OCTOBER 2005

COMMISSION ORDERS

10-25-2005

Mark Pollock v. Kennecott Utah Copper Corp.

WEST 2003-182-DM

Pg. 651

ADMINISTRATIVE LAW .JUDGE DECISIONS

Unpublished from September 2005
09-16-2005

R & D Coal Company

PENN 2005-213-R

Pg.653

10-06-2005
10-12-2005
10-18-2005
10-21-2005

Vulcan Construction Materials
D & D Anthracite
Wabash Mine Holding Co.
Sec. Labor, MSHA on behalf of Wendell
McClain et al. V. Misty Mountain Mining
And others
Mark W. Gibson v. Triple C Trucking, Inc.

LAKE 2005-1-M
PENN 2004-221-R
LAKE 2004-147

Pg.661
Pg.666
Pg.672

KENT 2005-96-D
LAKE 2005-84-D

Pg.690
Pg. 709

10-31-2005

i

OCTOBER 2005

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

Review was denied in the following case during the month of October:

Daniel B. Lowe v. Southwest Division, Aggregate Industries, Docket No. WEST 2005-246-DM.
(Judge Manning, September 8, 2005)

ii

COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION ·
601 NEW J ERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

October 25, 2005
MARK POLLOCK

v.

Docket No. WEST2003-182-DM

KENNECOTT UTAH.COPPER CORP.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners

ORDER
BY THE COMMISSION:
On May 19, 2005, the Commission issued an order directing the formally appointed
personal representativ~ of Mark Pollock, deceased, to file within 120 days an amended motion to
substitute himself in the place of Pollock in this proceeding. On September 22, 2005, having not
received a motion to substitute, the Commission issued an order directing counsel for Pollock to
show good cause for the failure of a personal representative of Pollock to file the motion and to
do so within 30 days of the date of the order. The order stated that, absent a showing of good
cause, this proceeding would be dismissed. The order was sent by certified mail and, according
to the return receipt, it was delivered to Pollock's counsel on September 26, 2005.
Having received no response to the order, we hereby dismiss this proceeding.

~-

27·FMSHRC 651

Distribution (by certified mail)
Arthur F. Sandack
Attorney at Law
8 East Broadway, Suite 510
Salt Lake City, UT 84111
Laura E. Beverage, Esq.
Karen L. Johnston, Esq.
Jackson Kelly, PLLC
1099 18th Street, Suite 2150
Denver, CO 80202
James M. Elegante, Esq.
Kennecott Utah Copper Corporation
8362 West 10200 South
P.O. Box 6001
Magna, UT 84044-6001
Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

27 FMSHRC 652

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W. Suite 9500
Washington, DC 20001-2021

September 16, 2005

R & D COAL C01v1PANY,

CONTEST PROCEEDINGS

Contestant
Docket No. PENN 2005-213-R
Order No. 7007782; 7/26/2005
Docket No. PENN 2005-214-R
Order No. 7007783; 7/26/2005
Docket No. PENN 2005-215-R
Order No. 7007784; 7/26/2005
V.

Docket No. PENN 2005-216-R
Order No. 7007785; 7/26/2005
Docket No. PENN 2005-217-R
Order No. 7007786; 7/26/2005
Docket No. PENN 2005-218-R
Citation No. 70 07787; 7/26/2005

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

Docket No. PENN 2005-219-R
Citation No. 7007788; 7/26/2005
Docket No. PENN 2005-223-R
Citation No. 7007752; 7/13/2005
Docket No. PENN 2005-224-R
Citation No. 700775.3; 7/13/2005
Docket No. PENN 2005-225-R
Citation No. 7007754; 7/13/2005
Docket No. PENN 2005-226-R
Citation No. 7007758; 7/14/2005
Docket No. PENN 2005-227-R
Citation No. 7007608; 7/14/2005
R & D Coal Mine
Mine ID 36-02053
27 FMSHRC 653

DECISION
Appearances: Cindy Rothermel, Independent Miners Association, Tremont, PA for the
Contestant;
Gale Green, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia,
PA, for the Secretary.
Before:

Judge Weisberger

The issues in these consolidated proceedings are the validity of (1) citations issued to R &
D Coal Company ( "R & D" ) alleging violations of various mandatory standards set forth in Title
30 of the Code of Federal Regulations, and (2) Section 104(b)1 orders that were issued based on the
alleged failure of R & D to abate the cited violative conditions. The pertinent Notices of Contest
were consolidated, and, pursuant to the parties' agreement, the cases were scheduled to be heard in
·Harrisburg, Pennsylvania on August 3, 2005. At the hearing, the Secretary withdrew Order Nos.
7007782, 7007783, 7007787, and 7007788, and vacated Citation Nos. 7007752, 7007753. The
Secretary made a Motion to Dismiss, Docket Nos. PENN2005-213-R, 214-R, 218-R, 219-R, 223-R,
and 224-R, which relate to the vacated orders and citations. The motion was not opposed by
·
Contestant, and was granted.
I.

Docket No. PENN 2005-227-R (Citation No. 7007760), and Docket No. PENN
2005-217-R (Order No. 7007786)

At the hearing, a bench decision was made relating to the above citation and order. This
decision is set forth below, except for changes of matters not of substance.
Citation No. 7007760, alleges a violation of 30 C.F.R. §77.205(a), which
provides that, "Safe means of access shall be provided and maintained to all working
places." The working place at issue, was a platform used to obtain access to a
certain wheel located adjacent to the shaker house, which was part of the tipple. A
diagonal ladder-like structure was the exclusive means of access to the platform.
This ladder was equipped with iron non-flexible handrails located approximately 20
inches above the rungs of the ladder, also referred to as angle irons, which were about
two inches wide and approximately four feet long. The distance between the rungs
or angle irons was approximately 20 inches.
The Inspector opined, in essence, that in spite of the presence of handrails,
there was not any safe access to the platform where workers would provide
maintenance to the wheel, and change its oil. He indicated that the ladder could be
hazardous in the presence of rain and/or ice, in which case a person could fall and
sustain injuries. Also, he noted the lack of a guard to prevent slipping. He indicated

1

Section 104(b) of the Federal Mine Safety and Health Act of 1977 ("The Act").

27 FMSHRC 654

that hjs opinion was also prewcated on the fact that if one would have to climb thls
ladder carrying objects in both hands, that a handrail wo~ld not be helpful, and hence
using the ladder would be dangerous due to the width of the angle irons.

However, I place more weight on the testimony of the witness for the company, who has
operated this mine for over 10 years. He indicated in testimony that was not impeached or
contradicted, that access to the wheel was required only approximately three times a year in order
to grease it. In that connection, it was his testimony that was not contradicted or impeached, that the
only equipment carried by an individual who would access the wheel consists of a grease gun. He
indicated that it could be carried in one hand, even in the non-dominant hand, due to its insignificant
weight, and its comparatively small size. This testimony was not contradicted or impeached.
Based upon this record, I find that it has not been established that there was
an unsafe means of access. In other words, it has not been established that the
Operator was not in compliance with Section 77.205(a), supra. Therefore, I find that
it has not been established that there was a violation of Section 77 .205(a), supra, and
accordingly the Notice of Contest is sustained, and the underlying Citation (No.
7007760) shall be dismissed.
Now, with regard to Order No. 7007786 that was issued for failure to abate
the above-mentioned citation, that too shall be dismissed. The predicate for the
Section 104(b) order was the failure to abate a validly issued citation, i.e., No.
7007760. In light of my decision, finding that citation not to have been properly
issued, there then is no longer a predicate for the Section 104(b) order. Accordingly,
the Notice of Contest, whlch is the subject of Docket No. PENN 2005-217-R is
sustained, and Order No. 7007786 shall be dismissed.
II.

DocketNo.PENN2005-225-RCCitationNo. 7007754)andDocketNo.PENN2005215-R (Order No. 7007784)
A.

Violation of 30 C.F.R. § 1605Ck)

MSHA Inspector, Jack McGann, inspected the subject mine on July 13, 2005. He observed
that the right side of a roadway that ran from the main road to a parking lot and hoist house, rud not
have any berm for a distance of approximately 40 feet in length between a walkway to a shaker
house and a coal stockpile. According to McGann, within a few feet of the edge of the right-hand
side of the road, there was a twenty-five foot drop-off that sloped downward at a 75 ° angle.
McGann opined that due to frequent fog on the roadway in the early morning, and lack of light in
the winter, road traffic could be hazardous . He was concerned that, due to the lack of a berm,
vehlcles could fall off the road in these conditions, especially taking into account that the road slants
toward the unbenned side. McGann issued a citation alleging a violation of 30 C.F.R. §77.1605(k)
which provides as follows: "Berms or guards shall be provided on the outer bank of elevated
roadways."

27 FMSHRC 655

According to David Himmelberger, the Operator of the site in question, a natural rock strata
that he measured as being 18 inches above the roadway, is located in the area where the Inspector
said that a berm is to be provided . Accordingly, he was of the opinion that there was not any
violation.
Based on the testimony and the parties' stipulation, I find that, for an approximately 40 foot
section of the roadway in question, there were not any berms provided. Although Himmelberger
testified to the presence of a "rock strata" 18 inches above the roadway, the record does not establish
whether this height was unifo~ throughout the strata or just at one measured point. Nor is there
evidence of the length, width, total area of the strata, or its precise location in relation to the
approximately 40 feet of roadway that was above the drop-off. Thus, it can not be concluded that
the rock strata constituted a sufficient berm in the cited area.
Since there were not any berms along an elevated road with vehicular traffic at the cited area,
I find that the Secretary·did establish a violation of Section 1605(k)

B.

Negligence

According to the uncontradicted testimony of Himmelberger, he has operated the mine for
ten years; over this period of time and in the twenty-five year history of the mine, there have not been
any accidents or injuries due to the absence of a berm. Taking this into account, I find that the level
of the Operator's negligence to have been very low.
C.

Significant and Substantial

Within the framework of this record, and taking into account the Inspector's testimony that
the violation was not significant and substantial, I find that the violation was not significant and
substantial.
D.

Order No. 7700760

On July 13, 2005, when McGann issued Citation No. 7007754, he discussed abatement with
Himmelberger, and the latter told him that the cited condition had been in existence for twenty to
twenty-five years, and it constituted a was a violation, it should have been cited in the past.
According to the Inspector, Himmelberger did not ask for more time to abate the violation as he said
he did not think it was a violation. McGann set the abatement time for the following day, July 14.
On July 14, McGann issued a modification to the initial citation by eliminating the significant
and substantial finding, and lowering the level of negligence and the likelihood of an injury or
illness. Also, the Inspector issued a modification extending the abatement time to July 20 to allow
the Operator more time to build berms. According to McGann, after he informed Himmelberger of
the extension, the latter told him that he did not consider the conditions to be a violation. When
McGann returned to the site on July 26, he noted that there were not any berms on the cited roadway,
27 FMSHRC 656

and the conditions were the same as on July 13. According to the Inspector, he did not consider a
second extension of the abatement time because when he had asked Himmelberger if he intended
to install berms the latter told him no, " ... we'd go to court over it .... " (Tr. 55) McGann then issued
an order under Section 104(b) of the Act, which, as pertinent, provides as follows:
(b) If, upon any follow-up inspection of a coal or other mine, an authorized
representative of the Secretary finds (1) that a violation described in a citation issued
pursuant to subsection (a) has not been totally abated within the period of time as
originally fixed therein or as subsequently extended, and (2) that the period of time
for the abatement shall not be further extended, he shall determine the extent of the
area affected by the violation and shall promptly issue an order requiring the Operator
of such mine or his agent to immediately cause all persons, except those persons
referred to in subsection (c), to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative of the Secretary determines that
such violation has been abated.
In contesting a Section 104(b) order the issues to be litigated are the reasonableness of the
time set for abatement, or the Secretary's failure to extend that time. (Energy West Mining Co., 18
FMSHRC 565, 568 (Apr. 1996)) In analyzing these issues it must be considered" ... whether the
inspector abused his discretion in issuing the order." (Energy West, supra, at 569).
Within the context of the record herein, I find that it has not been established that there was
an abuse of discretion on the part of the Inspector. When the Inspector initially set the abatement
time the Operator did not seek additional time nor did it indicate that the abatement time was
unreasonable. The Inspector then further extended the time and in discussing the extension with the
Operator, the latter again did not request additional time or argue that the time set was unreasonable.
When the Inspector returned on July 26, he observed that there was not any abatement, nor had effort
been made to abate the violative condition. There is no indication that the Operator requested
additional time. Therefore, within the context of this record, I find that the Inspector's discretion
was not abused, and that, accordingly, the Notice of Contest to the Section 104(b) order is dismissed.
III.

Docket No. PENN 2005-226-R (Citation No. 7007758) and Docket No. PENN 2005216-R (Order No. 7007785).
A.

Violation of 30 C.F.R. § 205(e)

On July 14, 2004, McGann observed a wooden platform approximately four feet by five feet
that was located four to five feet above the ground. The platform served as the only access to a
storage trailer. He indicated that there were not any hand rails on the platform. According to the
Inspector, the lack of hand rails constituted a hazard since a person could fall off the platform, which
would be more likely in the event of rain or the presence of snow or ice on the platform. Also,
pieces of metal, beams, and pipes that were located on the ground in the vicinity of the platform
could increase the likelihood of an injury. McGann concluded that it was reasonably likely that a
27 FMSHRC 657

person could fall off the platform and break ·a bone. He termed the Operator's negligence moderate
because the condition had been in existence for a number of years. McGann issued a citation
alleging a violation of 30 C.F.R. § 77.205(e) which provides, as pertinent, that elevated walkways,
and elevated ramps,"... shall be provided with handrails, ...."
Himmelberger did not deny that there were an absence of handrails. He argued that the
installation of handrails would impede the loading of material from a truck to the ramp and then into
the trailer which is the sole use of the ramp, i.e., as a loading dock. Based on the testimony of the
Inspector, I find that a violation of Section 77.205(e) has been established.
B.

Significant and Substantial

A "significant and substantial" violation is described in Section 104(d)(l) of the Mine 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." 30 U.S.C. § 814(d)(l). A violation is properly
designated significant and substantial "if based upon the particular facts surrounding the violation
there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature." Cement Division, National Gypsum Co:, 3 FMSHRC 825 (April
1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission
explained its interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard--that is, a
measure of danger to safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an
injury; and (4) a reasonable likelihood that the injury in question will
be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 1129
(August 1985), the Commission stated further as follows:
We have explained further that the third element of the Mathies
formula "requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in
U. S. Steel Mining Co.,
which there is an injury."
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that,
in accordance with the language of Section 104(d)(l), it is the
contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining Company,
27 FMSHRC 658

Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining
Company, Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
Based on the uncontradicted testimony of the Inspector, I find that the lack of a handrail did
contribute to the hazard of a person falling off the ramp and injuring himself. According to the
Inspector, such a accident was reasonably likely to have occurred. However, he did not explain in
any detail the basis for the this conclusion aside from indicating that in general, the size of items
carried by a employee on the ramp and the presence of rain, ice, or snow could affect the likelihood ·
of a fall occuning.
On the other hand, it was the uncontradicted and unimpeached testimony of Himmelberger
that in the time that he owned the mine, approximately 10 years, no one was hurt or injured while
loading or unloading on the platform. Within this context I find that the third element of Mathies,
i.e., the reasonable likelihood of an injury producing event, has not been established. Thus, I find
that the violation was not significant and substantial.
C.

Order No. 7007785

On July 14, McGann issued Citation No. 7007758 at 9: 15, a.m., on July 14,and an abatement
time was set for 1400 the same day. At approximately 2:00 p.m. McGann talked to Himmelberger
about the citation but the latter did not ask for more time to abate the condition. Nor did he give any
reason why he could not comply.
Due to a death in his family, McGann was unable to return to the site until July 26, at which
time he discussed all outstanding citations with Himmel berger. The Inspector decided not to extend
the abatement for the citation at issue, because 12 days had expired from the issuance of the citation
on July 14 until July 26 when he revisited the mine and the condition still had not been abated. Also,
Himmel berger had not indicated to him that he needed more time to abate. The Inspector then issued
a Section 104(b) order.
Within the context of the above evidence, I find that it has been established that there was
not any abuse of discretion on the Inspector's part in either setting the initial abatement date, nor in
not extending it. In addition to the Inspector's testimony, I take into account the parties' stipulation
that the company had not requested any additional time to abate nor did it contend that the time set
for abatement was unreasonable.
Order

It is Ordered as follows: (1) that based on the Secretary's vacation of the following Citation
Nos.: 7007752, 7007753, and withdrawal of the following Order Nos.; 7007782, 7007783, 7007787
and 7007788, these Citations and Orders shall be Dismissed; (2) that the following Docket Nos. be
Dismissed: PENN 2005-213-R, 214-R, 218-R, 219-R, 223-R, and 224-R; (3) that Docket Nos.
PENN2005-215-R and 225-R be Dismissed; (4) that Citation No. 7007758 be Affirmed, except that
27 FMSHRC 659

it shall be Amended to not significant and substantial; (5) that Docket No. PENN 2005-226-R be
Dismissed; (6) that Order No. 7007785 be AtTmned, and Docket No. PENN 2005-216-R be
Dismissed; and (7) that Notices of Contest PENN 2005-217-R and PENN 2005-227-R be
Sustained, and Citation No. 2007760, and Order No. 2007786 be Dismissed.

L.w
Avram Weisberger

Distribution:
Cindy Rothermel, Independent Miners Association, 44 N. Crescent, Tremont, PA 17981
Gale Green, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630 East, The Curtis
Center, 170 S. Independence Mall West, Philadelphia, PA 19106-3306

/sb

27 FMSHRC 660

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001

October 6, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
~etitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2005-1-M
A.C. No. 47-00219-36708

v.
VULCAN CONSTRUCTION
MATERIALS, L.P.,
Respondent

Sussex Quarry

DECISION
Appearances:

Christine Kassak Smith, Esq., Office of the Solicitor, U.S. Department of
Labor, Chicago, Illinois, for the Petitioner;
Robert Stadler, Supervisor of Safety and Health, Vulcan Construction Co.,
Romeoville, Illinois, for the Respondent.

Before:

Judge Feldman

This proceeding concerns a petition for assessment of civil penalty filed pursuant to
section l lO(a) of the Federal Mine Safety and Health Act of 1977 (the Mine Act), 30 U.S.C.
§ 820(a), by the Secretary of Labor (the Secretary), against the respondent, Vulcan Construction
Materials, L.P. (Vulcan). The petition seeks to impose a total civil penalty of $120.00 for two
alleged non-significant and substantial (non-S&S) violations of the mandatory safety standard
in section 56.12067, 30 C.F.R. § 56.12067, governing the installation of transformers.
Generally speaking, a violation is properly designated as non-S&S if it is unlikely that the
hazard contributed to by the violation will result in an accident causing serious injury.
Cement Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981).
The hearing in this proceeding was conducted on May 18, 2005, in Milwaukee,
Wisconsin. At the hearing page 2-2 of MSHA's Electrical Inspection Procedures Handbook was
proffered by Vulcan and identified as Respondent's Exhibit 14. The record was left open
for submission of Chapter 2 of the handbook in its entirety. Chapter 2 was admitted as
"Resp. Ex. 14" on June 10, 2005, at which time the record was closed. The parties' post-hearing
briefs are of record.

I. Statement of the Case
The issue in this proceeding is the applicability of section 56.12067 to two outside
transformers at Vulcan's limestone quarry. The transformers are installed 4 feet above the
27 FMSHRC 661

ground. The pertinent provision of section 56.12067 requires _transformers installed less than
8 feet from the ground to be surrounded by a fence that is at least 3 feet from energized
transformer wires. The cited wires are less than 3 feet from the fence. Section 56.12067 does
not require energized transformer wires or other parts to be surrounded by a fence if the
transformer is elevated at least 8 feet above the ground because of the unlikelihood of accidental
contact. The question in this case is whether the subject energized wires that are 12 feet above
ground level violate section 56.12067. For the reasons discussed below, the citations shall be
vacated because the ci~ed energized wires do not constitute a violation of the safety standard
since they are not accessible to inadvertent contact.

II. Findings of Fact
Vulcan operates a limestone quarry located in Waukesha, Wisconsin. The quarry was
inspected by Mine Safety and Health (MSHA) Inspector Frank Taylor on March 30, 2004.
Taylor observed two outside transformers, also known as substations. A transformer
converts high voltage energy into lower voltage that is used to energize mine operations.
The transformers cited by Taylor were used to provide energy to the primary crusher and the
C2 tower. The primary crusher is the site of the initial limestone crushing process. The
C2 tower is a screening tower where the material is sized, and from which the product is
conveyed to different stockpiles.
Section 56.12067 requires the transformers at both the primary crusher and the C2 tower
to have perimeter fencing because they are installed less than 8 feet above ground level.
Specifically, each transformer is situated on a flatbed trailer that is raised approximately 4 f~et
above the ground. The dimensions of both trailer beds are 16 feet long by 8 feet wide. Both
transformers sit on the wood floor of the trailers. The transformer structures are secured to the
metal frame of the trailers with metal bolts.
The transformers are surrounded by chain link fences on three sides that measure 8 feet
high from the base of the trailers. The fences are grounded and contain warning signs reflecting
"high voltage." The fourth side of the substations are the motor control centers within which the
transformer on-off controls are located. The Secretary concedes the chain Jink fences are
"substantial" and that the transformers are fenced in accordance with section 56.12067.
(Tr. 78, 142).
The tops of the fences at both locations are approximately 12 feet above the ground.
There are metal frames at the tops of the fences. There are six parallel energized "bus wires" that
are attached to the frames that extend at the top of the fences over the width of the truck bed. 1
Thus, the bus wires extend approximately 8 feet above the trailer beds, or 12 feet above the
ground. The bus wires are approximately 12 feet long at the primary crusher location, and
approximately 10 feet long at the C2 tower substation. The bus wires are less than the 16 foot
length of the trailer.beds because there are insulators at both ends of each bus wire that are
approximately 2 feet long.
1

There was a seventh bus wire at the C2 tower substation that was not energized.
27 FMSHRC 662

At both substations, the outermost overhead bus wires_running parallel to the 16 foot long
fence-sides are approximately 1 foot from the fence. At both locations, the bus wires are
approximately 2 feet from the 8 foot long fence-sides separated by the insulators on the ends of
each bus wire.
The incoming bus wires carry 4,160 high volts phase to phase that is converted to
480 volts phase to phase carried through the outgoing bus wires. (Joint Stip. 9, 10). The
bus wires are shielded.with a heavy outer layer of insulation. Physical contact with a properly
shielded, insulated bus wire does not .present an electrocution hazard. (Tr. 220-24).
The bus wires are firmly secured to the metal frames. In the unlikely event that energized
bus wires became dislodged and touched the fence, the fence could only become energized if the
insulation on the bus wire was defective. Grounding of the fence makes the possibility of electric
shock even less likely. (Tr. 237-39). As discussed below, the purpose of section 56.12067 is to
prevent inadvertent contact with energized parts by individuals standing at ground level.
III. Further Findings and Conclusions
As a result of his observations, Taylor issued Citation Nos. 6162084 and 6162085 on
March 30, 2004, for alleged substation violations of section 56.12067 at the primary crusher and
C2 tower, respectively. Both citations noted that, "[a] miner coming into contact with any of
these energized pieces or parts energized by them could be shocked, burnt or electrocuted."
(Gov. Ex. 2, 6). Both citations noted access to the transformer areas was "restricted." Taylor
characterized the alleged violations as non-S&S, reflecting that it was unlikely that the hazard
contributed to by the cited conditions will result in an accident causing serious injury.
Section 56.12067 establishes the standards for the installation of transformers.
Section 56.12067 provides:
Transformers shall be totally enclosed, or shall be placed at least 8 feet above the
ground, or installed in a transformer house, or surrounded by a substantial fence
at least 6 feet high and at least 3 feet from any energized parts, casings, or
wiring.
(Emphasis added).
The Secretary asserts the evidence supports the occurrence of the violations of section
56.12067 by virtue of the close proximity of the 12 feet high bus wires to the outside fences,
even though the standard permits energized wires that are 8 feet above ground level to be totally
unprotected in appropriate circumstances. Obviously, the Secretary's theory in this case warrants
further scrutiny.

27 FMSHRC 663

The Secretary asserts that her "enforcement actions are consistent with the clear language
of the standard." (Sec'y br. at p.14). While it is true that the language in section 56.12067
concerning "a substantial fence at least 6 feet high and at least 3 feet from any energized parts,
casings, or wiring," is unambiguous, the analysis does not stop there. For it is well settled that
application of a safety standard must harmonize with its intended purpose. Emery Mining Corp.
v. Sec'y of Labor, 744 F.2d 1411, 1414 (10th Cir. 1984). Moreover, the Secretary's attempt to
enforce a regulatory standard that is unambiguous should be precluded if such enforcement
would lead to an absurd .result. Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987),
see also Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989).
While a literal reading of section 56.12067 might suggest a violation based on the facts of
this case as the bus wires were within 3 feet of the fence, a regulation's intended purpose must be
considered before blind application of its provisions. Unfortunately, that is not what happened in
this case:
The Court:

So what you're saying in essence [is] that the mandatory
standard made you do it?

Inspector Taylor:

That's my job.

(Tr. 88).
In the final analysis, the weight accorded to an agency's application of its regulation
depends "upon the thoroughness evident in its consideration, the validity of its reasoning, [apd]
its consistency with earlier ... pronouncements .... " Unites States v. Mead Corp., 533 U.S.
218, 228 (2001) quoting Skidmore v. Swift, 323 U.S. at 140.
Although the Secretary suggests otherwise, it is clear that section 56.12067 is not
intended to ensure that energized parts do not contact perimeter transformer enclosures. In this
regard, there are no clearance requirements in section 56.12067 for energized parts if
transformers are located in a transformer house, or, if they are totally enclosed. Although Taylor
opined that "things can go wrong" with a ground fault system, he conceded "the logic behind"
section 56.12067 was to prevent persons from inadvertent contact with energized parts.
(Tr. 77-78).
Significantly, Chapter 2 of the MSHA "Electrical Inspection Procedures Handbook"
(Handbook) also reflects the purpose of section 56.12067 is to protect against inadvertent
contact. The Handbook states:

C. Surface Transformer Station Guidelines
The interior of transformer stations, both in a fenced enclosure or transformer
vault or house, must be designed to prevent any person from inadvertently
contacting energized parts. Therefore, all wiring and other exposed energized
parts must be installed at least 8 feet above the work area or walking surface.
27 FMSHRC 664

Otherwise the wiring, transformer bushings, or other exposed parts must be
properly guarded to prevent accidental contact . . . . ·
Shock Hazards, such as exposed energized parts or conductors that a person
could accidentally contact in a high-voltage substation, are a violation of 30 C.F.R.
509(b).2
(Resp. Ex. 14, p.2-2) . .
The suspension of bus wires 12 feet above the ground precludes inadvertent contact.
Consequently, the Secretary has failed to carry her burden of demonstrating that the facts in this
case constitute a violation of the cited mandatory standard.

ORDER

In view of the above, IT IS ORDERED that Citation Nos. 6162084 and 6162085
ARE VACATED. Accordingly, IT IS FURTHER ORDERED that this civil penalty matter
IS DISMISSED.

·Jerold Feldman
Administrative Law Judge

Distribution: (Certified Mail)
Christine M. Kassak Smith, Esq., U.S. Department of Labor, Office of the Solicitor,

230 S. Dearborn Street, 8th Floor, Chicago, IL 60604
Robert Stadler, Supervisor of Safety and Health, Vulcan Construction Materials Company,
1361 North Joliet Road, Romeoville, IL 60446
/mh

2

Section 77.509(b), which applies to surface coal mines, is similar in scope to
section 56.12067. It requires transformer stations to be enclosed "to prevent persons from
unintentionally or inadvertently contacting energized parts."
27 FMSHRC 665

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W. Suite 9500
Washington, DC 20001-2021

October 12, 2005
CONTEST PROCEEDINGS
D&D ANTHRACITE,
Contestant

Docket No. PENN 2004-221-R
Citation No. 7006460; 8111104

v.
Docket No. PENN 2004-227-R
Citation No. 7006487; 8/11104
SECRETARY OF LABOR,
MINE SAFETY & HEALTH
ADMINISTRATION
Respondent

Docket No. PENN 2004-230-R
Citation No. 7006490; 8/11/04
Primrose Slope Mine:
ID 36-08341

SECRETARY OF LABOR
MINE SAFETY & HEALTH
AD1\1Il\TJSTRATION
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 2005-113
A.C. No. 36-08341-49183

v.
D&D ANTHRACITE

Primrose Slope
Respondent

DECISION
Appearances: Earl W. Kieffer, 290 Swartara Road, Tremont, Pennsylvania, for the Operator;
Brian J. Mohin, Esq., United States Department of Labor, Office of the Solicitor,
Region III, Suite 630E, The Curtis Center, 170 South Independence Mall West,
Philadelphia, Pennsylvania, for the Secretary.
Before:

Judge Weisberger
Statement of the Case

These consolidated proceedings are before me based upon Notices of Contest filed by
D&D Anthracite ("D&D") contesting citations issued by the Secretary of Labor ("Secretary")
alleging violations of various mandatory safety standards set forth in Title 30, Code of Federal
Regulations. In addition, the Secretary filed a petition seeking the imposition of a civil penalty
based on D&D's alleged violation of the standards at issue. The cases were heard on September
14, 2005 in Harrisburg, Pennsylvania.
27 FMSHRC 666

I. Citation No.s 7006726 and 7007496 and Order No.s 7006487 and 4371417
At the hearing, the Secretary indicated that it had vacated Citation No.s 7006726 and
7007496 and Order No.s 7006487 and 4371417. Accordingly, these Citation and Order No.s are
dismissed, and Docket No. PENN 2004-227, is Dismissed.
II. Citation No. 4371411
At the hearing, after both parties rested, a bench decision was rendered which is set forth
below, with the exception of corrections not relating to matters of substance.
D&D Anthracite Mine is an underground coal mine. The
operator is David A. Lucas.
On August 11, 2004, the mine was inspected by MSHA
Inspector, Ronald Pinchorski accompanied by his supervisor,
Lester Coleman. According to the Inspector, he and his supervisor
arrived at the mine at approximately 9 a.m., at which time they
observed some men at the portal. At approximately 9:15 a.m.,
Pinchorski and Coleman met with Lucas in the latter's office.
According to the Inspector, he asked Lucas if he had done a preshift examination. Pinchorski testified that he was positive that
Lucas said "not yet". (Tr. 14, 36) According to Pinchorski, he
thought Lucas had also said, "[s]omething about going down and
doing it now or something like that." (Tr. 15) According to the
Inspector, Lucas then stood up, put on his gear and went
underground. Pinchorski assumed that Lucas went underground to
make an inspection, that he went underground alone, and that the
other men were already underground. While Lucas was
underground, the Inspector checked the pre-shift examination book
and saw that there was not any notation with regard to a pre-shift
examination having been performed on August 11, 2004.
At approximately 9:45 a.m. after Lucas returned, the
Inspector went underground to the working areas of the mine along
with Lucas and Coleman. They went below in a buggy that was
operated from above by the hitch operator, Darryl Lucas. When
the Inspector arrived below ground, he observed two men digging
hitches. The Inspector opined that these men had been working
prior to Lucas' inspection. He indicated that this opinion was based
upon the fact their clothing were dirty and they had been
underground before Lucas had gone underground to perform ms
inspection.

27 FMSHRC 667

The Inspector indicated that when he was underground, he
did not observe any markings of any pre-shift exainination having
been made on August 11, 2004.
On cross examination, the Inspector indicated that he had
difficulty remembering the statements that Lucas made to him
because the incidents at issue occurred over a year ago. Pinchorski
indicated that Lucas, who was approximately 10 feet away, during
the conversations, was not directly facing him. Also, the Inspector
indicated that he did not understand every word spoken by Lucas
due to a combination of factors, including Lucas' accent, the speed
of his speech, and the fact that there were times that he did not talk
with his mouth open. Pinchorski indicated that, on a scale of one
to ten, with ten able to understand every word and one being
unable to understand·any word at all, his understanding of the
words enunciated by Lucas were at the level of seven.
Coleman testified and confirmed that he was present during
the conversation between Lucas and the Inspector. He also
confirmed that in response to a question as to whether a pre-shift
examination had been performed, Lucas responded "[n]ot yet," (Tr.
49) and that he was going to do it shortly. Coleman indicated that
he did not have any difficulty understanding Lucas. Coleman also
corroborated the Inspector's testimony that he did not observe any
markings of a pre-shift having been performed on August 11, 2004.
On the other hand, Lucas testified that when he arrived at
the mine early in the morning of August 11, there was no one else
there. According to Lucas, at approximately 8:15 a.m, he. entered
the mine by being lowered with the hoist. The only other person at
the mine was the hoist operator, Darryl Lucas. Lucas 1 indicated
that he checked the gangway overcast, measured the air flow,
checked ribs, top rock, and checked for the presence of methane
and black damp.
Lucas placed his initial in markings that he made at four
locations. He indicated that he also placed a marking on a diagonal
set of timbers at the gangway face. According to Lucas, there were
approximately 40 to 50 markings that had been placed at that
location. He testified that he made a marking on a set of column
lines approximately 1 inch x 8 inches x 10 feet, which were
1

In this decision, David Lucas is referred to as "Lucas".
27 FMSHRC 668

diagonal, and indicated that this area was also filled with markings.
According to Lucas, he made markings on timbers that also were
slanted diagonally, at a pump, by the switch boxes that were 30 to
40 other markings at that site. He indicated that the last marking
that he made was on a board (that was approximately 1 inch x 6
inches and 1 foot long, that was at approximately a 15-degree
pitch) was laying on the floor. Lucas further explained that he
completed his inspection at approximately 8:45 a.m., when he
arrived back on the surface from the hoist. According to Lucas, he
did not make any entry in the pre-shift book because he had just
learned of the presence of inspectors, which caused him some
anxiety, and he decided to deal with them first. Lucas indicated
that subsequently, at approximately 9: 15 a. m., he took Gurney
Bixler and Jeff Dinger underground.
Regarding the conversation that he had with the Inspector
that morning, Lucas indicated that when he was asked whether he
had done a pre-shift examination, he answered, "You bet." (Tr. 73)
Lucas indicated that when he was asked whether he had filled out a
pre-shift report entry in the pre-shift book, he answered, "Not yet."
(Tr. 74) According to Lucas, at approximately 10 a.m., he entered
the mine with the Inspector.
Darryl Lucas testified and, in essence, corroborated David
Lucas' testimony that at approximately 8:15, he lowered David
Lucas in the buggy or hoist; that there was no one else there; that in
lowering the hoist with David Lucas, he made three stops going
down and three stops coming back from the lowest level, and that
the total time that elapsed was approximately 45 minutes. Dinger
also corroborated Lucas' testimony that he went on the hoist
underground with Bixler and Lucas at approximately 9: 15 a.m.
The Inspector issued a citation under 30 C.F.R, Section
75.360(a)(l), which in essence provides that a pre-shift
examination must be performed, and that no persons are allowed
underground unless the pre-shift examination has been completed.
The Secretary appears to assert the position that this
standard has not been complied with; that an inspection had not
been done prior to employees going underground. This appears to
be based on statements attributed to Lucas by the Inspectors that
when asked whether a pre-shift examination had been performed,
he told them "Not yet." This was the testimony by the Inspector
27 FMSHRC 669

and corroborated by Coleman. Also, the Secretary's position
appears to be based upon the fact that the Inspector and Coleman
did not observe any examiner markings which indicated to them
that a pre-shift examination had not been done on August 11 and
that there was not any entry in a pre-shift examination report.
Also, the Secretary appears to infer that when Lucas left, after
discussing the pre-shift examination with the Inspector, he went to
do a pre-shift examination. Also, the Secretary would infer that
men were already underground. This appears to be based upon two
factors, 1) that when they were observed later on, they were
working and were dirty, and 2) that when the Inspectors saw the
men at 9 a.m., they were at the portal, which would appear to raise
an inference that they were ready to go underground at that time.
The Secretary's case appears to be, in large part, based upon
inferences to be drawn regarding the critical issues here and a time
line relating inspections to men below. I considered the Secretary's
case, but I place more weight on the testimony of the Company's
witnesses. I note, first of all, that with regard to the critical issue as
to the time line or relationship between a pre-shift examination and
employees being below, neither of the Secretary's witnesses had
any personal knowledge of these events. They did not observe the
employees in question going down to the mine. Instead, I place
most weight on the Company's witnesses with regard to the time
line of events, as their testimony is based upon their actions, and,
hence, based upon personal knowledge. In this sense, I note that
the testimony of Lucas with regard to the time line and the
performance of a pre-shift examination between approximately
8:15 and 9 a.m., that morning was based upon his personal
knowledge. I observed his demeanor, and found him to be a
credible witness in this regard. Also, his testimony was
corroborated by Darryl Lucas, relating to the question as to when
the men went below in relation to this pre-shift examination.
Lucas' testimony was corroborated by Dinger. Also, although
Lucas testified as to having made some markings with his initials
and the Inspectors testified that they did not observe any markings
for August 11, I do not find the general testimony of the Secretary's
witnesses to outweigh the specific testimony of Lucas. In this
regard, I note the detailed testimony of Lucas with regard to the
positions where he made the markings.
For all these reasons, I find that the Secretary has not
established that there was not a timely pre-shift examination done

27 FMSHRC 670

in this case. I find, therefore, that the Secretary did not establish a
violation of Section 75.360(a)(l), and that accordingly, the Order
No. 70060071 shall be Dismissed.
III. Citation No.s. 7006460, 7006490 and 4371416
At the hearing the parties negotiated a settlement regarding these citations. Subsequent to
the hearing; the Secretary filed a Motion to Approve the Settlement. These citations were
originally assessed at $2, 635 and the parties propose to have the penalties reduced to $825.
Based on the representations in the Motion, and the record in these matters, I find that the
settlement is appropriate and within the framework of the Federal Mine Safety and Health Act of
1977, and I Grant the motion.

It is Ordered that 1) Citation No.s 7006726 and 7007496 and Order No.s 7006487 and
4371417 are Dismissed, and Docket No. PENN 2004-227 is Dismissed, that 2) Citation No.
4371411 is Dismissed. It is further Ordered that 3) Respondent pay a total civil penalty of $825
within 30 days of this decision.

&~

Administrative Law Judge

Distribution List:
Earl W. Kieffer, 290 SwartaraRoad, Tremont, Pennsylvania 17981
Brian J. Mohin, Esq., United States Department of Labor, Office of the Solicitor, Suite 630E,
The Curtis Center, 170 South Independence Mall West, Philadelphia, Pennsylvania 19106-3306

\Ip

27 FMSHRC 671

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001

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

October 18, 2005
CIVJL PENALTY PROCEEDING
Docket No. LAKE 2004-147
A.C. No. 11-00877-34581

v.

WABASH MlNE HOLDING CO.,
Respondent

Wabash Mine

DECISION
Appearances:

Christine Kassak Smith, Esq., Office of the Solicitor, U.S. Department of
Labor, Chicago, Illinois, for the Petitioner;
R. Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania,
for the Respondent;

Before:

Judge Feldman

This proceeding concerns a petition for assessment of civil penalty filed pursuant to
section l lO(a) of the Federal Mine Safety and Health Act of 1977 (the Mine Act), 30 U.S.C..
§ 820(a), by the Secretary of Labor (the Secretary), against the respondent, Wabash Mine
Holding Company (Wabash). The petition seeks to impose a total civil penalty of $100,000.00
for two alleged significant and substantial (S&S) violations' of mandatory safety standards in
30 C.F.R. Part 75 of the Secretary's regulations governing underground coal mines. The
citations were issued following a February 15, 2003, fatal rib fall accident that occurred at the
Wabash Mine. The accident occurred when the victim, Jerry W. Neese, a roof bolting machine
operator, was in the process of installing rib bolts as required by the existing roof control plan
approved by the Mine Safety And Health Administration (MSHA).

I. Statement of the Case
As a result of MSHA's accident investigation, 104(a) Citation No. 7577188 was
issued on April 11, 2003, for an alleged violation of the mandatory safety standard in
section 75.220(a)(l), 30 C.F.R. § 75.220(a)(l), that requires each mine operator to follow its
approved roof control plan. Although the Secretary does not allege a violation of a specific roof
control provision, she relies on the language of the general obligation placed on mine operators

1

A violation is properly designated as significant and substantial if there is a reasonable
likelihood that the hazard contributed to by the violation will result in a serious injury.
Nat'l. Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
27 FMSHRC 672

in section 75.220(a)(l) that, "[a]dditional measures shall be taken to protect persons if unusual
hazards are encountered."
Citation No. 7577189 also was issued on April 11, 2003, alleging a violation of the
mandatory safety standard in section 75.362(a)(l), 30 C.F.R. § 75.362(a)(l), because adequate
on-shift examinations were not conducted in the B-2 working section during the two weeks
preceding the fatality. The citation alleges that deteriorating mining conditions, as well as
specific conditions prohibited by the roof control plan, were not noted by on-shift examiners.
The Secretary proposed a $50,000.00 civil penalty for each citation on August 16, 2004.
With respect to the issue of the timeliness of the proposed penalty, Wabash relies on the
Commission's finding of an untimely proposed penalty in Twentymile Coal Company
(Twentymile), although the Commission's decision on the timeliness issue was reversed on
appeal. Twentymile Coal Co., 26 FMSHRC 666, 681-88 (August 2004), rev'd, 411F.3d256
(D.C. Cir. 2005). Wabash contends the D.C. Circuit's decision "[did] not fundamental.ly affect
the Commission's reiteration of the existing law in Twentymile." (Wabash br. at p.30). Thus,
Wabash argues the civil penalty should be vacated if either citation is affirmed because it was not
proposed within a reasonable time after the April 11, 2003, issuance of the subject citations.2
This matter was heard on May 11 and May 12, 2005, in Evansville, Indiana.
The parties' post-hearing briefs and reply briefs have been considered. As discussed below,
Citation No. 7577188 shall be vacated because the Secretary has failed to demonstrate the fact of
occurrence of the cited violation. Citation No. 7577189 shall be affirmed. As the Court's
decision in Twentymile is the law of the case, for the reasons discussed below, I shall defer to the
Secretary's interpretation of the "reasonable time" provision in section 105(a) of the Mine Act,
30 U.S.C. § 815(a). See 411 F.3d at 262, n.l. Moreover, setting aside the Secretary's proposed
penalty is inappropriate in this instance where Wabash has failed to demonstrate any meaningful
prejudice caused by any delay by the Secretary. See id. at 262. Consequently, a civil penalty of
$10,000.00 shall be assessed for Citation No. 7577189.

II. Findings of Fact
a. Background
Wabash Mine Holding Company is a subsidiary of RAG Midwest Holding Company.
The Wabash Mine is an underground coal mine located in Wabash County in Keensburg, Illinois.
The coal seam in this mine is approximately 84 inches thick.

2

On February 14, 2005, Wabash filed a Motion to Vacate the civil penalty based on its
assertion that it was not proposed within a reasonable period of time as required by the Mine Act.
The Secretary opposed Wabash' s motion. By Order dated March 4, 2005, the parties were
advised that I would defer ruling on the motion until after the hearing. As discussed herein,
the motion is denied.
27 FMSHRC 673

The roof control plan in effect in February 2003 was approved by MSHA on
April 24, 2002. (Resp. Ex. 8). The plan required 4-foot mechanical bolts to be installed on a
maximum of five-foot centers, with bolts nearest the ribs to be installed a maximum of four feet
from the rib. A mechanical bolt has a shell that expands as the bolt is drilled into the roof firmly
grabbing the coal and surrounding rock.
An MSHA Safety and Health inspection (an "AAA inspection") of the Wabash Mine that
began on January 2, 200;3, was in progress at the time of the accident. The previous AAA
inspection was completed on December 24, 2002. (Gov. Ex. 10).
In February 2003, Wabash was using 5-foot resin roof bolts instead of 4-foot mechanical
bolts. A resin bolt is installed with glue that quickly hardens as the bolt is drilled into the roof.
In adverse roof conditions, resin bolts are considered to be superior to mechanical bolts.
(Tr. 170-71).
The maximum entry width specified in the roof control plan was 20 feet. Entry centers
may be from 50 to 120 feet, and crosscut centers were permissible from 60 to 120 feet. The
maximum dimension allowable for a four-way diagonal intersection was 70 feet.
The pre-shift examinations are conducted by hourly United Mine Worker (UMW)
member employees. On-shift examinations are performed by the section foreman. (Tr. 260).
Adverse rib conditions characterized by rib rashing, also known as sloughing, was common in
the Wabash Mine. For example, Joe Hamilton, the hourly examiner who performed the pre-shift
·
for the midnight shift during the weeks preceding the fatal accident, testified:
"Wabash has got (sic) soft coal, and quite a bit of overburden, and they kind of
have that situation all through the mines .... [The B-2 section] was probably - probably a little worse."
(Tr. 255).
In recognition of the mine' s adverse rib conditions, Wabash's roof control plan, unlike
other mines in MSHA's District 8, included provisions for mine-wide bolting of ribs. A form of
the plan's rib bolting requirements had been in effect since the 1970's. Rib bolting was
performed until 1995 with a hand-held drill powered off a "work-beside" roof bolter. Since 1995
rib bolting has been performed using hand-held drills beside the roof bolter, or by using the
drillhead on a "walk-thru" bolter. As discussed below, the "walk-through" bolting machine
provides miners who are bolting ribs superior protection from a rib fall than a "walk-beside"
bolter.
The roof control plan's minimum rib bolting requirements varied depending upon the
height of the entry. When the entry was less than 8 feet high, the plan required the installation of
a minimum of four bolts on five-foot centers on the rib comers. When entry height exceeded
8 feet, full rib bolting around the entire perimeter of the rib was required on five-foot centers.
27 FMSHRC 674

Rib support was accomplished by using a minimum 48-inch c_onventional roof bolt and a 36-inch
rib board used for bearing surface.
In February 2003 Wabash was developing a panel in the B-2 section in the southern
portion of the mine that was located in the vicinity of an old B-2 worked out panel. The active
panel initially consisted of eight entries with crosscut centerline spacing of 80 feet. Mining of
the No. 1 and No. 8 entries was discontinued in January 2003 due to ventilation problems. Thus,
at the time of the fatality, Wabash was advancing six entries, numbered 2 to 7. (Gov. Ex. 2).
In an effort to maintain good roof conditions despite proximity to the worked out section,
entries initially were driven in a southeasterly direction rather than mining the entries parallel to
the worked out entries (in an easterly direction). However, after experiencing adverse roof
conditions, mining was redirected in a northeasterly direction.

It is unusual to mine into abandoned or worked-out areas. (Tr. 453). Wabash's purpose
of mining towards the worked-out panel was to provide ventilation into the panel to avoid the
necessity to seal-off the abandoned area. (Tr. 545-46, 588).
In the weeks preceding the February 15, 2003, fatal accident, rib and roof conditions in
the B-2 section became progressively worse as evidenced by the frequency and degree of rib
rashing and roof falls, particularly as mining approached the work-out area. (See, e.g., Tr. 149,
151, 159, 197, 237, 255, 455). The deteriorating conditions were attributable to the increased
pressure and stress on the ribs from the weight of the overburden on top of the pillars. (Tr. 456).
A mined-out area affects stresses on the roof and ribs of an adjoining working section because
there is less support on the overburden because of the removal of coal from the abandoned area.
(Tr. 456). This phenomenon was exacerbated by a band of draw rock, approximately 18 inches
to two feet thick, that was sandwiched between the coal seam and the overburden in the
B-2 section. (Gov. Ex. 8; Tr. 150, 337, 413). The pressure of the overburden on the pillars, in
proximity to the worked-out area, caused "machine size" chunks of rock to fall in the B-2
section. (Tr. 291, 293). The fatality occurred approximately 140 to 160 feet from the old B-2
worked-out panel. (Tr. 431).
Wabash disputes MSHA's theory that stresses from the abandoned B-2 panel contributed
to the adversity of the rib conditions. In this regard, Wabash argues that other panels in the B-1
and B-2 sections were mined in close proximity to worked-out areas without significant
degradation of rib conditions. (Tr. 550, 605-06). Rather, Wabash contends the ribs at the
Wabash Mine generally are prone to rashing because of the soft nature of the coal deposits.
Regardless of the cause, the overwhelming weight of the evidence reflects that there were
adverse rib conditions in the B-2 section in the days preceding the accident. Everyone, including
Wabash management, knew the conditions in the B-2 section were bad because coal was
sloughing out and rashing. (Tr. 160, 255, 300). For example, Ray Evans, the midnight
supervisor, was aware of the conditions through personal observation. (Tr. 311). Evans told the
crew to "just keep a watchful eye and work careful." (Tr. 151-52, 238). Wabash kept promising

27 FMSHRC 675

the miners they would be transferred out of the B-2 section but they kept getting delayed as
the next unit was not ready for mining. (Tr. 153, 160, 248). In fact, miners had been told that
they would be moving out of the B-2 section since approximately two weeks before the fatality.
(Tr. 248).
The B-2 section is divided approximately in half by a belt line located in the No. 5 entry.
There were two roof bolting machines in the B-2 section. (Gov. Ex. 2). A "walk-through" bolter
was used on the left side .o f the belt line. The controls on a "walk-through" bolter are on the
inside which provides protection to a miner who is rib bolting from rib rolls or falls because the
boom is located between the miner and the ribs.

In contrast, the bolting machine on the right side was a Fletcher Roof Ranger ("Roof
Ranger"), which was a "work-beside" also known as a "walk-beside" bolter. The Roof Rang~r's
controls are located on the outside of the bolter exposing the miner who is rib bolting in a
position next to the rib. Thus, the "walk-through bolter" on the left side provided superior
protection to persons performing rib bolting than the Roof Ranger on the right side. The roof
control plan in effect in February 2003 recognized Wabash's use of both the "walk-through" and
"walk-beside" bolters. (Resp. Ex. 8, p.3.4).
On Saturday, February 15, 2003, the midnight shift crew for the B-2 working section
entered the mine at approximately 12:00 a.m. Evans was the midnight B-2 section foreman.
Jerry Neese and Lee McCray normally were the left side roof bolt operators. Janice Davidson
and John Gamer were the right side roof bolting machine operators. Al Mason was the
continuous mining machine operator.
Evans determined that a power move begun on the previous shift was not completed
on the left side because additional high voltage cable was needed. Since the left side
"walk-through" bolter normally operated by Neese and McCray could not be energized, Evans
directed Neese and McCray to help with ventilation, load supplies, and then rib bolt behind the
right side Roof Ranger.
When mining operations began on the midnight shift, the No. 7 entry had already been
partially cut approximately 15 feet in depth. Mason began operating the continuous miner in the
No. 7 entry. Mason cleaned the ribs from the residuals of rib rash and then he resumed driving
the entry. As Mason advanced approximately 20 feet, a section of mine roof fell on the mining
machine. Mason decided not to advance the full 40-foot cut and he backed out of the entry
dragging the head of the continuous miner along the roof and the rib to knock down loose
material. Mason then trammed the miner from the No. 7 entry to the No. 6 entry.
The No. 7 entry was driven to a width of 17 feet wide rather than the maximum 20 feet
width permitted by the roof control plan. Mason had been instructed to cut the entry no more
than 18 feet wide. The entry was cut to a height of "almost 8 feet." (Tr. 366). Mason opined
that the conditions in the No. 7 entry looked as good as anywhere in the section after he

27 FMSHRC 676

completed the cut in the No. 7 entry. (Tr. 325-26).
Garner and Davidson moved the right side Roof Ranger into position in the No. 7 entry to
start roof bolting. They surveyed the area and decided to install additional bolts before roof
bolting the cut. The mine roof was smooth and the rib line was in good condition. Garner and
Davidson continued roof bolting while Neese and McCray started rib bolting behind the bolter on
the left inby comer. Neese and McCray were using a hydraulically operated two-person hand
drill to drill the rib holes. They had drilled one hole in the rib and were starting to drill a second
hole when a small portion of mine roof fell in front of them. At approximately 2:30 a.m., Neese
observed a crack that went all the way down the rib. Neese told McCray that he was going to get
a pry bar to pull down the rib.
At that time, Garner and Davidson had just completed the fourth row of bolts and they
were in the process of advancing the machine to the fifth row. Neese walked between the left rib
and the left side of the bolting machine. Garner noticed Neese walking along the left side of the
machine when the rib fell, fatally striking Neese as he approached the front of the machine.
b. The Accident Investigation
Shortly after the accident, at approximately 3:25 a.m., Wabash Mine Manger
Terry W. Theys advised the MSHA Benton, Illinois Field Office that a fatal rib fall had occurred.
Dennis R. Plab, a roof control specialist, and Mark A. Odum, a roof control supervisor, were
dispatched to the mine site to secure the accident scene and to initiate the accident investigation.
Plab and Odum later were joined by MSHA inspector Michael D. Rennie who arrived at the mine
several hours after the fatality. (Tr. 56, 347).
On February 17, 2003, during the course of the accident investigation, Rennie took
measurements in the B-2 section that revealed non-compliance with Wabash's roof control plan.
For example, he determined locations where there were excessive entry widths ranging from
slightly in excess of 20 feet to approximately 25 feet, diagonal measurements exceeding by
several feet the maximum permissible 70 foot diagonal, and bolts located approximately 5¥2 feet
from ribs exceeding the 4 foot maximum spacing required by the roof control plan. The violative
conditions were attributable to rib rashing. (Gov. Ex. 5). None of these conditions were in close
proximity to the accident scene and they did not contribute to the accident. Since the conditions
were due to rib rashing, there may have been changes in dimensions between the time of the
accident on February 15, 2003, and the measurements taken by Rennie two days later. (Tr. 349).
As a result of the accident investigation, Rennie issued section 104(a) Citation
Nos. 7577188 and 7577189 on April 11, 2003. (Gov. Exs. 3, 4). Citation No. 7577188,
alleges a significant and substantial (S&S) violation of the mandatory safety standard in
section 75.220(a)(l), 30 C.F.R. § 75220(a)(l), that requires mine operators to take additional
measures beyond those required by the approved roof control plan if unusual hazards are
encountered. Citation No. 7577188 was terminated the same day it was issued as mining in the
27 FMSHRC 677

B-2 section was discontinued after the February 15, 2003, accident. (Gov. Ex. 3).
The existing April 10, 2002, roof control plan was superseded effective April 8, 2003.
(Resp. Exs. 8, 9). The post-accident revised plan addressed the hazards associated with miners
walking between ribs and the Range Rover "walk-beside" bolting machine. It also prohibited use
of the "walk-beside" bolter to bolt the ribs. The revised plan provides:
Additional safety·precautions when using walk beside roof bolting machines will
include: Operators sounding roof and rib before entering the area to be bolted and
reducing travel between the rib and the machine while bolting a cut. Other
personnel shall restrict entry between the rib and walk beside machine during the
bolting operation.

*

*

*

*

*

*

*

*

*

*

*

With walk beside machines, rib bolting will not be performed between the rib and
the machine.
(Resp. Ex. 9, p.3.3, 3.10).
As a result of the deteriorating roof and rib conditions in the B-2 section in the
weeks preceding the accident, as well as measurements reflecting non-compliance with roof
control specifications not related to the accident, Rennie also issued Citation No. 7577189
on April 11, 2003, alleging an S&S violation of the safety standard in section 75.362(a)(l),
30 C.F.R. § 75.362(a)(l). (Gov. Ex. 4). This mandatory standard requires adequate on-shift
examinations by mine management at least once each shift to check for hazardous conditions.
Citation No. 7577189 was also terminated on April 11, 2003, as mining had ceased in the B-2
section.
c. Timeliness of the Proposed Civil Penalty
The fatal accident occurred on February 15, 2003. The subject citations were issued on
April 11, 2003, upon completion of MSHA's accident investigation. The final accident report
was released on April 29, 2003. (Resp. Ex. 10). Wabash received notice of the Secretary's
proposed penalty of $50,000 for each of the two citations on August 16, 2004. (Stip. 10).
Wabash contested the civil penalty on September 10, 2004. (Stip. 11). The Secretary filed her
Petition for Civil Penalty on October 7, 2004. (Stip. 12). Wabash contends that Secretary did
not propose the civil penalty within a reasonable period of time after termination of her
investigation as required by section 105(a) of the Mine Act because the August 2004 notification
of the proposed penalty occurred approximately 16 months after MSHA issued the citations and
15Y2 months after the release of the accident report.
·

27 FMSHRC 678

ID. Further Findings and Conclusions

a. Citation No. 7577188 - Fact of Occurrence of Violation
As a result of the accident investigation, Rennie issued section 104(a) Citation
No. 7577188 on April 11, 2003. (Gov. Ex. 3). Citation No. 7577188 alleges an S&S violation
of the mandatory safety standard in section 75.220(a)(l).
Citation No. 7577188 states:
During the period of at least two weeks prior to February 15, 2003, unusual and
hazardous roof and rib conditions were encountered on the B-2 working section,
022 MMU. During this period excessive rib popping and sloughing occurred due
to increased pressures. Additional measures beyond the minimum specified in the
roof control plan were not taken to protect persons from the unusual hazards. The
mine experienced a fatal fall of rib accident on the B-2 working section, 022
MMU, on February 15, 2003.
(Gov. Ex. 3) (emphasis added).
Section 75.220(a)(l), the cited safety standard, provides:
Each Mine operator shall develop and fo11ow a roof control plan, approved by the
[MSHA] District Manager, that is suitable to the prevailing geological conditions,
and the mining system to be used at the mine. Additional Measures shall be taken
to protect persons if unusual hazards are encountered.
Analyzing whether the Secretary has satisfied her burden of proving the fact of
occurrence of the cited violation requires an examination of the allegations in the citation. With
respect to gravity, Citation No. 7577188 reflects that a fatal injury occurred as a result of the
hazard caused by the alleged violation. Significantly, the citation also notes that the alleged
violation was not abated as a result of any roof control measures taken by Wabash. The citation
was terminated after Wabash ceased mining operations in the B-2 section immediately after the
accident.
As a threshold matter, Citation No. 7577188 does not allege that the hazardous roof
and rib conditions in the B-2 section were attributable to Wabash's failure to abide by any
specific provision of its roof control plan. Rather, the Secretary relies on the general provision in
section 75.220(a)(l) requiring operators to take "[a]dditional measures beyond the minimum
specified in the roof control plan to protect persons if unusual hazards are encountered."
(Emphasis added).
Consequently, we must focus on the operative terms "additional measures" and ''unusual
27 FMSHRC 679

hazards." Here, the unusual hazard identified by the Secretary is not a discrete hazard such as a
crack in a rib, or a sag in a particular area of the roof. Rather the Secretary relies on the general
poor rib conditions in the B-2 section as the "unusual hazard" to be addressed. While a matter of
degree, it is undisputed that rib sloughing was a common condition as evidenced by the rib
bolting required by the roof control plan.
Moreover, MSHA inspectors performing AAA inspections were present at the mine on a
continuing basis prior to·the accident. There is no evidence that they believed that rib conditions
in the B-2 section required extraordinary measures beyond that provided in the roof control plan,
such as the installation of wire mesh or metal cable around all coal pillars. Thus, the
"unusual hazard" relied upon by the Secretary was not unusual in the Wabash Mine. As
pre-shift examiner Hamilton explained, there was rib rashing "all through the mines." (Tr. 255).
Hamilton's testimony concerning his view, as a pre-shift examiner, of the general mine
conditions in the B-2 section is instructive:
The Court:

Now, you didn't note bad roof or bad ribs as a general proposition
in the [B-2] area, and essentially why was that? 'V-(as that because
you didn't consider the area to be poor or what?

Hamilton:

Right.

The Court:

Okay. But the conditions were generally bad, right? I mean, in
other words, they were bad, but they were ... known to be bad as a
general proposition. I guess on a spectrum of perfect to bad, where
would you draw the line in terms of when you would note them.
That's what I mean, specifically in the context of your testimony
that the coal was soft and the ribs would commonly slough off or
you'd have rib rash. So at what point would you not[e] in the book
and in [the] examination?

Hamilton:

If it was out of compliance with the plan, with the law.

The Court:

If the bolts - -

Hamilton:

It's kind of - - It's kind of like living in a bad neighborhood. If
you're there all the time, you get used to it, I guess, or it's home.
You know.

The Court:

Uh-huh. So you're - -

Hamilton:

That's the best I could explain it.

27 FMSHRC 680

The Court:

No, I understand. Things are hard to articulate, so in other words,
... your examination would be focused on whether or not the
bolting and pinning of the ribs were done in compliance with the
plan?

Hamilton:

Right.

The Court:

And that's a good analogy I think you made about the bad
neighborhood.

Hamilton:

If I see any bad order of roof bolts, you know, I'd write those up,
tag them and write them up, or if they'd rashed off where they'd
gotten too wide, we would have wrote (sic) that up. Any of the
examiners would.

The Court:

Okay. Thank you.

(Tr. 280-82).

Even if the general rib conditions were construed as an "unusual hazard," Wabash was
taking additional measures such as cutting entries 18 feet rather than the 20 feet width permitted
by the roof control plan in anticipation of spalling or rib rashing. Additionally, Wabash was
installing additional roof bolts as the need arose. It was only through the benefit of hindsight that
these measures proved to be unsuccessful.
While the Secretary has speculated about additional measures that Wabash could have
undertaken, she has not adequately articulated the specific "additional measures," short of a
cessation of mining operations, that should have been taken to alleviate the hazard. Significantly,
none of the roof control measures suggested by the Secretary would have prevented the fatal
accident. For example, the Secretary suggests increasing the size of the pillars. However,
inspector Rennie conceded that, short of withdrawing from the section, there was no guarantee
that any additional measures taken by Wabash could make the section safe given the pressures
from the worked-out area. (Tr. 118-19). Although MSHA roof control specialist Dennis Plab
opined that there were "many options" that Wabash could have taken, he also conceded, "I don't
know that I can specifically explain what they should have done." (Tr. 429).
The Secretary also proffered installation of wire mesh on all ribs, or installation of metal
cable around coal pillars, as examples of "additional measures." However, these measures would
be undertaken only after a miner pinning a rib with a "walk-beside" machine was exposed to a
rib fall. Thus, such measures would not have prevented the fatal accident.
Finally, the Secretary's assertion that Citation No. 7577188 concerns general mine
conditions rather than the circumstances surrounding the fatality is belied by the fact that the
27 FMSHRC 681

citation was issued.as a result of the Secretary's accident investigation. Moreover, the citation
specifically refers to "rib popping" and "sloughing" as factors in.the February 15, 2003, fatal rib
accident.

In the final analysis, in effect, the Secretary seeks to rely on the general provisions of
section 75.220(a)(l) to require mine operators to cease mining when roof and rib conditions
become too hazardous. Of course operators should err on the side of caution and withdraw
miners when conditions warrant. However, if the Secretary desires to explicitly prohibit
continued mining under such circumstances she may wish to initiate a rule making procedure if
her mandatory safety standards do not adequately address this issue. While the evidence reflects
that cessation of mining in the B-2 section prior to February 15, 2003, may have been prudent,
the failure to do so does not support a violation of the provisions of section 75.220(a)(l)
governing roof control plans. T hus, Citation No. 7577188 shall b e vacated.
I note parenthetically, the evidence reflects the primary contributing cause of the accident
was not Wabash's failure to take additional measures beyond that required by its roof control
plan. Rather, the accident occurred because the "walk-beside" roof bolting machine does not
adequately protect miners while they are bolting ribs. 3 That is why the existing roof control plan
was superseded shortly after the accident to include safety precautions limiting the exposure of
miners walking between the "walk-beside" bolter and the ribs, and to explicitly prohibit using the
"walk-beside" machine to bolt ribs. (Resp. Ex. 9, p.3.3, 3.10). However, MSHA does not
contend that Wabash was prohibited from using the "walk-beside" Roof Ranger at the time of the
accident, or that the Roof Ranger was otherwise misused.
b. Citation No. 7577189 - On-Shift Examinations
As a result of the accident investigation, Rennie also issued section 104(a) Citation
No. 7577189 on April 11, 2003. (Gov. Ex. 4). Citation No. 7577189 alleges an S&S violation
of the mandatory safety standard in section 75.362(a)(l).
Citation No. 7577189 states:
Adequate on-shift examinations were not conducted on the B-2 working section.
Hazardous roof and rib conditions as evidenced by excessive popping and
sloughing of the ribs due to increased pressures and stresses, existed but were not

3

The Secretary asserts that a significant cause of the accident was an unbolted partial cut
made in the No. 7 entry during the day shift on February 14, 2003. (Sec'y reply br., p.2-3; Tr. 269,
365-66; Gov. Ex. 10, p.6, Resp. Ex. 2). The Secretary contends that the failure to bolt this partial
cut, until shortly before the accident on the midnight shift, further destabilized the roof and ribs.
Notwithstanding the speculative nature of this assertion, it has not been shown that the partial cut
violated the roof control plan or otherwise supports the fact of occurrence of a section 75.220(a)(l)
violation. Nor was the partial cut cited as a contributing cause of the fatality in the Secretary's
accident investigation. (Wabash reply br., p.3).
27 FMSHRC 682

identified by the person conducting the examinations. Miners on the B-2 working
section indicated that these conditions existed for approximately 2 weeks prior to
a fatal fall of rib accident that occurred on February 15, 2003.
Additional hazardous conditions, which were not contributory to the accident,
were also present on the B-2 working section. These hazardous conditions
constituted violations of the regulations and were cited in [Citation] Nos.
7576446, 7577-172, 7577187 and 7575479. The certified person's failure to
recognize and correct obviously hazardous conditions further demonstrates that
adequate examinations were not conducted.
(Gov. Ex. 4).
With respect to gravity, Citation No. 7577189 reflects that a fatality occurred. The degree of
negligence attributable to Wabash is characterized as "high."
The cited standard in section 75.362(a)(l) provides:
At least once during each shift, or more often if necessary for safety, a certified
person designated by the operator shall conduct an on-shift examination of each
section where anyone is assigned to work during the shift and any area where
mechanized mining equipment is being installed or removed during the shift. The
certified person shall check for hazardous conditions, test for methane and oxygen
deficiency, and determine if the air is moving in its proper direction.
As a general proposition, the preamble to the latest rulemaking for section 75.362(a)(l)
summarizes the purpose of an on-shift examination:
Like the pre-shift examination, the on-shift examination of working sections is a
long accept~d safety practice in coal mining. As coal is extracted, conditions in
the-mine continually change and hazardous conditions can develop. Because the
mining environment changes constantly during coal production, this examination
identifies emerging hazards or verifies that hazards have not developed since the
pre-shift examination .... The on-shift examination is intended to address hazards
that develop during the shift.
(Resp. Ex. 1; 61 Fed. Reg. 9797 (March 11, 1996)).
Citation No. 7577189 concerns the adequacy of on-shift examinations during the two
weeks preceding the accident. However, given its reference to the fatality as a reflection of the
degree of gravity, it is helpful to initially focus on Hamilton's pre-accident, pre-shift examination
that occurred from approximately 9 p.m. until 11:42 p.m. on February 14, 2003, to evaluate the
conditions on the midnight shift. Hamilton's February 14, 2003, pre-shift examination report

27 FMSHRC 683

noted a partial cut in the No. 7 entry. (Resp. Ex. 2). Hamilton also noted that the No. 4, No. 5
and No. 6 entries needed roof bolting, and that entry No. 5 needed additional rib support on the
corner. (Resp. Ex. 2; Tr. 267-68). Finally, Hamilton's pre-shift examination reflected danger
signs were posted at several locations in the B-2 section. (Resp. Ex. 2)
The Secretary did not proffer any on-shift examination reports to support her assertion
that the examinations were inadequate. In this regard, the Secretary has not identified any
specific identifiable hazard that evolved after Hamilton's pre-shift examination that required
additional measures that subsequently should have been noted by Evans in his February 15, 2003,
midnight on-shift examination. On the contrary, the Secretary relies on the general rib conditions
in the B-2 section as a basis for concluding Evan's on-shift examinations were inadequate and
that they were a material factor in the accident.
Mining is inherently dangerous. Consequently pre-shift and on-shift examinations are
methods of identifying specific hazards and of ensuring corrective actions are taken. They are
not intended as vehicles for expressing opinions about general mine conditions. As Hamilton
testified, "[i]f I see any bad order of roof bolts, you know, I'd write those up, tag them and write
them up, or if they'd rashed off where they'd gotten too wide, we would have [written them] up."
(Tr. 282). Mine examinations are not intended to document general rib c'onditions, particularly in
this case, where rib rashing was common in the mine.

In the final analysis, the Secretary has failed to identify a discrete hazard that contributed
to the fatal accident that should have been noted by on-shift examiners. Thus, the Secretary has
failed to carry her burden of demonstrating that the thoroughness, or lack thereof, of on-shift
examinations contributed to the fatality.
Wabash does not dispute its failure to note specific hazards that did not contribute to the
accident that were the subjects of other citations not in issue in this proceeding. These hazards
include intersections exceeding the maximum allowable four-way diagonal intersection
measurement of 70 feet; entry widths in excess of the maximum allowable 20 feet; and roof bolts
located more than four feet from several ribs. (Resp. Ex 5). These conditions initially· were not
violations of the roof control plan but evolved as a consequence of changes in the B-2 working
section that occurred as a result of rib rashing.
Although the cited violations of the roof control plan were discovered by Rennie on
February 17, 2003, I am not persuaded by Wabash's assertion that all of the subject conditions
occurred as a result of rib rashing that happened after the February 15, 2003, on-shift
examination. Although the exact measurements obtained by Rennie may reflect additional
post-accident rib sloughage, it is reasonable to conclude at least most, if not all, of the cited
violations were present to some extent but not noted during the on-shift examinations. Thus,
on balance, the evidence supports the conclusion that the on-shift examinations were inadequate.
It is not clear whether any of the hazards uncovered by Rennie were noted by pre-shift examiners.
On-shift examinations are a fail-safe method of noting hazards that have been overlooked

27 FMSHRC 684

by the pre-shift examiner. Thus, the failure to cite an operator for inadequate pre-shift
examinations is not a defense with respect to a citation for inadequate on-shift examinations.
Accordingly, Citation No. 7577189 shall be affirmed.
Having determined that the subject violation in Citation No. 7577189 did not contribute
to the accident reduces the degree of gravity. However the degree of negligence attributable to
Wabash remains high. In reaching this conclusion I am cognizant that the violative distances of
the cited entry and intersection widths and the bolt spacing, were relatively small and attributable
to a continuing process of rib changes. While the specific hazards that were not noted by on-shift
examiners were not obvious in the absence of actual measui:ement, specific measurements should
have been taken to ensure that degradation of the ribs did not create roof control problems. In the
final analysis, the poor mining conditions warranted a higher degree of diligence on the part of
on-shift examiners.
Wabash did not specifically address the S&S issue. (Wabash br. at n.6). However, it is
reasonably likely that the hazards contributed to by a failure to ensure continuing compliance
with the roof control plan by means of adequate on-shift examinations will result in a roof or rib
accident that causes serious injury. Thus, the evidence reflects the violation was properly
designated as S&S.
Wabash is a large operator whose ability to continue in business will not be jeopardized
by imposition of a modest civil penalty. The citation was promptly abated by withdrawal from
the B-2 working section. The Secretary proposed a civil penalty of $50,000.00 for Citation
No. 7577189. Given the reduction in the gravity and high degree of negligence associated with
the subject violation, a civil penalty of $10,000.00 shall be assessed for Citation No. 7577189.
The $10,000.00 civil penalty reflects the high degree of negligence demonstrated by inadequate
on-shift inspections despite irrefutable evidence of deteriorating mining conditions.
c. Timeliness of the Proposed Civil Penalty
Having concluded that a penalty should be assessed for Citation No. 7577189, we turn to
the issue of whether the Secretary proposed the penalty within a reasonable period of time as
contemplated by section 105(a) of the Mine Act. Section 105(a) provides:
If, after an inspection or investigation, the Secretary issues a citation or order
under section 104, [she] shall, within a reasonable time after the termination of
such inspection or investigation, notify the operator ... of the civil penalty
proposed ....
30 U.S.C. § 815(a).
The statutory scheme authorizing the Secretary's imposition of a civil penalty is a major
means by which operator compliance is achieved. The purpose of section 105(a) is to encourage
27 FMSHRC 685

operator compliance through timely penalty proposals rather than to create an escape mechanism
through which an operator can avoid payment. The legislative history of section 105(a) explains,
"there may be circumstances, although rare, when prompt proposal of a civil penalty may not be
possible, and the [Senate] Committee does not expect that the failure to propose a penalty with
promptness shall vitiate any proposed penalty proceeding." (Emphasis added). S. Rep. No. 95181, at 34, reprinted in Legis. Hist. at 622.
Citation No. 7577189 was issued on April 11, 2003. MSHA's Report of Investigation of
the subject February 15, 2003, fatal rib fall was released on April 29, 2003. The civil penalty for
Citation No. 7577189 was initially proposed by the Secretary On August 16, 2004. Wabash
asserts the Secretary did not propose the civil penalty for Citation No. 7577189 within a
reasonable period of time.
In seeking to void the civil penalty, Wabash relies on the Commission's Twentymile
decision that-explicitly addressed whether a 17-month penalty proposal period violated the
reasonable time provisions of section 105(a). In Twentymile, the Commission, in essence,
bifurcated the civil penalty proceeding by separating it into a fact of violation component, and a
proposed penalty component. 26 FMSHRC at 682. In this way, while affirming the fact of the
subject violation, the Commission concluded a 17-month delay, absent ashowing of extenuating
circumstances, was so unjustifiable as to warrant "the extraordinary remedy " of "vitiating the
imposition of the penalty itself." Id. at 682, 685.
In so doing, the Commission reasoned, "the Commission, not the Secretary, is ultim~teJy
responsible for determining whether a proposed penalty assessment has been made 'within a
reasonable time.'" Id. at 685. In analyzing previous precedent concerning whether prejudice was
a prerequisite to avoiding civil penalty liability, the Commission concluded an operator can avoid
payment upon a showing of either that the Secretary's delay in proposing a penalty was
unreasonable or that the delay resulted in prejudice to the operator. Id. at 682.
The Court of Appeals indirectly reversed the Commission's unwillingness to defer to the
Secretary's interpretation of "reasonable time" in section 105(a). Specifically, the Court
adopted the Secretary's "reasonable" interpretation that it was the termination of the accident
investigation rather than the issuance of the citation that was the reference point for determining
whether the penalty was reasonably proposed. Sec'y of La.bar v. Twentymile Coal Co., 411 F.3d
at 261, 262. Although the Court did not expressly defer to the Secretary's view on what was a
reasonable period for penalty proposals under section 105(a), it did note that Courts are reluctant
to void agency action based on an agency's failure "to observe a procedural requirement."
Id. at 261. The Court also noted that statutory processing guidelines generally are intended to
"spur the Secretary to action" rather than to confer rights on litigants that limit the scope of the
Secretary's authority. Id. (citations omitted).

27 FMSHRC 686

Consequently, a fair reading of the Court's Twentymile decision leads to the conclusion
that the Court deferred to the Secretary's interpretation, and, thus, the applicability, of the
"reasonable time" provision of section 105(a). In this regard, the Court, citing Martin v.
Occupational Safety & Health Review Comm'n, 499 U.S. 144, 158 (1991), noted that [w]here the
Secretary and the Commission conflict in their interpretations of the statute, the Court defers to
the Secretary .. . .4 Id. 262, n. l.
In view of the above discussion of the Court's decision, I shall defer to the Secretary's
interpretation of section 105(a) that the approximate 15~-month time period for proposal of the
civil penalty in this case, beginning on the date of the issuance of the accident report, is
"reasonable." The proposal of a civil penalty, like the adjudication in this proceeding, is a
deliberative process. I am mindful of the myriad of circumstances, uniquely known to the
Secretary, that can effect deliberations such as resolution of policy differences, or personnel
issues related to retirements or reassignments.
Clearly, the oversight by this Commission of the efficacy of the Secretary's processing
procedures is a slippery slope to be avoided. Only the Secretary knows the number of
personnel, and the levels of review, that are involved in her deliberative process. Absent a
Commission imposed per se deadline that strips the Secretary of flexibility, a case-by-case
approach would require a qualitative appraisal of the propriety of the Secretary's procedures for
each proposed penalty that can only be resolved at an evidentiary hearing, a result never intended
by the Mine Act.
Moreover, such oversight would place the Commission in a quasi-supervisory role that
conflicts with the Commission's mission as an independent adjudicator. While the Secretary's
proposed penalty process my have been inefficient, in light of the Court's Twentymile decision,
absent Commission direction to the contrary, I will not substitute my judgement for the
Secretary's regarding whether her processing time is reasonable, or, whether she has achieved the
desired deterrent effect. In reaching this conclusion, I am not suggesting that an unconscionable
delay, not present here, should never be construed as a violation of section 105(a).

4

Following Martin, the Supreme Court recognized the "expertise" of the Commission
as an independent-review body with the statutory mandate of developing a uniform and
comprehensive interpretation of the Mine Act. Thunder Basin Coal Co. v. Reich, 510 U.S. 200,
214 (1994). Thus, it may sometimes be appropriate for the Commission, an independent
appellate body of limited rather than general jurisdiction, to decline to defer to the Secretary on
matters of interpretation of the parties' statutory rights. See Cyprus Cumberland Res. Corp.,
20 FMSHRC 285, 289-94 (ALJ) (Mar. 1998), rev'd on other grounds, 22 FMSHRC 1066 (Sept.
2000), aff'd, Rag Cumberland Res. v. FMSHRC, 272 F.3d 590 (D.C. Cir. 2001); see also W-P
Coal Co., 16 FMSHRC 1407, 1410 (July 1994) (distinguishing the deference owed the
Secretary's interpretations of her OSHA and MSHA regulations under the Martin and
Thunder Basin decisions).
27 FMSHRC 687

Finally, even if the 15¥i-month time period was conside~ed to be an unreasonable delay,
the Court's Twentymile decision noted it is "particularly inappropriate to set aside the Secretary's
recommendation for penalty ... given [an operator's failure] ... to show any prejudice to itself
from whatever delay in fact occurred." 411 F. 3d at 262. I am unpersuaded by Wabash's
contention that it was prejudiced by the Secretary's delay because mining conditions have
changed since February 15, 2003. Specifically, Wabash contends it was precluded from proving
it was unable to connect the "walk-through" bolter to the energized load center for operation on
the right side. (Wabash br., p.29). In addition, Wabash contends it is unable to demonstrate the
additional support measures beyond those required by the roof control plan that were installed on
February 15, 2003, because of the passage of time. Id. Resolution of these questions of fact is ·
not material to disposition of the issue of the fact of occurrence of the cited violations in this
case. Moreover, evidentiary problems caused by mine condition changes prior to a hearing on
the merits are inherent in the fact finding process and can be overcome by photographs or
testimony.

In sum, I shall defer to the Secretary's interpretation of section 105(a) that her processing
time in this case was reasonable. Even if the Secretary's actions constituted an unjustifiable
delay, Wabash has failed to demonstrate any meaningful prejudice that would warrant the
extraordinary relief of voiding the civil penalty justifiably imposed in this matter. Accordingly, a
civil penalty of $10,000.00 shall be imposed for Citation No. 7577189.

ORDER
In view of the above, IT IS ORDERED that Citation No. 7577188 IS VACATED.

IT IS FURTHER ORDERED that Citation No. 7577189 IS AFFIRMED as modified.
IT IS FURTHER ORDERED that Wabash Mine Holding Company shall, within
40 days of the date of this Decision, pay a civil penalty of $10,000.00 in satisfaction of Citation
No. 7577189. Upon receipt of timely payment of the civil penalty, Docket No. LAKE 2004-147

IS DISMISSED.

Jerold Feldman
Administrative Law Judge

27 FMSHRC 688

Distribution: (Certified Mail)
Christine M. Kassak Smith, Esq., Office of the Solicitor, U.S. Department of Labor
230 S. Dearborn Street, 8th Fl., Chicago, IL 60604

R. Henry Moore, Esq., Jackson Kelly, PILC, Three Gateway Center, Suite 1340,
401 Liberty Avenue, Pittsburgh, PA 15222
/mh

27 FMSHRC 689

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001
·

October 21, 2005
SECRETARY OF LABOR, MSHA,
ON BEHAlF OF WENDELL McCLAIN,
COYMcCLAIN, WADEDAMRON,
AND GARY CONWAY,
Complainants
v.

MISTY MOUNTAIN MINING, INC.,
STANLEY OSBORNE AND
SIMON RATLIFF,
Respondents

DISCRIMINATION PROCEEDINGS
Docket No. KENT 2005-96-D
PIKE CD 2004-07
Docket No. KENT 2005-97-D
PIKE CD 2004-08
PIKE CD 2004-12
PIKE CD 2005-01
Docket No. KENT 2005-98-D
PIKE CD 2004-09
Docket No. KENT 2005-99-D
PIKE CD 2004-10 .
Mine ID 15-18663

DECISION
Appearances: Marybeth Zamer Bemui, Esq., Office of the Solicitor, U. S. Department of Labor,
Nashville, Tennessee, for Complainants;
Wes Addington, Esq. , Appalachian Citizens Law Center, Inc., Prestonsburg,
Kentucky, for Miner Complainants;
Stanley Osborne, Vice President, Misty Mountain Mining, Inc., Jonancy,
Kentucky, Pro Se and for Misty Mountain Mining, Inc.;
Simon Ratliff, Lookout, Kentucky, Pro Se.
Before:

Judge Hodgdon

This case is before me on Discrimination Complaints brought by the Secretary of Labor,
acting through her Mine Safety and Health Administration (MSHA), on behalf of Wendell
McClain, Coy McClain, Wade Damron and Gary Conway against Misty Mountain Mining, Inc.,
Stanley Osborne and Simon Ratliff pursuant to section 105(c) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(c). A trial was held in Pikeville, Kentucky. For the reasons
set forth below, I find that the Complainants were discharged by Misty Mountain Mining because
they engaged in activities protected under the Act.

27 FMSHRC 690

Background
Misty Mountain Mining, Inc., owned and operated Mine No. 5, located near Jenkins in
Letcher County, Kentucky, from July until November 13, 2004. Misty Mountain Mining, Inc., is
owned by Stanley Osborne. From July through October 14 the Mine Superintendent was Simon
Ratliff, who was in charge of the day-to-day operation of the mine. During the time the mine
was open, entries were mined through three lines of breaks and 8,297 tons of raw coal, resulting
in 2,883 tons of clean coal, were produced.
Gary Conway was hired by Ratliff as an equipment operator on August l, 2004. After
three days of operating a shuttle car, he was reassigned to operate a roof bolter. Wade Damron
was hired in mid-August to assist Conway on the roof bolter. Coy McClain was hired in midAugust to operate a shuttle car and scoop. His brother, Wendell McClain, was hired a week later
to operate a shuttle car.
On August 30, 2004, Ratliff removed Conway and Damron from the roof bolter and
assigned Coy and Wendell McClain to operate it. Damron was told to operate the scoop. When
the roof bolter became stuck in the No. 3 entry, Damron brought the scoop into the mine to try to
free the roof bolter. As he was going down an incline in the No. 3 entry, the scoop began
"freewheeling" and Damron was not able to stop it with the brakes. He began yelling "no brakes,
no brakes" and shaking his helmet light to warn Ratliff, Coy and Wendell McClain, who were
standing in the entry, of his problem. Damron was finally able to stop the scoop by steering it
into the rib about 20 feet from where the three were standing. Wendell McClain exclaimed to
Ratliff that someone was going to be killed if they did not get the brakes on the scoop fixed.
Ratliff responded that he was not going to let anyone disrespect him like that and told
Wendell that he would not be needing him anymore. He told Coy to go with him. Wendell and
Coy understood this to mean that they were fired.
That same afternoon, Ratliff told Damron and Conway that they were "deadbeats" and to
get their buckets and leave. Damron and Conway understood this to mean that they were fired.
Coy and Wendell McClain filed discrimination complaints with MSHA on August 30,
2004. In his complaint, Wendell stated that: "I was discharged on August 30, 2004, by Simon
Ratliff, Supt., because I complained about the battery scoop not having brakes. I was told I was
no longer needed and fired." (Govt. Ex. 7.) Coy said: "I was discharged on August 30, 2004,
because my brother complained about the battery scoop not having brakes. Simon Ratliff, Supt.,
discharged me because he said he wasn't going to put up with my brother complaining about
safety concerns." (Govt. Ex. 5.)
Damron and Conway filed discrimination complaints with MSHA on August 31, 2004.
Conway stated that: "I was discharged on August 30, 2004, by Simon Ratliff, Supt., because I
was operating a scoop which had bad brakes. I had complained about the brakes being bad for
27 FMSHRC 691

several days prior." (Govt. Ex. 1.) Damron asserted that: "I was discharged on August 30,
2004, by Simon Ratliff, Supt.[,] because I complained about the bad brakes on the battery scoop I
was operating. I had complained for several days." (Govt. Ex. 3.)
Coy McClain returned to the mine on August 31 and was permitted to continue working.
The Secretary, on behalf of Conway, Damron and Wendell McClain, filed applications for the
miners' temporary reinstatement on September 27, 2005.1 Rather than holding a hearing on the
applications, the parties agreed that the three complainants would be reinstated on October 4,
2004, at the same rate of pay and with the same or equivalent duties assigned to them. Wendell
returned to work on October 4, but Conway and Damron did not return until October 11.
The four miners were only permitted to work a few hours each day before Ratliff would
send them home for the day. At the same time, other employees remained working at the mine.
On October 14; 2004, Ratliff told the four complainants that he could not work with them
anymore. Believing that they had been fired again, the four left the mine. Ratliff quit the same
day and the mine was closed until October 25, 2004, while Osborne hired a new superintendent.
The Secretary filed an Application for Temporary Reinstatement 'on behalf of Coy
McClain on October 22, 2004. Wendell McClain returned to work at the mine when it reopened
on October 25 and continued to work there until the mine closed on November 14, 2004. When
the mine closed, Osborne offered Wendell a job at the Misty Mountain Mining Mine No. 2, but
he declined the offer claiming that it was too far from his home and that he had no money fo~ gas
to drive there.
Osborne told Rick Hamilton, the MSHA Special Investigator investigating the
discrimination complaints, on October 22, that Coy McClain, Conway and Damron could return
to work on the 25th when the mine reopened. Coy called Osborne at home on October 24 and
told him that he had another job. Neither Conway or Damron returned on October 25. On
October 26 and 27, Osborne told Hamilton that he could place one of the miners at another mine.
On October 28, he was advised by Hamilton's secretary that both men had other jobs. On
November 16, the Secretary moved to dismiss Coy McClain's temporary reinstatement
application because he was working at another mine.2

1

Section 105(c)(2), 30 U.S.C. § 815(c)(2), provides, in pertinent part, that when the
Secretary receives a discrimination complaint she will begin an investigation of the complaint
within 15 days, "and if the Secretary finds that such complaint was not frivolously brought, the
Commission, on an expedited basis upon application of the Secretary, shall order the immediate
reinstatement of the miner pending final order on the complaint."
2

Docket No. KENT 2005-28-D, Unpublished Order (December 6, 2004).

27 FMSHRC 692

Discrimination Complaints were filed on behalf of the four miners on December 3, 2004.
The miners seek reinstatement, back pay and other ancillary dainages. The Secretary also seeks
civil penalties totaling $20,000.00 against Misty Mountain Mining, $10,000.00 against Stanley
Osborne and $10,000.00 against Simon Ratliff.

Findings of Fact and Conclusions of Law
Section 105(c)(l) of the Act, 30 U.S.C. § 815(c)(l), provides that a miner cannot be
discharged, discriminated against or interfered with in the exercise of his statutory rights because:
(1) he 'has filed or made a complaint under or related to this Act, including a complaint ... of an
alleged danger or safety or health violation;" (2) he "is the subject of medical evaluations and
potential transfer under a standard published pursuant to section 101;" (3) he "has instituted or
caused to be instituted any proceeding under or related to this Act or has testified or is about to
testify in any such proceeding;" or (4) he has exercised "on behalf of himself or others . .. any
statutory right afforded by this Act."
In order to establish a prima facie case of discrimination under section 105(c)(1 ), a
complaining miner must show: (1) That he engaged in protected activity; and (2) That the
adverse action he complains of was motivated, at least partially, by that activity. Driessen v.
Nevada Gold.fields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Secretary on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981); Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev'd on other grounds sub nom
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981). The operator may rebut the
primafacie case by showing either that no protected activity occurred or that the adverse action
was in no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the
operator cannot rebut the primafacie case in this manner, it, nevertheless, may defend
affirmatively by proving that it was also motivated by the miner's unprotected activity and would
have taken the adverse action for the unprotected activity alone. Id. at 2800; Robinette, 3
FMSHRC at 817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th
Cir. 1987).
The evidence, as discussed below, establishes that the Complainants engaged in protected
activity and that they were discharged as a result of the protected activity. For this violation of
their rights under the Act, they are entitled to limited back pay, but not to reinstatement or other
monetary damages. Misty Mountain Mining, Inc., and Stanley Osborne are jointly and severally
liable for these damages. However, contrary to the proposal of the Complainants, neither Simon
Ratliff nor Midguard Mining Company have any responsibility regarding damages in these cases.
Protected Activity
There is no doubt that all four complainants engaged in protected activity while working
at Mine No. 5. Conway testified that he complained about the lack of brakes on the shuttle car,
the fact that the dust fi lter on the roof bolter did not work and the failure of the automatic
27 FMSHRC 693

temporary roof support (ATRS) on the roof bolter to reach the roof. (Tr. 25-26, 29-31, 35-36,
58-60.) Damron reported to Ratliff that the dust filter on the roof bolter did not work and told
him, after having to stop it by driving it into the rib, that the scoop did not have any brakes and
he was not going to drive it anymore. (Tr. 69, 77, 90-91.) Coy McClain complained about the
lack of brakes on both the scoop and the shuttle car and the failure of the ATRS to reach the roof
in some places. (Tr. 111-113, 116-117.) Finally, Wendell McClain testified that he informed
Ratliff that the shuttle car did not have any brakes and that the ATRS did not reach the roof. (Tr.
191-92, 195-96.) He also made the statement in the presence of Ratliff, when Damron drove the
scoop into the rib, that "somebody's going to get killed if Simon and them don't get some brakes
fixed on the scoop." (Tr. 32-33, 76, 120, 201.)
Ratliff admitted that the men raised issues about the equipment. (Tr. 494-98.) He called
it making a "report," however, and maintained that there was "a difference in complaining and
getting a report." (Tr. 494.) Whatever they·are called, the four miners raised safety issues which
are clearly protected under the Act. Accordingly, I conclude that Damron, Conway, and both
McClains engaged in protected activity.
Adverse Action
The miners claim that they were discharged on August 30, 2004, as a result of their
complaints. Osborne and Ratliff maintain in their briefs that only Wendell McClain was fired,
that Damron and Conway quit and that Coy McClain was not fired. (Osborne Br. at 4-5, Ratliff
Br. at 1.) The preponderance of the evidence supports a conclusion that all four were fired.
There is no dispute that Wendell McClain was discharged. After making his statement
about the brakes on the scoop, he testified that Ratliff told him "to get my bucket and that I was
fired. He said because nobody's going to come in my mines [sic] and tell me that somebody's
going to get hurt with a piece of my equipment." (Tr. 202.) Ratliff testified that Wendell said
"you stupid SOBs are going to get somebody killed" and that "I told Wendell that I wouldn't be
needing him anymore, that I wasn't going to let him cuss me and disrespect me and try to destroy
the name I had as a miner." (Tr. 477.) Damron, Conway and Coy corroborated Wendell's
version of the event. (Tr. 32, 76, 121.)
Despite Ratliff's testimony that he told Wendell that he was not going to let Wendell
"cuss" him and "disrespect" him, neither Ratliff nor Osborne assert in their briefs that that was
the reason Wendell was fired. Further, if that were the reason, neither of the Respondents has
shown that Misty Mountain had a policy prohibiting swearing, had previously admonished
Wendell about swearing or had fired other miners for similar statements. Sec. of Labor on behalf
of Cooley v. Ottawa Silica Co., 6 FMSHRC 516, 521 (Mar. 1984). Rather, I find that Ratliff's
testimony was an after the fact attempt to justify his firing Wendell, and that Wendell was clearly
fired for his remarks about the lack of brakes on the scoop.

27 FMSHRC 694

With regard to Coy McClain, he testified that after Ratliff fired Wendell, Ratliff told him
to get his bucket and go home with bis brother, which he took -to mean he was also fired. (Tr.
121.) Conway, Damron and Wendell likewise thought Coy had been fired. (Tr. 34, 76-77, 20203.) Ratliff testified that when he fired Wendell, Coy "was standing there and Coy had rode to
work with Wendell that day and I told him, I said, get your bucket and go home with your brother
and be back out in the morning at 6:00." (Tr. 477.) Coy testified that he did return to the mine
the next day and "asked Mr. Ratliff, could I have my job back." (Tr. 126.)
I conclude that Coy McClain was discharged on August 30. I base this finding on these
facts: (1) he filed a complaint with MSHA the same day that he was fired; (2) the other three
miners believed that he had been fired; and, (3) the phrase "get your bucket and go home" or "go
to the house" is commonly used in the coal fields as a synonym for "you're fired." (Tr. 541.)
Moses v. Whitley Development Corp., 4 FMSHRC 1475, 1479 (Aug. 1982). Furthermore,
Ratliff's testimony that he told Coy to return the next morning is self serving and, given the heat
of the moment, incredible. He implicitly admitted that he fired Coy when he testified concerning
Coy's return the next day, that: "Coy had said he mistakenly thought he was fired, went over
there and told them he thought he'd been fired. And when he came back out to work the next
morning, I asked him if he was going to take care of the complaint that he had made against me."
(Tr. 506.)
Concerning the other two Complainants, Conway testified that on the afternoon of August
30, he was having trouble keeping the parked scoop from rolling back on an aluminum cable
because the parking brakes did not work. (Tr. 36.) He related that Ratliff, on observing the
scoop parked on the cable, said "we was a bunch of deadbeats." (Tr. 36.) Conway further
testified that he responded "is that really what you think of us? [W]e're deadbeats [?]" (Tr. 36.)
He said that Ratliff replied: "[Y]eah, I do. [Y]ou boys get your buckets and get off the hill."
(Tr. 36.) Conway stated that he understood this to mean he had been fired. Damron, who was
also present, believed that he had been fired too. (Tr. 78.)
Ratliff's version of the incident was as follows:
I told him that I wasn't going to put up with people not helping us
work, deadbeats. I wasn't going to work with no deadbeats. I
wasn't going to put up with that. So what time I was talking to
Wade, Gary spoke up and said, is that what you think about us,
Simon? And I wasn't talking to Gary at this time. And I said,
well, yeah, I guess it is, Gary. So Gary instructed Wade to get their
buckets and they left at that time.
(Tr. 478-79.)
Mike Childress, the mine foreman, was also present during this exchange. He testified
that:

27 FMSHRC 695

We quit at 2:00, at five minutes 'til 2:00. And me and Wade was
walking past the head drive and Simon hollered out and said,
called them knuckleheads or something like that. I thought he was
kidding around and joking, you know, he's all the time doing stuff
like that. And anyway, me and Wade walked up to the office and
Gary jumped up and said, is that what you think of us, Simon, and
he said yeah. And Gary said something else about, you know,
didn't have to take that or what, something like that and said, come
on, Wade, let's go.

Q. And what did Simon say?
A. He said, well, just go home. Just get your buckets then and go
on.
Q. Okay. And what did you think that meant?
A. Fired.

Q. They were fired?
A. Yeah. To me, that would mean that.
Q. And why did you think they were fired?
A. Well, just by the - get you clothes, you know, if you ain't
going to do nothing, just get your buckets and go to the house.

Q. Is that term commonly used in the mining industry when
someone's fired?
A. Yeah, pretty much.
(Tr. 540-41.) Childress later reiterated that based on the events, he "took it as they was fired,
yeah." (Tr. 544.) However, when asked by Osborne if Conway and Damron quit before Ratliff
told them to go, he answered, "possibly, yeah." (Tr. 545.)
Based on a preponderance of the evidence, I conclude that Conway and Damron were
fired. Childress plainly testified that he thought they had been fired. The fact that he later
equivocated under pressure from the examination of his employer does not render his direct
testimony unreliable. Furthermore, Conway and Damron's subsequent going to MSHA to file a
complaint for being fired is consistent with their belief that that was what had happened.

27 FMSHRC 696

Adverse Action - the Result of Protect~d Activity
Having concluded that the miners suffered the adverse action of being discharged, the
next issue is whether they were discharged because of their safety complaints. Resolution of that
question rests with Ratliff's intent or motivation. As it is obviously hard to discern what a
person is thinking, the Commission has set out some guidelines for determining motivation.
Thus, it has stated:
We have acknowledged the difficulty in establishing a
motivational nexus between protected activity and the adverse
action that is the subject of the complaint. ''Direct evidence of
motivation is rarely encountered; more typically, the only available
evidence is indirect . . .. 'Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial
evidence.'" Secretary of Labor on behalf of Chacon v. Phelps ·
Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other
grounds, 709 F.2d 86 (D.C. Cir. 1983) (quoting NLRB v. Melrose
Processing Co., 351F.2d693, 698 (8th Cir. 1965)). In Chacon,
we listed some of the circumstantial indicia of discriminatory
intent, including (1) knowledge of the protected activity; (2)
hostility or animus towards the protected activity; and (3)
coincidence in time between the protected activity and the adverse
action. Id.
Secretary on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept. 1999).

In these cases, all of the circumstantial indicia lead to the conclusion that the four miners'
discharge was motivated by their safety complaints. First, the safety complaints were made
directly to Ratliff, an agent of the company. Indeed, as noted above, he admitted that he was
aware of them. Thus, he had knowledge of the protected activity.
Second, Ratliff showed hostility toward the protected activity. For instance: (1) He
acknowledged that when Conway asked him for a filter for the roof bolter's dust collection
system he told Conway that he was saving the filters for when the inspectors came, although he
claimed he was just joking. (Tr. 498.) (2) When Conway and Damron asked for crib blocks to
place between the roof and the roof bolter's ATRS because the ATRS would not reach the roof,
Ratliff refused and told them to keep bolting. (Tr. 30.) (3) After the incident where Damron had
to run into the rib to stop the scoop, when Conway tried to discuss the lack of brakes on the
equipment with Ratliff, Ratliff told Conway that it was not his concern, that he was the one
making the calls. (Tr. 34-35.) (4) When Conway explained that the scoop had come to a stop on
an aluminum cable because the parking brakes did not work, he said that Conway and Damron
were a bunch of "deadbeats." (Tr. 36, 78.)

27 FMSHRC 697

Third, the.protected activity and the adverse action occurred one right after the other.
Ratliff fired Coy and Wendell McClain as a direct result ofWendelJ's exclamation. He fired
Conway and Damron at the end of a day on which he had fired the McClains, had received
several safety complaints and almost directly after Conway told him the parking brakes on the
scoop did not work.
Accordingly, I conclude that Conway, Damron, Coy and Wendell McClain were
discharged because of tJleir protected activity in violation of the Act.
The Second Discharge
After the miners had filed discrimination complaints with MSHA, Conway, Damron and
Wendell McClain filed applications for temporary reinstatement. The parties settled the
applications for temporary reinstatement by agreeing that the miners would return to work on
October 4 at the same, or similar·positions, and at the same pay. Docket Nos. KENT 2005-2-D,
KENT 2005-3-D and KENT 2005-4-D, Unpublished Order (October 13, 2004). Wendell
returned to work on the 4th, but Conway and Damron, for unexplained reasons, did not return
until the 11th.
During the week of October 11, the Complainants were sent home each day after working
only a few hours, even though other miners continued working. (Tr. 42-43, 82-83, 128, 208-10.)
On October 14, Ratliff called all of the employees into the office and, according to Wendell,
he had set up on the table there and there was some wasps a-flying
around. And he started, you know, a-killing them. He said I can
kill these SOBs, but I can't the men that brought this complaint on
me. And he said, you boys, he said, I'm not going to work with
you[']ns and you all might as well get your stuff and go on home.
(Tr. 211-12.) Ratliff testified that what he meant was that he was quitting, "that I couldn't work
with them boys no more and I had to quit." (Tr. 481.) The complainants, however, all thought
that they had been fired again. (Tr. 44, 85, 131, 212.)
I find that the four miners reasonably believed that they had been fired again.
Furthermore, there is no evidence that anyone told them to come back when they left or tried to
explain to them that they had misunderstood Ratliff. Consequently, I conclude that the
Complainants were fired a second time. Since the second discharge was the result of their
discrimination complaints, I conclude that it was also in violation of section 105(c) of the Act.

Remedies
In their complaints, the Complainants request the following remedies: (1) reinstatement
to the same, or similar, position at the same rate of pay; (2) back wages with interest until the
date of payment; (3) the value of all employment benefits, all medical and hospital expenses and
27 FMSHRC 698

all other damages incurred as a result of the discharges; and (4) expungement from their
employment records of all references to the discriminatory discharges. As detailed below, I
conclude that the Complainants are entitled to back pay, but not to reinstatement or other
damages.
Reinstatement
At the trial, the Complainants all maintained that they desired to be reinstated. (Tr. 45,
88-89, 131, 214.) Conway, Damron and Coy McClain all answered ''yes," without elaboration,
when asked if they would "have accepted transfer to another Misty Mountain Mine." (Tr. 45, 88,
131.) The facts, however, contradict those answers. All four were offered a chance to return to
Mine No. 5 or to transfer to other Misty Mountain mines and all four turned them down.
The mine was shut down from October 15 until October 25 so that Osborne could hire a
new superintendent. Wendell McClain returned to work at the mine on October 25 and
continued working there until the mine was finally closed on November 13. When the mine
closed, Osborne offered to transfer him to another Misty Mountain mine. (Tr. 212.) Wendell
told Osborne that he would take the job, but did not report for work. He claimed that he could
not take the job because it was two and one half hours from his home and he did not have money
for gas. (Tr. 213.) He maintained that he did not have money for gas because he did not have a
job. (Tr. 213.) Nonetheless, he averred that if he did have money for gas he would have driven
to the job. (Tr. 214.)
His excuses are inconsistent and nonsensical. In the first place, he would have had a job
and, therefore, money for gas if he had gone to work. Furthermore, the mine shut down
November 13, a Saturday, and his new job was to start on the following Monday, so he was only
out of work for one day (Sunday). (Tr. 241-42.) In the second place, his estimate that the mine
was two and one half hours from his house is not credible. When questioned about it, he refused
to even guess how many miles the trip would be and, indeed, indicated he had no idea how far
away the mine was. (Tr. 242-43.) Finally, and most significantly, Osborne gave Wendell
$800.00 on November 13, but Wendell claimed that he could not use it for gas because he was
"discharged from my job" and had to use the money for his children's Christmas gifts that he had
on lay away. (Tr. 244.) As has already been noted, he was only out of work, if it can be called
that, for a Sunday and if he had used the money for gas, he would have had a job to pay for the
gifts. Therefore, I conclude that Wendell McClain's failure to report to work at Mine No. 2 was
not justified.
With regard to the other three Complainants, Osborne testified that: "On October 22nd, I
told all four employees that there will be work for them on Monday morning at 7:00 a.m." (Tr.
528.) He stated that he did not tell the miners directly, but told them through Hamilton and their
attorney. (Tr. 529.) While he was not sure of the date, Hamilton testified that Osborne and he
had a conversation "about the guys coming back to work." (Tr. 403.) Accordingly, I find that
such an offer was made.

27 FMSHRC 699

Osborne further testified that:
On the 24th, Coy McClain called my home and told me that he had
a better job, that he was quitting and wanted me to meet him at the
mine site to get his training papers and his - any other thing else
he had there. Of course, you have to have that to go to another job.
And I did that. On October the 25th, Wendell was the only
employee that showed up for work.
(Tr. 529.) Coy professed not to recall this incident and, in fact, was very evasive when
questioned about it. (Tr. 173-75.) Hamilton, however, recalled that Osborne told him that Coy
had quit because he got a better job. (Tr. 397-98.) In addition, the evidence shows that Coy
worked at McPeaks Energy from October 17 through November 12 at $17.00 per hour, more
than the $14.00 per hour he was making at Misty Mountain. (Govt. Ex. 24.)
Concerning Conway and Damron, Osborne further testified that on October 25: "I talked
to Rick and he told me that Gary and Wade told [their attorney] that they were going to find
another job .... " (Tr. 529.) He went on to state that:
On October the 26th, I called Joan, Rick's Secretary, and I told her
that I could place one of these two men if they wanted a job....
She said she would call Rick and tell him what I said .... On
October 27th, Joan called me and told me that Rick said if I wanted
to place those men at another mine site that I could get in touch
with them. [I] called Joan back, she told me that Gary and Wade
both had gotten a job, they were not interested in going back to
work Rick had told her.
(Tr. 529-30.) While this testimony contains a great deal of hearsay, it was not disputed by the
other parties involved, nor was Osborne cross examined about it. Furthermore, the testimony
was corroborated by Hamilton, who testified that: "I'm not sure of the dates, but I do remember
these conversations taking place, that you had called Joan to relay the information to me and I
gave her an answer to give back to you that you could have placed the guys at another mine. And
I also remember that the guys had found another job." (Tr. 402.)
The Commission has held that: "If a suitable offer [of reinstatement] was made and
refused, then the need to offer reinstatement now is moot." Munsey v. Smitty Baker Coal Co.,
Inc., 2 FMSHRC 3463, 3464 (Dec. 1980). I find that Osborne made a suitable offer of
reinstatement to the four Complainants. In this connection, the fact that the offer was first made
to settle the temporary reinstatement applications does not mean the offer was not suitable. The
miners went back to work in the same positions and at the same pay as they originally had. When
they were fired a second time, Osborne made it known to them that they could return to Mine No.
5 or to other mines that he operated. Furthermore, after October 14, Ratliff, who seems to have
27 FMSHRC 700

been the catalyst for all of the problems at the mine, had resigned. Instead of accepting the
offers, Coy McClain, Conway and Damron opted to get other jobs. Wendell McClain worked at
Mine No. 5 until it closed and then chose not to accept the offer of work at another mine without
articulating a legitimate reason for doing so.
Since Osborne made all of the miners suitable offers of reinstatement, which they elected
not to accept, I conclude that they are not now entitled to reinstatement. 3
Back Pay
Turning next to the issue of back pay, the Commission has stated that:
Generally, when a discriminatee is unconditionally and in a bona
fide fashion offered reinstatement, the running of back pay is
tolled. B. Schiel and P. Grossman, Employment Discrimination
Law, at 1432 2d ed. (1983); at 279-80 (2d ed. 1983-84 Supp.
1985); see Munsey v. Smitty Baker Coal Company, Inc., 2
FMSHRC 3463, 3464 (December 1984) (suitable job offer tolls
back pay due discriminatee).
Bryant v. Dingess Mine Service, 10 FMSHRC 1173, 1180 (Sept. 1988). Consequently, for the
same reason that the Complainants are not entitled to reinstatement, I conclude that they are only
entitled to back pay up to the time that they refused reinstatement.

Coy McClain, although fired on August 30, actually worked at the mine from August 31
until he was discharged again on October 14, a Thursday. His pay record shows that he was paid
$238.00 for 17 hours work that week. (Govt. Ex. 18.) However, the evidence is that he was sent
home early every day that week. The pay record of Gordon Stanley was put into evidence and
used by the Secretary as a guide to determine the number of hours worked at the mine on a given
week. (Gt. Ex. 20, Tr. 408-09.) Stanley's pay stub for the week of October 10-16 shows that he
worked 34 hours. Therefore, I find that Coy McClain is entitled to another 17 hours of pay for
that week, or $238.00. Coy went to work for McPeak's Energy on October 17 and told Osborne
on October 24 that he was quitting because he had found a better job. Thus, he is not entitled to
3

The Complainants' statements that they desire to be reinstated appear somewhat
disingenuous inasmuch as after leaving Misty Mountain they all got jobs paying $17.00 per hour,
as opposed to the $14.00 per hour they received at Misty Mountain, Mine No. 5 is closed, Misty
Mountain Mining has gone out of business and they testified that Mine No. 5 was a very unsafe
mine. All of the miners have work histories that can only be described as sporadic and they were
apparently not working at the time of the trial. However, the fact that they were discriminated
against does not afford them lifetime re-employments rights with Misty Mountain any time they
are fired, get laid-off, or quit a job. Once they refuse reinstatement, they are not again entitled to
it.
27 FMSHRC 701

any other back pay. I conclude that Coy McClain is due back pay of $238.00 plus interest until
the date of payment.
Wendell McClain was fired on August 30 and returned to work on October 4. He was
fired again on October 14. The mine was closed from October 15 until October 25, at which
time he returned to work and worked until the mine closed for good on November 13. He turned
down, by not showing up, Osborne's offer of work at another mine beginning on November 15.
Therefore, he is entitled to back pay from August 31 until October 3 and for an additional 17
hours for the week of October 10-16.
Wendell's brother, Coy, earned $560.00 for 40 hours work the week of August 29
through September 4, $462.00 for 33 hours work the week of September 5 through September
11, $448.00 for 32 hours work the week of September 12 through September 18, $504.00 for 36
hours work the week of September 19 through September 25, and $448.00 for 32 hours work the
week of September-26 through October 2. (Govt. Ex. 18.) Unlike the Secretary, I find Coy
McClain' s hours more representative of what Wendell would have worked during that period
than the hours put in by Gordon Stanley, who was clearly a senior employee, while the McClains
were very new. Therefore, I conclude that Wendell McClain is entitled to back pay of $2,422.00
for the period from August 30 through October 3 and $238.00 for the week of October 10
through October 16, for a total of $2,660.00.
This $2,660.00 must be offset by the $800.00 given to Wendell McClain by Osborne on
November 13. On November 19, 2004, Wendell McClain and his wife, Cynthia, entered int9 a
written agreement with Stanley and Wayne Osborne which states:
I, Wendell McClain, in exchange for the sum of $800.00
paid in full by check number 6541 hereby agree to drop any and all
litigation brought through the U.S. Department of Labor and
brought personally against Stanley Osborne, Wayne Osborne and
Misty Mountain Mining, Inc. regarding my employment at Misty
Mountain Mining, Inc. I also affirm that neither I nor any of my
dependents have any further claims against Stanley Osborne,
Wayne Osborne, or Misty Mountain Mining, Inc.
(Resp. Ex. A.) Wendell claimed that he just glanced over the document and did not know what
he was signing. (Tr. 250.) He asserted that he thought he was signing for money that Osborne
owed him. (Tr. 258.) His testimony on what he thought this document was for was evasive and
inconsistent at best. (Tr. 250-60.) However, since he did not consult an attorney, since he is only
entitled to back pay through October 16 and since this case was brought by the Secretary, who
was not advised of the transaction at the time, I will give him the benefit of the doubt that he did
not understand what he was signing and hold that the $800.00 and the document will only be
considered to offset any back pay he is due. Accordingly, I conclude that Wendell McClain is
entitled to back pay of $1,860.00 plus interest until date of payment.

27 FMSHRC 702

Gary Conway and Wade Damron were fired on August 30 and did not return to work, for
reasons of their own, until October 11. They were discharged again on October 14 and turned
down Osborne's offer of work on October 25. Therefore, they are entitled to back pay from
August 31 through October 3, but not for the week of October 4-8 since their failure to work was
voluntary on their part, and for an additional 17 hours for the week of October 10-16. As with
Wendell McClain, I find that they would have worked the same hours as Coy McClain.
Therefore, I conclude that Gary Conway and Wade Damron are each entitled to back pay of
$2,660.00 plus interest until the date of payment.
Employment Benefits, Medical Expenses and Other Damages
The only evidence of other damages offered at the trial was Coy McClain's claim that he
lost his house as a result of his discharge. The amount of damages he is claiming was not
specified. Coy testified that he was purchasing a home on a rent-to-buy contract in July 2004.
(Tr. 152-53.) He said that the monthly payment was $350.00. (Tr. 137.) He testified that he was
up to date with his payments until October 2004 at which time he missed a payment. (Tr. 137.)
He offered into evidence an undated statement from his landlord, Diane Addington, which stated:
"Coy McClain intered [sic] in a rent to own land contract for the amount of 17,000.00[,] paying
the amount of 350 per month in July of 2004 and was evicted Nov. of 2004[.] Left owing 850
still due and payable now. The contract was void due to non payment of rent." (Comp. Ex. 1.)
Coy cou1d not explain how, if he had made th~ July, August and September payments, he
owed $850.00 when he was evicted in November. (Tr. 154-55.) His testimony was inconsistent
and evasive on the issue of losing the house. Furthermore, the evidence is that he was working at
least through November 12 and, at most, was not paid $238.00 he would have earned for the
week of October 10-16. Therefore, I conclude that Coy may indeed have lost his house, but if he
did, it was not because of his discharges. Accordingly, I will not award him damages for the loss
of his house.
Liability
Misty Mountain Mining, Inc., is a Kentucky corporation. (Govt. Ex. 21.) The MSHA
Legal ID Report for Mine No. 2 shows that Misty Mountain's President is Wayne Osborne and
Stanley Osborne is listed as Vice-President. (Govt. Ex. 21.) Wayne Osborne is apparently
Stanley Osborne's son. (Tr. 334.) Stanley Osborne testified that he owned three Misty Mountain
mines, none of which were in operation on the date of the trial. (Tr. 329.) However, the
Secretary has put into evidence Assessed Violation History Reports for four Misty Mountain
mines, No. 1, No. 2, No. 4 and No. 5. (Govt. Ex. 9.) Those documents show that Misty
Mountain's ownership of the mines was as follows: (1) Mine No. 1 from May 8, 2003, until July
20, 2004; (2) Mine No. 2 from May 8, 2003, until April 10, 2005; (3) Mine No. 4 from March 9,

27 FMSHRC 703

2004, until December 31, 9999;4 and (4) Mine No. 5 from June 29, 2004, until January 17, 2005.
Stanley Osborne also testified that he owns Sister Bear Mining. (Tr. 339.) Further, there
is some indication that Sister Bear Mining owned the Misty Mountain Mines before Misty
Mountain. (Tr. 348.) However, no further evidence was adduced or offered about Sister Bear
Mining.
Finally, Stanley Osborne testified that his son, Josh Osborne, owns Midgard Mining
Company which operates two mines, No. 1 and No. 2, and that the No. 2 mine is the former
Misty Mountain No. 2 mine. (Tr. 337, 342.) Stanley Osborne further testified that Misty
Mountain owned Mine No. 2 until December 1, 2004, "after that it was owned by Foggy
Mountain Mining before it was owned by Josh." (Tr. 342.) The MSHA Legal ID Report for
Mine No. 2 shows that Midgard Mining Company is a limited liability corporation. (Govt. Ex.
22.)
The Secretary asserts that the Complainants should be reinstated and paid back pay by
Midgard Mining Company, as a successor operator to Misty Mountain Minfog. She bases this
proposition on Terco, Inc. v. FMSHRC, 839 F.2d 236 (6th Cir. 1987), wherein the Sixth Circuit
Court of Appeals upheld the Commission's nine factor test for establishing successor liability.
While the Sixth Circuit did indeed approve the Commission's nine factor test, the Secretary has
neglected to show how it applies in this case.
Moreover, the Complainants have a bigger problem than applying the test. In every_case
in which the nine factor test has been used to establish successor liability, the successor has been
a party to the proceeding. See, e.g. Meek v. Essroc Corp., 15 FMSHRC 606 (Apr. 1993);
Secretary on behalf of Corbin et al v. Sugartree Corp., Terco Inc. and Randal Lawson, 9
FMSHRC 394 (Mar. 1987); Munsey v. Smitty Baker Coal Co., 2 FMSHRC 3463 (Dec. 1980).
In this case, neither Midgard Mining Company nor Josh Osborne were made parties to the
proceeding and given a chance to defend themselves against the claims. Furthermore, I am not
aware of any authority I have to order a company or an individual not before me to pay the
Complainants back pay or put them to work.
Accordingly, I conclude tha~ Misty Mountain Mining, Inc., is liable for the Complainants
back pay, but decline to follow the Complainants' suggestion that Midguard Mining also be held
liable. I also hold that Stanley Osborne is jointly and severally liable for the Complainants' back
pay. All of the evidence, including his own testimony, shows that he was the operator of the
mine, the person in control, and he cannot avoid liability by hiding behind the "corporate veil."
Simpson v. Kenta Energy, Inc. and Jackson, 11 FMSHRC 770, 780 (May 1989).
On the other hand, I do not find Simon Ratliff liable since he was merely an agent of the

4

I take this to mean that the mine was still in operation on April 18, 2005, the date the
report was requested, although the most recent citation listed in it was issued on June 29, 2004.
27 FMSHRC 704

corporation and not a de facto operator. There is no evidence he had any ownership interest in
the company. Nor is there any evidence that he was acting outSide the scope of his authority as
superintendent when he fired the Complainants.
Credibility of Witnesses
On the whole, I found the main protagonists in this episode, Simon Ratliff, the McClains,
Conway and Damron, to be of doubtful credibility. Not only did they have obvious interests in
the outcome of these cases, but their testimony, in addition to the specific instances already
noted, was characterized by selective memory, inconsistencies and self-serving statements. I
have tried to rely on their testimony only when it was supported or corroborated by other
evidence.
Conclusion
I find that the Complainants were fired on August 30, 2004, because they complained
about the lack of safety at the mine and were fired on October 14, 2004, because they had filed
discrimination complaints. Thus, they were discriminated against in violation of section 105(c)
of the Act. They are entitled to back pay up until the time that they turned down reinstatement,
but not thereafter. They are not entitled to reinstatement having once declined it, nor are any of
them entitled to any special damages. Misty Mountain Mining, Inc. and Stanley Osborne are
jointly and severally liable to the Complainants for their back pay, but there is no basis on which
to hold any other entity or individual so liable.
Civil Penalty Assessment
The Secretary has proposed penalties of $20,000.00 against Misty Mountain Mining and
$10,000.00 each against Stanley Osborne and Simon Ratliff. 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 l lO(i) of the Act, 30 U.S.C. § 820(i). Sellersburg Stone Co.
v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481,
483-84 (Apr. 1996).
Section 105(c)(3), 30 U.S.C. § 815(c)(3), states that: "Violations by any person of
paragraph (1) shall be subject to the provisions of sections 108 and llO(a)." Section 108, 30
U.S.C. § 818, has to do with obtaining injunctions and is not applicable to this proceeding.
Section l lO(a), 30 U.S.C. § 820(a), provides that: 'The operator of a coal ... mine in which a
violation occurs of a mandatory health or safety standard or who violates any other provision of
this Act, shall be assessed a civil penalty .. . ." Thus, Misty Mountain Mining and Stanley
Osborne, as the "real operator" of the mine, are jointly and severally subject to a civil penalty for
these violations of the Act.
Notwithstanding, that Stanley Osborne is subject to a penalty as an operator, he is not also
27 FMSHRC 705

subject to an additional penalty as an individual. Simon Ratliff is also not subject to a civil
penalty. The only way that Osborne or Ratliff could be personally liable would be under section
llO(c) of the Act, 30 U .S.C. § 820(c). That section provides that:
Whenever a corporate operator violates a mandatory health
or safety standard or knowingly violates or fails or refuses to
comply with any order issued under this Act, except an order
incorpotated in a decision issued under subsection (a) or section
105(c), any director, officer, or agent of such corporation who
knowingly authorized, ordered, or carried out such violation,
failure, or refusal shall be subject to the same civil penalties . ..
that may be imposed upon a person under subsections (a) and (d).
(Emphasis added.) Clearly, as shown by the italicized text, this provision only involves
violations of mandatory health or safety standards or violations of orders issued under the Act.
This case involves a violation of the Act, not of a mandatory health or safety standard or an order
issued under the Act. Therefore, section llO(c) does not provide a basis for assessing civil
penalties against Osborne or Ratliff.
I am not aware of any other authority in the Act upon which Osborne or Ratliff can be
individually subjected to a civil penalty. Accordingly, no civil penalty will be assessed against
either as an individual.
Turning to Misty Mountain Mining and Osborne, as the operator, I make the following
findings under section 1 IO(i). There is no evidence of any previous violations of section 105(c)
by either Misty Mountain Mining or Stanley Osborne. Misty Mountain Mining and Stanley
Osborne are, or were, a very small business. The operator was negligent in not monitoring the
actions of Simon Ratliff, particularly after the discrimination complaints were filed. There is no
evidence that the assessment of a civil penalty will have any effect on Misty Mountain Mining or
Stanley Osborne continuing in business. 5 These violations were very serious in that they reflect a
disregard of the safety complaints of miners, an opposite reaction to such complaints than the one
envisioned by the Act and a reaction which would tend to have a chilling affect on other miners
making safety complaints. On the one hand, the operator demonstrated good faith in attempting
to abate the violations by agreeing to temporary reinstatement and offering other job
opportunities. On the other hand, he took no action against Simon Ratliff after learning of the
violations and the problem was not resolved until Ratliff quit.
Taking all of these factors into consideration, I conclude that a $10,000.00 civil penalty
against Misty Mountain Mining and Stanley Osborne is appropriate.

5

Misty Mountain Mining is apparently no longer in business and Stanley Osborne is
apparently not operating any other mines.

27 FMSHRC 706

Order
Having found that Gary Conway, Wade Damron, Coy McClain and Wendell McClain
were discharged by Misty Mountain Mining, fuc. and Stanley Osborne in violation of section
105(c) of the Act, and that Misty Mountain Mining, Inc., and Stanley Osborne are JOINTLY
AND SEVERALLY LIABLE for each of the following, it is ORDERED that:
1. Misty Mountain Mining, Inc., and Stanley Osborne EXPUNGE from Gary
Conway's, Wade Damron's, Goy McClain's and Wendell McClain's personnel
files and company records the discharges and all references to the circumstances
involved in them.
·
2. That Misty Mountain Mining, Inc., and Stanley Osborne PAY Gary Conway
back pay of $2,660.00 plus interest until the date of payment.6

3. That Misty Mountain Mining, fuc., and Stanley Osborne PAY Wade Damron
back pay of $2,660.00 plus interest until the date of payment.6

4. That Misty Mountain Mining, Inc., and Stanley Osborne PAY Coy McClain
back pay of $238.00 plus interest until the date of payment.6
5. That Misty Mountain Mining, Inc., and Stanley Osborne PAY Wendell
McClain back pay of $1,860.00 plus interest until the date of payment.6

6. That Misty Mountain Mining, Inc., and Stanley Osborne PAY a civil penalty·
of $10,000.00 within 30 days of the date of this decision. ·

c{~~

Administrative Law Judge

Distribution:
Marybeth Zamer Bernui, Esq, Office of the Solicitor, U.S. Department of Labor, 618 Church
Street, Suite 230, Nashville, TN 37215
6

The proper method of calculating interest on back pay is: Amount of interest = the
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 short-term federal underpayment rate. Secretary on behalf of Bailey
v. Arkansas-Carbona Co., 5 FMSHRC 2042, 2052 (Dec. 1983), as modified by Clinch.field Coal
Co., 10 FMSHRC 1493, 1505-06 (Nov. 1988).
27 FMSHRC 707

Mr. Stanley Osborne, VP, Misty Mountain Mining, Inc., P.O. Box 165, Jonancy, KY 41538
Mr. Simon Ratliff, P.O. Box 343, Lookout, KY 41542
Wes Addington, Esq., Appalachian Citizens Law Center, Inc., 207 W . Court Street, Suite 202,
Petersonburg, KY 41653

27 FMSHRC 708

FEDERAL MINE SAFETY AND HEALTH flEVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Ave., N.W ., Suite 9500
Washington, DC 20001-2021

October 31, 2005
MARK W. GIBSON

DISCRIMJNATION PROCEEDING
Complainant

v.
TRIPLE C TRUCKING, INC.,
Respondent

Docket No. LAKE 2005-84-D
VINC CD 2005-01
Craney Mine
Mine ID 12-01732 FIK

DECISION
Appearances: Mark W. Gibson, Washington, Indiana, Pro Se;
Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, PILC, Lexington,
Kentucky, for Respondent.
Before:

Judge Hodgdon

This case is before me on a Complaint of Discrimination brought by Mark W. Gibson
against Triple C Trucking, Inc., pursuant to section 105(c) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 815(c). A trial was.held in Washington, Indiana. For the reasons set
forth below, I find that the Complainant was not discharged by Triple C because he engaged in
activities protected under the Act.

Background
Triple C Trucking, owned and operated by Michael Childers, has been in the coal hauling
business for almost 29 years. It began operating in eastern Kentucky and moved into southern
Indiana about three and one half years ago. The company now operates 18 or 19 trucks a day
hauling coal from two sites.
Mark Gibson was hired as a truck driver by Triple C in late October 2004. He had onthe-job training on November 4, and began working on November 5, 2004. He worked six days
a week, except for Thanksgiving and some other days off, through December 11, 2004. He was
discharged on December 11.
Alleging that he was terminated for engaging in activity protected under the Act, Gibson
filed a discrimination complaint with the Secretary of Labor's Mine Safety and Health
Administration (MSHA), under section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), on January

27 FMSHRC 709

10, 2005 . 1 On March 24, 2005, MSHA informed him that, on.the basis of a review of the
information gathered during its investigation, "MSHA has determined that facts disclosed during
the investigation do not constitute a violation of section 105(c)." Gibson then instituted this
proceeding with the Commission, under section 105(c)(3), 30 U.S.C. § 815(c)(3), on March 30,
2005.2

Findings of Fact and Conclusions of Law
Section 105(c)(l) of the Act, 30 U.S.C. § 815(c)(l), provides that, a miner cannot be
discharged, discriminated against, or interfered with in the exercise of his statutory rights
because: (1) he "has filed or made a complaint under or related to this Act, including a complaint
... of an alleged danger or safety or health violation;" (2) he "is the subject of medical
evaluations and potential transfer under a standard published pursuant to section 101;" (3) he
"has instituted or caused to be instituted any proceeding under or related to this Act or has
testified or is about to testify in any such proceeding;" or (4) he has exercised "on behalf of
himself or others ... any statutory right afforded by this Act."
In order to establish a prima facie case of discrimination under section 105(c )(1 ), a
complaining miner must show: (1) That he engaged in protected activity; and (2) That the
adverse action he complains of was motivated at least partially by that activity. Driessen v.
Nevada Gold.fields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Secretary on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981); Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev'd on other grounds sub nom .
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981). The operator may rebut the
primafacie case by showing either that no protected activity occurred or that the adverse action
was in no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the
operator cannot rebut the primafacie case in this manner, it, nevertheless, may defend
affirmatively by proving that it was also motivated by the miner's unprotected activity and would
have taken the adverse action for the unprotected activity alone. Id. at 2800; Robinette, 3
FMSHRC at 817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th
Cir. 1987).

1

Section 105(c)(2) provides, in pertinent part, that: "Any miner . .. who believes that he
has been discharged, interfered with, or otherwise discriminated against by any person in
violation of this subsection may, within 60 days after such violation occurs, file a complaint with
the Secretary alleging such discrimination."
2

Section 105(c)(3) provides, in pertinent part, that: "If the Secretary, upon investigation,
determines that the provisions of this subsection have not been violated, the complainant shall
have the right, within 30 days of notice of the Secretary's determination, to file an action in his
own behalf before the Commission ...."
27 FMSHRC 710

In his complaint to MSHA, Gibson claimed that he was_discriminated against by Triple C
because: "I was discharged by the Shop Supervisor (Merle) and (Owner) Mike Childers for
reporting unsafe conditions on the trucks I was assigned to operate. I reported these conditions
on the Vehicle Inspection Report." (Comp. Ex. 4.) The termination notice given Gibson stated
that he was being discharged for "insubordination" and recited as justification:
Not following a direct order from Shop Supervisor. Pre-trip
inspection that you filled out stated that rear tires was [sic] worn
excessively. Shop Supervisor told you that this truck was parked
until new tires could be put on. Mark started the truck and was
going to drive it even though he had been told not to. During
probation period your performance does not meet our
requirements."
(Comp. Ex. 3.) As discussed below, I find that Gibson did engage in protected activity, but that
his discharge was not related to that activity.
There is no dispute that Gibson engaged in protected activity. He did so by filling out a
pre-trip inspection report indicating that truck 567 had three worn tires. Nor is there any doubt
that he was fired. The question in this matter, as it frequently is in discrimination cases, is
whether Gibson was fired because he wrote up the truck. The answer is that the evidence is clear
that he was fired as the culmination of several instances of failure to follow instructions, bad
attitude and insubordination, not because he caused truck 567 to be taken out of service.
Gibson said that he first filled out an inspection report on truck 567 on November 30. He
testified that on December 11, at the start of work:
I was standing up on the running board [of truck 567] and [Merle
Covert] was screaming and hollering at me, something. And so, I
got down off the side of the truck and went over to him. And he
said, you're not supposed to be operating that truck because you
wrote up on the inspection sheet the tires were bad.
(Tr. 17-18.) Gibson testified that he did not drive truck 567, but drove trucks 780 and 763 that
day. (Tr. 18.) He related that when he returned at the end of the day, he was given his
termination notice. (Tr. 18-19.) He claimed that he had no argument with Merle Covert, the
shop supervisor, nor did he cuss at him. (Tr. 56.)
The company's version of this incident is contrary to Gibson's.3 Jeremy Bell testified that
on the morning of December 11, he went in to talk to Covert, while his truck was being fueled.
Covert told him he wanted to see Gibson to let him know not to drive truck 567. Bell testified
3

Covert died prior to the hearing. (Tr. 64.)
27 FMSHRC 711

that:
I went out and was looking around, walking around my truck, you
know, looking to see if he's out in the parking lot or out at one of
the trucks. And, I seen him, and I told him Merle wanted to talk to
him. And, he said, what about.
And, I told him that it was, 567 was being shut down
because Of the tires that had been wrote up on them, that Merle said
to go ahead and drive 797. And, whenever I told him that, he said
he wasn't driving, you know, F'ing 797, he was driving F'ing 567
and walked off.
(Tr. 83-84.)
Childers testified that on-the afternoon of December 11, Covert told him that he had had a
confrontation with Gibson over truck 567. He stated that: "It was related to me that Merle seen
Mark start the truck, and he went out and he told Mark that he could not drive that truck that day,
and Merle told me that Mr. Gibson told him that he was going to drive that truck .... " (Tr. 102.)
Childers said that after hearing this, he started doing some investigating.· He testified that:
I called the lady at the scale house who weighs the trucks.
And, she also told me she had had problems with Mr. Gibson.
And, a couple of other guys, the loader guys there in the coal yard.
And then I talked with Jeremy B[e]ll, the lead driver. He
said he had had a confrontation with him. And, the other lead
driver at the time which was Mark Winager, he had said he had a
confrontation with him. And, I just thought it was time to cut our
losses, before he got someone hurt.
(Tr. 102.) He went on to state that he learned of other problems with Gibson, such as: "Other
issues like not being on the right channel, not communicating with the guys. You know there's
intersections, they run end dumps on the same roads we run scrapers. You know it's imperative
that these guys stay on the right channel, so they know about traffic and communication." (Tr.
103.)
When specifically asked if he fired Gibson for reporting the tires on truck 567, Childers
responded: "Has nothing to do with that. If I fired every guy that wrote up a safety issue, I
wouldn't have a man out there." (Tr. 109.) Glendon Hayes, the truck supervisor, testified that
pre-shift inspection reports are filled out daily on the trucks, that they deal with safety issues on a
regular basis as a result of the reports and that no one had ever been discharged for filling out
such a report. (Tr. 74.) Bell concurred. (Tr. 88.)

27 FMSHRC 712

Conclusion
Gibson engaged in protected activity when he reported three tires that he believed needed
to be replaced on truck 567. His discharge was precipitated by his confrontation with Covert
over truck 567, but he was not fired because he filed the pre-shift inspection report. Rather, the
unrebutted evidence conclusively demonstrates that he was fired because he failed to follow
directions and he had encounters with both lead drivers, the woman at the scale house, loaders at
the coal piles and finally with the shop supervisor. In addition, I did not find Gibson to be a
credible witness. His testimony was characterized by evasiveness and inconsistencies. Further,
he was argumentative throughout the trial and evidenced a temper which makes reports of his
confrontations very believable. Consequently, I conclude that the Complainant was not
discharged for engaging in protected activity, but discharged for reasons completely unrelated to
the protected activity.

·Order
Gibson has not established that he was fired for engaging in activity protected under the
Act. Accordingly, his Discrimination Complaint filed against Triple C Trucking, Inc., under
section 105(c) of the Act, is DISMISSED.

c{-;;!~~

Administrative Law Judge

Distribution: (Certified Mail)
Mark W. Gibson, 235 Apraw Rd., Washington, IN 47501
Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, PILC, 151 N . Eagle Creek Drive, Suite
310, Lexington, KY 40509
/sb

27 FMSHRC 713

27 FMSHRC 714