MARCH 1998

COMMISSION DECISIONS
03-16-98 Daanen & Janssen, Inc.
03-25-98 KenAmerican Resources, Inc.
03-30-98 Reb Enterprises & Harold Miller & Richard Berry
03-30-98 Consolidation Coal Co., Robert Wyatt & Danny
Crutchfield

LAKE 97-180-RM Pg. 189
KENT98-129
Pg. 199
Pg. 203
CENT 95-29-M
WEVA94-377

Pg.227

YORK 94-76-RM
SE
97-227-D
WEST97-96-DM
KENT 97-77-R
PENN 98-15-R
CENT 97-26-R

Pg.257
Pg. 265
Pg. 268
Pg.274
Pg. 285
Pg.296

PENN 98-14-M

Pg. 311

ADMINISTRATIVE LAW JUDGE DECISIONS
03-04-98 Rock Of Ages Corporation
03-10-98 Glenn Sadler v. Jim Walter Resources Inc.
03-10-98 Sec. Labor on behalf of Clay Baier v. Durango Gravel
03-18-98 Clark Elkhorn Coal Company
03-19-98 Cyprus Cumberland Resources Corporation
03-31-98 Georges Colliers, Inc.
ADMIN1STRATIVE LAW JUDGE ORDERS
03-04-98 Global Stone Penroc, Inc.

i

MARCH 1998

Reyiew was granted in the following case during the month of March:

Secretary of Labor, MSHA on behalf of Ronald Maxey v. Leeco, Inc., Docket
No. KENT 97-257-D. (Judge Melick, February 19, 1998)

Review was denied in the following case during the month of March:
Rock of Ages Corporation v. Secretary of Labor, MSHA, Docket No.
YORK 94-76-RM, etc. (Judge Feldman, March 4, 1998)

ii

COMMISSION DECISIONS AND ORDERS

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

March 16, 1998

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

Docket Nos. LAKE 95-180-RM
through LAKE 95-183-RM

v.

and

DAANEN & JANSSEN, INC.

LAKE 95-290-M
LAKE 95-313-M
LAKE 95-352-M

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

DECISION
BY THE COMMISSION:
These consolidated contest and civil penalty proceedings arise under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). At issue is
whether Administrative Law Judge David Barbour properly determined that Daanen & Janssen,
Inc. ("D&f'), violated 30 C.F.R. § 56.14101(a)(3),1 by failing to maintain in functional condition
a component of the service braking system of a front-end loader, and 30 C.F.R. § 56.9101,2
when a D&J employee operating the loader traveled through a berm and was fatally injured.
18 FMSHRC 1796, 1798-800, 1804-08, 1812-14 (October 1996) (ALJ). The Commission
granted D&J's petition for discretionary review ("PDR") challenging the judge' s determinations.
For the reasons that follow, we affirm.

1

30 C.F.R. § 56.14101(a) provides in pertinent part: "(1) Self-propelled mobile
equipment shall be equipped with a service braking system capable of stopping and holding the
equipment . . . . (3) All braking systems installed on the equipment shall be maintained in
functional condition."
2

30 C.F.R. § 56.9101 provides that, "[o]perators of self-propelled mobile equipment
shall maintain control of the equipment while it is in motion."

189

I.
Factual and Procedural Backiround
D&J operates the Bay Settlement Mine, a limestone quarry in Scott, Wisconsin. /d. at
1797-98. At the quarry, limestone is extracted and stockpiled on the quarry floor, where it is
later loaded into haulage trucks by front-end loaders. /d. at 1799. All such mobile equipment
reaches the quarry floor via an access road, which has an overall grade of approximately 10
percent and has berms Qn both sides. ld
On the morning of October 6, 1994, a front-end loader operated by D&J employee
Richard Van Vonderen descended towards the bottom of the quarry via the access road. ld. Van
Vonderen traveled down approximately one-third of the road when the loader drifted far left,
twice hitting the left berm. Jd. The loader traveled forward approximately another 34 feet, ran
through the berm, and fell 40 feet to the quarry floor. !d. Van V onderen was then taken to a
local hospital, where he was pronounced dead. /d. at 1800.
Later that day, Thomas Pavlat, an investigator with the Department of Labor's Mine
Safety and Health Administration ("MSHA"), was assigned to investigate the accident /d.
Pavlat did not inspect the loader's brakes, based on his detennination that the damage to the
loader was too extensive to ascertain the pre-accident condition of the brakes. Jt. Ex. 1B at 2.
During his investigation, Pavlat discovered that Van Vonderen repeatedly had reported that rear
"slack adjusters'' or "adjusting bolts" on the front-end loader were "frozen" and would not tum.3
18 FMSHRC at 1805; Tr. 96.
On August 20, 1994, approximately seven weeks before the accident, Richard Sobieck,
D&J' s assistant mechanic, had inspected the loader because Van Vonderen had informed him
that the loader was pulling to the left. 18 FMSHRC at 1806. Sobieck moved the adjusting bolts,
thereby adjusting the brakes. Jd. After he made those adjustments, however, he could not again
tum the bolts; they were frozen. Jd. Sobieck stated that he informed D&J's production
supervisor, Aaron Kinney, about the bolts, anti that Kinney had planned to fix or replace the bolts
in October, when space would become available in the repair shop. I d.
As a result of his investigation, Pavlat served D&J with four citations. ld. at 1797.
Pavlat issued D&J a citation alleging that the frozen rear adjusting bolts on the loader's service
braking system constituted a violation of section 56.14101 (a)(3), and a citation that Van
Vonderen failed to maintain control of the loader in violation of section 56.910 I. I d. at 1800.

3

Adjusting bolts serve to move the brake shoes closer to the brake drum to exert the
maximum amount of stopping power for the service brake system. 18 FMSHRC at 1805; see Tr.
111, 390. When they are frozen, the adjusting bolts cannot be turned any further to alter the
clearance between each brake shoe and brake drum. 18 FMSHRC at 1805.

190

The inspector al~o issued two other citations, alleging violations of the seatbelt standard in
30 C.F.R. § 56.14130(h) and the berm standard in 30 C.F.R. § 56.9300(a). ld. D&J challenged
the citations and the matter proceeded to hearing before Judge Barbour. !d. at 1797.
The judge determined that D&J violated the braking and failure to control standards.4 !d.
at 1808, 1813. The judge afftrmed the braking violation, concluding that the rear adjusting bolts,
"integral component[s]" of the loader's service braking system, were frozen and inoperative. /d.
at 1808. He reasoned that the plain language of section 56.14101(a)(3) requires that all
components of a braking system be able to perform their intended function, and that the standard
does not require that the brakes meet specific performance requirements. /d. at 1806-07. The
judge concluded, however, that the violation was neither "significant and substantial" ("S&S")
nor caused by D&J's unwarrantable failure, and assessed a penalty of$300 rather than the
pr<'posed penalty of $1000. ld at 1810-12. In addition, the judge found a violation of section
56.9101, reasoning that the "record allows for no other plausible explanation for the accident
than that Van Vonderen failed to control the moving loader." !d. at 1813. The judge determined
that the violation was S&S but that D&J was not negligent. /d. at 1814. Accordingly, he
assessed a civil penalty of $400 rather than the proposed penalty of $5000. ld at 1815.
The Commission subsequently granted D&J's PDR, challenging the judge's
determination that it violated sections 56.14101(a)(3) and 56.910l.s

II.
Disposition
A.

Brakim~ Violation

1.

Interpretation of Section 56.141 01 (a)C3)

D&J argues that plain language of the braking standard does not support the judge's
finding of violation. PDR at 7-8.6 It explains that the standard's plain language requires a

4

In addition, the judge affirmed the seatbelt citation (Docket Nos. LAKE 95-180-RM
and LAKE 95-290-M), and vacated the citation alleging a berm violation (Docket Nos. LAKE
95-183-RM and LAKE 95-352-M). /d. at 1802, 1804, 1818. Neither party petitioned for review
of these determinations. PDR at 2 n.l; see S. Br. at 1.
s D&J did not petition for review of the judge's determination that its violation of section
56.9101 was S&S.
6

Pursuant to Commission Procedural Rule 75(a), 29 C.F.R. § 2700.75(a), D&J
designated its PDR as its brief.

191

finding of violation only when the braking system fails to serve its primary purpose of stopping
and holding the ·vehicle, and that no such evidence exists in the record. Id at 6, 8. The Secretary
responds that the judge's fmding that D&J violated the braking regulation is supported by the
plain language of the standard. S. Br. at 6. The Secretary submits that the plain language of the
standard mandates a finding of violation when a component of the braking system is not
maintained in functional condition, regardless of whether the braking system is capable of
stopping and holding the vehicle. Id. Alternatively, the Secretary contends that her
interpretation of the standard, outlined in MSHA's Program Policy Manual ("PPM'), is
reasonable and entitled to deference. Id. at 5-l 0.
Where the language of a regulatory provision is clear, the tenns of that provision must be
enforced as they are written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd re~ults. Dyer v. United States, 832 F.2d
1062, 1066 (9th Cir. 1987); ~ee also Utah Power & Light Co., 11 FMSHRC 1926, 1930 (October
1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (August 1993). If, however, a
regulation is ambiguous, courts have deferred to the Secretary's reasonable interpretation of it.
See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994); accord Secretary
ofLabor v. Western Fuels-Utah, Inc., 900 F.2d 318,321 (D.C. Cir. 1990) ("agency's
interpretation is 'of controlling weight unless it is plainly erroneous or inconsistent with the
regulation"') (quoting Bowles v. Seminole Rock Co., 325 U.S. 410,414 (1945)). The Secretary's
interpretation of a regulation is reasonable where it is "logically consistent with the language of
the regulation[s] and ... serves a pennissible regulatory function." General Elec. Co. v. EPA, 53
F.3d 1324, 1327 (D.C. Cir. 1995) (alteration in original) (quoting Rollins Environmental Servs.,
Inc. v. EPA, 937 F.2d 649, 652 (D.C. Cir. 1991)). The Commission's review, like the courts',
involves an examination of whether the Secretary's interpretation is reasonable. Energy West, 40
F.3d at 463 (citing Secretary ofLabor on behalfof Bushnell v. Cannelton Indus., Inc., 867 F.2d
1432, 1439 (D.C. Cir. 1989)); see also Consolidation Coal Co., 14 FMSHRC 956, 969 (June
1992).
Both parties advance plain language interpretations of the standard to support their
respective positions. As evident from the parties' interpretations, the standard supports at least
two plausible and divergent interpretations.' We conclude, therefore, that the standard is

7

Commission administrative law judges have differed in their interpretations of the
standard. In several decisions, judges found violations of section 56.14101(a)(3) where brakes of
the vehicle in question failed to stop it. See, e.g., Elmer James Nicholson, emp. by A-Rock Jnc.,
16 FMSHRC 1967, 1968-69 (September 1994) (ALJ); Morris Sand & Gravel, 16 FMSHRC 624,
628-29 (March 1994) (ALJ); Herba Sand & Gravel, 13 FMSHRC 219,220 (February 1991)
(ALJ). In other decisions, judges found violations of the standard where a component of the
braking system was not maintained, despite evidence that the braking system could stop and hold
the vehicle. See, e.g., Acme Brick Co., 17 FMSHRC 1459, 1461-62 (August 1995)(ALJ); New
Point Stone Co., 16 FMSHRC 2466,2468 (December 1994) (ALJ); Barrett Paving Materials,

192

ambiguous rather than plain.8 See 2A Norman J. Singer, Sutherland Statutory Construction
§ 45.02, at 6 (5th ed. 1992) ("Ambiguity exists when a statute. is capable of being understood by
reasonably well·informed persons in two or more different senses."); Ehlert v. United States,
402 U.S. 99, 105 (1971). Accordingly, we must consider whether the Secretary's interpretation
of section 56.14101(a)(3) is reasonable.
We hold that the Secretary's interpretation is reasonable. First, the Secretary's
interpretation is consistent with the language of the regulation. In the absence of an express
regulatory definition or an indication that the drafters intended a technical usage, the
Commission has relied on the ordinary meaning ofthe word construed. Peabody Coal Co., 18
FMSHRC 686, 690 (May 1996), rev. denied, 111 F.3d 963 (D.C. Cir. 1997) (mem.). The
common usage ofthe term "system" contemplates "a complex unity formed of many often
diverse parts subject to a common plan or serving a common purpose," and "an aggre~ation or
assemblage of objects joined in regular interaction or interdependence." Webster's Third
International Dictionary (Unabridged) 2322 (1986). Because the defi.nition of the term "system"
entails an interrelationship of component parts, it follows that for the system to be considered
functional, each of its component parts must be functional.
Second, the Secretary's interpretation advances the Mine Act's goal of protecting the
safety ofminers. Dolese Bros. Co., 16 FMSHRC 689,693 (April 1994) ("A safety standard
' must be interpreted so as to harmonize with and further ... the objectives of the Mine Act.")
(quotingEmeryMiningCo. v. SecretaryofLabor, 744F.2d 1411, 1414(10thCir.1984)). By
allowing a citation to issue before the entire braking system fails, the Secretary's interpretation is
preventive and seeks to cure equipment defects before serious accidents occur. This
interpretation, therefore, promotes the Mine Act's primary objective of miner safety. See Ace
Drilling Coal Co., 2 FMSHRC 790, 791 (April 1980), affd, 642 F.2d 440 (3d Cir. 1981)

Inc., 15 FMSHRC 1999,2015 (September 1993) (ALJ).
8

Commissioners Marks and Riley agree with the judge that, under the plain meaning of
section 56.14101 (a)(3), D&J violated the .b raking standard. They find that the judge correctly
determined the standard clearly requires all components of a braking system to be able to
perform their intended functiou. In support of this proposition, they believe the frozen and
inoperable rear adjusting bolts were an "integral component" of the loader's service braking
system. The cited standard provides that "braking systems installed on the equipment shall be
maintained in functional condition." 30 C.F.R. § 56.14101(a)(3) (emphasis added). Components
such as adjusting bolts compensate for inevitable wear and deterioration caused by normal use
and operate solely to ensure that the entire braking system functions properly at all times.
Inoperable adjusting bolts are a weak link in a chain of vital components that make up a braking
system, and are clearly prohibited by the cited standard. Commissioners Marks and Riley thus
do not reach the question of whether the Secretary's interpretation of section 56.14101(a)(3) is
reasonable.

193

(unpublished table decision); cj Ideal Basic Indus., Cement Div., 3 FMSHRC 843, 844 (April
1981) (holding that interpretation similar to one advanced in instant case "is more likely to
prevent accidents, a primary goal of the Act,). !n contrast, under D&J's interpretation, MSHA
could not issue a citation until the braking system was completely unable to stop the vehicle.
Third, the Secretary has consistently applied the interpretation embodied in the citation.9
The PPM, which the Commission long has recognized as evidence ofMSHA's policies and
practices (Do/ese Bros., 16 FMSHRC at 693 n.4), succinctly states the interpretation of the
braking standard advan~d here by the Secretary. The PPM provides: "Standard [56].1 410l(a)(3)
should be cited if a component or portion of any braking system on the equipment is not
maintained in functional condition even though the braking system is in compliance with (I) and
(2) above." IV PPM, Parts 56/57, at 55-55a (1991); seeS. Br. at 6-13.
Finally, the Secretary's interpretation of the braking standard gives meaning to all
subsections of the standard. "[A] fundamental rule of construction is that effect must be given to
every part of a statute or regulation, so that no part will be meaningless., Sekula v. FDIC, 39
F.3d 448, 454 (3d Cir. 1994). Under the Secretary's interpretation, subsection (1) of the braking
standard is cited if the service braking system is not capable of stopping and holding equipment,
while subsection (3) is cited if a component of the braking system is not maintained in functional
condition. This interpretation gives independent meaning to each part: subsection (1) is a
performance standard, while subsection (3) is a maintenance standard. D&J's interpretation
suggests that a citation under subsection (3) is proper only when the system as a whole fails to
stop and hold equipment, essentially equating subsections (1) and (3). While D&J asserts that its
position renders neither subsection (1) nor subsection (3) superfluous, it does not make clear how
a violation of (3) could occur without also violating (1). See PDR at 8. Therefore, we conclude
that the Secretary's interpretation of section 56.14101(a)(3) is reasonable.
2.

Substantial Evidence

D&J argues that, even if the judge correctly concluded that a non-functioning component
of a braking system constitutes a violation of section 56.14101(a)(3), substantial evidence does
not support his conclusion that the adjusting bolts were not functioning. PDR at 12-15. D&J
submits that, although the adjusting bolts were frozen, there is no evidence establishing that the
bolts failed to maintain proper clearance between the brake drums and linings. Id at 13-14. The

9

D&J asserts that "[n]o conscientious mine operator reading the Standard possibly could
find in its terms a requirement that each 'component' of a braking system, as opposed to the
entire system, be maintained in functional condition." PDR at 7. To the extent that D&J argues
that it received inadequate notice of the standard's requirements, we find that the PPM provided
D&J with sufficient notice that each component of a braking system must be maintained in
functional condition. See Dolese Bros., 16 FMSHRC at 694 (holding that MSHA Program
Policy Letter provided operator with sufficient notice of standard's requirements).

194

Secretary asserts that substantial evidence supports the judge's finding that the adjusting bolts
were not maintained in functional condition. S. Br. at 11-13.
When reviewing an administrative law judge's factual determinations, the Commission is
bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pillsburgh
Coal Co., 11 FMSHRC 2159,2163 (November 1989) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197,229 (1938)). In reviewing the whole record, an appellate tribunal must
consider anything in the record that "fairly detracts" from the weight of the evidence that
supports a challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5 (January 1997)
(quoting Universal Camera Corp. v. NLRB, 340 U.S. 474,488 (1951)).
Even if the adjusting bolts were frozen in a.position that maintained adequate clearance
between the brake drums and linings on the day of the accident, substantial evidence supports the
judge's decision that the bolts were inoperative. Adjusting bolts are adjustment mechanisms;
that is, they are designed to adjust the service brakes. Tr. 390, 434. The evidence is undisputed
that the bolts could no longer perform their designated function. The rear adjusting bolts had
been frozen since their last adjustment on August 20. See 18 FMSHRC at 1806; Tr. 203-04, 241.
Sobieck testified that he intended to either "free up" or replace the bolts in October when the
loader was to be brought to the repair shop. Tr. 247,256. As stated by the Secretary's expert
witness, Joseph Judeikis:
If [an adjusting bolt] is not able to be manipulated or [to] perform
either manually or automatically the function it is intended to
perform, that being to provide an adjustment mechanism within the
brak[e] system, then it ... is not functioning, and as part of the
brake system, the brake system should not be considered
maintained in functional condition. Tr. 434.
Because adjusting bolts are a component of a loader's service braking system, we affirm the
judge's determination that the loader's braking system was not maintained in functional
condition in violation of section 56.1410l(a)(3).
B.

Failure to Maintain Control Violation

D&J argues that the judge erred as a matter of law in finding that "[t]he accident itself
speaks to the violation" of section 56.9101 (18 FMSHRC at 1813), and that, excluding
consideration of the accident, there is not substantial evidence in the record to support a fmding
of violation. PDR at 15. The Secretary responds that the judge did not err in finding a violation
of the standard because, as the judge stated, "[t]he record allows for no other plausible
explanation for the accident" than that Van Vonderen failed to maintain control of the loader.
S. Br. at 14 (quoting 18 FMSHRC at 1813).

195

We conch.1.de that the judge did not err in relying upon the accident to find a violation.
As D&J argues, the Commission has recognized that an accident by its occurrence does not
necessarily prove that a violation occurred. See-Lone Star Indus., Inc., 3 FMSHRC 2526,2529
(November 1981); Old Ben Coal Co., 4 FMSHRC 1800, 1804 n.4 (October 1982). The rationale
underlying Lone Star and its progeny, however, is distinguishable from the present case. We
explained in Lone Star that an accident does not necessitate a finding of violation because "the
reasons for an accident may have nothing to do with the substance of the standard allegedly
violated." Lone Star, 3 FMSHRC at 2529. Here, by contrast, the circwnstances surrounding the
accident illustrate Van Vonderen's loss of control over the loader, and are closely connected with
the substance of section 56.91 01, which requires that equipment operators "maintain control of
the equipment while it is in motion." 30 C.F.R. § 56.91 01.
In addition, subst211tial evidence supports the judge's finding ofviolation. We have held
that "the substantial evidence standard may be met by reasonable inferences drawn from indirect
evidence." Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1138 (May 1984). The
''possibility of drawing either of the two inconsistent inferences from the evidence [does] not
prevent [the judge] from drawing one of them." NLRB v. Nevada Consol. Copper Corp., 316
U.S. I 05, I 06 (1942) (per curiam). The Commission also has emphasized that inferences drawn
by the judge are "permissible provided they are inherently reasonable and there is a logical and
rational connection between the evidentiary facts and the ultimate fact inferred." Mid~Continent,
6 FMSHRC at 1138.
The record reveals that the loader driven by Van Vonderen veered to the left side of the
access road, hit the berm twice, and soon thereafter, drove through the berm, plununeting 40 feet.
18 FMSHRC at 1799; Tr. 62, 67, 89. There is no evidence that Van Vonderen intentionally
drove through the berm. 18 FMSHRC at 1813; Tr. 69. Therefore, the judge's inference that the
accident "would not have happened ifVan Vonderen had maintained control while the loader
was in motion" ( 18 FMSHRC at 1813) is inherently reasonable, and there is a rational
connection between the evidence and the inference that Van Vonderen lost control of the moving
loader.
Moreover, the judge correctly dismissed other explanations for the accident, such as that
Van Vonderen might have looked over his shoulder, driven at excess speed, or been distracted by
wasps. 18 FMSHRC at 1813. l)le reasons for a loss of control are irrelevant to consideration of
whether control over moving equipment was maintained. In any event, the proffered
explanations for Van Vonderen's failure to control the loader are speculative and unsupported in
the record. /d.; see Tr. 69-70, 135,317-19. Accordingly, we affirm the judge's determination
that D&J violated section 56.9101.

196

III.
Conclusion
For the foregoing reasons, we affirm the judge's determination that D&J violated sections
56.1410l(a)(3) and 56.9101.

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

Theodore F. Verheggen, Co

Robert H. Beatty, Jr., Commissioner

197

Distribution
Eric E. Hobbs, Eqs.,
& John J. Kalter, Esq.
Daanen & Janssen, Inc.
100 East Wisconsin Ave.
Milwaukee, WI 53202
Cheryl C. Blair-Kijewski~ Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
A.L.J. David Barbour
Office of Administrative Law Judges
2 Skyline, 1Oth Floor
5203 Leesburg Pike
Falls Church, VA 22041

198

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

March 25, 1998

SECRETARY OF L~OR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

CnnLPENALTYPROCEEDING

v.

Docket No. KENT 98 ~ 129
A.C. No. 15 ~ 17741-03517

KENAMERICAN RESOURCES, 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 10, 1998, the Commission received from
Kenamerican. Resources, Inc. ("Kenamerican") 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). It has been administratively determined that the Secretary of Labor does not oppose
the motion for relief filed by Kenamerican.
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 fmal order of the Commission. 30 U.S.C. § 815(a).
In its request, Kenamerican asserts that its failure to file a hearing request to contest the
proposed penalty for the violation alleged in Citation No. 4278199 was due to an internal
processing error made by its accounting department. According to Kenamerican, its safety
director, Bobby Gibson, who normally handles challenges to citations issued by the Department
of Labor's Mine Safety and Health Administration ("MSHA"), was home recovering from

199

surgery when the hearing request was due. Mot. at 2. Kenamerican asserts that Gibson provided
instructions to the company's treasurer for processing the forms to contest the citation, but the
accounting department inadvertently failed to process the hearing request. !d. at 2-3.
Kenamerican alleges that Gibson discovered the processing error when he received a copy of
MSHA's February 27, 1998, letter to Kenamerican's General Manager, notifying the company
that the case became a final order of the Commission on December 31, 1997. Id at 3.
We have held that, in appropriate circumstances and pursuant to Fed. R. Civ. P. 60(b), we
possess jurisdiction to·reopen uncontested assessments that have become final by operation of
section 105(a). See, e.g., Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (September 1994);
Jim Walter Resources, Inc., 15 FMSHRC 782,786-89 (May 1993). We have also observed that
default is a harsh remedy and ~at, if the defaulting party can make a showing of adequate or
good cause for the failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Preparation Servs., Inc., 17 FMSHRC 1529,
1530 (September 1995). In accordance with Rule 60(b)(1), we have previously afforded a party
relief from a final order of the Commission on the basis of inadvertence or mistake. See Peabody
Coal Co., 19 FMSHRC 1613, 1614-15 (October 1997); Stillwater Mining Co., 19 FMSHRC
1021, 1022-23 (June 1997); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92
(September 1996); General Chem. Corp. , 18 FMSHRC 704, 705 (May 1996).
Here, the record indicates that Kenamerican intended to contest Citation No. 4278199 and
that, but for the illness of its safety director and an apparent lack of coordination between the
safety director and the company' s accounting department, it would have timely submitted the
hearing request and contested the proposed penalty assessment. In these circumstances,
Kenamerican's failure to timely file a hearing request properly may be found to qualify as
"inadvertence" or "mistake" within the meaning of Rule 60(b)(l). See Peabody, 19 FMSHRC at
1614-15 (granting operator's motion to reopen when operator failed to submit request for hearing
to contest proposed penalty due to lack of coordination between counsel and personnel ·at mine);
Stillwater, 1'9 F~SHRC at 1022-23 (granting operator's motion to reopen when operator failed
to submit request for hearing to contest proposed penalty due to lack of coordination between
recipient of assessment at mine and operator's attorneys).

200

Accordingly, in the interest of justice, we grant Kenamerican's unopposed request for
relief and reopen this penalty assessment that became a final order with respect to Citation No.
4278199. This case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.

Marc Lincoln Marks, Commissioner

, --------------------~--------

{ James C. Riley, Comrnissio r

Robert H. Beatty, Jr., Commissio er

201

•

Distribution
Adele L. Abrams, Esq.
Henry Chajet, Esq.
Patton Boggs, L.L.P.
2550 M Street, N.W.
Washington, D.C. 20037
Mark Malecki, Esq.,
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd, Suite 400
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

202

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

March 30, 1998
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. CENT 95-29-M
CENT 95-30-M
CENT 95-239-M
CENT 95-240-M

V.

REB ENTERPRISES, INC., and
HAROLD MILLER and RICHARD BERRY

BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen. Commissioner$1

DECISION
BY: Jordan, Chairman; Riley and Verheggen, Commissioners
These civil penalty proceedings arise under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or " Act"). At issue is whether a violation of
30 C.F.R. § 57.14131 (a), involving the failure of a haul truck driver to wear a seat belt while
driving a truck on the mine roadway, was the result of unwarrantable failure by REB Enterprises,
Inc. ("REB"); whether REB's violations of30 C.F.R. § 56.14130(g), involving the failure of
bulldozer drivers to wear seat belts while operating that equipment, were the result of
unwarrantable failure; whether civil penalties should be assessed against Quarry Supervisor
Harold Miller and REB President Richard Berry for alleged knowing violations of section
56.14130(g); whether REB violated 30 C.F.R. § 56.14130(a)(3) by failing to equip with a seat
belt a piece of Case mechanized equipment identified as a backhoe that was also equipped as a
loader and used primarily for that purpose; whether an order alleging that a loader operator was
not wearing a seat belt was properly dismissed on the ground that it alleged a violation of the
wrong standard; and whether REB's violation of30 C.F.R. § 56.14107(a), involving the lack of a
guard on the tail pulley of a radial stacker conveyor belt, was the result of unwarrantable failure.
Administrative Law Judge Avram Weisberger concluded that the Secretary of Labor had failed to

1 Commissioner Beatty assumed office after this case had been considered at a

Commission decisional meeting. A new Commissioner possesses legal authority to participate in
pending cases, but such participation is discretionary. Mid-Continent Resources, Inc., 16
FMSHRC 1218, 1218 n.2 (June 1994). In the int~rest of efficient decision making,
Commissioner Beatty has elected not to participate in this matter.
203

establish that the violations of sections 57.14131 (a), 56.14130(g), at~d 56.141 07(a) were the
result of REB's unwarrantable failure; that the S~cretary had n9t proved the alleged violation of
section 56.14130(a)(3); and that the citation alleging that a loader operator was not wearing a seat
belt should be dismissed on the ground that it alleged a violation of the wrong standard. 18
FMSHRC 1603, 1607-11, 1612-16, 1620-21, 1624-25 (September 1996)(ALJ). The judge also
concluded that Secretary had failed to establish that Miller and Berry violated section 11 0(c) of
the Mine Act, and accordingly dismissed the actions brought against them. /d. at 1618-19, 1622,
1626-27. The Commission granted a petition for discr~tionary review filed by the Secretary
("PDR") challenging these determinations. For the reasons that follow, we affirm in part, reverse
in part, vacate in part, and remand.
I.

Citation No. 4327776
A.

Facts and Procedural Background

On August 16, 1994, while conducting an inspection at REB's limestone quarry,
Inspector James Enochs from the Department of Labor's Mine Safety and Health Administration
("MSHA"), accompanied by REB foreman Ray King, walked over to an R-20 Euclid haul truck
to introduce himself to the driver. 18 FMSHRC at 1607. When he climbed up on the running
board of the truck, Enochs noticed that the driver, Ron Alexander, did not have on his seat belt.
Jd. Enochs issued a citation alleging a significant and substantial ("S&S"f and unwarrantable
violation of section 57.14131(a). 3 ld.; Gov't. Ex. 4.
At trial, Inspector Enochs testified that he considered this violation to be unwarrantable
based in part on a conversation he had with Alexander. Enochs testified that when he asked
Alexander why he was not wearing a seat belt, Alexander said that "nobody made a big deal
about [wearing seat belts]." 18 FMSHRC at 1610. In addition, Enochs testified that after he
issued the citation, King did not say anything or instruct the driver to wear his seat belt. ld.
Enochs opined that King seemed "somewhat indifferent to the whole situation." ld. Enochs also
testified that he considered this violation to involve unwarrantable failure because of the
seriousness and danger involved in operating equipment without a seat belt. Tr. 37, 42. Finally,
Enochs testified that in making ·his unwarrantable failure finding, he considered second-hand
information he received from an MSHA Inspector Hermstein (who did not testify at the hearing)

2

The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.
§ 814(d)(1 ), which distinguishes as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a ... mine s~e~ or health hazard."
3

Section 57.1413l(a) provides: "Seat belts shall be provided and worn in haulage
trucks." 30 C.F.R. § 57.14131(a).

204

regarding an industrial assistance session MSHA had with REB management at which the
importance of seat belt use was purportedly discl;lssed. 18 FM~HRC at 1610; Tr. 15, 18,33.4
The judge concluded that REB violated section 57.1413l(a), relying on the
uncontradicted testimony oflnspector Enochs that Alexander was not wearing his seat belt while
operating the haul truck. 18 FMSHRC at 1607. The judge also concluded that the Secretary had
failed to establish that this violation was the result of REB's unwarrantable failure, stating that
the only evidence offered by the Secretary to establish the violation as unwarrantable was the
uncorroborated hearsay testimony of Enochs. I d. at 1611 : The judge noted that neither King nor
Hermstein were called as witnesses for the Secretary. 18 FMSHRC at 1611. He concluded that
Enochs' hearsay testimony concerning statements allegedly made by Alexander was "inherently
unreliable" and not entitled to any probative value, noting that the Secretary also failed to call
Alexander as a witness. /d. The judge also concluded that Enochs' testin'lony concerning King's
reaction to the issuance of the citation was too subjective to be accorded any probative weight.
Jd. In addition, he credited the testimony of REB's witnesses that the company posted
information on its premises advising employees of the need to wear seat belts. /d. at 1610-1 I .s
B.

Disposition

The Secretary asserts that the judge erred by refusing to accord any probative weight to
the evidence submitted to establish that this violation was unwarrantable, and rejecting it as
inherently unreliable, solely because of its hearsay nature. S. Br. at I6-20. The Secretary argues
that the judge in effect applied a per se rule that hearsay evidence may not be considered, in
contravention of Commission precedent which permits consideration of material and relevant
hearsay evidence based upon its reliability and probative value. /d. The Secretary contends that
the hearsay evidence relied upon to establish that this violation was unwarrantable was reliable
and entitled to consideration, particularly since REB could have cross-examined Inspector
Enochs concerning his hearsay testimony or called mine officials to rebut that testimony. /d. at
18-19. The Secretary also contends, in the alternative, that the statements attributed to Alexander
and other miners by Enochs do not constitute hearsay because they fall within an exception for
admissions by a party-opponent under Rule 801(d)0)(D) of the Federal Rules of Evidence. !d. at
19 n.7.

4

Commissioners Riley and Verheggen note that the Secretary failed to introduce any
corroborating evidence concerning the details of the industrial assistance session, such as its date,
location, attendees, or even specific content. Cf AMAX Coal Co., 19 FMSHRC 846, 851 (May
1997) (finding fact that "MSHA had repeatedly met with mine management to discuss section
75.400 compliance problems, based on testimony that was voluminous in comparison to that
adduced here).
5

The judge also concluded that this violation was not S&S. !d. at 1610. The Secretary
does not challenge this finding. See PDR at 3-5.

205

REB contends that the judge did not err in finding Enochs.' hearsay testimony to be
inherently unreliable, and refusing to give that testimony any probative weight, in determining
that the section 57.14131 (a) violation was not the result of unwarrantable failure. R. Br. at 5-8.
REB argues that the weight to be afforded to hearsay testimony is within the sound discretion of
the trial judge, and that the judge properly exercised his discretion in refusing to give any
probative weight to this hearsay testimony because it was not verified and the dedarants to
whom the statements were attributed were not called as witnesses. ld at 6-8. REB also argues
that there was substantial evidence, including the credit~d testimony of REB witnesses, to
support the judge's determination that this violation was· not unwarrantable. ld at 7-8.
Hearsay evidence is admissible in Commission proceedings so long as it is material and
relevant. Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1135 (May 1984); Ideal Cement
Co., 13 FMSHRC 1346, 1350 n.l (September 1991). The Commission's procedural rules
expressly provide for the admissibility of"[r]elevant evidence, including hearsay evidence." 29
C.F.R. § 2700.63(a). Here, the judge stated that much of Enoch' s testimony was "inherently
unreliable due to its [hear]say nature, and cannot be relied upon." 18 FMSHRC at 1611 . In
effect, he applied a per se rule precluding any consideration of this hearsay evidence, contrary to
established Commission precedent. Instead, he should have evaluated the evidence to determine
whether it was reliable and entitled to any probative weight. See Mid-Continent, 6 FMSHRC at
1139 ("[i]t is, of course, the judge's duty to draw conclusions from the record"); see also Grizzle
v. Picklands Mather & Co., 994 F.2d 1093, 1096 (4th Cir. 1993) (ALJs have "sole power to
make credibility determinations and resolve inconsistencies in the evidence"). We thus vacate
the judge' s determination that this violation was not the result of unwarrantable failure, and
remand this matter for him to evaluate the Secretary' s hearsay evidence in accordance with
Commission precedent. We specifically do not reach the issue ofwhether any of the Secretary's
hearsay evidence was reliable or probative because this task is reserved to the judge's discretion
in the first instance.

II.
Order Nos. 4327622 and 4327625
A.

Facts and Procedural Background
1.

Order No. 4327622

During the inspection conducted on August 16, Inspector Enochs, in the presence of
foreman King, observed a Case bulldozer operating near the top of the highwall. 18 FMSHRC at
1612. Enochs was about 30 to 40 feet away from the bulldozer, which was approaching him at
an angle of about 45 degrees, when he noticed that the operator, Bill Jacobs, was not wearing a

206

seat belt. !d. Enod1s issued Order No. 4327622, which alleged
violation of section 56. 14130(g).6 18 FMSHRC.at 1612.

an S&S and umvarrantable

At trial, Enochs testified that he considered this violation to be the result of unwarrantable
failure based, in part, on statements made to him by Jacobs that he sometimes wore a seat belt,
and other times did not. !d. at 1614.7 Enochs also testified thatJacobs' supervisor, Harold
Miller, was nearby observing and monitoring the work but took no action to ensure that the
bulldozer operator wore a seat belt. Tr. 131-32. Accor~ing to Enochs, he was told by Inspector
Hennstein that he (Hermstein) had warned REB supervisory personnel, including foreman King,
in an industrial assistance session of the importance of seat belt use. Tr. 131-32. 8 Dale St.
Laurent, who previously served as a special investigator for MSHA, testified that Jacobs told him
in an interview that REB did not have a seat belt policy and that no one ever made him wear a
seat belt. 18 FMSHRC at 1614. St. Laurent also testified that he was told by REB serviceman
Yates that, in the year prior to the inspection, he never saw either of the two bulldozer operators
wear a seat belt, and that no one at REB ever told them to wear seat belts. /d. at 1614, 1621. In
addition, St. Laurent testified that Yates told him that there was no company policy regarding
seat belts, that he did not recall anyone at REB telling anyone else to wear a seat belt, and that
Jacobs told Yates that neither Miller nor REB President Berry ever told Jacobs to wear a seat
belt. !d.
The judge found that the Secretary had established a violation of section 56.14130(g), but
concluded that the Secretary had failed to establish that this violation was the result of REB's
unwarrantable failure because the only evidence offered by the Secretary on that issue was
hearsay testimony that was unreliable and not entitled to any probative weight. !d. at 1612-13,
1616. The judge found that there was no evidence that either foreman King or Miller, then a lead
man in charge of the stripping operation, was aware that Jacobs was not wearing a seat belt. !d.
at 1615-16. The judge refused to assign any probative weight to the testimony of Inspector
Enochs that King had been previously warned by MSHA regarding the need to ensure
compliance with the seat belt standard because of"the inherently unreliable nature" of that
hearsay testimony . . I d. at 161 6. For the same reason, the judge declined to give any weight to the
testimony of Enochs and St. Laurent concerning the statements allegedly made by Jacobs and
Yates regarding the lack of any company policy requiring the wearing of seat belts and the failure
of REB management to remind employees to wear seat belts. !d. The judge also relied on

6

Section 56.14130(g) provides, in relevant part, that " [s]eat belts shall be worn by the
... operator" of equipment covered by that section, which includes bulldozers. 30 C.F.R.
§ 56.14130(g). See discussion infra at 13 n.l5.
7

Enochs' contemporaneous notes of this conversation indicated that Jacobs also stated
that at REB "no one makes a big deal about" wearing seat belts. !d.
8

See supra note 4.

207

evidence that REB" had posted infonnation in its office regarding th~ need to wear seat belts
while on the job. !d.
2.

Order~o.4327625

Also on August 16, Inspector Enochs observed another REB employee, Jim Farrish,
operating a John Deere bulldozer without wearing a seat belt. /d. at 1620. Enochs issued Order
No. 4327625, which alle.ged an S&S and unwarrantabl~ violation of section 56.14130(g). /d. at
1619-20.
At trial, Enochs testified that he detennined thjs violation involved high negligence and
unwarrantable failure because the violation was obvious, it was the fourth citation or order he
had issued that day involving the failure to·wear seat belts, and REB management had not taken
any corrective action. !d. at 1621. In addition, former Special Investigator St. Laurent testified
that when he asked Mr. Cunningham, an employee who operated equipment for REB, about the
use of seat belts by employees, Cunningham told him that "the nonnal posture was ... that if a
guy wanted to wear them, fine, and ifhe didn't then that was okay, too." !d. St. Laurent also
testified that, when asked why the bulldozer operators were not wearing their seat belts, foreman
Harold Miller told him that he had only recently been promoted to supervisor and therefore felt
uncomfortable telling employees what to do and so just let them do what they wanted to do. Tr.
167. According to St. Laurent, Miller also stated that he usually did not wear a seat belt when he
operated equipment. Tr. 167.
The judge found that REB had committed a second violation of section 56.14130(g), but
concluded that the Secretary had failed to establish that this violation was the result of
unwarrantable failure. 18 FMSHRC at 1620, 1621.9 The judge also found that the Secretary had
failed to adduce evidence that King had any opportunity to check whether other employees were
wearing their seat belts following issuance of the prior citation and orders alleging seat belt
violations, or regarding King's activities following issuance of the first seat belt citation. 18
FMSHRC at 1621. .The judge also refused to assign any weight to the testimony of St. Laurent
concerning.statements made to him by Yates and Cunningham, noting that neither Yates nor
Cunningham was called by the Secretary to verify the statements attributed to them, and
characterizing this hearsay testimony as "inherently unreliable." /d.

B.

Disposition

The parties make essentially the same arguments with respect to the judge's findings that
these violations were not the result of unwarrantable failure that they make in connection with
the alleged unwarrantable violation of section 57.14131 (a), discussed in Part I.B, above.

9

The judge also concluded that both of the section 56.14130(g) violations were not S&S.
!d. at 1613-14, 1620. The Secretary does not challenge these findings. See PDR at S-9.

208

We vacate the judge's determination that these violations w~re hot the result of
unwarrantable failure, and remand this matter to .the judge, for the reasons discussed in Part LB.
As indicated above, we believe that the judge's blanket failure to evaluate the reliability and
probative value of this hearsay testimony is inconsistent with Commission precedent.
III.
Liability of Harold Miller and Richard Beny Under Section 11 O(c)
A.

Factual and Procedural Background

The Secretary charged Quarry Supervisor Harold Miller and Richard Berry - the O\\·ner,
principal stock11older and president of REB- with knowingly authorizing, ordering, or carrying
out the violations of section 56.14130(g) alleged in Order Nos. 4327622 and 4327625. 18
FMSHRC 1604, 1616-19, 1622. The Secretary proposed penalties totaling $1200 against Miller
and $1600 against Berry. S. Pets. for Assessment of Penalty, Docket Nos. CENT-239-M and
CENT-240-M (Sept. 1, 1995).
The judge concluded that the Secretary had not established that either Miller or Berry had
violated section I 10(c) of the Act, and accordingly dismissed the actions brought against them.
18 FMSHRC at 1618-19, 1622. The judge concluded the Secretary failed to establish that Miller
was an agent of REB at the time these violations occurred because she "failed to adduce
sufficient evidence to establish that Miller had any significant responsibility for the operation of
the highwall, or that he supervised the other miners working at that site." ld. at 1618. The judge
noted that the Secretary failed to provide any evidence regarding whether Miller was paid as an
hourly employee or as part of management, or his official duties and responsibilities. Jd He
found that the Secretary failed to establish that Miller had direct responsibility for controlling the
acts of min~rs on the high wall or for their performance or duties, the authority to assign them
work or discipline them, or responsibility for the safety of miners and for insuring compliance
with mandatory safety standards. ld The judge credited Miller's testimony that he was only a
"lead man" at the time of the August 1994 inspection and was not promoted to foreman until
September 1995. !d. In addition, the judge found that the Secretary failed to rebut Miller's
testimony that in August 1994 he did not have the authority to hire or fire employees, was not
given instructions regarding the discipline of employees, and did not assign equipment to
employees. !d.
While finding that Berry was an officer of REB, and therefore within the purview of
section 11 0(c), the judge found that the Secretary did not establish that Berry had any information
that gave him knowledge or reason to know that the bulldozer operators were not wearing seat
belts when cited, or adduce any other evidence to show that Berry engaged in aggravated
conduct. !d. at 1618-19, 1622. With respect to the violation alleged in Order No. 4327622, the
judge found that there was no evidence that Berry had information that gave him knowledge or
reason to know that Jacobs was not wearing a seat belt. ld at 1619. The judge found that, as the

209

president of REB, Berry's pol icy regarding the wearing of seat belti was demonstrated by the
posting of materials informing employees of the _responsibility .to wear seat belts. /d. to The
judge also credited Berry's testimony that although he personally feels an individual has the right
not to wear a seat belt, he did not condone the failure of employees to wear seat belts and that, on
five or six occasions, he told employees he observed not wearing seat belts to put them on and
warned them that they would be sent home the next time they were found not wearing a seat belt.
/d. at 1619. With respect to the other section 56.14130(g) violation, the judge found that hearsay
testimony of former Special .Investigator St. Laurent regarding statements made by employees
Yates and Cunningham was insufficient to establish Berr.y' s liability under section 11 0(c). !d. at
1622.
B.

Disposition

The Secretary contends that the judge erred in dismissing the section 11 O(c) allegations
because he failed to accord any probative weight to the testimony of Inspector Enochs and former
Special Investigator St. Laurent concerning statements made by employees indicating that REB
management had an indifferent attitude regarding the wearing of seat belts, and that Miller and
Berry had ample notice of the. failure of bulldozer operators to wear seat belts on these occasions.
S. Br. at 19. The Secretary argues that the judge failed to evaluate factors bearing on the
reliability or probative weight of these statements, and instead improperly applied a per se rule
that this evidence could not be considered because it was hearsay. Jd.
REB argues that the judge properly exercised his discretion in refusing to give any
probative weight to the hearsay testimony relied upon to establish the section 110(c) liability of
Miller and Berry. R. Br. at 6-8. REB also argues that there was substantial evidence, including
the credited testimony of REB witnesses, to support the judge's determination that Miller and
Berry were not liable under section 110(c). /d. at 7-8.
1. ·

Applicable Principles

Section 11 0(c) of the Mine Act provides that, whenever a corporate operator violates a
mandatory safety or health standard, an agent of the corporate operator who knowingly
authorized, ordered, or carried out such violation shall be subject to an individual civil penalty.
30 U.S.C. § 820(c). The proper legal inquiry for determining liability under section 110(c) is
whether the corporate agent knew or had reason to know of a violative condition. Kenny
Richardson, 3 FMSHRC 8, 16 (January 1981), aff'd on other grounds, 689 F.2d 632 (6th Cir.
1982), cert. denied, 461 U.S. 928 (1983). Accord Freeman United Coal Mining Co. v.
FMSHRC, 108 F.3d 358, 362-64 (D.C. Cir. 1997). To establish section 110(c) liability, the
Secretary must prove only that an individual knowingly acted, not that the individual knowingly

to The judge credited Berry's uncontradicted testimony that REB has new employees sign
its safety policy, which requires that seat belts "be worn at all times of vehicle operation." Id at
1619 n.3.

210

violated the law~ Warren Steen Constr., Inc., 14 FMSHRC 1125,. 1131· (July 1992) (citing
United States v. International Minerals & Chern. Corp., 402 U.S. 558, 563 (1971)). An
individual acts knowingly where he is "in a position to protect.employee safety and health [and]
fails to act on the basis of information that gives him knowledge or reason to know of the
existence of a violative condition." Kenny Richardson, 3 FMSHRC at 16. Section 110(c)
liability is predicated on aggravated conduct constituting more than ordinary neglig~nce.
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (August 1992).
2.

Harold Miller

We affirm the judge's determination that the Secretary failed to establish that Miller was
liable for tli.e section 56.14 I 30(g) violations under section l I 0(c) of the Mine Act. In our view,
the judge correctly concluded that the Secretary failed to meet her burden of establishing that
Miller was an "agent" of REB within the meaning of section 3(e) of the Act, 30 U.S.C.
§ 802(e), 11 at the time these violations occurred. 12
While Miller testified that he was a "lead man" at the time of the August 1994 inspection,
and was not promoted to quarry supervisor until September 1995 (Tr. 174-75), this testimony by
itself is not dispositive of whether he was an agent of REB at the time these violations occurred.
"In considering whether an employee is an operator' s agent, the Commission has 'relied, not
upon the job title or the qualifications of the miner, but upon his function, [and whether it] was
crucial to the mine's operation and involved a level of responsibility normally delegated to
management personnel."' Ambrosia Coal & Consf1·. Co., 18 FMSHRC 1552, 1560 (September
1996) (quoting US. Coal, Inc. , 17 FMSHRC 1684, 1688 (October 1995) (alteration in original).
As the judge noted, Miller testified without contradiction that at this time he did not have the
authority to hire and fire employees, did not assign equipment to employees, and was not given
any instructions regarding the discipline of employees. 18 FMSHRC at 1618. Miller testified
that he never attempted to take any formal disciplinary actions against miners working on the
highwall. ld; Tr. 178. In addition, while Miller testified that he transmitted to other employees
directions received from his supervisor (King) regarding tasks to be performed at the site (Tr.
178), there was no evidence that he then had the authority to directly initiate the assignment of
work to employees. Moreover, as the judge noted, the Secretary failed to adduce evidence that
11

Section 3(e) ofthe Mine Act defines an "agent" as "any person charged with
responsibility for the operation of all or a part of a . . . mine or the supervision of the miners in a
... mine[.]" 30 U.S.C. § 802(e).
12

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

211

Miller was directly responsible for controlling the acts of miners .o n the high wall, that he \\'as
responsible for their performance and duties, or that he was responiible for the safety of miners
and for ensuring their compliance with mandatory safety standards. 18 FMSHRC at 1618.
Given the lack of record evidence indicating that Miller exercised supervisory responsibilities in
August 1994, when these violations occurred, substantial evidence supports the judge's
conclusion that the Secretary failed to establish that Miller was then an agent of REB within the
meaning of section 3(e). Accordingly, we affirm the judge's finding that Miller is no~ liable for
·
these section 56.14130(g) violations under section 11 0{c).
3.

Richard Berry

We also affirm the judge's conclusion that the Secretary failed to establish a basis for
holding REB President Richard Beny liable for the section 56.14130(g) violations under section
11 0(c). The judge correctly concluded that there was not sufficient evidence to.show that Berry
knew or reasonably should have known that Jacobs was not wearing a seat belt when cited, or
that Berry engaged in any type of aggravated conduct. As the judge explained, there was no
evidence adduced that Berry had any specific information that would give him knowledge or
reason to know that Jacobs was not wearing a seat belt. 18 FMSHRC at 1619. In addition, the
judge credited Berry's testimony that he did not condone the conduct of REB employees in not
wearing seat belts, and that he issued verbal warnings to employees on five or six occasions
when he observed them not wearing seat belts. ld. While these verbal warnings by Berry were
not entirely consistent with REB's official policy, which is to send employees home for the rest
of the day without pay for a first-time seat belt violation (see id. at 1619 n.4), we agree with the
judge that, without something more, these statements do not provide a basis for section IIO(c)
liability. On review, the Secretary does not point us to any specific evidence which would serve
as a basis for holding Berry personally liable under section II 0(c) for this violation. Therefore,
we affirm the judge on substantial evidence grounds.
We also ·agree with the judge's conclusion that the Secretary did not establish a basis for
holding Berry liabl~ for the other section 56.14130(g) violation under section llO(c). ld. at 1622.
The only evidence offered to establish the section II 0(c) liability of Berry for this violation was
the hearsay testimony of Inspector Enochs and St. Laurent concerning statements attributed to
employees Yates and Cunningham concerning the alleged failure of REB management to require
employees to wear seat belts. ld_. at I621-22. While we disagree with the judge's blanket failure
to accord any probative weight to this evidence, for reasons discussed in Part I.B above, in our
view, this evidence, even if accorded full probative value, is not sufficiently particulari~d as to
what Berry knew or had reason to know col).cerning the failure of Farrish to wear a seat belt to
provide a basis for the assessment of section llO(c) liability. Accordingly, we affirm the judge's
conclusion.that Berry is not liable under section IIO(c).

212

IV.
Order No. 4327626
A.

Facts and Procedural Background

During the August 16, 1994 inspection, Inspector Enochs observed a Case backhoe with a
loader bucket in front being operated as a loader. 18 FMSHRC at 1622-23. Enochs noticed that
·the vehicle was not equipped with a seat belt, and therefore issued Order No. 4327626 alleging a
violation of section 56.14130(a)(3). 13 !d. at 1623.
The judge concluded that the Secretary fai led to meet her burden of establishing that the
vehicle at issue was a "wheel loader" or "wheel tractor" within the meaning of section
56.14130(a)(3), and accordingly dismissed the order. ld. He declined to accord significant
weight to Enochs' opinion that the vehicle was a combination loader/backhoe because, in his
view, Enochs did not provide a detailed explanation of the basis for his opinion. !d. The judge
also relied on the Secretary's failure to offer any evidence how the terms "wheel loader" and
"wheel tractor" are commonly understood in the mining industry. !d.
B.

Disposition

The Secretary argues that the judge erred in dismissing this order because he
misconstrued the evidence and failed to properly interpret the applicable standard. S. Br. at 2022. The Secretary contends that section 56.14130(a)(3) must be broadly construed to include this
type of mobile equipment, and that this vehicle came within the meaning of the terms "wheel
loader" or "wheel tractor" as used in that standard because it was mounted on wheels, was selfpropelled, and had a bucket on the front that was being used to load materials. !d. at 21-22.
REB 'contends that the judge properly concluded that the Secretary failed to establish that
this vehicle fell within the coverage of section 56.14130(a)(3), and that therefore there was
insufficient evidence to support a finding of a violation. R. Br. at 9-10.
Our review of the judge's conclusion that the Secretary failed to establish a violation of
section 56.14130(a)(3) involve~ interpretation of the terms "[w]heelloaders" and "wheel
tractors" used in that standard. 14 In the absence of a statutory or reguhitory definition of a term,

13

Section 56.14130(a) requires that seat belts be installed on various types of mobile
equipment, including "[wJheelloaders and wheel tractors." 30 C.F.R. § 56.14130(a)(3).
14

This standard, which was issued in 1988, was "derived from" a preexisting standard,
30 C.F.R. § 56.9088 (1988). 53 Fed. Reg. 32,496, 32,511 (1988). While the regulatory history
indicates that section 56.14130 was intended to retain the scope of the prior standard, it contains
no specific discussion of the meaning of the terms "wheel loaders" and "wheel tractors." !d. at

213

or a technical usage, we look for the ordinary meaning of the tenus Usea in a regulation. See
Bluestone Coal Corp., 19 FMSHRC 1025, 1029 (June 1997); Peab.o dy Coal Co., 18 FMSHRC
686,690 (May 1996), aff'd, 111 F.3d 963 (D.C. Cir. 1997) (mem.). A " loader" is defined as "[a]
mechanical shovel or other machine for loading coal, ore, mineral, or rock." American
Geological Institute, Dictionary of Mining, Mineral and Related Terms 316 (2d ed. 1997)
("DMMRT'). A "tractor" is defined as "a self-propelled vehicle- which may be mounted on
crawler tracks, on wheels with large pneumatic tires, or on a mixture of both - intended for
moving itself and other _vehicles." !d. at 582. A "backhoe" is defined as "[t]he most versatile rig
used for trenching. The basic action involves extending,.i ts bucket forward with its teeth-armed
lip pointing downward and then pulling it back toward the source of power." Jd. at 34. A
comparison of these definitions indicates that a backhoe is distinguished from a loader or tractor
primarily on the basis of the different function it is used to perform- dragging its downwardpointed bucket in a backward direction to perform trenching work. Thus, the plain meaning of
the language of section 56.14130(a)(3) indicates that it applies to vehicles equipped and utilized
as a loader.
The root of confusion with respect to this citation stems at least in part from the
inspector' s unfortunate characterization of the equipment in the first place. One might say it is
like the apocryphal story of a group of blind persons who encounter an elephant, each one
pronouncing very different descriptions of the creature depending on what part of the beast they
are nearest to and able to touch. The equipment in question, a J.I. Case construction tractor
mounted on pneumatic tires or wheels, is equipped with a loader attachment on the front and a
backhoe attachment on the rear. We can only surmise that the inspector too, identified this
mechanized equipment by the part nearest to him. Faced with three choices- (wheel) tractor,
loader, or backhoe- two of which are specifically included in the regulation, the inspector
selected the third choice which opened the door to the legal defense the operator is now asserting.
NeverP1eless, the testimony of Inspector Enochs establishes that the Case mechanized
equipment at issue here was equipped as a loader and used to perform functions more typically
performed by a loader, rather than the trenching function associated with a backhoe. Enochs
testified that what he identified as a backhoe had a loader bucket on the front and that he was told
by foreman King that it was used primarily to clean up spilled material in the plant area. 18
FMSHRC at 1623; Tr. 256,258. Enochs also testified that he considered this vehicle to be a
"combination loader backhoe" because it had "a loader bucket on the front, and a backhoe bucket
on the back." 18 FMSHRC at 1623; Tr. 261. In our view, Enochs' testimony concerning the
function performed by this Case equipment, and the manner in which it was equipped, supports

32,51 1-12. A comparison table listing equipment covered by the new and old standards indicates
that the term "[w]heel loaders and wheel tractors" in the new regulation was intended to have the
same meaning as the term "[f]ront-end loaders and tractors" in the prior regulation. ld. at 32,511 .

214

no determination other than that it was within the coverage ofsectidn S6.14130(a)(3). See Ford
Constr. Co., 14 FMSHRC 1975, 1978-79 (Decetp.ber 1992).15
Accordingly, we find that substantial evidence does not support the judge's conclusion
that the Secretary failed to meet her burden of showing that the Case machine identified by the
inspector as a backhoe fell within the coverage of that standard, and therefore reverse the judge's
decision to vacate this order. Moreover, because it is undisputed that this equipment did not
have a seat belt, we find that the record compels a conclusion that REB violated section
56.14130(a)(3), and remand the matter for a determinatibn whether the violation was
unwarrantable and assessment of an appropriate Civil penalty.

v.
Order No. 4327628
A.

Factual and Procedural Background

During the August 16 inspection, from a walkway located about I 0 feet above, Inspector
Enochs observed REB employee Ron Alexander using a loader to load material from a stockpile.
I 8 FMSHRC at 1623. Eno.chs then observed Alexander turn off and climb out of the loader,
without unbuckling his seat belt. ld Enochs issued Order No. 4327628, alleging an
unwarrantable violation of section 56.14130(a)(3). ld; Gov't Ex. 10.
On February 23, 1995, the Secretary moved to amend this order to allege a violation of
section 56.14130(g), to conform with the description of the violation contained in the order. 16
See Mot. to Amend Citations (Feb. 23, 1995). The judge granted this motion on March 14, 1995,
well in advance of the June 11, 1996 hearing. Stay Order and Order Granting Mot. (Mar. 14,
1995).

15

In Ford, we reversed a judge's determinations that a scraper and a bulldozer were not
within the coverage of this standard, relying, in part, upon the testimony of an MSHA inspector
concerning the size and function of that equipment. ld at 1977-79. We concluded that a
bulldozer fell within the coverage of section 56.14130(a), even though "the language of the
standard itself does not include the specific term 'dozer' or 'bulldozer' in the six categories of
equipment requiring the installation of seat belts," based upon our determination that bulldozers
come within the meaning of the term "crawler tractors" in subparagraph ( 1) of that standard. !d.
at 1979.
16

Order No. 4327628 alleged that on August 16, 1994, "[t]he operator of the 1989
Michigan L 140 loader . .. was observed operating the end loader without his seat belt fastened."
Gov't Ex. 10 at 1.

215

The judge credited Enochs' uncontradicted testimony that.A1exander was not wearing a
seat belt when cited. 18 FMSHRC at 1624. He further found, .however, that the Secretary had
failed to establish a violation of section 56.14130(a)(3), the standard referred to in the order,
which requires that seat belts be installed on wheel loaders, because there was no evidence in the
record that a seat belt had not been installed on this vehicle. /d. Accordingly, the judge
dismissed Order No. 4327628. /d.
B.

Disposition

The Secretary argues that the judge erred in dismissing this order on the ground that it
cited the wrong standard, because the record indicates that in March 1995 he granted the
Secretary's motion to amend the order to cite section 56.14130(g), the standard applicable to the
violation alleged in Order No. 4327628. S. Br. at 22.
REB contends that the judge did not err in vacating Order No. 4327628 because that
order cited the wrong standard, and no evidence was offered by the Secretary to establish a
violation of section 56.14130(a)(3), the cited standard. R. Br. at 10-11. In response to the
argument that the citation was later amended to cite section 56.14130(g), REB argues that the
Secretary has failed to offer any exhibit or evidence to establish that the order had been so
amended. /d. at 11.
We conclude that the judge erred in dismissing Order No. 4327628 on the ground that it
cited an inapplicable standard. The record indicates that the judge granted the Secretary's motion
to amend this order to allege a violation of the correct standard, section 56.14130(g), well in
advance of the June 11, 1996 hearing. This was clearly sufficient to put REB on notice of the
correct standard allegedly violated, and the record demonstrates that REB knowingly litigated the
alleged violation on that basis. See Tr. 262-74.
Based on the foregoing, we vacate the judge's dismissal of Order No. 4327628.
Moreover, because the judge expressly found that the loader operator was not wearing a seat belt
when cited by Inspector Enochs (18 FMSHRC at 1624), and there is no dispute that the loader in
question was covered by this standard, we also conclude that the record compels a conclusion
that REB violated section 56. 14130(g). See American Mine Servs., Inc., 15 FMSHRC 1830,
1834 (September 1993) (where eyidence supports only one conclusion, remand on that issue
unnecessary). We remand the matter for a determination whether this violation was the result of
unwarrantable failure on the part of REB and assessment of an appropriate civil penalty.

216

VI.
Order
A.

No. 4327631

Factual and Procedural Backiround

During the August 16 inspection, Inspector Enochs observed that there was no guard on
the tail pulley of the radial stacker conveyor belt at RE:Ws facility. 18 FMSHRC at 1624. The
belt was in operation at the time, and there was nothing to restrict access to the unguarded tail
pulley, which was approximately 2 feet off the ground. /d. Enochs issued an order alleging an
S&S and unwarrantable violation of section 56.141 07(a). 17 /d.; Gov't Ex. II.
Enochs testified that he considered this violation to be unwarrantable and indicative of
high negligence because, in his view, King knew that he was creating a violative condition when
he removed the guard from the tail pulley; because of the seriousness of the danger of exposure
to a wing tail pulley; and because there was a lot oftraffic in the area. Tr. 278-79. Enochs
testified that he also based his unwarrantable failure finding on second-hand information he
received from Inspector Hermstein regarding an industrial assistance session MSHA had with
REB management at which King was purportedly given an MSHA handbook on guarding.
18 FMSHRC at 1625; Tr. 278-79. 18
The judge found that REB violated section 56.141 07(a), but concluded that the Secretary
had failed to establish that this violation was the result of REB's unwarrantable failure. 18
FMSHRC at 1624-25. In reaching this conclusion, he declined to assign any probative weight to
the hearsay testimony of Enochs concerning the guarding handbook given to King by MSHA. !d.
at 1625. 19
B.

. Disposition

The parties make essentially the same arguments with respect to the judge's finding that
this violation was not the result of unwarrantable failure that they make in connection with the

17

Section 56.14107(a) provides that "[m]oving machine parts shall be guarded to protect
persons from contacting gears, ... chains, drive, head, tail, and takeup pulleys, ... and similar
moving parts that can cause injury." 30 C.F.R. § 56.14107(a).
18

Commissioners Riley and Verheggen note that the Secretary did not introduce a copy
of the handbook into evidence, nor any details concerning the industrial assistance session at
which she alleged the handbook was given to REB management (see supra note 4).
19

The judge also concluded that this violation was not S&S. !d. at 1625. The Secretary
does not challenge this finding. See PDR at 12.

217

alleged unwarrantable violations of sections 57.14131 (a) and 56.1 4i30(g), discussed in Parts I
and II, above.
·
We vacate the judge's determination that this violation was not the result of
unwarrantable failure, and remand this matter to the judge, for the reasons discussed in Part I. B.
Since the judge failed to properly evaluate the Secretary's hearsay evidence in accordance with
Commission precedent, we vacate the judge's determination that this violation was not the result
of unwarrantable failure, and remand this matter for fw:ther analysis of the unwarrantability issue
in accordance with the principles discussed above.

VII.
Conclusion
For the foregoing reasons, we vacate the judge's determination that the section
57.14131 (a) violation described in Citation No. 4327776, the section 56.14130(g) violations
described in Order Nos. 4327622 and 4327625, and the section 56.141 07(a) violation described
in Order No. 4327631 were not the result of unwarrantable failure on the part of REB. We
remand these issues for further consideration consistent with this opinion. We affirm the judge's
conclusion that the Secretary failed to establish that Harold Miller or Richard Berry were liable
under section 11 O(c) for the violations of section 56.14130(g) described in Order Nos. 4327622
and 4327625. Finally, we reverse the judge's conclusion that the Secretary failed to establ ish that
the Case equipment described in Order No. 4327626 fell within the coverage of section
56.14130(a)(3), and vacate his dismissal of Order No. 4327628 because it alleged a violation of
the wrong standard. We conclude that REB violated sections 56. 14130(a)(3) and 56.1 4130(g) as

218

alleged in those orders, and .remand for a determination whether· these violations were the result
of unwarrantable failure on the part of REB and assessment
of appropriate
civil penalties.
.
.

Theodore F. Verheggen

219

Commissioner Marks, concurring in part and dissenting in part:
•

0

I concur in my colleagues' opinion that the Secretary failed to adduce sufficient evidence
that would warrant imposition of personal liability under Mine Act section 110(c) against Harold
Miller and Richard Berry. I also agree with my colleagues that the judge was incorrect in
appreciating the significance of the hearsay testimony when evaluating the unwarrantable
determinations before him. However, I part company from my colleagues because, after
considering this testimony in conjunction with the entir.e record, I believe that the record supports
only one conclusion - ·that the violations were unwarrantable. Therefore, I dissent and would
reverse the judge's determinations that Citation No. 4327776 and Order Nos. 4327622, 4327625,
and 4327631 were not a result of REB 's unwarrantable failure. 1
Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack ofreasonable care." Eme1y Mining
Cmp., 9 FMSHRC 1997, 2003-04 (December 1987); Rochester & Pittsburgh Coal Co., 13
FMSHRC 189, 193-94 (February 1991) ("R&P"). The Commission has examined various
factors to determine whether a violation is unwarrantable, including the extent of a violative
condition, the length of time that it has existed, whether the violation is obvious, whether the
operator has been placed on notice that greater efforts are necessary for compliance, and the
operator's efforts in abating the violative condition. Mullins & Sons Coal Co., 16 FMSHRC 192,
195 (February 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (August 1992); Quinland
Coals, Inc., 10 FMSHRC 705, 708-09 (June 1988); Kill Energy Corp., 6 FMSHRC 1596, 1603
(July 1984). Consideration of these factors with respect to the four violations listed above leads
to the conclusion that they were unwarrantable. I first discuss the three seat belt violationsCitation No. 4327776 and Order Nos. 4327622 and 4327625 - and then turn to the guarding
violation, Order No. 4327631.
I.
Seat Belt Violations
On August 16, 1994, MSHA Inspector James Enochs discovered that REB employee Ron
Alexander, the operator of the R-20 Euclid haul truck, did not have a seat belt on. 18 FMSHRC
1603, 1607 (September 1996) (ALJ). During the same inspection, Enochs observed another REB
employee, Bill Jacobs, not wearing a seat belt while operating a bulldozer. !d. at 1612.
1

I concur in the majority disposition with respect to the two seat belt violations
contained in Order Nos. 4327626 and 4327628. Because the judge did not address the issue of
whether these violations were a result of REB's unwarrantable failure, a remand for evaluation of
that question is appropriate. Nonetheless, many of the factors that compel a conclusion that the
above three seat belt violations are unwarrantable- such as extensiveness of the violations, prior
warning and danger- apply to these two violations on remand and should be considered by the
judge.

220

Approximately an hour later: the inspector observed yet another employee, Jim Farrish, not
wearing a seat belt while operating a bulldozer. ld. at 1620. On that same day, Inspector Enochs
later observed REB employee Alexander operating a loader, again without wearing a seat belt.
ld. at 1623-24. Enochs also observed that a backhoe loader at the quarry was not equipped with a
seat belt. Id. at 1622-23. In total, the inspector cited REB for five seat belt violations in the
course of one day and, according to REB President Berry, only seven vehicles were operating
that day. Tr. 252. Inspector Enochs testified that he che~ked all persormel in the quarry that day
and found that not one individual was wearing a seat belt. Tr. 119-20. The sheer number of
violations indicates that the operator's policy towards se(.lt belt use was one of serious
indifference to compliance with MSHA's regulations. Thus, the extent of the violations, which
is one of the factors in the unwarrantable analysis, leads to only one conclusion- that these seat
belt violations were a result of unwarrantable failure. See Jim Walter Resources, Inc., 19
FMSHRC 480, 486 (March 1997) (extent of violations supported reversal of judge's negative
unwarrantable failure determination).
REB's indifference to seat belt use was also reflected in the statements that REB
employees gave to MSHA inspectors. As the majority recognizes, the judge improperly
discounted these statements as hearsay without evaluating their probative nature. The judge
failed to consider that these statements were consistent in their view that REB took a
lackadaisical attitude toward seat belt use. Two of REB's equipment operators, haul truck driver
Ron Alexander and bulldozer driver Bill Jacobs, both told Inspector Enochs that "nobody made a
big deal about [wearing seat belts]." 18 FMSHRC at 1610, 1614; Tr. 34;.R. Ex. 32. In addition,
Inspector Enochs' contemporaneous notes corroborated the statement of Jacobs that "no one
makes a big deal about [seat belts]." R. Ex. 32. The notes also reported that Jacobs stated that
he "sometimes wears [a seat belt and] sometimes doesn't." R. Ex. 32. Jacobs also told former
MSHA Special Investigator Dale St. Laurent that "nobody ever told him to wear seat belts." Tr.
164. St. Laurent also testified that he was told by REB serviceman Yates that, in the year prior to
the inspecti~n, he never saw either of the two bulldozer operators wear a seat belt, and that no
one at REB ever told them or him to wear seat belts. Tr. 245. St. Laurent also interviewed plant
operator Cunningham, who reported that the "normal posture was ... that if a guy wanted to
wear them fine, and if he didn't want to wear them, then that was okay too." Tr. 245-46. In
addition, St. Laurent testified that, when asked why the bulldozer operators were not wearing
their seat belts, foreman Miller told him that he had only recently been promoted to supervisor
and therefore felt uncomfortable telling employees what to do and so just let them do what they
wanted to do. Tr. 167. According to St. Laurent, Miller also stated that he usually did not wear a
seat belt when he operated equipment. Tr. 167. These statements are consistent in the view that
REB made little or no effort to adhere to MSHA's seat belt regulation. Under Mid-Continent
Resources Inc., 6 FMSHRC 1132, 1135-39 (May 1984), these statements have high probative
value because they rested upon personal knowledge of the MSHA inspectors; there was
consistency between the statements; Inspector Enoch's contemporaneous notes corroborated the

221

statements; and REB did not introduce any evidence to establish thcrt the statements of these REB
·
employees to the inspectors did not in fact occur: 2
Other factors of the unwarrantable analysis are present that compel the conclusion that
these violations were a result of aggravated behavior. The record shows that REB had been
placed on notice that greater efforts were necessary for compliance with MSHA's seat belt
regulations. See Enlow Fork Mining Co., 19 FMSHRC 5, 11-12 (January 1997) (inspector's
discussions with management regarding need for great~r compliance efforts were relevant to
unwarrantable failure determination). 3 Inspector Enochs testified that, prior to inspecting the
REB quarry, in accordance with customary agency procedure, he discussed the REB mine with
the previous MSHA inspector, Mr. Hennstein;-who reported that, at the last inspection, he had
conducted an industrial assistance session with management employees of REB, foreman Ray
King and shift supervisor Goody, where the importance of seat belt use was discussed. Tr. 1418. The judge improperly discounted this testimony, without considering that this information
had a high indicia of trustworthiness and reliability as it was reported from one MSHA inspector
to another as part of standard agency operating procedure. The Supreme Court in Richardson v.
Perales, 402 U.S. 389 (1971), identified several factors, in addition to those outlined in MidContinent, to be considered in evaluating the reliability and probative value of hearsay evidence,
including the identity of the declarant, the credibility of the declarant or the witness testifying to
the hearsay, and the nature and structure ofthe administrative .~ystem in which the statements
were generated. ld. at 402-06. See also n.2, supra.
With respect to Citation No. 4327776, Inspector Enochs testified that REB foreman
King's attitude was "somewhat indifferent to the whole situation" and that he did not correct the
condition or tell the driver that he had to wear the seat belt. 18 FMSHRC at 161 0; Tr. 34. The
judge erroneously failed to consider that King did not correct the condition, tell the driver that he
had to wear a seat belt, or say anything else. The inspector's observation of foreman King's
attitude of indifference is also probative. See Buffalo Crushed Stone, Inc., 16 FMSHRC 2043,

2

In Mid-Continent, 6 FMSHRC at 1136-37, the Commission discussed various factors
that may be used to determine the probative value of hearsay evidence, such as whether the outof-court statement rests upon personal knowledge gained from first-hand experience; the
consistency among statements,. ifthere is more than one statement; whether the making of the
statement was denied or its contents were declared untrue; and any contradictory or corroborating
evidence.
3

Two Commissioners only, Commissioners Riley and Verheggen, seem to be critical of
the quantity of evidence of prior warning introduced by the Secretary on this record. Slip op. at 3
n.4, 5 n.8, 15 n.18. The Commission however has not quantified the type of evidence sufficient
to establish prior warning. Instead, the Commission has stated: "[T]o the extent that the
inspectors' discussions with management placed [the operator] on notice of its need for greater
compliance efforts ... , those discussions were relevant to the unwarrantable failure evaluation
and should have been considered by the judge." Enlow, 19 FMSHRC at 12.

222

2046-47 (Octo bet~ 1994) (inspector's observations have probative .va1ue). In addition, the fact
that King was a foreman greatly supports the umyarrantability 9f the violation. In Lio_n Mining
Co., 19 FMSHRC 1774, 1778 (November 1997), the Commission held that because a foreman,
who is held to a higher standard of care than rank and file miners, witnessed a violation and did
not act to immediately stop it, the foreman's conduct was "a factor tending to establish an
unwarrantable failure." In addition, the judge failed to recognize that truck driver Ron
Alexander, cited in Citation No. 432_7776, was later cited on the same day for failing to wear a
seat belt (Order No. 4327628), even after having earlier. received a citation for failure to do so
that morning. See 18 FMSHRC at 1607, 1623-24. This·evidence indicates that REB failed to
take efforts to come into compliance with MSHA's seat belt regulations, even after it received its
first citation. An operator's efforts in abating the violatiYe condition is a factor in the
unwarrantable failure analysis. Enlow, 19 FMSHRC at 1 1-12.
Finally, Enochs testified, without contradiction, that he considered these violations to
involve an unwarrantable failure because of the seriousness and danger involved in operating
equipment without a seat belt. Tr. 37, 42. The judge erroneously failed to address the degree of
danger involved in failing to operate heavy equipment without wearing seat belts. MSHA 's
Program Policy Letter No. P90-JV-3 ("PPL"), that was sent to all metal and nonmetal mine
operators, states that the failure to wear seat belt is a serious safety hazard, which may be
considered highly negligent and serve as the basis for a section 104(d) citation/order. Gov't Ex.
5 at 1; Tr. 34-36.4 It is beyond dispute that failure to wear seat belts is a highly dangerous

4

The PPL illustrates what MSHA considers highly negligent behavior with respect to
seat belt use:
Negligence for failure to wear seat belts should be determined by the extent of the
mine operator's efforts to enforce the seat belt requirement. Examples of such
efforts may include:
1.

evidence that the equipment operators are instructed on the mandatory use
of seat belts;

2.

regular observation by supervisors to determine whether seat belts are
being worn;

3.

corrective action taken by supervisors when seat belts are not being worn;
and

4.

the development and implementation of a job safety analysis program to
reinforce task training for equipment operators.

If the mine operator does not make any effort to ensure that seat belts are worn,

223

violation and that this degree of danger also supports the unwarra;ntable failure determination. 5
See BethEnergy Mines, Inc., 14 FMSHRC 1232, 1i43-44 (August 1992) (finding unwarrantable
failure where unsaddled beams "presented a danger" to miners· entering area).
In determining that the Secretary failed to establish that these seat belt violations were not
a result of REB's unwarrantable failure, the judge relied solely on REB's evidence that two signs
are posted at the quarry advising employees of the need to wear seat belts. 18 FMSHRC at 161 OIl, 1616. However, the evidence relied upon by the judge is insignificant compared to the body
of record evidence, and·does not establish that the three seat belt violations were not a result of
unwarrantable failure. On the contrary, the overwhelming weight of the evidence- on the
cumulative extensiveness of the violations, on.prior notice, on REB's efforts to come into
compliance with the seat belt regulations, even when a foreman observed the violation, and the
danger of the violations -detracts from the judge's finding of no unwarrantability. Therefore, I
would reverse the judge on the grounds that his findings were not supported by substantial
evidence and conclude that this record can support no other conclusion than that the seat belt
violations contained in Citation No. 4327776 and Order Nos. 4327622 and 4327625 were a result
of REB's unwarrantable failure. See Buffalo Crushed Stone, 16 FMSHRC at 2045-47 (where
overwhelming weight of evidence detracts from judge's finding, reversal is appropriate).
Accordingly, l would reinstate the subject section 104(d)(1) citation and orders and ren1and for
reassessment of civil penalties!

II.
Guarding Violation
With respect to the violation of30 C.F.R. § 56.14107(a), which requires that "[m]oving
machine parts shall be guarded to protect persons from contacting gears, ... chains, drive, head,
tail, and takeup pulleys, ... and similar moving parts that can cause injury," the overwhelming
weight of the evidence detracts from the judge's decision that this violation was not a result of
REB's unwarrantable failure. In particular, the record discloses that foreman King authorized the

the negligence would be high and a 104(d) citation/order would be appropriate.
Gov't Ex. 5 at 1-2. Although not determinative of my decision, this criterion is instructive
because, after applying this criterion to the case at bar, it is very obvious that REB showed no
diligence in ensuring that seat belts were to be worn by all operators at all times and that the
unwarrantable failure allegations ~ere appropriate.
5

With respect to the high danger of these violations, it is significant that in 1997,
fatalities in the metal and nonmetal mining industry increased at an alarming rate to 60 deaths,
the highest total since 1987. In 1996, there were 47 deaths in metal and nonmetal mining. Of
the 60 metal and nonmetal fatalities, 24 resulted from powered haulage accidents. MSHA News
Release USDL 97-470 (Dec. 31, 1997).

224

removal of this guard and knew that it was off. Tr. 278-79. ~nspector Enochs testified that no
barricades or warning signs had been placed aroynd the tail pulley at issue to alert miners to the
danger. Tr. 277. This evidence was not contradic~ed by REB. In R&P, 13 FMSHRC at 194, the
Commission held that "[i]ntentional misconduct, whether by commission or omission," qualifies
as aggravated conduct and constitutes an unwarrantable failure under the Mine Act. There is no
dispute that King engaged in intentional misconduct when he authorized the removal of the guard
and never replaced it. Further, as discussed above, the fact that this violation was committed by
a foreman, who is held to a higher standard of care, also supports an unwarrantable failure
determination. Lion Mining, 19 FMSHRC at 1778.
In addition, REB, and foreman King in particular, had been put on notice of the need to
guard the tail pulley. This prior notice buttresses my conclusion that the violation was a result of
REB's unwarrantable failure. See Enlow Fork, 19 FMSHRC at 11-12. During his preparation
for the August 16, 1994 inspection of the REB quarry. Inspector Enochs learned that King had
attended an industrial assistance session with the previous MSHA inspector where a handbook
on the importance of guarding had been given to him. Tr. 14-18, 278-79. On this record, as
discussed above, 1 can only conclude that this testimony has a high level of reliability and
trustworthiness because it related to the discussion of two MSHA inspectors, as part of their
customary agency procedure. See Richardwn, 402 U.S. at 402-04; Mid-Continent, 6 FMSHRC
at 1136. In addition, the danger of exposure to a wing-type tail pulley, which was approximately
2 feet off the ground, also supports a finding of unwarrantable failure and was completely
overlooked by the judge. See 18 FMSHRC at 1624; Tr. 278-79; see also BethEnergy, 14
FMSHRC at 1243-44.
·
In conclusion, a review of the evidence on the record compels the conclusion that this
guarding violation was a result of REB's unwarrantable failure. Accordingly, I would reverse the
judge and reinstate Order No. 4327631 as a section 104(d)(l) order and remand for reassessment
of a civil penalty.

Marc Lincoln Marks, Commissioner

225

Distribution
James B. Crawford, E sq.
Office of the Solicitor
U.S. Department ofLabor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
James E. Crouch, Esq.
Cypert, Crouch, Clark & Harwell
P.O. Box 1400
Springdale, AR 72765
Administrative Law Judge Avram Weisberger
Office of Administrative Law Judges
5203 Leesburg Pike, Suite I 000
Falls Church, VA 22041

226

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

March 30, 1998
SECRETARY OF LABQR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos.

V.

CONSOLIDATION COAL COMPANY,
ROBERT G. WYATT, and
DANNY E. CRUTCHFIELD

WEVA 94-377
WEVA 94-379
WEVA 94-380

BEFORE: Jordan, Chairman; Marks, Riley and Verheggen, Coi11Jl}issioners 1
DECISION
BY: Jordan, Chairman; Riley and Verheggen, Commissioners
In these consolidated civil penalty proceedings, arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"), the Secretary of Labor has
sought review of Administrative Law Judge George Koutras' decision in which he found that
Consolidation Coal Company ("Consol") did not violate 30 C.F.R. §§ 75.334(b)(1f and
75.364(a)(2) arid tQat Consol employees Robert Wyatt and Danny Crutchfield were not
individually liable u:r:tder section 11 0(c) of the Mine Act for knowing violations of section
75.334(b)(1 ). 17 FMSHRC 1982 (November 1995) (ALJ). The Commission granted the
Secretary's petition for discretionary review. For the reasons that follow, the Secretary's request
Commissioner Beatty re~used himself in this matter and took no part in its
consideration.
1

2

Section 75.334(b)(l) provides:
During pillar recovery a bleeder system shall be used to
control the air passing through the area and to continuously dilute
and move methane-air mixtures and other gases, dusts, and fumes
from the worked-out area away from active workings and into a
return air course or to the surface of the mine.

227

for remand of the judge's section 75.364(a)(2Y determination is denied and the judge' s conclusion
that the Secretary failed to establish a violation of section 75.334(b)(1) stands as if affirmed.
I.
Factual and Procedural Background
On December· 29, 1992, a methane ignition or explosion4 occurred during retreat mining
on the back part of the 2-V2 section ofConsol's Amonate No. 31 Mine, an underground coal
mine in McDowell County, West Virginia. 17 FMSHRC at 1986; Gov't Ex. 1. Five miners
suffered serious bums as a result of the accident and had not yet returned to work as of the time
of the June, 1995, hearing below. 17 FMSHR.C at 1986.

3

Section 75.364(a)(2) provides:
At least every 7 days, a certified person shall evaluate the
effectiveness ofbleeder systems required by§ 75.334 as follows:
(i) Measurements of methane and oxygen concentrations and air
quantity and a test to determine if the air is moving in its proper
direction shall be made where air enters the worked-out area.
(ii) Measurements of methane and oxygen concentrations and air
quantity and a test to determine if the air is moving in the proper
direction shall be made immediately before the air enters a return
split of air.
(iii.) At least one entry of each set of bleeder entries used as part of
a bleeder system under§ 75.334 shall be traveled in its entirety.
Measurements of methane and oxygen concentrations and air
quantities and a test to determine if the air is moving in the proper
direction shall be made at the measurement point locations specified
in the mine ventilation plan to determine the effectiveness of the
bleeder system.
(iv) In lieu of the requirements of paragraphs (a)(2)(i) and (iii) of
this section, an alternative method of evaluation may be specified in
the ventilation plan provided the alternative method results in
proper evaluation of the effectiveness of the bleeder system.

4

The Secretary contended below that the incident was an "explosion," while Consol
argued that it was an "ignition." 17 FMSHRC at 1986. The judge did not make a finding on the
issue, and it is not determinative of any issue on appeal.

228

A.

Events Leading to the Accident

FolJowing a period of inactivity, Consol resumed mining ofthe 2-1/2 section in 1992
after approval by the Department of Labor's Mine Safety and Health Administration ("MSHA")
of a supplement to Consol' s ventilation plan for the mine. Id at 1993. The supplement,
approved by MSHA on April 21, 1992 ("the April supplement"), showed how Consol intended to
ventilate the back part of the 2-112 section, first as it drove five entries using advance mining to
the absolute back of the.section, and then as it went back over the same area pulling pillars
during retreat mining ("pillaring"). 17 FMSHRC at 1993; Tr. VI 64; Gov't Ex. 40.
Before mining towards the back of the 2-1/2 section progressed very far, Consol
submitted another ventilation plan supplement for the section, which was approved by MSHA on
September 30, 1992 ("the September supplement"). Tr. VI 65-73; Gov't Ex. 42. The September
supplement showed how Consol intended to ventilate the left side of the section during advance
and retreat mining. 17 FMSHRC at 1996-98, 2022.
With approval of the September supplement, Consol changed directions and began to
mine the left side of the 2-1/2 section. !d. at 2022. Before it began retreat mining on that side,
and consistent with the September supplement, Consol installed two regulators on the left side
("the left side regulators"). Id. 5 Those regulators were part of the bleeder system for the 2-1/2
section,6 serving as the points by which air leaving the gob created by the retreat mining on the
left side of the section was routed to a return aircourse.
Upon completion of retreat mining on the left side, Consol resumed advance mining on
the back part of the 2-1/2 section. Jd. at 1999. Beyond the back of the 2-112 section was a
worked-out area of the mine which already was being used as part of the return air course,
connected by the left side regulators to the 2-112 section. !d. at 1994. After Consol had driven
one of the back entries to within.about 10 feet of that return aircourse, mine superintendent
Robert Wyatt ordered a series of holes drilled through the remaining barrier of coal separating the
back of the 2-1/2 section from the return aircourse. !d. at 1986-87, 1999, 2027-28. The holes,
drilled at the locatio·n specified in the April supplement (see Gov't Ex. 40), constituted the "back

5

A regulator is ''[a] ventilating device, such as an opening in a wall or door; [it is]
usually placed at the return of a split of air to govern the amount of air entering that portion of a
mine." American Geological Institute, Dictionary ofMining, Mineral, and Related Terms 451
(2d ed. 1997) ("DMMRT'l
6

While the DMA1RT does not include a definition of"bleeder system," it states that
"bleeder entries" are "[w)idely used for draining methane in coal mines ... where the
room-and-pillar method is employed," and defines them as "panel entries driven on a perimet~r
of a block of coal being mined and maintained as exhaust airways to remove methane promptly
from the working faces to prevent buildup of high concentrations either at the face or in the main
intake airways." DMMRT at 55.

229

regulator" or "drilled hole regulator." Consol originally had intended to construct a regulator,
consistent with the nonnal practice, out of cinder block or other material. Id. at 1993-94, 199899. The alternate method utilized to install the back regulator was not, standing alone, deemed
by the Secretary to be violative of the ventilation plan.
Assistant mine superintendent Mark Hrovatic supervised the drilling. ld. at 1998-99.
Consol planned to drill approximately 25 holes, each 1-1/2 inches in diameter, in the hope that a
total of at least 10,000 cubic feet of air per minute (cfm) would flow through the holes. Id. at
1999, 2027. After 20 holes had been drilled to a diameter of 1-1/2 inches each, Hrovatic used an
anemometer that, by his calculations, showed approximately 6,000 cfm of air exiting the holes.
Jd. at 1999. Wyatt and Hrovatic then decided that the drilled holes would be expanded to a
diameter of 3 inches to ens:ure that more than 10,000 cfm of air would pass through the holes. Id.
After only five holes.had been expanded, Hrovatic took another measurement with his
anemometer which he interpreted as showing that total airflow through the holes had increased to
between 6,000 and 7,000 cfm. Id. Believing that the goal of more than 10,000 cfm would be
accomplished by expanding all of the holes to 3 inches, Hrovatic instructed the evening shift
crew to do so. Id. at 1999-2000. The next night he was told that his instructions had been
carried out. Tr. III 82-83. By the time Hrovatic next visited the section, however, pillaring had
commenced and the area between the pillar line and the holes was gob. Tr. III 83. Consequently,
Hrovatic could get to within no closer than 150 feet of the area where the holes had been drilled,
too far away for him to see them or measure the amount of air flowing through them. Tr. III 8385. Hrovatic learned the evening after the accident that the holes had never been enlarged as he
had instructed. 17 FMSHRC at 2000.
Airflow through the back regulator could not be measured from the return side because
Consol used that worked-out area as part of the return air course and it was not generally
accessible. Id. at 1999, 2020. As a result, and in order to comply with the bleeder system
effectiveness evaluation requirements of section 75.364(a)(2), as part of the April supplement
approval process Consol requested and received permission from MSHA to calculate airflow
through the drilled holes by a "cross-sectional" method. ld. at 1995-96. Under the crosssectional method, instead of traveling to and taking air quantity measurements at the back
regulator, Consol would determine the amount of air exiting through the back regulator by
deducting from the amount of air entering the gob the amount of air that was exiting the 2-1/2
section at other points. ld. at 199'5. A handwritten notation on the April supplement provided
that "upon retreat mining the bleeder system will be evaluated by the difference in the intake and
return readings on the ·section." Gov't Ex. 40. In addition, methane measurements were taken
not as the air was exiting through the back regulator, but on a daily basis at Bleeder Evaluation
Point ("BEP") 10, where the air had already mixed with air from other parts of the mine. 17
FMSHRC at 1997, 2025-27,2061.
Retreat mining on the back part of the 2-1/2 section began sometime in the two weeks
preceding the accident, resulting in an area of gob extending approximately 2-1/2 acres. !d. at

230

1989, 2017; Tr. IV 216. On the morning of the accident, miriing of the pillar between the Nos. 3
and 4 entries was taking place in and around the No. 4 entry when the remote control continuous
miner shut down or "gassed-off' several times. 17 FMSHRC at 1986, 1989; Resp. Ex. 25. The
first gas-offs were thought by the miners to be due to a malfunctioning methane monitor on the
continuous miner. 17 FMSHRC at 1989, 1991. Upon the final gas-off, however, Bill Bandy, the
section shift foreman, was alerted, as it was unusual to have methane problems on the 2-1/2
section. !d. at 1988, 1991 , 1993, 2000-01, 2023. The continuous miner was programmed to shut
down at 1.5% methane. !d. at 1988. Miner Jackie Whittaker saw a reading above 2% on the
methane monitor at the time of the final gas-off. Tr. I 147. Also around that time foreman
Bandy detected 1% methane coming out of the gob into the area of the No.5 entry, which, at that
stage, was being used as a right return. 17 FMSHRC at 2001. .
Methan·e readings taken around the miner and in the No. 5 entry minutes later revealed no
further methane accumulations and the miner automatically restarted. ld. at 1988; Tr. III 112-13.
An electrician summoned to test the methane monitor on the miner soon thereafter determined
that it was in proper working order. 17 FMSHRC at 1988. When further methane readings
showed any methane to have dissipated, mining of the pillar resumed and was quickly completed.
Tr. I 152-53.
Before mining subsequently began from the No.5 entry, Consol made ventilation changes
to direct intake air into the entry. 17 FMSHRC at 2001. Bandy measured 17,000 cfm going over
the miner, into the gob. ld. at 2002. Meanwhile, mine foreman Danny Crutchfield, who had
been notified by Bandy of the earlier elevated methane readings, arrived and confirmed with his
own measurements that methane in the area had dissipated. !d. at 2002, 2023.
While Whittaker, who operated the continuous miner in the No.5 entry, was mining a rib
of the No. 5 entry, he observed the roof cracking and shifting, and saw it drop 2 to 3 inches in
one location. ld. at 1988; Tr. I 159-60, IV 62; Resp. Ex. 26. Whittaker ceased mining until the
roof seemed tp settle, and then resumed within five to ten minutes. Tr. I 160. Shortly thereafter
he heard loud noises from the roof in the gob and, fearing that the roof would fall on him, he
tried to run out of the entry. Tr. I 160-62. He testified that the had gone 5 to 10 feet when he
looked over his shoulder and saw a large fireball coming out of the middle of the gob. Tr. I 16263. Whittaker and four miners closest to the working face suffered serious bums. Tr. I 168-70,
II 29, 107-08, 169, V 35.
B.

Post-Accident Investigation. Enforcement. and Analysis

Following an investigation, MSHA concluded that the accident was caused by: (I) an
inadequate bleeder system, which allowed methane to accumulate in the gob in the explosive
range; and (2) Consol 's failure to properly examine the bleeder system to determine its
effectiveness. Gov't Ex. 1 at 37. Consequently, on March 3, 1993, MSHA cited Consol for a

231

significant and suhstantial ("S&S") and unwarrantable violation7 of section 75.334(b)(l ),
alleging that "[a]n adequate bleeder system was not provided to control the air passing through
the worked-out area of the 2-1/2 section ... to continuously dilute and move away methane-air
mixtures from the active workings and into a return aircourse." 17 FMSHRC at 1987. MSHA
also cited Consol for an S&S and unwarrantable violation of section 75.364(a)(2), based on
MSHA's allegation that "adequate weekly examinations were not being made to determine the
effectiveness of the 2-1/2 section bleeder system." Id. Wyatt and Crutchfield were each charged
under section 11 0(c) with knowingly authorizing, ordering or carrying out the section
75.334(b)(1) violation. !d. at 1983-84.
MSHA asserted at trial that the body of methane was ignited in the gob area during a roof
fall by either frictional heating, such as that resulting from rock rubbing against rock, or by
"piezoelectric" discharges, which are discharges of electrical energy that can result when
crystalline structures, such as quartz, fracture and break apart. ld. at 2035; Tr. III 199-200.
MSHA's primary witness on how the bleeder system was functioning on the day of the accident
was Gary Wirth, an MSHA mining engineer who was accepted as a mine ventilation expert. 17
FMSHRC at 2004-05. Wirth conducted a post-accident ventilation survey ofthe 2-1/2 section
that included calculations of airflow amounts, directions, and pressure differentials. I d. at 2005.
He concluded that only 2,037 cfm of air was exiting the drilled hole regulator following the
accident, and that no more than 2,828 cfm of air could have been going through the holes prior to
the accident. ld.; Gov't Ex. 1 at 35. He took issue with Hrovatic's earlier measurements on the
ground that Hrovatic had used an improper measurement methodology. Tr. IV 37-39. Wirth
opined that the remaining volume of air in the gob was exiting through the left side regulators,
but he was unable to calculate the amounts that had been flowing through each because they
remained inaccessible after the accident. 17 FMSHRC at 2005-06; Tr. IV 41-42.
Wirth testified that the Consol bleeder system, with only 2,000 to 3,000 cfm of air
flowing through the back regulator, was inadequate under the circumstances. Tr. IV 85-88. He
described the gob ;:rrea near the back regulator as higher than the other side of the 2-1/2 section,
and opined that ligh~er-than-air methane would tend to migrate to that area. 17 FMSHRC at
2006. He theorized that because there was limited airflow through the drilled holes, there was
insufficient airflow to dilute and render harmless the methane that was accumulating in the area
of gob that had resulted up to that point from pillaring in the back part of the section. ld.; Tr. IV
216-17.
Wirth assumed that, when the continuous miner was shutting down in the No.4 entry, the
location of the miner and the timbers that had been set were such that the intake air, after it went

7

The S&S terminology is taken from section 104(d) ofthe Mine Act, 30 U.S.C.
§ 814(d), which distinguishes as more serious in nature any violation that "could significantly
and substantially contribute to the cause and effect of a ... mine safety or health hazard." The
unwarrantable terminology is also taken from section 104(d) of the Act and refers to more
serious conduct by an operator in connection with a violation.

232

over the miner, instead of penetrating the gob area, was taking_ "path[s] of least resistance." Tr.
IV 58-59. He described paths of very low resistance as being to the left of the No.4 entry and
eventually through the ·other regulators on the section, as well as towards the right of the miner
on the way to the No.5 return entry. Tr. IV 60. Wirth further claimed that such airflows and the
restricted airflow through the drilled holes allowed a body of methane to accumulate in the gob
area, and that the continuous miner shut down because that body of methane migrated down to
the working section. 17 FMSHRC at 2006-07; Tr. IV 60. Wirth theorized that Bandy's 1%
methane measurement -at the time of the final gas-off, which was a level higher than normally
found on the section but lower than that which caused the miner to shut down, was an indication
that the airflow to the right of the miner had swept the methane that had migrated from the gob
into the right return. 17 FMSHRC at 2006-07.
Wirth went on to explain that, before the continuous miner moved to the No.5 entry,
Consol made ventilation changes, including directing 17,000 cfm of intake air into the No. 5
entry and eliminating the No. 5 entry as a right return. Tr. IV 62. Wirth indicated he believed
such an airflow pushed back into the gob area the body of methane that had previously migrated
down to the working area, which prevented the methane from being detected. Tr. IV 62-63. He
theorized that, while 2,000 to 3,000 cfm of air was passing through one side of the gob area and
taking some of the methane with it as it exited the drilled hole regulator, the remaining intake air
continued to skirt the fringe of the gob as it took a path of least resistance to the other regulators.
Tr. IV 86-88.
MSHA Inspector William Uhl, the lead coordinator in the accident investigation, testified
that it was "common sense" that, the way the bleeder system was set up, the air directed into the
gob, regardless ~fits amount, was going to skirt its edges and leave a dead air space in which
methane would accumulate. 17 FMSHRC at 2012; Tr. IV 280-81. It was the Secretary's
contention at trial that MSHA did not understand from the ventilation plan supplement approval
process that Consol would mine the left side of the 2-1 /2 section, and thus in the process install
the left side regulators, before it finished mining the back part of the section. 17 FMSHRC at
20 13-14. According to the Secretary, the addition of the left side regulators provided additional
airflow exit points when mining of the back part of the section eventually occurred. !d. at 200708. The Secretary maintained at trial that the left-side regulators, which were generally
inaccessible, prevented Consol from knowing from its cross-sectional readings the amount of air
that was flowing through the gob and out the back regulator. !d.
Consol's primary witness was Donald Mitchell, who also conducted a post-accident
investigation of how the 2-1/2 section was ventilated and was also accepted as a ventilation
expert at trial. !d. at 2029-30. Mitchell agreed with MSHA that the ignition source was
frictional heating during a roof fall. !d. at 2032. However, Mitchell concluded that the methane
that burned came not from any accumulation in the gob area, but rather was methane that was
occluded in overlying sandstone strata and released upon the breaking of that strata during that
roof fall. !d. at 2032. He opined that there was no ventilation or bleeder system in the United
States that could be designed to handle such a sudden release of methane. !d.

233

Mitchell afso testified that the measurement of air passing through the back regulator was
not dispositive of the adequacy of the bleeder system because there were other regulators through
which air directed into.the section could exit. /d. He stated his belief that, at the time of the
accident, in addition to the air that was flowing through the drilled holes, the remaining air was
going though the back gob area, keeping any methane away from the working face and diluting
that methane on its way to exiting through the other regulators. /d.; Tr. 241. Mitchell claimed
that his theory of the airflows, in contrast to MSHA's theory, took into account additional air
entering the gob through the gob curtains, the positive pressure observed on those curtains, and
the air pressure differential readings between the active face and the various bleeder system
entries. 17 FMSHRC at 2033.
Mitchell also ascribed the earlier gas-offs to outflows of methane from cracks in the
overlying sandstone strata. Tr. VI 246-48. He testified that his airflow theory explained why the
methane that caused the gas.:offs dissipated, and that ifMSHA's theory regarding the gas-offs
was correct, there would have been no such dissipation, and Bandy's methane reading in the No.
5 entry would have been higher than 1% percent, consistent with the higher level that caused the
gas-offs. Tr. VI 243-44, 246-48. He opined that the 1% reading was instead consistent with a
properly functioning bleeder system as well as with his airflow theory that, while mining was
taking place at the time of the gas-offs, the great majority of air was heading to the right return
entry, after having provided "great dilution" to any methane in the gob. Tr. VI 244-45.
C.

Judge's Decision

Discussing only the evidence presented by the Secretary, the judge concluded that the
Secretary had not satisfied her burden of proving that Consol violated section 75.334(b)(1 ). 17
FMSHRC at 2047-57.8 Addressing the testimony ofMSHA's ventilation expert, Wirth, the
judge stated that "[a]fter careful scrutiny of Mr. Wirth's testimony, I have serious reservations
and doubts concerning the accuracy, consistency, and credibility of the information he relied on
in support of his opinions and conclusions concerning the inadequacy of the bleeder." /d. at
2051. The judge cited a number of instances in which he believed that Wirth's testimony was
internally contradictory or conflicted with the testimony of other witnesses presented by the
Secretary. /d. at 2051-54. The judge asserted that Wirth's "inconsistent and contradictory
testimony" could neither be reconciled nor accepted "as reasonable evidentiary support for any
conclusion that there was in fact .a lack of sufficient air in the gob to dilute and cany away
methane through the return. Indeed, the evidence, including Mr. Wirth's testimony, establishes
otherwise." /d. at 2054.

8

The judge also concluded that "[i]n my view, both parties presented speculative
causation theories based on after-the-fact 'best guesstimates,' assumptions, and opinions based
on information that I find conjectural, contradictory, or unreliable. Under the circumstances, I
can only conclude that the cause of the accident remains unknown." 17 FMSHRC at 2048. That
conclusion is not a subject of the Secretary's appeal.

234

In concluding that the Secretary had failed to establish a violation of section 75.334(b)(1 ),
the judge described what he found to be the most persuasive testimony as follows:
Mr. Uhl believed that with only 2,000 cfm of air passing through
the regulator, a methane-air mixture was exiting through the
regulator holes and into the return air course. Mr. Wirth believed
that methane was exiting the gob through the regulator, and, as
noted earlier, he acknowledged that the air flow pattern was
sweeping the gob gas and reducing it to one percent and diluting it
with the air leaving the mine, and that the air sweeping the gob was
diluting and dissipating the methane that caused the miner machine
to gas-off. This is precisely what a bleeder system is designed to
do, as required by cited section 75.334(b)(l). Under all of these
circumstances, I remain unconvinced that the amount of air that
MSHA assumed was passing through the regulator, a factor that is
but one component of the total bleeder system, supports a
conclusion that the bleeder was inadequate and failed to provide a
means for controlling the air passing through the cited gob area to
continuously dilute and move away methane-air mixtures from the
active workings and into a return air course.

Jd. at 2057.
Based on his conclusion that Consol did not violate section 75.334(b)(l), the judge also
dismissed the citations issued to Wyatt and Crutchfield under section llO(c). Jd. at 2063. He
stated that "even ifl were to find a violation of the cited standard, I would not conclude that the
evidence adduced by MSHA established a ' knowing' violation by Mr. Crutchfield or Mr. Wyatt,
within the intent and meaning of section 11 0(c) of the Act." Id.
The judge was also not swayed by the Secretary's case in support of her allegation that
Consol violated the bleeder system effectiveness evaluation regulation, section 75.364(a)(2). He
found that the Secretary had failed to satisfy the burden of proving that Consol's weekly
examinations of its 2-112 section bleeder system using cross-sectional readings were inadequate.
ld. at 2062-63.

II.
Disposition
A.

Section 75.364(a)(2) Citation

The Secretary's original theory ofConsol's violation of section 75.364(a)(2) was that
Consol 's cross-sectional readings were not an adequate substitute for traveling the bleeder system

235

on a weekly basis tp examine its effectiveness, as that regulation requires in the absence of an
effective alternate method of evaluation. S. Br. at 40-41. The Secretary has chosen to not appeal
the judge's determination that the Secretary did not establish such a violation. /d. at 41. Instead,
the Secretary claims remand is necessary because the judge failed to address whether a violation
of section 75.364(a)(2) was established by evidence adduced at trial allegedly showing that the
last weekly cross-sectional reading taken before the accident was incomplete, in that it included
measurements of intake and belt air, but not return air. /d. at 41-43. The Secretary also requests
that remand include the issues of whether the alleged violation was S&S and unwarrantable. S.
Pet. at 25 n.7; S. Br. at 43-47. Consol objects to what it characterizes as the Secretary's
reformulation on appeal of the issue ofthe section 75.364(a)(2) violation. C. Br. at 15. Consol
argues in the alternative that, because there was evidence of only one incomplete reading, the
judge's conclusion that Consol was in "substantial compliance" with the regulation is supported
by substantial evidence. ld. at 16.
We do not think that the original citation can be read to include an allegation that Consol
violated section 75.364(a)(2) by taking an incomplete cross-sectional reading, and the Secretary
has never moved to amend the citation, even in her brief, to include the alleged incomplete
reading. Mine Act section 104(a) requires that a citation "describe with particularity the nature
ofthe violation." 30 U.S.C. § 814(a). However, under Rule 15(b) of the Federal Rules of Civil
Procedure,9 in certain circumstances amendments to pleadings can be made at any stage,
including after judgment, and are not even necessary for a valid judgment when the non-pleaded
issues have been tried by express or implied consent of the parties. Nevertheless, with respect to
post-hearing consideration of an issue not raised by the pleadings, the Commission has
recognized Rule 15(b)'s "emphasis upon the parties' understanding that the unpleaded claim is,
in fact, being litigated." Magma Copper Co., 8 FMSHRC 656, 659 n.6 (May 1986).
While the issue of the incomplete reading was raised in the Secretary's Post-Hearing
Brief (see S. Post-Hearing Br. at 46-47), the trial record does not reflect that Consol understood,
or should have.understood, that the allegation of an incomplete cross-sectional reading was being
litigated as a violation. The Secretary's witness, Uhl, repeatedly characterized any failure by

9

Commission Procedural Rule l(b), 29 C.F.R. § 2700.l(b), incorporates the Federal
Rules of Civil Procedure, so far as practicable, on any procedural question not regulated by the
Mine Act, the Commission's Pro~edural Rules, or the Administrative Procedure Act. Rule 15(b)
provides in pertinent part:
When issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects
as if they had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any
party at any time, even after judgment; but failure to so amend does
not affect the result of the trial of these issues.

236

Consol to make the last weekly return air reading before the accident as irrelevant to the
Secretary's case, because it was the Secretary's position that even a complete cross-sectional
reading was, under the·circumstances, a violation of section 75.364(a)(2). See 17 FMSHRC at
2017; Tr. IV 222, 243-44, 257, 259, 314-15. As the Secretary failed to either timely plead the
allegation as a revised or alternate theory or demonstrate the parties' understanding below that it
was being litigated, we deny the Secretary's request for a remand to the judge for a decision on
the issue.
B.

The Section 75.334Cb)(l) Citations

The Secretary contends that the judge's finding that she failed to establish a violation of
section 75.334(b)(l) by Consol is not supported by substantial evidence and does not accord with
the law. S. Br. at 17-40. The Secretary argues that remand is necessary because the judge
misunderstood both the requirements of the mandatory standard and the issue he was required to
decide, in that he improperly focused on the cause of the explosion. !d. at 17-23. The Secretary
contends that her evidence established that Consol failed to maintain an adequate bleeder system
to control the air passing through the worked-out area of the 2-1/2 section. !d. at 24-29. The
Secretary also cites eight errors the judge made in discrediting the Secretary's ventilation expert,
Wirth. !d. at 29-40. The Secretary requests that remand include the issues of whether the alleged
section 75.334(b)(l) violation was S&S and the result ofConsol's unwarrantable failure, as well
as the Section 110(c) charges against the two individual respondents. S. Pet. at 25 n.7; S. Br. at
43-48.
Consol responds that the judge only considered the cause of the accident because it was
an integral part of the Secretary's theory ofthe section 75.334(b)(.l) violation. C. Br. at 6.
Consol argues that the judge demonstrated complete comprehension of the regulation and the
issue presented to him for decision. ld. at 7. Consol claims that the judge's decision to discredit
the conclusions drawn by the Secretary's primary witnesses was the result of considering not
only the testimony of those witnesses, but also Consol' s evidence and the testimony of its
witnesses, particularly its ventilation expert, Mitchell. !d. at 10-14. Consol also contends that
the Secretary is improperly using litigation to implement new requirements regarding bleeder
system functioning and evaluation. !d. at 16-19. Consol argues for upholding the judge's
conclusions that none of the alleged violations resulted from unwarrantable or aggravated
conduct. !d. at 20-25.
Commissioners Riley and Verheggen would affirm the judge's decision. Chairman
Jordan and Commissioner Marks would vacate and remand the judge's decision. Under
Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563-65 (August 1990), aff'd on other grounds, 969
F.2d 1501 (3d Cir. 1992), the effect of the split decision is to allow the judge's decision on this
issue to stand as if affirmed.

237

III.
Separate Opinions of the Commissioners
Commissioners Riley and Verheggen, in favor of affirming the finding of the
administrative law judge that MSHA failed to prove a violation of30 C.F.R. § 75.334(b)(l):
In determining whether Judge Koutras properly found that the Secretary failed to meet her
burden of proving a violation of section 75.334(b)(l) (see 17 FMSHRC at 2057), we are guided
by several well established principles. First is the fundamental principle that the Mine Act
imposes on the Secretary the burden of proving an alleged violation by a preponderance of the
credible evidence. Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (November 1989).
A logical corollary to this rule of law is that if the trier of fact finds such proof lacking, that is the
end of the matter. He or she· is under no obligation to go any further to examine the case of the
alleged wrongdoer- any such exercise would be a waste of time and resources the end result of
which would be mere dicta.
Second is the substantial evidence test by which the Commission is statutorily bound
when reviewing an judge's findings of fact. 30 U.S.C. § 823(d)(2)(A)(ii)(l); Wyoming Fuel Co.,
16 FMSHRC 1618, 1627 (August 1994). When reciting this test, the Commission customarily
states merely that "substantial evidence" means "'such relevant evidence as a reasonable mind
might accept as adequate to support [the judge's] conclusion."' See, e.g., Jim Walter Resources,
Inc., 19 FMSHRC 1761, 1767 n.8 (November 1997) (citing Rochester & Pittsburgh Coal Co., 11
FMSHRC 2159,2163 (November 1989)). But in practice, the test involves more than this
simple formulation conveys. It means that the Commission may not "substitute a competing ·
view of the facts for the view [an] ALJ reasonably reached." Donovan ex rei. Chacon v. Phelps
Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983). The Fourth Circuit recently explained the test
when it overturned a Commission decision reversing a judge's determination that a company did
not discriminate against an independent contractor, Billy McClanahan. Wellmore Coal Corp. v.
FMSHRC, No. 97-1280, 1997 WL 794132 (4th Cir. Dec. 30, 1997). The court stated:
The fact that evidence exists in the record to support
McClanahan's position is not determinative. Rather, the
Commission's review was statutorily limited to whether the ALJ's
findings of fact were supported by substantial evidence. The
"'possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency's finding from
being supported by substantial evidence."'

Jd. at *3 (citations omitted).
The Commission must exercise a great degree of deference when considering a judge's
credibility determinations. In re: Contests ofRespirable Dust Sample Alteration Citations,

238

17 FMSHRC 1819, 1878 (November 1995) ("Dust Cases"), appeal docketed sub nom. Secretary
of Labor v. Keystone Coal Mining Corp., No. 95-1619 (D.C. Cir. December 28, 1995). The
Commission has noted that "the general rule [is] that, absent exceptional circumstances,
appellate courts do not overturn findings based on credibility resolutions." !d. at 1881 n.80. The
sorts of exceptional circumstances that would warrant overturning a judge's credibility findings
are where such findings are self-contradictory, based on irrational criteria, or contradict the
evidence. !d. As the Eleventh Circuit has explained, "[s]ince the ALJ has an opportunity to hear
the testimony and view the witnesses he is ordinarily in the best position to make a credibility
determination." Ona Corp. v. NLRB, 729 F.2d 713,719 (lith Cir. 1984). In light of this, the
On a court concluded that "as a general rule courts are bound by the credibility choices of the
ALJ, even if they 'might have made different findings had the matter been before [them] ... de
novo."' !d. at 719 (quoting GulfStates Mfrs., Inc. v. NLRB, 579 F.2d 1298, 1329 (5th Cir.
1978)); cf Brock v. Roadway Express, Inc., 481 U.S. 252,266 (1987) ("Final assessments of the
credibility of supporting witnesses are appropriately reserved for the administrative law judge,
before whom an opportunity for complete cross-examination of opposing witnesses is
provided."). 1
We set forth these principles at some length because our colleagues appear to have lost
sight of them in their haste to vacate the judge's finding of no violation. Our colleagues argue at
some length that Judge Koutras misunderstood key testimony and failed properly to consider all
the testimony and evidence? Slip op. at 17-25 (separate opinion of Chairman Jordan, joined by
Commissioner Marks in his separate opinion). We disagree.
After carefully reviewing the record, Judge Koutras concluded that the agency's
allegation of a violation of section 75.334(b)(1) "was based on two principal factors, namely, the
occurrence of the ignition, and the assumption that there was insufficient air flow through the
drill hole regulator to dilute and render harmless the 'body of methane' that MSHA assumed was

1

See also Metric Constructors, Inc., 6 FMSHRC 226,232 (February 1984) (when
judge's finding rests on credibility determination, Commission will not substitute its judgment
for that of judge absent clear indication of error), aff'd, 766 F.2d 469 (11th Cir. 1985); Wellmore,
1997 WL 794132 at *3 ('"[T]he ALJ has sole power to make credibility determinations and
resolve inconsistencies in the evidence."') (citations omitted).
2

We note that Judge Koutras, though recently retired, sat as a Commission judge from
the agency's inception. In fact, he authored the first judge's decision to be reported in a
Commission "Blue Book." See Western States Coal Corp., 1 FMSHRC, Docket No. DENV
78-521-P (March 1, 1979). Moreover, during his long tenure, he presided over several complex
proceedings involving issues pertaining to mine ventilation, as did this case. See, e.g., Island
Creek Coal Co., 13 FMSHRC 592 (April1991); Greenwich Collieries, 8 FMSHRC 1535
(October 1986). We believe that Judge Koutras had a complete grasp of the facts of this case,
and considered all the testimony and evidence necessary to a determination of whether the
Secretary carried her burden of proof.

239

accumulating in the gob area." 17 FMSHRC at 2056. Regarding the first factor, the judge
properly concluded that "the occurrence of the ignition is not, in.and of itself, evidentiary proof
of an inadequate bleeder system." !d.; see Mar-Land Indus. Contractor, Inc., 14 FMSHRC 754,
758 (May 1992); Old Ben Coal Co., 4 FMSHRC 1800, 1804 n.4 (October 1982) ("As we have
repeatedly emphasized in our decisions, the fact of an accident or injury does not by itself
necessarily prove or disprove the existence of a violation. . . . A violation may occur absent an
accident, and an injury or death does not ipso facto make out a violation.").
Regarding the second factor, the judge opined:
I remain unconvinced that the amount of air that MSHA assumed
was passing through the regulator, a factor that is but one
component of the total bleeder system, supports a conclusion that
the bleeder was inadequate and failed to provide a means for
controlling the air passing through the cited gob area to
continuously dilute and move away methane-air mixtures from the
active workings and into a return air course.
17 FMSHRC at 2057. MSHA' s case rested primarily upon the testi.mony of two experts, MSHA
mining engineer Gary Wirth and MSHA Inspector William Uhl, Jr. 3 The judge found the
testimony of these two witnesses lacking in credibility.
After a thorough review of Wirth's testimony, the judge found it "inconsistent and
contradictory." !d. at 2050-54. The judge noted, for instance, that Wirth relied upon a
venti lation survey he took after the accident as being representative of conditions existing at the
time of the accident, even though he was told that the accident had altered the area's ventilation.
!d. at 2051. The judge had other problems with Wirth's survey, including his inability "to
perform and develop a complete air quantity balance of the bleeder system." !d. at 2052-53. The
judge also noted that portions ofMSHA's accident report authored by Wirth were at odds with
the testimony of eyewitnesses on a miner crew. !d. at 2051. Regarding Wirth's failure to review
any examination records from before the accident "because he did not believe they were
relevant," the judge noted: "Since Mr. Wirth acknowledge[d] that intake air is a component of a
bleeder system, I fail to understand why such air readings would not be rel~vant to a survey taken
to evaluate such a system." !d. at 2053. Nor did Wirth familiarize himself with the relevant
ventilation plan in formulating his opinion. !d. at 2051-52. Although Wirth took a series of
bottle samples to evaluate the air exiting the gob, samples which indicated "that methane was
exiting the gob through the drill holes," this potentially exculpatory information was left out of

3

As to the adequacy of Consol 's bleeder system, the judge essentially discounted as
irrelevant the testimony ofMSHA's expert witness Clete Stephan, noting that MSHA's counsel
conceded at trial that Stephan "was not a ventilation expert" and that his expertise did not extend
to the issue of whether the bleeder system was adequate. 17 FMSHRC at 2050.

240

MSHA's accident report. Jd. at 2052. These and other aspects4 of Wirth's testimony led the
judge to conclude that he could not "accept it as reasonable evidentiary support for any
conclusion that there was in fact a lack of sufficient air in the gob to dilute and carry away
methane through the return." ld. at 2054. The judge similarly found Uhl's testimony "confusing
and contradictory," noting among other things Uhl's lack of relevant experience. ld. at 2054-55.5
The judge summed up his assessment of MSHA' s case when he characterized it as an
"attemptO to establish an inadequate bleeder system through post-ignition investigative
assumptions, theories, a!}d conclusions based on conjecture, speculation, and contradictory
information and testimony that I fmd lacking in credible evidentiary support." Jd. at 2055. We
conclude that the judge's credibility fmdings as to Wirth and Uhl, and the rest of the Secretary's
case, are not "self-contradictory [or] based on irrational criteria," nor do they "contradict the
evidence." Dust Cases, 17 FMSHRC at 1881 n.80. In short, we find nothing in the record or in
the judge's opinion that would lead us to take the extraordinary step of overturning the judge's
credibility findings.6 We thus defer to his findings and affirm his ultimate conclusion that the
Secretary failed to meet her burden of proving a violation of section 75.334(b)(l) by a
preponderance of the evidence.

4

For example, the judge noted that Wirth "testified ... that he was 'somewhat' familiar
with this case." 17 FMSHRC at 2050. The Secretary argues that "the judge plainly took Wirth's
statement out of context" and that "Wirth's response was clearly facetious." S. Br. at 38-39.
Considered in context, we find nothing to indicate that Wirth's comment should have been
treated differently by the judge. Tr. IV 182. Moreover, if Wirth was in fact being facetious, as
the Secretary argues, we would fmd such a response disrespectful and inappropriate, one which
would cast very serious doubt on Wirth's credibility.
5

Our colleagues fault us for "relying solely on the judge's own decision . . . without any
independent review .o f the record" in drawing our conclusion that the judge's credibility
determinations do not contradict the evidence. Slip op. at 22 n.6. We would like to reassure our
colleagues that we have, in fact, carefully reviewed the record in this case. We cite only to the
judge's opinion in the foregoing discussion because it, in tum, is so thoroughly based on the
record evidence. Nor have we fo~d evidence in the record that would lead us to take the
extraordinary step of overturning the judge's credibility findings.
6

The Secretary's response is, in essence, that the judge did not understand this case. She
alleges, for instance, that the judge was "unfocussed and confused." S. Br. at 22. A close
reading of the trial transcript and judge's opini~n, however, indicates he was very thorough and
clearly understood MSHA's case. He asked numerous pointed questions during the hearing,
showing a complete understanding of a complicated case. In light of the record of this case and
the long experience of Judge Koutras (see note 2, supra), we find the Secretary's criticisms of the
judge inappropriate and disingenuous.

241

At several_points in their opinion, our colleagues refer to the Secretary's "theory that the
lighter-than-air methane ... was accumulating from pillaring in the back part of the section."
Slip op. at 18. The judge, however, explicitly rejected this theory of the Secretary. The judge
noted that MSHA believed that "an explosive body of methane that was allowed to accumulate in
the gob," whereas Consol believed that "a spontaneous and unpredictable outburst [of methane
occurred] from a sandstone roof crack." 17 FMSHRC at 2048. Finding that "both parties
presented speculative causation theories based on after-the-fact 'best guesstimates,' assumptions,
and opinions based on information I find conjectural, contradictory, or unreliable," the judge
concluded that neither party has proven their theory "with any reasonable degree of evidentiary
certainty." !d.

In other words, the judge concluded that MSHA failed to prove that there was an
accumulation of methane that led to an explosion. We find this conclusion amply supported by
record evidence. Our colleagues, however, appear to accept the Secretary's theory as if proven.
For example, they state: "The judge was therefore mistaken in interpreting Wirth's testimony as
establishing the adequacy of the bleeder system, for, as Wirth stated, a large body of methane
remained in the gob area, unaffected by the intake airflow." Slip op. at 22. The point they miss
is that the judge rejected the Secretary's theory that "a large body of methane remained in the
gob area."
We are, of course, aware that the record could be read very differently, as do the Secretary
and our colleagues. But our standard of review dictates that we may not "substitute a competing
view of the facts for the view [an] ALJ reasonably reached." Phelps Dodge, 709 F.2d at 92.
Instead, we are limited to determining whether the judge's decision is supported by "'such
relevant evidence as a reasonable mind might accept as adequate."' Rochester & Pittsburgh
Coal Co., 11 FMSHRC at 2163 (quoting Consolidation Edison Co. v. NLRB, 305 U.S. 197,229
(1938)). Under this deferential standard, and the even more deferential standard governing our
review of credibility determinations, the judge's decision here more than passes muster.

Theodore F. Verheggen, Co

242

Chairman Jordan, in favor of vacating the decision of the administrative law judge that
MSHA failed to prove a violation of30 C.F.R. § 75.334(b)(l):
To comply with section 75.334(b)(1), the Consol bleeder system on the 2-112 section had
to ensure that any pillared area was ventilated in such a manner that methane did not accumulate
but instead was diluted and the resulting methane-air mixtures moved to a return air course and
away from active workings. Consequently, an understanding of airflow direction and amounts,
and how various factors impacted airflow direction and amounts, is necessary to a proper
determination of whether the Consol bleeder system was adequate. The judge based his
determination that the standard was not violated on his conclusion that the Secretary did not
establish that the Conso) bleeder system was inadequate. 17 FMSHRC at 2057. Because I
believe the judge did not properly analyze the Secretary's evidence, and even misinterpreted key
portions of that evidence, I would vacate and remand the judge's determination of no violation.
The Secretary's theories regarding air direction and amounts in the 2-112 section on
December 29, 1992, fully support her position that the ConsoJ bleeder system was inadequate.
The genesis of the problem was Consol's decision to mine the left side of the section before it
finished mining the back part of the section. MSHA had approved Consol's use of crosssectional readings in lieu of measurements taken at the back regulator, which would become
generally inaccessible once pillaring began. ld. at 2007, 2013-14. In mining the left side of the
section first, however, Consol constructed two other regulators, which were also inaccessible. Id.
at 2007, 2014. Consol does not dispute that those regulators provided additional airflow exit
points when mining of the back part of the section eventually occurred, nor that its crosssectional readings did not permit it to know the amount of air that was flowing through the back
regulator and the amount of air that was exiting through the left side regulators. ld. at 2024-25.
Consol also does not dispute the other major component of the Secretary's case- that
only a small fraction of the air that Consol intended to be channeled by the back regulator into
the return aircourse ever actually flowed through that regulator. Consol's assistant mine
superintendent, Mark Hrovatic, unequivocal1y testified that Consol constructed the back
regulator under the assumption that, once completed, between 10,000 and 12,000 cfm of air
would flow through the drilled holes which constituted the regulator. !d. at 1999-2000.
However, MSHA's mining ventilation expert, Gary Wirth, concluded from his ventilation survey
that only 2,037 cfrn of air was exiting the drilled hole regulator following the accident, and that
no more than 2,828 cfm of air could have been going through the holes prior to the accident. I d.
at 2005, 2057. Wirth also concluded that the remaining volume of air in the gob was exiting
through the left side regulators, but he was unable to calculate the amounts that had been flowing
through each because they remained inaccessible after the accident. Id. at 2005-06. Importantly,
Consol does not contest Wirth's conclusions on this subject, and its expert actually confirmed
that Wirth's methodology was "in accordance with the best engineering principles." !d. at 2034;
Tr. VI 231.

243

Those two uncontested facts -that only a limited amount of air was flowing through the
back regulator, and that the remainder was exiting elsewhere on the section- provided MSHA
the framework in which to analyze the adequacy of the Consol bleeder system. MSHA found the
bleeder inadequate under the circumstances, on the theory that the lighter-than-air methane,
which was accumulating from pillaring in the back part of the section, migrated to the gob area
near the back regulator because that area was higher than the other side of the 2-112 section. 17
FMSHRC at 2006. According to Wirth, with most of the intake air taking paths of least
resistance to the alternative exit points provided by the left side regulators, the remaining limited
airflow through the back regulator was insufficient to dilute and render harmless the methane
accumulating in the gob. !d.; Tr. IV 85-88. William Uhl, MSHA's lead coordinator in the
accident investigation, agreed, stating that it was "common sense" that, given how the bleeder
system had been set up, the intake air would skirt the edges of the gob, leaving dead air space in
the gob in which methane could accumulate. Tr. IV 280-81. Thus, the Consol bleeder system
was not accomplishing its intended purpose of diluting and removing the methane from the
pillared area of the 2-1/2 section.
The judge, however, never analyzed the totality of the evidence to determine whether the
Consol bleeder was inadequate under the circumstances. Instead, he separately analyzed each
individual action taken by Consolleading up to the incident and ruled on whether Consol had
violated the Act or any regulation in taking each of those actions. Having found none of these
actions violative when taken in isolation, the judge discarded them as irrelevant to his analysis of
whether section 75.334(b)(1) was violated. The judge failed to take into account the extent to
which the change in direction of mining negatively impacted the adequacy of the bleeder system.
While that change in direction was not foreseen when Consol received approval of the April
supplement showing how it intended to ventilate the back part of the section (17 FMSHRC at
2022), its importance to the ventilation of the 2-1/2 section cannot be doubted, for it resulted in
the construction of the two left side regulators, and thus two additional inaccessible exit points
for the air on the section. The judge, however, simply focused on the lack of a ventilation plan
provision prohi~iting Consol from changing direction in mining the 2-1/2 section, and found that
silence dispositive on the issue of whether the change in direction led to an inadequate bleeder
system. 17 FMSHRC. at 2055. He reasoned that because the plan did not prohibit a change in
direction, the change could not have contributed to an inadequate bleeder system. !d.
I find the narrowness of the judge's inquiry disturbing. It is comparable to exonerating a
driver charged with reckless driving in severe weather merely because the driver had not
exceeded the posted speed limit. Regardless of whether the change in direction in mining was a
separate offense in and of itself, it clearly is relevant in determining whether Consol' s bleeder
system was adequate under the circumstances, which is what section 75.334(b)(l) requires.
Consequently, I would specifically instruct the judge to consider the negative impact posed by
the change in mining direction on the adequacy of the Consol bleeder system.
Even more disturbing is how the judge treated the testimony concerning the amount of air
that was passing through the drilled hole regulator prior to the accident. Wirth calculated that no

244

more than 2,828 cfin of air could have been flowing through tha~ regulator prior to the accident
(17 FMSHRC at 2005), while Hrovatic testified that he had calculated that approximately 6,000
to 7,000 cfm was passing through the drilled holes before pillaring made them inaccessible. ld.
at 1999. The judge did not resolve this apparent conflict, 1 and simply relied on Hrovatic's
different calculation as a reason to discredit Wirth because both used an anemometer in making
their respective surveys. Id. at 2057. In addition, after noting that there was no minimum
amount of air required by the ventilation plan, the judge dismissed the airflow through the back
regulator as simply being "a factor that is but one component of the total bleeder system." ld. at
2056·57. While true, this statement represents a profound misunderstanding of the Secretary's
position in this case.
The judge erred in several respects in his treatment of this very central issue. Most
importantly, he erred in failing to consider the significance of the amount of air passing through
the back regulator to the issue of whether the Consol bleeder system was adequate under the
circumstances. According to MSHA, at the time of the accident, the only air that was ventilating
the gob, and not just skirting it, was the air passing through the back regulator. Moreover, the
record is clear that it was not MSHA that determined the amount of air that should have been
flowing through that regulator, but Consol. Prior to the pillaring of the back part of2·112
section, Consol thought it important that the back regulator be constructed in a manner that
permitted 10,000 or more cfm of air to pass through the drilled holes. See id. at 1999·2000,
2028; Tr. V 93-94. The judge should have taken into account this evidence showing what the
operator believed was necessary for the bleeder system to be adequate under the circumstances.
The judge also failed to recognize that by the time of the trial, there no longer was a
disagreement between MSHA and Consol regarding the amount of air that was flowing through
the back regulator at the time of the accident, for Consol had abandoned any contention that
Hrovatic's measurements were correct, and did not contest the accuracy of Wirth's
measurements .. Consol's ventilation expert, Mitchell, agreed with Wirth's measurements and
described Wirth's methodology as "in accordance with the best engineering principles." ld. at
2034; Tr. VI 231. Consol 's defense at trial was not that a higher amount of air was passing
through the drilled hole regulator, but that the bleeder system was adequate even with only 2,000
cfm passing through that regulator, because, contrary to MSHA's assertion, the gob was also
being ventilated by the air that would then exit the other regulators. 17 FMSHRC at 2032; see
also Tr. VI 115 (Wyatt agreeing that only 2,000 to 2,500 cfm was going through drilled holes
prior to accident). Thus, the judge used airflow calculations on which even Consol no longer

1

The judge described Wirth's measurements as being "the amount of air that MSHA
assumed was passing through the regulator" (id. at 2057), but failed to directly address whether
or not that assumption was correct.

245

relied as a reason to discredit conclusions reached by Wirth with which Consol agrees? The
Commission simply should not ignore this blatant error in the judge's analysis. 3
In addition to failing to recognize the factual underpinnings of the Secretary's charge that
the Consol bleeder system was inadequate, the judge clearly erred in concluding that the
testimony of the Secretary's own witnesses established that the Consol bleeder system satisfied
the requirements of section 75.334(b)(l). He also erred in finding that the Secretary's ventilation
expert, Wirth, was not credible. The judge's failure to correctly state significant aspects of the
testimony of those witne'sses is yet further reason why I decline to affirm his ruling that no
violation occurred.
Without relying on Consol's evidence, the judge found that the testimony of two of the
Secretary's primary witnesses, Wirth and Uhl, established that the Consol bleeder system was
doing "precisely what a bleeder system is designed to do, as required by cited section
75.334(b)(l)[,]" i.e. , diluting methane with intake air and carrying the mixture away from active
workings and into a return aircourse. 17 FMSHRC at 2057. The judge, however, made a
number of significant errors in interpreting that testimony. When read in its proper context, the
testimony does not establish the adequacy of the Consol bleeder system. Rather, the testimony
supports the Secretary's contention that the bleeder system was inadequate.

It is plain that the judge erred in relying on Wirth's "belie[f] that methane was exiting the
gob through the regulator" as evidence that the bleeder system was functioning properly. 17
FMSHRC at 2057. First, Wirth clearly indicated his belief that, at the time of the accident, only
part of the gob gas was mixing with the intake air and exiting through the back regulator. See Tr.
IV 85-88; Gov't Ex. 59. As that testimony is not inconsistent with the Secretary's theory that the

2

Hrov·a tic was called as a witness not by Consol, but by the Secretary, and primarily for
the purpose of discussing the drilling of the holes. See Tr. III 64-91. No party has cited
Hrovatic's measurements as authoritative evidence of the amount of air that was flowing through
the holes prior to the accident.
3

In addition, after the judge pointed out that Wirth's measurements were contradicted by
Hrovatic's, he should have attempted to resolve the conflict and make a reasoned finding
regarding the amount of air passing through the back regulator prior to the accident. There was
ample evidence on which to draw. The judge was clearly mistaken in believing that Hrovatic's
measurement methodology was identical to that employed by Wirth. See 17 FMSHRC at 2057.
The record reveals that Wirth was more thorough than Hrovatic in measuring airflow through the
drilled holes. While both did use an anemometer to make their respective measurements,
Hrovatic used his to only measure one individual hole, while Wirth measured both inby and
outby the exit point of the drilled holes. ld. at 2005; Tr. IV 38. In addition, Wirth, but not
Hrovatic, used a pitot tube and magnahelic gauge to confirm and refine his measurements. Tr.
IV 26-28. The judge entirely ignored this evidence.

246

remaining methane was permitted to accumulate in gob area, it does not establish that the bleeder
system was performing in accordance with section 75.334(b)(l).
Second, the judge mistakenly relied on Wirth's testimony regarding the relatively low
levels of methane moving through the back regulator a week after the accident as evidence that
methane was sufficiently diluted before it entered the regulator prior to the accident. 17
FMSHRC at 2054. Wirth made it plain that, in his view, post-accident methane levels were not
indicative that the bleeder system was working properly prior to the accident, because much of
the previously accumulated methane had burned off as a result of the ignition, and methane was
not reaccumulating as quickly afterward because mining did not take place on the 2-112 section
during the intervening week. Tr. IV 124-30. The judge entirely failed to take this testimony into
account. 4
The judge also misconstrued that part of Wirth's testimony in which Wirth explained why
a gas-off of the continuous miner while it was in the No. 4 entry was an indication of an
inadequate bleeder system. Wirth testified that, at the time the miner was in the No.4 entry, the
location of it and the timbers that had been set were such that the intake air, after it went over the
miner, instead of penetrating the gob area, was taking the "path(s] ofleast resistance." Tr. IV 59.
He specifically identified one such path as being towards the right of the miner on the way to the
No.5 return entry. Tr. IV 60. Wirth stated that Bandy's 1% methane measurement around that
time, because it was a level higher than normally found on the section but lower than that which
would cause the miner to shut down, was an indication that the airflow to the right of the miner
resulted in part of the methane from the gob being swept into the right return. 17 FMSHRC at
2006-07.

It is from this testimony that the judge erroneously concluded that Wirth had
"acknowledged that the air flow pattern was sweeping the gob gas and reducing it to one percent
and diluting it with the air leaving the mine, and that the air sweeping the gob was diluting and
dissipating the methane that caused the miner machine to gas-off." 17 FMSHRC at 2057. The
record is plain that Wirth was testifying about only part of the methane accumulating in the gob
area. Tr. IV 59-67; ·Gov't Ex. 60. Wirth's statement was made in response to the judge's
question about the 1% methane found in the No. 5 entry at the time of the final gas-off, and
clearly referred to the methane that had migrated from the gob to the miner, causing it to gas-off.
Wirth explained that the right "air flow pattern was picking up the part ofthis body ofmethane
4

The judge also incorrectly analyzed the testimony of Uhl on a similar point. The judge
cited Uhl as. "believ[ing] that with only 2,000 cfm of air passing through the [back] regulator, a
methane-air mixture was exiting through the regulator holes and into the return air-course." 17
FMSHRC at 2057. However, Uhl merely testified that if pillaring had ceased for a period of a
weekend or more, 2,000 cfm exiting the back regulator may have been sufficient to dilute any
methane that was accumulating at that time. Tr. IV 216-17. He clearly was not conceding that
2,000 cfm through the back regulator was sufficient to dilute the methane that was constantly
accumulating while pillaring was occurring.

247

and bringing it down into the return. It was sweeping that body of gob gas." Tr. IV 61
(emphasis added). The judge was therefore mistaken in interpreting Wirth's testimony as
establishing the adequacy of the bleeder system, for, as Wirth stated, a large body of methane
remained in the gob area, unaffected by the intake airflow. Tr. IV 64-65; Gov't Ex. 60. 5 Wirth
never acknowledged that the airflow pattern was sweeping the gob gas. Rather, Wirth steadfastly
maintained that the airflow pattern was resulting in most of the air skirting the edge of the gob.
See Tr. IV 60-62, 65-66, 85-88. Clearly, Wirth was not describing an adequate bleeder system,
but one that was inadequate.
In light of the foregoing, the judge erred in concluding that the Secretary's witnesses, by
their testimony, established that the Consol bleeder system was adequate under section
75.334(b)(l). For that reason alone I would remand this case to the judge for proper
consideration of the testimony and evidence.
The judge's determination of no violation is also based on his fmding that Wirth was not
credible. The judge discredited Wirth without comparing Wirth's testimony to the testimony of
Consol's expert, Mitchell. In fact, the judge never addressed Mitchell's testimony concerning the
adequacy of the bleeder system. While the judge gave a number of reasons in support of his
credibility finding, his primary concern was that he found Wirth's testimony to be inconsistent
and contradictory. 17 FMSHRC at 2051, 2054, 2057. 6
While the Commission usually defers to judges on matters of credibility, it has also
recognized that there are exceptions to that general rule. See In re: Contests of Respirable Dust
Sample Alteration Citations, 17 FMSHRC 1819, 1881 n.80 (November 1995), appeal docketed
sub nom., Secretary oflabor v. Keystone Coal Mining Corp., No. 95-16 19 (D.C. Cir. Dec. 28,
1995) ("Dust Cases"). Because "[c]redibility involves more than a witness' demeanor and
comprehends an overall evaluation of testimony in the light of its rationality or internal
consistency and the manner which it hangs together with other evidence,"' the Commission has
recognized one such exceptional circumstance to be where a credibility determination is

5

Contrary to my colleagues' contention (slip op. at 16), I refer to Wirth's statement not
to indicate my acceptance of the Secretary's methane accumulation theory, but to emphasize that
Wirth's testimony is consistent with the Secretary's hypothesis. The judge may, on evidentiary
grounds, properly reject the Secretary's theory that a body of methane accumulated in the gob.
Here, however, the judge claimed to reject it on the basis of testimony that he incorrectly
considered to be inconsistent with the Secretary's views. See 17 FMSHRC at 2054, 2057.
6

Remarkably, my colleagues conclude, relying solely on the judge's own decision and
without any independent review of the record, that his credibility determination does not
contradict the evidence.
7

9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure§ 2586
(2d ed. 1995) (citing cases).

248

contradicted by the evidence. Dust Cases, 17 FMSHRC at 1881 n.80 (citing Medline Indus., Inc.
v. NLRB, 593 F.2d 788, 795 (7th Cir. 1979); NLRB v. Huntington Hospital, Inc., 550 F.2d 921,
924 (4th Cir. 1977)). Similarly, there is no reason to defer to a credibility finding based on an
improper understanding of testimony or evidence. See Irving v. United States, 49 F.3d 830, 83536 (1st Cir. 1995) (setting aside credibility-based fmding oftrialjudge because of"little
confidence" in judge's finding that reviewing court found to be based on testimony that judge
"fundamentally misconstrued"); Consolidation Coal Co. v. NLRB, 669 F.2d 482,488 (7th Cir.
1982) (noting that defe~ence not necessarily owed to credibility determination based on judge's
flawed analysis of evidence).
Many of the reasons the judge gave for discrediting Wirth were based on aspects of
Wirth' s testimony and conclusions which the judge found to be inconsistent with Wirth's
ultimate opinion that the Consol bleeder system was inadequate. See 17 FMSHRC at 2051 ,
2054. Because the judge clearly misinterpreted Wirth' s testimony, I would vacate the judge's
credibility determination and remand the case for reexamination in light of a proper analysis of
Wirth's testimony.8

8

Remand is also warranted because the judge's discussion of Wirth's credibility exhibits
an incomplete consideration of the evidence presented. For instance, one reason the judge gave
for discrediting Wirth as a witness was that Wirth, in conducting his post-accident ventilation
study, had not determined the amount of air that was exiting each of the inaccessible left side
regulators. !d. at 2052-53. The judge apparently assumed that Wirth needed to do so to ensure
the accuracy ofhis conclusions. However, there is nothing in the record on which to base such
an assumption; indeed, Wirth testified that as long as he could estimate the total amount of air
exiting those regulators, the exact amount that was exiting each regulator was irrelevant. Tr. IV
145-46. The judge should explain why Wirth needed to ascertain the amount of air exiting each
regulator to guaran.tee the accuracy of his conclusions.
The judge also discredited Wirth's post-accident ventilation study because certain
conditions on the 2-1/2 section were different prior to the accident. 17 FMSHRC at 2051. Given
the nature of the accident, that is not surprising, but it hardly constitutes sufficient reason to
doubt the accuracy of the post-accident study. If it did, most post-accident surveys would be
irrelevant in Commission proceedings, regardless of their overall probative value. I would
therefore have the judge explain how the specific differences in conditions on the 2-1/2 section
negatively impacted the reliability ofthe post-accident survey.
The judge also discredited Wirth based on Wirth's conceded failure to examine section
weekly examination books or the pre-shift or on-shift books for intake air readings for the days
preceding the ignition. !d. at 2053. The judge failed to explain what additional information, if
any, Wirth would have gained from those readings, given that Wirth had accepted Consol ' s
statement of the amount of intake air at the time of the accident. See Tr. IV 150-51.

249

In sum, the judge examined the evidence presented by the Secretary (while failing to
discuss the evidence presented by Consol) but, in so doing, misconstrued its significance. In fact,
the evidence on which he relied does not support his conclusion that the bleeder system was
adequate. 9 I believe that the case should be remanded to allow the judge to evaluate the
evidence, in light of the concerns expressed above, and to ensure that all relevant record evidence
is analyzed. 10
The judge also stated that, even if he were to find that Consol violated section
75.334(b)(l), he would not conclude that it had been established that the two individual
respondents cited for violating that regulation had "knowingly" done so. Jd. at 2063. However,
he gave no reasoning in support of that conclusion. A judge is required to state his rationale for
reaching findings and conclusions. Mid-Continent Resources, 16 FMSHRC at 1222. Given that
the judge misinterpreted the testimony presented on the alleged violation of section 75.334(b)( 1),

9

Although the Commission "do[es] not lightly overturn a judge's factual fmdings and
credibility resolutions, neither will [it] affirm such findings if there is ... dubious evidence to
support them." Consolidation Coal Co., 11 FMSHRC 966,974 (June 1989). While I fully agree
that the Commission is precluded from substituting its own analysis of the record "for the ALJ's
reasonable factual determinations" (Donovan ex rei. Chacon v. Phelps Dodge Corp., 709 F.2d
86, 94 (D.C. Cir. !"983)), a reading of the record demonstrates that the judge's factual findings
were not reasonable. Rather, as I have discussed above, they were based on fundamental errors
made in reviewing the evidence.
10

The Commission is bound by the terms of the Mine Act to apply the substantial
evidence test when reviewing an administrative law judge's factual determinations. 30 U.S.C. §
823(d)(2)(A)(ii)(I); Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (August 1994). That standard
of review requires that a fact finder weigh all probative record evidence and that a reviewing
body examine the fact finder's rationale in arriving at his decision. See Wyoming Fuel, 16
FMSHRC at 1627; Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June 1994) (citing
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89) (1951)). A judge must analyze and
weigh the relevant testimony, make appropriate findings, and explain the reasons for his
decision. Wyoming Fuel, 16 FMSHRC at 1627; Mid-Continent, 16 FMSHRC at 1222 (citing
Anaconda Co., 3 FMSHRC 299,299-300 (February 1981)).

250

I would vacate his section 11 0(c) determinations and remand to the judge with instructions to set
forth his reasoning. 11

11

Similarly, I would include in the remand the issues of whether any violation of section
75.334(b)(l) by Consol was S&S or due to unwarrantable failure. Having found that the
Secretary failed to establish that Consol violated section 75.334(b)(l), the judge had no reason to
address these issues in his decision.

251

Commissioner Marks, concurring with the separate opinion of Chairman Jordan and
dissenting:
I concur and join with Chairman Jordan in concluding that the judge's determination to
dismiss the section 75.334(b)(l) citation should be vacated and that the matter should be
remanded for an appropriate analysis.
With regard to the citation charging a violation of section 75.364(a)(2), I conclude that
the judge's dismissal of the citation should be vacated and that the matter should be remanded for
an analysis consistent with the below discussed conclusions. Therefore, I dissent from my
colleagues' conclusion to affirm the judge.
The judge based his dismissal of the violation on the conclusion that "cross-sectional
readings and daily monitoring at the BEP-1 0 location [i]s a reasonably proper method for
evaluating the cited bleeder in question." 17 FMSHRC at 2062-63. In so concluding, the judge
rejected one of the theories argued by the Secretary- that the cross-sectional method of
inspection itself was not compliant with the cited standard. See S. Post-Hearing Br. at 45-51.
However, the judge's analysis did not reach the Secretary's alternative theory. Having
determined that cross-sectional inspection of the bleeder was an acceptable method under the
standard, the judge failed to then examine whether that method- cross-sectional inspection was in fact being adequately completed as charged by the Secretary.1 See 17 FMSHRC at 205863.
My colleagues have determined to affirm the judge's dismissal of the citation, concluding
that the Secretary did not charge Consol with a failure to make a complete cross-sectional
inspection of the subject bleeder system. Slip op. at 10. Apparently, my colleagues conclude
that the only basis for violation charged in the citation was the prohibited use of a cross-sectional
inspection. I do not agree with that narrow interpretation of the scope of the citation.
1

The citation included the following:
Based on evidence obtained during this accident investigation, it is
determined that adequate weekly examinations were not being
made to determine the effectiveness of the 2-1/2 section bleeder
system. Statements given by company officials, Bob Wyatt,
superintendent, and Danny Crutchfield, mine foreman, were that no
one was examining the bleeder regulator and the area was
inaccessible. The approved ventilation map indicates that the back
side of the 2-1/2 section, MMU 015, can be examined. This is a
contributing factor to the methane explosion which occurred on
2-1/2 section, MMU 015, December 29, 1992.

17 FMSHRC at 1987 (emphasis added).

252

It is quite clear from the wording of the subject citation that Consol was on notice that the
Secretary concluded a violation occurred because "adequate weekly examinations were not being
made." 17 FMSHRC at 1987. Indeed, the disputed method of inspection- "cross-sectional"is not even stated in the text of the citation. However, my colleagues have concluded that the
citation can only be interpreted to charge one theory of liability - that the use of a crosssectional method of inspection was not permissible. Slip op. at 10-11. I do not agree. I have no
difficulty in concluding that the citation, as written, served to clearly place Consol on notice that
the Secretary found Consol's inspection of the bleeders to be "inadequate." As such, an
adequately represented operator would be on notice that a successful defense to the charge would
certainly include, not only that the cross-sectional method was permissible, but also, that such an
inspection was being "adequately" or completely performed! As such, I reject the notion that
Consol was not placed on notice of such liability because of the wording of the citation.
Beyond the wording of the citation, my colleagues further attempt to support their
conclusion to affirm the dismissal of the citation because "the trial record does not reflect that
Consol understood, or should have understood, that the allegation of an incomplete crosssectional reading was being litigated as a violation." Slip op. at 10. I do not agree.

An examination of the transcript of the testimony of MSHA Inspector Uhl clearly
establishes that MSHA's prosecution of this violation was based on the theory that a crosssectional inspection did not satisfy the requirements of the standard and, alternatively, if a crosssectional inspection was deemed to be in compliance, Consol had failed to adequately perform
such inspection. Moreover, careful review of the transcript also establishes that Consol's counsel
recognized during the hearing that the issue of whether the cross-sectional inspections were being
conducted in a complete and adequate manner was in dispute. On the cross-examination of
Inspector Uhl, Consol's counsel posed the following questions, which indicate that he recognized
that the adequacy of the cross-sectional inspections was also in issue:
Q
Now, was it your testimony earlier that readings
were not being done on the Two-and-one-half Section, crosssectional readings were not being done?

Q

Would it be fair to say that this book will indicate
that a fellow named Jay Browning did some readings on the Twoand-one-half on 12/21 /92?

Q

Would you agree that the reading on 12/9/92 is a
full cross-sectional reading for the Two-and-one-half?

253

Q
Now, Mr. Uhl, would you agree that on 12/21/92, it
appears that a Mr. Browning did a partial cross-sectional reading?

Q.
Were there full cross-sectional readings being done
prior to this one that is partially incomplete on 12/21/92?

Q

This is not a trick question. I just want to know if,
during this investigation, did you come up with any pattern or
indication that there was a pattern at the mine to not perform full
-now, you can argue about whether they are adequate - but full
cross-sectional readings there on the Two-and-one-half?

Q
The only [cross-sectional inspection] that was not
full was the last one, right?
Tr. IV 312-16.
Beyond the foregoing, which is sufficient to establish that Consol certainly recognized, or
should have recognized, that the "adequacy" of the cross-sectional inspections was in issue, the
Secretary's po~t-trial brief confirms the same point:
However, even assuming that cross sectional readings was (sic) an
approved and effective method, the operator was not even taking
proper cross sectional readings. Proper cross sectional readings
require that air readings be taken in the intake, return and belt
entries. (T-V- 116) However, the most recent entry in the weekly
examination book, dated December 21, 1992, shows that readings
were taken only in an intake entry and in the belt entry. (GX-47, p .
10) Mr. Crutchfield testified that these readings alone do not
provide the necessary information for determining how much air
was entering the gob. (T-V-118)
S. Post-Hearing Br. at 46-47.

254

In consideration of the foregoing, I cannot conclude that "the trial record does not reflect
that Consol understoo.d, or should have understood, that the allegation of an incomplete crosssectional reading was being litigated as a violation." Slip op. at 10.
Accordingly, I find that the dismissal of this citation by the judge should be vacated and
that the matter should be remanded for an analysis and determination of whether Consol was
performing adequate cross-sectional inspections.

Marc L coin Marks, Commissioner

255

•

Distribution
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
David J. Hardy, Esq.
Jackson & Kelly
1600 Laidley Tower
P.O. Box 553
Charleston, WV 25322

\ ...

Robert B. Allen, Esq.
King, Allen & Guthrie
1300 One Bank Center
P.O. Box 3394
Charleston, WV 25301
for Robert G. Wyatt

~·

Ricklin Brown, Esq.
Bowles, Rice, McDavid, Graff & Love
P.O. Box 1386
Charleston, WV 25325
for Danny Crutchfield
Administrative Law Judge George Koutras (retired)
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

256

'·

ADMINISTRATIVE LAW JUDGE DECISIONS

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

NAR

4 1996
CONTEST PROCEEDINGS 1

ROCK OF AGES CORPORATION,
Contestant

v.

Docket No. YORK 94-76-RM
Citation No. 4282251 ; 5/20/94

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

Docket No. YORK 94-77-RM
Order No. 4282252; 5/20/94
Docket No. YORK 94-78-RM
Order No. 4282253; 5/20/94
Docket No. YORK 94-79-RM
Order No. 4282254; 5/20/94
Docket No. YORK 94-80-RM
Order No. 4282255; 5/20/94
Docket No. YORK 94-81-RM
Order No. 4282256; 5/20/94
Docket No. YORK 94-82-RM
Order No. 4282257; 5/20/94
Docket No. YORK 94-83-RM
Order No. 4282258; 5/20/94
Rock Of Ages Lite Side
Mine ID 43-00024

1

Order Nos. 4282252, 4282253, 4282254 and 4282258 were vacated by the Secretary
prior to trial. Consequently, Rock of Ages Corporation's motion to withdraw its contest with
respect to these orders was granted at the bearing. Tr. I at 11-12.

257

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

CDnLPENALTYPROCEEDING
Docket No. YORK 95-55-M
A.c. :No. 43-ooo24-05518

V.

Rock of Ages Lite Side
ROCK OF AGES QUARRIES, INC.,
AIK/A ROCK OF AGES CORP.,
Respondent

REMAND DECISION
Before:

Judge Feldman

These matters concern four citations issued as a result of the Mine Safety and
Health Administration' s (MSHA's) accident investigation of the May 20, 1994, death of
Michael Bassett, a channel burner operator, at Rock of Ages Corporation's (ROA' s)
Lite Side Quarry? The citations involve 30 C.F.R. Part 56, Subpart E, which governs the use of
explosives at surface metal/nonmetal mines. MSHA charged ROA with violating 30 C.F.R.
§ 56.63 I 1(b), for permitting work other than work necessary to remove a misfire in the blast
area; 30 C.F.R. § 56.6306(g), for permitting work to resume prior to an adequate post-blast
inspection following the June 22, 1993, blast that resulted in the fatal misftres; 30 C.F.R.
§ 56.6904, for permitting an open flame within 50 feet of explosive material; and 30 C.F.R.
§ 56.6300(a), for inadequately training blasting personnel. MSHA alleged the violations were
significant and substantial in nature and the result ofROA's unwarrantable failure. The initial
decision in this case found that ROA committed the alleged violations as charged and that the
violations were attributable to ROA's unwarrantable failure. A total civil penalty of$180,000
was assessed. 17' FMSHRC 1925 (November 1995) (ALJ).
On February 24, 1998, the Commission affirmed the initial decision that the
violations occurred, and that they were the result ofROA's unwarrantable failure. Slip op.,
20 FMSHRC. _ . However, with respect to the appropriate civil penalty to be imposed, the
Commission, citing Sellersburg Stone Co., 5 FMSHRC 287, 292-93; affd 163 F .2d 1147
(?'h Cir. 1984), vacated the initial penalty assessment and remanded this case for a detailed

2

The Smith Quarry is a component of Rock of Ages Corporation's Lite Side Quarry.
The Smith and Lite Side Quarries have been referred to interchangeably in this matter. The Mine
Safety and Health Administration designated the Lite Side Quarry as the site of the fatality.
17 FMSHRC at 1926.

258

analysis of each of the six penalty criteria in section 11 O(i) of the Federal Mine Safety and Health
Act of 1977 (the Mine Act), 30 U.S.C. § 820(iV
In its remand, the Commission noted, in adjudicating the appropriate civil penalty, the
judge must make "[f]indings of fact on each of the criteria [to] not only provide the operator with
the required notice as to the basis upon which it is being assessed a particular penalty, but also
provide the Commission and the courts . .. with the necessary foundation upon which to base a
determination as to whether the penalties assessed by the judge are appropriate, excessive, or
insufficient." Slip op. at 21, quoting Sellersburg, 5 FMSHRC at 292-93.
Although all of the statutory penalty criteria must be considered in assessing the
appropriate penalty, it is not uncommon, due to aggravating or mitigating circumstances, for one
criterion to outweigh another when determining the ultimate penalty. For example, the
appropriateness of the penalty to the size of the operator may warrant a lower civil penalty
despite aggravating circumstances that ordinarily would justify a higher penalty. In this case, as
noted by the Commission in its remand, I based the imposed $180,000 civil penalty primarily
upon the "extremely high negligence and serious gravity associated with each of the violations."
!d. at 21. Consistent with the Commission's remand directive, a discussion of all of the penalty
criteria follows.
1. History ofViolations
The record reflects that ROA had a history of 32 violations during the two year period
preceding the fatal accident. The vast majority of these violations were designated as non S&S.
I view this as a good history of compliance, particularly in view of the fact that ROA is a large
operator with numerous employees. However, as discussed below, I do not view this as a
significant mitigating circumstance in view of the magnitude of negligence and the serious
gravity involved in this case.

3

Section 11 O(i) sets forth six forth six criteria to be considered in the assessment of
penalties under the Act:
[l]the operator's history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the
operator was negligent, [4] the effect on the operator's ability to continue in
business, [5] the gravity of the violation, and [6] the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.

259

2. Approvriateness of Penalty to Size ofthe Operator
ROA is a large operator with approximately 500 employees. It has gross sales of more
than $25,000,000 annually. It has neither been contended nor shown that the civil penalty
liability imposed in this case is disproportionately excessive with respect to ROA's size.

The ROA quarry process is set forth in the Commission's remand and need not be
repeated in detail. See /d. at 1-4. However, in order to appreciate the exceptionally high degree
of negligence in this case, it is important to briefly revisit ROA's experimental use ofpyrodex in
its quarry process.

As a threshold matter, it is this experimental nature of the sequential ignition of its
pyrodex blasts that should have alerted ROA to the importance of exercising a high degree of
care.5 Unlike its usual practice of using seismic cord (a continuous charge) as a blasting agent,
bags of pyrodex were placed at the front, in the middle, and in the rear oflift holes, without any
connecting detonating or ignition cord. The heat generated from the front bag, ignited by a squib
at the mouth of the lift hole, was supposed to travel through the lift hole and ignite the middle
bag. Similarly, it was anticipated the heat from ignition of the middle bag would travel to the
rear of the lift hole igniting the rear bags.
As discussed in the Commission's decision, the blasting process routinely occurs 35 days
into quarrying the bench. /d. at 2. The entire bench is ordinarily removed, in pieces,
approximately 4 7 days from the initial channel burning that starts the quarrying process.
/d at 3. Consequently, it takes approximately 12 days to remove a bench after it is blasted.
On June 22, 1993, a granite bench, measuring approximately 42 feet wide, 16 feet high
and 37 feet deep, was separated from the quarry floor using a pyrodex blast. This was
accomplished by loading four bags of pyrodex in every fourth of 80 lift holes, measuring
1% inches in diameter, drilled at six-inch intervals, 37 feet deep across the bottom of the face.
The loading pattern in every fourth hole was one pyrodex bag in front, one in the middle, and
two in the back placed approximately 32 to 37 feet from the mouth of the hole. /d. at 4.

4

Although the Commission has affirmed the unwarrantable failure findings for each of
the four violations in issue, it is essential to summarize the specific findings to provide the
required notice regarding the basis for the imposed civil penalties. Sellersburg, 5 FMSHRC
at292-93.
5

As a consequence of its unfamiliarity with pyrodex, ROA kept blasting reports for each
pyrodex shot. There are less than ten documented production uses of pyrodex by ROA in its
90 year history. See Gov. Ex. R-7; 17 FMSHRC at n.7.

260

Approximately eight days after the blast, around July 1, 1993, ROA' s derrick operator
was loading blocks of granite to be lifted out of the quarry from the June 22, 1993, blast site
when he saw four misfired bags of pyrodex that had shaken loose and were hanging from a
block. There were no squibs attached to the bags. !d. As these bags were discovered in the
midst of the 12 day post-blast quarry removal process, it is reasonable to conclude they were
bags placed in the middle of the lift holes. This conclusion is supported by the accident
investigation that revealed the June 22, 1993, blast resulted in nine pairs of rear bag misfires
( 18 total bags) in nine different lift holes. 6 Even, if the four discoverd bags were rear bags,
multiple rear misfires should have alerted ROA to a potential systematic failure of rear bag
ignition, as well as a potential for additional middle bag ignition failure. 17 FMSHRC at
1947-48.
The derrick operator reported the misfires to the blasting foreman who noted the misfires
on the June 22, 1993, blasting report. Gov. Ex. R-7. The uncontroverted testimony is that the
blasting foreman, who was not called to testify by ROA, stated he "forgot" to search for more
misfires. Slip op.at 4-5.
The four misfires without attached squibs discovered during the granite removal process
on July I, 1993, should have alerted ROA that there was a substantial probability, if not a
certainty, that at least eight rear bags in four different lift holes could not have ignited as planned.
Misfired rear bags are the most dangerous because the channel burner will torch this rear area
where the lift holes, previously drilled in the lower face of the quarried bench, become the
surface of the bench to be channel burned as the level of the quarry descends.
Misfires are an unavoidable consequence of blasting and do not, alone, establish
negligence. Although there is ample evidence reflecting ROA was highly negligent in its use of
pyrodex, particularly in view of the 26 percent misfire rate resulting in 22 misfired bags located
at the immediate scene of the fatality, the overwhelming justification for high penalties in this
case is ROA's failure to take any meaningful action to probe caprock in an effort to remove
additional misfires after the four misfires were found. In this regard, the Commission concurred
with the initial decision that the foreman's "failure to order any meaningful search for
unexploded pyrodex, such as probing caprock at the blast site, 'evidenced a callous disregard for
the hazards associated with misfires.'" !d. at 10, quoting 17 FMSHRC at 1948.

6

Bassett's torch passed within two feet at the rear of a lift hole covered by caprock that
contained two bags of misfired pyrodex moments before his torch ignited two other misfires
located three lift holes away. After the accident, 14 additional bags were found under caprock at
the rear of seven different lift holes. Slip op. at 5. "Caprock" is a layer of rock covering a lift
hole that remains in place, sometimes with misfires inside, if the post-blast lift and separation
from the quarry floor were not clean.. !d. at 3. All of the misfired bags recovered during the
accident investigation were found at the rear oflift holes. See Gov. Ex. R-10. Counting the four
misfires found by the derrick operator, there was a total of 22 misfires at the accident bench.

261

In analyzing the degree of negligence, I note ROA's argwnent that the perceived hazard
in this case is only clear in hindsight. Contrary to ROA's assertion, it does not require hindsight
to recognize that known misfires recovered during the bench removal process could not ·generate
the heat required to ignite the rear bags placed in the lift holes behind the recovered bags.
Similarly, hindsight is not essential to appreciate the potential exposure of a channel burner
operator who was certain to torch the rear of the bench below the June 22, 1993, blast?
As previously noted, the Commission has affirmed the unwarrantable failure findings in
this case. A finding of unwarrantable failure requires evidence of unjustifiable or aggravated
conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997,
2001 (December 1987). Unwarrantable failure is characterized by conduct evidencing "reckless
disregard," "intentional misconduct," "indifference," or a "serious lack of reasonable care." !d. at
2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (February 1991); see also
Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (71h Cir. 1995) (approving Commission's
unwarrantable failure test). Thus, the issue of unwarrantability must be based on what was
known, or what should have been known, at the time of the alleged unwarrantable act.
While hindsight may be a relevant mitigating consideration in cases of ordinary
negligence, hindsight is not material in cases of unwarrantable failure, as the operative
consideration is the nature and extent of the information available at the time of the alleged
unwarrantable conduct, i.e., the occurrence of misfires and the likelihood of additional misfires.
Consequently, I am not persuaded by ROA's attempt to use the issue of hindsight as a
justification for its failure to exercise common sense.
In short, ROA's conduct manifested a reckless disregard which, absent any significant
mitigating circumstances, warrants the imposition of the highest civil penalties contemplated by
the Mine Act. This exceptionally high degree of negligence, which caused ROA to ignore the
probability of misfires in close proximity to torch flames, is applicable to all four of the cited
violations tinder consideration.
4. The Effect ofthe Civil Penalty on ROA's Business
It has neither been contended nor shown that ROA's ability to continue in business, given
its multi-million dollar revenu.e, would be effected by the imposition of a $180,000 civil penalty
in this case.

7

The dimensions of benches essentially were unchanged as they were quarried in a
vertical direction down into the rock formation. The Commission noted "unexploded bags of
pyrodex would not lie harmlessly under piles of rock but would eventually be exposed as
benches were removed and pose a hazard as channel burning reswned." Slip op. at 10.

262

t:-:

...

5. Gravity

This case concerns a fatality that was caused by four violations of mandatory safety
standards that resulted in the foreseeable presence of torch flames in the vicinity of potential
misfires. One cannot imagine a scenario constituting more serious gravity.
6. Good Faith Abatement and Compliance
ROA cooperated with MSHA during its accident investigation, during which time
operations were halted and a total of 40 pyrodex misfires were found. As noted above, given the
degree of negligence and serious gravity, and, the exigent nature of the circumstances that
required an immediate cessation of operations, I do not view ROA's cooperation as a significant
mitigating factor.
Citation No. 4282251 and Order No. 4282257 concern ROA' s failure to act prudently
immediately after the June 22, 1993, blast that resulted in the fatal misfires. Accordingly, the
maximum $50,000 penalties are imposed for the failure of ROA to take any meaningful action to
search for additional misfires immediately after four misfires were discovered on July 1, 1993.
The two remaining orders concern violations that occurred in May 1994, approximately one year
later, when the victim began channel burning the bench below. The reduced $40,000 civil
penalties are imposed for these orders because of the slight mitigation associated with the time
period that elapsed between the initial June 22, 1993, blast that caused the misfires and the
May 20, 1994, fatal ignition of those misfires.
In view of the above I am reinstating the total $180,000 civil penalty imposed in the
initial decision. This civil penalty is comprised of: $50,000 for Citation No. 4282251/violation
of30 C.F.R. § 56.6311(b); $40,000 for Order No. 4282255/violation ofC.F.R. § 56.6306(g);
$40,000 for Order No. 4282256/30 C.F. R. § 56.6904; and $50,000 for Order No.
4282257/violation ofC.F.R. § 56.6300(a).

ORDER
Accordingly, consisten~ with the penalty criteria in section llO(i) of the Mine Act, the
$180,000 civil penalty in.this matter IS REINSTATED. Consequently, IT IS ORDERED that
Rock of Ages Corporation pay a civil penalty of$180,000 in satisfaction of the citation and
orders in issue within 30 days of this order, and, upon receipt of timely payment, these docketed
proceedings ARE DISMISSED.

~~~~SL·
~l!old

---

Feldman
AdntUrlsaativeLawJudge

263

Distribution:
Robin A. Rosenbluth, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Blvd., Suite 400, Arlington, VA 22203 (Certified Mail)
Henry Chajet, Esq., Patton Boggs, LLP, 2550 M Street, N.W., Washington, D.C. 20037
(Certified Mail)
·•

Harry Tuggle, Esq., United Steelworkers of America, Health & Safety Department,

Five Gateway Center, Pittsburgh, PA 15222 (Certified Mail)
David Gomo, c/o United Steelworkers of America, Amalgamated Local #4, P.O. Box 584,
Barre, VT 05641 (Certified Mail)
David Gomo, Union Stewart & Safety Committeeman, United Steelworkers of America,
P.O. Box 482, Barre, VT 05641 (Certified Mail)
/mh

264

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

MAR ~ 1 0 1998
GLENN SADLER,

DISCRIMINATION PROCEEDING
Complainant
Docket No. SE 97-227-D
• BIRM CD 97-05

v.
nM WALTER RESOURCES, INC.,
Respondent

No. 5 Mine
Mine ID 01-01322

ORDER OF DISMISSAL
Before: Judge Feldman
The record reflects the complainant, Glenn Sadler, was terminated by Jim Walter
Resources, Inc. (JWR), on June 7, 1989. The respondent asserts Sadler's discharge was based
on his unexcused absence from work on June 1 and June 2, 1989, that allegedly violated
Article XXII(i)(4) of the National Bituminous Coal Wage Agreement of 1988 between JWR and
the United Mine Worker's of America. Sadler did not report to work on June 1 and June 2, 1989,
because he had been arrested.
Sadler's discharge was the subject of a union grievance proceeding. The arbitration
decision supports JWR's contention that Sadler was terminated as a consequence of his
unexcused absence from work on June 1 and June 2, 1989. The arbitrator denied Sadler's
grievance on July 28, 1989. A copy of the July 28, 1989, arbitration decision was previously
provided to Sadler.
On May 19, 1997, approximately eight years after his employment was terminated by
JWR, Sadler filed the subject discrimination complaint with the Mine Safety and Health
Administration (MSHA) undex: section 105(c) of the Federal Mine Safety and Health Act of 1977
(the Mine Act), 30 U.S.C. § 815(c). Sadler's complaint stated:
I was not given the opportunity to take personal days off when I had an
emergency. My mental state was not stable at the time to make decisions, when
confronted later, I w~ not given the opportunity to rectify the situation.
MSHA conducted an investigation in response to Sadler's complaint. On July 29, 1997,
MSHA determined that Sadler's discharge by JWR did not violate section 105(c) of the
Mine Act. On August 12, 1997, Sadler filed his discrimination complaint on his own behalf with
this Commission. On November 3, 1997, JWR moved for dismissal of Sadler's complaint on
timeliness and substantive grounds.

265

On January 8, 1998, Sadler was ordered to show cause why his discrimination complaint
should not be dismissed as untimely, or, in the.alternative, why his discrimination complaint
should not be dismissed for failure to state a cause of action under section 105(c) of the
Mine Act. Specifically, Sadler was ordered to state why his complaint was not filed within the
60 day filing deadline, and why it was initially filed approximately eight years after his
termination. Sadler was also ordered to state whether he agreed with the decision of the
arbitrator that his absence from work on June 1 and June 2, 1989, was the reason for his
termination. If Sadler believed his absence from work was not the basis for his discharge, Sadler
was ordered to specifically describe any safety related protected activity he engaged in while
employed by JWR, including the dates of such activity, and whether and why he believed that
such activity was a factor in his discharge.
The January 8, 1998, Order to Show Cause was served on Sadler by certified mail. The
record reflects Sadler received the Order on January 12, 1998. The Order stated, "Sadler's
written response must be filed within 21 days of the date of this Order. Sadler's failure to
submit a timely response may result in the entry of a default decision dismissing his
discrimination complaint (emphasis in original)." To date, Sadler has failed to respond to the
Order to Show Cause. In view of Sadler's failure to respond, on February 17, 1998, JWR filed
a Motion to Dismiss. Sadler has failed to oppose JWR's request for dismissal.
Timeliness Issue
Generally stated, section 105(c) of the Mine Act prohibits a mine operator from
discharging a miner as a consequence of any safety related activities engaged in by that miner
that are protected by the Act. Section 105(c)(2) of the Mine Act requires a complaining miner to
file his discrimination complaint with MSHA within 60 days of the alleged discriminatory
discharge. While this 60 day filing period is not jurisdictional in nature, there is a strong public
policy against consideration of stale claims that invariably involve faded memories, unavailable
witnesses and lost records. Schulte v. Lizza Industries, 6 FMSHRC 8, 12-13 (January 1984)
(citations omitted). Thus, while reasonable filing delays may be excused on a case-by-case basis
upon a showing of justifiable circumstances, Sadler's eight year filing lapse requires a showing
of extraordinary circumstances to avoid dismissal of his complaint as untimely. Sadler's failure
to provide any basis for his failure to file his discrimination complaint in a timely manner
warrants the dismissal of his complaint as untimely.
Substantive Issues
A miner alleging to be a victim of prohibited retaliatory conduct bears the burden of
proving a prima facie case of discrimination under section 105(c) of the Mine Act. In order to
establish a prima facie case, a miner must establish that he engaged in protected activity, and,
that the adverse action complained of (Sadler's discharge), was motivated in some part by that
protected activity. See Secretary on behalfofDavid Pasu/a v. Consolidation Coal Co. ,
2 FMSHRC 2786,2797-2800 (October 1980), rev'd on other grounds sub nom. Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalfofThomas Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apri11981).

266

Sadler's absence from work on June 1 and June 2, 1989, caused by his incarceration, is
not protected by section lOS(c) of the Mine Act. Moreover, Sadler's complaint fails to allege
that he engaged in safety related activity protected by the Mine Act, or, that his June 7, 1989,
discharge, immediately following his imprisonment and absence from work, was in any way
motivated by activity entitled to Mine Act protection. Accordingly, Sadler~s complaint fails to
state a cause of action under the anti-discrimination provisions of section 105(c) of the Mine Act.

ORDER
In view of the above, Sadler's May 19, 1997, discrimination complaint is dismissed as
untimely. Alternatively, Sadler's May 19, 1997, discrimination complaint IS DISMISSED
for failure to state a cause of action. Accordingly, the respondent's Motion to Dismiss
IS GRANTED, and this discrimination proceeding, docketed as Docket No. SE 97-227-D,
IS DISMISSED with prejudice.

Jerold Feldman
Administrative Law Judge
Distribution:
Mr. Glenn Sadler, 5120 Juanita Circle, Birmingham, AL 35228 (Regular and Certified Mail)
R. Stanley Morrow, Esq., Jim Walter Resources, Inc., P.O. Box 133, Brookwood, AL 35444

(Certified Mail)
R. Stanley Morrow, Esq., 517 Beacon Parkway West, P.O. Box 26511, Birmingham, AL 35260

(Certified Mail)
\mh

267

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

MAR 1 0 1994
DISCRIMINATION PROCEED£NG

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
vn behalf of CLAY BAfER
Complainant

Docket No. WEST 97-96-DM
J & J Pit

Mine I.D. 05-04517

v.
DURANGO GRAVEL,
Respondent

SUPPLEMENTAL DECISION AND FINAL ORDER
Appearances:

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

Before:

Judge Manning

This proceeding was brought by -the Secretary of Labor on behalf of Clay Baier against
Durango Gravel under section I 05(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. §815(c) (the "Mine Act"). In a decision entered on January 27, 1998, I found that Mr.
Baier·s discharge from his employment violated section 105(c) of the Mine Act. 20 FMSHRC
59. Counsel for the Secretary filed a brief setting forth the amount of back pay she contends that
Mr. Baier is entitled to, the calculations she used to arrive at the back pay amount, and the civil
penalty that she contends should be assessed under the penalty criteria of section llO(i) of the
Mine Act. Durango Gravel filed a response.

l. MOTION FOR RECONSIDERATION
On February 3, 1998, Durango Gravel filed a motion asking that I reconsider my decision
granting the complaint of discrimination. The Secretary opposes this motion. Durango Gravel
states that I made a number of errors. First, it argues that I incorrectly determined that Jim
Helmericks, the owner of Durango Gravel , was hostile towards MSHA and Mr. Baier's

268

conversations with MSHA Inspector Williams. 20 FMSHRC at 66. Mr. Helmcricks contends
that he never exchanged harsh words with MSHA; The record shows that Mr. Helmericks
believes that Williams should not have discussed safety issues with Baier and that Helmericks
considered such conversations to be a threat to his ability to manage the pit. I recognize that
Durango Gravel was not so hostile towards MSHA that it did not cooperate during inspections.
Nevertheless, it was hostile when employees attempted to discuss safety issues with MSHA.
Second, Mr. H~lmericks maintains that he never ordered or required Baier to dig from the
toe of the highwall. Mr. Helmericks proceeded witho~t counsel in this case. On a number of
occasions I attempted to advise Mr. Helmericks about the legal issues in this case and how he
should attempt to establish that Durango Gravel did not discriminate against Mr. Baier. 20
FMSHRC at 69. The hearing lasted about a day and a half and Mr. Helmericks chose to devote
most of his resources attempting to establish that the Secretary's witnesses were not credible. In
the motion for reconsideration, Durango Gravel asks that I "see through" its "crude defense and
somewhat misguided approach" at the hearing and find that Mr. Baier was not a credible witness.
(Motion at 5). J am required to base my decision on the evidence presented at the hearing. I
cannot make findings based on what J think "really happened'' unless these findings are
supported by evidence presented at the hearing. Durango Gravel did not present facts to establi sh
that the testimony of Secretary's witnesses should not be given any credibility.
In my decision, J found that Mr. Baier's termination was motivated at least in part by his
protected activity. I further found that Baier also engaged in activi ty that was not protected under
the Mine Act. I determined that Durango Gravel did not establ ish that it would have terminated
Mr. Baier for his unprotected activity alone. Mr. Helmericks was given the opportuuity to
present evidence on this issue at the hearing. The motion for reconsideration does not set forth
sound reasons to alter my fi ndings and conclusions set forth in the decision of .January 27. For
the reasons set forth above, the motion for reconsideration is DENIED.

II. BACK WAGES
Mr. Baier did not ask for reinstatement, but seeks back wages for a period of three weeks
and three days. Part of this back pay is for one week and three days between July 2 1 and July 31.
1996, when he worked for Dur~go Gravel but was not paid. The second part is for the two
weeks foll owing his August I termination when he was not employed.
Baier testified that he was paid $ 11 per hour at the time of his discharge and that he
worked an average of 50 hours a week. (Tr. II , 13, 69). The Secretary contends that he should
be awarded $825 for the period prior to his termination. The Secretary contends that he should
be awarded $1.100 for the two-week period he was out of work.
Durango Gravel presented Baier's time cards for the period between July 2 1 and July 31.
The time cards show that Baier worked 5 1 hours the first week and that his gross pay was $622.
The hourly rate is shown as $16.50 for those hours above 40 hours a week. The time cards show

269

that he worked 25 ·hours the partial week and his gross pay would have been $275.00. The total
would be $897. Durango Gravel contends that Mr. Baier caused more than $3,000 damage to its
equipment while he worked at the pit and it seeks to withhold any pay for this period as partial
payment for this damage.
Durango Gravel also contends that Mr. Baier was unemployed for only one week
·following his termination at the pit. It attached to its brief a payroll statement from K2
Enterprises showing that Baier worked there on August 8 and 9, 1996. Durango Gravel also
maintains that Baier worked an average of 40 hours a week during the summer of 1996. It
attached time cards to its brief in support.
As I previously hel<:f, Durango Gravel is not entitled to deduct from the back-pay award
the amount of any damage Baier caused to equipment. 20 FMSHRC at 71-72. The evidence
shows that Baier damaged a loader about ten days prior to his termination. It is clear that the
damage was accidental. There was conflicting testimony as to whether Mr. Helmericks was
concerned about this accident at the time. 20 FMSHRC at 69-70. Mr. Helmericks did not tell
Baier that he would deduct the cost of repairing the damage from his wages. The damaged
loader was not repaired until about a week before the hearing in this case. (Tr. 309). I find that
there is insufficient evidence that Durango Gravel would have required Baier to pay for the
damage if he had not been terminated. l could find no Commission cases in which an
administrative law judge deducted accidental damage to equipment from a back-pay award.
Based on the payroll records provided by Durango Gravel, I find that Baier is entitled to
$897 in back pay for the period July 21 through July 31, 1996. With respect to the period after
Baier' s termination, the record contains little information. His starting date at K2 Enterprises
was not established by the Secretary. (See, for example, Sec. Response to Interrogatories at 2).
All time frames were rough estimates and Mr. Baier's estimates of time and dates at the hearing
were quite vague and unreliable. I credit Durango Gravel's evidence that Baier worked about 40
hours per week~ on average. 1 also credit its evidence that Baier was not unemployed for a full
two- week period following his discharge. r hold that Baier is entitled to 50 hours of back pay
for the period after his discharge, which is $550. Accordingly, the total back-pay award is
$1,447.
.
The Commission has held that a miner is entitled to interest on a back-pay award.
Arkansas-Carbona Co., 5 FMSHRC 2040, 2051-53 (December 1983)~ modified by Clinchfield
Coal Co. I 0 FMSHRC 1493, !504-06 (November 1988}. The Commission uses the short-term
Federal rate applicable to the underpayment oftaxes. 10 FMSHRC at 1505. The Commission
uses the following formula to calculate interest: Amount of interest= The calendar quarter's net
back pay x number of accrued days of interest from the last day of that quarter to the date of
payment x the daily short-term rate interest factor. 5 FMSHRC at 2052. The relevant short-term
rate is 9 percent and the daily short-term rate interest factor is .00025. Using this formula, the
amount of interest owed through March 6, 1998, is $187. Thus, the total award is $1,634,
provided that the amount owed is paid within 40 days of the date of this decision.

270

Ill. CIVIL PENALTY
The Secretary proposes a civil penalty of $2,500. Section II O(i) of the Mine Act
provides that in assessing a civil penalty "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." 30 U.S.C. ~ 820(i).
The record shows that other employees had complained about unsafe practices at the
mine and that a formal complaint was filed in 1996 under section l 03(g) of the Mine Act.
Durango Gravel does not have any previous history of violations of section l 05(c) of the Mine
Act. MSHA Inspector Royal Williams testified that the J&J Pit had been issued more citations
than is typical for a mine of its size in the area. (Tr. 230). Based on this evidence, I find that
Durango Gravel's history of previous violations is moderate to high.
Durango Gravel is a sole proprietorship owned by James Helmericks. The J&J Pit
consists of a pit and a small crusher. The crusher is old and, according to Mr. Baier, it could
only operate about eight hours per week. It broke down on a regular basis. Durango Gravel
employed only two individuals at any given time. One of these employees was often Mr.
Helmericks' son. Production was very low and the operation was not very profitable. I find that
Durango Gravel is a very small operator.
The Secretary contends that Durango Gravel was highly negligent. I disagree. The
evidence shows that Mr. Helmericks was concerned that Baier was operating the loader on the
top of the high wall without his authorization. Although I concluded that Durango Gravel
discriminated against Clay Baier, I found the case to be close. Baier did not have a protected
right to operat~ equipment without the permission of Mr. Helmericks. I held for Mr. Baier
because Durango Gravel did not establish that it would have terminated Mr. Baier for his
unprotected activities alone. 20 FMSHRC at 69-71. It was this unprotected activity that was
particularly troubling to Mr. Helmericks. Accordingly, I find that Durango Gravel's negligence
was moderate to low.
I find that the proposed penalty would have a deleterious effect on Durango Gravel 's
ability to continue in business. As stated above, Durango Gravel is a very small family-run
business. The description of Durango Gravel's operations offered by both Helmericks and Baier
indicate that it is not a very profitable operation. The crusher is down for repair most of the time
and the amount of throughput is quite low. Mr. Helmericks testified that the company is
''running on fumes" and that it has not been operati ng much since late 1996. (Tr. 305). In its
brief. Durango Gravel alleges that it will be "faced with bankruptcy" if the proposed penalty is
assessed. (DG Br. at 4). The record does not establish that bankruptcy is imminent, but it does
show that the operation is marginal at the current level of capitalization and that a penalty of
$2.500 would seriously affect its ability to continue in business.

271

I find that the violation in this case is serious. Operating a loader under a highwall is
reasonably likely to cause death or serious injury to. the loader operator assuming continued
mining operations.
Whether Durango Gravel demonstrated good faith in attempting rapid compliance after
notification of a violation in this case is difficult to analyze. Nothing in the record indicates that
Durango Gravel's contest of the complaint of discrimination was frivolous or was filed in bad
faith. It honestly believe~ that it terminated Mr. Baier for reasons that were not protected by the
Mine Act. Much of the misunderstanding between Baier and Helmericks was caused by a failure
of communication. On the other hand, Durango Gravel had been notified by MSHA that
employees were not to dig into highwalls at the mine. As I stated in my decision, this practice
did not stop. After reviewing the record and the arguments of the parties, I conclude that it has
not been established that Durango Gravel failed to demonstrate good faith in this case.
Taking into consideration all of the penalty criteria, I conclude that a penalty of $100 is
appropriate in this case. In reducing the penalty, J rely primarily on the fact that Durango Gravel
is a very small operator and that the proposed penalty would have a serious effect on its ability to
continue in business. The operator's small size was especially important in my analysis.

IV. ORDER
A. Durango Gravel is ORDERED TO PAY Clay Baier the sum of $1.634 within 40
days of the date of this decision. This payment shall be subject to normal withholding as
authorized by law.
B. Durango Gravel is ORDERED TO PAY the Secretary of Labor a civil penalty in the
amount of$ I 00 ~or its violation of section lOS(c) within 40 days of the date of this decision.
C. My decision of January 27, 1998, and this supplemental decision and order shall
constitute my final disposition of this proceeding.

Richard W. Manning
Administrative Law Judge

272

Distribution:

Kristi Floyd, Esq., Officeofthe Solicitor, U.S. DepartmentofLabor, 1999 Broadway, Suite
1600, Denver, CO 80202-5716 (Certified Mail)
Mr. Jim Helmericks, Durango Gravel, 995 Highway 3, Durango, CO 8 I 30 l (Certified Mail)

RWM

273

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

MAR~ 1 8 1998
CLARK ELKHORN COAL COMPANY,
Contestant

CONTEST PROCEEDINGS

v.

Docket No. KENT 97-77-R
Citation No. 4495292; 11-26-96

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,
Respondent

Sunset Mine No.1
Mine ID: 15-11905
Docket No. Kent 97-176-R
Citation No. 4224867; 03/12/97
Ratliff Mine No. 110
Mine IP 15-16121
DECISION

Appearances: William C. Miller, Esq., Jackson & Kelly, Charleston, West Virginia, for
the Contestant;
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Respondent.
Before:

Judge Barbour

These contest proceedings arise under section lOS(d) of the Federal Mine Safety and
Health Act of 1977 (Mine Act or Act) (30 U.S.C. § 815(d)) and.involve two citations issued
pursuant to section 104(a) of the Act (30 U.S.C. § 814(a)). Each citation alleges Clark Elkhorn
Coal Company (Clark Elkhorn) Violated a mandatory safety standard for underground coal
mines. Clark Elkhorn contested the validity of the citations, the Secretary answered, the matters
were assigned to me, and I consolidated them for hearing and decision. Upon the parties' joint
motion, the proceedings were continued pending the decision of Commission

274

Administrative Law Judge William Pauver in Apex Minerals, Inc., 19 PMSHRC 796 (April
1977). 1 The parties hoped the decision would provide them with a basis to resolve their
differences. It did not, and the hearing was rescheduled. At the hearing, counsels announced the
Secretary had vacated the citation contested in Docket No. KENT 97-77-R and Clark Elkhorn
bad withdrawn its contest (~Joint Exh. 1; Tr. 8)_2 Thus, the only issue at trial was the validity
of Citation No. 4224867, as contested in Docket No. KENT 97-176-R.

DOCJ(ET NO. KENT 97-176-R
THE CITATION
Citation No.
4224867

~

3/12/97

30 C.P.R.§
75.1711-2

The citation states:
The mine operator has failed to seal all mine openings.
There are three openings located on Rockhouse Pork and there are
seven openings on Greasy Creek that are not sealed. All these
openings are ... interconnected with the mine. The mine was
abandoned on November 20, 1996 (Gov. Exh. 1)_l

1
/ Apex, involved two mines, Mine No.4 and adjacent Mine No.7.

In the past both mines
had been operated by Eastern Coal Corporation. Apex Minerals, Inc. (Apex) purchased the
mining rights to Mine No. 4 and applied to MSHA to operate the mine. At that time, Mine No. 7
and Mine No. 4 were connected underground. Mine No. 7 mine had been used as part of a
bleeder system to ventilate Mine No. 4, but Mine No. 7 long had been shut down when Apex
took over Mine No. 4.
Once Apex was in control of Mine No. 4, it completely separated the two mines by
installing underground seals between them. Subsequently, water burst from a surface opening of
Mine No.7, and MSHA cited Apex for a violation of30 C.P.R.§ 75.334 (b)(2), a mandatory
safety standard requiring, in part, that worked-out areas be sealed. Apex contested the citation,
arguing that after the underground seals were installed, Mine No. 7 was not a part of Mine No. 4
and Apex was not responsible for the outburst or for failing to seal the opening.
Judge Fauver agreed. He stated the construction of the underground seals raised ''the
legal issue whether a mine that is connected underground with another mine may seal off its
~nnection and thereby become a separate mine with no responsibility for the adjoining mine"
(19 FMSHRC at 801). He concluded Apex had a "legal right to seal off its mining rights
boundary and thereby become a separate mine without responsibility or liability for conditions
in ... Mine No. 7" (19 PMSHRC at 803). The Secretary did not appeal the decision.
2
/ I accepted the withdrawal and advised the parties I would dismiss Docket No.

KENT 97-77-R in this decision (Tr. ?>.

3/ The Secretary gave the company until Aprill4, 1997, to abate the alleged violation.

Subsequently, the Secretary agreed to extend the time at least until this decision issued (Tr. 113).

275

THE STANDARDS
30 C.F.R. § 75.1711 states:
[I']he opening of any coal mine that is declared
inactive . . . or is permanently closed, or abandoned for more than
90 days, shall be sealed by the operator in a manner prescribed by
the Secretary.
Section 75.1711-2 implements section 75.1711 , and specifies the manner in which slope or drift
mine openings shall be sealed. It requires they be "sealed with solid, substantial, incombustible
material, such as concrete blocks ... or .. . be completely filled with incombustible material
·
for . . . at least 25 feet into such openings."

THE ISSUES
The fundamental issues are whether the cited openings were part of a mine that was
abandoned by Clark Elkhorn for more than 90 days; and, if so, whether the openings were sealed
or completely filled as required. As in Apex, the key to resolving the.issues is to determine
whether works that had been connected underground were part of the single mine after they were
separated by the instal1ation of under&round seals.
THE EVIDENCE

MSHA Inspector Douglas Looney was the Secretary's first witness. He testified the company abandoned the Ratliff No. 110 Mine in late 1996. (The mine is located in MSHA
District 6.) On March 12, 1997, more than 90 days after the mine was abandoned, Looney went
to the mine "to check all openings within [its] boundaries" (Tr. 15). At the mine, he met with
John Swiney, the mine operations manager. Looney advised Sweeney that he, Looney, needed
to travel to all of the mine openings to determine if they had been sealed in accordance with
section 75.1711-2 (hi.). Looney and Swiney traveled together. As Looney described it,
''we ... [rode] in a vehicle to acertain point. Then we . .• park[ed] the vehicle, [got] out and
walk[ed] up on the mountabl to where the old openings were" (Tr. 16).
Looney identified a copy of the Ratliff No. 110 Mine map. For all intents and purposes it
was the same as the map he used when conducting the inspection (Gov. Exh. 2; Tr. 18-19). The
map showed the mine's ventilation system (Tr. 19). It also showed two different and adjoining
mined areas. Looney believed the RatliffNo. 110 Mine consisted of these two areas. One area,
the "old works," had been developed and mined several years ago by a company other than
Clark Elkhorn. The other area, the "new works," had been developed and mined relatively
recently by Clark Elkhorn.

276

Originally, the two areas had been completely separate mines. However, when retreat
mining began in the new works, the company chose to cut into the adjacent old mine and to use
the old works as part of a bleeder system ventilating the retreat mining. Return air from the new
works circulated through the old works and exhausted through several of the openings of the old
mine (Tr. 45). Before the company cut into the old workings, it obtained approval from MSHA
(Tr. 38-39).
The old works bad constituted a drift mine, and the old mine openings were parallel to, or
practically level with, the coal seam (Tr. 46). The company tested the effectiveness of the
bleeder system at some of the old openings (Tr. 21, 23-25). The company referred to these
openings as evaluation points or "EPs.~,.
Clark Elkhorn was not required to cut into the old works in th'at there were alternative
ways to establish the bleeder system (Tr. 25). However, it was safer to use the old works for
ventilation and to evaluate the bleeder system from the surface EPs (fr. 39). It was also
cheaper. Indeed, according to Clark Elkhorn's Safety Coordinator Roger Cantrell, because of
safety considerations, MSHA encouraged the use of surface EPs (Tr. 103). Looney agreed it was
"fairly common" in District 6 to use adjacent old works as part of a mine's ventilation system
(Tr. 38-39).
There came a time, however, when the company finished retreat mining and no longer
needed to use the old works for ventilation. The company therefore installed underground seals
between the new and old works (Tr. 31, 45; ~Gov. Exh. 2 at yellow line labeled ''Underground
Seals J.S."). The underground seals completely separated the old and new works and nothingneither miners, nor equipment, nor air- could pass between. Functionally, it was as though the
old mine had been reconstituted. Once the seals were installed, Clark Elkhorn stopped using the
surface openings as evaluation points<= Tr. 32, 101).
In Looney's opinion, even though the underground seals completely separated the new
and old works, Clark Elkhorn remained responsible for the old works (Tr. 32.). He believed the
new and old works together constituted one mine (Tr. 32-33). He stated, ~'I see [the old works] ·
as just a continuation of the mine" (Tr. 41). In other words, Clark Elkhorn's use of the old works
and of their openings made the old works a permanent part of the RatliffNo. 110 Mine.
With regard to the openings he inspected on March 12, Looney acknowledge he and
Swiney did not travel to all of the openings of the old mine because of"time restraints" (Tr. 27,
28). Therefore, Looney testified specifically about two openings, EP1 and EP2. Both were on
the Greasy Creek side of the mine~ Gov. Exh. 2; Tr. 21, 25). EP1 was partially filled with

4

/ When asked to describe the tests conducted at the EPs, Looney stated, "They made
methane tests, [and] detennine[d] if air was moving in the proper course and velocity and oxygen
tests and stuff like that" (Tr. 22). The tests were conducted weekly (Tr. 23, 49-50).

277

dirt and debris. Ventilation pipes (18 inch corrugated plastic pipes) protruded out of the opening
through the dirt (Tr. 21, 36). The pipes, which were 10 to 12 fe.et long, also extended back from
the opening, through the dirt, and into the atmosphere of the old works (Tr. 64). The "fill" that
partially closed the opening did not extend from the mouth of the opening into the mine for
25 feet as required by section 75.17 J1-2. EP2 also had -18 inch ventilation pipes protruding from
the dirt and debris that partially closed the opening.5 EP2 also had "fill" that did not extend
25 feet into the mine ~ Gov Exh 2; Tr. 26, 36-37).
Looney believed that to comply with section 75.1711-2 the company should have packed
dirt or other fill from the mouths of the openings at least 25 feet into the old works: He also
believed the ends of the ventilation pipes should have been sealed or guarded (Tr. 36-37, 47).
Looney acknowledged to seal or properly fill some of the openings it might have been necessary
to alter the surface of the land (Tr. 44, 46).6 Looney did not know if the company had "surface
rights" to make necessary alterations, nor did he consider whether or not the company had such
rights when he issued the citation (Tr. 44). Looney also thought he and Swiney visited openings
other than EP 1 and EP2 that had not been used as EPs and that had not been sealed as required,
but Looney could not specify on the mine map where these other openings were (Tr. 27, 29).
In Looney's opinion the company' s failure to comply was not a hazard to underground
miners. The only persons endangered were those who, for whatever reasons, might try to crawl
into the openings (Tr. 42, 48). Looney considered this unlikely because the openings were
"pretty much in isolated areas" (Tr. 46).
Looney testified, the company was at most moderately negligent in failing to seal the
openings (Tr. 42-43). He did not know of anyone who told the company it was responsible for
sealing the openings prior to him issuing the citation (Tr. 45). Nevertheless, the citation was not
unique. Looney stated he issued similar citations for similar conditions, although he could not
recall when, where, or their number (Tr. 40-41).
Swiney, who testified for Clark Elkhorn, worked for the company for 23 years. He
explained the Ratliff.No. 110 Mine started operating in 1987 and the old works were then in
existence (Tr. 52, 61). (According to Cantrell, the old works were cut "in the 40s or 50s, maybe
early 60s" (Tr. 103).) Swiney testified the company submitted to MSHA plans to cut into the old
works and establish the EPs for the bleeder system (Tr. 52). The plans were approved, but prior

5/ According to Swiney, the pipes extended out from the openings so miners did not have

to go under overhanging highwalls to evaluate the bleeder system ventilation. Rather, they

conducted the bleeder system tests at the outby end of the pipes (Tr. 62).
6/ Cantrell asserted the company would have bad to build roads to get needed personnel

and materials to the sites (Tr. 1OS).

278

to cutting into the works no one from MSHA told Swiney the company would have to seal the
openings to the old works. Nor could he recall hearing of a situation where an operator had been
·
required to seal such openings (Tr. 53).
As best Swiney could remember, the underground seals separating the new and old works
were constructed in 1995 (Tr. 54). Before constructing the seals, it was again necessary to
receive MSHA's approval. Nothing in the submission the company made to MSHA to obtain
approval indicated the company was going to seal the surface openings after the underground
seals were constructed; nor was the company advised it would have to do so (Tr. 54·55).
As opposed to Swiney, Cantrell testified he was aware MSHA believed the openings
would have to be sealed. It was during "the latter part of '95 or first part of '96"' that Cantrell
"encounterec MSHA saying that [it] would require EPs where we'd used old mines to be sealed"
(Tr. 100). Cantrell recalled a person from the MSHA ventilation department "started talking
about the EP would have to be sealed" (Tr. 105).7 This was after the company had cut into the
old works (Tr. 108). However, no one from MSHA indicated sections 75.1711 and 75.1711-2
required the openings to be sealed (Tr. 102).
MSHA Inspector Thomas Griffith, who was called as a witness by Clark Elkhorn, has
been employed by MSHA for 22 or 23 years, the past 8 as a District 6 specialist in coal mine
ventilation. As a ventilation specialist he is responsible for rev~ewing operators' ventilation
plans (Tr. 76). If an operator is going to use old works as part of a ventilation system, MSHA
has not required the operator's ventilation map to indicate that the surface openings of the old
works will be sealed (Tr. 78, 80-81). Griffith could not recall ever telling anyone at
Clark Elkhorn the openings had to be sealed (Tr. 82). On the other hand, ''three and four and five
year[s] ago" he advised several other companies that section 75.1711·2 required the sealing of
such openings, but he only gave the advice to operators whose mines liberated high volumes of
methane (Tr. 81·82, 93).
William Sfmpkins, a former MSHA ventilation specialist in District 6, also testified for
Clark Elkhorn. When he retired from MSHA in September 1994, he ~ been a ventilation
specialist for 16 years (Tr. 11 0). Simpkins could not remember any time the agency used
section 75.1711 to require an operator to seal openings in old works when the openings had been
used as part of another mine's ventilation system (Tr. 111).

7
/ Q.

So you were on notice as of the last part of '95 or early '96 that MSHA was
changing its policy, is that correct?
A. That's the first time I heard of those EP's had to be sealed (Tr. 106).

279

RESOLUTION OF THE CONTEST

In resolving the question of whether Clark Elkhorn wa5 properly cited for a violation of
section 75.1711-2, heed must be paid firstto the wording of sections 75.1711 and 75.1711-2 in
order to detennine what was required of the company. If the language is clear, the standards~
tenns must be enforced as written. (Island Creek Coal Co., 20 FMSHRC __, Docket No.
KENT 95-214, slip op. 5 (January 30, 1997). If the language is not clear, if it is ambiguous,
deference must be given to the Secretary's interpretation of the regulations (Island Creek, slip op.
S-6; k.ilini lQ Energy West Mining Co. v. FMSHRC, 40 F.3D 457,463 (D.C. Cir. 1994);
Secretary of Labor v. Western Fuels-Utah, Inc., 900 F.2d 318, 321 (D.C. Cir. 1990)). While at
frrst blush the requirement to defer seems to ordain the Secretary always will prevail, the
requirement comes with a concomitant responsibility that offers a constitutionally-based
protection to the operator. The Secreta.-y must afford fair notice of her interpretation. If she does
not, the operator cannot be held liable (General Electric Company v. E.P.A., 53 F.3d, 1324,
1328-29 (D.C. Cir. 1995); Island Creek, slip op. 11).
THE SECRETARY'S INTERPRETATION OF SECfiON 75.1711-2

To establish noncompliance with section 75.1711-2, the Secretary must prove the
existence of openings "required to be sealed under§ 75.1711 ." Section 75.1711 , restates
section 317(k) of the Act (30 USC § 877(k)) in requiring "the opening of any coal mine that
is . .. abandoned for more than 90 days, [to] be sealed . . . in a manner prescribed by the
Secretary." Looney's testimony regarding the openings at EP1 and EP2 was detailed. He
described how he and Swiney visited the openings, how the openings had 18 inch, open-ended
ventilation pipes protruding through the dirt, how the dirt did not completely close the openings,
and how the "fill" did not extend 25 feet back into the mine (Tr. 23, 26, 36-37,47, 49-50).
There is no dispute the Ratliff No. 110 Mine was abandoned on November 20, 1996
(Gov. Exh. 1, 4). There also is no dispute Looney visited the mine more than 90 days later.
Looney's testimony amply demonstrates, and I fmd, that at the time of the visit, EPI and EP2
were not "sealed .. . in a manner prescribed by the Secretary" (30 C.F.R. § 75.1711) in that
neither was "sealed with solid incombustible material" or "completely filled with incombustible .
material for a distance of at least 25 feet" (30 C.F.R. § 75.1711-2).
In contrast to the detailed descriptions ofEPl and EP2, Looney' s testimony regarding the
other openings of the old works was not sufficiently precise to allow findings concerning
compliance with the standard. Although he initially testified he went to the mine to "check all
openings within [the mine's] boundaries" (Tr. 15), Looney modified his testimony from "all
openings," to the openings he and Swiney could see on the day of the inspection, and agreed they
did not see them all GQ., Tr. 28, see also Tr. 48). Further, when cross examined concerning the
ten openings he listed specifically on the citation, he stated "it could have been one or two less
than ten" (Tr. 43). Finally, although he stated "according to [his] notes" (fr. 27) other openings
not used as EPs were in violation of section 75.1711-2, the notes were not introduced and
Looney provided no further description of the "other openings."

280

Despite th~se deficiencies, proofEPl and EP2 were not "sealed with solid incombustible
material" or "completely filed with incombustible material for ... at least 25" is sufficient to
establish noncomplicance with section 75.1711-2, provided EP'I and EP2 were "openings of a
coal mine declared abandoned for more than 90 days" (30 C.F.R. § 75.1711); in other words,
provided they were openings of the RatliffNo. 110 Mine.
Section 3(h)(2) of the Act defmes "coal mine" as "an area ofland and all structures,
facilities, machinery, tools, equipment, shafts, slopes, tunnels, excavations, and other property,
real or personal, placed.upon, under, or above the surface of such land by any person, used in, or
to be used in, or resulting from, the work of extracting in such area ... coal" (30 U.S.C.
§ 802(h)(2)). . Section 318(1) includes in the definition of "coal mine," "areas of adjoining mines
connected underground" (30 U.S.C. § 878(1)), and this definition is repeated in the regulations
(30 C.F.R, § 75.2). When uncut coal and rock physically separated the works· of the old mine
from the new works it is certain the old and new works were not "connected underground" and
the openings of the old mine were not part of the RatliffNo. 110 Mine. Just as certain, when the
coal and rock were cut through and the old works were joined to the new works as part of the
ventilation system for the new works, the old works became "shafts, slopes, tunnels, [or]
excavations ... used in the work of extracting ... coal." They were "connected underground,"
and they were part of the Ratliff No. 11 0 Mine.
When the old works again were physically separated from the new works -albeit by
underground seals, not by coal and rock - and the openings no longer were used for any
purpose connected with the new works, did the openings continue to be a part of the "coal mine"
the company subsequently abandoned? The Act and regulations are ambiguous.
The definitions of"coal mine" can be read as including openings previously "used
in ... or resulting from the work of extracting ... coal" because the statutory and regulatory
definitions of "mine" ~ have been interpreted only on the basis of present use.
Clark Elkhorn made the openings part of the ventilation system of the RatliffNo. 110 Mine,
controlled the openings, and used them to mine coal. In so doing, the company assumed
responsibility for the openings. It is reasonable to read the statutory and regulatory definitions to
prohibit Clark Elkhorn from abandoning this responsibility simply because it chose physically to
wall-off the openings from the rest of the mine, and it is reasonable to conclude the statutory and
regulatory definitions do not pennit a company to segment its responsibility by making "shafts,
slopes, tunnels, [or] excavations" parts of the mine when it suits the company' s convenience and
by disowning them when it does not.
On the other hand, it is equally reasonable to read the definitions of"coal mine" in
section 318(1) of the Act and section 75.2 of the regulations to warrant Clark Elkhorn's belief the
openings were not parts of the mine it abandoned . As noted, the Act and regulations define
"coal mine" as including "areas of adjoining mines connected under~ound" (emphasis supplied).
"Connected" is defmed as being ·~oined or linked together" (Webster's Third New International
Dictionary (1986) at 480). The underground seals physically severed all that had joined or

281

linked the old and new works (Tr. 32, 55, 82, 100-101, 107-108). Once the underground seals
were in place, Clark Elkhorn, or any company in its position, reasonably and in good faith could
have concluded the adjacent old works no longer.were "connected underground" with the new
works and no longer were a part of the of the RatliffNo. 110 Mine.•
As I have stated, where both the Secretary and Clark Elkhorn could have read the Act and
the regulations and in good faith reached reasonable but opposite conclusions, I must defer to the
• interpretation of the Secretary unless it is "plainly erroneous or inconsistent with the regulation"
(Hazardous Waste TreaJmenl Council v. Reilly, 938 F.2d 1390, 1395 (D.C. Cir. 1991); ~aim,
Island Creek, slip op. at 5-6). I would be remiss ifl did not recognize that ultimately what is at
stake is responsibility for compliance at mines whose original operators have departed leaving
potentially hazardous conditions in their wake. The Secretary's interpretation assigns
responsibility for those conditions and in so doing furthers the overall purpose of the Act.
Because the Secretary's interpretation of the regulation is not plainly erroneous or inconsistent
with the Act and its purpose, it is permissible and is affinned.
FAIR NOTICE

Where affirmance of the Secretary's interpretation means a ~ivil penalty may be
assessed against the operator for a violation of the regulation, due process requires the operator
receive fair notice of what the Secretary believes is required. In this way, due process
"prevents . . . deference from validating the application of a regulation that fails to give fair
warning of the conduct it ... requires, and prevents regulation by fiat (Gates & Fox Co. v.
OSHRC, 790 F.2d 154,156 (D.C. Cir. 1986)).
Just as an operator faces an uphill battle in proving the Secretary has invoked an arbitrary
and capricious interpretation when the relevant statutory and regulatory language lacks clarity
(General Electric Co., 53 F.3d. At 1327), so too the Secretary faces an uphill battle in proving

1
/

The Secretary argues Clark Elkhorn should have concluded from 30 C.F.R. § 75.335,
"that it was not the Secretary's intent for there to be a disconnection of the worked-out areas
from active workings when seals are constructed" 00 Sec. Br. 10, s aim Sec. Br. 8).
Sections 75.334 and 75.335 require, in part, the insertion of pipes through underground seals to
allow sampling for atmospheric gases and water in worked-out areas behind the seals. The
Secretary reasons if the old, worked out areas were a separate mine over which Clark Elkhorn
had no responsibility, insertion of the pipes into the worked-out areas would constitute a trespass
by Clark Elkhorn, something the Secretary could not have intended.
This argwnent is too convoluted to accept. It is much more likely Clark Elkhorn, or any
operator in its position, would have concluded sections 75.334 and 75.335 had no bearing on the
meaning of"adjoining mines connected underground," but rather presupposed a situation where
a single operator mined both the worked-out areas behind the seals and the active areas outside
the seals and where the inby and outby areas always were parts of a single mine.

282

fair notice when she lacks evidence of a clear and direct announcement of her interpretation. In
this way, the doctrines of deference and fair notice balance one another and require the
Secretary's actions to be reflected by rational, principled, and clear ~ecision making.
The testimony reveals significant lapses by the Secretary in meeting her obligation to
provide fair notice. The agency, which approved the bleeder system and the company's plan to
cut into the old works, had ample warning the company intended to use the openings as part of
its ventilation system (Tr. 39, 54-55, 99-1 00). Yet, there is no evidence that either prior to or
during the approval process MSHA advised the company it would be responsible under
sections 75.1711 and 75.1711-2 for sealing the openings if the company installed underground
seals and abandoned the Ratliff No. 110 Mine (Tr. 45, 82, 99). And this was so even though the
practice of using adjacent old works as part of bleeder systems was "fairly common" in MSHA
District 6 (Tr. 38-39, see also Tr. 79). It is certain as well the lack of notice was not because
MSHA believed Clark Elkhorn voluntarily would seal the openings. The company never
mislead MSHA in this regard (Tr. 73-74, 80-81).
I conch1de there simply was no clearly defmed and applied MSHA policy in District 6, or
elsewhere, interpreting sections 75.1711 and 75.1 711-2 to require the sealing of openings like
those at issue.9 Looney testified he issued other citations for similar conditions, but he could not
recall where, when, or the number of citations he issued (~ Tr. 40-41 ). Griffith testified
"3 and 4 and 5 year[s] ago" he advised several companies that openings in mines the companies
cut into had to be sealed, but he agreed he did not so advise Clark Elkhorn (Tr. 82). Further, he
admitted whether or not he gave such advise depended upon the volume of methane liberated at
t.l}e mine, a condition wholly extraneous to sections 75.1711 and 75.1711-2 (Tr. 82-83).
I fully recognize Roger Cantrell testified he knew during ''the latter part of '95 or first
part of '96" (Tr. 100), MSHA would require openings of the old works to be sealed. (This was
after the underground seals were in place and before Clark Elkhorn abandoned the Ratliff No.
110 Mine). The question is whether the safety coordinator's knowledge constituted fair notice,
and I conclude it did not. Critically, the record does not reveal whether Cantrell was told the
requirement to seal the openings related to sections 75.1711 and 75.1711-2. As i$ evident from
Judge Fauver's decision in Apex, the agency has been casting about for a standard to "cure" the

9

The obscurity of MSHA's policy on the question is exemplified by the only comment
regarding section 75.1711 in the agency's Program Policy Manual. The comment provides
guidance concerning the timing of sealing activities, but does not address the circumstances
under which adjacent old works are considered part of a mine that has been closed or abandoned:
"Work to seal inactive or permanently closed mines shall commence promptly after
ventilation is discontinued and shall be carried out with reasonable diligence . . . . For the
purpose of this standard, a mine or opening to a mine is inactive, closed or permanently
abandoned when ventilation by means of the mine fan or fans is intentionally discontinued"
(Department ofLabor, Mine Safety and Health Administration, v. Program Policy Manua/140
(4/1/96)).
283

problem of the unsealed openings of old works. What Cantrell was told might have related to
section 77.334(b)(2) (the standard cited inApex},_to sections 75~ 1711 and 75.1711-2, to some
other standard, or no standard.
Here, where the Secretary offered no evidence of any consistently applied policy with
regard to MSHA's interpretation of the cited standard, or indeed, of any standard; where the
·"best'' she could do was offer vague testimony the cited standard was used before in similar
situations, but not with regard to Clark Elkhorn (noticeable, the citations were not introduced),
and where, in at least some situations use of the standard was based upon a wholly extraneous
condition (Tr. 40-41, 81-82), I cannot flnd the Secretary provided Clark Elkhorn fair notice of
what was required. (Compare U.S. v. Hoechst Celavesc Corp., 128 F.3d, 216,227,228 (4th Cir.
1997) (letter from regional office advising regulated party of agency's interpretation of
regulation establishes fair notice)). 10 Therefore, I conclude the Secretary may not hold Clark
Elkhorn responsible under section 75.1711-2 for failing to seal EPI and EP2.

ORDER
Citation No. 4495292 has been vacated by MSHA, and Clark Elkhorn has withdrawn its
contest. Docket No. KENT 97-77-R is DISMISSED.
Because Clark Elkhorn may not be held responsible for the violation charged in Citation
No. 44224867, Clark Elkhorn's contest is GRANTED, the citation is VACATED, and Docket
No. KENT 97-176-R is DISMISSED.

_j)~·q ~wJ,"..,"-
DaviJ""B~bour

Administrative Law Judge
Distribution:
William Miller, Esq, Jackson & Kelly, 1600 Laidley Tower, P. 0. Box 553, Charleston, WV
25322 (Certified Mail)
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road, Suite B-201, Nashville, TN 37215-2862 (Certified Mail)
dcp

10
/ There are may ways the Secretary may choose to afford operators fair notice of her

interpretation; written notification being one, but whatever method she chooses, it must meet the
standard- not met here- of providing a clear and direct announcement of her interpretation.

284

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

MAR 1 9 1998
CYPRUS CUMBERLAND RESOURCES,
CORPORATION
Contestant

CONTEST PROCEEDING
Docket No. PENN 98-15-R
Order No. 3657679; 9/25/97

V.

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

Cumberland Mine
Mine ID 36-05018

DECISION
Appearances:

Howard Agran, Esq., Jacqueline A. Hershey, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania for the Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll, Pittsburgh, Pennsylvania,
for the Respondents.

Before:

Judge Feldman

This contest proceeding, heard on November 18 through November 20, 1997, in
Morgantown.• West Virginia, concerns the validity of withdrawal Order No. 3657679 issued on
September 25, 1997, pursuant to section 104(d)(2) of the Federal Mine Safety and Health Act of
1977 (the Act), 30.U.S.C. § 814(d)(2), to Cyprus Cumberland Resources Corporation (Cyprus) at
its Cumberland Mine. At trial , Cyprus stipulated to the significant & substantial nature of the
violation cited in Order No. 3657679, and to the fact that the violation was attributable to its
unwarrantable failure. (Tr. 768-70).
Order No. 3657679 was premised on the June 18, 1997, issuance of Order No. 3657625
pursuant to section 104(d)(1) ofthe Act, 30 U.S.C. § 814(d)(l). The validity ofunderlying
104(d)(1) Order No. 3657625 is not at issue in this matter. The only matter at issue is whether an
inspection under section 104(d)(2) of the Act, commonly referred to as a "clean inspection,"
occurred between the June 18, 1997, issuance of Order No. 3657625 and the September 25, 1997
issuance of the order in question. The parties' proposed fmdings and conclusions, and reply
briefs have been considered in the disposition of this matter.

285

Statutory Framework
Section 103(a) of the Act, 30 U.S.C. § 813(a), mandates that MSHA inspect each
underground coal mine in its entirety at least four times a year. In addition to regular quarterly
inspections mandated by section I 03(a), MSHA frequently performs "spot inspections," also
known as special or technical inspections, that focus on particular categories of safety hazards
such as electrical, structural or ventilation conditions. When an inspection reveals a mine
operator has violated the Act or a mandatory safety standard, section 104(a) authorizes an MSHA
inspector to issue a citation detailing the violative condition.
Under section 104(d), the MSHA inspector is obliged to designate violations that are
attributable to an operator's unwarrantable failure. A finding of unwarrantable failure requires
evidence of unjustifiable or aggravated conduct constituting more than ordinary negligence.
Emery Mining Corp., 9 FMSHRC 1997, 2001 (December 1987). Unwarrantable failure is
characterized by conduct evidencing "reckless disregard," "intentional misconduct,"
"indifference," or a "serious lack of reasonable care." !d. at 2003-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, I94 (February 1991 ); see also Buck Creek Coal, Inc. v. FMSHRC,
52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test).
Section I 04(d), which provides increasingly severe withdrawal sanctions for an
operator's repeated failure to exercise due care, is an essential element of the Mine Act's
enforcement scheme. This case raises important questions concerning the application of the
withdrawal sanctions in section I 04(d) of the Act. Consequently, it is important to summarize
the substance and purpose of this statutory provision. The Commission addressed the role of
section I 04(d) in achieving mine safety in Greenwich Collieries, 12 FMSHRC 940 (May 1990).
The Commission explained:
Under section I 04(d) of the Act, if an inspector finds a violation and also finds
that the v·iolation is of a significant and substantial nature and resulted from an
operator's unwarrantable failure to comply with a mandatory standard, a citation
noting those findings is issued. For the sake of convenience, this citation, the
"predicate" citation in the section 104(d) "chain," is commonly referred to as a
"section l04(d)(l) citation." Nacco Mining Co., 9 FMSHRC 1541 n. 6
(September 1987). The·Commission has explained, however, that a "section
104(d)( 1) citation" nevertheless is a citation issued pursuant to section 104(a) of
the Act containing the special findings referred to in section 104(d)( 1). Utah
Power & Light Co., 11 FMSHRC 953, 956-57 (June 1989).
Section 104(d)(1) provides that "[i]f, during the same inspection or any
subsequent inspection ... within 90 days after the issuance of such citation," the
inspector finds a further unwarrantable failure violation, a withdrawal order is to
be issued under section I 04(d)( 1). Further, if more unwarrantable violations are
found during any subsequent-inspection of the mine, withdrawal orders under

286

section 104(d)(2) of the Act are to be issued. 30 U.S.C. § 814(d)(2). The operator
remains on probation, and issuance of withdrawal orders based on unwarrantable
findings does not cease, until an inspection of the mine discloses no further
unwarrantable failure violations. Kill Energy Corp., 6 FMSHRC 1596 (July
1984), aff'd sub nom. UMWA v. FMSHRC, 768 F.2d 1477 (D.C. Cir. 1985).
This, then, is the section 104(d) "chain ..,
Section 104(d). is an integral part of the Mine Act's graduated enforcement
scheme, a scheme providing for "increasingly severe sanctions for increasingly
serious violations or operator behavior." Nacco, supra, 9 FMSHRC at 1545,
quoting Cement Division, National Gypsum Co., 3 FMSHRC 822, 828
(April 1981 ). Like the overall enforcement scheme of the Act, section 104(d)
imposes sanctions in a graduated manner, with increasingly, serious
consequences. White County Coal Corp., 9 FMSHRC 1578, 1581 (September
1987). The focus of section 104(d) is upon the operator's unwarrantable conduct.
Section 104(d) seeks to discourage repetition of such conduct by placing the
operator on a probationary "chain." This probationary period, backed up by the
threat of a withdrawal order, is "among the Secretary's most powerful instruments
for enforcing mine safety." UMWA v. FMSHRC, supra, 768 F.2d at 1479.
12 FMSHRC at 945. (Emphasis added).
As noted above, the provisions of section 104(d)(2) of the Act remove an operator from
the "probationary chain" at "such time as an inspection of such mine discloses no similar [no
unwarrantable failure] violations." At issue is whether an intervening "clean inspection~' as
contemplated by section 104(d)(2) had occurred between June 18, 1997, when the predicate
104(d)( 1) Order was issued, and September 25, 1997, when the subject I 04(d)(2) withdrawal
order was written.
It is uncontroverted that the only reason a complete quarterly inspection had not
occurred during the interim period between June 18 and September 25, 1997; is because Cyprus'
.60 West Mains haulage was not inspected until September 26, 1997, the day following the
issuance of 104(d)(2) Withdrawal Order No. 3657679. Joint Stip. 13. Cyprus, however,
contends its 60 West Mains haulage had been inspected for the section 104(d)(2) purpose of
determining if "similar violations" existed because it is also vncontroverted that at least two
MSHA inspectors traversed this 4,200 feet long entry in crickets or mantrips three to five times a
week, totaling approximately 240 trips. (Tr. 354-55).

Findings of Fact
The Cumberland Mine is an underground bituminous coal mine located near
Waynesburg, Pennsylvania. The mine is the subject of four "quarterly AAA inspections" by
Mine Safety and Health Administration (MSHA) inspectors as required section 103(a). MSHA
designates the quarters on a fiscal basis starting on the first of October. Thus, October 1 through

287

December 31; January 1 through March 31; April 1 through June 30; and July 1 through
September 30, are the first through fourth quarters, respectively. (Tr. 97-8). MSHA assigns,
on a full time basis, two inspectors from its Waynesburg field office to conduct each quarterly
inspection.
These inspectors spend between 3 and 5 days a week at the Cumberland Mine and
normally take the full quarter to complete the inspection. Thus, in essence, there is a continuous
presence at Cyprus' Cumberland facility of at least two MSHA inspectors who are performing
quarterly inspections. ·These two inspectors are assisted by other inspectors from the
Waynesburg field office, which has two supervisors and approximately 15 inspectors. In
addition, MSHA District 2 Office personnel may also inspect the mine site during a given
quarter. Thus, there may be as many as 6 or 7 inspectors at the site on any particular day.
The two inspectors assigned to perform the quarterly inspection keep a record of their
inspections by tracking their progress on a mine map. This map does not reflect the inspections
of other inspectors who inspected the mine during the same period.
During a quarterly inspection of a mine "in its entirety," as specified in section 103(a) of
the Act, MSHA inspectors do not inspect each piece of mining equipment, all ventilation
controls, or all the entries in a mine. (Tr. 144,33 1-2,481,708-9, 804-5). Rather, they focus
their attention on areas where mining is actively occurring. (Tr. 294).
An inspector who enters a mine is conducting an inspection from the moment he enters
mine property. As such, an inspector observes conditions as he travels in and out of a mine, even
when he intends to inspect another area of the mine in more detail. If an inspector observes any
condition he deems to be a violation while traveling through a mine, he is supposed to take
appropriate enforcement action. For example, inspectors routinely observe and evaluate track
haulage, rib and roof conditions while riding in an open mine vehicle, although it is MSHA' s
practice to nave inspectors inspect haulage roads by walking the length of such areas.

The 60 West Mains haulage is approximately 4,200 feet long and has been the primary
route of travel into and out of the mine since 1983. It is an area where there is no active mining.
Consequently, it changes little from inspection to inspection.
During the period June·18 through September 25, 1997, inspectors traveled this track
entry "many times" as stipulated by the Secretary. See Joint Stip. 14 and 15. Cyprus' Director of
Safety testified Cyprus' records reflect inspectors made approximately 64 round trips in the
60 West Mains haulage during the relevant period. (Tr. 786). Consistent with this testimony, at
the hearing, it was estimated that the two inspectors, assigned the task of conducting the quarterly
inspection, each traveled the 60 West Mains track entry 60 round trips or 120 times.
(Tr. 352-55). While traveling in this entry, inspectors can observe the condition of the roof, ribs
and track. (Tr. 141-42,300-01 ,488-90,705-08,736-37,794, 797-99).

288

Travel in this track entry was in slow moving rail mounted, battery operated vehicles.
The vehicles consisted of both closed mantrips or open jeeps known as "crickets." Mantrips hold
approximately ten people and are covered by a canopy. The ability to observe rib and roof
conditions in a mantrip depends on where one sits in relation to the canopy. Crickets do not have
canopies. The record reflects the average speed for mantrips is approximately 15 to 20 miles per
hour and the average speed for crickets is approximately 10 to 12 miles per hour. The record
also reflects these vehicles may be operated as slow as 4.7 miles per hour. Resp. 's Reply, at 3.
The 60 West Mains haulage was inspected on foot during the April1 through June 30,
1997, quarterly inspection by MSHA Inspector Tom McCort on May 5, 1997. His inspection
took approximately 1Yl hours to complete. At that time, McCort found no violations. The
60 West Mains haulage was next inspected on foot during the July 1 through September 30,
1997, quarterly inspection by inspector George Rantovich on September 26, 1997, the day after
the subject 104(d)(2) Order was issued. Rantovich' s inspection also took approximately 1Y7
hours to complete. Like McCort, Rantovich detected no violations of mandatory safety standards
in the subject track entry.
Further Findin~s and Conclusions of Law
The Deference Issue
I have carefully considered the Secretary's assertion that the "clean inspection"
requirement to break the 104(d) chain in this case required a detailed inspection of the 60 West
Mains entry conducted on foot. As discussed below, I cannot find the Secretary's interpretation
to be unreasonable given the legislative history of section I 04(d). However, I decline to defer to
the Secretary's interpretation and application of section 104(d)(2) of the Act as it applies to the
facts in this case. 1

Moreover, the propriety of deference in a particular mine safety enforcement proceeding
must be determined on a case-by-case basis? Judicial deference is a principle born of necessity.
Courts of general jurisdiction, called upon to resolve a myriad of regulatory issues requiring

1

Having declined to defer to the Secretary on this question, I also give little weight to the
affidavit, submitted by Cyprus, of John M. DeMichiei' s interpretation of section 104(d)(2).
DeMichiei is a current employee of Cyprus and a former MSHA official.
2

For example, the Secretary may bear a different burden of proof with respect to her
regulatory interpretation in an enforcement proceeding as compared to her burden in a
proceeding where a regulation is challenged following .its promulgation. Nat/. Indus. Sand, 601
F .2d at 699-700, n.36. Deference is also more readily accorded with respect to interpretations of
recently promulgated regulations that are "yet untried and new." Jd. at 698. Less deference may
be called for when an agency is interpreting the scope of its own jurisdiction. ld. at 698-99, n.32.
There is a positive correlation between the defe~ence owed agency action and the degree of
scientific or technical agency expertise that serves as the basis for such action. Ethyl Corp. v.
Environmental Protection Agcy., 541 F .2d 1 (D.C. Cir. 1976).
289

extensive agency experience and technical expertise, are ill equipped to substitute their
judgement for an "interpretation given the statute by the officers or agency charged with its
administration." National Indus. Sand Ass 'n v.Marshall, 601 F .2d 689 (3rd Cir. 1979) citing
Udall v. Tallman, 380 U.S. 1, 16, 85, S.Ct. 792,801, 13 L.Ed. 2d 616 (1965).
This Commission, however, is an not an entity of general jurisdiction. Rather, it was
created by Congress as an "independent adjudicative body authorized to hear disputes arising
under the Mine Act." 30 U.S.C. §§ 815(d), 823. Energy West Mining Corp. v. FMSHRC,
40 F3d 457, 459 (D.C. Cir. 1994). In this regard, the Mine Act has a bifurcated scheme of
statutory administration. Although 30 U.S.C. §§ 81l(a) and 814(a), respectively, empower the
Secretary with rule making and enforcement authority, adjudicatory review of an ALJ decision
by the Commission is not "a matter of right but of the sound discretion of the Commission."
30 U.S.C. § 823(d)(2)(A)(i). Of paramount importance, the Mine Act authorizes the
Commission to resolve industry disputes involving "substantial questions of law, policy or
discretion ... .'' 30 U.S.C. § 823(d)(2)(A)(ii)(IV). In the final analysis, recognition of the
enforcement power conferred by the Mine Act on the Secretary, also requires recognition of the
adjudicatory responsibility to resolve industry disputes conferred by the Act on the Commission.
Consequently, the established case law dealing with the reluctance of a federal appellate
court to substitute its statutory interpretation for that of the agency charged with enforcing a
statute must be carefully considered and properly applied. See, e.g., Udall v. Tallman,
380 U.S. at 4. The question in a given mine safety case is whether Congress intended the
Department of Labor's discretion, or, this Commission's discretion, to be the controlling
authority . The Commission addressed this fundamental question in 1979, shortly after its
creation:
The cases cited by the Secretary [in support of deference] are inapposite. They
deal .with the deference that federal courts often accord to those administrative
agency heads who alone have been entrusted by Congress with all administrative
and policy functi6ns under a statute. The Commission, however is not entirely in
the position of a court and the Secretary is not in the position of most agency
heads. Inasmuch as the 1977 Act divides administrative and policy responsibilities
between the Commission and the Secretary, neither has exclusive expertise in the
subject matter covered .by the 1977 Act. See our decision in Old Ben Coal
Company, No. VINC 79-119 (October 29, 1979) (slip op. At 5).
One of the essential reforms of the mine safety program is the creation of an
independent Federal Mine Safety and Health Review Commission charged with
the responsibility for assessing civil penalties for violations of safety or health
standards, for reviewing the enforcement activities of the Secretary of Labor, and
for protecting miners against unlawful discrimination.

290

It is our hope that in fulfilling its responsibilities under the Act, the Commission
will provide just and expeditious resolution of disputes, and will develop a
uniform and comprehensive interpretation of the law. Such actions will provide
guidance to the Secretary in enforcing the Act and to the mining industry and
miners in appreciating their responsibilities under the law. When the Secretary
and mine operators understand precisely what the law expects of them, they can
do what is necessary to protect our Nation's miners and to improve productivity in
a safe and healthful working environment.
Our position is buttressed by the conclusion reached by the Fourth Circuit when it
examined the similar relationship between the Occupational Safety and Health
Review Commission and the Secretary of Labor. In Gilles & Catting, supra at 5,
the court rejected an attempt by the Secretary to reduce that. Commission to "little
more than a specialized jury, an agency charged only with fact finding." It found
that Commission "was designed to have a policy role and its discretion therefore
includes some questions of law." 504 F.2d at 1262. The Occupational Safety and
Health Review Commission has itself adopted a similar view of its role under
OSHA. United States Steel Corp., 5 BNA OSHC 1289, 1294-1295, 1977-78
OSHD 21, 795 ( 1977).3
Finally, the Secretary relies upon the legislative history of the 1977 Act for
support for his position. Although that history states that the Commission is to
accord weight to the Secretary's views, it does not support the more far-reaching
result that he seeks here. The Senate committee report states only that because the
Secretary "is charged with responsibility for implementing this Act, it is the
intention of the Committee, consistent with generally accepted precedent, that the
Secretary's interpretations of the law and regulations shall be given weight by
both'the Commission and the courts." S. Rep. at 49; 1977 Legis. Hist. At 63 7.
The most apposite and well reasoned precedent does not require the Commission
to accord to the Secretary's view of the statute the degree of deference he claims
here, however. Moreover, the Senate committee did not state that the Secretary's
views are entitled to "considerable deference" or are to be controlling unless there
are compelling indications that they are wrong. The Senate committee stated only

3

The Supreme Court has expressed a contrary opinion with respect to the deference owed
by OSHRC to the Secretary. Martin v. Occupational Health and Safety Review Comm 'n, 499
U.S. 144 (1991). However, the Supreme Court's subsequent decision in Thunder Basin is
distinguishable from Martin in that it concerns the Mine Act rather than the OSHA Act.
Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 127 L.Ed. 2d 29 (1994). Moreover, unlike
Martin, Thunder Basin explicitly acknowledged the policy making authority conferred to the
Commission under the Mine Act. See infra at p.8; see also Tanglewood Energy Inc.,
18 FMSHRC 1315, 1325 at n.18, (August 1996) quoting Drummond Co., 14 FMSHRC 661 ,
674-75 (May 1992).

291

that "weight" is owed. The Secretary's broader reading is inconsistent with the
Senate committee's and Congress' intention that the Commission be truly
independent of the Secretary and with the policy role that the 1977 Act entrusted
to the Commission.
In accordance with this expression of congressional intent, we will accord special
weight to the Secretary's view of the 1977 Act and the standards and regulations
he adopts under them. His views will not be treated like those of any other party,
but will be treated with extra attention and respect. Although this weight may
vary with the question before the Commission, especially where the Secretary has
gained some special practical knowledge or experience through his inspection,
investigation, prosecution, or standards-making activities, it will not rise to the
inappropriate level the Secretary has sought here. The issue in this case is one of
statutory interpretation. Resolution of such questions is a primary role of the
Commission. The Helen Mining Company, 1 FMSHRC 1796, 1800-01
(November 1979); see also Sewell Coal Company, 3 FMSHRC 1402, 1404
(June 1981).
Consistent with the Commission's analysis in Helen Mining, the court recently addressed
the Commission's adjudicatory role in Energy West Mining Company, 111 F.3d 900 (D.C. Cir.
1997). The court stated:
[B)ecause "the Mine Act is 'silent or ambiguous with respect to the specific
issue,, we "need ask only whether the FMSHRC interpretation is ' rational and
consistent with the statute,' ... according deference to 'reasonably defensible'
constructions of the Mine Act by the Commission." 863 F .2d at 53 (quoting
Simpson v. FMSHRC, 842 F.2d 453,458 (D.C. Cir. 1988) (ellipsis in original).
Further, " [t]he respect due to FMSHRC is heightened in this case because the
Secretary agrees with the Commission." !d. (Citing Emerald Mines, 863 F.2d at
53). We find the Commission's decision passes muster under our highly
deferential standard of review. Jd. at 903.
Finally, and most importantly, the Supreme Court also recognized the significance of the
Commission's limited jurisdictional mandatr. when it concluded the Mine Act precluded district
court jurisdiction of an operator's pre-enforcement challenge to MSHA 's interpretation of the
miner representative "walk-around" provisions of30 U.S.C. § 813(f). Thunder Basin Coal Co.
v. Reich, 510 U.S. 200, 127 L.Ed. 2d 29 ( 1994). The Court stated:
Petitioner's statutory claims at root require interpretation of the parties' rights and
duties under§ 813(f) and 30 C.F.R. Part 40, and as such arise under the Mine Act
and fall squarely within the Commission's expertise. The Commi~sion, which
was established as an independent-review body to 'develop a uniform and
comprehensive interpretation' of the Mine Act, Hearing on the Nomination of
Members of the Federal Mine Safety and Health Review Commission before
Senate Committee on Human resources, 95th Cong., 2d Sess., 1 (1978),
has extensive experience interpreting [the statute). Id. 510 U.S. at 214, 127 L. Ed.
at 42.

292

The fact the Commission's exercise of deference has, on occasion, been affirmed on
appeal, does not mean the Commission is compelled to defer to the Secretary. 4 If deference
were accorded the Secretary in this instance, it would be accorded pursuant to the discretion
committed to the Commission under the Mine Act. However, as discussed below, I decline to
defer to the Secretary's interpretation of section 104(d)(2) because it is less reasonable than the
interpretation advanced by the respondent.
Turning to the facts of this case, the Secretary maintains an "inspection" as contemplated
by section 104(d)(2) did not occur prior to the September 25, 1997, order in issue because the
60 West Mains haulage was not irtspected on foot until September 26, 1997. While I am
reluctant to conclude a simple word such as "inspection" is ambiguous, I concede the operative
phrase "inspection of such mine" in section 104(d)(2) as it applies in this case presents a
legitimate question. It is unclear whether this phrase requires a comprehensive quarterly
inspection of the entire mine as the Secretary maintains, or whether, as the respondent asserts, the
operative phrase requires an inspection of the total mine that is adequate to ensure the absence of
conditions attributable to the operator's unwarrantable failure.
In support of her position, the Secretary points to the following pertinent legislative
history:
[w]hen an order has been issued pursuant to [section 104(d)(l)], and subsequent
inspection ... reveals the existence in such mine of violations similar to those
which triggered the 104(d)(l) order], the inspector shall promptly issue a
withdrawal order under [section 104(d)(2)] on each such occurrence until an
inspection of the mine in its entirety shows ' no similar violations.' S. Rep. 9 5181, 95'1' Cong., r' Sess. 31 (1977), reprinted in Legislative History ofthe Federal
Mine Safety and Health Act of 1977, at 619-22 ( 1978).
However, the legi~lative history also reflects the term "sim'ilar violations" as used in
section 104(d)(2) 'means "unwarrantable violations, whether or not the violations found are
substantively similar to the violation upon which the order ... was based." !d. at I" Sess. 32,
Legislative History at 620.

4

In Secretary ofLabor v. Cannelton Industries, 867 F.2d 1432, 1435 (D.C. Cir. 1989).
the court ruled the Secretary's interpretation of the Mine Act is "emphatically due" deference
even when it conflicts with the Commission's interpretation. The circuit court's Cannelton
decision that the Commission is subordinate to the Secretary in cases of statutory construction
cannot be reconciled with the Supreme Court's subsequent holding in Thunder Basin. See 510
U.S. at 214. Moreover, the proposition advanced in Cannelton, concerning the Commission's
allegiance to the Secretary's interpretive view, subsequently was not adopted in Energy West.
See p.8, supra.

293

Thus, the legislative history must be read in context. The purpose of the "inspection of
the entire mine" in the legislative history of section 104(d)(2) is to determine if additional
unwarrantable conduct exists. Unwarrantable violations are hazardous conditions attributable to
an operator's aggravated or unjustifiable conduct. As such, they are generally more readily
detectable on inspection.
In this case, despite MSHA's daily trips down the subject entry, the Secretary asserts the
entry was not inspected until September 26, 1997, when Rantovich measured the track gauge and
distance between rails, and when he inspected for broken rails and faulty electrical installations.
Secy. 's Proposed Findings at 8; Tr. 471-74.
I am not convinced by the Secretary's assertion that no stone must remain unturned in an
effort to satisfy MSHA of no further unwarrantable conduct before the "clean inspection"
requirements of section 104(d)(2) are met. Rather, the Commission and the court have
concluded that inspections other than regular quarterly inspections, such as spot inspections, can
be taken into account under section 104(d)(2). Kitt Energy Corp., supra. Significantly, the
court, in affirming Kilt, concluded the question of whether a clean inspection has occurred must
be "decided on a case by case basis." 768 F.2d at 1480.
Here, MSHA inspectors had an opportunity to observe the rib and roof conditions and
experience the track conditions in the 60 West Mains haulage on a daily basis hundreds of times.
I am not suggesting, as· the Secretary implies, that the mere "travel through [a mine] area is
sufficient to constitute an inspection of that area for the purpose of determining whether a 'clean'
inspection has occurred." Secy. 's Proposed Findings at 19. Rather, it is both a qualitative and a
quantitative test.
Six round trips by two MSHA inspectors through the 60 West Mains track entry may not
satisfy the ·:clean inspection'' requirements of section I 04(d)(2). However, somewhere between
the sixth round trip, and the hundredth round trip, particularly in this static area of the mine,
the inspection requirements of the pertinent statutory provision were complied with.
In conclusion, MSHA's repeated observations of the roof, rib and track conditions in the
60 West Mains prior to September 25, I 997, in addition to its regular inspection of the rest of the
Cumberland Mine since June .18, 1997, constituted an "inspection of such mine disclosing no
similar violations" under section 104(d)(2). The Secretary's proffered interpretation of this
statutory provision to the contrary, although plausible, is rejected.

294

ORDER
In view of the above, Cyprus Cumberlan<;l Resources Corporation's contest of
104(d)(2) Order No. 3657679 IS GRANTED IN PART. As a "clean inspection had
occurred prior the September 25, 1997, issuance of Order No. 3657679, the subject order
IS HEREBY MODIFIED to a 104(d)(l) citation. Accordingly, this contest proceeding
IS DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution:
R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 301 Grant St., 2<Yh Floor, Pittsburgh, PA 15219141 0 (Certified Mail)
Howard Agran, Esq., Jacqueline A. Hershey, Esq., Office of the Solicitor, U.S. Department of
Labor, 3535 Market Square, Room 14480, Philadelphia, PA 19104 (Certified Mail)
/mh

295

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, .VIRGINIA 2204 i

MAR 3 1 1998
GEORGES COLLIERS JNC.,
Contestant

CONTEST PROCEEDINGS

V.

Docket No. CENT 97:-26-R
Citation No. 4366607; 11/7/96

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

Docket No. CENT 97-27-R
Citation No. 4366608; 11/7/96
Docket No. CENT 97-28-R
Citation No. 4366609; 11/7/96
Docket No. CENT 97-29-R
Citation No. 4366610; 11/796
Docket No. CENT 97-30-R
Citation No. 4366611; 11/7/96
Docket No. CENT 97-31-R
Order No. 4366591; 11/5/96
Docket No. CENT 97-32-R
Order No. 4366592; 11/5/96
Docket No. CENT 97-33-R
Citation No. 4366593; 11/6/96
Pollyanna No. 8 Mine
Mine ID No. 34-01787
Docket No. CENT 97-34-R
Citation No. 4366594; 1I/6/96
Docket No. CENT 97-35-R
Citation No. 4366595; 11/6/96
Docket No. CENT 97-36-R
Citation No. 4366596; 1116/96

296

Docket No. CENT 97-38-R
Citation No. 4366598; 11/6/96
Pollyanna No. 9 Mine
Mine ID No. 34-01790
SECRETARY OF LA~OR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 97-69
A. C. No. 34-01787-03514

v.
Docket No. CENT 97-112
A.C. No. 34-01787-03520

GEORGES COLLIERS INC.,
Respondent

Pollyanna No. 8 Mine
Docket No. CENT 97-90
A. C. No. 34-01790-03501
Pollyanna No. 9 Mine
DECISION
Appearances: Madeleine T. Le, Esq., and David C. Rivela, Esq., Office of the Solicitor, U.S.
Department of Labor, Dallas, Texas, for Petitioner;
Elizabeth Maxine Christian, Esq., Oklahoma City, Oklahoma, for Respondent.
Before:

Judge Hodgdon

These consolidated cases are before me on Notices of Contest and Petitions for
Assessment of Civil Penalty filed by Georges Colliers, Inc., against the Secretary of Labor, and
by the Secretary, acting through her Mine Safety and Health Administration (MSHA), against
Georges Colliers, respectively, ·pursuant to section l 05 of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 815. The company contests the issuance to it of two orders and 10
citations. The petitions allege 17 violations of the Secretary's mandatory health and safety
standards and seek penalties of$5,899.00. For the reasons set forth below, I affmn all of the
orders and citations, approve the parties' agreement on 15 of the orders and citations, and assess
penalties of$5,399.20.
A hearing was held on December 2, 1997, in Ft. Smith, Arkansas. The parties also
submitted post-hearing briefs in the cases.

297

Settled Dockets and Citations
At the beginning of the hearing, counsel for the SecretarY announced that the parties had
settled all of the citations in Docket Nos. CENT 97-69, including the citations contested in
Docket Nos. CENT 97-29-R, CENT 97-30-R and CENT 97-33-R, and CENT 97-90, including
the citations contested in Docket Nos. 97-34-R, 97-35-R, 97-36-R and 97-38-R. The agreement
provides for a 20 percent reduction in the penalties assessed in each docket. Later during the
·case, the parties agreed to settle Citation Nos. 4366277,4366280, 4366591 and 4366592 in
Docket No. CENT 97-11.2. The agreement provides for a 10 percent reduction in the penalties
for those citations.
After considering the parties representations, I concluded that the settlements were
appropriate under the criteria set forth in section IIO(i) ofthe Act, 30 U.S.C. § 820(i), and
informed the partie~ that I would approve the agreements. The provisions of the agreements will
be carried out in the Civil Penalty Assessment section and the order at the end of this decision.
With the settlements, an order in Docket No. CENT 97-26-R and an order and citation in
Docket No. CENT 97-112 remained to be contested. They are Order Nos. 4366607 and 4366609
and Citation No. 4366608.

Contested Matters

I. Background
The Pollyanna No.8 Mine is an underground coal mine in LeFlore County, Oklahoma.
The mine is an underground continuation of a surface mine. It is entered through portals cut into
the high wall left by the surface mine. The mine continues underground on a decline from the
portals. There are five portals into the mine. Portals 1 and 5 have fans in them which puB air
and gases out of the mine. Portal 2 is for the belt line. Portals 3 and 4 provide intake air to the
mine and also serve as a me~s of entry.
Portals 1 and 5 have "weak wall" stoppings at their entrances. The stoppings consist of
two cinder block and concrete walls with a space in between them. The walls are constructed so
that in the event of an explosion in the mine, the walls will give way, releasing the pressure of
the explosion, so that the fans will not be damaged and can be quickly rehabilitated and put back
into use to ventilate the mine for rescue efforts. There are two walls so that opening the door in
one will not affect the air pressure in the mine. Thus, to exit through those portals one has to
open the inner door, enter the cubicle between the two walls, close the inner door and then open
the outer door and go out.
On November 7, 1996, MSHA Inspectors Kendell Whitman, Bob Cornette and Jimmy
Stewart went to the mine to inspect for smoking materials as part of a nationwide MSHA

298

"smoke-out" campaign. Whitman and Cornette entered the mine through Portal 3 and proceeded
to the working section to carry out the inspection.
It had rained heavily, approximately six to eight inches total, for several days prior to the
inspection, although it was not raining on the day of the inspection. As he came out of the mine,
Inspector Whitman observed water standing in front of Portals 1 and 5 and running into Portal 3.
• He also observed large amounts of water in front of the portals behind an earthen benn. The
water was beginning to seep through the benn and the benn itself was so saturated that when he
walked on it, he sank in up to his knees. Based on his observations, Inspector Whitman issued a
107(a) imminent danger order, 30 U.S.C. § 817(a), Order No. 4366607, a 104(a) citation,
30 U.S.C. § 814(a), Citation No. 4366608, and a 104(d)(2) order, 30 U.S.C. § 814(d)(2), Order
No. 4366609.

II. Findings ofFact and Conclusions o(Law
A. Order No. 4366607

Order No. 4366607 states:
The following conditions constitute an imminent danger to
the 10 miners working in the underground coal mine. The flood
water from the open strip pit was full of water, the water level is
higher then [sic] the elevation of the return, belt and intake portals.
The flood water is running into the # 1 return portal accumulating
in front of the "weak walled stopping," the level was even with the
top of the stopping. The water from the strip pit was running into
the return portal and intake. The water is running back into the
bottom of the main entries accumulating water in large amounts. If
the "weak walled stopping" were to fail, it would cause large
~ounts of water to flow into the mine trapping the miner[s] in the
151 right section by blocking the escapeways with water.

(Govt. Ex. 10.)
Section 107(a) of the Act states:
If, upon any inspection or investigation of a coal or other
mine which is subject to this Act, an authorized representative of
the Secretary finds that an imminent danger exists, such .
representative shall determine the extent of the area of such mine
throughout which the danger exists, and issue an order requiring
the operator of such mine to cause all persons ... to be withdrawn
from, and to be prohibited from entering, such area until an

299

authorized representative of the Secretary determines that such
imminent danger and the conditions or practices which caused such
·
imminent danger no longer exist. .
Section 3(j) of the Act, 30 U.S.C. § 802(j), defmes "imminent danger" as "the existence of any
condition or practice in a coal or other mine which could reasonably be expected to cause death
or serious physical harm before such condition or practice can be abated."
Inspector Whitman testified that he issued the imminent danger order because the amount
of water and saturated mud that had collected in the surface mine pit in front of the portals, along
with the water already flowing into the mine, led him to believe that an inundation of the mine
was impending. He explained that the only way out of the mine was through the five portals and
that the mine pitched downward from the portals before it turned back up at the first right panel.
He said: "If the water is pouring in there, and a person can be walking up there and the water
would come in, and he would be trapped. The water would wash him away." (Tr. 80.)
The inspector also testified that if the mine were inundated and a miner attempted to get
out of the mine through the doors in the weak wall stoppings, the water collected in front of the
stoppings, which was higher than the top of the door in the stopping, would rush in when the
outer door was opened, trapping the miner between the two walls of the stoppings and drowning
him. He further related that the night before the company had had a large diesel powered pump
pumping at the opposite end of the pit to lower the water level, but that the pump had broken
down and instead of waiting until the pump was repaired to get the water down to a safe level,
"they allowed the miners of this coal mine to go underground in what I feel is a dangerous
situation .... " (Tr. 82.)
The Commission has held that: "To support a finding of imminent danger, the inspector
must find that the hazardous condition has a reasonable potential to cause death or serious injury
within a short period of time." Utah Power & Light Co., 13 FMSHRC 1617, 1622 (October
1991). Accord Blue Bayou Sand and Gravel, Inc., 18 FMSHRC 853,858 (June 1996). The
Commission has further heid that:
In reviewing an inspector's finding of an imminent danger, the
Commission must support the inspector's finding "unless there is
evidence that he has abused his discretion or authority." An
inspector abuses his discretion, making a decision that is not in
accordance with the law, if he orders the immediate withdrawal of
miners in circumstances where there is not an imminent threat to
safety. An inspector is granted wide discretion because he must act
quickly to remove miners from a situation he believes is hazardous.

Id (citations omitted).

300

The Respondent argues, in effect. that the inspector did not make a reasonable
investigation of the surrounding facts~ stating that "he should ~ave taken one or two hours after
issuing the order to take measurements or surve~ to determine if there was sufficient standing
waters to inundate the mine and cause permanent injuries or fatalities." (Resp. Br. at 11-12.)
This argument fails for two reasons. In the first place, the issue in an imminent danger situation
is what the inspector knew at the time he issued the order, not what he should have done
• afterward. In the second place, if the inspector felt that he had time to spend an hour or two
taking measurements and surveys then there was no imminent danger.
The company's other arguments concerning the imminent danger order are also rejected.
The assertions that there were no men working near Portal 1, that there were two other escape
ways, that there were two additional portals, that there was no indication of a build-up of
explosive gases and that there was no indication that the fan and ventilation system at Portal 1 or
at any other location of the mine was not working, even if true, are not relevant to the issue of
whether the mine was threatened by flooding.
I find that the inspector made a reasonable investigation of the surrounding facts. The
large amounts of standing water in the area, the fact that water completely covered the exit door
from the weak wall stopping at Portal 1, the fact that the mud berms were saturated and that
water was already running into Portal 3 and the fact that the pump was no longer working all
support the inspector's conclusion that an inundation of the mine was imminent. Accordingly, I
conclude that Inspector Whitman did not abuse his discretion in this instance and affirm the
107(a) order.

B. Citation No. 4366608
Citation No. 4366608 alleges a violation of section 75.310(d), 30 C.F.R. § 75.310(d), and
states:
'f4is citation is issued in conjunction with the imminent danger
order #4366607. Due to the large amount of rain fall in the mine
area the night before (11106/96), the open strip pit water level is
higher than the intakes, returns and the belt portals. The water was
allowed to acc~ulate in large amounts in front of the # 1 return
entry portal sealing it off with water. The level of water total[ly]
covered the "weak walled stopping," used as a pressure relieve
[sic] for the #1 fan. The water in front of the weak walled
explosion stopping would not relieve the pressure from an
explosion in accordance with the design of the stopping, due to the
large amount of water build up in the front.
(Govt. Ex. 5.)

301

Section 7 5.31 0(d) requires that: "Weak walls and explosion doors shall have crosssectional areas at least equal to that of the entry through which the pressure from an explosion
underground would be relieved. A weak wall and explosion door combination shall have a total
cross-sectional area at least equal to that of the entry through which the pressure from an
explosion underground would be relieved." In short, the regulation requires that the weak wall
completely fit into the entry so that the entire entry is filled in.
Unfortunately, none of the evidence at the hearing went to the issue of whether the weak
wall stopping met this requirement. The citation discusses the fact that the water in front of the
stopping prevented the stopping from serving its purpose of relieving pressure from an
explosion. Indeed, the fact that water built up in front of the stopping, rather than leaking into
the mine, would indicate that the stopping complied with this regulation.
The inspector testified that the company violated the regulation because: "When you pile
"Yater up in front of it, whether it is two inches or you pile four inches or you completely cover it,
you have rendered the purpose of that wall useless. The whole purpose of this is to prevent-that weak wall is there so it can be blown out by the gases. If I pile a bunch of water in front of
it, it is not going to work as adequately as it is designed to ~ork." (Tr. 104.) The Respondent
presented no evidence on this issue and argued in its brief only that "no evidence was presented
that the weak walls and explosion doors were inoperable." (Resp. Br. at 13-14.)
While none of the evidence is relevant to section 75.31 0(d), it does go to section
75.310(a)(5), 30 C.F.R. § 75.310(a)(5), which requires that: "(a) Each main mine fan shall be-(5) Protected by one or more weak walls or explosion doors, or a combination of weak walls and
explosion doors, located in direct line with possible explosive forces." On March 9, 1998, the
Secretary filed a Motion to Amend the Citation to allege a violation of section 75.31 O(a)(5). 1 On
March 23, 1998, the Respondent filed an Objection to Secretary's Motion to Amend Citation,
Request for Mistrial on Prejudicial Error and Request for New Hearing.

On March 3, 1998, I initiated a telephone conference call with the parties and advised
them that it did not appear to me that any of the evidence concerned section 75.310(d), but that it
did address a violation of section 75.31 O(a)(S). I asked counsel for the Secretary if she wished to
move to amend the citation. In another telephone conference call on March 6, 1998, counsel for
the Secretary stated that she did want to file a Motion to Amend the citation. Counsel for the
Respondent stated that she objected and would file an opposition.
1

302

The Secrecary's motion is made pursuant to Fed. R. Civ. P. 15(b)2 to conform the citation
to the evidence.3 The Respondent objects to the amendment on the grounds that to amend the
citation at this stage of the proceedings is prejudicial to the Respondent and that the judge
committed prejudicial error by advising the Secretary of the need to amend. In the alternative,
the Respondent requests that if amendment is permitted, it be allowed to present additional
evidence on the issue. For the reasons that follow, the Motion to Amend is granted and the
Respondent's objections and requests are overruled and denied.
The company has not shown bow it will be prejudiced as a result of this amendment. It
states only that it will be prejudiced because it did not know that section 75.31 O(a)(5) "would be
argued" and that the Secretary unduly delayed her request to amend and would not have made
the motion but for the j4dge bringing the issue to the Secretary's attention. (Resp. Op. at 4-5.)
The Company also argues that the evidence presented at the hearing is "arguably relevar1t" to
section 75.31 O(d). No specific prejudice is alleged.
The Respondent did not object to the citation at the hearing as failing to set forth a
violation of section 7 5.31 0(d). The Respondent did not object at the hearing to the evidence
presented by the Secretary as not being relevant to a violation of section 75.310(d). The
Respondent did not cross-examine the Secretary's witness concerning the cross-sectional area of
the weak wall stopping, although the inspector was cross-examined about the effect of the water
outside the stopping. It was in response to that questioning that he gave the answer set out above
about the weak wall not working as it was designed to work with the water behind it. The
Respondent did not present any evidence at the hearing concerning Citation No. 4366608
generally, or whether the weak wall stopping conformed to section 75.31 0(d) specifically.
Finally, the Respondent did not argue in its brief that the evidence failed to establish that the
cross-sectional area of the weak wall stopping was at least equal to that of the entry. The
company argued only that there was no showing the weak wall stopping was inoperable.

It is ·obvious from the evidence presented that both parties were proceeding on the facts
set out in the narrative of the citation. It is equally obvious that those facts actually allege a

Fed. R. Civ. P. 15(b) states: "Amendments to Conform to the Evidence. When
issues not raised by the pleadings are tried by express or implied consent of the parties, they shall
be treated in all respects as if they had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the evidence and to raise these issues
may be made upon motion·of any party at any time, even after judgment . . .."
2

Commission Rule l(b), 29 C.F.R. § 2700.l(b), states that: "On any procedural
question not regulated by Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
("the Act"), these Procedural Rules, or the Administrative Procedure Act (particularly 5 U.S.C.
554 and 556), the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure .. : ."
3

303

violation of section 75.31 O(a)(5). All of the evidence went to whether the water in front of the
weak wall stopping would prevent the stopping from relieving the pressure of an explosion as
designed. Thus, all of the evidence presented was concerning the facts alleged in the citation, not
the requirements of section 75.310(d), and those facts go to the section of the regulation to which
the Secretary seeks to have the citation amended to allege.
With regard to my having alerted the Secretary that she might wish to amend the citation,
I did so based on guidance from the Commission. In a similar case where the Secretary had
alleged a violation of the wrong section of the regulations, the Commission stated that when the
judge "discovered the Secretary's error, the judge should have issued an order directing the
Secretary to show cause why the citation should not be amended to conform to the evidence and
charge a violation ofthe applicable standard." Faith Coal Co. , 19 FMSHRC 1357, 1361 (August
· 1997). While I did not issue an order to show cause, the effect was the same.
The Respondent has not shown prejudice. What little the company did present and argue
on the citation went to the facts of the citation, not whether those facts ~ctually set out a violation
of section 31 0(d). I find that the company fully understood the gravamen of the violation
charged and knowingly litigated the citation on that basis. Therefore, the Respondent has not
been mislead and is not entitled to present additional evidence on the issue. Nor is the company
entitled to a mistrial. Accordingly, pursuant to Fed. R. Civ. P 15(b), I grant the Secretary' s
Motion to Amend the citation to allege a violation of section 75.31 O(a)(5) of the regulations.
Having amended the citation, I find that the Secretary has established that the build up of
water behind the weak wall stopping in Portal 1, which completely covered the stopping, meant
that the fan in that entry was not protected by a weak wall in direct line with possible explosive .
forces. Consequently, I conclude that the company violated section 75.210(a)(5) of the
regulations.

· 1. Significant and Substantial
The Inspector found this violation to be "significant and substantial." A "significant and
substantial" (S&S) violation is described in Section 104(d)(l) of the Act as a violation "of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard." A_ violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission 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), affg Austin Power, Inc., 9 FMSHRC 2015,2021 (December
1987)(approving Mathies criteria). Evaluation of the criteria is made in terms of"continued

304

normal mining operations." U.S. Steel Mining Co. , Inc., 6 FMSHRC 1573, 1574 (July 1984).
The question of whether a particular violation is significant and substantial must be based on the
particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 1007 (December 1987).
As the inspector testified, the purpose of the weak wall stopping is to prevent the fan
• from being destroyed in the event of an explosion. If the fan is destroyed, there is no way to
dilute, render harmless, and carry away any noxious fumes or gases generated by the explosion.
Thus, I find that the first two criteria in Mathies have been met, there was a violation of the
regulations and that violation contributed to a discrete safety hazard in that the fan could be
destroyed as a result of the violation and miners be subjected to hazardous fumes and gases.
As is usually the case, whether this violation is S&S rests on the third Mathies factor,
whether there is a reasonable likelihood that the hazard contributed to will result in an injury.
With regard to this element, the evidence indicates that this mine is in the lower Hartshorne seam
of coal and liberates a massive amount of methane. The inspector testified that: "Historically
every mine that has been on the lower Hartshorne seam at one time or another was blown up due
to a build-up of methane and dust." (Tr. 61.) In.addition, as previously noted, with the water
completely covering the stopping anyone trying to exit through the doors in the stopping would
likely be trapped between the walls and drowned.
Accordingly, I find that it was reasonably likely that a mine explosion would occur,
destroying the fan and resulting in permanently disabling or fatal injuries resulting from fumes,
gas or drowning. Therefore, I conclude that the violation was "significant and substantial."

2. Negligence
The inspector found the negligence involved in this violation to be "high." The evidence
that this filling up of the area in front of the weak wall stopping had occurred the night before,
that the operator was awaie of it, that he had done nothing to alleviate it (perhaps because a pump
had broken down), and that miners had been permitted to enter the mine without at least
beginning to drain the area supports this finding. Consequently, I conclude that the degree of
negligence for this violation is "high."
C. Order No. 4366609
Order No. 4366609 alleges a violation of section 75.380(e) of the regulations, 30 C.F.R.
§ 75.380(e). It states:
This citation is issued in conjunction with the imminent
danger order #4366607. Due to the large amount of rainfall in the
mine area the night before ( 11/06/96), the open strip pit water level
is higher than the intakes, returns and belt portals. The water was

305

allowed to accumulate in large amounts at an ·e levation greater than
the level of the portals. The water from the·pit is [sic] located next
to the portals is flooding allowing-the water to obstruct the portal
openings. The pit contains a large amount of water. If the weak
wall stopping in the #I return entry or the weakly constructed
burms [sic] were to fail, the inrush of water would be great,
causing 10 coal miners on the 151 right section to be trapped
underground by water. [Th]is condition might cause death to the
miners underground. This mine is on a 8.5% decline slope
allowing the water to flow into the mine rapidly trapping the
miners below. The bottom of the main entries are already full of
standing water adding to the dangerous condition. It is
unexcusable [sic] of management to allow this condition to exist.
(Govt. Ex. 6.)
Section 75.380(e) requires that: "Surface openings shall be adequately protected to
prevent surface fires, fumes, smoke, and flood water from entering the mine." For the same
reasons that I concluded that the inspector reasonably believed that an imminent danger existed,
see supra pp. 5-6, I conclude that the company violated this section.

I. Significant and Substantial
The inspector found this violation to be "significant and substantial." Since this violation
was one of the main reasons that the inspector issued his imminent danger order, which I have
already affirmed, it logically follows that the violation was S&S. Therefore, I conclude that the ·
company's violation of section 75.380(e) was "significant and substantial."

· 2. Unwarrantable Failure
This order wa5 issued under section 104(d)(2) of the Act, 30 U.S.C. § 814(d)(2).4 The
withdrawal order issued under section 104(d)(l), 30 U.S.C. § 814(d)(l), which served as the
predicate for this order was Order No. 4366277, (Govt. Ex. 1), which the parties agreed to settle
by reducing the civil penalty. (Tr. 4 7-8.)

Section 104(d)(2) states: "If a withdrawal order with respect to any area in a coal or
other mine has been issued pursuant to paragraph (1), a withdrawal order shall promptly be
issued by an authorized representative of the Secretary who finds upon any subsequent
inspection the existence in such mine of violations similar to those that resulted in the issuance of
the withdrawal order under paragraph (1) ...."
4

306

A 104(d)(2) order requires a showing of"unwarrantable failure." The Commission has
held that unwarrantable failure is -aggravated conduct constituting more than ordinary negligence
by a mine operator in relation to a violation of the Act. Emery Mining Corp., 9 FMSHRC 1997,
2004 (December 1987); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007,2010 (December
1987). "Unwarrantable failure is characterized by such conduct as 'reckless disregard,'
'intentional misconduct,' 'indifference' or a 'serious lack of reasonable care.' [Emery] at 200304; Rochester & Pittsburgh Coal Corp. 13 FMSHRC 189, 193-94 (February 1991)." Wyoming
Fuel Co., 16 FMSHRC 1618, 1627 (August 1994).
The inspector testified that he believed that this violation resulted from the company's
unwarrantable failure because:
The operator knew about this condition. He allowed it to exist. He
allowed the men to enter the mine.
He knew about it. As we entered the mine, there was [sic]
men already involved in the pumping process. .
The night before that the operator had put out a large
diesel-powered pump at the opposite end of the pit.
They knew they had problems with the water. They were
trying to pump it. The pump failed them. Rather than wait to get
the water pump[ed] down to a safe level, they allowed the miners
of this coal mine to go underground in what I feel is a dangerous
situation, go underground and work.
(Tr. 82.) .
In addition to the potential for the water outside to go into the mine, there is always water
inside the mine due to the nature of the seam. This water is continually pumped out by a 450
gallon per minute pump.
The Respondent argues that there was no unwarrantable failure because there was not as
much water outside of the mine as the inspector seemed to think that there was. Therefore, the
company asserts, the mine would not have been inundated and since no miners were working in
the vicinity of the entries there was no real danger.
This argument is not persuasive. As the Secretary points out, the entries slope downward,
so that even if water did not completely fill up the mine, it would be channeled down the entries
to collect at the bottom and would trap the miners in the mine.

307

I conclude that the operator displayed a serious lack of reasonable care in this instance.
Accordingly, I conclude that the violation of section 75.380(e) resulted from the company's
unwarrantable failure.

Civil Penalty Assessment
The Secretary has proposed penalties of$1,000.00 each for Citation No. 4366608 and
·Order No. 4366609. 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)
oftheAct. Sel/ersburgStoneCo. v. FMSHRC, 736F:2d 1147,1151 (71hCir. 1984); Wallace
Brothers, Inc., 18 FMSHRC 481,483-84 (April1996).
In cormection with the penalty criteria, the parties stipulated that the Pollyanna l"Jo. 8
mine produced 1,875 tons of coal in 1996 and that the company demonstrated good faith in
abating the violations. (Tr. 14-15.) No evidence was offered as to the company's history of prior
violations. Since the Secretary has the burden of presenting this evidence, I find that the
company's history of prior violations is not an aggravating factor in this case. No evidence was
presented on the effect of the penalties on the operator's ability to remain in business. Since the
operator has the burden on this issue, I find that the penalties will not adversely affect the .
operator's ability to remain in business. For both of the contested violations, I find the operator's
negligence to have been "high" and the gravity of the violations to be serious.
Taking all of these factors into consideration, I find the penalties proposed by the
Secretary to be appropriate.5 The penalty for each order or citation is as follows:
Docket No. CENT 97-69
Order/Citation No.
4366582
4366589
4366593 .
4366610
4366611

Proposed Penalty
$ 81.00
$ 136.00
$ 50.00
$ 81.00
$ 157.00
Totals
$ 505.00

5

Assessed Penalty
$ 64.80
$ 108.80
$ 40.00
$ 64.80
$ 125.60
$ 404.00

Attached to the Secretary's brief as Exhibit A is a copy of a Decision Approving
Settlement issued by Judge Bulluck on January 30, 1998. The decision deals with numerous
cases involving Georges Colliers Inc. (lead Docket No. CENT 97-74). The Briefmak~s no
reference to the exhibit. I do not know why it is attached, but I have not considered it in deciding
the cases before me or arriving at penalties.

308

Docket No. CENT 97-90
4366594
4366595
4366596
4366598
4366599
4366600
Totals

$ 128.00
$ 210.00
$ 50.00
$ 50.00
$ 81.00
$ 75.00
$ 594.00

$ 102.40
$ 168.00
$ 40.00
$ 40.00
$ 64.80
$ 60.00
$ 475.20

Docket No. CENT 97-112
4366277
4366280
4366591
4366592
4366608
4366609
Totals

$ 700.00
$ 700.00
$ 700.00
$ 700.00
$1,000.00
$1.000.00
$4,800.00

$ 630.00
$ 630.00
$ 630.00
$ 630.00
$1 ,000.00
$1.000.00
$4,520.00

ORDER

Accordingly, Order No. 436607 in Docket No. CENT 97-26-R is AFFIRMED; Citation
Nos. 4366582, 4366589,4366593,4366610 and 4366611 in Docket Nos. CENT 97-29-R, CENT
97-30-R, CENT 97-33-R and CENT 97-69 are AFFIRMED; Order No. 436659 5 and Citation
Nos. 4366594, 4366596, 4366598, 4366599 and 4366600 in Docket Nos. CENT 97-34-R, CENT
97-35-R, CENT 97-36-R, CENT 97-38-R and CENT 97-90 are AFFIRMED; Citation No.
4366608 in Docket Nos. CENT 97-27-R and CENT 97-112 is MODIFIED to allege a violation
of section 75.310(a)(5), instead of section 75.310(d), and is AFFIRMED as modified; and Order
Nos. 4366277,4366280, 4366591 , 4366592 and 4366609 in Docket Nos. CENT 97-28-R,
CENT 97-31-R, CENT 97-32-R and CENT 97-112 are AFFIRMED.
Georges Colliers Inc. is ORDERED TO PAY civil penalties of $5,399.20 within 30 days
of the date of this decision. On receipt of payment, these cases are DISMISSED.

d.~JU,~-

T. Todd Hod;~
Administrative Law Judge

309

Distribution:
Elizabeth Maxine Christian, Esq., P .O. Box 720528, Oklahoma City, OK 73172-0528
(Certified Mail)
Madeleine T. Le, Esq., Office of the Solicitor, U.S. Department of Labor, 525 South Griffin
Street, Suite 501, Dallas, TX 75202 (Certified Mail)

/fb

310

ADMINISTRATIVE LAW JUDGE ORDERS

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

March 4, 1998

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

CIVlL PENALTY PROCEEDING
Docket No. PENN 98-14-M
A. C. No. 36-00184-05525

v.
GLOBAL STONE PENROC, INC.,
Respondent

Penroc

ORDER DENYING MOTION FOR SUMMARY DECISION

On February 17, 1998, Global Stone Penroc Inc., (Global) filed a motion for summary
decision pursuant to Commission Rule 67, 29 C.F.R. Section 2700.67. Under Commission Rule
67(b), a motion for summary decision shall be granted only if the entire record, including the
pleadings, depositions, answers to interrogatories, admissions, and affidavits shows: (1) that
there is no genuine issue as to any material fact; and (2) that the moving party is entitled to
summary decision as a matter oflaw. Global's motion addresses each of the six citations
contested in the instant case.
Citations No. 4434034 and 4434035

In exarn.fuing the r.espective documentation of the parties, it is obvious from the
conflicting statements that there remain genuine issues as to material facts, i.e., whether the cited
pumps were, as a factual matter, grounded or provided with equivalent protection within the
meaning of the cited standard, 30 C.F.R. Section 56.12025. Accordingly, the motion for
summary decision with respect to the instant citations must be denied.
Citations No. 4434002 and 4434004

Global argues that these citations should also be vacated as duplicative of the preceding
citations. Global notes that both Citations No. 4434002 and 4434035 concern the grounding of a
single piece of equipment, i.e., Global's 75 horsepower consolidated pit sump pump and that
Citations No. 4434004 and 4434034 concern the grounding of another single piece of equipment
i.e., Global's 200 horsepower consolidated pit sump pump.
The standard at 30 C.F.R. Section 56.12025 charged in Citations No. 4434035 and
4434034 provides in relevant part that "all metarenclosing or encasing electrical circuits shall be
grounded or provided with equivalent protection ..." The standard at 30 C.F.R. Section

311

56.12030 charged in Citations No. 4434002 and 4434004 provides that "when a potentially
dangerous condition is found it shall be corrected before equipment or wiring is energized."
The Secretary argues that Global violated the cited standards in two ways, i.e., that it violated the
standard at 30 C.F.R. Section 56.12025 by omission, in failing to ensure that the pumps were
grounded and that it violated 30 C.F.R. Section 56.12030 by commission, in allowing the pumps
to be energized with a potentially hazardous condition, the ground fault hazard.
The facts of this case are not unlike those in Southern Ohio Coal Co., 4 FMSHRC 1459
(August 1982) wherein the Commission held that violations which arise out of a single series of
events may under certain circumstances constitute separate and distinct violations. In that case,
the operator was cited for failure to remove temporary roof supports by remote methods and by
then allowing miners to work under the unsupported roof. The operator argued that the
violations should merge because the required duties were the same, i.e., that miner~ should not
work under unsupported roof. In affirming the citations, the Commission held, however, that the
standards were violated in two ways, by omission in failing to use remote methods, and by
commission, by allowing the miners to work under unsupported roof. The Commission's
reasoning in the Southern Ohio is applicable hereto and controlling. The cases cited by Global in
its brief are distinguishable. Under the circumstances Global is not entitled to a summary
decision as a matter of law with respect to the citations at issue.
Citation No. 4076955
Global notes that the above citation alleges that a "safe means of access was not provided
to the engine compartment walkway" on a caterpillar front end loader Model 992-C, in violation
of 30 C.F.R. Section 56.11001, thereby exposing employees to a falling hazard of approximately
3 Yl feet. The cited standard provides that "safe means of access shall be provided and
maintained ~o all working places." While acknowledging that one of the manufacturer-installed
steps to the engine compartment was missing and another may have been damaged at the time
the citation was issued, Global nevertheless claims that it provided a step ladder as a safe means
of access. The Secretary notes however and provides a supporting affidavit to demonstrate, that
conflicting evidence exists concerning the circumstances under which miners might climb or
otherwise access the engine compartment without the stai.rs or step ladder. In addition, there
appears to be a factual dispute.as to whether miners had in fact accessed the engine using unsafe
means such as crawling or climbing.
Genuine issues clearly remain as to material facts and accordingly, Global is not entitled
to a summary decision as matter of law.
Order No. 4076957

Global notes that the above order alleges that "21 bent steps were observed on the
stairway" leading to the scalper screen, a "regularly traveled walkway." Global also notes that
MSHA alleged that the "bent" steps exposed employees to a "significant and substantial" falling

312

hazard and that this constituted an "unwarrantable failure." Iil connection with its motion herein,
Global submitted photocopies of photographs which it maintains shows that no steps were
missing and that "bends" in individual steps did not pose a safety hazard. Global also quotes one
of its employees purportedly stating that he "felt perfectly safe" using the steps.

In her response, the Secretary notes that the photographs are not verified and do not
represent the hazard as it existed when cited. She further notes that the photographs do not
acc~ely represent the condition of the steps at issue. She further notes that the condition was
recorded by the company in its own examination book as constituting a hazard and was reported
over a three..month period without any apparent remedial action. Finally, the Secretary notes that
Inspector Amati observed the cited stairs and noted that twenty..one of the steps were
significantly damaged and created a fall hazard.
Under the circumstances, there are clearly genuine issues as to material fact concerning
Order No. 4076957, and Global's motion for swnmary decision must accordingly be DENIED.

Distribution:
John M. Strawn; Esq., Office of the Solicitor, U.S. Dept. of Labor, Gateway Bldg., Room 14480,
3535 Market St., Philadelphia, PA 19104 (Certified Mail)
Adele L. Abrams, Esq., Patton Boggs, L.L.P., 2550 M Street, N.W., Washington D.C. 20037
(Certified Mail)
\mea

31 3

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