APRIL 1999

COMMISSION DECISION AND ORDERS
04-15-99 River Point Processing Inc.
04-22-99 Eastern Ridge Lime Company, LP
04-26-99 Sproule Construction Company, Inc.

WEVA99-65
VA
96-21-M
LAKE 99-24-M

Pg. 413
Pg.416
Pg. 426

CENT98-153
CENT 98-159-M
WEST 99-89-M

Pg. 431
Pg. 448
Pg.456

YORK 99-30-M
CENT 98-268-M
PENN 99-77

Pg. 463
Pg.468
Pg. 472

ADMINISTRATIVE LAW JUDGE DECISIONS
04-08-99 Northwestern Resources
04-19-99 K. R. Wilson Contracting, Inc.
04-29-99 Georgia Marble Company (Basins Inc.)
ADMINISTRATIVE LAW nJDGE ORDERS
04-07-99 Patterson Materials Corporation
04-26-99 Bowen Industries Incorporated
04-29-99 Rayne Energy Incorporated

i

APRIL

1999

Review was granted in the following cases during the month of April:

Rawl Sales & Processing Company v. Secretary of Labor, MSHA, Docket No. WEVA 99-13-R.
(Judge Feldman, February 25, 1999)
Secretary of Labor, MSHA v. Cantera Green, Docket No. SE 98-141-M. (Judge Melick,
March 9, 1999)

Review was Denied in the followin~ case dyring the month of April:

Gregory Bennett v. Newmont Gold Company, Docket No. WEST 98-115-D. (Request for
Reconsideration of April 6, 1999 Commission Notice)

ii

COMMISSION DECISIONS AND ORDERS

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

April 15, 1999

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

v.

Docket No. WEV A 99-65

RIVER POINT PROCESSING INC.

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, 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"). On March 5, 1999, the Commission received from River
Point Processing Inc. ("River Point") a request to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its motion, River Point states that its facility was shut down at the time the assessment
issued. The operator also requests that the $55.00 proposed penalty assessment be waived due to
the operator's dissolution in bankruptcy court.
On March 26, 1999, the Commission received a memorandum from Tamara Nelson,
Chief of the Compliance Group with the Department of Labor's Civil Penalty Compliance
Office. In the memorandum Ms. Nelson states that, because River Point Processing Inc. was sold
on August 20, 1998, and is no longer in the mining business, the case is being closed as
uncollectible.
413

Based on the foregoing, we deny River Point's moti6n to reopen as moot. See generally
Phelps Dodge Morenci Inc., 17 FMSHRC 1525 (Sept. 1995) (granting motion to withdraw
Motion for Relief from Final Order where proposed penalty assessment was rescinded).
Accordingly, this proceeding is dismissed.

Marc Lincoln Marks, Commissioner

/(.~ r.

rt,T

Theodore F. Verheggen, Commissione

414

Distribution
Gary L. Tincher, Safety Consultant
Tincher Safety, Inc.
for River Point Processing
P.O. Box 38
Cabin Creek WV 25035
Tamara Nelson
Office of Civil Penalty Compliance
MSHA U.S. Department of Labor
4015 Wilson Boulevard, 9•h Floor
Arlington, VA 22203
Sheila Cronan, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

415

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

Apri I 22, 1999

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

v.

Docket No. VA 96-2 l -M

EASTERN RIDGE LIME COMPANY, L.P.

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

DECISION

BY THE COMMISSION:
This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
l 977, 30 U.S.C. § 801 et seq. ( 1994) ("Mine Act" or "Act"), involves citations issued by the
Department of Labor's Mine Safety and Health Administration ("MSHA") against Eastern Ridge
Lime Company, L.P. ("Eastern Ridge"). Administrative Law Judge Avram Weisberger
concluded that Eastern Ridge violated 30 C.F.R. §§ 57.3360 1 and 57.3201 2 and that both
violations were significant and substantial ("S&S'') and resulted from Eastern Ridge's
unwarrantable failure. 19 FMSHRC 398 (Feb. 1997) (ALJ). The judge assessed penalties
totaling $85,000. Id. at 407, 409, 410. The Commission denied Eastern Ridge's petition for
review. Eastern Ridge.appealed to the United States Court of Appeals for the Fourth Circuit,
which affirmed in part and vacated and remanded in part the Commission's decision. Eastern
Ridge lime, L.P. v. FMSHRC, 141F.3d1158 (table), 1998WL169213 (4th Cir.1998).

1

Section 57.3360 provides in pertinent part: "Ground support shall be used where
ground conditions, or mining experience in similar ground conditions in the mine, indicate that it
is necessary."
2

Section 57.3201 states: "Scaling shall be performed from a location which will not
expose persons to injury from falling material, or other protection from falling material shall be
provided."
416

By order dated JuJy 2, 1998, the Commission remanded the case to the administrative law
judge for further consideration consistent with the court's decision. 20 FMSHRC 1333 (Dec.
1998). On remand, the judge reiterated his initial findings and again imposed penalties totaling
$85,000. 20 FMSHRC 758, 758 (July 1998) (ALJ). Eastern Ridge appealed, and the
Commission directed review. For the reasons that follow, we vacate the judge's decision and
remand for further consideration.

I.
Factual and Procedural Background
A.

Initial Proceedings before the Commission

Eastern Ridge operates an underground limestone mine in Ripplemead, Virginia. 19
FMSHRC at 398. Limestone is extracted by the random room and pillar mining method. Id. at
399. By this process, rooms are created by blasting and removing the loose rock. 1998 WL
169213 at 1. Pillars are Jeft in the rooms to provide roof support. Id. The tunnels and rooms are
not set out in grid fashion because geological conditions a( the mine are inconsistent. Tr. 1168.
Beginning in 1993, Eastern Ridge made several attempts to mine in the 200 entry section
that had to be stopped because of poor roof conditions. 19 FMSHRC at 399-400. In December
1993, Eastern Ridge attempted to advance the 204E section. Id. at 399. However, mining in
section 204E ceased after scalers working in the section3 concluded that the roof was unsound
and told Eastern Ridge management that it was unsafe to work in the section. Id. at 399-400,
.
404.
In May or June 1994, Eastern Ridge returned to the 204E section. Id. at 400. Scalers
observed that the top of the heading was checkered with wide mud seams. Scaling could not be
completed due to unsafe ground conditions. Id. at 400. Mine management was advised that the
top was leaking mud, and the section was condemned. Id. at 404. After the 204E section was
condemned, in late June or early July 1994, Eastern Ridge began development of the 11 S section,
which was to the right of the 204E heading. Id. at 400. Eastern Ridge supervisor Barry Snider
marked the opening for the 1 IS heading on the right rib of the 204E section, about 15 feet away
from its face. Id. at 404. The right rib of the 204E section was to form the left rib of the new
llS section. Tr. 219, 224-25.

3

Scaling is a process of removing loose rock from roof or walls, usually with a long
metal bar, which also allows the scaler to determine whether the roof is sound. 1998 WL 169213
at 1.

417

From July 21 through July 24, 1994, several miners observed seams in the 204E/l 1S
sections. 19 FMSHRC at 401-02. On July 25, driller Milton Conley showed Snider the seam
encircling the 204E section and told him that there was no support for the roof. Id at 402. After
the conversation, Snider instructed driller Jeffrey Morgan to bring the jumbo drill to scale down
loose rock in the roof near the intersection of the right rib of section 204E and the left rib of
section I IS. Id. Morgan extended the boom of the drill 40 feet out in front of the cab in which
he was sitting. Id. Snider was standing approximately 15 to 20 feet to the left and in front of the
cab. Id. Morgan placed the drill bit on the rock and allowed the drill to vibrate or "rattle" the
rock in an effort to scale it down. As Morgan began to do so, the entire roof in the 204E and 11 S
sections collapsed burying Snider and partially crushing the drill cab in which Morgan was
sitting. Tr. 989-90. As a result of the roof collapse, Snider was killed and Morgan was seriously
injured. 19 FMSHRC at 402
Following an investigation, MSHA issued citations charging Eastern Ridge with violating
section 57.3360, which requires ground support when ground conditions indicate that it is
necessary, and section 57.3201, which requires that scaling shall be performed from a location
which will not expose persons to injury from falling materials. 1998 WL 169213 at 1. Both
violations were designated S&S, and were attributed to Eastern Ridge's unwarrantable fai lure.
Gov't Exs. 7-8.
Eastern Ridge contested the proposed penalties, and a hearing was held before an
administrative law judge. The judge concluded that Eastern Ridge violated section 57.3360
when it failed to install ground support, notwithstanding repeated warnings concerning
conditions in the 204E/l 1S sections. 19 FMSHRC at 403-05. The judge credited the opinion of
MSHA's expert witness, Joseph Cybulski, that conditions in the 204E/l IS area prior to the fatal
roof fall indicated that ground support was necessary. Id at 404-05. In discrediting Eastern
Ridge's expert, Jack Parker, who testified that ground support was not necessary, the judge noted
that Parker's theory of the cause of the roof fall was not the issue before him; rather, the judge
found that Parker did not dispute miner testimony concerning the conditions in sections 204E and
11 S, noting in particular that scaler/blaster Marvin Wright opined that the pillar between the
section 204E face and the 1 lS left rib was too small. Id Therefore, the judge concluded that the
record established that ground support was necessary. Id He also affirmed the unwarrantable
failure designation of the citation in light of the repeated concerns that miners had expressed to
Snider. Id at 407. In addressing the designation of the violation as S&S, the judge noted that
Eastern Ridge's fai lure to provide ground support contributed to the hazard ofrooffall. Id at
406. The j udge further concluded that, "considering the fact that a roof fall did occur in the area
causing a fatality and seriously injuring another miner," the third and fourth elements of Mathies
Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), had been established. Id. at 406-07. In assessing a
penalty, the judge noted that the gravity of the violation was high, as it contributed to a fatal roof
fall. Further, he found the level of Eastern Ridge's negligence was aggravated. Id at 407.
Taldng into account remaining section 11 O(i) penalty criteria, the judge.imposed a-$50,000
penalty. Id.

418

With regard to the citation charging a violation of section 57.3201, the judge relied on
record evidence establishing that, prior to the accident, conditions indicated the need for ground
support in the 240£/11 S area, and that Morgan was exposed to the hazard of a roof fall even
though he was located 40 feet from the rock that he was rattling. Id at 408. Further, the judge
held that the cab in which Morgan was sitting did not provide protection from the roof fall. Id
The judge also concluded that the violation occurred as a result of the operator's unwarrantable
fai lure because management was aware that scaling was being performed in an area with no roof
support; indeed, just prior to the roof fall a miner had pointed out the circular seam in the roof to
Snider. Id Finally, in addressing the S&S designation, the judge relied on the ground conditions
indicating the need for support and that scaling was being performed in an area that had no
ground support. Id Noting that Eastern Ridge's negligence was aggravated and "the fact that
the violation ... contributed to a fatality," the judge imposed a penalty of $35,000 for the second
violation. 4 Id. at 409. The Commission thereafter denied a petition for discretionary review filed
by Eastern Ridge.
B.

The Fourth Circuit's Decision

Following the Commission's denial of review, Eastern Ridge filed a petition for review in
the Fourth Circuit, which affirmed in part and vacated and remanded in part the Commission's
decision. The court upheld the findings of violation (1998 WL 169213 at 2-3), but on a 2- 1 vote
concluded that the S&S determinations were incorrectly based on factual findings which the
judge did not make. In granting the petition for review in part and remanding the case, the court
majority stated:
In the case of the§ 57.3360 violation, the ALJ
appropriately found the first two Mathies Coal prongs satisfied,
holding that "the essence of the violation, i.e., failure to provide
ground support, contributed to the hazard of a roof fall." In
making these findings on the third and fourth prongs, however, the
ALJ considered the "combination of ground conditions ... and ...
the fact that a rooffall did occur in the area causing a fatality and
seriously injuring another miner." (Emphasis added). The ALJ's
usage of the roof fall as a relevant event is unsupported. Because
the ALJ never found whether the failure to provide roof support
was the cause of the accident, [his] holding that the accident
indicated that Eastern Ridge "significantly and substantially"
violated§ 57.3360 is a non sequitur. In order to rely on such a
finding, the ALJ would need to have found that the failure to
provide ground support caused the accident; otherwise, the actual

4

The judge dismissed a third citation which alleged, in essence, that Eastern Ridge
misused the jumbo drill by using the drill bit to rattle rock. Id at 409-10.
419

fact of a roof fall indicates nothing relevant about Eastern Ridge's
actions.
This logical error becomes most consequential in the ALJ's
imposition of penalties. In assessing a penalty for the§ 57.3360
violation, the ALJ noted that "the gravity of the violation was of a
very high level as the violation contributed to a fatal rooffall."
(Emphasis added). Similarly, in assessing a penalty under
§
57.3201, the ALJ considered "the fact that the violation herein
contributed to a fatality.,, (Emphasis added).... By relying on the
fact that Eastern Ridge's actions contributed to the roof fall and the
fatality in making [his] penalty assessments, the ALJ
inappropriately took account of factors extrinsic to [his] own
findings.
For these reasons, we grant Eastern Ridge's petition for
review and remand this case for further factfinding and analysis of
the penalties to be assessed. Our ruling should not, however, be
understood to imply that causation must be found in every case.
The Commission may impose penalties without any reference to
whether a roof fall or fatality occurred. But where an ALJ relies on
the supposition that a mining company 's failure to act was a
contributing factor in a fatal roof fall, he must first find that the
failure to act was actually a contributing factor.

Id. at 3-4.
C.

Proceedings on Remand before the Commission

On July 2, 1998, we issued an order remanding the case to the judge. On remand, the
judge's entire findings and analysis was as follows:
I find that, in assessing a penalty, and evaluating the level of
gravity of the cited violations, it is not necessary to make a specific
finding of causation. The high level of gravity is based on the fact
that the violation contributed to a fatal roof fall. Further, in
evaluating a penalty, I place most weight on my finding that, for
the reasons discussed in the original decision, the .level of
Respondent's negligence constituted aggravated conduct.
Specifically, the record establishes that Respondent repeatedly
ignored the warnings of its workers regarding observed unsafe
conditions. Accordingly, I reiterate my initial findings regarding
the penalty to be assessed.

420

20 FMSHRC at 758.

II.
Disposition
Eastern Ridge contends that by failing to make a finding of causation of the roof fall but,
nevertheless, basing his S&S and unwarrantability determinations and enhanced civil penalties
on the conclusion that the violations contributed to the roof fall, the judge repeated the same
error contained in his initial decision, thereby ignoring the Fourth Circuit's remand instructions.
ER PDR at 3-4; ER Br. at 16-17. Eastern Ridge further argues that substantial evidence does not
support the judge's determination that its failure to provide ground support was either S&S or
due to its unwarrantable failure. Id. at 17-25. Eastern Ridge also asserts that substantial
evidence does not support the judge's finding that its failure to provide protection from falling
material to miners was S&S and due to its unwarrantable failure. Id. at 26-31.
The Secretary contends that the determinations that the violation of section 57.3201
(location for performing scaling) was S&S and a result of the operator's unwarrantable failure
and that the violation of section 57.3360 (inadequate roof support) resulted from the operator's
unwarrantable failure, were briefed and argued before the Fourth Circuit without reversal and are
now the law of the case. S. Br. at 19-21. She asserts that these determinations were "implicitly
affirmed" and, therefore, the Commission cannot reconsider them. Id. at 21-24. Alternatively,
the Secretary argues that those determinations are supported by substantial evidence. Id. at 2534, 36-39. With regard to the S&S designation of section 57.3360, the Secretary contends that
the judge failed to make a specific finding on remand, and therefore the Commission must either
decide the issue or remand it to the judge for further analysis. Id. at 34. The Secretary argues
that she does not have to prove that the violation caused the roof fall, but only that the violation
was reasonably likely to result in an injury-causing event. Id. at 35. Finally, the Secretary asserts
that in reviewing the penalty on remand, the judge declined to make a finding that the violation
caused the roof fall but rather concluded the violation contributed to the hazard of a roof fall. Id.
at 39-40. The Secretary suggests that if the Commission concludes that the judge did not follow
the court's remand instructions, it should remand the case to the judge. Id. at 40.
"Law of the case rules have developed to maintain consistency and avoid reconsideration
of matters once decided during the course of a single continuing lawsuit." 18 Wright, Miller &
Cooper, Federal Practice and Procedure, § 4478 at 874 (2d ed. Supp. 1999). "The 'law of the
case' doctrine mandates, ... , that where issues have been ... decided on appeal, the district
court is obliged, on remand, to follow the decision of the appellate court." United States v.
Minicone, 994 F.2d 86, 89 (2d Cir. 1993). The law of the case applies to issues decided by
implication, as well as to matters decided explicitly. Id; Hanna Boys Center v. Miller, 853 F.2d
682, 686 (9th Cir. 1988).
We agree with the Secretary that the decision of the court of appeals established the law
of the case and precludes us from reviewing the unwarrantable failure determinations of the
421

section 57.3201 and 57.3360 violations. The unwarrantable failure determinations were raise~,
briefed, and argued to the court. While the court did not specifically discuss those issues in its
decision, it clearly addressed the underlying violations (19 WL 169213 at 2-3), the judge's S&S
determinations (id. at 3), and his imposition of penalties as to both violations (id. at 3-4).
Implicit in the court's decision, therefore, is affirmance of the unwarrantable failure
determinations it did not explicitly address. Therefore, we cannot review these issues. 5
With regard to the judge's S&S determinations, it is apparent from a careful reading of
the court's decision that the S&S determinations as to both violations6 were sent back to the
judge because of inadequate factual findings, mainly with respect to the third and fourth elements
of the S&S test set forth in Mathies Coal Co.1 While the court majority saw those factual

5

Commission Riley disagrees with the majority holding that the circuit court's decision
disposed of the unwarrantable failure determinations. He believes the court decision is much too
vague and ambiguous on the question of unwarrantability to be held up as the "law of the case."
Coupled with what he now regards as a less than precise remand order from the Commission to
the judge and a seriously misguided decision on remand by the judge, Commissioner Riley
opines that we have the ingredients for legal confusion, not good law. He believes that to gloss
over this issue, merely guarantees protracted litigation of an important question in this case. He
thinks it behooves the Commission to resolve this issue here so as not to leave it open as another
avenue of appeal. Therefore, he would remand to the judge for further consideration the
unwarrantable failure determinations, along with the S&S determinations and the assessment of
penalties. Commissioner Verheggen concurs with Commissioner Riley in finding that the Fourth
Circuit's decision did not dispose of the judge's unwarrantable failure determination, and that
this issue should also be remanded.
6

A close reading of the judge's decision on review before the court indicates that he
relied on the lack of adequate ground support as a consideration in the S&S determinations
involving the violations of both section 57.3360 (19 FMSHRC at 406-07) and section 57.3201
(id. at 408).
7

The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S .C.
§ 814(d), and refers to more serious violations. A violation is S&S if, based on the particular
facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably ser.ious nature. See Cement Div., Nat'! Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC I (Jan. 1984), the
Commission further explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard - that is, a
measure of danger to safety - contributed to by the violation; (3)
422

findings as most directly impacting the level of penalties, those findings cannot be revisited
without addressing the S&S determinations that provided the context in which the findings were
initially made. Further, the Commission's remand decision states explicitly that the court
decision held that "the judge's S&S determinations were inadequately supported because, while
the judge did not make a finding that the violations caused the fatal accident, he relied on the
contribution of the violations to the accident in reaching his S&S determination." 20 FMSHRC
at 1133-34. Thus, the Commission's remand should have eliminated any confusion on the scope
of issues before the judge. 8
The judge' s remand decision clearly does not address the issue of whether the violations
of sections 57.3360 or 57.3201 were S&S. Nor does it address the record facts relevant to the
judge's evaluation of the Mathies criteria that led to the court's remand. Further, in addressing
the penalties assessed for the violations, the judge repeated virtually the same language that led
the court majority to vacate and remand his prior decision. The court majority stated: "[T]he
ALJ noted that 'the gravity of the violation was of a very high level as the violation contributed
to a fatal rooffall."' I 998 WL 169213 at 3 (emphasis in original). In the remand decision, while
the judge stated that he was not making a finding of causation, he also stated: "The high level of
gravity is based on the fact that the violation contributed to a fatal rooffall." 20 FMSHRC at
758 (emphasis added). We conclude that the judge failed to conduct the additional "factfinding
and analysis of the penalties to be assessed" (1998 WL 169213 at 4) that the Fourth Circuit
required. Accordingly, we vacate the judge's decision and remand for further consideration.
On remand, we direct the judge to state whether he is relying on the failure to provide
adequate ground support as a cause of the accident and as support for his S&S and penalty
determinations and, if so, to indicate the basis in the record for doing so. We also remind the
judge that he does not have to find that the violation led to the ground fall which caused a fatality
in order to conclude that the violation was S&S. See Arch ofKentucky, 20 FMSHRC 1321 , 1330
(Dec. 1998).

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.

Id at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th
Cir. 1995); Austin Power, Inc. v. Secretary ofLabor, 86 l F.2d 99, I 03 (5th Cir. 1988) (approving
Mathies criteria).
8

Commissioner Marks agrees that the S&S as well as the penalty issues be remanded to
the judge. However, for the reasons set forth in his concurring opinions in United States Steel
Mining Co., 18 FMSHRC 862, 868-75 (June 1996), and Buffalo Crushed Stone, Inc., 19
FMSHRC 231, 240-41 (Feb. 1997), he believes that the ambiguous language of the
Commission's Mathies test, 6 FMSHRC at 3-4, should be replaced with a clear test that is
consistent with Congressional intent.
423

III.
Conclusion
For the foregoing reasons, we vacate the judge's decision and remand the S&S
determinations and penalty assessments for further consideration consistent with this decision.

d

~ c. ~L .c--

aznes C. Riley, Commissioner

7

Theodore F. Verheggen, Co

-..---·······-::;:./7
7
-

..-..:;:~:.::-:rJ .I~- I

.
/'-../ ,
~
Robert H. Beatty, Jr., C~issioner

{/

424

Distribution

Thomas B. Weaver, Esq.
Armstrong, Teasdale, Schlafly & Davis
One Metropolitan Square, Suite 2600
St. Louis, MO 63102
Robin A. Rosenbluth, Esq.
Yoora Kim, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite I 000
Falls Church, VA 22041

425

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

April 26, 1999

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

Docket No. LAKE 99-24-M

SPROULE CONSTRUCTION CO., INC.

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

ORDER
BY: Marks, Riley, Verheggen, and Beatty, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On March 15, 1999, Chief Administrative
Law Judge Paul Merlin issued an Order of Default to Sproule Construction Co., Inc. ("Sproule")
for failing to answer the petition for assessment of penalty filed by the Secretary of Labor on
December 11, 1998, or the judge's Order to Respondent to Show Cause issued on January 28,
1999. The judge assessed the civil penalties of $10,000. 1
On March 25, 1999, the Commission received from counsel to Sproule a Motion to
Vacate Any and All Defaults and for Leave to File Answer to Petition for Assessment. In the
motion, counsel explains that Michael Sproule, Sproule's vice president, received a letter dated
December 24, 1998, from the Department of Labor's Mine Safety and Health Administration
("MSHA") regarding MSHA's policy on compliance assistance visits, and enclosing certain
forms. Mot. at 2, ~ 3. Counsel states that the operator mistakenly believed that the Show Cause
Order and Order of Default were inapplicable in view of its response to the December 24 letter
and involvement in the process of settling and resolving matters relating to the alleged violations.
Id, if 4.

1

The Secretary had proposed civil penalties in the amount of $10,600. The document
setting forth the proposed penalties which was sent via facsimile to the Commission's Docket
Office is nearly illegible.
426

On March 29, 1999, the Commission received an opposition to Sproule's motion from
counsel in the Department of Labor's Regional Solicitor' s Office in Chicago, Illinois. Counsel
states that Sproule's motion should be denied because Sproule failed to show cause why the
Default Order should be vacated. Resp. at 2. Counsel submits that the show cause order is
written in plain language and the operator failed to follow the instructions. Id. at 1. On April 12,
1999, the Commission received a letter from the Appellate Litigation Division of the Office of
the Solicitor confirming that the.opposition filed by the Regional Solicitor's Office sets forth the
Secretary's position.
The judge's jurisdiction in this matter terminated when his decision was issued on
March 15, 1999. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's procedural
rules, relief from a judge' s decision may be sought by filing a petition for discretionary review
within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We deem
Sproule's motion to be a timely filed petition
discretionary review, which we grant. See, e.g.,
Middle States Resources, Inc., l 0 FMSHRC 1130 (Sept. 1988).

for

427

On the basis of the present record, we are unable to e:valuate the merits of Sproule's
position. This point is made abundantly clear in the Chairman's dissent when she states she is
" frankly mystified as to what actions Sproule took upon receipt of [the December 24J letter."
Slip op. at 4. We are unwilling to, on one hand, say that we are unable to understand what
Sproule did, but on the other hand, rule against the company without giving it the opportunity to
explain its actions. 2 In the interest ofjustice, we vacate the default order and.remand this matter
to the judge, who shall determine whether relief from default is warranted. See General Road
Trucking Corp., 17 FMSHRC 2165, 2166 (Dec. 1995) (deeming letter as timely filed petition for
discretionary review, vacating default, and remanding to judge where pro se operator confused
about Commission's procedural rules); Amber Coal Co., 11FMSHRC131, 132-33 (Feb. 1989).

Marc Lincoln Marks, Commissioner

Theodore F. Verheggen, Co

2

Commissioner Marks finds the above comments regarding Chairman Jordan's dissent
to be both unnecessary and superfluoi.ls. He, therefore, disassociates himself from them.
428

Chairman Jordan, dissenting:
I respectfully disagree with my colleagues that, based on the present record, we cannot
evaluate the merits of Sproule,s position. Rather, it is clear to me from my review of the record
that Sproule does not warrant relief in this case. Accordingly, I would affirm the order of default
in this proceeding.
Sproule attempts to excuse its lack of response to the Order to Show Cause by relying on
its actions generated by MSHA's letter of December 24. However, I am frankly mystified as to
what actions Sproule took upon receipt of that letter. Sproule has alluded to them in only the
most general of terms. It refers to its "action in tending to the letter of December 24." Mot. at 2,
1 4. It mentions that it "had undertaken the appropriate action in addressing issues" raised by the
letter. Id., 15. It provides no further information whatsoever.'
Moreover, the Secretary is absolutely correct that the subsequent Order to Show Cause
was clearly written, and that Sproule simply failed to follow the judge's instructions. Resp. at l,
'J 3. The Order explained the need for an Answer, described its content, and verified that no
Answer had yet been received. The judge ordered Sproule to submit an Answer within 30 days
or to show good reason why it had failed to do so. He made clear that if Sproule did not, it
would be placed in default and ordered to pay the penalty.
The judge's Order was precise and unambiguous. It put Sproule on the alert that action
on its part was necessary in order to avoid a default order. Sproule took no action.
Consequently, it should pay the penalty ordered by the judge.

Mary Lu Jordan, Chairman

1

Although my c-0lleagues in the majority suggest that Sproule has not yet had the
opportunity to explain its actions (slip op. at 3), I believe that is the very purpose of the motion to
vacate which Sproule submitted to us. The majority's willingness to remand this matter to the
judge on the basis of this motion, which is bereft of any substantive rationale, appears to
transform this process into a mechanical one, in which all a party need do in similar
circumstances is request relief.
429

Distribution
Richard Reichstein, Esq.
One N. LaSalle Street #3630
Chicago, IL 60602
Rafael Alvarez, Esq.,
Office of the Solicitor
U.S. Department of Labor
230 South Dearborn Street
Chicago, IL 60604
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
federal Mine Safety and Health Review Commission
1730 K Street, N.W., Suite 6003
Washington, D.C. 20006

430

ADMINISTRATIVE LAW JUDGE DECISIONS

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

April 8, 1999
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 98-153
A.C. No. 41-03164-03542
Jewett Mine

NORTHWESTERN RESOURCES,
Respondent
DECISION
Appearances: Ned Zamarripa, Conference and Litigation Representative, Mine Safety
and Health Administration, U.S. Department of Labo~, Denver, Colorado,
for the Petitioner;
Charles C. High, Jr., Esq., Kemp, Smith, Duncan & Hammond, P.C.,
El Paso, Texas, for the Respondent.
Judge Feldman

Before:

This proceeding concerns a petition for assessment of civil penalty filed by the Secretary
of Labor against Northwestern Resources (the respondent) pursuant to section 1 lO(a) of the
Federal Mine Safety and Health Act of 1977 (the Mine Act), 30 U.S.C. § 820(a). The petition
seeks to impose a total civil penalty of $734.00 for seven alleged violations of the mandatory
safety standards in 30 C.F.R. Part 77 of the Secretary's regulations governing surface coal mines.
Three of the seven cited conditions were designated as significant and substantial (S&S). 1 These
matters were heard on January 20 and January 21, 1999, in Huntsville, Texas.
At the hearing, the parties agreed to settle one of the citations and they waived the
filing of post-hearing briefs with respect to three of the citations so that a bench decision
could be entered with respect to those citations. The settled citation and bench decisions, with
non-substantive edits, will be addressed in the initial portion of this decision.
The parties have filed post-hearing proposed findings and replies with respect to the
remaining citations that .are contested by the respondent. These citations involve the issue of the

1

A violation of a mandatory safety standard is properly characterized as S&S
if it is reasonably likely that the hazard contributed to by the violation will result in an event,
i.e., an accident, resulting in serious injury. US. Steel Mining Co., 6 FMSHRC 1834, 1836
(August 1984).
431

circumstances under which deposits of hydraulic or lubricating oils on engines, transmissions and
frames of equipment operating at a surface mine constitute a prohibited accumulation of
combustible materials under section 77.1104, 30 C.F.R. § 77.1104, of the Secretary's mandatory
safety standards.2

I. Pertinent Case Law and Penalty Criteria
This decision applies the Commission' s standards with respect to what constitutes an
S&S violation. A violation is properly designated as S&S in nature if, based on the particular
facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed
to by the violation will result in an injury or an illness of a reasonably serious nature. Cement
Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981 ). In Mathies Coal Co.,
6 FMSHRC l (January 1984), the Commission explained:
In order to establish that a violation of a mandatory safety standard is significant
and substantial under National Gypsum, the Secretary of Labor must prove:
(I) 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 (by the violation] will
result in an injury; and (4) a reasonable likeJihood that the injury in question will
be of a reasonably serious nature. 6 FMSHRC at 3-4.

See also Austin Power Co. v. Secretary, 861 F.2d 99, I 04-05 (5th Cir. 1988), affg 9 FMSHRC
2015, 2021 (December 1987) (approving Mathies criteria).

In United States Steel Mining, Inc., 7 FMSHRC 1125, 1129, (August 1985), the
Commission explained its Mathies criteria as follows:
We have explained further that the third element of the Mathies formula 'requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury.' US. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel
Mining Company, Inc. , 6 FMSHRC 1866, 1868 (August 1984).
The Commission subsequentJy reasserted its prior determinations that as part of any
S&S" finding, the Secretary must prove the reasonable likelihood of an injury occurring as a
result of the hazard contributed to by the cited vioJative condition or practice. Peabody Coal
11

2 As discussed infra, the Secretary concedes that petroleum deposits in engine

compartments and on transmissions are unavoidable consequences of operating internal
combustion equipment, and, that not all such deposits constitute violations of section 77 .1104.
432

Company, 17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508 (April
1996).

This decision also applies the statutory civil penalty criteria in section 11 O(i) of the Act,
30 U.S.C. § 820(i), to determine the appropriate civil penalty to be assessed. Section 11 O(i)
provides, in pertinent part, in assessing civil penalties:
... the Commission shall consider 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.
The parties stipulated that the respondent is a large operator that is subject to the
jurisdiction of the Mine Act and that the small civil penalty sought to be imposed by the
Secretary will not affect the respondent's ability to continue its business. The evidence further
reflects that Northwestern abated the cited conditions in a timely manner. (Joint Ex. I).
Northwestern does not have a significant history of previous violations in that, during the
two years preceding the issuance of the citations in issue, Northwestern was cited for only
14 violations, ten of which were designated as non S&S. (Ex G-8).

II. Findings of Fact and Bench Decisions
This matter concerns seven citations that were issued as a result of a regular Triple A
inspection that was conducted during January and February 1998 by Mine Safety and Health
Administration (MSHA) Inspector Alfonso Castaneda, Jr., at Northwestern's Jewett Mine, a
surface coal facility located in Leon County, Texas. Although all of the citations were initiaIJy
characterized as S&S, three of the citations were subsequently modified to delete the S&S
designation following MSHA Health and Safety Conferences conducted on March 31 and
April 28, 1998.
a. Citation No. 7599225
Citation No. 7599225 was issued by Inspector Castaneda on February 12, 1998, for
accumulations of loose coal and fine coaJ dust, prohibited by section 77.1104, that were located
under the No. 1 Belt that transports coal from the coal hopper to the coal transfer tower. The
cited condition was desi·gnated as S&S and the Secretary proposed a civil penalty of $178.00.
At the hearing, Northwestern agreed to accept the citation as issued, and it agreed to pay the
$178.00 proposed civil penalty. (Tr. 340). Accordingly, the parties' settlement of Citation
No. 7599225 was approved on the record and Citation No. 7599225 shall be affirmed.

433

b. Citation No. 7599226

Castaneda testified that, during the course of his inspection, he asked miners if they had
any safety ·concerns. A miner expressed concern about the adequacy of the lights around the
No. 28 dragline shoes. Consequently, Castaneda performed an evening shift light check at the
No. 28 dragline. Each dragline has ·two sets of "star wars" type shoes that move approximately
eight feet per step when it is necessary to maneuver the dragline. Castaneda observed a shadow
area adjacent to the dragline shoes that he concluded was not adequately illuminated by the
dragiine lights. However, Castaneda did not take any objective measurements of the illumination
in the area. (Tr. 39). Castaneda stated the shoe area is the location where the dragline oiler
mounts and dismounts the dragline. Castaneda testified the oiler would have to step down a
distance of approximately six inches to two feet depending on the terrain. Castaneda concluded
it was reasonably likely that the oiler would sustain a serious slip and fall injury. Consequently,
he issued Citation No. 7599226 alleging an S&S violation of the mandatory safety standard in
section 77.207, 30 C.F.R. § 77.207. This mandatory standard requires, in pertinent part,
"illumination sufficient to provide safe working conditions."
In defense of the citation, Northwestern elicited contradictory testimony from Castaneda
with regard to whether Castaneda believed the illumination was inadequate or whether he was
relying on the miner's complaint as the basis for issuing the citation. Moreover, Castaneda
conceded that Northwestern had increased the wattage of the dragline lights from 400 watts each
to 1,000 watts, and that Northwestern had added additional lights to the dragline to increase the
number of lights from those that were initially installed.
The Secretary did not call any miners to testify that the illumination was inadequate.
However, Northwestern called employee Terry Mosely, a dragline oiler, who opined that the light
around the No. 28 dragline shoes was adequate. (Tr. 74). Mosely testified the lighting problem
at the No. 28 dragline primarily was caused by lights on the adjacent No. 27 dragline that was
operating in the same pit. Mosely testified the lights from the No. 27 dragline were "blinding"
personnel at the No. 28 dragline.
At the hearing, the following bench decision was entered witnrespect to Citation
No. 7599226:
Citation No. 7599226, which cites a violation of section 77.207, states:
The dragline 28, Marion 8750, outside illumination was not
sufficient to provide safe working conditions. The shadow cast
alongside the propel, shoe walkway, and on the ground adjacent to
the propel shoes made it difficult for a person to safely walk and
mount the machine. The machine was in use at the D pit.

434

Section 77 .207 provides:
Illumination sufficient to provide safe working conditions shall be
provided in surface structures, paths, walkways, stairways, switch
panels, loading and dumping sites and working areas.
Thus, the operative phrase is "illumination sufficient to provide safe working
conditions." Whether the illumination required by the mandatory standard is
adequate to provide safe working conditions must be viewed in the context of the
circumstances upon which personnel will be working in the area being
illuminated. Here, the concern is for the oiler who is called upon to mount and
dismount the dragline via a ladder of several steps that is installed adjacent to the
shoes of the dragline. The uncontroverted testimony is the distance of descent
from the bottom of the ladder to the surface varies between six inches and two
feet depending on the terrain.
The dragline's initial 400 watt lights installed on the dragline were replaced with
1,000 watt lights. In addition, additional lights were installed. Although there
was reference made to Terry Mason, a dragline oiler who reportedly complained ·
to Castaneda about the lights, Mason was not called by the Secretary as a witness
in support of the citation. On the other hand, the respondent presented testimony
from Terry Mosely, another oiler employed by Northwestern, who opined the
lighting was adequate.
The adequacy of lighting, in the absence of objective lumen measurements, is
subjective. Although reasonable people may differ with regard to what constitutes
adequate lighting conditions, Castaneda's opinion is unsupported by, and
outweighed by Moseley's testimony. Given the Secretary's burden of proving the
fact of a violation, the evidence is inadequate to support Citation No. 7599226.
Accordingly, Citation No. 7599226 shall be vacated. (Tr. 342-45).

c. Citation No. 7599212
During the course of his inspection, Castaneda observed Northwestern's Dl06 Komatsu
bulldozer in the D pit area. The bulldozer had a fire suppression system with discharge hoses
and nozzles on the right and left sides of the dozer. The discharge hoses were connected to metal
canisters containing fire suppression chemicals that were located on the right and left sides of the
dozer. Castaneda noted the actuating line was disconnected from the right canister, thus
disabling the right side discharge hoses and nozzles. Castaneda recalled the threads on the
disengaged connection fitting were rusted which gave him reason to believe this condition had
existed for a considerable period of time.

435

Consequently, Castaneda issued Citation No. 7599212 citing an alleged violation of
section 77.1110, 30 C.F.R. § 77.1110. This mandatory standard requires firefighting equipment
to be continuously maintained in a usable and operative condition. Although the cited condition
was initially designated as S&S, it was subsequently modified to a non S&S citation.
The respondent does not dispute that the right actuator was disconnected and that the
system was not fully functional. However, the respondent asserts that the right side canister
system was redundant in that the left side canister and hoses, alone, constituted an effective fire
suppression system. fn addition, the respondent argues that the actuator connection had not been
repaired because it recently had become disconnected as evidenced by the fact that the
malfunction had not been noted in the preshift book. Thus, the respondent asserts, somewhat
inconsistently, that although it believed the right side discharge hoses to be superfluous, it would
have repaired the condition immediately had it been aware of the situation. Finally, the
.respondent argues that fire extinguishers, which were available to the dozer operator, are
sufficient to satisfy the cited mandatory standard.
The following bench decision was issued for Citation No. 7599212:
Citation ·No. 7599212, citing a violation of section 77 .1110, states:
The fire suppression system provided on the Komatsu bulldozer,
Model D375A, Company No. I 06, was not maintained in an
operative condition. The actuator line had come loose from the
actuating cartridge. The bulldozer was in use at the D Pit.
Section 77.1110 requires that "firefighting equipment shall be continuously
maintained in usable and operative condition." I am sensitive to the respondent's
argument that the cited fire suppression system was not mandatory and that,
ordinarily, fire extinguishers are adequate. However, once the respondent took it
upon itself to install this fire suppression system, it had a continuing duty to
maintain it. It is undisputed that, while the system was operative on the left side,
it was inoperative on the right side. Whether or not the left side alone was
sufficient to extinguish a fire, the malfunction on the right side undoubtedly
would cause a diminution in effectiveness.
Turning to the respondent's assertion that the condition had just occurred,
notwithstanding Castaneda's testimony concerning the corrosion on the actuator
connection, the Commission has noted the failure to note a condition in a preshift
book does not establish the condition occurred after the shift began. See Peabody
Coal Company 14 FMSHRC 1258, 1262 (August 1992) citing Eastern Associated
Coal Company, 13 FMSHRC 178, 187 (February 1991). To.the contrary, the
condition may have been overlooked, or, it may not have been considered
hazardous in which case it would continue to be excluded from the preshift
notations.
436

In any event, the evidence supports the cited violation. Accordingly, Citation
No. 7599212 is affirmed, and the $50.00 civil penalty proposed by the
Secretary for this non S&S condition shall be assessed for this citation.
(Tr. 345-47).
d. Citation No. 7599214
On January 28, 1998, Castaneda inspected the auxiliary room of the Caterpillar backhoe,
Model LSOI. Although this area is referred to as "a room" it is more accurate to describe it as a
very small tool shed that is located under the operator's compartment. (See photographs
admitted as Exs. R-9A-9F). The area is accessed from a door that is located to the left of a
ladder that is affixed to the side of the backhoe. The ladder is used to climb from the surface
onto the backhoe catwalk structure. The dimensions of the subject "room" are 49 inches wide by
50 inches long. Upon opening the door to this area, Castaneda observed tool boxes, wrenches,
sledge hammers and various machine parts lying on the floor.
Based on his observations, Castaneda issued Citation No. 7599214 citing the respondent
for an alleged violation of section 77.208(a), 30 C.F .R. § 77 .208(a), that provides, "materials
shall be stored and stacked in a manner which minimizes stumbling or fall of material hazards."
Although the citation was issued as S&S, it was subsequently modified to delete the S&S
designation as a result of a Health and Safety Conference after MSHA conceded the cited area
"was not a high traffic area" where exposure to serious injury was likely. Indeed.
At the hearing, the following bench decision was issued with respect to Citation
No. 7599214:
The subject area is approximately 4 feet by 4 feet. The cited standard requires that
materials be stored and stacked in a manner so as to minimize stumbling and
falling. The standard must be reasonably interpreted to require that tools and
other materials be kept in a comer or along a wall so that mine personnel can
traverse an area without tripping and falling. However, this area, which is
analogous to a truck bed where tools are stored, is not a walk through area as the
entire area can be reached by standing in place. Thus, MSHA's characterization
of this space as "not a high traffic area" is disingenuous in that it is not a traffic
area at all.
To determine if a broadly worded mandatory standard applies to a given factual
situation the Commission applies the reasonably prudent person test. Ideal
Cement Company, 12 FMSHRC 2409, 2416 (November 1990). A reasonably
prudent person familiar with the purposes of the cited mandatory standard would

437

not think the standard was applicable to this situation. MSHA's attempt in this
instance to micro manage the placement of tools :in this closeted area trivializes
the Mine Act, and, in so doing, undermines its purpose. Accordingly, Citation
No. 7599214 shall be vacated.

III. Further Findings and Conclusions
The remaining three citations concern alleged violations of section 77 .11 04 as a result of
Castaneda's observations of fuels, oils, or lubricants on internal combustion engines, frames and
transmissions of equipment used in the mining process. Section 77. I 104 provides:
Combustible materials, grease, lubricants, paints, or flammable liquids shall not
be allowed to accumulate where they can create a fire hazard.
Thus, in considering whether violations of section 77.1104 have occurred the Secretary
must demonstrate: (1) the presence of combustible material; (2) that the combustible material
was "allowed" to accumulate; and (3) that the accumulations are located in an area "where they
can create a fire hazard."
In evaluating the merits of the citations discussed below, the first element of a section
77 .1104 violation is present in that it is undisputed that deposits of hydraulic and lubricating oils
and diesel fuel are combustible. The third element requires an analysis of potential ignition
sources and their proximity to the combustible material.
However, the second element of section 77.1104, namely whether the cited deposits are
" accumulations," and, if so, whether they were "allowed" to accumulate, raise difficult issues
that must be resolved on a case by case basis. For example, the Secretary's characterization of
areas of oil deposits on engines, hoses and frames of heavy duty mining equipment as
"accumulations" begs the question. In this regard, Inspector Castaneda conceded not all oil
deposits on engines constitute violations of section 77.1104, stating that the issue is one of
degree. (Tr. 208-09, 231 -33). Moreover, Castaneda admitted internal combustion engines are
designed to operate safely despite seepage from gaskets and hoses, and, that engine deposits are
commonplace and not ignitable from engine heat. (Tr. 212). Specifically, Castaneda testified:
COURT: The issue of oiJ, lubricants, hydraulic oil, in an engine
compartment, in your experience, I assume you've frequently come
into contact with oil on trucks; right?

A. Yes.

438

COURT: If you looked at the engine[s] of ... heavy duty truck[s],
what percentage of them would be clean as opposed to engines
with residue or oil deposits on them? Isn't it a common occurrence
to have oil deposits on an engine particularly engines, backhoes,
this type of equipment? Isn' t it hard to keep it free of residue?

A. On all engines, yes.
COURT: So there was something about this condition that
distinguishes normal residue; is that --

A. About the amount that I would normally expect to see.
COURT: Would the heat from the engine be a source of ignition?

A. Just the ambient heat?
COURT: Yes, from the engine itself.
A. No.
COURT: So the materials on the engine itself, the engine running,
the engine wouldn't be an ignition source?
A. No. (Tr. 211-12).
Although the subject citations primarily concern "accumulations" of oil deposits, the
citations dealing with the backhoe and coal hauler also concern deposits of fine coal dust.
These pieces of equipment operate "knee deep" in outdoor, open coal pits. In this regard, a video
was admitted depicting Jewett Mine heavy duty equipment operating in coal beds. See Ex. R-26.
Castaneda repeatedly admitted it is impossible to prevent fine coal dust deposits on the frames
and in the compartments of such equipment. (See, e.g., Tr. 193-94, 236, 283-86). For example,
Castaneda testified:
COURT: When we saw the video [Ex. R-26] on the general
operations of the Jewett Mine, am I correct that these haulers
sometimes actually ride in these coal pits; is that correct?

A. They always go to the coal pits.
COURT: Thaf s what I'm saying. They're in the coal pit?

A. Yes, sir.
439

COURT: So they're basically riding through extensive areas of
coal?
A. Yes, sir, they are.
COURT: How do you keep any degree of coal particles from
"accumulating,, underneath the underbelly of a hauler if it's riding
through piles of coal?
A. You ' re not

COURT: How do you determine when you're doing an inspection
what is and what isn't a violation with regard to the coal that's on
the equipment itself?
A. I have to make a decision on whether it is or [is] not when I'm
looking.

COURT: Whether it's normal accumulations or over and above?
A. Whether it's normal accumulations or it's above and beyond.
All these haulers, they haul coal. You're going to get some coal
dust on them, but if you don't have the oil and something to make
it stick to the frames or the equipment, then coal dust, whenever
it's dry, it can blow off as soon ~ it gets on the road.

COURT: I see. Again these haulers, I think of a hauler as a dump
truck that's loaded, but these particular haulers actually drive
through mounds of coal in the pit; is that right?
A. Not in the pit.

COURT: I remember in the video that I saw areas where they
seemed to be riding over I

I

(

I

A. They're riding on top of the solid coal, and then the backhoe or
the ... will rake the coal out and swing over and dump it into the
bed of the truck.
COURT: Okay. So what I recall now was that it was riding on the
areas of solid coal.

440

A. And then it goes on a dirt road to the coal stop light where,
depending upon what the plant wants, they'll either go over to
[inaudible] or they'll go over to the coal stock pile.
COURT: Let me ask you this question. This issue of
transmission[s], I'm thinking in terms of [a] transmission
mechanism, the rear end of a vehicle. In your opinion, is it
common to have residue oflet's say seepage of transmission fluids,
oil, in and around the transmission boxes and the rear end of these
vehicles, you know, the underbelly of the vehicle?
A. Yes.

COURT: If you look at the li.nderbelly of such a vehicle, and you
saw, as I said, that it was coated, not with measurable amounts, but
just coated in the sense that there was a deposit of transmission
fluid and hydraulic oils, again on the transmission and the rear end
of a vehicle like this, do you consider that to be a violation of
77.1104?
A. This is a combination of coal dust and oil or coal dust without
oil?

COURT: If you have any degree ofresidue, I would assume ... in
fact, that's the quandary that I have; if you have any degree of
residue and you're riding through areas of coal, how do you
prevent some dust from adhering to the coating that's not
uncommon that forms on transmissions and rear ends of vehicles:
A. You will not prevent it. You're going to --

COURT: Is that a violation then, do you think?
A. It would depend upon the degree; I mean, the amount of
accumulation; just merely having dry coal dust on a metal frame in
its normal operations, I would not think that I would issue a
citation on that.

COURT: What about the coating of coal dust and hydraulic fluids
on the transmission and rear end, again the underbelly of the
vehicle?
A. It would depend upon the degree.
441

COURT: But these are not easy decisions, are they?

A. Not to me they 're not.
COURT: I appreciate that these are difficult calls, and that's what
we're grappling with here today. (Tr. 283-86).
In the context of the above analysis and testimony, we now consider the subject
section 77 .1104 citations.
a. Citation No. 7599213 - Hitachi Backhoe BOOS
During the course of his inspection, Castaneda opened the door to the engine
compartment of the Hitachi backhoe. Castaneda observed an area of hydraulic oil and lube oil
about 3 feet by 3 feet in size "mostly on the surfaces of the hose and frame" along with some fine
coal dust. The backhoe was in operation and had fine coal dust on it becaµse it was loading
haulers. (Tr. 193-4).
Castaneda considered the oil deposits in the engine compartment, and on and around the
hydraulic pump motors that were located outside the engine compartment at the front of the
backhoe, to be excessive aQ.d more than a "normal accumulation." (Tr. 232). Although
Castaneda did not identify a specific leak in the engine compartment, Castaneda determined,
based on information provided by Northwestern's maintenance supervisor, Ronald Carmichael,
that the hydraulic pump at the front of the backhoe was leaking because an 0-ring had been left
off after the pump had been overhauled. (Tr. 194, 214-15).
Consequently, Castaneda issued Citation No. 7599213, alleging a violation of section
77 .1104, because:
Combustible materials were allowed to accumulate on the Hitachi Backhoe, B008,
where they created a fire hazard. Hydraulic oil, lube oil and fine coal dust had
accumulated on the engine, puinps, hoses, and frame of the backhoe. The
backhoe was in use at the D Pit loading coal haulers.
Castaneda concluded the violation was S&S although he was unable to provide
conv.i ncing testimony concerning any potential ignition sources in the vicinity of the cited
accumulations. Flammable liquids have a flash point of less than 100 degrees Fahrenheit.
Combustible materials, such as the cited oil lubricants, have flash points above 100 degrees
Fahrenheit. As previously noted, Castaneda conceded the ambient heat from the engine was an
insufficient ignition source. (Tr. 212). Although he relied on the exhaust manifold as a potential

442

source of ignition he did not explain why the exhaust heat source is more dangerous than the heat
generated by the engine that is in d irect contact with the cited de]Josits. Castaneda also stated
that insulation on electrical wiring that could become damaged and create an ignition spark could
be another ignition source although he admitted a defective spark plug wire was not a significant
source of ignition. (Tr. 214).

i. Discussion and Evaluation
As a general proposition, not all combustible accumulations are prohibited
accumulations, particularly at a surface mine where underground considerations of
permissible equipment, coal dust suspension and propagation, are not safety concerns. (See 30
U.S.C. § 878(i) pertaining to permissible equipment in underground mines; see also Tr. 210,
301-02). For example, a coal stockpile or a wet oil spot on the ground are not prohibited
accumulations.
Moreover, oil deposits on engines, hydraulic motors and transmissions on surface mine
equipment must be viewed in context because they are not "accumulations" as that term is
normally applied to coal dust accumulations. Unlike coal dust that can accumulate in depth over
a period of time, oil "accumulations" drip off on the ground, or are vaporized from the heat of the
engine. (Tr. 234-36).
The Commission has held that a violative "accumulation" exists "where the quantity of
combustible materials is such that, in the judgement of the authorized representative of the
Secretary, it likely could cause a fire or explosion if an ignition source were present." Old Ben
Coal Co., 2 FMSHRC 2806, 2808 (October 1980). The mine inspector's judgement is subject to
a challenge before the administrative law judge. Id. at 2808 n. 7. The inspector's judgement
must be reviewed judicially by applying an objective test of whether a reasonably prudent person,
familiar with the surface mining industry and the protective purpose of the cited mandatory
safety standard, would have recognized the hazardous condition that the regulation seeks to
prevent. Utah Power & Light Company, Mining Division, 12 FMSHRC 965, 968 (May 1990).
Having said that not all combustible accumulations are prohibited, we turn to the
provisions of the cited mandatory standard in section 77. 1104. As an initial matter, it is
important to recognize the distinction between es~ishing the fact of occurrence of a section
77.1104 violation, and establishing that such a violation is S&S. To establish the fact of
occurrence, the Secretary must show th~..an operator "allowed" combustible materials to
accumulate at a location and in a manner that are ill advised. In other words, routine engine oil
deposits, or other lubricating oil deposits and residues, that are a consequence of normal
operations do not constitute a violation of section 77.1104. However, a discrete operational
defect, manifest by excessive accumulations of leaking hydraulic oils and lubricants, constitutes a
violation of section 77. 1104. Here, the evidence reflects combustible material was permitted to
accumulate on the subject backhoe by virtue of a defective or missing 0-ring on the hydraulic
pump. Consequently, the Secretary has demonstrated a violation of section 77.1104.
443

Turning to the S&S issue, the Secretary bears the burden of proving the S&S nature of a
violation. Union Oil Co. OfCal., 11FMSHRC289, 298 (March 1989); US. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984). An S&S violation of section 77.1104 requires a
demonstration of a "confluence of factors," such as presence of a fuel source in proximity to a
potential ignition source, to establish a reasonable likelihood that ignitions or explosions will
occur. See Texasgulf. Inc., 10 FMSHRC 498, 501{April1988). As discussed above,
Castaneda's testimony with regard to the likelihood of ignition sources was inconsistent and
unconvincing. Given Castaneda's concession that not all oil deposits on engines and
transmissions are violations, it is clear that such deposits are not significant risks of fire. 3

Accordingly, Citation No. 7599213 shall be modified to delete the S&S designation. 4
The Secretary initially proposed a civil penalty of $178.00 for Citation No. 7599213.
Although the S&S designation has been deleted, the degree ofNorthwestern's negligence was
relatively high in view of its failure to replace the missing 0-ring. Accordingly, consistent with
the penalty provisions of section 11 O(i) of the Mine Act, a civil penalty of $100.00 shall be
imposed for this violation.
b. Citation No. 7599215 - Light Plant No. 15
Northwestern uses light plants at various locations at the mine to provide additional
lighting at night A light plant consists oflights mounted on a small trailer-like device that can
be moved from location to location as needed. (Exs. R-1 lA-E; Tr. 251). The lights are powered
by a diesel engine which starts and stops automatically by a photocell. In the morning, when
sufficient light appears, the photocell will cause the engine to stop and the lights to go out. As
dusk appears and it becomes dark, the photocell causes the engine to start and the lights to come
on. In addition, the light plant is equipped with two warning lights. An amber light comes on
when the light plant is ready and could start at any time. When fuel becomes low, a blue light
begins flashing to indicate that additional fuel is needed.

3

As discussed infra, the conclusion that Castaneda failed to provide persuasive testimony
that an explosion or fire was reasonably likely to occur is consistent with MSHA's non S&S
determination in Citation No. 7599216 that there were no "obvious ignition sources" near
"hydraulic oil and coal dust ... on the transmission, hoses and frame of [a Euclid] coal hauler."
(Ex. G-5, p.3).
4

In her post-hearing Proposed Findings, the Secretary refers to a Mine Safety and Health
Administration Technical Support report that noted there were 106 mobile diesel equipment fires
during the years between 1978 and 1983. (Sec.'s Br. at p.9-10). This information has not been
considered because it was not presented at the hearing. Moreover, the circumstances behind
these reported fires are unknown and they are, therefore, of little evidentiary value in determining
whether the cited condition was likely to contribute to a fire and resulting injury.
444

Castaneda examined the light plant located on the highwall of the D Pit that was used at
night to provide additional lighting to the pit floor below. The light plant was not operating at
the time. No employee worked near the light plant. The nearest employee working was
approximately 150 to 200 yards away. (Tr. 270).
Castaneda testified that he opened the engine door and saw evidence of diesel fuel
running down the side of the engine. (Tr. 253). Castaneda determined there was a leak in a
return line that recirculates excess diesel fuel that is not sprayed into the engine by the injectors.
The respondent's safety coordinator, David Evans, admits there was a leak in the diesel fuel line
that caused some diesel fuel to leak onto the side of the engine.
As a result of his observations, Castaneda issued Citation No. 7599215 citing.a violation
of section 77.1104 for allowing combustible material, including diesel fuel, to accumulate where
it could cause a fire hazard on the Light Plant No. 15. In view of the fact that employees did not
work in proximity to the light plant, Castaneda designated the violation as non S&S in nature.
The Secretary proposes a civil penalty of $50.00 for this violation.
As discussed above, a violation of the mandatory safety standard in section 77.1104
occurs if the respondent allowed, by virtue of a discrete operational defect, combustible materials
to accumulate. Here the respondent permitted diesel fuel leakage, albeit in small amounts, to run
down the side of the engine. Operating the light plant in a state of disrepair, given the resultant
diesel fuel accumulation, constitutes a violation of section 77.1104. Accordingly, Citation
No. 7599215 shall be affirmed and the $50.00 civil penalty proposed by the Secretary shall
be assessed.
c. Citation No. 7599216- Coal Hauler
Castaneda and David Evans, Northwestern's safety coordinator, inspected coal hauler
No. OOLat the D Pit and observed some oil dripping down the side of the transmission. Evans
testified that occasional transmission oil discharge through the transmission's oil breather was a
normal occurrence. Northwestern's maintenance supervisor, Ronald Carmichael opined it is
impossible to operate Euclid coal haulers, because of their design, without getting some
transmission oil through the breather onto the outside of the transmission. Tr. 333, 338. The
Euclid transmission is designed to operate as a brake when going down a slope. Downshifting,
as well as operating under a heavy load, causes heat buildup in the transmission. The heat causes
the transmission fluid to expand which results in the release of "little burps" from the breather.
Tr. 333-334.

445

As a result of his observations, Castaneda issued Citation No. 75992 16 alleging a
violation of section 77 .1104 because:
Combustible materials were allowed to accumulate on the Euclid coal
hauler, Company No. 001, where they could create a fire hazard.
Hydraulic oil and coal dust was present on the transmission, hoses and
frame of the coal hauler. The coal hauler was in use at D Pit.
Although the citation was initially issued as S&S, it was modified to delete the S&S
designation on May 4, 1998, as a result of a Health and Safety Conference. In modifying the
citation, it was noted that, " the accumulation on this unit was not excessive nor was it in an area
where there were obvious ignition sources." (Ex. G-5, p.3).
At the hearing Castaneda stated he inspected two Euclid haulers at the Jewett Mine. One
Euclid was observed at the fuel station with hydraulic oil leaking out of a rear oil tank onto the
ground in the nature of an overflow. Another Euclid was inspected at the D Pit located six miles
from the fuel station. The Euclid at the D Pit had the transmission leak. The respondent
contends Castaneda has confused the extensive oil leaking to the ·ground from the Euclid at the
fuel station with the normal small amount of transmission fluid discharged from the breather on
the cited Euclid at the D Pit. Although Castaneda insists the cited Euclid had an extensive
transmission leak, Castaneda's recollection of his inspection that occurred approximately one
year earlier is undermined by the results of the Health and Safety Conference that was conducted
shortly after the subject inspection. Consequently, the evidence supports the testimony of Evans
and Carmichael that the cited transmission discharge was "not excessive" or otherwise
extraordinary.
As previously discussed, normal petroleum discharges and deposits through breathers, or
seepage through hoses and gaskets, do not constitute violations of section 77 .1104 because the
operator has not "allowed" combustible accumulations to occur. It is also significant that
MSHA concedes "there were no obvious ignition sources" in the vicinity of the cited "leak."
The absence of a showing of a potential ignition source also precludes a finding of a section
77 .1104 violation because the plain language of this standard requires a showing that the cited
accumulations "can create a fire hazard." Accordingly, Citation No. 7599216 shall be vacated.

ORDER
In view of the above, IT IS ORDERED that Citation Nos. 7599226, 7599214 and
7599216ARE VACATED.

IT IS FURTHER ORDERED that, pursuant to the parties' settlement agreement,
Citation No. 7599225 IS AFFIRMED.

446

IT IS FURTHER ORDERED that Citation Nos. 75.99212 and 7599215
ARE AFFIRMED.
IT IS FURTHER ORDERED that Citation No. 759921 3 IS MODIFIED to delete the
significant and substantial designation.
ACCORDINGLY, IT IS ORDERED that Northwestern Resources pay a total civil
penalty of$378.00 within 45 days of the date of this Decision. Upon timely receipt of payment,
Docket No. CENT 98-153 IS DISMISSED.

Administrative Law Judge

Distribution:
Ned Zamarripa, Conference and Litigation Representative, U.S. Department of Labor,
Mine Safety and Health Administration, P.O. Box 25367, Denver, CO 80225 (Certified Mail)
Charles C. High, Jr., Esq., Kemp, Smith, Duncan & Hammond, P.C., 1900 Norwest Plaza,
P.O. Box 2800, El Paso, TX 79901-1441 (Certified Mail)
/mh

447

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

April 19, 1999

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

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 98-159-M
A. C. No. 23-00746-05530

v.
Docket No. CENT 98-207-M
A.C. No. 23-00746-05531

K.R. WILSON CONTRACTING, INC.,
Respondent

Sullivan Plant

DECISION
Appearances: Mark W. Nelson, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado, for Petitioner;
Michael 0. McKown, Esq., Ziercher & Hocker, P.C., St. Louis, Missouri , for
Respondent.
Before:

Judge Hodgdon

These consolidated cases are before me on Petitions for Assessment of Civil Penalty filed
by the Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA),
against K.R. Wilson Contracting, Inc., pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815. The petitions allege five violations of the Secretary's
mandatory health and safety standards and seek penalties of $100,860.00. A hearing was held in
St. Louis, Missouri. For the reasons set forth below, I vacate one citation, affirm four and assess
penalties of $40,688.00.

Settled Citations
At the beginning of the hearing, counsel for the Secretary advised that the parties had
agreed to settle the two citations in Docket No. CENT 98-207-M. The agreement provides that
the peJ}alty will be reduced from $860.00 to $688.00. Based on the representations of the parties,
l concluded that the settlement was appropriate under the criteria set forth in section 11 O(i) of the
Act, 30 U.S.C. § 820(i), and approved the agreement. (Tr. 16-18.) The provisions of the
agreement will be carried out in the order at the end of this decision.

448

•

I

'1 J

'

t

Background
. The Respondent operates a small limestone quarry in Sullivan, Missouri, known as the
"Sullivan Plant." At about 12:30 p.m., on June 20, 1997, Larry Bouse, the plant foreman, began
replacing a brake expander tube on the left rear wheel of a 1966 Caterpillar, Model 98 8A, frontend loader. This required him to elevate and block the loader on stands. Since it was necessary
to remove the wheel, one end of the fender over the wheel was disconnected and the fender,
which weighed 425 pounds, was raised to an almost upright position by the boom hoist on a
hoist truck. The fender was then secured by connecting a portable ratchet hoist, commonly
called a "come-along,"1 to the top step2 on the fender and to an "eye piece" on the top of the rollover protective structure of the loader.
By 4:30 p.m., Bouse had completed the brake repairs and wa~ attempting to get the wheel
back onto the loader. Ronald Haanpaa and Vernon Abney, who had completed work for the day,
offered to assist Bouse in completing his work. Haanpaa got into the hoist truck to lift the wheel
back into position with the boom hoist. Abney got in the wheel well to guide the wheel back
onto the axle and Bouse got on the hood of the loader to communicate between Haanpaa and
Abney. When they still could not get the wheel on, Abney suggested that they completely
remove the fender. He was coming out of the wheel well when the "come-along" failed,
releasing the fender. The fender struck Abney in the forehead near the hair line and pushed his
head back into the frame of the loader. Abney, who was not wearing a hard hat at the time,
suffered massive head injuries and died as a result.
MSHA began its investigation of the accident the next day. On July 21, 1997, three
citations were issued to the operator as a result of the accident. Citation No. 7856213 alleges a
violation of section 56.14211 (b) of the regulations, 30 C.F .R. § 56.14211 (b), because: 11 0n June
20, 1997 an employee was fatally injured when a raised fender of a 988A Caterpillar front end
loader fell striking him. The portable hoist, which was used to secure the hinged 425 pound
fender, failed. (Govt. Ex. l .) Citation No. 7856214 charges a violation of section 56.15002, 30
C.F.R. § 56. 15002, in that: "When (the employee] left his truck to assist with the loader repairs,
he did not put on a hard hat where there was a danger of falling objects." (Govt. Ex. 1.) Finally,
Citation No. 7856515 asserts a violation of section 56.141 OO(b), 30 C.F.R. § 56. 14 lOO(b), since:
The portable hoist, which was used to secure the hinged 425 pound
fender failed when the cable compression clamp broke.

1

A "come-along" is "a little drum that a cable wraps around." The drum is in a frame
which has a ratcheting device operated by a handle. As the handle is ratcheted in one direction, it
rotates the drum, causing the cable to wrap around it. As it is ratcheted in the other direction, the
cable is played out. The frame has a hook on one end and the cable extends out from the frame
and has a pulley with a hook attached to it. (Tr. 283-84.)
2

The fender bad steps on it to be used in climbing up on the loader.

449

Additionally, it had loose bolts, the pulley bearing would not roll
and the 3/16-inch cable was attached with a bolt marked "CAT."
The cable had broken wires and the rating information was missing.
The handle did contain a warning against unauthorized alteration.
The foreman was directing a wheel assembly installation on the
loader and allowed the defective equipment, which had been altered
and not maintained, to be used. This constitutes more than
ordinary negligence and is an unwarrantable failure to comply with
the Standard.3
(Govt. Ex. 1.)
The "come-along" failed because a compression thimble, or aluminum swedge sleeve,
catastrophically collapsed. "This thimble is a soft aluminum sleeve that slides over the doubled
cable and is compressed by a special swedging tool to form a permanent loo,p in the end of the
cable." (Resp. Ex. 2 at 2.) This allowed the pu11ey hook to become unattached from the cable,
releasing the hook and the fender. The catastrophic failure was caused by an outside event,
probably the tire on the hoist cable, or the hoist cable itself, striking the fender.

Findings of Fact and Conclusions of Law
Citation No. 7856213
This citation alleges a violation of section 56.1421 l(b) which provides that: "Persons
shall not work on top of, under, or work from a raised component of mobile equipment until the
component has been blocked or mechanically secured to prevent accidental lowering." Section
56.142 11 (d), 30 C.F .R. § 56.14211 (d), states that "a raised component of mobile equipment is
considered to be blocked or mechanically secured if provided with a functional load-locking
device or a device which prevents free and uncontrolled descent."
The regulation is clear and unambiguous that the raised component can either be
"blocked" or "mechanically secured.JJ The MSHA inspectors who testified were all of the opinion
that the fender should have been blocked. Consequently, it is the Secretary's position that since
the fender was not blocked, the standard was violated. Inasmuch as that position ignores the clear
language of the rule, I find that argument without merit. On the other hand, the Respondent
contends that the raised fender was mechanically secured by the "come-along." The evidence,
however, demonstrates that the fender was not mechanically secured.

3

This citation originally alleged a violation of section 56.14100(c). The citation was
modified on November 13, 1997, to substitute the "Condition or Practice" set out above, to
change the standard alleged to be violated and to charge that the violation was an
"unwarrantable failure."
450

As section 56.1421 l(d) plainly states, if a functional load-locking device or a device
which prevents free and uncontrolled descent is used the regulation is satisfied. In this case, such
a device was not used. The "come-along" did not prevent free and uncontrolled descent of the
fender when it struck Abney in the head. Since it fai led, the "come-along" was obviously not
functional. Cf Western Fuels-Utah, Inc., 19 FMSHRC 994, 998 (June 1997) (requirement that
conveyor belt be equipped with slippage and sequence switches means functional switches);
Fluor Daniel, Inc., 18 FMSHRC 1143, 1145-46 (July 1996) (requirement that self-propelled
mobile equipment be equipped with a service brake system means functioning system); Mettiki
Coal Corp., 13 FMSHRC 760, 768 (May 1991) ("switches to be used to lock out electrical
equipment must be equipped with.functioning lockout devices") (emphasis added). Therefore, I
conclude that the operator violated the regulation.
I reach this conclusion even though I accept the testimony of H. Boulter Kelsey, Wilson' s
mechanical engineering expert, that the "come-along" failed because of the unforseen,
catastrophic collapse of a thimble on the cable. The Act imposes strict liability on mine operators
for violation of the mandatory standards regardless of fault. Western Fuels-Utah v. Fed. Mine
Safety & Health, 870 F.2d 71 J, 716 (D.C. Cir. 1989); Rock ofAges Corp., 20 FMSHRC 106, 11 4
(February 1'998); Wyoming Fuel Co. , 16 FMSHRC 19, 2 I (January 1994). As the Commission
has stated, "the principle of liability without fault requires a finding of liability even in instances
where the violation resulted from unpreventable employee misconduct." Western Fuels-Utah,
inc., 10 FMSHRC 256, 261 (March I 998). Likewise, the principle of liability without fault
requires a finding ofliability in this case even though the failure of the "come-along" was
unfore~eeable.

Significant and Substantial
The Inspector found this violation to be "significant and substantial." A "significant and
substantial" (S&S) violation is described in Section I 04(d)( I) of the Act as a violation "of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard." A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC l, 3-4 (January 1984), the Commission set out four
criteria that have to be met for a violation to be S&S. See also Buck Creek Coal, inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04
(5th Cir. 1988), afj'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (December 1987)(approving
Mathies criteria). Evaluation of the criteria is made in terms of "continued normal mining
operations." US Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of
whether a particular violation is significant and substantial must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio
Coal Co., 9 FMSHRC 1007 (December 1987).

451

In order to prove that a violation is S&S, the Secretary must establish: (1) the underlying
violation of a safety standard; (2) a distinct safety hazard, 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 will be of a reasonably serious
nature.

In view of Abney's fatal injuries, there can be little doubt that this violation satisfies the
Mathies criteria. "Clearly, it was a significant contributing cause to the fatal accident." Walker
Stone Co., Inc., 19 FMSHRC 48, 53 (January 1997). Consequently, I conclude that the violation
was "significant and substantial."
Citation No. 7856214
Section 56.15002, which this citation alleges to have been violated, requires that: "All
persons shall wear suitable hard hats when in or around a mine or plant where falling objects may
create a hazard." The evidence is undisputed, and, indeed, the Respondent concedes, that Abney
was not wearing his hard hat when he was struck by the fender. It is also undisputed that this was
an area where hard hats were supposed to be worn. Accordingly, I conclude that the company
violated this regulation.

Significant and Substantial
This violation is alleged to be "significant and substantial." The operator argues that
Abney would have been killed even if he had been wearing a hard hat. The evidence to support
this claim is the speculation of Mr. Kelsey based on his calculation of the force of the blow
suffered by Abney. Mr. Kelsey, however, did not see the accident, or pictures of the accident, nor
did he see the type of hard hat Abney was not wearing or even know what brand it was.
On the other hand, Abney was not wearing a hard hat and he was killed by a blow to the
head. There is no way to know what would have happened to him if he had been wearing a hard
hat. Under those circumstances, I conclude that his failure to wear a hard hat reasonably
contributed to his death and that the violation was, therefore, "significant and substantial."

Citation No. 7856215
This citation alleges a violation of section 56.141 OO(b), which states: "Defects on any
equipment, machinery, and tools that affect safety shall be corrected in a timely manner to
prevent the creation of a hazard to persons." The citation lists the following defects in the "comealong": (1) loose bolts; (2) pulley bearing would not roll; (3) the cable was attached with a bolt
labeled. "cat"; and (4) the cable had broken wires. As it turns out, none of these defects caused the
accident. Despite that, if the defects affected safety, the standard was violated. In this case, the
Secretary has not proved that the defects affected safety.
The Commission has stated that: "The phrase 'affecting safety' ... has a wide reach and
the ' safety effect on an uncorrected equipment defect need not be major or immediate to come
452

within that reach."' Ideal Cement Co., 13 FMSHRC 1346, 1350 (September t 991) (citations
omitted). WhiJe the Secretary's witnesses characterized the "come-along" as a 11 piece of junk"
and reported that Bouse and Mr. Wilson had simi larly described it, the Secretary has failed to
demonstrate how the defects affected safety.
Conversely, the Respondent has rebutted any inferences to be derived from the
descriptions of the "come-aJong" with the testimony of Mr. Kelsey. He stated that the "Cat" bolt
"enhanced the capacity" of the "corne-aJong. (Tr. 296.) With regard to the broken wires, he said:
"I looked at the frame at the cable and about three or four strands were broken. It had nothing to
do with the failure in this circumstance .... You can break probably half of the wires in this cable
and still have it lift the 4,000 [pound] capacity." (Tr. 296-97.) In reply to a question about the
pulley not rolling, he testified:
It has no effect because the pulley was standing still for fo ur
and a half hours. This come-along was in a static loaded condition.
There is no movement of the fender. There is no rolli ng back and
forth. There is nobody cranking the handle. It is holding the fender
in a locked, secured position for the time period prior to the
catastrophic failure. There is no influence whatsoever by the pulley
under those circumstances.
(Tr. 297-98.) Finally, in answer to whether the "come-along" was a "piece of junk," he
responded:
Yeah, it's a piece of junk but ifs usable junk. It's usable
junk like this that we have around in virtually every kind of shop in
this country that people use all the time. It is not unsafe. It is not
something that when you pick it up and look at it and say ("]oh, this
thing could fail any minute["] because that just isn' t the case. It is a
piece of pretty well worn equipment. A lot of fo lks consider it junk
but it's still usable.
(Tr. 3 18-19.) (Emphasis added.)
C learly, the only defect affecting safety was the defect in the thimble. However, that
defect was not visible. As Mr. Kelsey stated:
The normal visualization of the surface would show some
s[er]atching on the surface but nothing to indicate that a
catastrophic fai lure was imminent by just looking at it. There is no
evidence of that. Even after the fact the only way we can tell it's a
catastrophic fai lure is by looking at it under a microscope. You
still can't tell with just the naked eye.

453

(Tr. 306-07.) Since the defect was not apparent, the company cannot be faulted for not correcting
it.
The Secretary did not present any evidence on how the defects affected safety. At best,
the testimony of the MSHA inspectors created an inference that the defects affected safety. The
Respondent, however, has effectively rebutted this inference with the expert opinion of Mr.
Kelsey. Because of his expertise, Mr. Kelsey's testimony is entitled to much greater weight than
the opinions of the inspectors. Accordingly, I conclude that the company did not violate section
56.141 OO(b) and will vacate the citation.

Civil Penalty Assessment
The Secretary has proposed penalties of $40,000.00 for the violation of section
56.142 ll(b) and $25,000.00 for the violation of section 56.15002. However, it is the judge's
independent responsibility to determine the appropriate amount of penalty in accordance with the
six penalty criteria set out in section 11 O(i) of the Act. Sellersburg Stone Co. v. FMSHRC, 736
F.2d 1147, 1151 (71h Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481, 483-84 (April 1996).
· In connection with the penalty criteria, the parties stipulated that K.R. Wilson was a small
company and that the operator demonstrated good faith in abating the violations. (Tr. 14-15.)
The company's Assessed Violation History Report shows that it was only as~essed four $50.00
violations during the two years preceding the violations in this case. Based on this, I find that the
operator has a good history of violations. Finally, since the violations in this case resulted in a
death, I find that both violations are of high gravity.

In an attempt to show that its ability to remain in business will be adversely affected by
the proposed penalties, the company has put into evidence an Accountants Review Report with
attached financial statements. (Resp. Ex. 3.) The cover letter contains the following disclaimer:
All information included in these financial statements is the
representation of the management of K.R. Wilson Contracting,
Inc.
A review consists principally of inquiries of Company
personnel and analytical procedures applied to financial data. It is
substantially less in scope than an audit in accordance with
generally accepted auditing standards, the objective of which is the
expression of an opinion regarding the financial statements taken as
a whole. Accordingly, we do not express such an opinion.
(Id. at 1.) This disclaimer is precisely the reason that unaudited financial statements are not
sufficient to carry the operator's burden of establishing that a penalty will adversely affect the
company's ability to remain in business. See Spurlock Mining Co., Inc., 16 FMSHRC 697, 700
(April 1994). Con.Sequently, I conclude that the penalties in this case will not have a detrimental
effect on K.R. Wilson's ability to remain in business.

454

The last penalty criterion is negligence. The Secretary has alleged a "high" level of
negligence with regard to Citation No. 7856213. This is preswnably based on the defects found
in the "come-along." However, in view of the fact that the apparent defects did not affect safety
and that the defect which caused the accident was neither discernible nor foreseeable, I conclude
that the level of negligence should be "low."
The Secretary has asserted that the violation in Citation No. 7856214 resulted from
"moderate" negligence. The evidence in this case indicates that Larry Bouse, the foreman in
charge of the repairs to the loader, did not "like" hard hats and was "occasionally" lax in
demanding that employees wear them. (Tr. 143, 371 .) Therefore, I conclude that this violation
was caused by "high" negligence.
Taking all of the penalty criteria into consideration, I assess a penalty of $15,000.00 for
Citation No. 7856213 and $25,000.00 for Citation No. 7856214.

Order
Accordingly, Citation Nos. 7856213 and 7856214 are modified with regard to the level of
negligence as set out above, and are AFFIRMED as modified, and Citation No. 7856215 is
VACATED in Docket No. CENT 98-159-M. Citation Nos. 7855877 and 7855909 are
AFFIRMED in Docket No. CENT 98-207-M.

K.R. Wilson Contracting, Inc., is ORDERED TO PAY civil penalties of $40,688.00
within 30 days of the date of this decision.

v~~./--T. Todd Hod;;T "
Administrative Law Judge

Distribution:
Mark W. Nelson, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5716
Michael 0. McKown, Esq., Zeircher & Hocker, P.C., 231 South Bemiston, 81h Floor, St. Louis,
MO 63105
/nj

455

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

April 29, 1999
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 99-89-M
A.C. No. 48-00533-05545

v.

Basins Mill

GEORGIA MARBLE COMPANY, formerly
BASINS INCORPORATED,
Respondent
DECISION

Before: Judge Manning
This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Georgia
Marble Company ("Georgia Marble"), formerly "Basins Incorporated," pursuant to sections 105
and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the
"Mine Act"). The petition alleges three violations ofMSHA's safety standards.
The parties filed a joint motion requesting that I assess civil penalties for the three alleged
violations based on their joint stipulation of facts and the existing record in this case. Georgia
Marble does not dispute that the conditions described in the three citations existed and that these
conditions violated the cited safety standards. It contends, however, that the proposed penalties
for the violations are too high, taking into consideration the six penalty criteria in section 11 O(i)
of the Mine Act. Determination of the amount of the penalty that should be assessed for a
particular violation is committed to a judge's discretion, bounded by proper consideration of the
penalty criteria. Sellersburg Stone Co., 5 FMSHRC 287, 293-94 (March 1983); nff'd, 736 F.2d
1147 (71h Cir. 1984).
I. STIPULATED FACTS

The parties stipulated to the following facts:
1. The Assessed Violation History Report attached to the motion is accurate. This report
shows that 26 citations were issued at the Basins Mill in the 24 months preceding November 3,
1998. All of the citations were issued under section 104(a) of the Mine Act; 9 of them were
designated as being of a significant and substantial nature ("S&S"), and 17 were not S&S.
456

2. Georgia Marble stipulates to the facts set forth in the three citations, including but not
limited to the MSHA inspector's designations as to the nature of the violation and gravity.
3. For the purpose of this case only, the Secretary stipulates to all the statements set forth
in Georgia Marble's answer dated March 9, 1999, except to the extent that any statement may
contradict the citations at issue.
4. Georgia Marble is subject to the jurisdiction of the Mine Act.
5. The administrative law judge has jurisdiction in this case.
6. Georgia Marble demonstrated good faith in abating the violations.
7. Georgia Marble operates a non-coal mine. The number of hours worked at the mine in
calendar year 1997 was 90,847 and the number of hours worked by the controlling entity in
calendar year 1997 was 1,090,900.
8. The payment of the penalties proposed by the Secretary in this case would not impair
Georgia Marble' s ability to continue in business.
The answer filed by Georgia Marble provides some general information about this case
as well as specific information about each of the violations. In pertinent part, the general
information is as follows:
Georgia Marble has made a conc~rted effort to focus on
safety at the Basins Mill. Significant changes to the management
structure have been made, most significantly with the replacement
of Mr. ... with the writer [Howard Scotland]. The receipt of
twenty-one citations during the course of the February 1998
inspection indicated not only that greater attention to safety was
required but that the administration of the safety program needed
improvement. As the new plant manager, I have enjoyed the
complete support of Georgia Marble's upper management in this
regard and I have been able to substantially improve the safety
program at the Basins Mill. I believe that my assertion is not
hollow but in fact [is] illustrated by the results of the 1114/98
inspection. The receipt of three citations in lieu of a repetition of
past events demonstrates that tangible change has occurred.
[T]he improvement made to better the cited condition has
extended well beyond those noted by the [MSHA] inspector upon
the close of his inspection. Each item has been reviewed and
actions taken, which in two cases involved costs more than three
times the amount of the proposed assessment.

457

In summary, Georgia Marble has made a considerable
effort at the Basins Mill to improve the administration of th~ safety
program and to eliminate conditions that might lead to future
citations. Cited deficiencies were promptly corrected, but more
importantly additional funds have been spent to preclude their reoccurrence and facilitate better protection. In keeping with our
demonstrated effort and visible reduction in the quantity of
citations received during our last inspection, Georgia Marble
requests that the proposed penalties be reduced to reflect a clear
and conscious safety effort.

II. STIPULATED FACTS CONCERNING THE CITATIONS
Georgia Marble operates the Basins Mill in Platte County, Wyoming. On November 4,
1998, the mill was inspected by MSHA and three citations were issued under section 104(a) of
the Mine Act.

A.

Citation No. 4338681

Citation No. 4338681 alleges a violation of 30 C.F.R.§ 56.12013(b), as follows:
At the south bagger area stairway, a cable tray. In this tray are
electric cables that the outer jacket that is pulled back exposing the
inner wires. Outer jackets are designed to provide damage
protection for electric cables. No exposed copper observed.
Under gravity, the inspector determined that an injury was unlikely, that if an injury
occurred it would likely be fatal for one person, and that the violation was not S&S. He also
determined that Georgia Marble's negligence was moderate. Section 56.12013(b) provides, in
part, that "[p]ermanent splices and repairs made in power cables ... shall be: insulated to a degree
at least equal to that of the original, and sealed to exclude moisture." The citation indicates that
Georgia Marble abated the violation by taping up the cables and providing damage protection
where needed. The Secretary proposes a penalty of $1, 122 for the violation.
In its answer, Georgia Marble states:
The subsequent action document states that the cables were taped
and protected from damage. I would like to note that the trays in
question have been removed completely and replaced with [a] new
tray and protected wires. The cables in question no longer exist
and the new installation provides for the protection of the wiring
from dust, dirt, and any impacts that might damage the conductor
insulation. The approximate cost of the new installation was
458

$4,000 and I believe it illustrates our desire to not only correct the
deficiency but also take the extra step to preclude a re-occurrence.

B.

Citation No. 4338682

Citation No. 4338682 alleges a violation of30 C.F.R.§ 56.12016, as follows:
Upon inspection of the south feed belt. This belt is under repairs at
this time the guards on the head are removed. When checked at the
mcc it was found that the belt was not locked out to prevent an
unwanted start up.
Under gravity, the inspector determined that an injury was reasonably likely, that if an
injury occurred it would likely be fatal for two people, and that the violation was S&S. He also
determined that Georgia Marble's negligence was moderate. Section 56.12016 provides, in part,
that "(e]lectrically powered equipment shall be deenergized before mechanical work is done on
such equipment" and that "[p]ower switches shall be locked out or other measures taken which
shall prevent the equipment from being energized without the knowledge of the individuals
working on it." The citation indicates that Georgia Marble abated the violation by locking out
the power switch. The Secretary proposes a penalty of $1,771 for the violation.
In its answer, Georgia Marble states:
The citation ... has been followed up with a thorough
review of proper lock out and tag out procedures with all hourly
and salaried employees. This review has been incorporated into
multiple Part 48 training sessions and documented. Additionally,
this procedure is thoroughly reviewed with any contractors doing
work on our site.

C.

Citation No. 4338683

Citation No. 4338683 alleges a violation of 30 C.F .R. § 56.12008, as follows:
At dust area the platform scale. This scale when inspected it was
found that the 11 Ov power cable was not properly entered into the
electrical compartment of the scale.
Under gravity, the inspector determined that an injury was unlikely, that if an injury
occurred it would likely be fatal for one person, and that the violation was not S&S. He also
determined that Georgia Marble's negligence was moderate. Section 56.12008 provides, in part,
that "[p]ower wires and cables shall be insulated adequately where they pass into or out of
electrical. compartments'' and that "[c )ables shall enter metal frames of ... electrical compartments

459

only through proper fittings." The citation indicates that Georgia Marble abated the violation by
talcing the scale out of service. The Secretary proposes a penalty. of $1, 122 for the violation.
In its answer, Georgia Marble states:
The scale in question is in the process of being replaced.
The new installation has been designed to better protect the
connection cited by the inspector. The cost of the new scale and
welded structure [is] approximately $3,500.

III. APPROPRIATE CIVIL PENALTIES

In assessing appropriate penalties in this case, I assume that the violations of the
Secretary's safety standards occurred as set forth in the citations. Although the citations were not
drafted using complete sentences, they are c~ear enough to understand what conditions were cited
by the MSHA inspector. I also accept the inspector's gravity and negligence determinations, as
well as his S&S characterizations. Finally, based on the parties' stipulation, I accept as fact the
information presented by Georgia Marble, as set forth above. I find that this information does
not contradict the conditions described in the citations.
Section 11 O(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. The penalties proposed by the Secretary in this case are higher than
the penalties proposed for previous violations at the Basins Mill in 1998 as evidenced by the
Assessed Violation History Report. The Secretary's proposed assessment attached to her petition
for assessment of penalty shows that MSHA assigned the maximum number of points for history
of previous violations under her penalty formula at 30 C.F.R.§ 100.3(c) for the three violations in
this case. The penalties are higher in this case because of the relatively high history of violations
at the Basins Mill. In essence, Georgia Marble is asking that I give more weight to the other
penalty criteria, including the good faith criterion, when I assess penalties in this case.
Under the Mine Act, the Secretary's penalty proposals are not binding on the
Commission's administrative law judges. Penalties assessed by a Commission judge can be
greater than, less than, or the same as those proposed by the Secretary so long as the judge
properly considers all of the penalty criteria. The criteria need not be given equal weight. My
analysis of the penalty criteria is as follows:

A.

The Operator's History of Previous Violations

As stipulated, Georgia Marble was issued 9 S&S citations and 17 non-S&S citations
during the 24 months preceding the issuance of the citations in this case. This history is high
given the size of the Basins Mill.

460

B.

The Appropriateness of the Penalty to the Size of the Business

As stipulated, the number of hours worked at the Basins Mill in calendar year 1997 was
90,847 and the number of hours worked by all employees of the controlling entity in calendar
year 1997 was 1,090,900. The mine and the controlling entity are moderate in size.

C.

Whether the Operator was Negligent

As stipulated, Georgia Marble's negligence was moderate for all citations.

D.

The Effect on the Operator's Ability to Continue in Business

As stipulated, the penalties proposed by the Secretary will not adversely affect Georgia
Marble's ability to continue in business.

E.

The Gravity of the Violation

Based on the stipulations, I find that Citation No. 4338682 was serious and was S&S.
The other violations were not S&S and were not as serious.

F.

Demonstrated Good Faith in Attempting to Achieve Rapid Compliance

Based on the stipulations, I find that Georgia Marble demonstrated good faith in
achieving rapid compliance with the cited safety standards after issuance of the citations.

G.

Determination of Appropriate Civil Penalties

In determining appropriate penalties, I take into consideration all of the penalty criteria, as
discussed above. The assessed penalties are lower than those proposed by the Secretary because
I gave more weight to the gravity of the violations, Georgia Marble's negligence, and Georgia
Marble's efforts to abate the underlying conditions cited by the inspector. I gave less weight to
the history of previous violations criterion. As stated in the stipulations, the Basins Mill was
under new management at the time of the inspection and management was taking steps to
improve the safety conditions at the facility. As a consequence, I believe that it is appropriate to
place less emphasis on the history of previous violations criterion than would normally be the
case.

461

III. ORDER
Based on the criteria in section l IO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:

Citation No.

30 C.F.R. §

Penalty

4338681
4338682
4338683

56.12013(b)
56.12016
56.12008

$400.00
800.00
400.00

Accordingly, the parties' motion to assess appropriate civil penalties for the citations in
this case based on stipulated facts and the existing record without a hearing on the merits is
GRANTED. The citations listed above are AFFIRMED as issued and Georgia Marble
Company is ORDERED TO PAY the Secretary of Labor the sum of$1,600 within 40 days of
the date of this decision.

Distribution:
Edward Falkowski, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5716 (Certified Mail)
Howard Scotland, Plant Manager, Georgia Marble Co., P.O. Box 845, Wheatland, WY 82201
(Certified Mail)

RWM

462

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N. W., 6Tu FLOOR
WASHINGTON, D. C. 20006-3868

April 7, 1999
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. YORK 99-30-M
A. C. No. 30-03138-055 11

v.
PATTERSON MATERIALS
CORPORATION,
Respondent

Wingdale Mine

ORDER ACCEPTING LATE FILING
ORDER DIRECTING OPERATOR TO ANSWER
On March 17, 1999, an order was issued directing the Secretary to show cause why this
case should not be dismissed for failure to timely file the penalty petition.
On March 22, 1999, the Commission received the Solicitor's penalty petition for the one
violation involved in this case. The Solicitor also filed a motion to accept late filing together
with a sworn statement. According to the Solicitor, this case and another civil penalty proceeding involving this operator, Docket No. YORK 98-43-M, were assigned to her. The Solicitor
states that she confused this matter with YORK 98-43-M and inadvertently filed this case in the
fi le folder for YORK 98-43-M. On the evening of March 18, 1999, in the course of a routine
review of her files, the Solicitor discovered the error, and mailed the petition and motion on the
next day, March 19, 1999.
Commission Rule 2700.28(a), 29 C.F.R. § 2700.28(a), requires that a penalty petition be
filed within 45 days from receipt of the operator's penalty contest. The contest in this case was
received on January 26, 1999, and the petition was due on March 12, 1999. Filing is effective
upon mailing and the petition was mailed on March 19, 1999. 29 C.F.R. § 2700.5(d).
Therefore, the petition was 7 days late.
On March 26, 1999, the operator filed a motion to dismiss. The operator asserts that the
reasons offered by the Solicitor do not constitute adequate cause for the late filing of the penalty
petition. According to the operator, some sort of inevitable outside force rather than a selfcreated problem, such as misfiling, can constitute adequate cause. The operator further contends
that the Solicitor would not have been aware of the late filing were it not for the show cause
order. Finally, the operator asserts that it will be prejudiced, along with all other similarly
situated operators, if the motion is granted because the Secretary will be able to justify any late
filing by claiming clerical lapses or other manner of inadvertence or inattention.
The Commission permits late filing of penalty petitions where the Secretary demonstrates

463

adequate cause for the delay and where the respondent fails to show prejudice from the delay.
Salt Lake County Road Department, 3 FMSHRC 1714, 1716 (July 1981 ). The Secretary must
establish adequate cause apart from any consideration of whether the operator was prejudiced.
Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct. 1989).
A determination of adequate cause is based upon the reasons offered and the extent of the
delay. I have accepted late filings where the Solicitor has claimed that delays were caused by clerical
errors in handling cases. In Apac Oklahoma, Docket No. CENT 97-187-M, unpublished (December
16, 1997) (attached), a petition that was 24 days late was accepted where the case was inadvertently
placed with another file and overlooked. In M. Jamieson Company, 12 FMSHRC 90 l (March 1990),
a late petition was permitted where the delay was relatively short and the file had been erroneously
placed in with another matter involving the same operator. However, I have not permitted late
filings based on mishandling of cases where the delay was lengthy. Phelps Dodge Morenci Inc.,
1993 WL 395589 (June 1993); Lawrence Ready Mix Concrete Corp., 6 FMSHRC 246 (Feb 1984).
Nor I have accepted a late penalty petition where the Solicitor claimed that the case was mishandled
when he had referred the matter to MSHA under the Alternate Case Resolution Initiative (ACRI).
Swenson Granite Company. LLC, 20 FMSHRC 859 (August 1998). In Swenson, I held that sending
the case to MSHA did not excuse the Solicitor from his responsibility of filing required pleadings.

The circumstances in this case are similar to those cited above where late filing was
permitted. The delay here was very short and the error was discovered by the Solicitor herself.
The operator's assertion that the show cause order alerted the Solicitor to the delay is unfounded.
The Solicitor's sworn statement that she discovered the error upon her own review of her files is
supported by the return receipt card in the Commission's file showing that the Solicitor did not
receive the show cause order until March 24, 1999. Under these limited circumstances, I find
that the Solicitor has demonstrated adequate cause for the short delay. In addition, I find there is
no prejudice from the seven day delay.
In light of the foregoing, it is ORDERED that the Solicitor's late filed penalty petition is
ACCEPTED.
It is further ORDERED that the operator filed its answer to the penalty petition within 30
days of the date of this order.

Paul Merlin
Chief Administrative Law Judge

464

Attachment
Distribution: (Certified Mail)
Suzanne Demitrio, Esq., Office of the Solicitor, U.S. Department of Labor, 201 Varick Street, Room
707, New York, NY 10014
John F. Klucsik, Esq., Devorsetz, Stinziano, Gilberti, Heintz& Smith, P.C., 555 East Genesee Street,
Syracuse, NY 13202-2159
/gl

465

attachment

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., 6TH FLOOR
WASIDNGTON D•.C. 20006-3868
December 16, 1997
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 97-187-M
A. C. No. 34-00050-05551

v.

East Quarry

AP AC OKLAHOMA, INCORPORATED,
Respondent

ORDER ACCEPTING LATE FILING
ORDER OF ASSIGNMENT
On November 10, 1997, the Commission received the Solicitor's penalty petition for the
two violations involved in this case. The Solicitor also filed a motion to accept late filing setting
forth the reason for the delay. According to the Solicitor, the operator's penalty contest was
forwarded to the Solicitor's office on September 10, 1997. However due to a clerical error, the
case was inadvertently placed with another fi le and overlooked. The Solicitor further states that
the enormous number of files handled by the Solicitor's office also contributed to the untimely
filing.
Commission Rule 2700.28(a), 29 C.F.R. § 2700.28(a), requires that the penalty petition
be filed within 45 days from receipt of the operator's penalty contest. The contest was received
on August 28, 1997, and the petition was due on October 14, 1997. 29 C.F.R. § 2700.8. Filing
is effective upon mailing and the petition was sent on November 7, 1997. 29 C.F.R. § 2700.5(d).
Therefore, the petition was 24 days late.
On December 4, 1997, the operator filed an answer along with an opposition to the
Solicitor's motion to accept late filing. The operator asserts that the Solicitor 's motion should
be denied and the case dismissed because the Solicitor failed to comply with Commission rules
for filing a petition. The operator further states that it has not been prejudiced by the delay but
that it will be prejudiced if the Solicitor is allowed to proceed without consequences for his
untimely filing. Counsel does not allege actual prejudice from the delay.
The Commission has not viewed the 45 day requirement as jurisdictional or as a statute
of limitation. Rather, the Commission has permitted late filing of penalty petitions upon a
showing of adequate cause by the Secretary where there has been no showing of prejudice by
the operator. Salt Lake County Road De,partment, 3 FMSHRC 1714, 1716 (July 1981);
466

Rhone-Poulenc ofWyomini Co., 15 FMSHRC 2089 (Oct. 1989). There has been no showing of
prejudice in this case. I find the Solicitor's representations as to the inadvertent mishandling of
this case constitute adequate cause for the relatively short delay in the filing of the penalty
petition which should not prejudice the operator•s presentation of its case. However, I take
note that the Solicitor's statement with respect to a heavy caseload is not supported by the
Commission's own records which show that the number of new cases filed has decreased.
In light of the foregoing, it is ORDERED that the Solicitor•s late filed penalty petition is
ACCEPTED.

It is further ORDERED that this case be assigned to Administrative Law Judge
David Barbour.
All future communications regarding this case should be addressed to Judge Barbour at
the following address:
Federal Mine Safety and Health
Review Commission
Office of Administrative Law Judges
Two Skyline Place, Suite 1000
5203 Leesburg Pike
Falls Church, VA 22041
Telephone No. 703-756-5232
Telephone No. 703-756-6201 (Fax)

--

Paul Merlin
Chief Administrative Law Judge
Distribution: (Certified Mail)
David Rivela, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite
501, Dallas, TX 75202
Timothy E. Bixler, Esq., APAC, Inc., Law Department, 900 Ashwood Parkway, Suite 700,
Atlanta, GA 30338

/gl

467

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., 6rn FLOOR
WASHINGTON, D.C. 20006-3868

April 26, 1999
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 98-268-M
A. C. No. 29-01882-05502 LUO

v.
BOWEN INDUSTRIES
TNCORPORATED,
Respondent

Ivanhoe Concentrator

ORDER LIFTING STAY
DECISION DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATION
Before:

Judge Merlin

On December 8, 1998, this case was stayed pending a final determination by the
Secretary whether to pursue actions under Section 1lO(c). The parties have now filed a joint
motion to approve settlement. Therefore, the stay previously entered is hereby LIFTED.
The parties' settlement motion seeks a penalty reduction for the one violation involved
from $1,600 to $188.
Aside from the substantive deficiencies discussed infm, I would not approve this motion.
The motion was signed and filed by an individual who styles herself as a law clerk. Although the
motion contains the names of three Solicitors in ascending degrees of responsibility, none of
them has signed the motion. Commission Rule 2700.3, 29 C.F.R. § 2700.3, sets forth the
individuals and categories of individuals who are permitted to practice before the Commission.
Under subparagraph (a) attorneys are permitted to practice and under subparagraph (b) a non
attorney may practice if he is a party, a representative of miners or certain designated individuals
associated with specified entities. The individual who signed and filed the settlement motion in
this case is not an attorney and is not one of the described non attorneys allowed to appear before
the Commission. Subparagraph (c) permits any other person to practice with the approval of the
presiding judge or the Commission. My approval has not been sought for the appearance of the
individual in question.
This purported filing from the Dallas Office of the Solicitor is in contrast to procedures
previously followed by the national Office of the Solicitor in seeking permission for non
attorneys to appear before the Commission. In 1994, when the Office of the Solicitor wished to
have Conference and Litigation Representatives (CLR) appear on behalf of the Secretary in mine
safety cases, information was furnished regarding the training and credentials of these individu-

468

als. Cyprus Emerald Resources Corp., 16 FMSHRC 2359(November1994). Thereafter, in
every case where a CLR wishes to represent the Secretary, he has filed a motion for permission
to appear. When a supplemental settlement motion is filed in this case, as ordered infra, it must
be signed by an attorney in the Office of the Solicitor or it will not be approved.
The subject citation was issued under section 104(d)(l) of the Mine Act for a violation of
30 C.F.R. § 56.11027 which provides:
Scaffolds and working platforms shall be of substantial construction and
provided with handrails and maintained in good condition. Floor boards shall be
laid properly and the scaffolds and working platforms shall not be overloaded.
Working platforms shall be provided with toeboards when necessary.
The citation describes the alleged violation as follows:
Bowen Industries, Inc. a sub-contractor at the plant fai led to provide
adequate scaffolds for employees to use when installing a iron beam on a wall at
the maint-shop. Employee was observed standing on top of scaffold rai ling trying
to reach the iron beam to weld on. The employee did have his safety wear, but
was secured 4/5 foot below him for security, exposing the employee to a potential
fall hazard if accidentally slipping and falling. The company inspector Li.llian
Medina had warned the employees on 4-9-98 of them not using the proper
scaffolding and stopped operations until proper scaffolding was erected to
continue the operations.
Employees admitted that Ms. Medina had warned them of not following
company safety policies and needed to erect a proper platform.
The inspector subsequently mod1fied the citation to add the following information to the
condition or practice:
Supervisor and employees knew of inadequate scaffold, the company
safety inspector on 04-09-1998 stopped the operation on welding informing
employee that they needed an adequate work platform to work off or to extend
scaffolding. Employee elected not to fix work platform. This violation is an
unwarrantable failure.
The standard sets forth requirements for the construction of scaffolds and working
platforms, mandating that they be of substantial construction with handrails and properly laid
floor boards and where necessary, with toeboards. Also they must not be overloaded. The
citation, however, does not find that the scaffold was improperly constructed, lacked any of the
items described, or was overloaded. Rather, it fow1d the scaffold was inadequate because the
employee was standing on top of the scaffold's railing trying to reach an I-beam. The condition
described by the inspector therefore, had nothing to do with the scaffold itself but with its
location. The problem was one of safe access to the I-beam and not any deficiencies in the
469

characteristics of the scaffold. Accordingly, it does not appear that the standard cited applies to
the situation set forth in the citation. The parties must address this issue in the supplemental
motion.
Even assuming the cited standard applies, the settlement motion is deficient. The motion
merely states that further investigation reveals the degree of negligence and likelihood of injury
should be modified. It alleges that upon further investigation the Secretary has determined there
is insufficient evidence to support the conclusion that the operator knew of the violation. This
allegation is contrary to the citation and its modification which expressly state that just a few
days previously the company inspector found employees using scaffolding that did not reach and
told them the scaffolding should be extended. If true, this prior misconduct by employees called
for heightened supervision by the operator. In any event, the representations in the motion must
be reconciled with the statements in the citation and if the citation is in error, the motion must
say so.
The motion also represents that gravity should be less than originally found because the
employee was wearing a safety harness. But the citation recognizes that although a harness was
worn, it was tied off at the wrong place. The motion must identify those factors which justify a
finding of reduced gravity.
Finally, the motion seeks a penalty reduction of 85% and a modification of the citation to
one issued under section 104(a) citation, but the generalized and unsupported statements in the
motion do not justify such actions. The motion states that the operator's size, history and good
faith have been reviewed and are set forth in Exhibit A to the penalty petition. A printout
attached to the assessment sheet indicates that the operator had two violations in July and one
violation in September, but the number of inspection days is not given so I do not know whether
this is a good, average or bad history. Also, there is no information about size and ability to
continue in business. The Commission has held that the judge must consider all six criteria when
assessing a penalty. Sec. of Labor on behalf of James Hyles. et al. v. All American As..phalt,
21 FMSHRC 34, 56-57 (Jan. 1999); Sec. Labor on behalf qfKenneth Hannah. et al. v. Consolidation Coal Co., 20 FMSHRC 1293, 1302-1303 (Dec. 1998); Sec. Labor on behalf of Richard
Glover v. Consolidation Coal Co., 19 FMSHRC 1529, 1539 (Sept 1997).
In light of the foregoing, it is ORDERED that the motion for approval of settlement be

DENIED.
It is further ORDERED that within 30 days of the date of this order the Solicitor and the
operator submit appropriate information to support their settlement request. Otherwise, this case
will be set for hearing.

\

\
Paul Merlin
Chief Administrative Law Judge

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Distribution: (Certified Mail)
Tom Mascolino, Esq., Office of the Solicitor, U.S. Department of Labor, Room 420, 4015
Wilson Boulevard, Arlington, VA 22203
Raquel Tamez, Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 501,
Dallas, TX 75202
Mr. Alfredo Ontiveros, Safety Director, Bowen Industries Incorporated, 9801 Carnegie Avenue,
El Paso, TX 79925
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471

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W. 6™ FLOOR
WASHINGTON D.C. 20006-3868

April 29, 1999

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 99-77
A. C. No. 36-00930-03603

V.

RAYNE ENERGY INCORPORATED,
Respondent

Rayne No. 1

DECISION DISAPPROVING SETTLEMENT
ORDER TO RESUBMIT SETTLEMENT MOTION

Before:

Judge Merli,!l

This case is before me upon a petition for assessment of civil penalties under section
105(d) of the Federal Mine Safety and Health Act of 1977. On March 15, 1999, I issued a
prehearing order directing the parties to discuss settlement. On April 12, 1999, a settlement
motion was filed by the Secretary.
I cannot approve this motion. The motion was signed and filed by an individual who
describes herself as a paralegal. Although the motion contains the names of three Solicitors in
ascending degrees of responsibility, none of them has signed the motion. Commission Rule
2700.3, 29 C.F.R. § 2700.3, sets forth the individuals and categories of individuals who are
permitted to practice before the Commission. Under subparagraph (a) attorneys are permitted to
practice and under subparagraph (b) a non attorney may practice if he is a party, a representative
of miners or certain designated individuals associated with specified entities. The individual
who signed and filed the settlement motion in this case is not an attorney and is not one of the
described non attorneys allowed to appear before the Commission. Subparagraph (c) permits any
other person to practice with the approval of the presiding judge or the Commission. My
approval has not been sought for the appearance of the individual in question. I know nothing of
the qualifications and training of this person. The settlement motion filed in this case must be
signed ·by an attorney in the Office of the Solicitor or it will not be approved.

472

This purported filing from the Philadelphia Office of the Solicitor is in contrast to
procedures previously followed by the national Office of the Solicitor in seeking permission for
non attorneys to appear before the Commission. In 1994, when the Office of the Solicitor
wished to have Conference and Litigation Representatives (CLR) appear on behalf of the
Secretary in mine safety cases, information was furnished regarding the training and credentials
of these individuals. Cyprus Emerald Resources Corp., 16 FMSHRC 2359 (November 1994).
Thereafter, in every case where a CLR wishes to represent the Secretary, he has filed a motion
for permission to appear. The Regional Solicitor is welJ aware of the procedures followed with
respect to CLRs.
In light of the foregoing, it is ORDERED that the motion for approval of settlement be
DENIED.
It is further ORDERED that within 30 days of the date of this order the settlement
motion be resubmitted and signed by an attorney in the Office of the Solicitor.

Paul Merlin
Chief Administrative Law Judge

Distribution: (Certified Mail)
Tom Mascolino, Esq., Office of the Solicitor, U.S. Department of Labor, Room 420, 4015
Wilson Boulevard, Arlington, VA 22203
B. Anne Gwynn, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market Street,

Gateway Building, Room 14480, Philadelphia, PA 19104
Joseph A. Yuhas, Esq., Rayne Energy Inc., P. 0. Box 25, Barnesboro, PA 15714

/gl

473

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