JUNE 2002

COMMISSION DECISION AND ORDERS
06-19-2002 Virginia Slate Company
06-24-2002 Texas Mining, L.P. d/b/a Oglebay
Norton Industrial Sands, Inc.
06-24-2002 Freeman United Coal Mining Company
06-26-2002 The American Coal Company
06-26-2002 Trico Recycling, Inc.

1999-8-M

Pg.507

CENT 2002-236-M
LAKE 2000-102-R
LAKE 2000-111-R
CENT 2002-250-M

Pg.520
Pg.524
Pg.542
Pg.560

VA 2001-37
EAJ 2002-2

Pg.563
Pg.572

VA

ADMINISTRATIVE LAW JUDGE DECISIONS
06-11-2002 Mine Management Consultants, Inc.
06-14-2002 Georges Colliers, Incorporated
06-28-2002 Sec. Labor on behalf of Tracy Allen
Sansoucie v. Vessell Mineral Products

CENT 2001-228-DM Pg. 579

ADMINISTRATIVE LAW JUDGE ORDERS
05-29-2002 Sec. Labor on behalf of Jimmy Caudill and
Jerry Caudill v. Leeco, Inc., & Blue
Diamond Coal Co.
06-06-2002 Cactus Canyon Quarries of Texas, Inc.
06-17-2002 Cactus Canyon Quarries of Texas, Inc.
06-17-2002 Cactus Canyon Quarries of Texas, Inc.

!

i

KENT 2002-114-D
CENT 2002-80-M
CENT 2002-379-M
CENT 2002-124-M

Pg.589
Pg.599
Pg.604
Pg. 609

' '

JUNE 2002

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

Review was denied in the following case during the month of June:
Louis Dykhoff, Jr. v. U.S. Borax Incorporated, Docket No. WEST 2001-409-D.
(Petition for Reconsideration of Commission's Order Denying Review on May 3, 2002)

ii

COMMISSION DEQSIONS AND ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STRE~T NW, 6TH ·FLOOR
WASHINGTO_
N, D.C. 20006

.

\

June _19, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
V.

Docket No. VA 99-8-M

·. '

VIRGINIA SLATE COMPANY

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

BY THE COMMISSION:

•(

This is a civil penalty proceeding arising from the issuance of citations by the Department
of Labor's Mine Safety and Health Administration ("MSHN') against Virginia Slate Company
("Virginia Slate"), pursuant to the Federal Mine Safety and Health Act.of 1977, 30 U.S.C. § 801
et seq. (1994) ("Mine Act" or "Act"). At issue is whether Administrative Law Judge Avram
Weisberger, upon remand, correctly determined that two violations were not due to Virginia ·
Slate's unwarrantable failure an.d properly assessed penalties. 23 FMSHRC 867 (Aug. 2001)
(ALJ). For the reasons that follow, we vacate and remand the judge's unwarrantable failure
determinations and penalty assessments.
·

I.
Factual and Procedural Background

A.

Virginia Slate I

This is the second time that this proceeding has been before the Commission. A more
complete summary of the background facts is found in the Commission's prior decision. 23
FMSHRC 482 (May 2001) ("Virginia Slate f'), vacating and remanding 22 FMSHRC 378 (Mar.
2000) (ALJ).

507

."

:··' .

Virginia Slate operates an open pit mine from which it extracts slate, grinds it in a
crusher, and produces various kinds of building materials. 23 FMSHRC 482; Tr. I 22. Virginia
Slate is owned by Adco Land Corporation, which is owned by V. Cassel Adamson, Jr.
("Adamson, Jr."), who also served as attorney for Virginia Slate in the Commission proceedings.
23 FMSHRC 482. Adamson's son, Cassel Adamson III ("Adamson III"), worked at the mine.
See id. at 484-85. Roy Terry served as a foreman; Leroy Williams and James Carter were crusher
operators. 22 FMSHRC at 379, 381.
·
Briefly, on June 2, 1998, MSHA inspector Ricky Joe Hom conducted an inspection of
Virginia Slate's operation. 23 FMSHRC at 482-83. As a result, Hom issued a total of fourteen
citations and orders. S. Ex. 1-14. Among those citations and orders, two are directly at issue
before the Commission. Order No. 7711667 charged a violation of30 C.F.R § 56.9301 1 f~r
failing to use bumper blocks or other impeding devices to prevent a front-end loader, which was
loading the hopper on a crusher, from running into the hopper, hitting a rock, or overturning. 23
FMSHRC at 483. The inspector determined that the violation was significant and substantial
("S&S")2 and that it occurred as a result of Virginia Slate's unwarrantable failure3 to comply with
the regulation. Id.
Hom also issued Order No. 7711681, which cited a violation of 30 C.F.R. § 56.14100,4
for failing to inspect mobile equipment prior to its being placed in operation on a shift. ·Id. Hom
concluded that preshift examinations had not been adequately performed because he found a
number of equipment defects that should have been detected and corrected. Id. The inspector
designated the violation as S&S and due to Virginia Slate's unwarrantable failure. Id.
Subsequently, the Secrefary filed a civil penalty assessment of $8978 for the citations and

1

Section 56.9301 provides: "Berms, bumper blocks, safety hooks, or similar impeding
devices shall be provided at dumping locations where there is a hazard of overtravel
overturning." 30 C.F.R. § 56.9301.

or

.

2

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

The unwarrantable failure terminology is taken from section 104(d)(l) of the Act, 30
U.S.C. § 814(d)(l), which establishes more severe sanctions for any violation that is caused by
"an unwarrantable failure of [an] operator to comply with ... mandatory health or safety
standards." ·
4

Section 56.14100(a) provides: "Self-propelled mobile equipment to be used during a
shift shall be inspected by the equipment operator before being placed in operation on that shift."
30 C.F.R. § 56.l4100(a).
508

orders that were issued. Virginia Slate challenged the penalty asse$Sments, and a hearing wa~
held before an administrative law judge.5 The judge affirmed the underlying violations.
However, the judge disagreed with the inspector's determinations that some of the violations
wer~ S&S or due to Virginia Slate~s unv&arr~table failure to comply with the applicable
regulations. 22 FMSHRC at 380-92. Thejudge reduced the Secretary's proposed penalty
assessments to $4400. Id. at 392.
On review, the Secretary appealed the judge's finding of no ~warrantable failure with
regard to two citations (Citation Nos. 7711663 and 771166?) and three orders (Order Nos.
7711661 , 7711667, and 7711681). 23 FMSHRC at 483. The Commission affirmed the judge' s
determination of no unwarrantable faillire with. 'regard to Citation No. 7711665. Id. at.488-89.
However, with regard to the remaining citation, Citation No. 771 i663, and the three orders, the
Commission vacated and remanded the judge's·negative.unwamintable failure determinations.
Id. at 484-87, 490-92. The Commis~io~ also vacated and remande~ the judge's penalty .
.
assessments, because he failed to consider the relevant penalty criteria in assessing penalties for
the citations and.orders. Id. at 492-95.

1.

Unwarrantable Failure
•

•

•

• • 1 · _..\

•

•

•

•

In Order No. 7711667, Virginia Slate was charged with failing to provide berms, bumper-

. !

blocks, safety hooks, or similar impeding device's 'for the front-end _foader that load~ the hopper
ofthe crusher. 23 FMSHRC ~t 4~0. The judge reviewed record testim~my ~d co11cluded that .
.
the Secretary had failed to adduce sufficienrevidence to estaplish that'the vfolation was so
obvious that Virginia Slate ·should have known of the conditions. 23 'FMSHRC at 868. He
credited Adamson, Jr. over crusher operator Williams in finding that the front-end loader was
used only to load the hopper for about 10 minut~s on June 1, 1~9.8 . Id. The judge acknowledged
the testim~ny ofMSHA Inspe~for ~om, who stated that Adamson III ~old hiin, th.(,lt the fro,nt-end
loader had'been used during the week prior to June 2 (the day the citation issued); however, the .
judge further noted that the Secretary failed to call Adamson III as a witness or explain her
failure to do so. Id. Thej9dge concluded that it had not been established that Virginia Sfate' s
conduct 'reached_the level of ~ggiavated conduCt that woul~ constitute unwarrantable failure. Id.
. .

.

.

l

•

,;

.

.

.

In Order No. 7_711681, the judge noted that there was ~ lack of evidence to indicate the
The hearing was held over a three-day pe_riod ·(October 12-14~· 1999), andJr~~script
references ~ote the day of hearing by
i through. ID,, followed by the pag~.,nuinper.
. Roman num~ral
.
.
.
5

.l

,•
6

On remand, the judge addressed the unwarrantability designations of Order No.
7711661 and Citation No. 7711663. These two determinat~on~ 'Yere not appealed or otherwise
·
,
directed for review and, thus, are not now before the Commission.

509

.

.

duration of the conditions of mobile equipment that bad not been disclosed by preshift
examinations. Id. at 869. Nor was there anything to indicate how long Yirgi.n ia Slate had failed
to conduct preshift examinations. Id. The judge concluded that, for the reasons stated in his
prior decision, 22 f¥SHRC at 390, the Secretary failed to establish that violl:ltion was a result of
Virginia Slate's unwarrantable failure. 23 FMSHRC at 869.
2.

Penalties

The judge reaffirmed the penalties he had assessed in his initial decision for the citations
and orders that the Commission had remanded to him for fu,rther consideration. The judge began
by addressing the penalty for Citation No. 7711660. 23 FM.S HRC at 869. However, as the
Commission noted in Virginia Slate I, 23 FMSHRC at 484 n.5, the Secretary had vacated that
citation prior to the judge's first decision. In addition, the judge omitted any discussion the
penalty for Citation No. 7711663, which had been remanded to him.

of

In addressing the penalty for Order No. 7711661,7 which involved Virginia Slate's failure
to have a protective guard on the V-belt drive and pulleys on the feeder attached to the crusher,
the judge first noted that the level of gravity was relatively high, given that the violation could
have resulted in a miner injury. 23 FMSHRC at 870. He further found that the violation was
abated in a timely fashion, and that there was no evidence that a fine would have an adverse
impact on Virginia Slate's a~ility to remain in op~ration. Id. He stated th.a t there ~as no
evidence that the penalty should.be mitigated by the size of Virginia Slate's operation. Id. He
then noted that the history of viblations did not result in mitigating or increasing the penalty. Id.
Finally, the judge held that .the leyel of negligence was no more than moderate - less than that
ascribed by the Secretary( Id. '!he judge concluded by finding that a penalty of $300 was
appropriate. Id.
~.
·
·
·
. With regard to Citation No: 7711665, which addressed Virginia Slate's failure to provide
guard rails or catwalks !to ensure safe access to the clutch anq throttle levers to operate the
crusher, the judge omitted ahy refe~ence t~ the level of gravity of the violation. Id. He found rio
evidence on the following criteria: that the ·penalty would have any adverse effect on Vifginia
Slate's ability to remain in business; that the penalty should be mitigated by the size of its
operation; and that would suggest that its history of violations was either very good or very bad.
Id. Taking this into account along with the level of negligence, which was less than asserted by
the Secretary, the judge concluded by finding that a $300 fine was appropriate. Id. ·
In addressing Order No. 7711667, which concerned Virginia Slate's failure to provide
berms, safety hooks, or other similar impeding devices for'the front-end load~r that was at the
crusher hopper, the judge noted that the gravity of the violation was high given the danger of
overturning the loader. Id. Based on crediting the testimony of Adamson, Jr. (that the loader

This' order is inadvertently re~erred to as "Order N~. 771161" in the judge's decision on
remand. 23 FMSHRC at 870.
'
7

510

was only used for a brief time), the judge found that the violation was not so obvious that
Virginia Slate's level of negligence was more than moderate. Id. at 871. The judge .found that
the violation was timely abated. Id. As with th~· prior c~tatiori, he found no ·evidepce ~ith regard
to ability to remain in operation, appropriateness of the pe~alty compared to s!ze of the operator,
·
and history of violations. Id. He concluded that a $200 penalty was appropriate. Id.
Finally, the judge addressed the penalty in connection with Order No. 7711681, which
charged Virginia Slate with failing to perform adequate preshift examinations on mobile
equipment. ,Id. The judge found that the violation was timely abated. Id. As in his pripr penalty
analysis, he found no evidence that the penalty would have an adverse iil,lpact on its ability to
remain in business or that the penalty should be mitigated by the size of its business, and that its
history of violations was neither very good nor very b~d. Id. The judge further noted that the
level of negligence was less than that asserted by t11e Secretary. Id. He concluded by imposing a
$300 penalty. Id.
On September 17, 2001, the Commission issued a sua·sponte direction for revi~w limited
.
to issues raised by the judge's penalty assessments. Concurrently with the issuance of the
Commission's directfon for review, the Secretary of Labor filed a petition for discretionary
review challenging the judge' s ·unwarrantability determination with regard to two of the four
violations on remand. On September 25, 2001; the Commission issued a second direction for
review granting the ~ecretary's petition.

II. .
Disposition
· A.

.

Unwarrantable Failure

I.

Order No. 7711667

The Secretary's primary argument in support of vacating the judge's negative
unwarrantability determination in Order No. 7,711667 is that the judge abused his discretion
when he failed to explain why the "missing witness rule" (sometimes referred to as the "adverse
inference rule") was not applied against Virginia Slate. PDR at, 5-7. 8 Specifically, the Secretary
had contended that the fact that Adamson ill was not called as a wit1.1ess by Virginia Slate
warranted an inference that, if he had been called, his testimony would have been adverse to the
operator. Id. Significantly, the Secretary failed to raise this matter before the judge in Virginia

8

The Secretary designated her Petition for Discretionary Review as her brief on the
merits in addressing the judge's negative unwarrantability determinations. Virginia Slate did not
file a brief with the Commission.

511

Slate I with reg·a rd.to this particular violation. S~e S. Trial Br. at 39-41.9 Further, the Secretazy
did not atterirpt' to raise it before the judge on remand, as neither party filed supplemental
pleadings with the judge. Having failed to r~ise the missing witness riile before the judg~. it is
now too late for the Secretary to argue on review for the application of the rule. 30 U.S.~.§
823(d)(2)(A)(iii). Cf Eagle Energy. Inc., 23 FMSHRC 1107, 1119-20 & n.18 (Oct. 2001)
(Commission reviewe~ju4ge's application of missing witness rule, an issue which ~ad been
·
raised at tria.l).
'· ·
'\

The Sec~etary further challenges the judge's crediting Adamson, Jr. ov~r cru5her operator
Williams with regard to:how long the front-end loader had been us~cf. PDR at 8-9. A judge's
credibility detenninations are entitled to great weight and may not be overturned lightly. Farmer
v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn All(!g~ Coal Co., 3
FMSHRC 2767, 2770 (De.c. 1981). The Co.m mission has recogi{ized that,' because the judge "has
an opportunity to hear the testimony and view the witnesses[,] he [or she] is ordinarily in the best
position to make a credibility determination." In re: Contests ofRespirable Dust Sample
Alteration Citations? 17 FMSHRC 1819, 1878 (Nov .. 1995) (quoting Ona Corp. v. NLRB, 729
F.2d 713, 719 (1 Ith Cir. 1984)), ajf'd sub nom. Secy ofLabor v. Keystone Coal Mining Corp.,
151F.3d1096 (D.C. Cir. 1998). The Secretary has failed to put forth any persuasive reason to
override these well-established principles regarding tpe judge's credibility determinations.
Nonetheless, the Secretary correctly asserts that the judge failed to adhere to the
Commission's remand instructions and consider.all the relevant aggravating factors in
determining unwarrantability. PDR at 9-10. We ·specifically instructed the judge in Virginia
Slate I to consider "the relevant aggravating factors, such as the obviousness of the violation, the
operator• s knowledge of the violation, or any abatement efforts by the operator.•• 23 FMSHRC at
490. Despite this explicit instruction, the judge's discussion of unwarrantability was largely
limited to the duration of the violation. 23 FMSHRC at 868. The only specific evidence he cited
in his entire analysis of the unwarrantability of this violation concerned testimony relevant to the
length of time the front-end loader was used, on which he based his conclusion that it was only
utilized for approximately 10 minutes. Id.

lire

However, whether conduct is "aggravated" in the context of unwarrantable fail
is
determined by examining many other factors as well, including the extent of the violative
condition, whether the operator has been placed on notice that greater efforts are necessary for .
compliance, the operat6r's efforts in abating the violative condition, whether the violatio11 poses
a hiih degree of danger, and the operator's knowledge of the existence of the violation. See
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) ("Consof'); Cyprus Emerald Res.
Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir.
1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16
FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261(Aug.1992);

9

Nor did the Secretary raise the issue before the Commission in Virginia Slate /. See
PDR at 10-11, 19-20.
512

BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quin/and Coals, Inc., 10
FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of each case must
be examined to.detennine if an act9r's P.o nduct is aggravated, ·or whether mitigating
circumstances exist. Consol, i2 F:MSHRC at 353.
. .. . .
Given the judge's limited examination of the unwarrantability.factors that he was asked to
consider, we must again vacate his determination, with instrµctions to consider all the
unwarrantability factors in conjunction with the specific facts of the violation. For example, the
judge should analyze whether the violation posed a high degree of danger, particularly in light of
his finding (in the context of his penalty detennination) that as a result of the violation, there was
a danger of the loader overturning. 23 'F MSHRC at 8'70. Similarly, when discussing whether the
operator had knowledge of the violation, the judge should explain his finding through reference
to specific record evidence. In his unwarrantable failure analysis, he simply made a global
statement that the Secretary failed to prqve the violation was so obvious "that the operator should
have had knowledge of these conditions." Id. at 868 (emphasis added). However, the judge on
remand should also detennine the extent of the operator's knowledge of the violation,
specifically addressing testimony of Adamso~ Jr. Tr. II 155-71.10

If the judge f'.inds that Adamson, Jr. knew or had reason to know that impeding devices
had not_been provided around the front-end loader, the judge should also consider whether or not
Adamson, Jr. was a supervisor, and, if he was, wheth~r he violated the standard of care required
of supervisory personnel by failing to stop a known violation. Under Commission precedent,
supervisors are held to a high standard of care, Midwest Material, 19 FMSHRC at 35; and a
supervisor's involvement in a violation should be considered in an unwarrantability analysis of
the violation. See Lion Mining Co., 19 FMSHRC 1774, 1778 (Nov. 1997) (foreman's failure to
stop a known violation was a contributing factor in an unwarrantable failure finding because of
the high standard of care to which foremen and· other supervisory personnel are held). 11

10

In his testimony, Adamson, Jr. did not contradict the inspector's assertions that no stop
blocks or impeding device had been used to prevent the front end loader from over-traveling or
overturning. Tr. II 134. Moreover, Adamson, Jr. made clear that he had agreed to pennit the
loader to be utilized to feed the crusher, Tr. II 156, 161, despite the fact that he "felt
uncomfortable with it not having a steel thing around it or a concrete thing around it, something
that was stronger than just the loose rock piled up." Tr. Il 165.
11

Chainnan Verheggen would affinn the judge's determination that unwarrantable
failure was not established on the ground that the judge adequately considered ~he
unwarrantability factors pursuant to our explicit instruction. 23 FMSHRC at 490-91; see Consol,
22 FMSHRC at 353 (providing.that a judge need only consider the relevant factors in an
unwarrantability analysis). The judge found that the violation lasted only 10 minutes in duration
based on his crediting the testimony of Adamson, Jr. over the conflicting testimony of crusher
operator Williams. 23 FMSHRC at 868; slip op. at 3. In addition, the judge determined that the
Secretary failed to establish any prior obviousness or knowledge of the violative conditions.
513

2.

Order No. 7111681
{
.

The Secretary's primary argument on review is that the judge ignored the Commission's
remand instructions and record evidence. PDR at 11-14. On its face, the judge's
unwarrantability analysis does not address the factors that the Commission instructed him to
consider, namely "the extent and.duration" of Virginia Slate's failure to perform adequate
preshift examinations, "its knowledge that it was not adequately carrying out such examinations,"
and "the obviousness" posed by the underlying violations. 12 23 FMSHRC at 492. Relying on a
purported lack of.record evidence on duration, the judge appears to have ·done little more than
reiterate his prior unwarrantability determination without examining the other factors that he was
specifically instructed to consider. 23 FMSHRC at 869. Thus, we must again vacate and remand
the judge's unwarrantability analysis. :
· In addition, we conclude that the judge looked at the record evidence too narrowly and
ignored relevant evidence that is pertinent to the issue of duration. As the Secretary notes on
appeal, PDR at 12, the judge did not even consider testimony of Roy Lee Green in support of a
defective seatbelt violation (Order No. 7711669) that he credited in Virginia Slate I, 22
FMSHRC at 387-88. This testimony was indicative of how long the underlying seatbelt violation
existed and, therefore, was relevant to the issue of how long the operator failed to perform
adequate preshift examinations of mobile equipment. Thus, the judge erred when he concluded
that there was "nothing in the record to indicate how long the safety defects had been in existence
prior to being cited." 23;FMSHRC at 869. For this additional reason, vacating the judge's
analysis is warranted. 13 •

. B.

Penalties·

As was noted in Virginia Slate I, the Commission has recently reiterated the need for its
judges to fully satisfy the statutory requirements of section 11 O(i) by pro~iding findi?gs ~f fact

These findings are backed by substantial evidence given the scant amotint of evidence presented
by the Secretary to support the unwarrantable designation. See Tr. II 133-42.
·
12

Commissioner Beatty also concluded that the judge should consider the danger posed
by the underlying violations. 23 FMSHRC at 492 n.22.
13

In Virginia Slate I, Commissioner Jordan concluded that.the record evidence would
support only one conclusion - that the violation was the result of the operatorls unwarrantable
failure - and she would have reversed the judge. .23 FMSHRC at 499-500. Consistent with that
opinion, Commissioner Jordan would again reverse the judge's determination and affirm the
inspector's unwarrantability designation.
514

on each of the six penalty criteria wll.e~ a~sessing a penalty. 14 23 FMSH!lC at 493 (citations
omitted). Such findings of fact are neces.s ary to provide operators with notjce of the basis upon
which the penalty .is being assessed ~d to provide the Commission and any reviewing court with
the information they nee~ to accurately determine whether a penalty is appropriate. Douglas R.
Rushford Trucking, 22 FMSHRC 598, 601 (May 2000). An explanation is particularly essential
when a judge's penalty assess~ents substantially 4iverge. frqm the Secretary's proposed
penalties. Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), ajf'd 736 F.2d 1147 (7th
Cir. 1984). As the Commission noted in Sellers.bu~g, without an explanation for such a
divergence, "the credibility of the administrative scheme providing for the increase or lowering
of penalties after contest may be jeopardized by an appearance of arbitrariness." Id.
The Commission previously vacated
the judge's penalty assessments because
he failed to
.
.
explain the basis for the penalties,, and remanded to the judge "for detailed findings ~f fact as to
each of the six section 11 O(i) criteria and reassessment of an appropriate penalty" for .e ach of the
five violations at issue. 23 FMSHRC at 493-95. The judge's penalty asses.sments presently on
review must again be vacated because they fail to include factual findings for all of the criteria.
Nevertheless, in vacating these assessments, we do not imply th~t the judge cannot draw on bis
factual determinations from his two prior decisions when he once again analyzes the penalty
criteria. 15 Rather, he clearly can utilize these prior findings along with the new findings that we
are instructing him to make, in order to arrive at an appropriate penalty assessment under section
11 O(i).
1.

Citation No. 7711660

It is apparent that the judge erred in addressing Citation No. 7711660. The Secretary had
vacated that citation before the judge's initial decision in Virginia Slate I. Thus, the judge should
not have considered Citation No. 7711660 in his remand decision, and his assessment is vacated.
2.

Order No. 7711661

On balance, the judge's consideration of the penalty criteria lacks findings specific to the
violation before him. As the Secretary notes, S. Br. at 2, the judge reduced the proposed penalty
from $700 to $300. Consistent with the principles noted abqve, greater analysis is required to
substantiate the reduction. See Cantera Green, 22 FMSHRC 616, 622-23 (May 2000).

Further, the judge stated there was no evidence in the record as to whether the penalty

14

The guiding legal principles concerning penalty assessments are more fully set out in
our prior decision in Virginia Slate I, 23 FMSHRC at 492-93.
15

Although these two prior decisions will have been vacated, the judge is free to
resuscitate any findings on specific penalty criteria that we have not overturned.
515

should be mitigated byVirginia Slate's size·or whether it would have any eff~ct on the operator's
ability to remain in business. However, there is a reference to Virginia Slate's size in ~he
Secretary's Petition for Civil Penalty Assessment (dated November 23, 1998), which states that
the size of the mine is "9767 production tons or hours." Ex. A. Thus, Virginia Slate is a small
operator (see 30 C.F.R. § 100.3(b)), a factor that the judge should consider in his penalty analysis
for each violation. Moreover, in the absence of evidence that the proposed penalty.w<.mld affect
Virginia Slate's ability to continue in business, "it is presumed that no such adverse affect would
occur." Sellersburg, 5 FMSHRC at 294. Thus, the judge should affirmatively apply this
·
principle in his penalty analysis.
Finally, the judge stated, "A penalty should not be mitigated or increased as the result of
the history of violations." 23 FMSHRC at 870. Later, in his discussion of <?ther violations, the
judge stated that "there was no evidence" to suggest that Virginia Slate's history of violations
was either very good or very bad. Id. at 870-71. At trial, the Secretary had admitted into
evidence an "Assessed Violation History Report" for a two-year period prior to the trial. · S. Ex.
33. Thus, there is evidence that the judge should fully consider, which he apparently did not, in
assessing penalties for the violations at issue.
The above discussion concerning the penalty criteria regarding size, ability to' stay in
business, and ·history of violations also apply to the penalty analyses for the citations and orders
listed below.
3.

Citation No. 7711663

The judge omitted any discussion of this citation and penalty assessment, which had been
remanded by the Commission in ·Virginia Slate I. 23 FMSHRC at 494. Therefore, the judge
must address the penalty in connection with this violation consistent with the legal principles
noted above.
4.

Citation No. 7711665

Consistent with our discussion of the penalty criteria in Order No. 7711661, the judge
must fully consider the size of Virginia Slate's operation and its history of violations. In
addition, the judge omitted from his analysis any discussion of gravity in the penalty assessment
for this violation; however, he cleady considered gravity in his decision in Virginia Slate/. 22
FMSHRC at 384. He should include this analysis on remand.
5.

Order No. 7711667

As with Citation No. 7711665, the judge must fully consider the size of Virginia Slate's
operation and its history of violations.

516

6.

Order No. 7711681

The judge did not include in his penalty assessment any consideration of the gravity of the
violation. 23 FMSHRC at 871 . While the judge omitted from his analysis any discussion of
gravity in the penalty assessment for this violation, he clearly considered gravity in his decision
in Virginia Slate/, 22 FMSHRC at 390, as he did with Citation No. 7711665. The judge should
include this analysis in his decision on remand.

In sum, the administrative law judge has now addressed the section 11 O(i) penalty criteria
in two decisions. Omissions in the judge's decision presently on review, as with the judge' s
decision in Virginia Slate I, require _that we again vacate and remand to the judge for his analysis
of the proposed assessment. As we noted above, the judge can make full use of the findings on
the statutory criteria that he has previously made that are supported by record evidence.
However, the judge's determination of the penalty assessed for a particular violation is an
exercise of his discretion that is bounded by proper consideration of all of the six statutory
criteria. See Sellersburg, 5 FMSHRC at 292-94. Accordingly, in light of our decisions in
Virginia Slate I and here, in which we have vacated the judge' s penalty analyses because of his
incomplete consideration o( the penalty criteria, the judge on remand must consider, in toto, all
six-of the penalty criteria. · See Commission Rule 30(a), 29 C.F.R. § 2700.30(a) ("The decision
shall contain findings of fact ~d conclusions of law on each of the statutory criteria .. ..") .

.'..

517

III. .

Conclusfon
Based on the foregoing, we vacate the judge's negative ·unwarrantability determinations
and his penalty assessments and remand the proceeding to 'the judge·for furt~er consideration
consistent with this decision.
··
·

Theodore F. Verheggen, Cha'

.

Distribution
•I

Cheryl Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209-3939

'

..

V. Cassel Adamson, Jr., Esq.
Adamson and Adamson
Corzet House
100 Main Street
Richmond, VA 23219
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

519

(

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

June 24, 2002

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

..

v.

Docket No. CENT 2002-236-M
A.C. No. 41-01371-05526

TEXAS MINING, L.P., d/b/a
OGLEBAY NORTON INDUSTRIAL
SANDS, INC.

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On May 20, 2002, the Commission received from Texas
Mining, L.P., d/b/a Oglebay Norton Industrial Sands, Inc. ("Oglebay''), a motion to reopen a
penalty assessment that had become a final order of the Commission pursuant to section 105(a)
of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 81S(a).
In its unopposed motion, Oglebay, which is represented by counsel, asserts that its failure

to submit a hearing request on the proposed penalty assessment to the Department of Labor's
Mine Safety and Health Administration ("MSHA") was due to internal mishandling. Mot. at 1-4.
Oglebay explains that on Decemeber 12, 2000, it was issued Citation No. 7865333 and a second

520

cit~tion. Id. at 1, Attach. It contested both citations 1 and reacl'l:~d an agreement with the

Secretary to settle both the citations and related civil penalties, even though proposed penalty
assessments had no.t yet been issued. Id. at 1~2. ' The settlement was deiayed t~ allow the
Secretary tinie to assess the penalties. Id. at 2. On January 30, 2002, MSHA issued the proposed
penalty assessment relating to Citation No. 7865333. Oglebay asserts that one of its employees
inadvertently failed to send MSHA the green card contesting the propose<fpenalty. Id.
Oglebay's motion is accompanied by the signed declaration of Ron Jordan, Oglebay's production
director, which supports the operator's assertion that th!! green card was not sent due to an
employee mistake. Id., Attach.
'·
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc. , 15
FMSHRC 782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(Sept. 1994). We have,also observed that default is a harsh remedy and that, if the defaulting
party can make a showing of ~dequate .o r ,good cause for the failure to timely respond, the case
the merits permitted. See Coal Prep. Servs.,
may be reopened and appropria~e proceedings
Inc., 17 FMSHRC 1529,1530 (Sept. 1995)~ In reopening final orders, the Commission has found
guidance in, and has applied "so far as practicable," Rule 60(b) of the Federal Rules of Civil
Procedure. See 29 C.F.R. § 2700.l(b) ("the Commission and its judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In accordance
with Rule 60(b)(l), we previously have afforded a party relief from a .final order of the
Commission on the basis of inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC 704,
705(May1996); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996);
Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997).

on

The record indicates that Oglebay intended to contest the proposed penalty assessment,
but failed to do so due to internal mishandling. Oglebay contested the underlying citation.
Moreover, the signed declaration attached to Oglebay's motion is sufficiently reliable and
supports its allegations. In the circumstances presented here, we treat Oglebay's failure to file a
hearing request as resulting from inadvertence or mistake. See 46 Sand & Stone, 23 FMSHRC
1091, 1091-93 (Oct. 2001) (granting operator's request to reopen where operator alleged its
failure to timely request a hearing was due to internal mishandling as a result of change in
personnel and operator's assertions were supported by affidavit); Heartland Cement Co., 23
FMSHRC 1017, 1018-19 (Sept. 2001) (same).

1

Oglebay contested Citation No. 7865333 in Docket No. CENT 2001-71-R.
521

AccQrdlngly, in the interest ofjusti~e, we grant' Oglebay's request' for reli~f, reopen the
penalty assessment that becam~ a final order .with re~pect t0 Citation No: 78653'33, ·and.remand
to the judg~ for forther proceedings ori the'"merj_ts. The C,a$e shall proceed pursuant to the.Mine
29 C.F.R. Part 2~00.
·
·
Act anci'the. Commission·~ ·Procedura\

R:ules,

Theodore F. Verheggen, C
•.

..,

522

l

Distribution

;

.•J

Mark N. Savit, Esq.
Patton Boggs, LLP
2550 M Street, N.W.
Washington, D.C. 20037
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22ndFloor West
Arlington, VA 22209-3939

.

Myra James, Chief Compliance Group
Civil Penalty Processing Unit, MSHA
U.S. Department of Labor
1100 Wilson Blvd., 25'h Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, i:>:c. i 20006

. ,.

523

'

; .. •

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FL OOR

., .

WASHINGTON, D.C. 20006

June 24, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. LAKE 2000-102-R
through LAKE 2000-105-R

V.

FREEMAN UNITED COAL
MINING COMPANY

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners'
DECISION
BY: Jordan and Beatty, Commissioners
These are consolidated contest proceedings arising from citations issued by the
Department of Labor's Mine Safety and Health Administration ("MSHA") to Freeman United
Coal Mining Company ("Freeman") pursuant to the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). The citations alleged violations of30"
C.F.R. § 75.1909(a)(l).2 Freeman and the Secretary of Labor each moved for summary decision,
1

Commissioner Riley participated in the consideration of this matter, but his term
expired before issuance of this decision. Pursuant to section 113(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been
designated to exercise the powers of the Commission.
2

This regulation requires, among other things, that diesel powered equipment have "an
engine approved under subpart E of Part 7 ... " Reference to that subpart brings us to the
requirement actually at issue in this proceeding, 30 C.F.R. § 7.90, which provides:
Each approved diesel engine shall be identified by a legible and
permanent approval marking inscribed with the assigned MSHA
approval number and securely attached to the diesel engine. The
marking shall also contain the following information:

524

and Administrative Law Judge Gary Melick found in Freeman's favor, vacating the citations. 22
FMSHRC 1345 (Nov. 2000) (ALJ). We granted the Secretary's petition for discretionary review
challenging the judge's decision.
I.
Factual and Procedural Background3
Freeman uses di~sei-powered personnel carriers at it~ 'underground ~oal mine. 22
FMSHRC at 1346. These proceedings concern citations MSHA issued to Freeman because the
approval markings on the diesel engines were not supplied by the manufacturer.
On October 25, 1996, MSHA published final rules establishing new safety standa!ds (30
C.F.R. §§ 75.1900-75.1916) and an approval process (30 C.F.R. §§ 7.81-7.108) for diesel
engines and equipment in undergr01.~nd coal mines. 4 61 Fed. Reg. 55412. Two years la~er, in a
memorandum dated October 8, 1998, American Isuzu Motors1 ·Inc. ("Isuzu") notified operators of
underground coal mines who owned non-permissible diesel engines, previously certified for use
in nonc~al mines, of the need to obtain approval of the engines under the regulations in Part 7. S.
Resp. to Mot. for Sum. Dec., Attach. B. Each of Freeman's diesel engines at issue here had been

(a) Ventilation rate. ·
(b) Rated power.
(c) Rated speed.
(d) High idle.
(e) Maximum altitude before deration. .
(f) Engine model number.
3

There were no stipulations in this proceeding, and the judge gave only a very brief
recitation of the facts in the case. Accordingly, we have relied on other undisputed facts alleged
by Freeman and the Secretary.
4

The new Part 7 approval procedure is divided into two subparts. Subpart E addresses
diesel engines used in areas where permissible electric equipment is required (Category A
engines) and diesel engines us~d. in areas where non-permissible electric equipment is allowed
(Category B engines). 3() C.F.R.. § 7.81. Subpart F addresses diesel power packages used in
areas where permissible electric equipment is required. 30 C.F.R. § 7.95. See generally 61 Fed.
Reg. at 55413, 55415. Only Subpart Eis involved in this proceeding. In addition to these
subparts, Subpart A (30 C.F.R. §.§ 7.1-7.9), which specifies general requirements for MSHA
approval of equipment in underground coal mines, is applicable to diesel engines. See 30 C.F.R.
§ 7.81.
525

approved under 30 C.F.R. Part 32,5 and approval plates were attached to the engines. V: Mot. for
Sum. Dec., Affidavit of Thomas Austin, Freeman Director of Safety ("Austin Aff.") at 2. The
Isuzu memorandum stated that customers who owned Isuzu engines with "obsolete Part 32 ·
certifications" had an opportunity to "upgrade" the engines in order to qualify for Part 7
approvals. S. Resp. to Mot. for Sum. Dec., Attach. B. In addition to requesting information
about each engine, such as model and serial number, the memorandum noted that as part of the
re-certification procedure, the fuel injection pump might require re-calibration and the engine's
fuel injection timing might have to be reset. Id. Isuzu supplied a form on which an operator
could supply the engine-specific infqnp.ation that Isuzu needed in order to issue the "MSHA
mine approval label." S. Resp. to Mot:
for Sum. Dec., Attach.
C.
.
.- .
Isuzu sought to charge Freeman $450. pe~ tag for each engine, which would have cost
Freeman a total of about $27 ,000 for its fleet of carriers. F. Mot. for Sum. Dec·.~ Austin Aff. at 2.
To avoid the expense of purchasing iq.dividual tags from Isuzu and to make a tag that was more
durable than the one Isuzu offered, Freeman began fabricating its own approval tags during
·
October and November 1999. F. Resp. Br. at 4-5.

In December 1999, counsel for Freeman asked MSHA whether Freema,n could produce
and install plates that contained information relating to approval·of diesel engines under Part 7 by
duplicating the information from a tag supplied by Isuzu for a similar engine. See S. Resp. to
Mot. for Sum. Dec., Attach. A. In a letter dated December 13, 1999, MSHA Administrator for
Coal Mine Safety and Health, Robert Elam, responded to Freeman's inquiry. Id. Elam explained
that the Part 7 requirements applied to the approval holder, which in most cases i~ th~
manufacturer of the product and that the approval is issued based on MSHA' s acceptance of
testing, specifications and drawings submitted by the holder. Id. He noted that the approval
marking tells the user that the engine meets the technical requirements, and that "[o ]nly the
approval holder can do this." Id. Elam further explained that this system of marking established
a mechanism by which products could be traced in the event that defects were discovered. Id.
Finally, Elam stated that MSHA was addressing the legibility and permanence of the approval
tags issued by Isuzu and would require reissuance of tags that met those requirements. Id.
On April 1, 2000, MSHA issued Procedure Instruction Letter (PIL) No. 100-V-2 to
address mine operator complaints about inadequate diesel engine approval markings that were
being supplied by various engine manufacturers. F. Mot. for Sum. Dec., Attach. 3. The PIL
stated: "The approval marking is supplied by the engine manufacturer." fd. at 1. In the case of
an approval marking that had become detached or illegible, the PIL instructed mine operators to
verify that the diesel engine is approved, obtain a replacement approval' marking from the 'engine
manufacturer (that could be kept on file in the mine office if~he approval marking were of the
same design as the prior marking), and notify MSHA of the problem. Id. MSHA would then

5

·Prior to the publication of the rules in 1996, Part 32 addressed the approval of mobile
diesel-powered equipment in noncoa1 mines. 30 C.F.R. Part 32 (1996). See 61 Fed. Reg. at
55415-16. With the issuance of the new Parts 7 and 75 rules, Part 32 was revoked. Id. at 55416.
526

require the manufacturer to develop an improved approval marking that is le.g ible and permanent
as required by section 7.90. Id.
On June 22, 2000, MSHA Jnspector Larry Rinehart issued citatiOns alleging that four
diesel engines at the mine with tags fabricated by Freeman were not being maintained in
accordance with 30 C.F.R. Part 7 because the approval markings required by 30 C.F.R. § 7.90
had not been supplied by the engine manufacturer. F. 'M ot. for Swn. Dec., Austin Aff. at 2;
Citation No. 7584882. Freeman filed notices of contest, and the abatement period was extended
while the citations were being litigated. Following its notice of contest, Freeman filed a motion
for summary decision with the judge. . The Secretary responded and filed her cross-motion for
summary decision. Oral argument was held before the judge.
The judge concluded that the plain language of section 7 .90 did not preclude the use on
the cited diesel engines of approval markings supplied by Freeman, and he vacated the citations.
22 FMSHRC at 1347. He· rejected the Secretary's argument that the regulation was ambiguous
and that he should therefore defer to her interpretation. Id. The judge further noted that although
regulations that address health and safety should be interpreted broadly, that rule of construction
should not be used to rewrite "a clearly worded regulation whose plain rpeaning cannot
reasonably be disputed." Id.
·

II.
Disposition .,
.
'
.
The only issue in this case, as in the companion case, The American Coal Company, 24
FMSHRC _ , No. LAKE 2000-111 -:R (June 26, 2002), is whether the approval marking
required by 30. C.F.It § 7.9q must be supplied by t!ie engine manufacturer. Thus, dfaposition of
this case tUms on the meaning of section 7.90.

Commissioners Jordan and Beatty, writing separately, vote to .reverse the judge and
remand the case for penalty assessment. The separate opinions of the Commissioners follow.6

6

Chairman Verheggen, in an opinion dissenting from the result reached by his
colleagues, votes to affirm the judge.
·
527

Commissioner Jordan, reversing and remanding:
This case arose when Freeman was cited for failing to comply with the requirement of 30
C.F.R. § 7.90 that " [e]ach approved diesel engine shall be identifiecfby a legible and permanent
approval marking ... ." 1 Although every one of the diesel engin~s observed by the MSHA
inspector ho.r e a tag containing the inform'ation required by section 7.90, MSHA dtd not consider
the tags to be approval markers as required by 30 C.F.R. § 7.90 because they had been produced
by Freeman instead of the engines' manufacturer, American Isuzu Motors, Inc. (..Isuzu''). ·
Freeman contends that section 7.90's failure to specifically identify the manufacturer 'as
the source of the approval marking entitles Fteeman to affix the requisite information to the
engine. The Secretary argues that section 7.90 cannot be read in isolation from the regulations
governing MSHA's approval process, and because that process permits only the·manufacturer to
apply for and secure the· approval that allows the diesel engine to be used in a coal mine, only a
designation by that manufacturer ·cati suffice as an approval marker under section 7 .90. The
judge focused exclusively on "the plain language" ·o f section 7.90 and concluded that "there is
nothing to preclude the use on the cited diesel engines of approval markings supplied by Freeman
United itself.~' 22 FMSHRC 1345, 13·4 7 (Nov. 2000) {ALJ). Because I disagree with the judge's
conclusion regarding the "plain language" of section 7 .90, I join in reversing his decision fo
vacate the challenged citations, and remand for an assessment of an appropriate penalty.

In order to determine the ''plain language" or "plain meaning" of a regulatory
requirement, we must consider the ordinary meaning of the terms used. Western Fuels- Utah,
Inc., 11 FMSHRC 278, 283 {Mar. 1989). The ordinary understanding of the phrase "approval
marking" is that it refers to a designation placed on an item, the purpose which 'is.to provide
assurance of that item's conformity with certain requirements or specifications. It stands to
reason that only someone wlro can reliably ascertain the item's conformity with those standards
is in a position to place a mark on the item signifying its approved status. A marking affixed to
an object that does not authoritatively ~erify that object'~ C<?,mpliance wi~h the pertil_lent:standards

of

1

Section 7 .90 provides:
Each approved diesel engine shall be identified by a legible and
permanent approval marking inscribed with the assigned MSHA
approval number and securely attached to the diesel engine. The
marking shall also contain the following information:
(a)
(b)
{c)
(d)
(e)
(f)

Ventilation rate.
Rated power.
Rated speed.
High idle.
Maximum altitude before deration.
Engine model number.
528

can hardly be considered an "approval marking" as that. term would be,c9m111only understood.
Therefore, the plain language of section 7.90 does in fact preclude the use of approval markings
supplied by an entity not in a position to authoritatively verify the diesel engine's compliance
with the relevant design and performance standards. · ·
The relevant question before us then becomes: "Did the Secretary correctly conclude that
only the manufacturer could authoritatively ascertain the diesel engines' approved status?" A
review of the standards governing MSHA's approval process requires that this question be
answered with an emphatic "yes."2 I note at the o.utset that the use of approval markings on
mining equipment is not a recent ·phenomenon. Indeed, as MSHA ·stated in the preamble to the
diesel regulations, "[a]pproval markings to identify equipment.appropriate for use in mining have
been used for more than 85 years, and are routinely relied upon by users of mining equipment as
well as state and federal inspection at:tthorities." 61 Fed. Reg. 55412, 55422 (Oct. 25, 1996).3
The appro".al process that permits a diesel engine to be used in an underground coal mine
is set forth in 30 C.F.R. Part 7. Subpart A explains the general procedures that apply in obtaining
approval, not only for diesel engines, but for numerous other products that are used in
underground mines. The only applicant recognized in the approval process is "[a]n individual or
organization that manufactures or controls the assembly of a product . ..." 30 C.F.R. § 7.2. The
regulations go on to state that each application must contain "[t]he documentation specified in
the appropriate subpart of this part." 30 C.F.R. § 7.3(c)(2). The requirements for diesel engines
are located at subpart E, 30 C.F.R. §§ 7.81-7.92,.and reference to that section reveals extensive
"performance and exhaust emission requirements." 30 C.F.R. § 7.81. Applicants are required to
perform test.s on the diesel engines and it takes .several pages (which include d~agrams and
mathematical formulas) to describe how those tests must be carried out and what kincJ:or"~esting
equipment must be used. See 30 C.F.R. §§ 7.86 - 7.89. As part of the approval process MSHA
also requires a "c.ertification by the applicant" that the product conforms with design
.
requirements and that the applicant will perform the required quality assurance functions. 30
C.F.R. § 7.3(f).
That it is only the applicant who is authorized to produce approval markings finds further
support in the warning that "[a]n applicant shall not advertise or otherwise represent a product as
approved until MSHA has issued the applicant an approval." 30 C.F.R. § 7.5(a). An approval is
defined as "[a] doqu.ment issued by MSHA which states that a product has met the requirements
of this part and which' authorizes
an appr9val marking
identifying the product as approved." 30
.
.
.
•,

2

In fact Freeman admits that "only Isuzu [the manufacturer] knew with absolute firsthand certainty whether the engines at issue were approved." F. Resp. Br. at 10 n.7.
3

Approval markings are required for a variety of equipment used in mines including:
brattice cloth and ventilation
tubing,
30 C.F.R.
§ 7.29;
multiple
shot blasting units, 30. C.F.R.
.
.
.
.
.
§ 7.69; electric motor assemblies, 30 C.F.R. § 7.309; and electric cables, signaling cables, and
splices, 30 C.F.R. § 7.409.
529

C.ER. § 7.2. Further support for the proposition that only the manufacturer is entitled to· produce
the approval marking is f<>"und at section7~6(c),: which provides: "Applicants shall maintain .
records of the initial sale of each unit having an approval marking." Obviously, this regulation
could not be carried out if entities other than the applicant produced approval markings. In ·
addition, MSHA takes steps to protect the integrity of approval markers even after the approval is
issued. . Appro~ed products are subject ·to periodic audits 'and the approval h_older must, at
MSHA's request, make the p'roCiuct available to the agency at rio charge to enable it to carry out
those audits. See 30 C.F.R. § 7:'8(a)-(b). In sum then, the d~cument that entitles an approval
marker to be placed on a product' is issued by MSHA to the applicant and, under the regulations,
applicants are·fimited to the inanufactur~r. There is no·fndication thatthe end user of the·product
'
is authorized to produce an approval marking.
The·Secretary's·determination that Isuzu, not Freeman, must supply the approval marking
required under section 7.90 is amply supported by the regulations governing her approval
process. Indeed it is evident that permitting ariy entity other than the manufacturer to tag
equipment as approved would compromise the integrity of the approval process; not only for
diesel engines, but for the many otherkinds·of equipment that require such.designation. · ·
Contending that "the meaning of an explicit term is not at issue," slip op. at 15, my
dissenting colleague proceeds to render the term - ~'approval marker " meaningless. Under
Chairman Verheggen' s analysis, the regulation's failure·to specify the producer of an approval,
marker requires the Secretary to accept any label, affixed to an engine by any person, so-long as
the label is legible, permanent" and c"ontains the infomiation described in section 7.90. Under this
view, the phrase does not denote' an ertgine's conformity with MSHA's safety standards-and the ·
.
approval marker itselfwould be no more·significant than a decorative sticker.
For the foregoing reasons, l would reverse the judge's decision and remand for penalty ·
assessment. 4 . ,
·
·

.

4

I

I agree with Commission Beatty's view, slip op. at 13 & n.9, that Pennsylvania Elec:

Co:; 12 FMSHRC 1562 (Aug. 1990), aff'd on othefgrounds, 969E2d 1501 (3d Cir.'1992), is

inapplicable to the disposition of this case, because here a majority of the Commission has voted
to reverse the judge.
530

Commissioner Beatty, reversing and remanding;
.
'
Where the language of a regulatory provision is clear, the terms of that provision must be
enforced as they are written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results. See Dyer v. United States, 832
F.2d 1062, 1066 {9th Cir. 1987); [Jtah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989);
Consolidation' Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). If, however, a standard is
ambiguous, courts have deferred to t4e Secretary's reasonable interpretation of the regulation.
See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.~. Cir. 1994); accord Sec .'y of
Labor v. Western Fuels-Utah. Inc., 900 F.2d 318, 321 (D.C. Cir. 1990) ("agency's interpretation
of its own regulation is 'of controlling weight unt'ess it i's plainly erroneous or inconsistent with
the regulation"' (quoting Bowles v. Seminole Rock &Sa~d Co., 325 U.S. 410, 414 (1945)) (other
citations omitted). The Secretary's interpretation of a regulation is reasonable where it is ·
"logically consistent with the language of the regufation and ... serves a permissible regulatory
function." See Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citations omitted).
The Comm~ssion's review, like the courts', involves an examination of whether the Secretary's
interpretation is reasonable. See Energy West, 40 F.3d at 463 (citing Sec'y ofLabor on behalfof
Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432, 1435, 1439 (D.C. Cir. 1989)); see also
Consolidation Coal Co., 14 FMSHRC 956, 969 (June 1992) (examining whether Secretary's
inteiyretation was reasonable).
Section 1:90 provides that."Each approved diesel engine shall be identified by a legible
and permanent approval marking.'; 1 30 C.F.R. § 7.90. As Freeman notes, the clear wording of
section 7.90 contains no requirement that the tag be issued by the manufacturer. F. Resp. Br. at
10. Freeman is correct that, on its face, the r~gulation is silent as to the source of the approval
tag. However, neither does the regulation clearly provide that the approval tag can be fabricated
by the engine's owner or any other entity. Therefore, the regulation's language is not plain but
rather ambiguous on th~s issue.2 I turn next to the question of whether the Secretary's

..
The judge in the in,stant proceeding con~luded that the language of the regulation was
plain (22 FMSHRC 1345, 1347 (Nov. 2001) (ALJ)), while the judge in American Coal Co.
concluded that the language was ambiguous. 23 FMSHRC 505, 509-11(May2001) (ALJ).
Given these inapposite readings of section 7.90, it is reasonable to conclude that the regulation is
ambiguous. See Daanen & Janssen, Inc., 20 FMSHRC 189, 192-193 & n. 7 (Mar. 1998}
("Ambiguity
exists
.
. when a statute is capable of being understood by reasonably well-informed
persons in two or more different senses.") (quoting 2A Norman J. Singer, Sutherland Statutory
Construction§ 45.02 at 6 (5th ed. 1992)).
1

Chairman Verheggen distinguishes "regulat~ry ambiguity and regulatory silence." Slip
op. at 14-IS. However, Commi~sion cases have not drawn such a distinction i~ regulatory
contexts similar to the one at issue. See Rock ofAges Corp., 20 FMSHRC 106, 117 (Feb. 1998),
rev'd in part on other grounds, 170 F.3d 148, 158-59 (2d Cir. 1999) (regulation is either silent or
ambiguous on the issue of what may trigger a post-blast examination for misfires); Steele Branch
2

531

interpretation is reasonable. On this point, it is evident from reading section 7 .90 in the context
of other related regulatory requirements and the regulatory preamble relating to 30 CF.R. § 7.6
that the Se~retary's position is reasonab1e. See also Westeffl Fuels-Utah, Inc., 10 FMSHRC 256,
260 (Mar. 1988)° (separate provisions in the Mine Act must be read together).

..

Subpart A of Part 7, which specifies the general procedure for testing and approving
products used in underground mining, provides that only the manufacturer can submit an
application for MSHA's approval. Thus, 30 C.F.R. § 7.2 defines "applicant" as "[a]n individual
or organization that manufactures or controls the assembly of a product and applies to MSHA for
approval of that product.,, The same section defines "approval" as "[a] document issued by
MSHA .. ;. which authorizes an approval·marking identifying the product as approved." Further,
only appliccµits receive the equipment approval from MSHA. See 30 C.F.R. § 7.5(a) ("An ·
applicant shall not advertise ... a product as approved until MSHA has issued the applicant an
approval."). Part 7 subpart A regulations further specify post-approval procedures, including
record ~eeping, quality assurance in the manufacturing process, and audits {30 C.F.R. §§ 7.6, 7.7,
and 7.8, respectively) that are the responsibility of the applicant or approval holder. In short,
these regulations present an integrated ·approach to the equipment approval process that impose
burdens and continuing responsibilities on the manufacturer.
.
.
The rules in Subpart A of Part 7 were issued well prior to the 1996 issuance of the rules
governing MSHA approval of diesel engines. Significantly, 30 C.F.R. § 7.6(a),,provides: "Each
approved product shall have an approval marking." The preamble to the publication of the final
·
,·
rule explaine~ in greater detail the rationale for the rule:
Once MSHA has approved a product, the manufacturer is
authorized to place ail approval marking on the product that
identifies it as approved for use in underground mines. Use of the
· MSHA marking obligates the manufacturer to maintain the quality
of the product. The MSHA marking indicates to the mining
community that the product has been manufactured according to
the drawings and specifications upon which the approval was
based.

Mining, 15 FMSHRC 597, 601-02 (Apr. 1993) (operator must file an accident report with MSHA
within a reasonable time when the regulation is silent as to the period of time required for
compliance). See also Akzo Nobel Salt. Inc., 21FMSHRC846, 865 (Aug. 1999)-(Comm.·
Verheggen, dissenting) (regulation is silent as to the issue presented and thus "inherently
ambiguous"), rev'd, 212 F.3d 1301, 1303 (D.C. Cir. 2000). Drummond Co., 14 FMSHRC 661,
684-85 (May 1992), cited by ~Y colleague (slip op. at 15), is readily distinguishable froin the
instant proceeding in that Drummond involved the imposition of penalties for Mine Act
violations greater than those permitted in the Secretary's regulations through use of an
administratively issued "Program Policy Letter."
532

53 Fed. Reg. 23486 (June 22, 1988) (emphasis added). Thus, the preamble to the.final rule
regarding approval marking identifies the manufacturer as the entity resp·onsible for attaching the
approval tag to the equipment;"because.only the manufacturer can ensure that ·a partiCular engine
is manufactured in accordance with the model design specifications submitted to MSHA for ·
approval. The provisions of Subpart A are applicable to the approval and testing of diesel
engines for use in underground coal mines. See 30 C.F.R. § 7.81.
In addition to the general provisions of Part 7, Subpart E of Part 7 specifically addresses
the technical requirements, approval, and testing of diesel engines used in underground coal ·
mines. As part of the application process set forth in Subpart E, the manufacturer must submit a
large amount of technical information, including drawings and design specifications. See 30
C.F.R. § 7.83. Regulations specifying the technical requirements and testing for diesel engines
are detailed and-complex. See 30 C.F.R. §§ 7.84-7.89. This information is the basis for MSHA
approval of the equipment for use in underground mining. 61 Fed: Reg. 55412, 55419 (Oct 25,
1996). Further,' the Secretary noted in the preamble to the final rules regarding approval of diesel
equipment in underground coal min,es: "Approved diesel engines must be manufactured in
accordance with the specifications contained in the approval. : . ;" Id. Finally, section 7.90(a)(f) specifies information to be included on the approval marking that the manufacturer is in the
best position to provide.
It is apparent from reading Subparts A and E of Part 7 and their preambles that the

drafters of the regulations clearly intended that the manufacturer of approved equipment be the
source of the approval tag. The manufacturer is the source of the information that is the basis for
the approval. The manufacturer is also responsible for making the equipment in conformity with
the design specifications that are the basis for M~HA approval.3 Finally, there.are post-approval
responsibilities including, quality control, spot testing, and maintaining records of sales of
approved equipment, that only the equipment manufacturer can p~rform. In short, :i,indei; the
regulations at issue, every es~ential
aspect of ensµring
.
. that diesel equipment complies with Part 7
regulations is borne by the manufacturer. Therefore, under settled principles ofregulat9ry
construction, deference should be given to the Secretary's reasonable interpretation that the
approval marking must be provided by the manufacturer of approved equipment.4 See, e.g., Rock
,

'

3

Once the integrity of the approval tag comes into question, then an MSHA inspector
cannot quickly and accurately determine by looking at the tag that the engine meets the
requirements of P.art 7, and the purpose of engine approval tags is ·largely defeated. In a letter to
the Commission, dated May 24, 2001, counsel for Freeman asserts that it knew that its engines
had been approved because Isuzu had proffered part 7 approval markings. However, Freeman's
knowledge of MSHA approval does not necessarily lead to the conclusion that it had all the
information needed for the approval tag under the regulations.. See 30 C.F.R. § 7.90.
Chairman Verheggen's plain meaning approach in applying the regulation leads.to~
absurd result an~ cann~t ~tand under established principles of statutory and regulatory
construction. See, e.g., Rock ofAges Corp., ~O FMSHRC at 111. Here, the.mine operator placed
4

533

ofAges Corp.;-20 FMSHRC at 117 (Commission deferred to Secretarfs reasonable . · ·
interpretation where the pertinent regulation was either "silent or ambiguous"), aff'd in pertinent ·
part, 170F.3d148 (2d Cir. 1999); see also Morton Int'/, Inc., 18 FMSHRC 533, 537-?8 (Apr.
1996) (Secretary's interpretation of regulation not uphe~d where inconsistent with regulatory
history and not in harmony with other regulations):
Freeman objects to the Secretary' s interpretation of the regulation because of the cost of
the approval tags and because Isuzu provided tags that were not legible and would not stand up to
daily use. F. Resp. Br. at 8. MSHA too was concerned about the poor quality of the approval
markings, and that was addressed in the PIL, which specified how mine operators could preserve
the original tags pending receipt ofnew.ones. With regard to the cost of the approval tag, it is
worth noting that the responsibilities related to obtaining MSHA approval of diesel equipment
are extensive, and Isuzu undoubtedly incurred costs during the approval process that it passed on
to its customers. The. record contains no evidence on the extent of those costs. Freeman, on the
other hand, which had not borne any of the responsibilities or costs of the approval process,
sought to enjoy the benefits of owning MSHA-approved equipment at no cost by fabricating its
own approval tags. In short, there is np record support for Freeman's excessive cost argument.5

an approval marking on the equipment, notwithstanding that it did not know with certainty
whether the engines at issue had been approved: F. Resp: Br. at 10 n.7. Nevertheless, my
c0lleague believes that·as long all of the required lines are filled in on the approval marker, there
is no violatio~ regardless of whether the person entering the information had access to the
records necessary to supply accurate information. Slip op. at 15-16. Under the approach
suggested by the dissent, MSHA inspectors would thus have no confidence in the information
contained on the approval markers, and would have to conduct an independent search of records
to verify that the operator's equipment was in fact approved. The absurdity of such a scheme
speaks for itself.
5

Chairman Verheggen equates the costs associated with the approval maoongs to the
fines levied by MSHA in Drummond. Slip op. at 15. However, it is apparent that fines for Mine
Act violations are provided for in the Act and further specified in the Secretary's regulations.
Fees for approval markings provided by Isuzu to Freeman, on the other hand, were a matter of
private contract. The Chairman's further suggests, id., that the approval markings, because of
problems with the permanency and legibility of the tags, did not further miner safety and health.
However, MSHA was addressing those issues with Isuzu and accommodating those operators
who were supplied approval markings that would not withstand daily use. Notwithstanding that,
the dissent would solve the problem of resiliency of the approval tags by effectively undermining
the approval process by allowing an operator with incomplete knowledge of the circumstances
surrounding the approval to place an approval marking on an engine. See id. I find such a
prospect much more inimical to miner health and safety.
534

Freeman ~her objects to having to pay for approval tags ~hen it was unnecessary to
make any changes to the
. engines to conform to Part 7 .regulations. F. Resp. Br. at 4. However,
Freeman's argument ignores the ~ubstance ·o f the newly issued approval procedures which went
into effect in 1996. Prior to 1996, there was no regulatory approval procedure for diesel engines
used.in underground coal mining. With the issuance .o f the new Part 7 regulations, all equipment
manufacturers had to apply for MSHA approval based on engine performance and exhaust
emission requirements. 30 C.F.R. § 7.81. As previously noted, the application requirements
under the new Part 7 standards are extensive. Thus, without regard to whether Freeman is
correct that no changes had to be made to any of its diesel engines to bring them into compliance
with Part 7, it is apparent that there is a burden and cost to the equipment manufacturer in simply
applying for approval under Rart ?.
·
. Mor~over, the Secr~tary challenged the validity .o f Freeman's position that certifications
under the old Part 32 regulations were effective under the new Part 7 regulations. Before the
judge, Freeman asserted that "Part 32 approved engines are grandfathered." F. Mot. for Sum.
Dec. at 5. The Secretary took issue with that statement.6 S. Resp. to Mot. for Sum. Dec. at 9.
Further, contrary to Freeman's assertion before the Commission (F. Resp. Br. at 3), it is not
apparent that prior approval of the cited Isuzu engines under Part 32 meant that no changes to the
engines were required for approval under the new Part 75. While the regulatory preamble does
state that "existing part 32 engine approvals continue to be valid," Part 32 by its terms only
applied to approv~ls for diesel equipment in noncoal mines. See 30 C.F.R. Part 32 (1996). 7
Finally, before the judge, the Secretary cited to a compliance guide that specified that equipment
approved under Part 32 had to be approved under the new Part 7 if it was to be used in
underground coal mining. S. Resp. to Mot. for Sum. Dec., Attach. E at 4-5 (Compliance Guide
for MSHA's Regulations on Diesel-Powered Equipment Used in Underground Coal Mines, Oct.
1997). In short, Freeman's position that no action was required to bring its equipment into
compliance with the new Part 7 appears to be, at best, disputed. 8

6

At oral argument, the judge requested that the parties try and work out stipulations
''with respect to whether these engines met the approval requirements." Oral Arg. Tr. 63.
However, counsel were unable to do this. Letter to Judge Melick, dated Oct. 20, 2000.
Therefore, whether the cited engines were in fact approved under Part 7 appears to be a disputed
fact. See S. Resp to Mot. for Sum. Dec. at 8.
7

In the final rule publication of Part 75, Part 32 was revoked because it was "outdated"

and "ohsolete," and manufacturers seeking Part 32 approvals w~re ~equired to seek approval
through the new Part 7, Subpart E, and Part 75. 61 Fed. Reg. at 55416.
8

It i.s difficult to square Freeman's assertion that no action was required to bring its

equip~ent into compliance with Part 7 (F. Resp. Br. at 3) with its further concession that only

Isuzu could know with certainty that the engines were approved (F. Resp. Br. at 10 n.7). The
scheme that Freeman and the dissent envision for operators {or anyone else) to attach approval
markings, without full knowledge of the facts and circumstances surrounding the approval, poses

535

While there is much that appeals to me in Commissioner Jordan's analysis; ! simply
cannot agree that the term "approval m'arking" as used in the regulations issue plainly means a
marking t~at only th~ man'ufacturer can provide, especially g~yen the administrative law jlldge's
finding of a different plain meaning. As for the dissent' s commentary invoking Pennsylvania
Elec. Co., 12 FMSHRC 1562, 1563·65 (Aug. 19~0), ajf'd on other grounds, 969 F.2d 1501 (3d
Cir. 1992) ("Penelec"); in this situation, the Chairman clearly misstates applicable Commission
law. See .s lip op. at 16 & n.l. Penelec only applies when Commissioners
equally split on
whether to reverse or affirm the decision of the administrative law judge at issue. In such an
instance, the judge' s decision stands as if affirmed. Penelec, 12 FMSHRC at 1563~65. By any
count, in this case two Commissioners have voted to reverse the judge, while only one has voted
to affirm. Penelec is thus entirely immaterial to the disposition of this case.9

at

are

For the foregoing reasons, I would reverse the judge's decision and remand for penalty
assessment. '
·1 ••
·
... \

• f

,

hazards to miners as obvious as the financial advantages to Freeman in end running the approval
''
scheme in the regulations as applied by the Secretary.
9

The dissent has clearly confused the split in rationales among the majority to reverse
the judge with a split in votes on the result of the case. These are two entirely separate issues,
with plainly different ramifications. The Secretary does not enforce Commissioner rationales
against operators; she enforces her regulations, and her reading of the one at issue here has been
upheld by a majority of the Commission. Until such time as it is vacated by a court, that reading
stands, the dissent' s view of the force of the separate opinions notwithstanding.

536

Chairman V erheggen, dissenting:
Silence in a regulation does not automatically give license to the.Secretary to impose by
fiat substantive requirements upon ·aparty under the guise ~f"interpretation." This ~s precisely
what the Secretary did here, and I find that in so doing, &he stepped beyond the bounds of her
authority. I find that the judge properly reached the conclusion that "there is nothing [in section
7 .90] to pr~lude the use on the cited diesel engines of approval markings supplied by Freeman ·
United itself," 22 FMSHRC P45, 1347 (Nov. 2000) (ALJ), and I therefore dissent fro~ the
contrary result reached by my colleagues.
On one point, the parties and the judge all agreed. When the Secretary told Freeman
United that it had to use .approval markings supplied by the manufacturer of its diesel vehicles,
she based her action on a regulation which clearly on its face requires no such thing. I agree.
Section 7.90 requires that "[e]ach approved diesel engine shall be identified by a legible and
permanent approval marking inscribed with the assigned MSHA approval number and securely
attached to the diesel engine." 30 C.F.R. § 7.90 (in relevant part). The regulation does not
includf.'. the phrase "approval marking provided by the manufacturer." The. Secretary, however,.
did not see this silence as any impediment to her action against Freeman United the result of
which is the instant litigation.
In a holding t~at has stood the test of tin,ie, the Ninth Circuit stated: "If a viplation of a
regulation subjects.private parties to .... civil sanctions, a regulation cannot be construed to mean
what an agency intended but did not ad.equately express.'~ Phelps D,odge Corp. v. FMSHRC, 681
F.2d 1189, 1193 (9th Cir. 1982) (citations omitted). As in the Phelps Dodge case, here, section
7.90 "inadequately expresses an intention to reach the. ~ctiv~ties to which MSHA applied it," id.,
and therefore, the Sti~retary' s enforcement action on review.must fail.
The situation here is similar to a regulatory silence we faced in Contractor's Sand &
Gravel, Inc. v. FMSHRC, where the Secretary attempted "grafting onto the plain languag~ of a
regulation a [requirement] neithei: stated nor implied in that regulation." 199 F.3d 1335, 1342
(D.C. Cir. 2000). At issue in Contractor's :was wl,lether the Secretary's attempt at enforcing her
grafted rule was substantially justified under the Equal Access to Justice Act, 5 U.S.C.
§ 504(a)(l). Writing for the court,, Judge Sentelle left no doubt that the Secretary's approach was
ill-advised: "It is not sµbstantially justifiable for an agency to persistently prosecute cit.izens. for
violating a re~lation that does not exist." 199 F.3d at 1342. lnsJead, Judge Sentelle suggested
that "it [was] time for the Secretary to repair to rulemaking, not to bring one more unsupportable
citation." Id.
There is no question that section 7.90. is silent a& to who provides freeman United ·
approval markings for its diesels. There is a disti.n ction between such regulatory silence and
regulatory ambiguity. There could be no serious dispute that the Secretary would be well within
her authority to require that under the "legibility'' requirement of section 7.90, for example, ,
approval mar~ings be in English and in typ~}>f a certain size. .Insofar as any of the explicit terms
of the regulation are susceptible to more than one relevant meaning, the regulation is ambiguous
537

and we would then tum to an analysis of whether the Secretary's interpretation is reasonable.
But here, the meaning of an explicit term is not at issue. Instead, the Secretary is attempting to
graft onto section·7.90 a new substantive requirement that imposes new obligations that
significantly affect private interests. See Drommond.Co., 14 FMSHRC 661 , 684-85 (May 1992)
(setting forth discussion between suhstantive rules, which require notice and comment
rulemaking; and procedural rules, which do not). Indeed, Freeman United has pointed out that .·
"Isuzu sought to charge·... $450 for each of these markings, a cost equi:valent to almost 10% the
price of a new engine.'·' F. Resp. Br. at 4. The total cost to Freeman United was "$27,000 - plus
the [cost] of additional replacement markings." Id.
The Secretary' s requirement that the manufacturer must supply such markings is "a
regulation that does not exist." 199 F.3d at 1342. And even if the Secretary wanted it to exist, if
she believes such a requirement is needed, she must initiate appropriate rulemaking to achieve
this goal.
I would hasten to add that, irl light of the uridisputed facts of this case, even if I were tO
reach whether it was appropriate to "accord special weight" to the Secretary's interpretation of
section 7.90 ~ including a requirement that manufacturers supply the approval markings, see
Helen Mining Co., 1FMSHRC1796, 1801(Nov.1979), my answer would be "no." The ·
approval markings provided by Isuzu to Freeman United were neither "permanent" nor capable
of being "securely attached" to the engines at issue (see F. Resp. Br. at 4 and 12-13), and thus did
not comply with the regulation. The Secretary's enforcement action, and the interpretation on
which the action was b~sed;were clearly at odds with th'e regulatory text and, thus, unreasonable .
.: .·
Both my co:lleagues raise a hue and cry over niy approach. Commissioner fordan claims
that I would "render the term ·' approval marker' meaningless" because I would require "the
Secretary to accept any label, affixed to an engine by any person, so lo~g as the label is legible,
permanent and contains the information described in Section 7.90." Slip op. at 7. My ·
colleague's conclusion that the reg\ilation would thus be meaningless simply does not follow
from her argument. Ally such label; regardless of its source, would have to comply with the clear
requirements of section 7.90, i.e., that the approval marking be legible and 'permanent and
·
contain the information set forth in the regulation. That Commissioner Jordan would view even
a marking that meets these requirements as a "decorative sticker" (slip op. at 7) simply because
of who made the sticker reveals an astonishing exaltati6n of form over substance. So long as an
approval marking meets the requirements of section 7 .90, it matters not frotn ·whence the
marking comes under the clear terms of the regulation.
Commissioner Beatty finds my reading of the regulation "more inimical to miner health
and safety" because it would allow "an operator with incomplete knowledge of the circumstances
surroun<iing the approval process·to place an approval marking on an engine." Slip op. at 11 n.5.
I have two ptoblems with my colleague' s argument. First, to paraphrase the court in
Contractors, mere invocation of the "expansive theory [of] the commendable goal of
promulgating safet)"' is not sufficient to permit the Secretary "to prosecute activity which

538

violates no existing rule.,, 199 F.3d at 1342. Instead, it is incumbent upon the Secretary to
protect the health and safety of min~rs by instituting a rulemaking to clarify its regulation, not
"bring one more unsupportable citation." Id.
Secondly, my colleague is apparently concerned that some operators could produce
approval markings that are incorrect. That would indeed be a problem, and would certainly give
rise to violations of section 7.90. But that is not the case here. As the Secretary's charges
against Freeman United state, the company had on the cited equipment "'legible and permanent
approval marking[s] as required by [section] 7.90."' See 22 FMSHRC at 1346 (quoting Citation
Nos. 7584882, 7584883, 7584884, and 7584885). The sole basis for the citations at issue was
that the approval markings '"had not been supplied by the engine manufacturer."' Id.
Otherwise, the markings fully complied with section 7.90. This is not a case involving approval
markings that failed to meet any explicit requirement of section 7.90. I thus find my colleague's
concerns misplaced.

I note that although my colleagues affirm the judge here, their reasons for doing so are
diametrically at odds. Commissioner Beatty finds section 7.90 ambiguous and affirms the
judge's decision to defer to the Secretary's interpretation of the regulation. Commissioner
Jordan, on the other hand, finds section 7.90 plain and affirms the judge in result. The effect of
this split decision is that the judge's decision is reversed under no rationale, and the case
remanded simply for the assessment of a penalty. See Pennsylvania Elec. Co., 12 FMSHRC
1562, 1563-65 (August 1990), ajfd on other grounds, 969 F.2d 1501 (3d Cir. 1992). In other
words, there is no Commission rationale. The split rationales on which my colleagues base their
separate opinions are non-binding and non-authoritative, and are thus dicta. 1 The result they
reach has no basis - neither plain meaning nor deference - that will bind future Commissioners
under the principle of stare decisis. I find this unfortunate in light of the congressional charge to
us to "develop a uniform and comprehensive interpretation of the law ... [and to] provide
guidance to the Secretary in enforcing the act and to the mining industry and miners in
appreciating their responsibilities under the law." Hearing on the Nomination of Members ofthe
Federal Mine Safety and Health Review Comm 'n Before the Senate Comm. on Human Res., 95th
Cong. 1 (1978).

1

My colleagues' opinions are dicta in that they are "unnecessary to the [result of the]
decision in the case and therefore not precedential." Black's Law Dictionary 1100 (7th ed. 1999)
(definition of obiter dictum).
539

In this case, the Secretary's interpretation literally exalts a flimsy fonn over the substance
of section 7.90. I reject the Secretary's approach, and therefore would affinn the judge.
.

Theodore F. Verheggen, Ch ·

540

:~

Distribution

i ..4:

~

Tina Peruzzi, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 2211d Floor West
Arlington, VA 22209-3939
Edward M . Green, Esq.
Timothy M. Biddle, Esq.
Crowell & Moring, LLP
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004-2595
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

.(

541

.t '

..

•

I'

·~

.· ·

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

June 26, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. LAKE 2000-111-R
LAKE 2000-112:-R

v.
THE AMERICAN COAL COMPANY

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners'
DECISION
BY: Jordan and Beatty, Commissioners
These are contest proceedings arising from two citations issued by the Department of
Labor's Mine Safety and Health Administration ("MSHA") against American Coal Company
("American"), pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (1994) ("Mine Act" or "Act"), and alleging violations of 30 C.F.R. § 75.1909(a)(l).2 In the
1

Commissioner Riley participated in the consideration of this matter, but his term
expired before issuance of this decision. Pursuant to section l 13(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been
designated to exercise the powers of the Commission.
2

This regulation requires, among other things, that diesel powered equipment have "an
engine approved under subpart E of Part 7 ..." Reference to that subpart brings us to the
requirement actually at issue in this proceeding, 30 C.F.R. § 7.90, which provides:
Each approved diesel engine shall be identified by a legible and
permanent approval marking inscribed with the assigned MSHA
approval number and securely attached to the diesel engine. The
marking shall also contain the following information:
(a) Ventilation rate.
(b) Rated power.
(c) Rated speed.
(d) High idle.
542

proceedings below, American and the Secretary of Labor each moved for summary decision.
Administrative Law Judge Michael Zielinski found in the Secretary's favor and affirmed the
citations. 23.FMSHRC 505.(May 2001) (ALJ). American filed a pe~ition for discretionary
review with the Commission challenging the judge's decisi()n. .
I.
Factual and Procedural Background
American operates the Galatia Mine, a large underground coal mine, in Harrisburg,
Illinois. 23 FMSHRC at 505. In the mine, American uses diesel-powered personnel carriers. Id.
American Isuzu Motors, Inc. ("Isuzu") manufactured the diesel engines in the carriers. Id. at
506. These proceedings concern citations MSHA issued to American because the approval
markings on the diesel engines were n,ot supplied by the manufacturer. Id. at 507 .

.

On October 25, 1996, MSH~ published final rules establishing new safety standards (30
C.F.R. §§ 75.1900-75.1916) and an approval process (30 C.F.R. §§ 7.81-7.108) for diesel
engines and equipment in underground coal mines.3 61 Fed. Reg. 55412.4 Under 30 C.F.R.
§ 75.1909(a)(l), non-permissible diesel-powered equipment must be equipped with an engine
approved under 30 C.F.R. Part 7. Id. Section·7.90 further requires an approval marking to be
by MSHA. Id.
placed on all: equipment approved
.
.
Isuzu applied for MSHA approval under these new regulations for diesel engines with
model numbersQD 100-301 and C240MA, which were in use at the Galatia Min.e. 23 FMSHRC
at 506 & n. l. As part of the approval process, Isuzu was required by the regulations to submit
engine specifications, design drawings, and test r~sults. See. 30 C.F.R. §§ 7.83-7.89; S. Resp. to

(e) Maximum altitude before deration.
(t) Engine mo4el number.
3

The new Part 7 approval procedure is divided into two subparts. Subpart E addresses
diesel engines used in areas where permissible electric equipment is required (Category A
engines) and diesel engines used in areas where non-permissible electric equipment is allowed
(Category B engines). 30 C.F.R. § 7.81. Subpart F addresses diesel power packages used in
areas where permissible electri~ .equipment is required. 30 C.F.R. § 7. 95. See generally 61 Fed.
Reg. at 55413, 55415. Only Subpart Eis involved in this proceeding. In addition to 01ese
subparts,.Subpart A (30 C.F.R. §§ 7.1-7.9), which specifies general requirements for MSHA
approval of equipment in underground mines, is applicable to diesel engines. See 30 C.F.R.
§ 7.81.
4

The equipment in this proceeding (which is classified under MSHA regulation as "nonpermissible") had been used at the Gaiatia Mine well before the effective date of the ~ew.
approval process. 23 FMSHRC ·at 506.
·
543

Mot. for Sum. Dec.~ Att. 4 'at 1-2 (Deel. of Gene Biron, Isuzu Mgr. of Application Eng.) ("Biron
Deel."). In order for Isuzu to determine whether a particular engine was manufactured in
accordance with the design drawings and specifications upon which MSHA's approval was
based, it had to compare the serial number on the··e ngin·e with its records of the design '°
specifications to which the engine was manufactured. 23 FMSHRC at 507. Equipment owners
were required to fill out a form that included the serial number of the engine together with other
critical characteristics. Biron Deel. at 3. Isuzu .w ould compare the information in this form with
the approval requirements for the approved engine. Id. at 4 . .If the engine met the requirements,
Isuzu would record the serial number and issue an approval tag. Id.
American was 'dissatisfied with the quality and cost of Isuzu's approval tags, and
American officials·had extensive discussions with MSHA concerning Isuzu's approval tags and
American's development of its own approval marking: 23 FMSHRC at 506. On April 1, 20QO,
MSHA issued Procedure Instruction Letter IOO-V-2 ("l>IL"), to address rlline operator complaints
about inadequate diesel engine approval markings that were being supplied by various engine
manufacturers. Id.; PIL at 1. The PIL stated: 1'The approval marking is supplied by the engine
manufacturer." PIL at 1. In the case of an approval marking that'had become detached or
illegible, the PIL instructed mine operators to verify that the· diesel engine is approved, obtain a
replacement approval marking from the engine manufacturer (that cbuld be kept on file in the
mine office if the approval marking were of the same design as the prior marking), and notify
MSHA of the problem. MSHA would then require the manufacturer to' develop an improved ·
approval marking that is legible and permanent as required by section 7.90. Id.
.
.
.
.
American did not obtain Part 7 approval markings from Isuzu. 23 FMSHRC at 507.
Instead, American's maintenance department purchased a labeling machin~ to fabricate tags that
it attached to its diesel engines. Id. American was able to ascertain froin public records
maintained by MSHA that Isuzu-manufactured engines with the same mod~l number as those in
this proceeding had been approved by MSHA. Id.; see S. Mot. for Sum. Dec., Att. A. However,
American did not have access to the documentation that was the basis for MSHA approval of the
engines. 23 FMSHRC at 506, 508. Nor did American have access to Isuzu's records that
reflected which engines with a specified serial number of a particular model were manufactured
according to the design drawings and specifications that were submitted to MSHA. Id. at 508.
Consequently, American could not determine whether its engines had, in fact, been approved. Id.

In June 2000, MSHA issued two citations charging that two Isuzu diesel engines, one
used in a mantrip and another in a personnel carrier, were not being maintained in accordance
with the regulations because a legible and permanent approval marking required by section 7.90
was installed but had not been supplied by the engine manufacturer. Id. at 507. American
contested the citatiOns, and both American and the Secretary moved for summary decision. Id. at
505.
The judge granted the Secretary's motion for summary decision and dismissed the notices
of contest. Id. at 512. The judge noted that section 7 .90 was silent regarding the source of the

544

approval marking and that this silence created ambiguity regarding permissible so~rces for the
approval marking. Id. at 509-11. He held that the Secretary's interpretation was reasonable and
more consistent with the safety purposes of the Act than the operator' s interpretation because an
operator cann_o t determine i_f a particular engine is covered by an MSHA approval. Id. at 511.
The judge found that only th~, manufacturer can ascertain wh~ther an engine was manufactured
according to th~ design drawings and specifo:ations .upon which MSHA approval was based. Id.
He further noted that, even though American could determine that the engine model that it owned
was approved, it could not determine whether its particular engines had been manufactured
according to the design anci specifications upon which the approval was obtained. Id. Therefore,
the judge concluded that an MSHA inspector attempting to determine whether a mine met
applicable ventilation requirement for dissipating emission~ could not rely on approval markings
supplied by ~erical). 'Id. The judge rejected American' s position that it did npt have notice of
the Secretary' s interpretatiOn~ noting that the Secretary's position was consistent.with the longstanding approval scheme for mining equipment, that MSHA representatives had discussed this
reqt,lfrement with American, and that American was specifically put on notice by the PIL. Id. at
512.

.II.
.

. .

'

Disposition
The only issue in this case, as in the companion case, Freeman United Coal Mining Co.,
24 FMSHRC _ , No. LAKE 2000-102-R (June 24, 2002), is whether the approval marking
required by 30 C.F.R. § 7.90 must be supplied by the engine, manufacturer. Thus, disposition of
this case turns on the me~ing of section 7.90.
:.

Commissioners Jord~ and Beatty; writing separately,,vote to affirm the judge. The
separate opin~Qns of the.Commissioners follo'Y. s

5

Chairman Verheggen, in an opinion dissenting from the result reached by his
colleagues, votes to reverse the judge.
545

Commissioner Jordan, affirming:
This case arose when American Coal Company ("American") was cited for failing to
comply with the requirement of30 C.F.R. § 7.90 that "[e]ach approved diesel engine shall be
identified by a legible and permanent approval marking ...." 1. Although every one of the diesel
engines observed by the MSHA inspector bore a tag containing the information required by
section 7 .90, MSHA did not consider the tags to be approval markers as required by 30 C.F .R.
§ 7.90 because they had·been produced by American instead of the engines' manufacturer,
·
American Isuzu Motors, Inc. ("Isuzu").
American contends that section 7.90's failure to specifically identify the manufacturer as
the source of the approval marking entitles American to affix the requisite information to the
engine. 23 FMSHRC 505, 508 (May2001) (AU). The Secretary argues that section 7.90 cannot
be read in isolation from the regulations governing MSHA's approval process, and, because that
process permits only the manufacturer to apply for and secure the approval that allows the diesel
engine to be used in a coal mine, only a designation by that manufacturer can suffice as an
approval marker under section 7.90. Id. at 509. The judge held that the Secretary's interpretation
that the approval marking must be issued by the manufacturer was reasonable. Id. at 511.
Because I agree with the judge's conclusion, I join in affirming his decision denying American's
motion for summary judgement and granting the Secretary's motion. I write separately, though,
because my view that the citations should be affirmed is based on the plain meaning of the
standard.
In order to determine the "plain language" or "plain meaning" of a regulatory
requirement, we must consider the ordinary meaning of the terms used. Western Fuels-Utah,
Inc. 11 FMSHRC 278, 283 (Mar. 1989). The ordinary understanding of the phrase "approval
marking" is that it refers to a designation placed ·o n an item, the purpose ofw~ch is to provide
assurance of that item's conformity with certain requirements or specifications. It stands to
reason that only someone who can reliably ascertain the item's conformity with those standards
1

Section 7 .90 provides:
Each approved diesel engine shall be identified by a legible and
permanent approval marking inscribed with the assigned MSHA
approval number and securely attached to the diesel engine. The
marking shall also contain the following information:
(a)
(b)
(c)
(d)
(e)
(f)

Ventilation rate.
Rated power.
Rated speed.
High idle.
·· Maximum altitude before deration.
Engine model number.

546

is in a position to place a mark on the item signifying its approved status. A marking affixed to
an object that does not authoritatively verify that object's compliance with the pertinent standards
can hardly be considered an "approval marking" as that term would be commonly understood.
Therefore, the plain language of section 7.90 does in fact preclude the use of approval markings
supplied by an entity not in a position to authoritatively verify the diesel engine's compliance
·
with the relevant design and performance standards.
The relevant question before us then becomes: "Did the Secretary correctly conclude that
only the manufacturer could authoritatively ascertain the diesel engines' approved status?" A
review of the standards governing MSHA's approval process requires that this question be
answered w\th an emphatic "yes." I.note at the out.s et that the use.of approval markings on
mining equipment is not a recent phenomenon. Indeed, as MSHA stated in the preamble to the
diesel r~gulations, "(a]pproval markings to .identify equipment appropriate for use in mining have
been used for more than 85 years, and are routin.ely relied upon by users of mining equipment as
well as state and federal inspection authorities." 61 Fed. Reg. -55412, 55422 (Oct. 25, 1996).2
The approval process that permits a diesel engine to be used in an underground coal mine
is set forth in 30 C.F.R. Part 7. Subpart A explains the general procedures that apply in .obtaining
approval, not only for diesel engines, but for numerous other products that are used in
underground mines. The only applicant recognized in the approval process is "[a]n individual or
organization that manufactures or controls the assembly of a product .... " 30 C.F.R. § 7.2. The
regulations go on to state that each application must contain "[t]he documentation specified in
the app~opriate subpart of this part." 30 C.F.R. § 7.3(c)(2).3 The requirements for diesel engines
are located at subpart E, 30 C.F.R. §§ 7.81-7.92, and reference to th~t section reveals extensive
"performance and exhaust emission requirements." 30 C.F.R. § 7.81. Applicants are required to
perform tests on the diesel engines and it takes several pages of regulations (which include
diagrams and mathematical formulas) to describe how those tests must be carried out and what
kind of testing equipment must be ~ed. See 30 C.F.R. §§ 7.86-7.89. As part of the approval
process MSHA also requires a "certification by the applicant'' that the product conforms with

2

Approval markings are required for a variety of equipment used in mines including:
brattice cloth and v~ntilation· tub4ig, 30 C.F.R. § 7.29; multiple-shot blasting units, 30 C.F.R.
§ 7.69; electric motor assemblies, 30 C.F.R. § 7.309; and electric cables, signaling cables, and
splices, 30 C.F.R. § 7.409.
.
.
3
It is undisputed that American does not have access to the approval documentation
submitted by Isuzu on which the MSHA approval was based. 23 FMSHRC at 508.
547

design requirements4 and that the applicant will perform the required quality assurance functions.
30 C.F:R. § 7.3(f).
That it is only the applicant who is authorized to produce approval markings finds further
support in the warning that "[a]n applicant shall not advertise or otherwise represent a product as
approved until MSHA has issued the applicant an approval." 30 C.F.R. § 7.5(a). An approval is
defined as "[a] document issued by MSHA which states that a product has met the requirements
of this part and which authorizes an approval·markingidentifying the product as approved." 30
C.F.R. § 7.2. Further support for the proposition that only the manufacturer is entitled to produce
the approval marking is found at 30 C.F:R. § 7 .6(c), which provides: "Applicants shall maintain
records of the initial sale of each unit having an approval marking." Obviously, this regulation
could not be carried out if entities other than the applicant produced approval markings. In
addition, MSHA takes steps to protect' the integrity of approval markers even' after the approval is
issued. Approved products are subj'ect to periodic audits and the approval holder must, at
MSHA's request, make the product available to the agency at no charge to enabkit to carry out
those audits. See 30 C.F.R. § 7.8(a)-(b). In sum, the document that entitles an approval marker
to be'placed on a product is issued by MSHA to the applicant and, under the regulations,
applicants are limited to the·manufacturer. There is no indication that the end-user of the product
is authorized to prodlice an approval marking. s
The Secretary's determination that Isuzu, not American, must supply the approval
marking required under section. § 7.90 is amply supported by the regulations governing her
approval process. Indeed, it is evident that permitting any entity other than the manufacturer to
tag equipment as approved would compromise the integrity of the approval process, not only for
diesel engines, but for the many other kinds of equipment that require such designation.
Contending that "the meaning of an explicit term is not at issue," slip op. at 15, my
dissenting colleague proceeds to render the term "approval marker " meaningless. Under
Chairman Verheggen' s analysis, the regulation;s failure to specify the producer of an approval
marker requires the Secretary to accept any label, affixed to an engine by any person, so long as

4

As the judge concluded, "[e]ven though American Coal could determine that engines of
that model had been approved, it could not determine whether its engines had been manufactured
according to the design and specifications upon which the approval was obtained. Consequently,
it could not determine whether its engines had, in fact, been approved .. . ." 23 FMSHRC at
511. American does not dispute this finding in its brief
5

As an Isuzu official acknowledged, engines with the same model number are not
necessarily identical, because over time changes can be made in the manufacture of a certain
model engine, including changes in the parts used, the settings; or the engine configuration.
Biron Deel. at 3. Thus, the fact that American could ascertain from MSHA records that MSHA
had approved Isuzu engines with the same model number as engines owned by American could
not serve as a basis for American to determine that its .particular engines had been approved.

548

the label is legible, permanent and contains the information described in section 7.90. Under this
view, the phrase does not denote an engine's conformity with MSHA~s safety standards and the
approval marker itself would be no more sign,ificant than a decorative sticker.
·For the foregoing reasons, I vote to affirm thejud~e's ~ecision. 6

.'

agree·witiiComJl1i~sion Beatty's view, slip op. at 13 ~ n.6,..th~(Pennsylvania Elec. .
Co., 12 FMSHRC 1562 ·( Aug.1990), _a jf'd on other grounds, 969 F.2d ·1501 (Jd Cir. 1992), iS
inapplicable to the disposition ofth~s case, because_l)ere a majority' the_Commission.has voted
to affirm.the judge.
·
·
·
·
6 ·I

of

549

Commissioner Beatty, affirming:
Where the language of a·regulatory provision is clear, the terms of that provision must be
enforced as they are written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning wouid lead to absurd results. See Dyer v. United States, 832
F.2d 1062, 1066 (9th Cir. 1987); Utah Power & Light Co., 11FMSHRC1926, 1930 (Oct. 1989);
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). If, however, a standard is
ambiguous, courts have deferred to the Secretary's reasonable interpretation of the regulation.
See Energy West Mining Co. v. J!MSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994); accord Sec'y of
Labor v. Western Fuels-Utah, Inc:, 900 F.2d 31~, 321 (D.C. Cir. 1990) ("agency's interpretation
of its own regulation is 'of controlffng weight unless it is plainly erroneous or inconsistent with
the regulation"' (quoting Bowles v. Semif!ole Rock & Sand Co., 325 U.S. 410, 414 (1945)) (other
citations omitted). The Secretary's interpretation of a regulation is reasonable where it is
"logically consistent with the language of the regulation and . . . serves a permissible regulatory
function." See Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citations omitted).
The Commission's review, like the courts', involves an examination of whether the Secretary's
interpretation is reasonable. See Energy West, 40 F .3d at 463 (citing Sec'y ofLabor on behalfof
Bushnell v. Cannelton Indus .. Inc., 867 F.2d 1432, 1435, 1439 (D.C. Cir. 1989)); see also
Consolidation Coal Co., 14 FMSHRC 956, 969 (June 1992) (examining whether Secretary's
interpretation was reasonable).
Section 7.90 provides that "Each approved diesel engine shall be identified by a legible
and permanent approval marking."1 As American notes, the clear wording of section 7.90
contains no requirement that the tag be issued by the manufacturer. A Br. at 3. American is
correct that, on its face, the regulation is silent as to the source of the approval tag. However,
neither does the regulation clearly provide that the approval tag can be fabricated by the engine's
owner or any other entity. Therefore, the regulation's language is not plain but rather ambiguous
on this issue.2 I tum next to the question of whether the Secretary's interpretation is reasonable.

1

The judge in the instant proceeding concluded that the language of the regulation was
ambiguous (23 FMSHRC 505. 509-11 (May 2001) (ALJ))~ while the judge in Freeman U11ited
Coal Mining Company concluded that the language was clear. 22 FMSHRC 1345, 1347 (Nov.
2000) (ALJ). Given these inapposite readings of section 7.90. it is reasonable to conclude that
the regulation is ambiguous. See Daanen & Ja11ssen, Inc., 20 FMSHRC 189, 192-193 & n. 7
(Mar. 1998) ("Ambiguity exists when a statute is capable of being understood by reasonably
well-informed persons in two or more different senses.") (quoting 2A Norman J. Singer,
Sutherland Statutory Construction§ 45.02 at 6 (5th ed. 1992)).
2

Chairman Verheggen distinguishes "regulatory silence and regulatory ambiguity." Slip
op. at 15. How'ever; Cominission cases have not drawn such a distinction in regulatory contexts
similar to the one at issue. See Rock ofAges Corp., ~O FMSHRC 106, ~ 17 (Feb. 1998), rev'd in
part on other grounds, 170 F.3d 148, 158-59 (2d Cir. 1999) (regulation is either silent or
ambiguous on the issue of what may trigger a post-blast examination for misfires); Steele Branch
550

On th~s point, jt is evident from reading section 7.90.in the context of other related regul.atory
requirements and the regu'Iatory preamble relating to 30 C.F.R § 7.6 "that.the Secretary's position
is reaso'nable. · Se~·also Western F~els-Utah, Inc., 10 FMSHRC 256, 260 (Mar. 1988) (separate
provis~ons in the Mine Act must be .read to_gether).
.
.
. .
. . Subpart A of Part 7~ Which specifies. the "general procedure for testing .and approving
products used in .uildergrourid mining,' provides that.only the manufacturer can submit an
application for MSHA's approval. Thus, 30 C.F.R. § 7.2 ddines. '';ipplicarit" as "[a]n individual
or organizati~n that manufactures _or"controls the assembly of a product and 'lpplies to MSHA (9r
approval of that product." The same section defines "approval" as "[a] document issued by_ ·
MSHA ... which authorizes an approval marking identifying the product as approved." Further,
only applicants _ rec~ive the equipment approvalJrom MSH.A. See 39. C.F.R. § 7.S(a) ("An
applicant sha~l not adverti~e ... _a product as approved until MSHA)ias ~ss~ed the applicant an ·.
approval."). Su~part A Part 7 ~egulatiop.s forth~r spe~ify post-apprpval procedures~ induding
record keeping; quality assurance in the'manufactu.ring proeess, and ~udits (30 G.F.R. .§§ 7.6, 7.7,
and 7 .8, respectively) that are ·the respon~ibility ~-(t~e applican~ ·o r approval hoider. In short,
·
these regulations present an integrated approach't.o the equ_ipment approval ·p:ro·c-ess that impose
burdens and continuing responsibilities on the manufacturer. . .
.
.
The rules in Subpart A of Part 7, which apply to under~o.und ~in~s generally, were
issued prior to the 1996 issuance of the rules governing MS,flA, app~oval of 4i~sel engines for use
in underground coal mines. Significantly, 30 C.F.R. § 1·.'6(.a) .(199µ)~ provides: "Each approved .
product shall have an approval marking." The preamble to the publication of the final.rule.. ·
explained the procedures for tagging approved products then in force:
·
··
...
.
Once MSHA has approved pro~uct, the manufacturer is
authorized.to 'place ·an approval marking on the product that
identi.fiesit as approved for use in underground mines. Use of the
. ·MS.H A marki~g obligates the manufacturer to maintain the quality
.. ..
· · of the product." The MSHA marking indicates to the mining
community that the product has been manufactured according to
. the drawings and specifications upon which the approval was
· ...d ·
.:··,
·.
. '.· . .
. ..
b ase .

a

'•

..
•.

.

.•

•

. .

•

Mining, 15 FMSHRC 597, 601-02 (Apr. 1993) (operator must file an accident report with MSHA
within a reasonable·time \Vhen the regulation is silent_as the perio~ .of time requfred for
compliance). See also Akzo Nobel Salt, Inc., 21 FMSHRC 846~ 865. (Aug. 1999) (Comm.
Verheggen, dissenting) (regulation is silent as to the issue presented and thus "inherently . ..
ambiguous"), rev'd, 212 F.3d 1301, 1303 (D.C. Cir. 2000). Drummond Co., 14 FMSHRC 661,
684-85 (May 1992), cited by my colleague (slip op: at 15), is readily distip:guishable from the
instant proceeding in that Drummond involved the imposition of pen~lties for Mine Act
violations greater th~ those permitted in the Secretary's regu.lation~ _through use of.an
administrative!y issued "Program Policy Letter."

to

• 1

f

551

53 Fed. Reg. 23486 (June 22, 1988) (emp~asis add<?d). See, e.g., 30 ~.f.R. §§ 19.12, 20.13, ~d
23.12. The issuance of the new Part 7 did not result in any material chjmge to the approval
marking process buf established a single provision, section 7.6, that had general application to
products that had to be approved for use in underground mines.3 53 Fed. Reg. at 23486-87.
Thus, the preamble to the final rule regarding approval marking identifies the manufac~urer as the
entity responsible for attaching the approval tag to the equipment, because only the manufacturer
can ensure that a particular engine is manufactured in accordance with the model design
specifications submitted to MSHA for approval. The provisions·of Subpart A are applicable to
the approval and testing of diesel engines for ·use in underground coal ·mines. See 30 C.F .R.
§ 7.81.
.
In addition to the general provisiohs of Part'7, Subpart E of Part 7 specifically addresses
the technical requirements~ approval, and testing"of diesel engines used in undergr9und coal :
mines. As part of the application process sefforth in Subpart.E, the manufacturer must submit a
large amount of t~hhic.al information, including drawings and design specifications. See 30
C.F.R. §' 7.83. Regula'.tioris specifying the ·technical requirements and testing f~r diesel engines
are detailed and corriplex. See 30 C.F.R. §§ 7.84-7.89. This information is
basis for MSHA
approval of the equipment for use in undergtoUnd mining. 61 Fed. Reg. 554t'i, 55419 (Oct. 25~
1996). Further, the Secretary noted in the preamble to the final rules regarding approval of diesel
equipment in underground coal mines: "Approved diesel engines must be manufactured in
accordance with the'speeifications,cohtained in the approvai ... ." Id. FiJ1.ally, section 7.90(a)(f) specifies information to be iricluded on the approval marking that thejnanufacturer is in the .
best position to provide:
·
·
''

the

It is apparent from ~eading Subparts A and E of Part 7 and their preambles that the
drafters of the regulations clearly intended that the manufacturer of approved equipment be the
source of the approval tag. The manufacturer is the source of the information that is the basis for
the approval. The nianufactureds also responsible for making the equipment in conformity with
the design specifications that are the basis for MSHA approval. Finally._ there are post-approval
responsibilities including quality control, spo't testing, and maintaining i-ecords of sales of
approved equipment, that only the equipment manufacturer c~ perform. Under the regulations
at issue, every essential aspect of ensuring that diesel equipment complies with Part 7 regulations
is borne by the manufacturer. Thus, the placement of a tag on approved equipment is the final
step in the approval process that, from a standpoint of logic as well as from a concern of miner
safety, must be home by the man~facturer. Therefore, under settled principles of regulatory
construction, deference should be given 'to the Secretary's reasonable int~rpretation that the
approval marking must be provided by the manufacturer of approved equipment.4 See, e.g., Rock

3

In addition, the new Part 7 allowed product testing by manufacturers, or third party
laboratories, instead ofMSHA. 53 Fed. Reg. at 23487.
4

Chairman Verheggen's plain meaning approach in applying the regulation leads to an .
absurd result and cannot stand under established principles of statutory and regulatory
552

ofAges Cqrp., 20 F,MSHRC 106, 117 (Feb. 1998) (Commission deferred to Secretary's
reasonable interpretation where the pertiI}ent regµlation was either "silent or ambiguous"), ajf'd
inpertineiit part, 170 F.3d 148 (id Cir. 1999);.see also Morton. Int'!, Inc. , 18 FMSHRC 533,
537-38 (Apr. 199~) (Secretary's interpretation of regul~tion not upheld where inconsistent with
regulatory h~story and ~ot in harmony with other regulations). 5
Notwithstanding the foregoing, American -.argues ~hat, under its reading of section 7.90,
any equipme~t ~~er can place .~ tag on appr~ved diesel equipment. American and ·my dissenting
colleague woqld CSlfVe out this function among all others assigned to manufacturers in Part 7.
However, this reading would lead to an illogical result, would be inconsistent with other
applicable rules Part 7, and would defeat the policies behind the pro~ulgation the Part 7
regulations. Indeed, under this reading of section 7 .90, the protections of miner health and safety
would largely be eviscerated. This is so because, as thE'.judge noted, "[t]he operator cannot
determine that a particular engine is covered by an MSHA approval because it has no way of
determining whether the engine was manuf~ctured according to the design drawings and
sp~ifications upon which the MSHA approval was based." 23 FMSHRC at ~ ,11. Only the
,,
manufacturer is privy to the information that is the basis for MSHA approval. Without access to
the information that is the basis for the approval, ~ operator would be guessir:ig as to whether his
equipment is within the class of equipment' approved. Such a reading of section 7.90 would
thwart the purpose of providing for equipment approvals and undermine the safety objectives.of
the Mine Act _and should ·b e avoided. See Dolese Bros. Co. , .1() FMSHRC 689, 693 (Apr. 1.994).

in

•

+

of

'

•

•

•

•

•

construction. See, e.g., Rock ofAges Corp., 20 FMSHRC at 111. Here, the mine operator placed
an approval marking on the equipment, notwithstanding that it did not know with certainty
whether. the engines a~ issue had been approved. 23 FMSHRC at 508. Nevertheless, my
colleague believes that as long all of the required lines are filled in oi:i tJ:ie appr9val marker, there
is no violatfon, i:egardless of whether the.person-enteri~g the information had access to the
records necessary to supply acc,Urate information. Slip op. at 16. · Under the approach suggested
by .the 4issent, MSHA inspectors would thus have no confidence in the information contained on
the approval markers, and would have to conduct an independe~t search of records to. verify that
the operator's equipment was. i~ fact approved. The absurdity of such.a scheme speaks for itself.

s _Ph~lps Dodge Corp. v. FMSHRC, 681 F.2d
1189
(9th .Cir. 1982),
cited by the dissent
'
.
.
(slip op. at 15) in support of his position, addressed the application of an electrical equipment
regulation to hazards resulting from mechanical motion. Id. at 1190-92. The court concluded
that the primary intent of the regulation was to protect miners from electrical shock, rather than
machinery motion. Id. at 1192-93. Contrary to the decision in Phelps Dodge, it is readily
apparent from the regula~ory history and context in the instant case that the, Secretary intended
equipment manufacturers to supply approval tags. In this regard, I find the court's decision in
Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358 (D.C. Cir. 1997),.mqre instructive
to the issue of regulatory silence. The court noted, '"specific regulations cannot begin to coyer
all of the infinite variety of . . . conditions which employees must face' . ..." Id. at 362.
(citations omitted).
·
\

553

Further, allowing any entity other than the manufacturer to tag engines as approved
compromises the integrity of the approval process. As noted above, only the manufacturer can
attach an approval marking on an engine beeause it can do so with the certainty that the engine
conforms to the specifications submitted to MSHA. The manufacturer's approval marking is an
integral part of the approval process. MSHA must be able to depend on the acctiracy and
authenticity of the approval tag. S. Resp. to Mot for Sum. Dec., Att. 5 at 2-3 (Deel. of Terry
Bentley, Deputy Chief, Coal Mine Safety and Health): The tag includes such critical information
as the ventilation rate that must be maintained iii the mine to dissipate engine emissions. 30
C.F.R. § 7.90(a). Once the integrity of the approval tag comes into question, an MSHA inspector
cannot accurately determine that the engine meets the requirements of Part 7, and the purpose of
approval tags is largely defeated.
··
·
Finally, American objects to the Secretary's ihtetpretation of the regulation because Isuzu
provided tags that were flimsy or demanded excessive consideration for them. MSHA too was
concerned about the poor quality of the approval markings, and that was addressed in the PIL,
which specified how tnine operators could preserve the ori~nal tags pending receipt of new ones.
With regard to the cost of the approval tag, it is worth noting that the responsibilities related· to
obtaining MSHA approval of diesel equipment are extensive (see Biro~ Deel. at 1-2), and Isuzu
undoubtedly incurred costs during the approval process that it passed on to its customers. The
record contains no evidence on the extent of those costs. American, on the other hand, which
had not borne any of the responsibilities or costs of the approval process, sought to enjoy the
benefits of owning MSHA-approved equipment at no cost by fabricating its own approval tags.
In short, there is no record support for American's excessive cost argument.
While there is much that appeals to me in Commissioner Jordan's analysis, I simply
cannot agree that the term "approval marking" as used in the regulations at issue plainly means a ·
marking.that only the manufacturer can provide, especially given the ALJ' s finding of a different
plain meaning in Freeman United. As for the dissent's commentary invoking Pennsylvania Elec.
Co., 12·FMSHRC 1562, 1563-65 (Aug. 1990), af!'d on other grounds, 969 F.2d 1501 (3rd Cir.
1992) ("Penelec"), in this situation, the Chairman clearly misstates applicable Commission law.
See slip op. at 17 & n. l. Penelec only applies when Commissioners are equally split on whether
to reverse or affirm the decision of the AU at issue. In such an instance, the ALJ' s decision
stands as if affirmed. Penelec, 12 FMSHRC at 1563-65. By any count, in this case two
Commissioners have voted to affirm the judge, while only one has voted to reverse: Penelec is
•
thus entirely immaterial to the disposition of this case.6

6

The dissent-has Clearly confused the split in rationales among the majority to affirm the
judge with a split in votes on the result of the case. These are two entirely separate issues, with
plainly different ramifications. The Secretary does not enforce Commissioner rationales against
operators; s~e enforces her regulations, and her reading of the one at issue here has been upheld
by a majority of the Commission. Until such time as it is vacated by a court, that reading stands,
the dissent's view of the force of the separate opinions notwithstanding.
·
554

For the foregoing reasons, I vote to affirm the judge's decision that American violated
sections 75.l990(a)(l) and 7.90 when it fabricated the approval tags for its diesel engines.

Robert H. Beatty, Jr., Commission

·. ~

555

Chairman Verheggen, dissenting:
In this matter, the regulation at issue, 30 C.F.R. § 7.90, does not on its face require the
use of approval markings for diesel engine supplied by the engine manufacturer. The judge
opined that the "regulation's silence creates ambiguity as to permissible sources for the approval
marking" at issue. 23 FMSHRC 505, 511 (May 2001) (AU). He then proceeded to defer to the
Secretary~ s "interpretation" of the purported ambiguity. Id. at 511 -12. The judge made an
analytical leap here, but fell far short of bridging the chasm between the regulatory silence and
the Secretary's attempt to fill that silence. I disairee with his decision as a matter of law, and
thus dissent from my colJeagues' separate opinions affirming the judge's decision in result.
The judge's analytical error is in equating silence with ambiguity. This conclusion is
directly at odds with a well-established holding of the Ninth Circuit in which that court stated:
'"If a violation of a regulation subjects private parties to ... civil sanctions, a regulation cannot
be construed to mean what an agency intended but did not adequately express."' Phelps Dodge
Corp. v. FMSHRC, 681 F.2d 1189, 1193 (9th Cir. 1982) (citations omitted). Indeed, section 7.90
simply requires that "[e]ach approved diesel engine shall be identified by a legible and permanent
approval marking inscribed with the assigned MSHA approval number and securely attached to
the diesel engine." 30 C.F.R. § 7.90 (in relevant part). The regulation does not include the
phrase "approval marking provided by the manufacturer."
The distinction the judge misses in his decision is between regulatory ambiguity and
regulatory silence. Clearly, the Secretary would be well within her authority to require that under
the "legibility>' provision of section 7.90, for example, approval markings be in English and in
type of a certain size. Insofar as any of the explicit terms of the regulation would be susceptible
to more than one relevant meaning, the regulation would be ambiguous and we would then turn
to an analysis of whether the Secretary's interpretation of the ambiguity is reasonable. But here,
the meaning of an explicit term is not at issue. Instead, the Secretary is attempting to graft onto
section 7.90 a new substantive requirement that imposes new obligations that significantly affect
private interests. See Drummond Co., 14 FMSHRC 661, 684-85 (May 1992) (setting forth
discussion between substantive rules, which require notice-and-comment rulemaking, and
procedural rules, which do not).
The situation here is similar to a regulatory silence we faced in Contractor's Sand and
Gravel, Inc. v. FMSHRC, where the Secretary attempted "grafting onto the plain language of a
regulation a [requirement] neither stated nor implied in that regulation." 199 F.3d 1335, 1342
(D.C. Cir. 2000). At issue in Contractor's was whether the Secretary's attempt at enforcing her
grafted rule was substantially justified under the Equal Access to Justice Act, 5 U.S.C.
§ 504(a)(l). Writing for the court, Judge Sentelle left no doubt that the Secretary's approach was
ill-advised: "It is not substantially justifiable for an agency to persistently prosecute citizens for
violating a regulation that does not exist." 199 F.3d at 1341. Instead, Judge Sentelle suggested
that "it [was] time for the Secretary to repair to rulemaking, not to bring one more unsupportable
citation." Id. at 1342.
556

As I stated in Freeman .United:
The Secretary's requirement that the manufacturer must
·supply [the] markings [at issue here].is·"a regulation thatdoes not
exist." [Contractors, 199 F.3d at 1342.] And even if the Secretary ·
wanted it to exist, if she believes such a requirement is needed; she
must initiate appropriate rulemaking to achieve this goal.
Freeman United Coal Mining Co.,24 FMSHRC--> slip op at 15, No. LAKE 2000-102-R (June
24, 2002).
As I point out in my opinion ip. Freeman,. my colleagues find: serious fault with my
approach. Commissioner.Jordan claims that I would "render the term 'approval marker'
meaningless" because I would require ." the Secretary to accept any label, affixed to an engine by
any person, so long as the label is legible, permanent and contains the information described in ,
Section 7.90." Slip op. at 7-8. My colleague's conclusion that the regulation would thus be
meaningless simply does not follow from her argument. Any such label, regardless of its source,
would have to comply with the clear requirements of section 7.90, i.e., that the approval marking
be legible and permanent and contain the information set forth in the regulation. That
Commissioner Jordan would view even a marking that meets these requirements as a "decorative
sticker" (slip op. at 8) simply because of who made the sticker reveals an astonishing exaltation
of form over substance. So long·as ,an approval marking meets the requirements of section 7.90,
it matters noffyoni' whehce t~e m~king comes under the clear terms of the regulation.
Commissioner Beatty finds that under my reading of the regulation, "the protections of
miner health and safety would largely be eviscerated" because mine operators would not be able
to '"determine that a particular engine is covered by an MSHA approval."' Slip op. at 12
(quoting 23 FMSHRC at 511). I have two problems with my colleague's argument. First, to
paraphrase the court in Contractors, mere invocation of the "expansive theory [of] the
commendable goal of promulgating safety" is not sufficient to permit the Secretary "to prosecute
activity which violates no existing rule." 199 F.3d at 1342. Instead, it is incumbent upon the
Secretary to protect the health and safety of miners by instituting a rulemaking to clarify her
regulation, not "bring one more unsupportable citation." Id.
Secondly, my colleague is apparently concerned that some operators could produce
approval markings that are incorrect. That would indeed be a problem, and would certainly give
rise to violations of section 7.90. But that is not the case here. As the Secretary's charges
against American state, the company had on the cited equipment '"legible and permanent
approval marking[s] as required by [section] 7.90."' 23 FMSHRC at 507. The sole basis for the
citations at issue was that the approval markings "had not been suppli.e d by the engin_e
..
manufacturer." Id. Otherwise, the markings fully complied with section 7.90. This is not a case
involving approval markitigs 'that failed to meet any explicit requirement of section 7.90. I thus
find my eolleague's concerns misplaced.
·· '
·
·

557

Finally, I note that although my colleagues affirm the judge here, their reasons for doing
so are diametrically at odds. Commissioner Beatty finds section 7.90 ambiguous and affirms the
judge's decision to defer to the Secretary's.interpretation of the regulation. Commissioner
Jordan, on the other hand, finds section 7.90 plain and affirms the j udge in result. The effect of
this split in rationales is to allow the judge's decision to stand as if affirmed. Pennsylvania Elec.
Co., 12 FMSHRC 1562, 1563:-65 (August 1990), affd on other grounds, 969 F.2d 1501 (3d Cir.
1992). However, there is no Commission rationale. The rationales on which my colleagues base
their separate opinions are non-binding and non-authoritative, and are thus dicta. 1 In other
words, the result they reach has no basis - neither plain meaning nor deference - that will bind
future Commissioners under the principle of stare decisis. I find this unfortunate in light of the
congressional charge to us to ."develop a uniform and comprehensive interpretation of the
law ... [and to] provide guidance to the Secretary in enforcing the act and to the mining ·industry
and miners in appreciating their responsibilities under the law." Hearing on the Nomination of
Members of the Federal Mine Safety_ and Health Review Comm.'n Before the Senate Comf!l. on .
Human Res., 95th Cong. 1 (1978).
Accordingly, I would reverse the judge and vacate the challenged citations.

1

My colleagues' opinions are dicta in that they are ''unnecessary to the [result of the]
decision in the case and therefore not precedential." Black's Law Dictionary 1100 (7th ed. 1999)
(definition of obiter dictum).
558

Distribution

.

~

'.

.. .

· ;:

Michael 0. McKown, Esq.
The American Coal Company
29325 Chagrin Boulevard, Suite 300
Pepper Pike, OH 44122
Tina Peruzzi, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 2~"d Floor West
Arlington.·VA 22209-3939
Administrative Law Judge Michael E. Zielinski
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

559

.. .;

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

June 26, 2002

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 2002-250-M
A.C. No. 25-01008-05507

V.

TRICO RECYCLING, INC.
< ••

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On May 28, 2002, the Commission received a request from
TriCo Recycling, Inc. ("TriCo") to reopen a penalty assessment that had become a final order of
the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its request, TriCo contends that it did not submit a request for a hearing because it did
not receive the proposed penalty assessment issued on December 21, 200 l, by the Department of
Labor's Mine Safety and Health Administration ("MSHA"). Mot. at 2. Attached to TriCo's
request is a copy of a letter dated May 9, 2002, from the Department of Labor's Office of the
Solicitor to Tri Co stating that the proposed penalty assessment sent to TriCo "appears to have
been 'returned to sender."' Id., Attach. Tri Co also attached to its request a copy of the proposed
penalty assessment and a copy of a certified mail receipt indicating that the assessment was
returned undelivered to MSHA. Id., Attach.

560

We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc., 15
FMSHRC 782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, if the <;lefaultlng
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs ..
Inc., 17 FMSHRC 1529,1530 (Sept. 1995). In reopening final orders, the Commission has found
guidance in, and has applied "so far as practicable," Rule 60(b) of the Federal Rules of Civil
Procedure. See 29 C.F.R. § 2700. l(b) ("the Commission and its judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In accordance
with Rule 60(b)(1 }, we previously have afforded a party relief from a final order of the
Commission on the basis of inadvertence or mistake. See Gen. Chem. Corp.. 18 FMSHRC 704,
705 (May 1996); Kinross Delamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996);
Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997).
· The record indicates that the proposed penalty assessment was not successfully delivered
to TriCo. In the circumstances presented here, we treat TriCo's failure to file a hearing request
as resulting from inadvertence or mistake. Accordingly, in the interest ofjustice, we grant
TriCo's request for relief to reopen this penalty assessment that became a final order. We
remand this matter to the Chief Administrative Law Judge for assignment to a judge. On
remand, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.
. .

Theodore F. Verheggen. Chai

Robert H. Beatty, Jr., Commissi

561

Distribution
Fred Beekman, President
Tri-County Recycling, Inc.
2400 Elk Street
Bea~ice, NE 68310
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, \TA 22209
Myra James, Chief, Compliance Group
Civil Penalty Compliance Office
MSHA, USDOL
1100 Wilson Blvd., 25•h Floor
Arlington, VA 22209
Chief Administrative Law Judge Dayi<;l Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

562

ADMINISTRATIVE LAW JUDGE DEOSIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE: LAW JUDGES
·

· 2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church. Virginia 22041

June 11, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. VA 2001-37
A.c: No. 44-06889-03501 TQI

v.
MINE MANAGEMENT.CONSULTANTS,
INC.,
Respondent

Four 0 No. 8 Mine

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

CIVIL PENALTY PROCEEDING
Docket No. VA 2001-42
A.C'. No. 44-06889-03502 ATQI

v.
TONY M. STANLEY, Employed by
MINE MANAGEMENT CONSULTANTS, :
INC.,
Respondent
,, .

Four 0 No. 8 Mine

DECISION

Appearances: Karen Barefield,.Esq., Office of the Soiicitor, U.S. Department of Labor,
Arlington, Virginia, for Petitioner;
Dr. Nick E. Brewer, Appalachia, Virginia, (at hearing), and L. W. Penn_ell, Special
Engineer, Mine Management Consultants, Inc., Jenkins, Kentucky, (on brief), for
Respondents.
Before:
.

1

Judge Hodgdon

These consolidated cases are before me on Petitions for Assessment of Civil Penalty
brought by the Secretary of Labor, acting through her Mine Safety and Health Adm1nistration
(MSHA), against Mine Management Consultants, Inc. (MMC); and Tony M. Stanley,
respectively, pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, 30U.S.C. §§ 815 and 820. ·The petitions allege a violation ofthe Secretary's mandatory
health and safety standards and seek penalties of $1,800.00 against the company and $600.00
563

against Stanley. A hearing was held in Abingdon, Virginia. For the reasons set forth below, I
dismiss the case against Stanley, and modify the citation and assess a penalty of $300.00 against
MMC. 1
...

Back2round
Mine Management Cons~ltants, Inc., is an engineering firm in Jenkins, Kentucky. 2 It is
licensed to do business in Kentucky and Virginia. MMC provides engineering services including
surveying, mapping, layout and design, construction, and obtaining permits for the development
of underground and surface mining for the mining industry. It also provides civil engineering
services in the design of sanitary sewers, water distribution systems, waste water treatment
plants, bridges and roads. MMC has 22 employees, ten of whom work underground.
MMC began providing surveying and engineering services to Four 0 Mining Co., Inc.,
and its predecessors, in the latter part of 1997. On June 29, 2000, an MMC survey crew
consisting of Tony Stanley, Benjamin Adams and Larry Mullins arrived at the Four 0 No. 8
Mine,3 located in. Wise County, Virginia, to set spads in the No. 2 Right Crosscut to indicate the
direction of mining for meeting the No. 3 Entry. Stanley was the crew's supervisor.
After meeting with Mine Foreman Paul Mullins, the crew entered the mine to perform
their work. At that time, the mine was not producing coal and no Four 0 employees
accompanied the surveyors. The crew installed the survey points as requested in about 45
minutes and then left the mine and returned to their office.
,.

On July 7, 2000, MSHA Inspector Gary W. Jessee went to the mine to conduct a six
month review of the roof control plan. While conducting this inspection, he observed that survey
spads had been installed inby the last row of roof bolts in the No. 2 crosscut. On measuring the
distance from the face to the last row of roof bolts, he determined that the roof bolts ranged from
five feet, two inches, to six feet from the face. He also observed that a reflectorized warning
device had been installed on the last row of roof bolts and that loose, wet gob material had been

1

The Secretary's brief was filed three days late. The Motion to Accept Brief Filed Out
of Time, which accompanied the brief, indicates that the brief was prepared on time, but was not
filed through clerical error. The Respondents have not objected to the late filing. Therefore, I
grant the motion and accept the brief.
2

At the hearing it was determined that the company's name is listed incorrectly with
MS.a.A as Mine Manageme.nt Consultant, instead of Consultants. (Tr. 37-38.) The Cfiption has
been amended to indicate the correct name.
3

At the hearing, the Secretary moved to amend the caption to show that the mine was
the Four 0 No. 8 Mine, instead of the Grace No. 2 Mine. (Tr.14.) The caption has been
amended to accomplish this.
·

564

pushed into the face. The gob mat~rial was within four inches of the roof, at the face, and sloped
out from the face toward the last row of roofbolts. 4 Finally, the inspector observed indentations
in the gob where the survey stations had been installed.
As a result of these observations, and after interviewing Paul Mullins and some other
miners, Inspector Jessee issued Citation No. 7305787 to MMC, alleging a violation of section
75.202(b) of the Secretary's rules, 30 C.F.R. § 75.202(b), because the survey crew under the
direction of Tony Stanley had worked or traveled inby the last row of permanent roof supports on
June 29. A subsequent investigation.determined that Tony Stanley should be personally assessed
a civil penalty for the violation under section 1 IO(c) of the Act, 30 U .S.C. § 820(c).5
.

.

Reopenini= Docket No. VA 2001-42
·'

On December 12, 2001, the Secretary, moved to dismiss the case against Stanley, Docket
No. VA 2001-42, because he had not filed an Answer to the
. Secretary's Petition for
. Civil
Penalty. On December 18, 2001, an Order to Show Cause was issued to the Respondent,
ordering him to file an Answer within 21 days of the date of the order or to show good cause for
his failure to do so. When no response to the order was received, a Default Decision w~s entered
on January 17, 2002.
Subsequently, a response to the order was received by the Commission on January 22,
2002. The Commission treated the response as a timely filed Petition for Discretionary Review
of the Default Decision and granted the petition. However, the Commission was unable, based
on the record before it, to determine whether Stanley was entitled to relief. Therefore, it vacated
the default decision and reinaJlded the case to the judge to determine whether the case should be
·
.
reopened. Tony M. Stanley, 24 FMSHRC 144 (February 25, 2002).
At a prehearing conference held before the hearing, the matter of reopening Docket No.
VA 2001-42 was discussed with Gary Royalty, President of MMC, Stanley and counsel for the
Secretary. After hearing Royalty's and Stanley's explanation of what had happened, and
receiving no objection to reopening by the Se.cretary, (determined that the .c ase would be ·
reopened. (Tr. 6-7.) Since trial was reaqy to proceed that day,° Stanley obviously did.not receive
the 20 day written notice of hearing requir~d by Commission Rule 54, 29 <;::.F .R. § 2700.54.
However, Stanley stated that he was ready to proceed and waived the 20 day requirement. (Tr. 78.)

4

The coal seam in this area was between 44 and 45 inches high.

5

Section 110(c) provides, in pertinent part, that: "Whenever a corporate operator
violates a mandatory health or safety standard ... any director, officer or agent of such ·
corporation who knowingly authorized, ordered, or carried out such violation ... shall be subject
to the same civil penalties . . ..
565

Accordingly, this decision will concern both Docket Nos. VA 2001-37 and VA 2001-42.

Findines of Fact and Conclusions of Law
'Section 75.202{b) provides that: "No person shall work or travel under unsupported roof
unless in accordance with this subpart." The paf!ies do not dispute that on July 7, when seen by
Inspector Jessee, the last row of roof bolts was more than four feet from the face, 6 the survey
stations'were inby the last row of bolts, a warning reflector was hung from the last row of bolts
and gob was pushed up into the face. However, MMC and Stanley claim that on June 29, when
the survey points were installed, the last row of roof bolts was within four feet of the face, no
reflector was present and there was no gob in the face. I find that a preponderance of the
evidence supports the Secretary's position in this ·case.' ·
The only witnesses at the hearing who actually saw the area iri question on June 29, were
Stanley and Paul Mullins. Their testimony is diametrically opposed and ~annot be reconciled.
Stanley testified that he was aware that the mine's roof control plan required that the last
row of roof bolts be four feet from the face. (Tr. 42.) He said that he· did not see any warning
device at the last row ofroofbolts. (Tr. 44-45.) He related that he did not check to see if the last'
row of roof bolts was within four feet of the face, but that Adams did. (Tr. 45.) He said Adams
did not measure the distance, but that "he estimated it less than 4 feet because that's what we do
everyday, and he told me when he got there. He said, 'This is the last row of bolts.• He said,
'It's less than 4 feet.' He said, 'I can set the spad. '"(Id.) Stanley testified that he was 70 feet
away at the time. (Id.) He maintained that there'was no gob in the area. (Tr. 46.) He claimed
that when he set up his transit two and one half feet inby the last row of bolts, to shoot the second
point, his elbow hit the face. (Tr. 52.) When he left the mine, Stanley stated that he told the
outside man to tell Paul Mullins to be careful, that ''they'd cut that spad out it was so close." (Tr.
55.)

in

Paul Mullins testified that when they finished working on June 28, the entry the 2
Right Crosscut had been cleaned, gob had been pushed info it and it had been rock dusted. (Tr.
18.) He said that he could not remember whether a reflector had beeri hung at the last row of
roof bolts. (Id.) He stated that there had not been any mining in the 2 Right Crosscut between
June 28 and July 7. (Id.) Mullins declared that the reason he knew no mining had taken place
during that time period was that the mine had been notified of some violations on the belt line
and he had all his miners working on those during that week. (Tr. 158.) He further testified that
the entry had not been bolted within four feet of the face because they could not get the roof
bolter far enough into the entry to bolt it. (Tr. 28-29, 35.) Finally, he averred that there was no
difference in the entry between when he saw it on June 28 and when he saw it with Inspector
Jessee on July 7. (Tr. 158.)

6

The mine's roof control plan permits a maximum of four feet between the face and the
last row ofroofbolts. (Govt. Ex. 2, pp. 15-18.)
566

To explain the. diffenmce between what St?flley claims that the entry was like on June 29
and what.Inspector.Jessee observed on July 7, the Re.s pondents argue in their brief that a little bit
more of the entry was mined after June 29. In addition, they assert that it would have been
impossible to set up a transit on a tripod in a place where there'was only four inches of clearance.
Turning to th~se _last arguments first, I f).nd that they are not persuasive. There is no
evidence to support the Respondents' speculation thc~t additional mining of the entry was .
performed after June 29: Further, such a hypothesis is plainlY. refuted by Paul Mullins' testimony
that no such mining took place. Similarly, the clatm that it would have been impossible to set u_p
the transit in four inches of clearance ignores the evidence. While it is true that the transit could
not have been used in four inches of clearance, no one clai111ed that th~ gob was uniformly four
inches from the roof. .Rather the evidence is that the gob was within four inches of the roof at the
·
face and sloped downward t~ward the floor beneath th~ roof bolts."
This leaves the contradictory testimony of Stanley and Paul Mullins. _In determining who
to believe, it must be noted that not .only is Stanley a pajy to t~is proceeding, having a personal
stake in its outcome, but he testified that the penalty at MMC for going under unsupported roof is
termination. On the other hand, Paul Mullins would appear to have no interest in the case's
disposition. He does not work for MMC. At the time he·testified, he did not even \\(Ork for the
Four 0 Minirlg Company. lr1 additfon, the No. 8 .Mine was not issued a citation for this violat_ion.
Accordingly, !'credit Paul Mullins testimony on this issue.

I find that the entry in th,e No. 2 Right Crosscut was not bolted within four feet of the face
on June 29,:2000, and that hoth ~tanley and Adams worked inby the l~t row of roof bolts to
install the two survey points. Therefore, I conclude that they worked under unsupported roof in
violation of section 75.202(b).
Significant and Substantial
The Inspector found this violation to be "significant and su~stantial." A "significant and
substantial" (S&S) violation is described in Section 104(d)(l) of the Act as a violation "of such
nature as c<mld signi_ficantly and substantially contribute to the cause and effect of a coal or other
mine safety or h~alth hazard." A violation.is properly designated S~S "if, based upon the
particuiar facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to
result in an injury or illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

will

m

Mathies Coal Co., 6FMSHRC_1-(January 1984), the Commission set out four criteria
that have to be met for a violation tq be S&S. See also Buck Creek Coal, Inc, v.. FMSHRC, 52
F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Se(;retary, 861 F.2d 99, 103-04 (5th Cir.
1988), ajfg Austin Power, Inc., 9 FMSHRC 2015, 2021(December1987)(approvingMathies
criteria). Evaluatio~ of the criteria is made in terms.of "continued normal mining operations."
U.S. Steel Minin.g Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a
567

particular' violation is significant and substantial must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007 (December 1987).
·
In order to prove that a violation is S&S, the Secretary must establish: (1) the underlying
violation of a safety standard; (2) a distinct safety hazard, a measure of danger to safety,
contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury will be ofa reasonably s'erious
nature. Mathies, 6 FMSHRC at 3-4.
Having already found a violation of a safety standard, it next must be determined whether
there was a measure of danger to safety contributed to by the yiolation. In Consolidation Coal
Co., 6 FMSHRC 34 (January 1984), the company contended that spacing roof bolts farther apart
than permitted by the roof control plan contributed neither to a hazard nor a reasonable likelihood
that such a hazard wotild result in an injury. In rejecting this contention, the Commission held
that: "Mine roofs are inherently dangerous and even good roof can fall without warnillg." Id. at
37. It went on to say that "despite the 'generally good conditions and the absence of reportable
injuries in the previous six monthS, these over-wide bolts created 'a measure of danger to safety
or health. '" Id. at 38. Similarly, I find that working under roof that was between one foot, two
inches and two feet wider than it was supposed to be created a meastire of danger, i.e. b'eing
struck by a roof fall, to safety or health.
'
· ·
Turning to the third and fourth issues, I find it reasonably likely that a roof fall would
result in a serious injury. Roof falls are one of the most serious hazards in mining arid are among
the leading causes of death in coal mines. Id. at 37 n.4.
Finding that all of the Mathies criteria are met, I conclude that the violation was
"significant and substantial.,,
· Unwarrantable Failure
The inspector also concluded that this violation resulted from an "unwarrantable
failure" to comply with the rule on the part of the company. The term "unwarrantable failure" is
taken from seetion 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l), which assigns more severe ·
sartctions for any violation that is caused by "an unwarrantable failure of [an] operator to comply.
with ... mandatory health or safety standards." ·
The Commission has held that unwarrantable failure is aggravated conduct constituting
more than ordinary negligence by a mine operator in relation to a violati'on of the Act. Emery
Mining Corp., 9 FMSHRC 1997, 2004(December1987); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007, 2010 (December 1987). "Unwarrantable failure is characterized by such
conduct as 'reckless disregard,' 'intentional misconduct,' 'indifference' or a 'serious lack of
reasonable care.' [Emery] at 2003-04; Rochester & Pittsburgh Coal Corp. 13 FMSHRC 189,

568

193-94 (February 1991)." Wyqming F_uel. Co. , 16 FMSHRC 1618, 1627 (Au~st 1994); see also
Buck Creek Coal, Inc. v._FMSHRC, 52 F.3d 133, .136 (7th.Cir. ~995) (approving Commission' s
unwarrantable failure test)..
The inspector testified that he found the violation to arise from MMC's reckless disregard
"based upon what I saw on July 7 in that area and what I was told having to do .with the people
that had operated a roof drill in that area," that is, that the roof was "softer" in the entry, that a
warning device had been installed and .that the gob served as a physical barrier Jo going inby the
last row of roof bolts. {Tr. 79.) The facts that emerged at the hearing, however, present a
different picture.

S~anley t~stified. that the!e w~ ~pt a ~arnin.g device in the entry at th~ tim~.h~ was there.7

1

Paul Mullins .could not remember whe~er a warning device wa.s .installed on.June 29. Moreover,
the inspector was unable to determine who installed th.e reflector or when it was in~talled. (Tr.
102.) Consequently, I accord MMC the .benefit o(the doubt on this question and find~hat the
reflector was not:present ,at the time the surveyors were installing the.spads.
The other two factors cited by the inspector are not necessarily significant. Whether or
n<?t the roof was softer than_elsewhere would be important, as far as unwarrantable failure is
concerned, only if the surveyors knew that the roof was soft and unsupported an.d went under it
anyway. Likewise, there is no evidence that gob is only pushed up in entries ·where the roof is
unsupported. Thus, the fact that the gob was a barrier to going into the entry did not serve as a
warning to the surveyors that they w~re going under unsupported roof.
Finally, the surveyors.were briefed by Paul Mullins be.fore they went ~to the mine.
Although he knew that the.roof was not bolted within four feet of the face, he did n9t warn them
that they might ha_ve to place the spa~s in unsupported roof. (Tr. 32.) The .only thing he advised .
them of was that they might have to set the spads "short" because he was afi:aid there was not
enough distance from the center of the entry to the last roof bolt. (Tr. 159-60.)
Based on the facts available to Stanley and his crew when.they began to work, it is
apparent that ~hey neither acted with reckless disregard of the facts, nor were hjghly.negligent.
They were not warned that the roof was unsupported, either by Paul M~llins or by a w.arning
device. that they knew indicated u~supported roof. They estimated that the last row of bolts was
within four feet of the face. Their estimate was inaccurate . .B\,lt the distance over four feet, from
five feet two inches to six feet, was not so great that their f~ilure to .discern it can be
characterized as indifference or a serious lack of reasonable care.
I find that Stanley sho~ld have discove!ed that the roof _w as unsupported, but because he
was not informed prior to goi11g.into the ~ine that the roof was unsupported and because the lack

7

The inspector did.not Interview Stanley or any one else from MMC before issuing the
citation. (Tr. 100.)
569

of a warning device indicated that the roof was supported, his negligence and the company's was
only "moderate." Accordingly, I conclude that the violation did not occur as the result of the
company's unwarrantable failure to comply with the regulation and will modify the citation
appropriately.
11 O(c) Violation

The Commission set out the test for determining whether a corporate agent has acted
"knowingly" in Kenny Richardson, 3 FMSHRC 8, 16(January1981), ajf'd, 689 F.2d 623 (6th
Cir. 1982), cert. denied, 461 U.S. 928 (I 983), when it stated: "If a person in a position to protect
safety and health fails to act on the basis of information that gives him knowledge or reason to
know of the existence of a violative condition, he has acted knowingly and in a manner contrary
to the temedial nature of the statute." The Commission ha's ·further held, however, that to violate
section 1 IO(c), the corporate agent's conduct must be' "aggravated," i.e. it must involve more
than ordinary negligence. Wyoming Fuel Co.~ 16 FMSHRC 1618, 1630 (August 1994);
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (August 19'92); Emery Mining Corp., 9
FMSHRC 1997, 2003-04 (December 1987).
, As has already been discussed in the section on "unwarrantable failure," I do not find that
Stanley's conduct was aggravated-or ihvolved more than ordinary negligence. Therefore, I
cannofconclude that he acted knowingly.
Consequently, I will dismiss
.
. the case against him..

Civil Penalty Assessment
The Secretary has proposed' a penalty of$1,800.00 for this violation. However, it is the
judge's independent responsibility to determine the appropriate amount of penalty in accordance
with the six penalty criteria set out in section 11 O(i) of the Act, 30 U.S.C. § 820(i). ·sellersburg
Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, 1nc.; 18
FMSHRC 481, 483-84 (April 1996). ..
With regard to the penalty criteria, the parties have stipulated that the penalty in this case
will not adversely affect MMC's ability to remain in business. (Tr. 9.) The company's Assessed
Violation History Report reveals lhat it ·did not receive any citations in the two years prior to this
violation. (Govt. Ex. 3.) Thus, I find that MMC has an excellent violation history. I further find
that MMC is a small company. · (Govt. Ex. 4.) Finally, since the Secretary did not present any
evidence to the contrary, I find that the Respondent demonstrated good faith in abating the
violation.
Turning to negligence, the parties have stipulated that Stanley was a supervisor and an
agent of MMC at the time of the violation. (Tr. 10.) As such, his negligence is attributable to the
company. Southern Ohio Coal Co., 4 FMSHRC 1456, 1464 (August 1982); Nacco Mining Co.,
3 FMSHRC 848, 850 (April 1981 ). As has already been indicated, I find that he was .
"moderately" negligent. Hence, I also find that MMC was ''moderately" negligent.

570

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•

i

•

Lastly, on the question of gravity, _! find·th_is to be a: seri9us violation. There are few
activities more dangerous in underground co"l mining than working or traveling under
unsupported roof.
·
Taking all of these criteria into consideration, I assess a penalty of $300.00 for this
violation.

Order
Docket No. VA 2001-42, the civil penalty proceeding involving Tony M. Stanley, is
DISMISSED. With regard to Docket No. VA 2001-37, Citation No. 7305787 is MODIFIED by
reducing the level of negligence from "reckless disregard" to "moderate," by deleting the
"unwarrantable failure" designation and by making it a 104(a) citation, 30 U:S.C." § Sl4(a),
instead of a 104(d)(l) citatiOn. The citation is AFFIRMED, as modified, and Mine Management
Consultants, Inc., is ORDERED TO PAY a civil' penalty of $300.00 within 30 days of the date
of this decision.

~~~

Administrative Law Judge

Distribution: (Certified Mail)
Karen M. Barefield, Esq., Office of the Solicitor, 1100 Wilson Bqulevard, 22nd Floor West,
Arlingtorl, VA 22209-2247

'

Gary Royalty, President, Mine Management Consultants, JNC., 9404 State Route 805, Suite B,
P.O. Box 33, Jenkins, KY 41537
Tony M. Stanley, P.O. Box 188, Burdine, KY 41517

':

571

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

June 14, 2002
EQUAL ACCESS TO JUSTICE
PROCEEDING

GEORGES COLLIERS,
JNCORPORATED,
Applicant

v.

Docket No. EAJ 2002-2

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

Formerly CENT 99-178
.:·

Mine: Pollyanna No. 8

DECISION

Before:

Judge Barbour
'

·~·

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an

This case is before me on Application for Award of Fees and Expenses under the
Equal Access to Justice Act (EAJA), (5 U.S.C. § 504 (1996)), which provides for an award to a
prevailing party against the United States or an agency thereof unless the position of the
government was "substantially justified or that special circumstances make an award unj,ust" (5
U.S.C. § 504(a)(l)). Georges Colliers, Inc. (GCI) filed the application against the Secretary of
Labor (Secretary) following the issuance of a decision in numerous consolidated civil penalty
proceedings brought by the Secretary on behalf of her Mine Safety and Health Adminl.stration
(MSHA) against GCI and three of its agents. The cases were filed pursuant to sections 105,
llO(a), and llO(c) of the Federal Mine Sa~ety and Health Act 9f 1977 (30 U.S.C. §§§ 815,
820(a) and 820(c); Georges Colliers, Inc. 23 FMSHRC 1346 (Dec .. 2001); see a.lso Georges
Colliers, Inc., 24 FMSHRC 51 (Jan. 2002). I heard the cases. Based upon the evidence and the
parties' stipulations, I found GCI violated all of the cited mandatory safety standards. I also held
the Secretary established the agents were liable for several knowing violations. After considering
the statutory civil penalty criteria, I levied penalties against the company and the agents.
In assessing the civil penalties, I concluded, among other things, that GCI established the
penalties proposed by the Secretary would "adversely affect [the company's] ability to continue
in business" (23 FMSHRC at 1390) and that one of the agents (Kenneth Clark) established the
penalties proposed would adversely affect his ability to meet his financial obligations
(23 FMSHRC at 1389). In addition, I noted the parties' stipulations that the agents had no
history of previous violations (23 FMSHRC 1352, 95, 96, 97 and 98). In the aggregate, the
penalties I assessed were approximately 23 percent of those proposed by the Secretary
(23 FMSHRC at 1416; see also 24 FMSHRC at 52).

572

GCI argues the Secretary's proposed penalties and the positions she took during litigation
regarding those penalties were "not substantially justified." The company views the "Secretary's
demands ... [as] substantially excessive,.arbitrary, and capricious" (Appl. 1-2). GCI seeks a
total of $45,019.36 in fees and expenses (Amended Appl. 1). ·
I conclude no basis exists for an award.

STATUS OF THE APPLICANTS
The Commission's rules implementing the EAJA are found at 29 C.F.R § 2704. Rule
100 provides for the "a'Yard of attorneys fees and other expenses to eligible individuals and
entities who are partie~ to certc;lin ... 'adversary adjudications'. before [the] Commission"
(29 C.F.R. § 2704.100).
To be eligible for an award, an applicant must be a "party" as that term is defined in
5 U.S.C. § 551(3). Section 551(3) states a "party" includes "a person or agency named or
admitted as a party ... in an agency proceeding." Under the Commission's rules, party status is
accorded "[a] person, including the Secretary or an operator, who is named as a party" (29 C.F.R.
§ 2700.4(a)). The Commission's rules also state that the definitions of section 3 of the Mine Act
apply. Section 3(f) defines "person" as "any individual, partnership, ... corporation, ... or other
organization" (30 U.S.C. § 802(f)).
The underlying proceedings involved two types of cases: civil penalty cases filed by the
Secretary against GCI and civil penalty cases filed by the Secretary against GCI's agents. The
cases filed against GCI were brought pursuant to sections 105(a) and -1 lO(a) of the Act
(30 u.s.c. §§ 815(a), 820(a)). The cases filed against the agents were brought pursuant to
section l IO(c) of the Act (30 U.S ..C. § 820(c)). In the 105(a)/ 110(a) proceedings the "person
named ...as a party" was the corporate operator. In the section l lO(c) proceedings, the
"person[s] ... named as ... part[ies]" were the individuals. However, when the cases were
consolidated for hearing the two types of cases effectively became a single case, and both the
company and agents became parties to the single case. Thus, while the application was filed
solely by GCI, and _while GCI clearly is authorized to.bring an application for itself, it also is
authorized to apply for the individual agents, who are subsumed in the application as parties to
the consolidated case.

ELIGIBILITY
. To be eligible for an award, GCI must meet cert~in specific requirements. The
Commission• s rules require a party corporation to have a net worth of not more than
seven million dollars and to have not more than 500 employees (29 C.F.R. § 2704.104(b)(4)(iii)).
The un~erlying decisions establish that the company meets these requirements (23 FMSHRC
at.1389-1390; see also 24 FMSHRC at 51-52). In addition, for the agents to be eligible, each
must have a net worth of not more than two million dollars (29 C.F.R. § 2704.104(b)(4)(i)). As
stated in my findings regarding Clark and as was clear from the testimony of the agents and
573

others at the hearings, the agerits meet this requirement.
The question then is whetheflhe Secretary's positions were substantially justified.

SUBSTANTIAL JUSTIFICATION
The burden is on the Secretary to establish her positions both before and during litigation
were "substantially justified." Neither the EAJA nor the Commission's rules define "substantial
justification." However, the standard is directly adopted from federal civil litigation discovery,
where the essence of"substantialjustification,, is whether "reasonable people could genuinely
differ" (See The Essentials of the Equal Access to Justice Act, 56 La. L. Rev. 22 ( 1995)). When
drafting the legislation, Congress stated, "where the Government' [can] show that its case has a
reasonable basis both in law and fact, no award [will] be made" (Id. 23). Moreover, as the
Commission has noted, the Supreme Court echoed this statement by defining "substantially
justified" as meaning the goverriment's position "must have a reasonable basis both in law and
fact" and that it was "justified to a degree that could satisfy a reasonable person" (Pierce v.
Underwood, 487 U.S. 552, 565 (1988), quoted in James M Ray, employed by Leo Journagan
Construction Co., Inc., 20 FMSHRC at 1014, 1021 (Sept. 1998). The EAJA defines the
"position of the agency" as "the position taken by the agency in the adversary adjudication [in
additioh to] the action . .. by the agency upon which the adversary adjudication is based"
(5 U.S.C. § 504(b)(l)(E)). Finally, an EAJA application may be granted where the government's
demand is "substantially in excess" of the relief awarded, that is where the demand is
unreasonable when compared with the relief awarded (5 U.S.C. § 504(a)(4)).

·MSHA'S POSITION PRIOR TO LITIGATION
In ruling on the merits of the application, the judge must keep in mind the essentials of
what was at issue in the underlying disputes. All of the proceedings were cases in which the
Secretary sought the assessment of monetary penalties for alleged vfolations of regulations
,·.
promulgated pursuant to·the Act.
The disputes between the parties commenced when citations' alleging the violations were
issued to GCI. ·Following the issuance of the citations, the Act required MSHA to propose
'
penalties for the alleged violations. The company and the individuals then contested all or part of
the allegations upon which the violations and proposed penalties were based. The proposed
assessments represented the ultimate position of the agency prior to litigation.
The penalties proposed by the Secretary were the result of her application of regulations
for determining the amount of ')-egular assessments"{30 C.F.R. § 100.3), "single penalty
assessments" (30 C.F.R. § 100.4), and "special assessments" (30 C.F.R. § 100.5). The
regulations codify MSHA' s implementation of the statutory Civil penalty criteria. There is no
indication in the record (and it is a voluminous record) that in computing the proposed civil
penalties MSHA did anything other than faithfully follow and ptoperly apply the regulations it
574

was compelled to follow. Indeed, it is worth noting that during the litigation stage of the
proceedings GCI stipulated to facts regarding its siZe and previous history that fully accorded
with those MSHA previously used in its calculations ( see 23 FMSHRC 1350, 1352).
r

It is the compat).y'.s position that prior to litigatioµ the Secretary did not properly consider
the effect of the propo~ed penalties on its ability to continue i.n business (Appl. 6-7), but the
record does not substantiate this claim. Throughout the course of the penalty proposal process,
the burden was on the company, not on the Secretary, to come forward with information that the
penalties proposed would adversely affect its ability to continue in business. The regulations
state that the Secretary must presume initially the operator's ability to continue in business will
not be affected by the penalties, but the operator may submit infonnation to the District Manager
concerning the business's financial status and if the information indicates that the penalty will
adversely affect the ability t~ ~pntinue in business, the penalty may be adjusted (30 C.F.R.
§ 100.3(h)). At the hearing, the company offered numerous financial docum~nts and detailed
testimony from its president, Craig 'ackspn, explaining both the documents and the company's
financial background. T~e record does not reveal that during the penalty_proposal process GCI
brought to the District Manager~s attention all of the financial documeqts and Jackson's
explanatio:ns: items I found compelling and persuasive during later litigation of the cases (see
23 FMSHRC at 1389-90).
Nor does it reveal that prior to litigation the agents cam~ forward with infonnatiop
regarding the effect of the proposeq penalties on their abilities to meet their financial obl~gations
or with information indicating that ·o ther civil penalty criteria.should be weighed in their favor.
Included in the Secretary's assessment proposal.s were her COJ)Sideration of the fact that the.
individuals had np prior histories o(violations and the presumption t~e proposed penalties would
not adversely eff~t the individuals' abilities to meet their finan~ial ob.ligations, presumptions the
individuals did not then challenge. · Tl~us, in assessing civil penalties against the individuals, the .
Secretary again properly followed her regulations (30 U.S.C. § l00.4(e)).
·
.I am also compelled to observe that the penalties proposed for GCI ranged from $55.00 to
$16,000.00 and those prop9sed for the agents ranged from $60,0 .00 to $3,000.00. The proposals
do not seem at all excessive when measured against the statutory limit of $50,000 per violation
(30 U.S.C. §§ 820(a): ~ZQ(c)).
FinaHy, there '.i s. no indication that the company or its. agents were singled out ~r that the
regulations were applied differently to them than they would have been to any other company or
to any other agents in similar circumstances. Althouih GCI ascribes an unlawful motive to the
Secretary's initi!ltion and adjudication ofthe.civii penalty proceeding~ (Appl. 1-2), there is not an_
iota of evidence to .substanti~te the charge, whicq _I ~ill not dignify by reciting. For these
reasons, I find that the actions of the agency in proposing the penalties were substantially
justified with r~gard to the cases against the company and its agents.

575

MSHA;S LITIGATION POSITION
i ;

The question now is whether the agency's actions were reasonable with regard to the
positions it took during the litigation process, and I conclude that they were. GCI sees them as
unreasonable because the Secretary di<i not officially compromise the proposed penalties.
However, the record confirms that by insisting upon the proposed penalties, th~ Secretary
proceeded both reasonably and strictty·according to law.
With respect to the ability to continue in business civil penalty criterion, just as during the
penalty proposal process, the burden was on the company, not on the Secretary, to come forward
with information that any pen.alties assessed would adversely affect its continuation~ The
presumption that unless the company proves otherwise the penalties are assumed to have no .
adverse effect is one of the oldest in mine safety law (see Buffalo Mining Cb., l .I BMA 226, 247248 (Sept. 1973)). When a civil penalty petition 1s filed and· Commission jurisdtetion attaches, it
becomes the duty of the judge to assess the 'penalties de 'novo based on 'the statutory penalty
criteria (Sellersburg Stone Co., 5 FMSHRC 287, 291-292 (Mar. 1983); ajf'd, 736 F.2d 1147,
1152 (71h dr. 1984)). The impact of the proposed penalties on the company's ability to
continue in' business is based on the evidence of record, and the ultimate amounts assessed by the
judge reflect the exercise of his or her discretion bound by all of the statutory penalty crlteria.

In the cases filed by the Secretary against the company, I reduced the penalties from those
proposed between 77.5 percent and.80.84 percent. Much of the reduction was based on my
conclusion that imposition of the proposed penalties would have 'an adverse effect on the
company. Although the company argues' the magnitude of the reduction indicates the
unreasonableness ofMSHA's demands, the test for determining wheth.er the proposed penalties
.
were substantial1y in ·exces·s of thc>'se awarded can not be based solely on mathematical ·
percentages. Rather, it must ap·pear "the agency's ... action did not represent a rea8onable effort
to match the penalty to the actual facts and circumstances of the case" (142 Con. Rec. 3242, 3244
(Mar. 29, 1996 (n. 4)).
·., .

.

(

·GCI would have me judge the reasonableness of the Secretary's litigation position by the
settlement negotiations and·discussions which involved the company and the Secretary. The
Secretary, too, would not object to using her settlement proposals as a basis for judging
reasonableness, provided, of course, they are the proposals as she recalls them. For e?'ample, she
states that on June 27, 2000, during the·litigation stage of the proceedings~ GCI provided some
information regarding its financial condition and, m·response, MSHA offered 'to "adjust the
penalty by 50 %"(See's Opposition to Appl. 15). She also states at one point she was "willing to
go as far as exploring a reduction of90%" (Id. 16). In the Secretary's view, the test for
determining whether MSHA's demand was substantially in excess of what I ultimately assessed
should be based on the difference between the 50 percent offer and my assessments (Id. 15). GCI
responds that the Secretary has the facts wrong, that she "never offered ·a ninety percent ·
... settlement .... [and] that the fifty percent . . . offer was discussed but was never
memorialized with a specific amount" (GCI's Response 2).
576

I decline the parties' invitation to delve into their settlement discussions. Aside from the
difficulty, indeed the nearly certain impossibility, of establishing the facts, it would be bad policy
to require a judge to use the parties' shifting negotiations as a bench mark for gauging the
reasonableness of the agency's' demands. In most instances a judge can not be expected to
reconstruct with certainty what may or may not have passed between the parties or to document
the myriad motives that may have spawned their settlement proposals. This is especially true
when, as here, definitive written proposals are lacking. 1 Rather than use the parties' settlement
discussions, I will judge the r~as.ona}>leness of the Secretary's litigation position by whether that
which was revealed at trial was known, or reasonably should have been known, by the Secretary.
As I have noted, in large measure, the civil penalties I assessed against GCI were based
on my conclusion the proposed penalties would adversely effect its ability to remain in business.
In tum, that conclusion was based upon the documentary evidence the company produced·as well
as on the credibility of the company president's explanations of the company's financial position
(see 23 FMSHRC 1289-1390). Even assuming that all of the documentary evidence presented at
trial was available to the Secretary during the course of litigation, it was not unreasonable for the
Secretary to maintain her insistence on the propo~ed penalties. Tht? Secretary did not have
Jackson's sworn explanations before her, nor did she have the prescience to anticipate my
credibility determinations. It would be irrational, unreasonable, and contrary to precedent to
expect the Secretary to obtain all of the evidence regarding the ability to continue in business
criterion that GCI introduced at trial, and it would transpose the positions ofjudge and litigant to
expect the Secretary to gauge the credibility of Jackson and to lower the proposed penalties so
they did not vary substantially from those I assessed. In the end, the Secretary simply followed
the law and required the company to prove its case, which is not a basis for awarding EAJA fees
and expenses.
Finally, in the cases the Secretary brought against the individuals, it also was not
unreasonable for the Secretary to adhere to the proposed penalties. Even though the individual
litigants had no histories of prior violations, that was but one criterion dictating what penalties
ultimately would be assessed. In every instance, the Secretary made reasonable arguments
regarding the existence of the violations, their gravity, and the knowledge of the charged
individuals. Although she was not successful in proving all of her allegations, none of her
positions was so far outside the bounds of reason and logic a reasonable person would have
found them without substance or a fair possibility of success. Nor was it unreasonable for the
Secretary to insist the individuals establish the size of any penalties assessed would affect their
abilities to meet their financial obligations. The law places the burden of proving that criterion
upon the individuals, as one of them ultimately did (see 22 FMSHRC at 1387 - 89).

1

I This is not to state that a judge in the exercise of his or her discretion is barred from considering an
undisputed, fully documented settlement proposal as an element of determining whether a demand is excessive. It is
simply to hold in this instance, where the alleged proposals and considerations are neither fully documented nor
undisputed, it would be unwise to do so.
577

·ORDER
For the reasons s~t forth aboye~ ·th<? applic~tion is DENIED and this ·pr()ceeding is

DISMISSED.

.

J,Jc~-...· ,'.dI 6 "'-1,1.v~
David F. Barbour
Chief Administrative Law Judge.
,.,

Distribution:

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·'

s_~san B. ~illia~~. E;~., Madelein~ T. Lee, Esq.~_u. s. Departme~t of Labor, Office of the
Solicitor; .525 South Griffin .Street, Suite 501,. Dallas, TX 75202
.
., ...
,

Elizabeth.M. Christian, Esq., 7229 Nohl Ranch,Roac,l, Fort Worth, TX 76133
·.

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-·

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!

dcp

·. '

·'

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·"

. ..

578

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

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
TRACY ALLEN SANSOUCIE,
Complainant

June 28, 2002
DISCRIMINATION PROCEEDING
Docket No. CENT 2001-228-DM
SCMD 01-14

v.
VESSELL MINERAL PRODUCTS,

Mine ID 23-00221

Respondent

Vessell Mineral Products

DECISION
'

Appearances: John Rainwater, Esq. and Kristi L. Floyd, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, for Petitioner;
Bradley S: Hiles, Esq. and Christopher T. Berg, Esq., Blackwell, Sanders, Peper,
Martin~ LLP., St. Louis, Missouri, for Respondent.
Before:

Judge Bulluck

This proceeding is before me on a Complaint oJ Discrimination filed by the Secretary of
Labor ("the Secretary") 9n behalf of Tracy Allen Sansoucie against Vessell Mineral Products
("Vessell"), ,under section 105(c)(2) ~f.the Federal Mine Safety and Health Act of 1977 ("the
Act"), 30 U.S.C.
§ 815(c)(2). 1 The complaint alleges that Sansoucie was unlawfully discharged from employment
in retaliation for having made safety complaints to the Department of Labor's Mine Safety and
Health Administration ("MSHA''). The Secretary seeks reinstatement of Sansoucie to his
former position with bac~ pay and interest, employment benefits and seniority, expungement of
Sansoucie's employment record of all references to the circumstances surrounding his discharge,
and payment of a $5,000.00 civil penalty.
1

Section 105(c)(2) provides, in pertinent part, that "Any miner . . . who belieyes that he has been
discharged, interfered with, or otherwise discrimµiated 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."
579

" .

A hearing was held in St. Louis, Missouri. The parties presented testimony and
documentary evidence, and stipulated that "To the best qfthe Secretary's knowledge at [that]
time, no official or employee of the Mine Safety and Health Administration called Vessell
Mineral Products to warn of the Part 50 audit" (Tr. 6). Post-hearing briefs were filed. For the
reasons set forth below, I find that Sansoucie failed to prove a violation of section 105(c) of the
Act, and dismiss his Complaint of Discrimination.

I. FACTUAL BACKGROUND

.. ' ~

Vessell Minerals is a plant that purifies lime for steel factories, employing 50 to 60
workers over three shifts in a 24-hour a day operation at its Bonne Terre, Missouri, quarry and
kiln facility (Tr. 12-13). Royce Vessell has owned the corporation since January 1997, Flora
Denton is vice-president and handles administrative functions such as personnel, accounting, and
safety training, and Brad Bayless is plant superintendent.
.·
Tracy Sansoucie first worked at Vessell in late 1998 in several areas, including special
products and kiln, conveyor and elevator maintenance (Tr. 14). Sansoucie, whom Vess~ll knew
to suffer from alcohol abuse resulting in legal problems, had very poor attendance and quit in
January2000, according to Vessell, in lieu ofbeing fired (Tr. 21-27, 145, 476-80, 723; ex. G-2).
Shortly thereafter, in mid-February 2000, Sansoucie seeking to be rehired, explained to Vessell
that he had recently remarried and needed a job, and represented that he had gotten treatment for
his alcoholism (Tr. 146, 181-82). According to Flora Denton, Sarisoucie was viewed as a
talented worker and, after consulting Royce Vessell and making it "very clear to [Sansoucie] that
his past practices would not be tolerated," she rehired him (Tr. 482).
Vessell permitted Sansoucie to work the night shift and plenty of overtime, arranged his
work schedule to accommodate incarceration on weekends and other legal obligations, and found
his overall performance, including attendance, to·be very good (Tr. 482-84). Sometime around
June of 2000, Sansoucie became a bum floor supervisor ofseven to ten employees, and reported
directly to Brad Bayless (Tr. 14-16). 2 The only instance of an attendance infraction noted by

2

The bum floor is the area from which the bum man (burner) controls the kiln. The supervisor
checks on operation of the kiln and the back end where rocks are fed into the kiln (Tr. 17).
Referring to Sansoucie's diagram at exhibit G-1, lime is processed as follows: starting at the
hopper, product travels up the conveyor into a rock box, then falls down a feed tube into the back
of the kiln (bigger rocks go to a raw crusher behind the cooler, into a shaker pan, then into·an
elevator); any spillage goes to a shaker pan and elevator that return it to the system; it takes
approximately four hours for product to reach the opposite end of the kiln at the cooler floor (the
cooler man empties the hoppers and ensures that product goes the right ~ay to the silos), located
beneath the kitn;· product is then separated into various hoppers, then ~_ to the silo~ (Tr. 18-21).

580

Vessell occurre4 during the week of November q, 2000, when Sansouc~e failed to report for two
shifts without calling in (Vessel considers three consecutive shifts a "voluntary quit");
Sanscoucie provided satisfact9ry explanation to Denton, however, and 'Yas permitted the entire
week off to tend to personal, family-related matters (Tr. 483-86; ex. R-16).
Sansoucie worked without incident until he was injured on the night of December 28,
2000. According to Sansoucie, sometime arom,id 9:30 or 10:00 p.m. when he noticed a hot spot
on the kiln, he directed the burners to pull (extinguish) the fire, put the kiln on auxiliary power,
then shut off the conveyor, eleyator and shaker pan at the control building near the pump house.
As he was leaving the area around 10:30 p.m., he slipped on a set of icy steps near the pump
house and fell into a concrete ditch (Tr. 30-36; ex. G-1). Sansoucie went to the bum floor and
a4vised maintenance supervisor Ed King of the accident, and called Brad Bayless at home (Tr.
37-40). ~ecause Royce Vessell and Flora Denton were on vacation, Bayless was in charge of the
mine. Sansoucie did not report to work the next day and, believing that he was simply sore from
bruising, did not seek medical attention until January 2, 2001, from his family physician, Dennis
Sumski (Tr. 40-41). Dr. Sumski referred Sansoucie to orthopedic surgeon William Harris, who
diagnosed Sansoucie' s injury as a first degree separation of his AC joint and a fracture of the
distal clavicle, and restricted him from working until January 18, 2001 (Tr. 43-45). Sansoucie
elected to have both doctor visits paid by his private insurance carrier, Blue Cross/Blue Shield,
rather than worker's compensation (Tr. 41 -42, 45-46).

In the meantime, upon return from vacation, Denton arranged.for Sansoucie to come to
the plant to discuss the accident and his medical status. It is unclear whether the meeting took
place on January 4th or 8th ("January meeting"), but the parties agree that Sansoucie, Denton,
Bayless and Royce Vessell were present, and that Sansoucie's accident was discussed (Tr. 5152). According to Denton, she brought to the meeting the forms necessary for reporting the
injury to Vessell, worker's compensation and MSHA, but Sansoucie declined to fill them out,
explaining that he did not wish to get Vessell i,n trouble with MSHA (Tr. 55, 100, 419-22).
There was some confusion, since Sansoucie claimed. that the a~cident occurred on the job, as to
why he had had his medical claims processed through his personal il!surance carrier. D~nton,
angry that Sansoucie had not followed company procedures by filling out Vessell' s.rep~rt of .
work-related injury and going to the company doctor, told Sansouie that he had given her eJ\OUgh
reason to fire him; Sansoucie responded that Denton shouid "do what'[she had] to do" (Tr.·5254, 423, 426-27). Tl;ie meeting ended with an agreement that Sansoucie get back to Vessell after
he had give~ the m~tter further .thought, as to how he wanted the claim to be handled (Tr. .53,
103-05, 426).
'
.
.
.

.

Instead of getting back to Vessell, however, Sansouie called MSHA's Rolla, Missouri
field office on January 9th and spoke with the office secretary, Steven Brill. Sansoucie
complained of improperly stored o~ygen and acetylene tanks at the plant, and he inquired as to
whether he, a supervisor, was obligated to fill out his own accident report (MSHA form 7000-1)
(Tr. 60-61, 348). As a result of Sansoucie's call, MSHA Inspector Donald Richards inspected
Vessell the same day and found the tanks at various locations properly stored (Tr. 366, 371 ; ex.

581

G-5). Inspector Richards was unaware of the complainant's identity and at no time mentioned
Sansoucie or any Vessell employee in connection with the hazard complaint (Tr. 367-71, 378,
388). Because the allegation of failure to report the accident did not involve an immediate safety
hazard, MSHA assigned Inspector Ed Jewellfo conduct a Part 50 audit later in the month (Tr.
350-51).
Sansoucie also called the Missouri Division of Workers' Compensation on January 16th
and talked to Art Hinshaw (Tr. 60). Hinshaw called Denton shortly thereafter and told her that ·
Sansoucie had accused Vessell of refusing to report .his workers' compensation claim, and
advised her, irrespective of any confusion as to where the accident occurred, to file the claim (Tr.
431 ). Denton and Royce Vessel then met with claims representative Mark Redick of Cincinnati
Insurance(Vessell's workers' compensation carrier) and, based on his advice (employee Charles·
Herbert was also discussed), faxed ·the workers' compensation claim to the insurance carrier and
mailed the Mine Accident, Injury and Illrtess Report (MSHA Form 7000-1) to MSHA on January
17th (Tr. 436-41; ex. R-3, R-4, G-6).
On January 19th, Deriton required Sanscoucie to be examined by the company doctor,
David Mullen of Bonne Terre Medical Associates, and Dr. Mullen referred him to Dr. Harris, the
same specialist to whom Dr. Sumski had referred Sansoucie (Tr. 46-47, 442). Denton was
flexible in fashioning a work assignment for Sansoucie that would meet his physical limitations
and transportation needs and, although Dr. Harris released him for 'light duty" on January 22nd,
Sanscoucie ultimately returned to a desk job in Vessel's ·office ·on January 24th (Tr. 56, 95-97,
131, 139, 450-51, 459-60).
Regarding MSHA's Part 50 audit ofVessell's injury reporting and filing over the prior
three year period, Inspector Jewell, along with MSHA trainee Steve Thompson, interviewed
Sanscoucie at his home on January 22nd, and inspected the plant's paperwork from January 23rd
through 25th. In order to keep Vessell from learning that a coin.plaint had been made, Inspector
Jewell deliberately misled Denton as to the reason for the audit by telling her that Vessell had
been randomly·selected (Tr. 496-97; ex. R-27, p. 33-40). Sansoucie's name '<lid not' come up
during· the audit (Tr. 497). Four citations were issued as a result of the audit, one of which
involved late reporting of Sansoucie's accident by one day (Ex. G-8; R-27, p. 68, 71-72).
.

.

Sansoucie's attendance on light duty during late January was extremely irregular and
abbreviated when he did report.to work.' Denton, having received authorization from Royce
Vessell to fire Sansoucie (and Charles Herbert), went to Sansoucie's home accompariied by Curt
Nickelson on February 2, 2001, and discharged Sansoucie from employment (Tr. 68; ex. R-25, p.
341).

582

II. FINDING~ OF FACT AND CONCLUSIONS OF LAW
In order to establish a prima facie case of discrimination under section 105(c) of the Act,3
a complaining miner bears the burden of establishing that 1);he engaged in protected aytivjty and
2) the adverse action of which he complained was motivated in any part by the protected activity.
Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (April 1998); Secretary. ofLabor on
behalfofRobinette v. United Castle Coal Co .. 3 FMSHRC 803 (April 1981 ); Secretary ofLabor
on behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786(October1980), rev'd on other
grounds sub nom. Consolidation Coal.Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981).
The operator m~y rebut the prima facie case by showing that no protected activity .
occurred pr that the adverse actiot?- was in no part motivated by the protected activity. Pasula, 2
FMSHRC 2799-800. If the ~perator cannot rebut the prima facie 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 (4'h Cir. 1987).
.
Sansoucie has established that he engaged in protected activity by complaining to MSHA
about storage of oxygen and acetylene tanks, and by reporting his accident of December 28,
2000. He has failed to show, however, that Vessel was .motivated in any part by his protected
activity.
In determining whether a niine operator's adverse action was motivated by the miner's
protected activity, the judge must bear in mind that "direct evidence of motivation is rarely
encountered; more typically, the only available evidence is indirect." Secretary ofLabor on
behalfof Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510(November1981), rev'd on
other grounds sub nom. Donovan.v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). "Intent
is subjective and in many cases the di~~rimination can b~ .proven only by the use of
circumstantial evi.dence." lt;f.. (Citati9n omitted). Jn Chacon, the Commission listed some of the
more common circumstantial indicia of discriminato.r y intent: (I) knowledge of the protected
activity; (2) ho.stility or animus towards the protected activity; (3) coincidence in time between

3

Section lOS(c)(l) of the Act 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 rights afforded by this Act."
583

the protected activity and the adv6r5e action; and (4) disparate treatin'e nt of the complainant. See
also Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 530 (April 1991).
The Secretary identifies Sansoucie's statement at the January meeting-- that he did not
want fo get Vessell in trouble with MSHA-- as protected activity (Tr. 55, 422). I do not find that
Sansoucie's reference to MSHA constituted activity that is protected by the Act but, in the ·
overall context of the meeting, appears to be an attempt by Sansoucie to deflect attention from
his own behavior and diffuse Denton's anger. Denton testified that her anger at Sansoucie for
failing to follow well-known company procedures of filling out an internal accident report and
seeking medical attention through Bonne Terre Medical Associates precipitated her comment to
Sansoucie about firing him (Tr. 420-21, 423). She testified that conflicting versions of his
accident by Sansoucie, coupled with his election to use his personal medical insurance rather
than Vessel's insurance carrier, made her suspicious that the accident had not occurred ·at work
(Tr. 429). In any case, she testified, she urged Sansoucie to assist in filling out the workers'
compensation paperwork and he refused. Sansoucie, on the other hand, testified that he had not
felt that his injuries were serious enough to report at the time of the accident (Tr. 98). He
asserted that, because Denton had told him that she would like to fire him, he told Vessell that he
did not believe that the accident should be treated as a workers' compensation claim (Tr. 99).
Sansoucie, himself, puts Denton's comment in the context of frustration, rather than an actual
intention to fire him, by testifying that "she was aggravated, yes. Because I had -- didn't follow - they said I didn't follow procedures. Not filling out an accident report·at the time of the
accident" (Tr. 52, 180-82; see 710). Sansoucie also confirmed that 'Denton was angry that he had
sought medical attention from his family physician, rather than Dr. Mullen (Tr. 52). I do not find
credible any suggestion by Sansoucie that he feared losing his job. Denton's anger, then, was
clearly rooted in Sansoucie's failure to follow company procedures, irrespective of any doubt
about the circumstances surrounding the accident, and requesting that Sansoucie fill out a
workers' compensation claim was entirely reasonable. Sansoucie's explanation for his lack of
cooperation, "I had never been through anything like this before. I didn't know if I should do it
or shouldn't do it. I don't know if it would hurt th.e company or it would help the company,"
puts his motivation in question, rather than Dentori's, especially since he was instructed on-thespot as to the proper procedures for work-related injuries. · Sanso~cie also stated that he was the
first to mention filing ofMSHA's mine· accident report (Tr; 179, 183-84). His concern for the
company at this point, however, is at leasfsuspicious, viewed in the overall context of his refusal
to cooperate. It bears noting that Sansoucie's taunting of Denton to "do ... what she needed to
do," in response to mention of firing him, was inappropriate for someone desirous of maintaining
employment, and only served to fuel the antagonism between them (Tr. 53). This meeting is a
benchmark in determining Denton's motivation for ultimately terminating Sansoucie, in that it is
the first indication that Denton was very angry about Sansoucie's handling ofhis accident, and it
establishes the reason for her anger as unrelated to Sansoucie's.protected activity•.'w hichhad not
yet occurred.
While it is undisputed that Sansoucie's call to Steve Brill on January 9th is protected
activity, there is no evidence that Royce Vessell or Flora Denton knew that the call had been

584

made or what had been discussed. The Secretary contends that Don Richard's hazard inspection
of the oxygen and acetylene tanks so closely followed the January meeting as to make Vessell
suspicious that it was precipitated by Sansoucie. The proximity in time standing alone, however,
does not establish Vessell's knowledge. To the contrary, the evidence indicates that no one from
MSHA disclosed Sansoucie's identity to anyone at Vessell, and that Denton's guesses to
Inspector Richards as to the complainant's identity did not include mention of Sansoucie (Tr.
367-71, 378-81, 491-93, 694-95). Indeed, Sansoucie conceded that he d~d not believe that Vessel
had knowledge of that complaint or that it played any role whatso~ver in his discharge (Tr. 110-

11 ).
The Secretary also attempts to establish Vessell's knowledge of Sansoucie's protected
activity through testimony of Charles Herbert, that he .o bserved Denton being "tipped off' about
the impending Part 50 audit. Herl?ert was formerly laborer at Vessell _from September 2000
until he was terminated on February 2, 2001, the same day as Sansoqcie, also for unexcused
absences (Tr. 198-99). Herbert had been injured on the job on December 11, 2000, treated by Dr.
Mullen, and assigned to full-time light duty in the main office, Mondays through Fridays, 6:00
a.m. to 2:00 p.m. (Tr. 189-94). At hearing, Herbert testified that Vessell's main office is small,
containing three desks pushed next to each other (Tr. 194~95). According to Herbert, one
morning when office worker Robin Parker and Flora Denton were also on duty, he overheard a
telephont'. conversation during which Denton "said som~tbing about an MSHA audit and then she
decided to put the--who~ver she was talking to on hold and go back into the conference room and
pick the phone up . . .. sµe met Royce in the hallway and told him that she had somebody on line
about an MSHA audit and that they needed to do somethjng ab~ut Tracy Sansoucie, that he had
been becoll,ling a nuisance and things were getting out of hand around there" {Tr. 195-9.6, 208).
Her1Jert could not specify the date of the alleged 9onv.ersation, the time it OCCtfrred, or the identity
of the caller, although on cross-examination he narrowed down the date to January 22nd, .
sometime a~er fO:OO a.m. {Tr. 199-200, 203, 211-27). On cross, his testimony was_shown to
conflict with his statement to MSHA Investigator Ron Mesa, that Denton told Royce Vessell that
"Tracy and his injury and myself and another guy, Mike Pierce I think his name was, had gotten
injured, ar:td it was just everything was getting out of hand, too many people getting hurt" {Tr..
228-31 ). Finally, Herbert claimed .that he told Sansoucie about the telephone call at Sansoucie's
house, before he was fired (Tr. 232). Lack of specificity in Herbert's rendition of events and
gross inconsistencies in his testimony c~st a broad shadow over his credibiliy, and it is
abundantly clear that he has an axe to grind with Vessell for firing him (Tr. 233-36). Flora
Denton testified that she had conducted eight hours of safety training for newly hired emp)oyees
on January 22nd, and denied that the ind.dent ever took place (Tr. 499-507; ex. R-7),.
Furthermore, Robin Parker testified credibly that she worked alone on January 22nd -- neither
Denton nor Herbert reported to the office that day --.and that the telephone conversation alleged
by Herbert never happened {Tr. 611-14; ex. R-9, R-22). Consequently, based on the parti~s·
stipulatio.n that no. 9ne from MSHA is known to have alerted Vessell to the impending audit, and
substantial lack of credibility on the part of Charles Herbert, it is my finding that the incident
never occurred. I further find that the inspectors were careful to characteriz~ the surprise
inspection as a "random audit" to protect the identity of the complainant, that they never

a

585

identified Sansoucie, and that no one at Vessell behaved as if they susp~ted Sansoucie's
involvement (Tr. 691, 695).
The Secretary presented the testimony of Jason Cowsert to establish Dentoil's knowledge.
Cowsert, a Vessell employee since July 1999, was a burn man, working the same s~ift as ·
Sansoucie at the time of Sansoucie's accident (Tr. 253). Cowsert testified that, around the end of
January 2001, he talked to Denton about moving him off the burn floor to maintenarice. They
discussed cooler man Darren Hooss replacing Cowsert, and Denton estimated that ft would take
her two weeks to arrange for Hooss to get up to the burn floor (Tr. 255-56, 283). Cowsert
testified that he explained to Denton that he wanted a transfer because "just Royce was up there,
and he's, you know, I can't stand working with him all the time, and then plus, it just [sic] I was
tired of the Ii-hour shifts, you know. I wanted something with 8-hour shift, and plus sometimes
that shift will' swing, and I didn't want to go on swing shift. I wanted to stay on a steady shift"
(Tr. 257-58). Cowsert asserted that rumors had circulated around ·the plant that Sansoucie had
been hurt and was going to sue the company, and .that Denton stated during this meeting that
"Tracy's [f_cking] us right now, but he's going to be the one getting [f_cked] in the long run"
(Tr. 259, 261, 263-64, 328-29). According to Cowsert, he told Sansoucie about Denton's
comment at some point when Sansoucie was on light duty in the office (Tr. 260). Cowsert
reasoned that the discussion with Denton would have bad to'have occurred in late Janucl.ry
hecause, according to burn log entries, he trained Hooss to burn on February 7th and 19th -- two
weeks later, as Denton had promised (Tr: 285, 294, 305; ex. 13). On cross-examination, Cowsert
acknowledged that Denton had been referring to ''Tracy's lawsuit" when she talked about Tracy
"f_cking" Vessell (Tr. 271-74). Denton acknowledged the conversation with Cowsert and
readily admitted having made the statement, but attested to a completely different context and .
tinie frame. She testified that the discussion took place on March 13th, the day aftednspector ·
Mesa had hand-delivered to her Tracy Sansoucie's discrimination complaint, and because, in her
mind, this was tantamount to being sued, she ranted to Cowsert about ''Tracy's lawsuit" the
following day (Tr. 508-12). She.testified that the week before, In~pector Mesa had delivered
Charles's Herbert' s discrimination complaint to her, and she was;very angry when presented with
Sansoucie's, _especially·upon reading 'the false allegations (Tr-. 509). ·viewing all the evidence,
the only reasonaole context in which Denton could have referenced ''Tracy's lawsuit" was
Sansoucie's discrimination ·complaint. The burn log does ~ot support Cowsert's recoilection that
the discussion took place in January and Hooss was trained on two· dates in early February,' .
because it is highly implausible that a burner could have been trained over two partial workdays.
Cowsert, by his own testimony that "everybody" assumed that Sansoucie had made the complaint
that prompted the Part 50 audit "just because he had got hurt, and he had been fired" places'the
rumors in the post-discharge time frame. The record indicates that; in mid-February, well after
Sansoucie's discharge, Royce Vessell replaced Brad Bayless by assumi.ng total supervision, of the
burn plant and retraining the burners, in response to losing a major customer and product quality
issues (Tr. 514-18, 664-70, 698; ex. R-14, R-15). Vessell witnesses Ed King, Brett Gogble,
Randy Nickelson and Royce Vessell all testified that, after taking over control of the butn plant, ·
Royce Vessell trained all burners, including Hooss (Tr. 623-26, 642-44, 699-704). The burn log
establishes that Hooss became "Burnmaster" on April 11 'h and, therefore supports Vessel• s

586

position that he was trained between March 19th and mid-April (Tr. 519-21, 638-39, 669). I
credit Denton's rendition of events, especially because, in his March l l 1h interview with Ron
Mesa, Sansoucie never mentioned Denton's comment to Cowsert. Sansoucie claims that "he had
forgot about having that conversation with Jason, and it really didn't mean nothing" (Tr. 168-70; '
ex. R~19). A more plausible explanation for San~oucie's memory lapse .i s that the MSHA
interview preceded the penton-Cowsert conversation. Therefore, I .find that Flora Denton's
declaration of war on Sansoucie occurred in March, on the heels of notice of Sansoucie' s
discrimination complaint, Clearly after Sansoucie had been discharged.
The record clearly indicates that Flora Denton is assertive, outspoken and, by her own
admission, uses profanity: In retrospect, she would have been well-advised not to have spoken
candidly to Cowsert about Sansoucie's lawsuit, but considering the magnitude of her outrage at
that juncture, it is hard to conceive of her not speaking her mind if she thought that Sansoucie
had called. MSHA. T~e Secret~ points to Denton's animus toward MSHA as evidence of her
knowledge of Sansoucie's protected activity. All accounts ofDenton's contempt for MSHA,
however, involved general agitation at being '~icked on" by the inspectors, without any specific
link to Sans.oucie or any other miner.
Finally, the Secretary's reliance on Vessell's toleration of Sansoucie's prior attendance
deficiencies, as indication that its legitimate reason for firing Sansoucie is pretextual, is
misplaced. While Vessell admits to poor attendance on the part of Sansoucie during his first year
of employment, the company contends that Sansoucie would have been fired had he not quit in
January 2000, and that when he was rehired that February, Vessell made it clear that regular
attendance was expected of him.. Vessell considered Sansoucie's work and attendance to be
satisfactory until his December 2000 accident. Vessell distinguishes between Sansoucie's prior
attendan¢e record and· the period that he was assigned light duty. Flora Denton described ,
Vessel's light duty/return to work program as a win-win situation that redefines job duties to fit
injured workers' medical restriction~, employing them full-time at 100% of their regular pay
(workers' compensation pays 66%), while the company benefits by keeping down its insurance
premiums and lost time days (Tr. 424-26). Likewise, Royce Vessell testified that the light duty
program returns the employee to his permanent job as quickly as possible and helps the workers'
compensation rate for the company (Tr. ·692-94). ,He explained that, by blatantly missing time
without doctor's excuses, and making statements like "fire me," Sansoucie and Herbert had set a
bad example for other workers and undermined the light duty program (Tr. 696-97). Moreover,
he testified that, because of the program's importance to the company, he w~uld have fired
Sansoucie even if he had known that Sansoucie had complained to MSHA (Tr. 697).
It is clear that Flora Denton was furious "':'.,ith Sansoucie, ~s early as the January meeting
when she told him that she would like to fire hirri for failure to follow Vessell's work-related
injury procedures (Tr. 177). It is also evident that Denton's anger and frustration escalated when
she learned that Sansoucie had contacted the Missouri Department of Workers' Compensation
himself, and accused Vessell of refusing to report his claim. Despite the difficulties in dealing
with Sansoucie, however, Denton afforded him the utmost flexibility in selecting his light duty

587

assignment. There is no dispute that Sansoucie's attendance while on light duty was poor-characterized .by failures to report to duty, work full days,' call-it;i absences, obtain medical
excuses, and notify Denton o( early departures. Moreover, Denton's claim that Sansoucie invited
her to fire -him on three occasions between the Januar}1 meeting and February 1st, the day before
his discharge, was essentially unchallenged (Tr. 426, 461-62, 466). Denton testified credibly that
on the second occasion she had cautioned Sansoucie that his job was in jeop(}rdy and that if he
continued to tell her that, she was "going to go through with it," and the third time, she knew that
she needed to talk to Royce Vessell because the company had a serious problem (Tr. 466-67,
470-71). When it became clear to Denton and Royce Vessell that Sancoucie had no intention of
cooperating with the light duty program, Denton fired him (471-72). There is no indication from
the record that Denton ·or Royce Vessel knew of Sansoucie's protected activity. They treated him
the same as similarly situated employee Charles Herbert~ also a flagrant violator of the light duty
program, but not a participant in protected activity. Furthennore, ·despite Sansoucie's ·testimony
that Deriton fired him without an explanation, I am persuaded that she told Sansoucie that he had
been missil)g too many days on light duty (Tr. 474~75; '15J-56; ex. R-18).
Based on the record in its entirety, I conclude that Sansoucie has failed to establish a
primafacie case. Assuming, arguendo, that Vessel knew of Sansoucie' s complaints to MSHA,
Vessell has proven that,, based on Sansoucie's flagrant lack ofcompliance with its light duty
program, it would have terminated him for his unprotected activity alone.
ORQER .
Accordingly, inasmuch as the Secretary has failed to establish, by a preponderance of the
evidence, that Sansoucie was discharged for engaging in activity protected under
Act." it is
ORDERED that the Complaint of Discrimination of Tracy Allen Sansoucie against Vessell
Mineral Products, under section IOS(c) of the Act, is DISMISSED.

the

(J ./. u.4.,,Ql>~
~ueline R. Bulluck

·

Administrative Law Judge

Distribution: (Certified Mail)
John Rainwater, Esq. and Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999. Broaciway,
Suite. 1600,·P.O. Box 46550,
.
. Denver; CO 80201-6550
Christopher
. . T. B~rg, Esq. and Br~dley S. Hiles, Esq., Blackwell, Sanders, Peper, Martin, LLP,
720 Olive Street, Suite 2400, St: Louis, MO 63101
~

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yi

588

ADMINISTRATIVE LAW JUDGE ORDERS

.;·

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

..

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OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALt..8'CHURCH, VIRGINIA 22041

May 29, 2002
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR.
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
on behalf of Jimmy Caudill and
and Jerry Michael Caudill,
Complainants

Docket No. KENT 2002-114-D
BARB CD 2001-11

:v.
No. 75 .

LEECO, INC., and BLUE DIAMOND
COAL COMPANY,
Respondents

ORDER DENYING RESPONDENTS' MOTION FOR SUMMARY DECISION
This case is before me on a complaint of discrimination filed by the Secretary of Labor on
behalf of Jimmy Caudill and Jerry Michael Caudill pursuant to Sedion 105(c} of the Federal
Mine Safety and Health Act of 1977 ("Mine Act" or "Act"}, 30 U.S.C. § 815(c}. Respondents
have moved for summary decision, advancing several arguments. The most significant issue
raised by the motion is whether a miner, or applicant for employment as a miner, may assert a
claim of discrimination based upon the protected activity of a third party, in this case the miner's
father. For the reasons set forth below, I hold that the allegation that Jimmy Caudill suffered ·
adverse action as a result of protected activity by his father, Jerry Caudill, states a cause of action
under section 105(c} of the Act. I also reject the other arguments raised by Respondents and
deny the motion for summary decision.

For·purposes of this motion, the facts alleged in the complaint, as clarified and expanded
by the motion's·papers, are asswned to be accurate. On or about February 15, 2001", Jimmy
Caudill applied for a position as a roof-bolter at a mine operated by Respondent, Leeco, Inc. He
was told to complete experienced miner training and report for duty at 2: 15 p.m. He attended the·
training at the mine site and was subsequently p'a id for the time he spent in training. When he
reported for work at about 2:10 p.m., however, he was fold that another miner had decided to
come back to work, and that he would not be working for Leeco. The miner that performed the
roof bolting duties that day, however, was a current employee who had been assigned to maintain
conveyor belts, not a miner returning to employment with Leeco. On February 26, 2001, Caudill
filed a discrimination complaint with MSHA. alleging that he "was fired because of [his] family
history of Safety and Discrimination Complaints." The Secretary maintains that shortly before
589

Jimmy Caudill reported for work, another miner discussed·his family's history of making safety
complaints with the mine superintendent, and it was that information that prompted Leeco to
refuse to allow him to start work.
The "family history" Jimmy Caudill was referring to was that of his father, Jerry Michael
Caudill. Jerry Caudill had worked·as a miner for Leeco in the past, during which time he actively
asserted rights under the Act. He became the first miners' representative at Leeco and_made
safety complaints to MSHA. He was discharged from Leeco in 1997, and initiated a
discrimination action against Leeco, alleging that his discharge was motivated by his protected
activity. An application for temporary reinstatement was successfully prosecuted on his behalf
by the Secretary, and a subsequent discrimination complaint pursuant to section 105(c)(2) was
settled. Jerry Caudill last worked for Leeco in 1997, and has not sought employment with, or
worked for, either Respondent since that time. Jerry Caudill continued his activism for miners'
rights after leaving Leeco. A subsequent termination from another mine operator in the area was
also the subject of a discrimination complaint. At the time of the alleged discrimination against
Jimmy Caudill, Jerry Caudill was employed as a miner with Gin Coal, which is not affiliated
with either Respondent.
Jimmy Caudill does not clairil to have filed safety complaints or engaged in any other
activity protected by the Act, prior to submitting his complaint to MSHA. Jerry Caudill did not
file a complaint of discrimination with MSHA regarding the allegedly discriminatory action .
against his son.
The discrimination complaint .in this case was fil~ on behalf of both Jimmy Caudill and
Jerry Caudill and names as Respondents Leeco, Inc., and Blue Diamond Coal Company, Leeco's
corporate affiliate currently operating the subject m~ne. Respondents answered the complaint
and moved for summary decision pursuant to Commission Procedural Ru.le 67, 29 C.F.R. §
2700.67.
The Motion
Respondents advance several arguments in support of their contention that, as a matter of
law, a cause of action cannot be maintained on behalf of either miner under section 105(c) of the
Act. Respondents contend that: 1) Jimmy Caudill did not engage in protected activity and canpot
base his claim on the protected activity of a third party; 2) any protected activity was too remote
in time .from the allegedly discriminatory act to support causation; 3) Jerry Caudill's failure to
file a complaint of discrimination with MSHA is fatal to his claim; 4) Jerry Caudill is not a miner
as to Respondents; and 5) Jerry Caudill suffered no adverse.action.
Jimmy Ca~dill 's Reliance upon Jerry Caudill's Protected Activity
The central issue raised by the motion is whether a discrimination action can be
maintained
behalf of Jimmy Caudill based upon his father's protected activity. Section

on

590

I 05(c )(1) of the Act provides, in pertinent part: .
No person shall discharge or in any manner discriminate or cause to be
discharged or cause discrimination against or otherwise interfere with the exercise
of the statutory rights of any miner, representative of miners or applicant for
employment in any c~al or other mine subject to this Act because such miner,
representative of miners or applicant for employment has filed or made a
complaint under or rela.ted to this Act, ... or because such miner, representative
of miners or applicant for employment has instituted or caused to be instituted any
proceeding l!llder or relateq to this Act or has testified or is about to testify in any
such proceeding, or because of the exercise by such miner, representative of
miners or applicant for employment on behalf of himself or others of any statutory
right afforded by this Act.
....
Respondents argue that the plain meaning of the statute, principally the phrase "because
such miner," requires that the protected activity prompting the unlawful motive must be that of
the miner complaini.n g of adverse actio11, not that of a third party. They rely on Fogleman v.
Mercy Hospital. Inc., ~83 F.3d 561 {3d Cir. 2002), w:~ere the court rejected a claim of
discrimination under similar provisions of the Americans with Disabilitie~ Act ("ADA") and the
Age Discrimination in Employment Act ("ADEA'') brought by a soq, claiming unlawful
retaliation for his father's protected activity.
'

The Secretary counters that the Commission and courts have rejected strict literal
interpretations of section 105(c){l).tl~at are inconsistent with the legislation's purpose, and that
refusing to allow Jimmy Caudill' s claim of retaliation based upon protected activity by his father
would nullify some of the most important protections intended by Congress. The Secretary also
points out that similar anti-discrimination provisions in Title VII, the Equal Pay Act and the
Occupational Safety and Health Act, as well as the National Labor Relations Act, ~ave been
interpreted so as to allow a cause of action for retaliation based upon the protected activity of a
·
·
third party.
Discussion
As the Commissfr~n stated in Thunder Basin Coal Co., 18 _F MSHRC 582, 584 (April
1996):
The first inquiry in statutory construction is "whether Congress has
~irectly spoken to the precise question at issue." Chevron [US.A. v. Natural
Resources Defense Council, Inc. , 467 U.S. 837, 842 (1984)]. If a statute is clear
and unambiguous, effect must be given to its language. ld..at 842-43. Deference
to an agency's interpretation of the statute may not be applied "to alter the clearly
expressed intent of Congress." K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291
( 1988) (citations omitted). Traditional tools of construction, including

examination of a statute's text and legislative history, may be employed to
determine whether "Congress bad an intention on the precise question at issue,"
which must be given effect. Coal Employment Project v. Dole, 889 F.2d 1127,
1131 (D.C.Cir. 1989) (citations omitted) . .,,In ascertaining the plain meaning of
the statute, the court must look to the particular statutory language at issue, as well
as the language and design of the statute as a whole." K Mart, 486 U.S. at 29i.
(citations omitted) . . ..
If the statute is found to be.ambiguous or silent on the specific issue in dispute "[a] court
must defer to the agency's interpretation so long as it is reasonable, consistent with the statutory
purpose, and not in conflict with the statute's plain language.... " Coal Employmen't Project,
supra, 889 F.2d at 1131. Under the statutory scheme of the Mine Act, the Commission is
required to accord deference' to the Secretary's reasonable interpretations of the law. RAG
Cumberland Res. LP v. FMSHRC, 272 F.3d 590, 595 (D.C.Cir. 2002).
Ambiguity
Neither the Secretary, nor Respondents, have cited any provision in the statute or the
legislative history revealing Congressional intent with respect to the specific issue presented
here, whether to permit or preclude a cause of action like that urged on behalf of Jimmy Caudill.
It is doubtful that Congress considered the question of such claims. While, as Respondent
argues, a strictly literal reading of section 105(c)(l) would 'suggest that a miner complaining of
discrimination must, himself, have engaged in protected activity, the determination of whether a
particular statutory provision is ambiguous entails more than an examination of the i;pecific
statutory.language. As noted above, the design of the statute as a whole and the available
legislative history should also be consulted to determine whether Congress had an intention on
the precise issue presented.
·
The primary purpose of the.Mine Act was to protect mining's most valuable resource the miner, and Congress intended the Act to be .liberally construed. See, e.i.. Sec '.Y ofLabor
v.
.
Cannelton Indus., Inc., 867 F.2d 1423, 1437 (D.C.Cir. 1989) (citing cases). It is also clear that
the Act's anti-discrimination provisions were deemed critical to the enforcement scheme and that
Congress specifically intended that section IOS(c)(l) be "construed expansively to assure that
miners will not be inhibited in any way from exercising any rights afforded by the legislation."
Donovan v. Stafford Construction Co., 732 F.2d 954, 960 {D.C.Cir. l9S4) (quoting legislative
history); see also, e.g.. Moses v. Whitley Development Corp., 4 FMSHRC 1475, 1480 (Aug.
1982), aff'd. 770 F.2d 168 (61h Cir. 19,85) (table).

In Moses, the Commission held that "discrimination based upon a suspicion or belief that
a miner has engaged in protected activity, even though, in fact, he has not, is proscribed by
section 105(c)(l)." 4 FMSHRC at 1480. The Commission explained that:
Section 105(c )( 1) prohibits discharge, discrimination or interference "because" of
"a miner's exercise·of any statutory right afforded by [the] Act." while a literal
592

intetpretation of this provision might require the actual or attempted exercise of a
right before the protecti_o n of section 105 comes into play, we reject such a
reading for two reasons. First, such an interpretation would frustrate
Congressional intent that miners fully exercise their rights as participants in the
enforcement of the MineAct. Second, that approach would also wrongly fail to
redress or deter situations where an operator, with the intent of frustrating
protected activity, takes adverse action against an innocent miner.

Id.
The court, in Donovan, also rejected a literal interpretation of section 105(c)(l) which
would have been inconsistent with the expressed congressional intent:
Although a litera,_1 reading of the statute might indicate that.a discharge is illegal
only if the employee has testified or is about to testify against the employer,. we
decline to adopt such a hypertechnical .cm.d purpose-:-defeating intetpretation.
Instead, we hold that an employee's refusal· to agree to provide MSHA
investigators with testimony that the employee in good faith believes to be false is
protected activity, regardless of whether the employee eventually 11appens to be
asked for a statement.

73.2 F.2d at .959.
Considering the sta~utory language and the intent of Co11.gress as to the Mine Act and.the
specific provision at issue, I find, secµon 105(c )(1) ambigµous when. appli.e d to the claim
asserted on.behalf of Jitnmy -Cal,ldill.
Deference to Secretary's Interpretation
The Commission is "required to accord deference to the Secretary's reasonable
interpretations of the language of the Mine Act." RAG Cumberland, supra, 272 F.3d at 596. It
appe~s beyond dispute that construing the statutory language as permitting a discrimination
action by Jimmy Caudill, based upon his father's protected activity, would be reas~nable and far
more consistent.with the statute's pu,rpose than the contrary interpretation urged by Respondents.
Even in Fogleman, the case relied on by Respondents, it was recognized that interpreting the.
similar anti-discrimination provisions of the ADA and the ADEA so as to preclude such a cause
of action would be ''at odds with the policies animating those provisions." 283 F.3d at 568. As
the court noted:
There. can -be no doubt that an employer who retaliates against the friends and:.
relatives of employees who initiate anti-discrimination proceedings will deter
employees from exercising their protected rights. Indeed, as the Seventh Circuit
sagely observed, "To retaliate against a man by hurting a member of his family is
an ancient method of revenge, and is not unknown in the field of labor relations."

593

NLRB v. Advertisers Mfg. Co., 823 F.2d 1086; 1088 (7th Cir. 1987). Allowing

employers to retaliate via friends and family, therefore, would appear to be in ·
significant tension with the overall purpose of the anti-retaliation provisions,
which are intended to promote the reporting, investigation; and correction of
discriminatory conduct in the workplace. See DeMedina [ v. Reinhardt,. 444
F.Supp. 573, 580 (D.D.C. 1978)] (concluding that "tolerance of third-party
reprisals would, no less than the tolerance of direct reprisals, deter persons from
exercising their rights under Title VII").
Id. at 568-69.

Several comparable statutory provisions have also been held to allow such causes of
action. See EEOC v. Ohio Edi5on Co., TF.3d 541, 543-44, n.l (6th Cir. 1993) (Title VII, 42
U.S.C. § 2000e-3(a)); Brock v. Georgia Southwestern College, 765 F.2d 1026 (11th Cir. 1985)
(Equal Pay Act, 29 U.S.C. § 215(a)(3)); Reich v. Cambridgeport Air Systems, Inc., 26 F.3d 1187
(1st Cir. 1994) (Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(c)). 1
Conclusion
Respondents have submitted a well-written and persuasive argwnent that the plain
meaning of the statute precludes Jimmy Caudill' s cause of action. While they concede, as did the
court in Fogleman, that there is no consensus in the cases deciding the issue under other statutes,
they have attempted to distinguish, with some success, the cases adverse to their position.
Ultimately, however, I find that the absence of statutory language or legislative history on the
precise issue presented, and the clearly expressed intent of Congress for a broad interpretation of
the anti-discrimination provision, cannot support a conclusion that the statutory language
constitutes a clear an unambiguous Congressional intent to preclude such causes of action. 2

The Secretary also relies upon cases decided under the NLRA, although, as rioted
in Fogleman, 283 F.3d at 570-71, that statute contains another provision, 29 U.S.C: § 158(a)(l),
that has been viewed by the courts as more expansive than provisions more comparable to the
Mine Act's anti-discrimination language.
2

While not essential to the analysis, it appears that there are more compelling
reasons to allow such a cause of action under the Mine Act than under more broadly applicable
employment statutes. Mining typically takes place in a rural environment, where employment
opportunities are less diverse and employment of multiple family members and relatives·as
miners may not be unusual. The interpretation urged by Respondents would leave the family
members of a miner who engaged in protected activity without recourse under the Mine Act and
subject to blatantly retaliatory conduct. It would be hard to imagine a result more repugnant to
the statutory scheme.
594

The reasons expressed by the Comlilission for rejecting a literal reading of§ 105{c){l) in
Moses.., a~e equally applicable here - a contrary interpretation would "frustrate the enforcement of
the Miiw,Act .... [and] woµld also wrongly fail to addr~ss .or deter situations where an operator,
with the intent of fhistrating protected activity, tak:~s adverse action against an innocent miner."
4 FMSHRC at 1480.
.
.
For the above-stated reasons, I find that the allegations made by the Secretary on behalf of
Jimmy Caudill state a claim upon which relief can be granted under§ 105(c){l).

Jerry Caudill's Claim
Respondents advance sev,eral arguments in opposition to the claim asserted on behalf of
Jerry Caudill: that he failed to submit a claim of discrimination to MSHA, that he is not a miner
as to them, and that he suffered no adverse action.
Section 105{c)(2) of the Act specifies, in pertinent part:
Any miner * * * who believes that he has been discharged,
interfered with, or otherwise discriminated .agai.n st 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...
The filing of an administrative complaint of discrimination with MSHA within the time
frame specified in section 105(c)(2) is not jurisdictional. Hollis v. Consolidation Coal Co.,
6 FMSHRC 21 (Jan. 1984); Herman .v. IMCO Ser.vices, 4 FMSHRC 2135 {Dec. 1982). The
provisi~n is primarily designed to assure fairness to the opposing party by apprising it of the
substance of the allegation and po~ent.ial scope of relief. Id. at~ i 38-39! In Sec '.Y- ofLabor on
behalfofDixon v. Pontiki Coal Corp., l 9 FMSHRC 1009, 1016-18 {June 199~). the Commission
rever~ed.~ ALJ's determination that a complaint of discrimination filed by the Secr~tary was .
limited to .al.legations
on behalf of the. miner
The
.
. who filed the initial complaint with MSHA.
.
Commissiol_l found that the Act was ambiguous on the issue of whether the Secretary.was
"limited to the bare allegations of the initiating complaint to MSHA in drawing up her complaint
to the.Commission" and that the Secretary's interpretation that it was the "scope of the
Secretary's investigation, rather than the initiating complaint, that governs the permissible ambit
of the complaint filed with the Commission," w~s entitled to deference. fd. {emphasis in
original). The Commission held that the Secretary's complaint may include not only miners
represented by the.complainant, but other mii:iers' representatives affected by discrixµination who
were not named in the complaint submitted to MSHA. It went on to observe that, in that case,
the complaint filed by the Secretary "alleged the same discriminatory conduct [that had been]
alleged ... in the initiating complaint filed with MSHA" and the "addition of the unnamed
miners [changed] neither the relief sought not the basis of the charge as originally filed." Id.
~

595

Pontikz directly decides the issue raised by Respondents. Jimmy Caudill's complaint to
MSHA, which prompted the investigation, clearly identified the act of discrimination and the
grounds for the complaint. There is no contention, at present, that.his reference to "my family
history of Safety and Discrimination Complaints" was misleading or could have been construed
as anything other than a reference to his father's activities, which were well-known to Leeco.
The addition of Jerry Caudill as a named complainant changes neither the basis of the charge as
originally filed nor,·iii any meaningful way, the relief sought. The Secretary's investigation, of
necessity, included Jerry Caudill's·protected activity and the alleged unlawful motivation of
Leeco resulting from it. Respondent's challenge to the claim brought on behalf of Jerry Caudill,
based upon the fact that he did not personally file a complaint of discrimination with MSHA, is
rejected.
Respondents also argue that the complaint on behalf of Jerr)t Caudill should be dismissed
because he was not "a miner as to them," i.e., was not employed by them on the date ofthe
alleged discrimination. However, the Mine Act specifies that "No person shall .. . in any manner
discriminate ... or otherwise interfere with the exercise of the statutory rights of any miner."
The legislative history of the Act makes clear that the anti-discrimination provisions of the
statute are to be broadly interpreted and that it applies "not only to the operator but to any other
person directly or indirectly involved." S.Rep. No 95-181, at 36 (1977), reprinted in Senate
Subcomm. on Labor, Comm. on Human Res., Legislative History ofthe Federal Mine Safety and
Health Act of 1977, at 624 (1978). Jerry Caudill was a miner employed by Leeco at the time that
he engaged in substantial protected activity. He was also a miner at the time of the alleged
discrimination. The Act does not require Jerry Caudill to have been employed by Respondents at
the time of the alleged discrimination.
·
. Jerry Caudill clearly suffered adverse action withm the meaning of the Act, which, as
explained in the legislative history, ·was "intended to protect miners against not only the common
forms of discrimination such as discharge, suspension, demotion, reduction in pay and hours of
work, but also· ~gainst the more subtle forms of interfe~ence, such as promises of benefit or
threats of reprisal." Mosley, 4 FMSHRC at 1478 (quoting legislative history). Here, it is alleged
that Leeco actually·engaged in a reprisal aga:4tst Jerry Caudill for the exercise of his rights under
the Act. The Amended Complaint, at para. 9, alleges that Jerry Caudill suffered adverse action,
in that he was discriminafed against and the exercise of his rights under the Act were interfered
with by Leeco's discharge of, or failure to hire, his son. As noted in Mosley, such actions may
"chill the exercise of protected. rights by the directly affected miners, [and] may also cause other
miners, who wish to avoid similar treatment, to refrain from asserting their rights." Id. at 1479.
Respondents challenges to the claim inade on behalf of Jerry Caudill must also be
zj~~.

.

.
Causation

Respondents argue that Jerry Caudill's protected activity while employed by Leeco

596

extended no further than the end of 1997 and, as a matter of law, that protected act,ivity could not
be found to be a causative factor in the adverse action complained of. While it is true that there
is a gap in time exceeding three years between Jerry Caudill's protected activity directed at Leeco
and the instant actions complained of, proximity in time is only one of the considerations
involved in evaluating circumstantial evidence of discriminatory motive. Chacon v. Phelps
Dodge Corp.,
3 FMSHRC 2508, 2510-11 {Nov. 1981 ), rev 'd on other grounds sub nom. Donovan v. Phelps
Dodge Corp., 709 F.2d 86 {D.C.Cir. 1983).
. The cases relied upon by Respondents do not command a different result, and are
distinguishable in that there was no ongoing employment relationship between Jerry Caudill and
Leeco during the three year period. Where the complaining miner has an ongoing employment
relationship, opportunities for retaliatory action are presented daily. As time passes following the
protected activity, any inference that adverse action was prompted by the protected activity
logically diminishes. Here, however, Jerry Caudill's employment relationship with Leeco ended
in 1997, and, on the prese~t record, there were no opportunities for Leeco to take actions in
retaliation for that protecte9 activity until Jimmy Caudill sought employment. In any event, the
Secretary does not rely solely on past protected activity to establish unlawful motive. It is alleged
that Jerry Caudill's protected activity was discussed directly with the mine superintendent
immediately before the apparent reversal of Leeco's intention to have Jimmy Caudill work as a
roof-bolter on the second shift.
Respondents did not support their causation argument with affidavits, or otherwise
attempt to establish the absence of a genuine issue as to any fact material to the unlawful motive
issue. It would be most inadvisable and inappropriate to decide that issue virtually at the
pleadings stage of this proceeding.
ORDER
For the reasons stated above, Respondents' motion is DENIED.

Michae
A · ·strative Law Judge

Distribution:
MaryBeth Bemui, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Rd., Suite B-201, Nashville, TN 37215-2862 {Certified Mail)

597

Melanie J, Kilpatrick, Esq., Wyatt, Tarrant & Combs, LLP, 250 West Main Street, Suite 1700,
Lexington, KY 40507-1746 (Certified ~fail)
/mh

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006-3867
·

Telephon.e .No.: · 202-653-5454
Telecopier No.: 202-653-5030

June 6, 2002
CIVIL PENALTY PROCEEDING .

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

Docket No. CENT 2002-80-M
A. C. No. 41 .;00009-05555

v.
Mine: Fairland Plant & Quarries
CACTUS CANYON QUARRIES OF
TEXAS INCORPORATED,
Respondent

ORDER DENYING SECRETARY'S MOTION FOR EXTENSION OF TIME
ORDER DENYING MOTION TO DISMISS
. '
ORDER OF ASSIGNMENT '
Before:

Judge Barbour
Procedural Posture

On June 27, 2001, the Mirie Safety and Health Administration ("MSHA") issued a
citation against the Respondent, Cactus Canyon Quarries ("Cactus Canyon") alleging that Cactus
Canyon failed to complete and·mail MSHA's Quarterly Employment and Production Report for
the first quarter of2001 in a timely manner. Subsequently, on December 14, 2001,
approximately 5 Yi to 6 months after the citation was issued, MSHA assessed a proposed penalty
of $55.00 for the alleged violation. 1 Cactus Canyon, thereafter, timely filed its Notice of
Contest.2 · ·
·
·

The Secretary, subsequently, filed her penalty petition ori February 12, 2001. Cactus
Canyon did not answer the petition, and on April 10, 2002, I ordered Cactus Canyon show cause
why it should not be held in default for failing to answer. On April 8, 2002, Cactus Canyon filed

I

.
.
.
.
I Cactus Canyon contends that the penalty assessment was postmarked January 4, 2002, 21 days after the

date of assessment The company has not submitted the postmarked envelope, however, even if the envelope is
dated as alleged, the 21 days between December 14 and January 4, will not effect the outcome of this order.
2

1 Commission Rule 26 provides: "[a] person has 30 days after receipt of the proposed penalty assessment
within which to notify the Secretary that he contests the proposed penalty." 29 C.F.R. § 2100.26. The record does
not indicate the .date Cactus received the propose penalty assessment, but a representative of, Cactus dated Exhibit A
of the proposal, January 11, 2002. Cactus then returned the form indicating it wished to contest the citation, and
MSHA received the
on January 14, 2002.

form

599

.! .• ·.. .
. '
a motion to dismiss and an answer to the p"etition. ·The Secreta_ry filed a response to the motion.
Cactus Canyon then filed a Brief in Support ofDis·missal in which it seeks the dismissal of the
subject case and three other cases pending before the Commission, Docket Nos. CENT 2001285-M, CENT 2001-286-M, and CENT 2001-379-M.3 Finally, the Secretary filed an Entry of
Appearance and Substitution of Counsel on May 3, 2002, and on May 17, 2002, she filed a
Motion for Extension of Time to Respond to Respondent's Mo.tion to pismiss.
,,

For the reasons articulated.below, I deny the Secretary's motion for extension of time. I
deny the Respondent's motion to dismiss, and I assign this case to Judge Schroeder who will
proceed with its adjudication.
Motion for Extension of Time
In her motion for an extension of time, the Secretary asserts that, upon review of this
matter, newly assigned attomey,,Thomas ;I>aige1 proposed a settlement c_onference with Cactus
Canyon in a lette~ dated May 13, 2002. Sec. Mot. for Ext. of Time at 1. The Secretary expects to
meet with Cactus Canyon by Jun'e:~s, ~002, and, therefore, she seeks to extend the time to
respond to the motion to dismiss until July 15, 2002. Id. at 3. Should the parties reach
settlement, she asserts, her response to the motion will be unnecessary. Id.
The Commission's rules govern when responsi".:e pleadings must be filed. A party may
file a statement in opposition to a motion within 10 days after service of the motion. 29 C.F.R.
§ 2700.IO(d). When the motion is served by mail, an additional 5 days are added to the time
allotted for filing an opposition. 29 C.F.R. § 2700.8. If a party seeks aIJ., extension of time to file
a document, the r~quest must be filed.no later than 3 days before the e;xpiration of time allowed
for the filing or servi~g of the document. 29 C.F.R. § 2700 9(a). Finally, a motion for an
extension of time is eff~tive upon.receipt. 29 C.F.R § 2700.S(d).
Cactus Canyon filed its Brief in Support of Dismissal on April 26, 2002. Therefore, the
Secretary had until May 13, 2002, to file her response. The Commission did not receive her
motion until May 17, 2002. While the Secretary's counsel did not undertake this ~~se uptil May
3, Coun~el had 10 days to file a motion for an extension of time before the time for rebuttal
expired. The day&)apsed without the Secretary taking any action. In her motion the Secl:"etary
offers no reason for her inaction.
Accordingly, the Secretary's motion is DENIED.

3
/

Docket No. CENT 2001-285-M and CENT 2001-286-M are assigried to Administrative Law Judge
Irwin Schroeder, and CENT 2001-379-M shortly will be assigned to him. Judge Schroeder will rule on the motion
as it pertains to those cases.

600

Motion to Dismiss
Section 105(a) of the Mine Act ("the Act") requires the Secretary to notify an operator of
a proposed civil penalty "within a reasonable time after the termination of such inspection or
investigation." 30 U.S.C. § 815(a). Although the Act gives no guidance regarding the duration
of"a reasonable time," MSHA has provided some direction in its Program Policy Manual,
defining "reasonable time" as "normally . . . within 18 nioriths of the issuance of a citation or
order." The manual further provides, however, that '"[c]ita~ions and·orders not associated with a
serious accident, fatality, or other special circumstance should be assessed within 31 days of the
·
issuance date." Program Policy Manual, Part 100, at 6(f) (2002). ·
Cactus Canyon moves for dismissal because the Secretary 'failed to assess a penalty for
the subject citation within 31 days. Resp. Mot. to Dis. at 1. In support ofit's argument, Cactus
Canyon cites a decision in which Administrative La~ JUdge August Cetti ruled a rs- month
delay unreasonable where the case was "uncomplicat~." United Metro Materials, - .
23 FMSHRC 1085, 1088 (Sept. 200l)(ALJ). Judge Cetti concluded that ~e Secretary had failed
general and vague, and
to demonstrated adequate cause for the delay because her explanation
she failed to expound upon the specific circum~tanc~s wh.ich caus~d t?e·d~lay. Id.

was

There is no strict definition for "reasonable time" within the meaning of Section 105(a) of
the Mine Act. The "31-day" stipulation in the PPM is not a hard and .fast rule, as evidenced by
the language "should be assessed within 31 days." Moreover, the Senate Committee, when
drafting the Mine Act, commented on the broad concept of"reasonable time" when it stated,
"there may be circumstances, although rare, when prompt proposal of a penalty may not be
possible, and the Committee does not expect that the failure to propose a penalty with
promptness shall vitiate any proposed penalty proceeding." S. Rep. No. 181, 95th Cong.,
1st Sess. 34 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History ofthe Federal Mine Safety and Health Act
of 1977, at 622 (1978) (emphasis added). In light of the Senate Committee's reluctance to
establish a specific time frame for notifying the 'operator of the proposed penalties, the
Commission has st~ted that Section 105(a) does not prescribe time periods within which the
Secretary must issue penalty proposals. Steele Branch Mining, 18 FMSHRC 6, 14 (Jan. 1996).
Rather, if a proposal is delayed the judge must consider (1) the reason for the delay, and (2)
whether the operator is prejudiced by the delay, the identical test used when scrutinizing the
Secretary's delay in filing the penalty petition. Id.
The Secretary contends that the assessment of proposed penalty was delayed for two
reasons. First, the citation was not assessed until after a Safety and Health Conference was held,
which resulted in a 1 month delay. Sec. Respons~ to Mot. to Dis. at 2-3. Second, she maintains
that due to a backlog of cases and a personnel shortage, the information was not forwarded to
MSHA's Assessment Office until December 2001. Id. at 3. The Secretary cites to a decision,
also by Judge Cetti, in which Judge Cetti found an unusually high caseload and lack of clerical
personnel adequate cause for the delay. Art Beavers Const. Co., 16 FMSHRC 2361, 2365-66
(Nov. 1994)(ALJ).
601

I conclude that the Secretary has demonstrated adequate cause for the delay. MSHA' s
guidelines suggest that penalties not be assess~ until after the Safety and Health Conference.
PPM. Part 190, at 6 (2002). IfCactUs Canyon requested a conference- and it does not deny
having done.so:- th~ c.onferC?n~e would have delayed :the assessm~nt of penalty until afte.r any
alterations were made to the citation as a result of the conference. rn' addition, an unusually high
caseload '.an'd lack of cleric~! personnel have .been considered adequate cause for late filed penalty
petitions, arid are likewise.a sufficien~ r~asons for the late asse~sment of civil penalties. See Sait
Lake Co: Road bep 't., 7 FMSHRC tiI4,(July 1981); MediCineBow _Coal, 4 FMSHRC 882 M~y
(1982); and Rhone-Poulenc ofWyorµing 'Co., 15 FMSHRC 2089 (Oct. 1993), aff'd 57 F.3rd 92 ·
(10th cir. 1995). Moreover, while administrative law judge decisions and orders are not binding
precedent, I do not~ that the pr~sent matter is more analogous to Art Beavers than t.o Unite,d
Metr~~ ~ United Metro,. JUd~e. Cetti obser\red that the Secretary did not offer specific reas_ons for
the delay, while., in Art Beave~S,,' she djd _so. In the present matter, she, _likewise, has offered
specific reasons, w4ich I ~ave con~luded, constitute adequate cause.
'
.
Regarding prejudic~. Cactus asse~s that the delay was unreasonable and has hurt its
ability to bring forth witneSS(!S w~t~ clear memories. Resp. Mot. to Dis. at 1. .I find Cactus
Canyon' s contentions uriconvincing: The inspection occurred in June 2001. This is not such a
long time ago as to assume memories of the events at issue have diminished irrevocably. Also,
Cactus Canyon was'aware of th~ Secretary's duty to assess a civil penalty for the .citation. It ,
could have memoifalized 'the everit.s at issue through other means - e.g., through 's worn ·
stateme11ts.
· ·· ·
·
•

•

J

•

•

•

•

Accordingly, Cactus Canyon's M,;otion to Dismiss is DENIED.
Assie~ment

.

.Thi~ ·case is hereby as.signed to Administrative Law Judge Irwin Schroeder, ~ho witl rule
· ·
.
on all pending motions reiati~g to the a~tual adjudidation of this case.
All future communications regarding this. case.should be addres~ed to Judge Schroeder at .
Federal Mine Safety ~d Health.Review Commission, Qffic~_of Adm_inistrative Law Judges, Two
Skyline Center, Suite I 000, 520J Leesburg Pike, Falls ·church, Virginia 22041. 1 elephone No.
(703) 756-5232 and Facsimile No. (703) 756-6201 .
..
.~ .
.'.

j)vJ1d8zJ-v-....

-

· David Barbour
· Chief Administrative Law Judge

602

..•
Distribution:

'

......

Thomas A. Paige, Esq., U.S. Department of Labor, Office of the Solicitor, 525 Griffin South
Street, Suite 501, Dallas, TX 75202 (Certified Mail)
Andy Carson, Esq.', Cactus Canyon Quarries of Texas, Incorporated, 7232 Co. Road.120,
Marble Falls, TX 78645 (Certified Mail)
dcp

./

I•'•

603

,..

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMIN1STRATION (MSHA),
Petitioner

June 17, 2002
CIVIL PENALTY PROCEEDING
.

'

Docket No. CENT 2001-379-M
A. C. No. 41-00009-05554

v.
Mine: Fairland Plant & Quarries
CACTUS CANYON QUARRIES OF
TEXAS INCORPORATED,
Respondent

ORDER DENYING MOTION TO DISMISS
ORDER OF ASSIGNMENT

Before:

J udge Barbour

This case is before me pursuant to an order of the Commission dated March 28, 2002,
directing me to consider whether the operator, Cactus Canyon Quarries ("Cactus Canyon") was
prejudiced by the Secretary of Labor's ("Secretary") 364-day delay in assessing the proposed
penalties for the citation and order at issue in this case in addition to her 15-day delay in filing
her penalty petition. In my December 13, 2001 order, I rejected Cactus Canyon's assertion that
the 15-day delay was prejudicial and accepted the Secretary' s late-filed petition.
The Mine Safety and Health Administration ("MSHA") issued the order and citation that
are the subject ofthis case on August 14, 2000. Order No. 7896162 was issued because it is
alleged that an employee, observed in the raised bed of a tractor trailer, was not wearing a safety
belt and line. Citation No 7896127 was issued because it is alleged that the handrail on the
walkway next to the Jam Crusher had been removed. The Secretary did not assess proposed
penalties until August 13, 2001. 1
For the reasons articulated below, and in light of the Commission's order, I conclude the
Secretary's delay in assessing the proposed penalties was reasonable, and Cactus Canyon was not
prejudiced by the delay.

1

I Cactus Canyon contends the penalty assessment was postmarked August 20, 2001 , 7 days after the date
of assessment. Assuming the company is covert, the 7 day period between August 13, 2001 and August 20, 2001
does not effect the outcome of this order.
604

Discussion
1. Reasonableness of the Delay
Section 105(a) of the Mine Act (" the Act") requires the Secretary to notify an operator of
a proposed civil penalty •'within a reasonable time after the teqnination of such inspection or
investigation." 30 U.S.C. § 815(a). Although th~·A.ct gives
guidance regar<Jing the duration
of"a reasonable time," MSHA has provided some direction in its Program Policy Manual,
defining "reasonable time" as ''normally . . . within 18 months of the issuance of a citation or
order." The manual further provides, however, that "(c]itations and orders not associated with a
serious accident, fatality, or other special circumstance should be assessed within 31 days of the
issuance date." Program Policy Manual, Part 100, at 6(f) (2002).

no

Cactus Canyon argues that MSHA's delay in assessing the penalties was unreasonable,
and, in fact, the penalties should have been assessed within 31 days of the issuance of the citation
and order. Resp. Suppl. To Mot. to Dis. at 1. In support of it' s argument, C~ctus Canyon cites a
decision in which Administrative Law Judge August Cetti ruled a 15-month delay unreasonable
where the case was '.'uncomplicate,d.~' United Metro Materials, 23 FMSHRC 1085, 1088 (S~pt.
200l)(ALJ). Judge Cetti concluded the Secretary had failed to demonstrate adequate cause for
the delay because her explanation was.general and vague, and she failed to expound upon the
specific circumstances which caused the delay. Id. Cactus Canyon further contends the
Secretary offered no reason for the delay in response to discovery requests. Resp. Suppl. To Mot.
to Dis. at 1; see a~so Resp. Exhibits A, B, and C.
The.re is no strict definition for "reasonable time'~ within the .meaning of Section 105(a) of
the Mine Act. The "31 -day" stipulation in the PPM is nc~t a hard and fast rule, as evidenced by
the language "should be assessed within 31 days." Moreover, the Senate Committee, when
drafting the Mine Act, commented on the broad concept of"reasonable time" when it stated,
"there may be circumstances, although rare, when prompt proposal of a penalty may not be
possible, and the Committee doe~ not expect that the failure ~o propOS<f a penalty with
promptness shall vitiate ~y proposed penalty proceeding." S. Rep. No. 181, 95th Cong.,
1st Sess. 34 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History ofthe Federal Mine Safe ty and Health Act
of 1977, at 622 (1978) (emphasis added). In light of the Senate Committee'
s reluctance
to
.
.
establish a specific time frame for notifying the operator of the proposed penalties, the
Commission has stated that Section ~05(a) does not prescribe time periocis within which the
Secretary must issue_penalty proposals. Steele Branch Mining, 18 FMSHRC 6, 14 (Jan. 1996).
Rather, if a proposal is delayed, the judge must consider: ( 1) the reason for the delay, and (2)
whether the operator is prejudiced by the delay, the identical test used when scrutinizing the
Secretary's delay in filing the penalty petition. Id.

605

The Secretary contends the penalty assessment was delayed for two reasons. First, the
citation and order were not assessed until after a Safety and Health Conference was held, which
resulted in the modification of both the citation and order. The conference was held 1 month
after the citation and order were issued. Sec. Response to Resp. Suppl. to Mot. to Dis. at 4.
Second, due to a backlog of cases and a personnel shortage, necessary infonnation regarding the
citation and order was not entered into MSHA's Management Infonnation System ("MIS") and
forwarded to the·Assessments Office until May of2001. Id. at 5. Between May 2001 and
August 14, 2001, the Secretary fUrther submits, the office was short staffed and concentrating on
a high caseload involving fatalities-. Id. The Secretary cites to a decision, also by Judge Cetti, in
which Judge Cetti found an unusually high caseload and lack of clerical personnel adequate
cause for the delay. Art Beavers Const. Co., 16 FMSHRC 2361, 2365-66 (Nov. 1994)(ALJ).
I conclude the Secretary has demonstrated adequate cause for the delay. MSHA's
guidelines suggest that penalties not be assessed until after the Safety and Health Conference.
PPM, Part 100, at 6 (2002). If Cactus Canyon reques-ted a conference - and it does not deny
having·done so - the conference delayed the assessment of penalty until after any alterations were
made to the citation and order as a result of the conference. However, it is the Secretary's case
load and personnel shortage that I find inost persuasive. An unusually high caseload and
shortage of clerical personnel have been considered adequate cause for late-filed penalty petitions
and in my view 'they are, likewise, ·sufficient reasons for the late assessment of civil penalties.
See Salt Lake Co. Road Dep 't., 7 FMSHRC 1714 (Jul. 1981); Medicine Bow Coal,
4 FMSHRC 882 May (1982); and Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct.
1993), ajf'd 57 F.3rd 92 (10th cir. 1995). Moreover, while administrative law judge decisions
and orders are not binding precedent, I note that the present matter is more analogous to Art
Beavers than to United Metro: ·In United Metro, Judge Cetti observed that the Sectetary did not
offer specific reas·ons for the delay, while~ in Art Beavers, she did. In the present matter, she,
likewise, has offered specific reasons, which i have concluded, constitute adequate cause.
2. Prejudice
. ... : .

Even though the Secretary has demonstrated adequate cause~ Cactus Canyon still could
prevail if she was prejudiced by the delay. The company asserts the delay has hindered its case
because witnesses' memories have faded and witnesses have moved beyond subpoena range and
to unknown locations. Resp. Suppl. to. Mot. to Dis. at 2. It futther contends that the "inspectors
have no independent recollection of the citations." ·Id.
· The Secretary, fo the contrarily~ notes that when this case was before me originally,
Cactus Canyon ·did not claim prejudice from the 365-day delay. Sec. Response to Resp: Suppl. to
Mot. to Dis. at 3. Hence, the Secretary suggest, the companfs claim of prejudice is more one of
convenience than substance. Id.
·

606

I find Cactus Canyon's contentions unconvincing. The inspection was not so long ago
that memory of the events have faded irretrievably. Moreover, Cactus Canyon yet has time to
find witnesses and, if necessary, to memorialize their testimony.
Further, although Cactus Canyon claims the inspectors have no independent recollection
of the events in question, Inspector Danny Ellis stated in a deposition taken in December of2001
- a portion of which was submitted by Cactus Canyon - that he does have an independent
recollection of the inspection. Resp. Exhibit E at 35. However, even if he does not have a
recollection of the events independent from his notes, as Inspector Ralph Rodriguez asserts in his
deposition, the purpose of an inspector taking notes and photographs of an inspection is to
memorialize the event and to jog the memory of the inspector in any future proceeding. See
Resp. Exhibit E at 23.
Accordingly, Cactus Canyon's Motion to ~isrniss is DENIED.

ORDER OF ASSIGNMENT
This case is hereby assigned to Administrative Law Judge Irwin Schroeder, who will rule
on all pending motions relating to the actual adjudication of this case.
All future communications regarding this case should be addressed to Judge Schroeder at
the following address:
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
Two Skyline Center, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041
Telephone No. (703) 756-5232
Facsimile No. (703) 756-6201.

_pw/J 6(i.L~-David Barbour
Chief Administrative Law Judge

607

Distribution:
Thomas A. Paige, Esq., U.S. Department of Labor, Office of the Solicitor, 525 Griffin South
Street, Suite 501, Dallas, TX 75202 (Certified Mail)
Andy Carson, Esq., Cactus Canyon Quarries of Texas, Incorporated,. 7232 Co. Road 120,
Marble Falls, TX 78645 (Certified ·Mail)
dcp
.<

608

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

June 17, 2001
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 2002-124-M
A. C. No. 41-00009-05556

v.
Mine: Fairland Plant & Quarries
CACTUS CANYON QUARRIES OF
TEXAS INCORPORATED,
Respondent
ORDER OF PARTIAL DISMISSAL
ORDER OF ASSIGNMENT
Before:

Judge Barbour
PROCEDURAL POSTURE

On March 29, 2001 and September 20, 2001, the Mine Safety and Health Administration
("MSHA") issued Citation Nos. 6207831 and 6209922, respectively, against the Respondent,
Cactus Canyon Quarries ("Cactus Canyon"). Citation No. 6207831 was issued because it is
alleged that a foreman was standing on top of the head pulley at the number 4 conveyor belt
without any fall protection. Citation No. 6209922 was issued because it is alleged that the backup alarm on the Komatsu Track Hole was inoperable. Although the citations were issued in
March and September of 2001, the proposed penalties were not assessed until February 12, 2002,
approximately 13 months after the issuance of Citation No. 6207831 and 5 months after the
issuance of Citation No. 6209922.
Cactus Canyon, subsequently, timely filed its notice of contest. 1 The Secretary of Labor
("Secretary'') then filed her penalty petition on April 15, 2002.2 Cactus Canyon filed a motion to
1

I Commission Rule 26 provides: "[a] person has 30 days after receipt of the proposed penalty assessment
. within which to notify the Secretary that he contests the proposed penalty." 29 C.F.R § 2700.26. The record does
not indicate the date Cactus Canyon received the propose penalty assessment, but a representative of Cactus Canyon
dated Exhibit.A of the proposal, February 28, 2002. Cactus Canyon then returned the form indicating it wished to
contest the citation, and MSHA received the form on March 6, 2002.
2

1 Cactus Canyon states that it does not know why Citation No. 6209922 was included with the penalty
petition because it was not contested. However, the Notice of Contest clearly indicates that Cactus Canyon sought
to contest both citations in this case.

609

dismiss, on April 26, 2002, which ~as followed by the Secretary's Entry of Appearance and
Substitution of Counsel on May 3, 2001, and her Motion For an Extension of Time to Respond to
Respondent's Motion to Dismiss on May 24, 2001.
For the reasons articulated below, I deny the Secretary's motion for extension of time, I
grant in part Cactus Canyon's motiOn to dismiss and I assign the case for.further proceedings.

MOTION FOR EXTENSION OF TIME
In her motion for an extension of time, the Secretary asserts that she filed a similar
motion for extension for time in Docket No. CENT 2002-80-M - another case involving Cactus
Canyon - on May 13, 2002, and she intended to do the same in the instant case. Sec. Mot. For
Ex. of Time to Respond to Resp. Mot. to Dis. at 1. However, Counsel forgot to do so. Id. She
further states that Administrative Law Judge Irwin Schroeder has set a hearing on Cactus
Canyon's motion to dismiss in Docket Nos. CENT 2002-80-M, CENT 2002-285-M, CENT
2002-286-M, and CENT 2002-379-M. 3 Id. She·seeks additional time to respond until July 15,
2002, to avoid any duplicative work.
The Commission's rules govern when responsive pleadings must be filed. A party may
file a statement in opposition to a motion within 10 days after service of the motion. 29 C.F.R.
§ 2700.IO(d). When the motion is .~erved by .mail, an additional 5 days are added to the time
allotted for filing an opposition. 29 C.F.R. § 2700.8. If a party seeks an extension of time to file
a document, the request must be.filed no later than 3 days before the expiration of time allowed
for the filing or serving of the document. 29 C.F.R. § 2700 9(a). Finally, a motion for an
extension of time is effective upon receipt. 29 C.F.R. § 2700.S(d).
Cactus Canyon filed its motion to dismiss on April 26, 2002. Therefore, the Secretary
had until May 1.3 , 2002, to file her response. The Commission did not receive her motion for an
extension of time to respond until May 24, 2002. While the Secretary's counsel did not
undertake this case until May.3, Counsel had 10 days to file a motion for an extension of time
before the time for rebuttal expired. The days lapsed without the Secretary taking any action.
Counsel's excuse as having forgotten to file the motion is unacceptable.
Accordingly, the Secretary's motion is DENIED.

MOTION TO DISMISS
Section 105(a) of the Mine Act ("the Act") requires the-Secretary to notify an operator of
a proposed civil penalty "within reasonable time after the terminatiop of such inspection or

a

3

I The Secretary is wrong regarding Docket Nos. CENT 2002-80-M and CENT 2002-379-M. They are not
assigned to Judge Schroeder. Therefore. he does not have jurisdiction to hear arguments on motions to dismiss
those cases.

610

investigation." 30 U.S.C. § 815(a). Although the Act gives no guidance regarding the duration
of "a reasonable time," MSHA has provided some direction in its Program Policy Manual,
defining "reasonable time" as "normally . . . within 18 months of the issuance of a citation or
order." The manual further provides, however, that "[c ]itations and orders not associated with a
serious accident, fatality, or other special circumstance that are recommended for a special
assessment should be assessed within 75 days of the issuance date." Program Policy Manual,
Part l 00, at 6(f) (2002).
Cactus Canyon moves for dismissal of Ci~ation No. 6207831 because the Secretary failed
to assess a penalty for the citation within 75 days. Resp. Mot. to Dis. at 1. In support of it's
argument, Cactus Canyon cites a decision in which Administrative Law Judge August Cetti ruled
a 15-month delay unreasonable where the case was "uncomplicated." United Metro Materials,
23 FMSHRC 1085, 1088 (Sept. 2001 )(ALJ). Judge Cetti concluded that the Secretary had failed
to demonstrated adequate cause for the delay because her explanation was general and vague, and
she failed to expound upon the specific circumstances which caused the delay. Id.
The Commission has held that if a penalty proposal is delayed, the judge must consider
(1) the reason for the delay, and (2) whether the operator is prejudiced by the delay, the identical
test used when scrutinizing the Secretary's delay in filing the penalty petition. Steele Branch
Mining, 18 FMSHRC 6, 14 (Jan. 1996). The Secretary bares the burden of showing the reason
for the delay. I am unable to evaluate the Secretary's position because she has failed to set forth
any reason for her delay in assessing the penalty for Citation No. 6297831. Accordingly, in the
interest ofjustice, I must grant Cactus Canyon's motion to dismiss with respect to that citation.4
ORDER OF ASSIGNMENT
The Secretary's petition and her allegations remain extant with respect to Citation No.
6209922, and I assign this case to Administrative Law Judge Irwin Schroeder for trial and
decision. Judge Schroeder will rule on any pending motions. All future communications
regarding this case should be addressed to Judge Schroeder at the following address:
Mine Safety and Health Review Commission
Office of Administrative Law Judges
Two Skyline Place, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041

4

1 It is unnecessary to evaluate whether Cactus Canyon was prejudiced by the delay as the first part of the
test has not been satisfied.
611

· Telephone No. (703) 756-5232
Fax No.
(703) 7.56-6201

__:)(;;· <!~ £;;:--~~
David b. :Barbour
· .,
Chief Administrative Law Judge

Distribution:
Thomas A. Paige, Esq., U.S. Department of Labor, Office of the Solicitor, 525 Griffin Street,
Suite 501, Dallas, TX 75202
Andy Carson, Esq., 7232 Co. Rd. 120, Marble Falls, TX 78654
.

;

dcp

, ·:

612

'lie U.8. GOVERNMENT PJUN'IlNG OFFICE: JOOJ 4n.Wlm$'7