599935
7599936
7599937
3849646

DATE
5125199
6/01/99
6101199
6/01/99
6102199

30 C.F.R.§
75.513
75.364(a)(l)
77.404(a)
75.1724
75.400
1412

6102199
6102199
6103199
6105199
6/07/99
6107199
6107199
. 6109199
6114199
6/14/99
6/15/99
7112/99
7122199

3849647
3849648
4367520
4367681
4367682
4367683
4367684
4367685
4367686
4367687
4367688
2930987
7600065

75.1722(b)
75.400
77.207
77.401(a)(2) .
75.503
75.503
75.31 O(a)(3)
75.1103-4(e)
77.1605(d)
77.1605(b)
75.330(b)(l)(ii)
75.220(a)(l)
75.604(d)

Total:

317.00
55.00
55.00
317.00
317.00
317.00
55.00
55.00
55.00
317.00
872.00
277.00
55.00
$3,863.00

85.00
20.00
20.00
85.00
85.00
85.00
20.00
20.00
20.00
85.00
175.00
75.00
20.00
$1,025.00 .

Pronosed Penalty
$ 55.00
317.00
55.00
55.00
294.00
$776.00

Assessed
Penaltt$ 20.00
85.00
20.00
20.00
85.00
$230.00

Pronosed Penalty
$196.00
196.00
196.00
$588.00

Assessed
Penaltt
$ 75.00
75.00
75.00
$225.00

Pronosed Penalty
$ 2,000.00
5,000.00
1,500.00
1,500.00
850.00
242.00
$11,092.00

Assessed
Penaltt
$ 400.00
1,000.00
300.00
300.00
170.00
75.00
$2,245.00

CENT 2000-300
CITATION/
ORDER NO.
7625425
7600081
7600082
7599960
7599961

DATE
9101199
10/13/99
10/13/99
10/19/99
10/19/99

30 C.F.R.§
30 U.S.C. §109(a)
75.370(a)(l)
75.511
75.403
75.370(a)(l)

Total:

CENT 2000-327
CITATION/
ORDER NO.
7599999
7600000
7600281

DATE
2107100
2107100
2107100

30 C.F.R.§
75.400
75.400
75.202(a)

Total:
CENT 2000-328
CITATION/
ORDER NO.
7599975
7600122
7600097
7600143
7600144
4367719

DATE
11115/99
11115/99
11/22/99
11122/99
11/22/99
4/28/00

30 C.F.R.§
75.400
75.360(a)( 1)
75.1906(a)
75.400
75.1906(b)
75.400

Total:
1413

CENT 2000-418
CITATION/
ORDER NO.
4367720
4541965
4541958
4541959
4541960
4542001
4542002
4542003
4542004
4542005
4542006
4542007
4542008
4542009
4542010
4542011
4542012
4542021
4542022

DATE
5110100
5/22/00
6/05/00
' 6/05100
6/05/00
6105100
6105100
6105100
6/05/00
6105100
6/05/00
6105100
6105100
6105100
6105100
6106100
6106100
6/08/00
6/08/00

30 C.F.R.§
50.20(a)
75.220(a)(l)
75.202(a)
75.333(b)
75.202(a)
75.202(a)
75.512
75.705-(b)(a)(l)
75.202(a)
75.807
75.512
75.1103-l(a)
75.l 106-5(a)
75.l 725(a)
75.203(e)(l)
75.1722(c)
75.364(a)(2)(iii)
75.503
75.1403

Total:

Pronosed Penaltt
$ 55.00
55.00
55.00
55.00
340.00
55.00
55.00
55.00
131.00
55.00
55.00
55.00
55.00
131.00
131.00
131.00
131.00
55.00
55.00
$1,710.00

Assessed
Penalll:'.
$ 20.00
20.00
20.00
20.00
85.00
20.00
20.00
20.00
50.00
20.00
20.00
20.00
20.00
50.00
50.00
50.00
50.00
20.00
20.00
$590.00

Pronosed Penaltt
$ 55.00
55.00
55.00
131.00
$296.00

Assessed
Penaltv
$20.00
20.00
20.00
50.00
$110.00

Pronosed Penalll:'.
$ 55.00
150.00
150.00
55.00
55.00
55.00
55.00

Assessed
Penaltt
$ 20.00
55.00
55.00
20.00
20.00
20.00
20.00

CENT 2000-420
CITATION/
ORDER NO.
4542023
7600140
4541971
4542030

DATE
6/08/00
6/12/00
6/15/00
6/22/00

30 C.F.R.§
75.1914(a)
50.20(a)
75.310(f)
75.1715

Total:
CENT 2000-426
CITATION/
ORDER NO.
7636009
4541961
4541962
4541963
4541966
4541967
7600304

DATE
3113100
5/11/00
5111100
5/22/00
5122100
5122100
5/22/00

30 C.F.R.§
75.372(b)
75.400
75.203(e)(l)
75.333(c)(2)
75.400
75.1907(b)(2)
75. l 713-7(a)(l)

1414

5122100
5122100
5122100
5122100
5122100
5122100
5122100
. 5/22/00
5/22/00
5122100
5122100
5122100

7600305
7600306
7600307
7600308
7600309
7600310
7600486
7600488
7600490
7600491
7600497
7600498

77.1104
77.208(c)
75.400
75.400
75.400
75.400
75.400
75.1403
75.1906(k)
75.512
75.1725(a)
75.1722(a)

Total:

55.00
55.00
55.00
150.00
150.00
150.00
55.00
196.00
55.00
55.00
196.00
196.00
$1,943.00

20.00
20.00
20.00
55.00
55.00
55.00
20.00
75.00
20.00
20.00
75.00
75.00
$720.00

ProRosed Penalty
$ 55.00
55.00
55.00
55.00
55.00
196.00
$471.00

Assessed
Penalty
$ 20.00
20.00
20.00
20.00
20.00
75.00
$175.00

Pronosed Penalty
$3,500.00
55.00
55.00
$3,610.00

Assessed
Penalty
$700.00
20.00
20.00
$740.00

ProRosed Penalty
$131.00
131.00
55.00
131.00
55.00
$503.00

Assessed
Penalty
$ 50.00
50.00
20.00
50.00
20.00
$190.00

CENT 2000..427
CITATION/
ORDER NO.
7600502
4541981
4541982
7600311
7600504
7600505

DATE
5/22/00
5/23/00
5/23/00
5/23/00
5/23/00
5/23/00

30 C.F.R.§
75.308(f)(4)(ii)
75.701
75.1910(i)
75.380(d)(2)
77.1103(b)
75.1910(b)

Total:
CENT 2000-428
CITATION/
ORDER NO.
7600282
4541946
4541969

DATE
2107100
5/30LOO
6101100

30 C.F.R.§
75.370(a)(l)
77.516
75.1104

Total:
CENT2001-6
CITATION/
ORDER NO.
7600313
7600314
7600315
4541973
4542031

DATE
6/28/00
6/28/00
6/28/00
7106100
7/06/00

30 C.F.R.§
75.203(e)(2)
75.203(b)
75. l 909(a)(3)(i)
75.202(a)
75.333(h)

Total:

1415

CENT 2001-7
CITATION/
ORDER NO.
4367716
7600487
7600489
7600492
7600493
7600501
7600503
7600510
4542013
4541936

DATE
3/28/00
5122100
5122100
5/22/00
5/22/00
5122100
5/22/00
5/31/00
6/08/00
7/07/00

30 C.F.R.§
75.220(a)(l)
75.400
75.400
75.400
75.400
75.400
75.400
77.404(a)
75.334(b)(2)
50.20(a)

Total:

Provosed Penalty
$
900.00
1,000.00
1,800.00
1,800.00
1,300.00
1,800.00
1,800.00
800.00
1,500.00
55.00
$12,755.00

Assessed
Penalty
$ 180.00
200.00
360.00
360.00
260.00
360.00
360.00
160.00
300.00
20.00
$2,560.00

Pronosed Penalty
$224.00
224.00
294.00
$742.00

Assessed
PenalD::
$ 70.00
70.00
82.00
$ 222.00

$213,201.00

$49,398.00

CENT 2000-163
CITATION/
ORDER NO.
7599015
4366680
7599734

DATE
8/11/99
8/17/99
10/27/99

30 C.F.R.§
50.20(a)
77.1707(b)
77.1701(a)

Total:
TOTAL:

ORDER
James V. Smedley IS ORDERED to pay a civil penalty of$1,600.00 within 30 days of
the date of this proceeding and upon full payment, Docket No. CENT 2000-391 is DISMISSED.
Kenneth Clark IS ORDERED to pay a civil penalty of $900.00 within 30 days of the
date of this proceeding and upon full payment Docket No. CENT 2000-400 is DISMISSED.
Tim Ball IS ORDERED to pay a civil penalty of$800.00 within 30 days of the date of
this proceeding and upon full payment Docket No. CENT 2000-401 is DISMISSED.

1416

Finally, GCI IS ORDERED to pay a civil penalty of$72,298.00 within 30 days of the
date of this proceeding and upon full payment Docket Nos. CENT 1999-178 and CENT 2000197, etc., are DISMISSED.

__J)c."~d/-:.6,~~
David F. Barbour
Chief Administrative Law Judge

Distribution: (Certified Mail)
Christopher V. Grier, Esquire, Office of the Solicitor, U.S. Department of Labor, 525 South
Griffin St., Suite 501, Dallas, TX 75202
Brian A. Duncan, Esquire, Office of the Solicitor, U.S. Department of Labor, 525 South Griffin
St., Suite 501 , Dallas, TX 75202
Elizabeth M. Christian, Esquire, 7940 Pipers Creek Road, Suite 1812, San Antonio, TX 78251
/wd

1417

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

December 27, 2001
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CNIL PENALTY PROCEEDING
Docket No. YORK 99-39-M
A. C. No. 30-02851-05504

V.

Seymour Road Pit
DOUGLAS R. RUSHFORD TRUCKING,
Respondent
DECISION

Appearances:

Suzanne Demitrio, Esq., Office of the Solicitor, U.S. Department of Labor,
New York, New York, on behalf of Petitioner;
Thomas M. Murnane, Esq., Stafford, Trombley, Owens & Curtin, PC,
Plattsburgh, New York, on behalf of Respondent.

Before:

Judge Melick

This civil penalty proceeding under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 (1994), et seq., the "Act," is before me upon remand by the Commission for
reassessment of a civil penalty ag~inst Douglas R. Rushford Trucking (Rushford) for its violation
of the standard at 30 C.F.R. § 56.14104(b)(2). 1
Rushford operated the Seymour Road Pit in Clinton County, New York. On August 28,
1998, when Rushford employee Nile Arnold attempted to inflate a tire on a fuel truck, the wheel
rim exploded and struck Arnold in the head. At the time, Arnold was not using a stand-off
inflation device nor was there such a device available on the mine site. On August 30, 1998,
Arnold died as a result of the injuries he sustained. After conducting an investigation, the
Department of Labor's Mine Safety and Health Administration (MSHA) charged Rushford with
violating 30 C.F.R. § 56.14104(b)(2). That standard requires that stand-off inflation devices be

I -

The initial decision of the trial judge, 22 FMSHRC 74 (January2000), will be
noted as "Rushford AL.I-I," the trial judge's decision following remand, 22 FMSHRC 1127
(September 2000) as "Rushford ALJ-11," the first decision by the Commission on review, 22
FMSHRC 598 (May 2000) as "Rushford Review I" and the second decision on review, 23
FMSHRC 790 (August 2001) as ''Rushford Review II"

1418

used "to prevent injuries from wheel rims during tire inflati_o n." As indicated, the matter has
been remanded for reassessment of a civil penalty.
As the Commission has noted, the initial findings of "gross negligence" and
"unwarrantable failure" by the trial judge in Rushford ALI-I were.not remanded and became the
law of the case. In Rushford Review-I the matter was remanded for further explanation of the
application of the civil penalty criteria and, in particular, the findings of"gross negligence."
Cognizant of the law in this regard and of the specific terms and limits of the remand order, a
discussion was provided in Rusliford ALI-II for the purpose of explaining where the facts of this
case fit into the framework of such "gross negligence" findings. "Gross negligence" is not, of
course, a monolithic concept but includes many gradations of severity. The discussion provided
in Rushford ALI-II was presented to comply with the Commission's remand order and to explain
that the "gross negligence" herein was not at the highest end of the "gross negligence"
continuum. The findings of"gross negligence" were not, in fact, reduced to "simple negligence"
and no order to that effect was issued. Moreover, no modification ofthe ''unwarrantable failure"
findings was made and no order to that effect was issued. In addition, the civil penalty on
remand was not decreased, but rather was increased from $3,000.00 to $4,000.00. That increased
penalty incorporated the findings of"gross negligence." 2
In considering whether the civil penalty assessed herein is supported by "substantial
evidence" reference to the objective formula set forth in the Secretary of Labor's own regulations
at 30 C.F.R. Part 100 may provide a useful comparison. While the Commission and its judges
are, of course, not bound by those regulations, they nevertheless provide an objective standard for
measuring an appropriate civil penalty by assigning numerical weight to the relevant "Section
11 O(i) " criteria and then by applying a standardized formula.
Reference to this objective standard, rather than to the Secretary's arbitrary, subjective
and secretive "special assessment," removes the process from possible taint due to passion,
prejudice or other unlawful motivation. In addition, the factual basis for deriving a penalty under
the Part 100 formula is transparent and exposed for all to see. The secretive "special assessment"
in this case was made without full disclosure of any considered analysis of the statutory penalty
criteria. There is no way to know, therefore, whether the penalty proposed by the Secretary
herein was based upon improper considerations and/or erroneous assumptions of fact. Indeed, as
we now know, the proposed penalty was in fact based upon erroneous assumptions. In addition
there is evidence that the Secretary may have also relied upon improper considerations in that she
has argued that certain factors outside the scope of the "Section 11 O(i)" criteria should be
considered in assessing a civil penalty herein.

2

The use in Rushford ALI-II of the maximum 25 penalty points for negligence (the
equivalent of"reckless disregard" under 30 C.F.R. § 100.3(d)), to compute and compare a
penalty under the Secretary's Part 100 formula is likewise inconsistent with any reduction of
such "gross negligence" findings to "simple negligence." See 22 FMSHRC at p.1132.

1419

It should'also be noted that the Secretary's pleading entitled ''Narrative for Special
Assessment" which purports to provide a "considered analysis," is nothing more than a form
letter used in special assessment cases in which bald assertions are anonymously made that:

MSHA has carefully evaluated·the condition cited, the inspector's relevant
information and evaluation, and the information obtained from the Report of
Investigation. The proposed penalty reflects the results of an objective and fair
appraisal of alf the facts presented.
As noted, the Secretary was unable to furnish any information underlying her purported
penalty analysis in this case. There is indeed no explanation for the extreme divergence between
the Secretary's objective standard civil penalty of $3,234.00 calculated under her Section 100.3
formula and the subjective inadequately substantiated proposal of $25,000.00, in this case.
Without an adequate explanation for such a divergence, the credibility of her "special
assessment" is indeed further jeopardized by the appearance of arbitrariness and should not
properly be considered as a benchmark or guideline for an appropriate de novo penalty
assessment by the Commission and its judges.
Applying the factual findings in this case, which have now been affirmed by the
Commission in Rushford Review-II, to the objective formula set forth in 30 C.F.R. § 100.3,
would result in a civil penalty of $3,234.00, for the violation herein. Under that formula,
Rushford would receive 0 penalty points for.its small size, 20 penalty points for its history of
violations, 25 penalty points for "gross negligence," 10 penalty points for the fact that the event
had "occurred," 10 penalty points for severity in causing the fatality and I penalty point for the
one person affected.by the event. In addition, under 30 C.F.R. § 100.3(f), a 30% reduction would
be given for good faith abatement.
Under the circumstances, considering the criteria under Section l lO(i) of the Act, and
considering that the underlying premise for the remand in Rushfor.d Review-JI was incorrect, I
find that a civil penalty of $4,000.00 is indeed appropriate for the violation at issue herein.

ORDER
Douglas R. Rushford Trucking is hereby directed to pay civil penalties of $4,000.00, for
the violation charged herein within 40 days of the date of this decision.

/;

!·

i'

\.

\

(:

, .~~~
V

Gary Mkick
Administrative Law Judge

1420

Distribution: (Certified Mail)
Suzanne Demitrio, Esq., Office of the Solicitor, U.S. Dept. of Labor, 201 Varick St., Room 707,
New York, NY 10014
Thomas M. Murnane, Esq., Stafford, Trombley, Owens & Curtin, PC, One Cumberland Avenue,
P.O. Box 2947, Plattsburgh, NY 12901
/mca

1421

ADMINISTRATIVE LAW JUDGE ORDERS

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

December 27, 2001
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 2001-58
A.C. No. 46-08476-03513

v.
CC COAL COMPANY,
Respondent

Skitter Creek Mine #1

ORDER DENYING IN PART A MOTION TO
COMPEL DISCOVERY
AND GRANTING IN PART A MOTION TO
COMPEL DISCOVERY

This case is before me on a Petition by the Secretary to assess a Civil Penalty for the
alleged violation of mine safety regulations. The parties have filed prehearing summary
statements pursuant to my prehearing order and ar~ engaged in discovery in preparation for a
hearing now scheduled for January 23, 2002, in Charleston" West Virginia. 1
On December 11, 2001, the respondent filed a motion to compel discovery, seeking two
classes of information; (I) records of the process of calculating the Civil Penalty proposed by the
Secretary, and (2) documents obtained in the course of an investigation, including witness
statements. On December 19, 2001 , the Secretary filed a response to the motion, including
copies of the requested inv~stigative documents for my in camera inspection. For the reasons
given below, I deny the motion with a few exceptions listed..
Method of Assessment
Respondent asserts a need to know the method used by the Secretary in calculating the
proposed Civil Penalty in this case. The Secretary responds by invoking the "deliberative
process" privilege and contending that Respondent has not shown a ~ompelling need for
information on the process to justify overriding the privilege. It is my understanding Respondent
has been provided the penalty assessment sheet.

1

The timeliness of the Motion to Compel was never seriously in doubt. See, letter of
December 26, 2001, from Respondent's Counsel to the Administrative Law Judge.
1422

The motion does not raise legal issues as to the existence and scope of the "deliberative
process" privilege. There is no question about the privilege extending to the consultations, oral
or written, between government officials leading up to a determination of the amount of a Civil
Penalty to assert in a case such as this. Respondent is entitled to know the factual information
used by these officials and the criteria which they employed in evaluating the factual information.
Respondent is not seeking either the factual information or the criteria. Respondent is seeking to
know the significance the officials placed on particular bits of information. This is precisely
what is protected by the privilege.
Further, Respondent has not made a compelling showing of need for this privileged
information. At the hearing, the way MSHA officials evaluated information in reaching their
conclusion as to an appropriate Civil Penalty would not be relevant. The issue at a hearing will
be how I evaluate the information presented as it relates to an appropriate Civil Penalty·amount.
Investigative Records
The investigative records sought in this case fall into three basic categories; (1) records of
interviews with management, (2) records of interviews with miners, and (3) records of
conversations with Respondent's attorney. All of these records were created or obtained
subsequent to the issuance of a citation by a mine inspector. I find the timing alone qualifies
these records under the Work Product privilege; all of them were created or obtained when the
probability of litigation was sufficiently great to consider them "in contemplation" of litigation.
On the other hand, I find Respondent has shown a sufficient need for the information to
overcome this relatively weak privilege. Unless the documents are otherwise privileged,
Respondent is entitled to them. The parties appear to agree that the applicable law is well
articulated in the decision by Judge Feldman in Secretary ofLabor v. Root Neal & Company,
21FMSHRC835 (July 1999).
The other privilege asserted for these documents is the "informant" privilege. I note
initially that this privilege protects only the identity of the informant. It does not protect the
information which the informant has provided unless the information is such as to precisely
identify the informant. I note also that the privilege extends only to informants who are
"miners." I find the privilege does not extend to mine management staff, members of the general
public, or to government employees.
Applying these principles to the documents provided to me in camera I conclude the
Secretary is obligated to produce all the documents other than the Memoranda to File by Linda
Roberts da:t~d January 23 and February 12, 2001.
ORDERED as follows:

1. Secretary will provide to the Respondent all the documents which accompanied the
Secretary's December 20, 2001, letter to me ·except for the Memoranda to File by Linda Roberts
1423

dated January 23 and February 12, 2001.
2. Except for the documents to be produced under paragraph 1, above, the motion to
compel discovery is denied.

rwin Schroeder
Administrative Law Judge
703-756-5232
Distribution:
Alfred R. Hernandez, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Blvd., Suite 516, Arlington, VA 22203 (Certified Mail)
Mark E. Heath, Esq., HEENAN, ALTHEN & ROLES, BB&T Square, 300 Summers St.,
Suite 1380, P.O. Box 2549, Charleston, WV 25329-2549 (Certified Mail)
/mh

1424

Federal Mine Safety & Health
Review
Commission
.
.
Calendar Year 2001 Index
This index of decisions and orders issued during the calendar year 2001 is divided into two parts: decisions
and orders issued by the Commission, followed by those issued by the Administrative Law Judges (ALJ's).
The listings inClude titles, docket numbers, date of issuance, and page numbers in the Federal Mine Safety and
Health Review Commission Decisions Bluebook (FMSHRC), Volume 23. Where the Secretary of Labor,
Mine Safety and Health Administration is a party, listings are under the name of the opposing party.

Commission Decisions and Orders
Case Name

Docket Number

Date

Page Number
FMSHRC, Vol. 23

46 Sand & Stone

SE 2001-151-M

10-23-2001

Pg. 1091

Ahern & Associates,
Inc.

WEVA2001-6

02-07-2001

Pg. 121

Alcoa Alumina &
Chemicals, LLC

CENT 2000-101-M

09-14-2001

Pg. 911

Arch of West
Virginia

WEV A 2000-55

12-04-2001

Pg. 1285

Asarco, Inc.

WEST 2001-511-M, etc.

10-31-2001

Pg. 1136

Baker Slate, Inc.

YDRK 2001-61-M

08-22-2001

Pg. 818

09-19-2001

Pg.924

Bernardyn (Sec'y of PENN 99-158-D, etc.
Labor on behalf of)
v. Reading
Anthracite Co.
Black Gold
Trucking Co.

SE 2001-113

08-22-2001

Pg. 797

Cantera Bravo Inc.

SE 2001-107-M

08-22-2001

Pg.809

Carri Scharf
Materials Co.

LAKE 2001-154-M

08-22-2001

Pg. 813

1

Commission Decisions and Orders
:

Case Name

Docket Number

Date

~age Number
.FMSHRC. Vol. 23

Carroll County
Stone, Inc.

CENT 2001-247-M .

11-26-2001

Pg. 1213

Central Mountain
Materials

WEST 2001-260-M

09-10-2001

Pg.907

Central Sand &
Gravel Co.

CENT 98-230-RM, etc.

03-20-2001

Pg.250

Close Construction
Co.

CENT 2001-89-M

04-17-2001

Pg.378

Cominco Alaska,
Inc.

WEST 2001-491-M

09-27-2001

Pg. 1026

Concrete Materials
of Montana, LLC

WEST 2001-413-M

11-20-2001

Pg. 1209

Consolidation Coal
Co.

WEVA98-37
WEVA 98-148

04-30-2001
06-28-2001

Pg. 3.92
Pg.588

Contractors Sand &
Gravel, Inc.

WEST 2000-421, etc.

06-15-2001

Pg.570

D.A.S. Sand &
Gravel, Inc.

YORK 2001-67-M

09-27-2001

Pg. 1031

Dacotah Cement

CENT 2001-37-M

01-26-2001

Pg. 31

Dees, Justin

CENT 2001-340-M

09-28-2001

Pg. 1035

Doe Run Co.

CENT 2001-355-M

09-27-2001

Pg. 1012

Dolan v. F&E
Erection Co.

CENT 97-24-DM

03-14-2001

Pg. 235

Douglas R
Rushford Trucking

YORK 99-39-M

08-10-2001

Pg. 790

Dynatec Mining
Corp.

WEST 94-645-M

01-19-2001

Pg. 4

2

Commission Decisions and Orders

Case Name

Docket Number

Date

Page Number
FMSHRC. Vol. 23

Eagle Energy, Inc.

WEVA98-39
WEYA 98-72-R, etc.

08-30-2001·
10-30-2001

Pg. 829
Pg. 1107

Eclipse C Corp.

WEST 2000-617-M, etc.

02-07-2001

Pg. 134

Eighty Four Mining
Co.

PENN 2001-171

10-30-2001

Pg. 1102

Excel Mining, LLC

KENT 99-171-R, etc.

06-29-2001

Pg. 600

Georges Colliers,
Inc.

CENT 2000-65, etc.

08-23-2001

Pg.822

Good, Alan Lee
(d/b/a/ Good
Construction)

WEST 2000-44-M, etc.

09-25-2001

Pg.995

H&DCoalCo.

KENT 2001-107

04-18-2001

Pg. 382

Harriman Coal
Corp.

PENN 2000-203
PENN 2001-85

02-12-2001
06-05-2001

Pg. 153
Pg. 565

Heartland Cement
Co.

CENT 2001-374-M

09-27-2001

Pg. 1017

Holbrook, Landon

WEYA 2000-118

02-16-2001

Pg. 158

Island Creek Coal
Co.

VA 99-11-R

02-09-2001

Pg. 138 .

J. Davidson & Sons
Construction Co.

WEST 2001-162-M
WEST 2001-162-M

05-29-2001
10-23-2001

Pg.502
Pg. 1099

Jackson (Sec'y of
Labor on behalf ot)
v. Mountain Top
Trucking Co.

KENT 95-613-D

11-28-2001

Pg. 1230

Kaiser Cement
Corp.

WEST 2001-182-M, etc.

04-17-2001

Pg.374

3

Commission Decisions and Orders

Case Name

Docket Number

Date

Page Number
FMSHRC, Vol. 23

Lopke Quarries,
Inc.

VA 99-17-M

07-31-2001

Pg. 705

McGill (Sec'y of
Labor on behalf ot)
v. U.S. Steel Mining
Co.

SE 2000-39-DM

09-24-2001

Pg.981

Missoula County
Road Department

WEST 2001-124-M

04-17-2001

Pg.369

Noakes (Sec'y of
Labor on behalf ot)
v. Gabel Stone Co.

CENT 2000-75-DM
CENT 2000-75-DM

05-11-2001
11-30-2001

Pg.479
Pg. 1222

Noe, Jr. (Sec'y of
Labor on Behalf ot)
v J&C Mining, LLC

KENT 99-248-D

01 -19-2001

Pg. 1

Northern Illinois
Steel Supply Co.

LAKE 99-78-RM, etc.

02-28-2001

Pg. 162

Original Sixteen to
One Mine, Inc.

WEST 2001-23-M
WEST 2000-63-M, etc.

02-12-2001
11 -28-2001

Pg. 149
Pg. 1217

Osborn, Vester

KENT 2001-230

09-17-2001

Pg.919

Penn American
Coal, LP

PENN 2001-162

09-27-2001

Pg. 1021

Perry County Coal
Corp.

KENT 2001-298

10-31-2001

Pg. 1132

Powell Mountain
Coal Co.

VA2001-5

02-12-2001

Pg. 144

Rawl Sales &
Processing Co.

WEVA 99-13-R

05-09-2001

Pg.463

Read Sand &
Gravel

YORK 2001-65-M

10-23-2001

Pg. 1095

4

Commission Decisions and Orders

Case Name

Docket Number

Date

Page Number
FMSHRC. Vol. 23

Red Coach
Trucking

YORK 2000-89-M, etc.

02-07-2001

Pg. 125

San Juan Coal Co.

CENT 2001-102

08-22-2001

Pg. 800

Shirley Land
Development Inc.

SE 2001-108-M

08-22-2001

Pg. 805

Star Sand Co.

CENT 2000-437-M

01-29-2001

Pg.36

Target Industries,
Inc.

PENN 97-170, etc.

09-20-2001

Pg.945

Upper Valley
Materials

CENT 2000-434-M

02-07-2001

Pg. 130

Vermont Unfading
Green Slate Co.

YORK 2000-65-M, etc.

08-03-2001

Pg. 787

Virginia Slate Co.

VA99-8-M

05-17-2001

Pg.482

York (Sec'y of
Labor on behalf of)
v.BR&D
Enterprises, Inc.

KENT 2000-255-D

04-20-2001

Pg. 386

5

Administrative Law Judge Decisions and Orders
Case Name

Docket Number

Date

Allen (Sec'y of Labor on
behalf ot) v. Pea Ridge Iron
Ore Co.

CENT 2001-366-D

09-28-2001

. Page Number
FMSHRC, Vol. 23
Pg. 1080

American Coal Co.

LAKE 2000-111-R, etc.

05-09-2001

Pg. 505

Arch of West Virginia

WEV A 2000-55

04-16-2001

Pg.447

Asarco, Inc.

WEST 2000-603-RM, etc.
WEST 2001-123-M, etc.

06-05-2001
07-25-2001

Pg.623
Pg. 779 .

Barlow, Melvin (d/b/a Barlow
Rock)

WEST 2000-585-M, etc.

03-13-2001

Pg. 293

Beco Construction Co.

WEST 2000-543-M, etc.

10-31-2001

Pg. 1182

Bilbrough Marble Division,
Texas Architectural Aggregate

CENT 2000-395-M

06-28-2001

Pg.669

Bridger Coal Co.

WEST 2001-334-R

08-29-2001

Pg.887

Cactus Canyon Quarries of
Texas, Inc.

CENT 2000-118-M

03-09-2001

Pg.280

Cannelton Industries, Inc.

WEV A 99-49, etc.

03-08-2001

Pg.276

Canyon Fuel Co.

WEST99-50

12-18-2001

Pg. 1325

CDK Contracting Co.

WEST 2001-154-RM, etc.

07-27-2001

Pg. 783

Chino Mines Co.

CENT 2000-298-M

02-22-2001

Pg. 223

Clinchfield Coal Co.

VA2001-7

03-02-2001

Pg.347

6

Administrative Law Judge Decisions and Orders
Case Name

Docket Number

Date

Consolidation Coal Co.

WEVA 2000-50
WEVA 2001-20, etc.
WEVA2001-61
WEVA 98-148

03-06-2001
06-05-2001
06-05-2001
08-03-2001

Page Number
FMSHRC, Vol. 23
Pg.270
Pg.685
Pg.688
Pg. 863

Construction Materials Corp.

YORK 2000-49-M

03-22-2001

Pg. 321

Contractors Sand & Gravel, Inc.

WEST 2000-421-M, etc.

08-02-2001

Pg.859

Daniel (Sec'y of Labor on
behalf of) v. Payne, et al.

WEVA 99-152-D, etc.

05-21-2001

Pg.536

Doe Run Co.

CENT 2001-30:-M

12-05-2001

Pg. 1301

Dolan v. F&E Erection Co.

CENT 97-24-DM

06-11-2001

Pg. 639

Douglas R. Rushford Trucking

YORK 99-39-M

12-27-2001

Pg. 1418

Dynatec Mining Corp.

BAJ 2001-3
BAJ 2001-3

05-17-2001
07-10-2001

Pg.559
Pg. 732

Eagle Energy, Inc.

WEVA98-39
WEVA 98-72-R, etc.

10-04-2001
12-13-2001

Pg. 1143
Pg. 1316

Excel Mining, LLC

KENT 2001-88

07-11-2001

Pg. 773

Feagins (Sec'y of Labor on
behalf of) v. Decker Coal Co.

WEST 2001-2-D

01-12-2001

Pg.47

Garcia (Sec'y of Labor on
behalf of) v. Colorado Lava,
Inc.

WEST 2001-14-DM

02-13-2001

Pg. 213

Garrett (Sec'y of Labor on
behalf of) v. Alcoa World
Alumina, LLC

CENT 2001-146-DM
CENT 2001-146-DM

06-25-2001
10-03-2001

Pg.691
Pg. 1141

7

Administrative Law Judge Decisions and-.O rders
Case Name

Docket Number

Date

Georges Colliers, Inc.

CENT 2000-65, etc
CENT 99-178, etc

10-17-2001
12-26-2001

Page Number
FMSHRC~ Vol. 23
Pg. 1156
Pg. 1346

Good, Allen Lee (d/b/a Good
Construction)

WEST 2000-44-M, etc.

10-16-2001

Pg. 1155

Green v. Coastal Coal Co.

VA 2000-16-D

01-29-2001

Pg. 111

GTI Capitol Holdings, LLC
(d/b/a Rockland Materials)

WEST 2000-638-RM, etc.

05-02-2001

Pg.555

Hard Rock Mining Company
of Olympia, Inc.

WEST 2000-306-M, etc.
WEST 2000-306-M, etc.

07-11-2001
08-16-20Ql

Pg. 776
Pg.873

Harriman Coal Corp.

PENN 2000-203

08-10-2001

Pg.904

Higman Sand & Gravel, Inc.

CENT99-1-M

08-28-2001

Pg. 876

Howell V. Capitol Cement Corp.

WEYA 2000-80-DM

08-06-2001

Pg.901

J. Davidson & Sons
Construction Co.

WEST 2001-162-M

03-20-2001

Pg. 359

Jenkins (Sec'y of Labor on
behalf of) v. Durbin Coal, Inc.

WEY A 2000-31-D

07-24-2001

Pg. 746

Jensen (Sec'y of Labor on
behalf of) v. Energy
West Mining Co.

WEST 2000-203-D

07-11-2001

Pg. 737

John Richards Construction

WEST 99-348-M, etc.

09-13-2001

Pg. 1045

Kinder Morgan Operating,
Ltd. "C"

KENT 2000-128-R, etc.
KENT 2001-264-R, etc.

01-26-2001
07-30-2001

Pg. 73
Pg. 770

Lodestar Energy, Inc.

KENT 2000-79
KENT 2001-37

02-27-2001
06-21-2001

Pg. 229
Pg.651

8

Administrative Law Judge Decisions and Orders
Case Name

Docket Number

Date

Lowe (Sec'y of Labor on
behalf ot) v. Island Creek
Coal Co.

VA 2001-24-D

10-09-2001

Page Number
FMSHRC, Vol. 23
Pg. 1204

Mariposa Aggregates

WEST 2000-231-M, etc.
WEST 2000-231-M, etc.
WEST 2000-231-M, etc.

03-15-2001
03-15-2001
05-16-2001

Pg.350
Pg.354
Pg. 515

Martin Marietta Aggregates

SE 2001-22-M

05-21-2001

Pg.533

Matbon Inc.

CENT 2000-356-M

03-06-2001

Pg. 266

Mayhugh v. Consolidation
Coal Co.

WEVA2001 -8-D

03-22-2001

Pg.363

McElroy Coal Co.

WEV A 2000-75

02-09-2001

Pg.201

Mountain Cement Co.

WEST 2001-376-RM, etc.

06-25-2001

Pg. 694

Munson (Sec'y of Labor on
behalf ot) v. Eastern
Associated Coal Corp.

WEVA 2000-58-D
WEV A 2000-40-D
WEVA 2000-58-D

06-25-2001
06-27-2001
10-12-2001

Pg. 654
Pg. 701
Pg. 1150

Noakes (Sec'y of Labor on :
behalf ot) v. Gabel Stone Co.

CENT 2000-75-DM

02-08-2001

Pg. 171

Nolichuckey Sand Co.

SE 99-101-RM, etc.

02-09-2001

Pg. 196

Northwest Aggregates

WEST 99-353-M, etc.
WEST 99-353-M, etc.

05-22-2001
11-26-2001

Pg. 562
Pg. 1266

Ohio Valley Coal Co.

LAKE 2001-1
KENT 2001 -65
KENT 2001-142

03-28- 2001
09-19-2001
12-11-2001

Pg.366
Pg. 1075
Pg. 1310

Original Sixteen to One
Mine, Inc.

WEST 2000-63-M, etc.

10-19-2001

Pg. 1158

9

Administrative Law Judge Decisions and Orders
Case Name

Docket Number

Date

Ormet Primary Aluminum Corp. CENT 2000-233-RM, etc.

12-18-2001

Page Number
FMSHRC. Vol. 23
Pg. 1330

Pen Coal Corp.

WEVA 2001-18

05-31-2001

Pg. 546

Pettus (Sec'y of Labor on
behalf of) v. Alcoa Alumina &
Chemical, LLC

CENT 2000-182-DM

03-28-2001

Pg. 329

Pollock v. Kennecott Utah
Copper Corp.

WEST 2000-625-DM

06.:28-2001

Pg. 676

Premier Elkhorn Coal Co.

KENT 2000-188

03-16-2001

Pg. 304

RAG Shoshone Coal Corp.

WEST 99-342-R, etc.
WEST 2000-349

04-09-2001
05-16-2001

Pg.407
Pg. 513

RAG Cumberland
Resources, LP

PENN 2000-181-R, etc.

11-28-2001

Pg. 1241

RB Coal Co.

KENT 2000-187

01-24-2001

Pg.65

Reintjes of the South, Inc.

CENT 99-152-RM, etc.

06-11-2001

Pg.649

Ribble Contracting Inc.

CENT 2000-287-M

02-09-2001

Pg. 189

Richard E. Seiffert Resources

WEST 2000-201-M

04-16-2001

Pg.426

Rio Algom Mining Corp.

WEST 2000-559-M, etc.

09-07-2001

Pg. 1041

Rosebud Mining Co.

PENN 2000-162, etc.

01-29-2001

Pg. 104

Royal Cement Co.

WEST 2000-474-M

07-26-2001

Pg. 764

San Benito Aggregates, Inc.

WEST 2000-155-M, etc.

01-24-2001

Pg. 70

Sasse v. Lakehead
Constructors

LAKE 2000-150-DM, etc.

05-18-2001

Pg.525

10

Administrative Law Judge Decisions and Orders
Case Name

Docket Number

Date

Page Number
FMSHRC. Vol. 23

Shamrock Enterprises

LAKE 2000-98-M

04-24-2001

Pg.461

South West Sand & Gravel, Inc.

WEST 2001-112-M

05-29-2001

Pg. 540

Table Rock Asphalt
Construction Co.

CENT 2000-268-M, etc.

07-09-2001

Pg. 719

TXI Operations, LP

CENT 2000-419-RM, etc.

01-19-2001

Pg.54

U.S. Steel Mining Co.

SE 2000-100
SE 2000-245-M
SE 2001-27

01-10-2001
07-26-2001
08-02-2001

Pg.41
Pg. 759
Pg. 851

Underwood v. Hunt Midwest
Mining, Inc.

CENT 2001-192-DM

09-18-2001

Pg. 1070

United Metro Materials

WEST 2000-35-RM, etc.

09-28-2001

Pg. 1085

Vermont Unfading Green
Slate Co.

YORK 2000-65-M, etc.

03-21-2001

Pg. 310

Virginia Slate Co.

VA 2001-10-M
VA 99-8-M

08-15-2001
08-16-2001

Pg.865
Pg.867

Wake Stone Corp.

SE 2000-159-M, etc.

04-19-2001

Pg.454

Walker Stone Co.

CENT 2000-110-M, etc.

02-09-2001

Pg. 180

Washington Rock Quarries, Inc.

WEST 2000-411-M

01-10-2001

Pg. 118

Watkins Engineers &
Constructors

WEST 99-280-M, etc.

01-26-2001

Pg. 81

Wilson v. Sidco Minerals

CENT 2000-87-DM

06-07-2001

Pg. 637

11

Administrative Law Judge Decisions·and·Orders

Case Name

York (Sec'y of Labor on
behalf of) v. BR&D ·
Enterprises, Inc.

Docket Number

KENT 2001-22-D
KENT 2000-255-D
KENT 2000-22-D

12

{::r U.S. GOVERNMENT PRINTING OFFICE: 2002 492-135/65251

Page Number
FMSHRC, Vol. 23

01-10-2001
06-26-2001
08-31-2001

Pg. 113
Pg.697
Pg. 892