NOVEMBER 1998

COMMISSION DECISIONS
11-16-98 Brent Roberts
11-30-98 Bellefonte Lime Company
11-30-98 Roger Richardson

KENT 91-896-R
PENN 95-467
KENT98-308

Pg. 1245
Pg. 1250
Pg. 1259

WEST 96-235

Pg. 1263

SE
98-145
WEST 98-115-D

Pg. 1267
Pg. 1273

ADMINISTRATIVE LAW JUDGE DECISIONS
11-18-98 White Oak Mining & Construction Co.

ADMINISTRATIVE LAW JUDGE ORDERS
11-09-98 Wayne Jones employed by United States
Mining Company
11-10-98 Gregory Bennett v. Newmont Gold Company

i

NOVEMBER

1998

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

Secretary of Labor, MSHA v. Dynatec Mining Corporation, Docket No. WEST 94-645-M.
(Judge Manning, September 24, 1998)
Pamela Bridge Pero v. Cyprus Plateau Mining Corporation, Docket No. WEST 97-154-D.
(Judge Cetti, September 30, 1998)
Secretary of Labor, MSHA v. Black Diamond Construction, Inc., Docket No. EAJ 98-1.
(Judge Barbour, October 9, 1998)
Gilbert Ankrom v. Wolcottville Sand and Gravel, Docket No. LAKE 98-126-D.
(Judge Weisberger, October 14, 1998)

No cases were filed in which review was denied during the month of November:

ii

COMMISSION DECISIONS AND ORDERS

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

November 16, 1998

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

v.
BRENT ROBERTS,
PAUL COTTON,
STEVE LITTLE,
BENNY JOHNSON,
SYDNEY POE,
ROBERT BENNET,
JAMES JACK,
JOHN S. BIBY,
LARRY FLYNN,
KIMMIE NOAH,
SHARELL CLARK,
JAMES F. MATICS,
ROBERT E. PERSINGER,
EVERETTE E. BALLARD,
DANIEL SERGE,

Docket Nos. KENT 91-896-R
KENT 91-897-R
KENT 91-898-R
KENT 91-934-R - 91-955-R
KENT 91-992-R
LAKE 91-478-R
LAKE 91-503-R- 91-529-R
LAKE 91-530-R- 91-605-R
SE 91-538-R
SE 91-544-R- 91-655-R
WEVA 91-1331-R
WEVA 91-1332-R
WEVA 91-1333-R
WEVA 91-1385-R
WEVA 91-1386-R
WEVA 91-1494-R- 91-1509-R
WEVA 91-1414-R- 91-1435-R
WEVA 91-1436-R - 91-1493-R
WEVA 91-1510-R- 91-1524-R
WEVA 91-1525-R
WEVA 91-1614-R
WEVA 91-1926-R

SANDRA EASTHAM,
KEVIN TUSTIN,
STEVEN PERKINS,
JIMMY HAYWORTH,
DONALD CASE, and
REGGIE PHILYAW

BEFORE: Riley, Verheggen, and Beatty, Commissioners 1
ORDER

1

Chairman Jordan has recused herself in this matter and took no part in the consideration
of this order. Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), this panel of three
Commissioners has been designated to exercise the powers of the Commission.

1245

BY THE COMMISSION:
In these contest proceedings arising under the Federal Mine Safety and Health Act of
1977, 30U.S.C. § 801 et seq. {1994) ("Mine Act"). the Secretary of Labor has filed with the
Commission a motion to consolidate and dismiss her appeals. The petitioners have not filed an
opposition to the motion. For the reasons that follow, we grant the motion, vacate the directions
for review, and dismiss these proceedings.
I.

Factual and Procedural Background
On April 18, 1991, the Secretary, through the Department ofLabor's Mine Safety and
Health Administration ("MSHA"), proposed to revoke certifications that had been conferred,
pursuant to 30 C.F.R. Parts 70, 71, and 90, upon certain persons to collect respirable dust
samples and to maintain and calibrate respirable dust sampling devices. 2 The proposed
revocations arose from citations that were issued, pursuant to 30 U.S.C. § 814(a), to various mine
operators on April 4, 1991, alleging that the weight ofrespirable dust cassettes submitted to
fulfill sampling requirements had been intentionally altered by removing dust from the cassette
filters. On May 15, 1991, notices of contest were filed with the Commission, resulting in these
contest proceedings.
On May 24, 1991~ the Secretary filed a motion to dismiss these proceedings, asserting
that the Commission lacked jurisdiction to review the matter. On September 4, 1991, following
argument on the motion, Chief Administrative Law Judge Paul Merlin issued a decision
dismissing the case of Brent Roberts on the ground that the Commission lacked jurisdiction to
review the matter. 13 FMSHRC 1377 (Sept. 1991) (ALJ). He concluded that, under the Mine
Act and its legislative history, the Commission is not empowered to legislate a system of
administrative review for cases involving decertification of persons who are not mine operators,
miners, or representatives of miners. Id. at 1383. The judge subsequently issued separate
decisions dismissing each of the remaining c~ses based on his Roberts decision, which he found
dispositive of the matter. See id. at 1385-1416 (decisions dismissing remaining cases).

2

The Mine Act requires that mine operators maintain an average concentration of
respirable dust in the mines below prescribed limits. 30 U.S.C. § 842(b ); 30 C.F.R. §§ 70.100,
71.100, 90.100. Operators must take accurate dust samples and submit them to the Secretary for
analysis. 30 U.S.C. § 842(a); 30 C.F.R. §§ 70.201-70.210, 71.201-71.210, 90.201-90.210.
Respirable dust sampling can only be done by a person who has been certified by the Secretary
to take dust samples. 30 C.F.R. §§ 70.2(c), 70.202-70.203, 71.2(c), 71.202-71.203, 90.2, 90.20290.203.

1246

On October 3, 1991, counsel in the Roberts case filed with the Commission a petition for
discretionary review. Subsequently, in all except one of the remaining cases, counsel filed
petitions for discretionary review that adopted and incorporated by reference the Roberts
petition. 3 On October 15, 1991, the Commission directed the proceedings for review. Shortly
thereafter, the petitioners filed motions requesting that further proceedings be stayed until
resolution of the proceedings against mine operators alleging alteration ofrespirable dust
samples in In re: Contests of Respirable Dust Sample Alteration Citations, Master Docket No.
91-1 ("Dust Cases"), then pending before Administrative Law Judge James A. Broderick. On
November 7, 1991, the Commission stayed the proceedings. On April 20, 1994, Judge Broderick
issued a final decision dismissing the Dust Cases on the ground that the Secretary had failed to
prove that the weight of respirable dust cassettes had been intentionally altered. 16 FMSHRC
857 (Apr. 1994) (ALJ). Subsequently, the Secretary filed a petition for discretionary review of
the judge's decision, which was granted by the Commission. On November 29, 1995, the
Commission affirmed the judge's Dust Cases decision. 17 FMSHRC 1819 (Nov. 1995). The
Secretary subsequently appealed to the United States Court of Appeals for the District of
Columbia Circuit. On August 21, 1998, that court issued its decision in the Dust Cases,
affirming the Commission. Secretary ofLabor v. Keystone Coal Mining Corp., 151 F .3d 1096
(D.C. Cir. 1998).
II.
Disposition
The Secretary represents that, on September 10, 1998, "MSHA mailed a notice to all
persons previously notified of the proposed revocation of certifications that the agency was
withdrawing the proposed revocations." Mot. at 5. She requests that, because the proceedings
all involve similar issues, the Commission consolidate the proceedings. Id. at 5-6. In addition,
she requests that, because MSHA has withdrawn its proposed revocations, the Commission
dismiss the proceedings on the ground that they are moot. Id. at 6-7. The petitioners do not
oppose the motion.
We hereby lift the stay in these proceedings. We agree with the Secretary that these
proceedings may be properly consolidated under Commission Procedural Rule 12, 29 C.F.R.
§ 2700.12,4 and accordingly order consolidation. We further agree with the Secretary that these

3

The Commission's Docket Office has no record ofreceiving a petition for discretionary
review in the case of Patrick Henry Fluty, 13 FMSHRC 1401 (Sept. 1991) (ALJ) (Docket Nos.
WEVA 91-1193-R through WEVA 91-1218-R).
4

Rule 12 provides:
The Commission and its Judges may at any time, upon their

1247

proceedings no longer present a justiciable controversy. A case is moot when the issues
presented no longer exist or the parties no longer have a legally cognizable interest in the
outcome. Powell v. McCormack, 395 U.S. 486, 496 (1969). Here, the Secretary represents that
MSHA has withdrawn its proposed revocations, which was the underlying controversy in these
proceedings. Therefore, we find that there is no longer a live controversy between the Secretary
and the petitioners as to the actions out of which the petitions for discretionary review arose.
Thus, we conclude that these proceedings are moot and that dismissal is appropriate. See MidContinent Resources, Inc., 12 FMSHRC 949, 955-56 (May 1990) (affirming judge's dismissal of
case when Secretary had vacated underlying citation and withdrawal order making case moot).
Upon consideration of the motion, we grant it. Accordingly, the Commission's directions
for review in these matters are vacated and these proceedings are dismissed.

James C. Riley, Commissioner

Theodore F. Verheggen, Co

Robert H. Beatty, Jr., Co

own motion or a party's motion, order the consolidation of
proceedings that involve similar issues.

1248

Distribution

Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Michael T. Heenan, Esq.
Heenan, Althen & Roles
1110 Vermont Avenue, Suite 400
Washington, D.C. 20005
John J. Polak, Esq.
King, Betts & Allen
P.O. Box 3394
Charleston, WV 25333
Michael Boehm, Esq.
Spears, Moore, Rebman & Williams
801 Pine Street
P.O. Box 1749
Chattanooga, TN 37401
Webster J. Arceneaux, Ill, Esq.
Lewis, Ciccarello & Friedberg
One Valley Square, #700
P.O. Box 1746
Charleston, WV 25326
Marcus P. McGraw, Esq.
Greenbaum, Doll & McDonald
1400 Vince Center Tower
P.O. Box 1808
Lexington, KY 40593
John B. Carrico, Esq.
801 Charleston National Plaza
Charleston, WV 25301

J. Timothy Dipiero, Esq.
DiTraparo & Jackson
604 Virginia Street East
Charleston, WV 25301

1249

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1.730 K STREET NW, 6TH. FLOOR
WASHINGTON, o~c. 20006

November 30 , 199 8

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 95-467

V ..

BELLEFONTE LIME COMPANY~ INC.

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners
DECISION
BY THE COMMISSION:
In this civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), Administrative Law Judge Avram
Weisberger determined that ground conditions at a limestone quarry operated by Bellefonte Lime
Company, Inc. ("Bellefonte") amounted to a violation of30 C.F.R. § 56.3200, 1 but that the
violation was not significant and substantial ("S&S"). 2 19 FMSHRC 416 (Feb. 1997). The
judge did not reach the issue of whether the violation was caused by Bellefonte's unwarrantable
failure to comply with the standard. This conclusion was based on his view that, for a citation
issued pursuant to section 104(d)(l), an allegation of unwarrantable failure does not survive the

1

Section 56.3200, entitled, "Correction of hazardous conditions," provides:
Ground conditions that create a hazard to persons shall be
taken down or supported before other work or travel is permitted in
the affected area. Until corrective work is completed, the area shall
be posted with a warning against entry and, when left unattended, a
barrier shall be installed to impede unauthorized entry.

30 C.F.R. § 56.3200.
2

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

1250

dismissal of an S&S allegation. Id. at 425. The Commission sua sponte directed for review the
judge's holding that he need not reach the unwarrantable failure issue. In addition, the
Commission granted the petition for discretionary review filed by the Secretary of Labor,
challenging the judge's determination that the violation was not S&S. For the reasons that
follow, we reverse the judge's S&S determination, and remand for consideration of whether the
violation was caused by Bellefonte's unwarrantable failure.
I.

Factual and Procedural Background
Bellefonte operates the Gentzel Quarry, a Valentine limestone quarry in Pleasant Gap,
Pennsylvania. Beginning in approximately 1982, a spoil pile comprised of overburden was
created in the northwest portion of the quarry. 3 Id. at 416. The overburden was dumped on the
top of the surface area of the pile by trucks that traveled haul roads, which were constructed over
and about the spoil pile. Id. at 417. Overburden was last added to the pile in approximately
1991or1992. Id.
Beginning on November 9, 1994, the northwest cut area was stripped of its overburden in
preparation for mining. Id. On February 2, 1995, miners began to extract Valentine limestone
from the northwest cut area. Id. The right and left banks of the spoil pile were adjacent to the
floor of the working area, and material was removed from the center of the pile. Tr. 169, 194-95;
Gov't Ex. 6 (videotape). In order to remove the limestone, a loader traveled into the cut area,
which measured approximately 30 to 40 feet across, gathered a bucket of material, backed up to
haul trucks parked along the haul road, or near the right bank of the spoil pile, and loaded the
trucks. 19 FMSHRC at 418; Tr. 164, 182, 194-96, 225-26.
On March 17, 1995, Edward Skvarch, an inspector with the Department of Labor's Mine
Safety and Health Administration ("MSHA"), inspected the mine in response to an anonymous
telephone call made to his supervisor. 19 FMSHRC at 417; Tr. 32-33. The inspector observed
two areas in the spoil pile that he believed presented hazardous ground conditions. Gov't Ex. 1.
The first area involved the right bank of the spoil pile. 19 FMSHRC at 417. Inspector
Skvarch estimated that the right bank was 70 feet high, and that its slope was steeper than the
angle of repose. 4 Id.; Tr. 41-42, 4 7. He also observed that there were rocks near the top and at
the face of the pile; there was no bench in the area to catch falling material; and the working area

3

The overburden was black stone that had originally laid on top of the limestone. Tr.

197, 225.
4

The angle of repose is the angle at which material will stand under its own weight
without any outside influences. Tr. 259-60.

1251

below the spoil pile was narrow. Tr. 41. The inspector did not measure the bank because he did
not have any measuring instruments, and because he believed that it would be too dangerous to
climb the slope. Tr. 42.
The second area involved a slope located near a tum on a haul road leading to the
northwest cut. 19 FMSHRC at 417. Inspector Skvarch estimated that the haul road slope was at
least 50 feet high, and that the angle of the slope was greater than the angle ofrepose. Id. at 41718; Tr. 46. He also observed that the toe of the haul road slope was steeper than the remainder of
the slope. 19 FMSHRC at 418. Inspector Skvarch made no measurements of conditions on the
haul road slope. Tr. 47"'."48.
Based upon his observations, Inspector Skvarch determined that hazardous ground
conditions existed in the two areas and issued a citation, pursuant to section 104(d)(l) of the Act,
alleging an S&S violation of section 56.3200 that had been caused by Bellefonte's unwarrantable
failure. Gov't Ex. 1. The inspector stated that he believed that the violation was S&S because
bank height and slope steepness affected slope stability and made it reasonably likely that rocks
would roll down the two banks or that a landslide would occur. Id.; Tr. 62. The inspector also
based his S&S charge on statements made to him by an equipment operator that rocks, some the
size of basketballs, had rolled off of the right bank and had to be removed from the floor of the
pit before work could be resumed. Tr. 62-63, 90. He noted that a "sizable" rock could crash
through the window of equipment and strike the operator, or fall into the haul road and cause a
vehicular accident. Tr. 63-64. Inspector Skvarch stated that, because of the close proximity of
operation to both cited areas, a slide could result in a fatality. Tr. 64.
The citation was abated when the cited areas were barricaded. Gov't Ex. 1. Bellefonte
abandoned the northwest cut area permanently because there was only enough limestone
remaining in the area to be extracted over one shift. 19 FMSHRC at 417; Tr. 52-53, 466-67.
Bellefonte challenged the citation and the matter proceeded to hearing before Judge Weisberger.
The judge concluded that Bellefonte violated section 56.3200, but he vacated the special
findings of S&S and unwarrantable failure. 19 FMSHRC at 420-27. As to the violation, the
judge concluded that rocks fell off the cited areas at points in time "not significantly remote"
from the date the citation was issued, and that miners working in the adjacent confined work area
and haul road were exposed "in some degree" to the hazard of being hit by falling material. 5 Id.
at 422. Because miners were allowed to work and travel in the area, and the spoil pile was not
supported or taken down to prevent rocks from falling, the judge determined that the Secretary
had established a violation of section 56.3200. Id. The judge concluded that the violation was
not S&S. Id. at 425. He reasoned that the likelihood of injury from subsequent rock falls had

5

The judge concluded, however, that the pile itself did not create a hazardous ground
condition through the possible occurrence of a landslide. 19 FMSHRC at 422 n.l. The Secretary
did not challenge this finding on review.

1252

not been established because the record did not set forth with particularity evidence of loose
rocks in the cited areas and because there was only one shift worth of limestone remaining to be
mined in the area. Id. at 424-25. The judge did not reach the question of whether the violation
had been caused by unwarrantable failure, based on his determination that, "in the absence of a
finding that the violation was [S&S], the inclusion of a finding of unwarrantable failure in a
citation is not proper." Id. at 425. In his consideration of a civil penalty, however, he concluded
that the violation involved a high level of gravity and more than ordinary negligence. Id. at 426.
Accordingly, the judge amended the citation to a section 104(a) citation, and assessed the civil
penalty of $2,500 proposed by the Secretary. Id. at 426-27.
II.
Disposition
The Secretary argues that the judge erred in concluding that Bellefonte's violation of .
section 56.3200 was not S&S. S. Br. at 5-14. She asserts that the judge failed to adequately
consider evidence in the record regarding the frequency of rock falls in the right bank area and
the haul road. Id. at 6-11. In addition, the Secretary contends that the judge erred in placing
dispositive weight on evidence that the next shift in the cited area would have been the last. Id.
at 10 n.3. She explains that such evidence did not mitigate the hazard in view of testimony that
rocks fell off the pile on a regular basis. Id. Accordingly, the Secretary requests that the
Commission reverse the judge's S&S determination, and remand for consideration of whether
the violation was caused by unwarrantable failure. Id. at 14.
Bellefonte responds that the judge correctly concluded that the violation was not S&S
because there was "no evidence to support a conclusion that it was reasonably likely that an
injury-producing rock fall would have occurred in the final mining shift in the northwest cut
area." B. Br. at 21. It maintains that the judge gave proper weight to evidence of falling rocks
and of the amount oflimestone remaining in the area, and that there was no evidence that the
rocks in the cited areas were loose. Id. at 9-17. Accordingly, it requests that the judge's decision
be affirmed. Id. at 21.
The Commission has recognized that a violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. See Cement Div., Nat 'l Gypsum Co.,
3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1(Jan.1984), the
Commission further explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard - that is, a
measure of danger to safety - contributed to by the violation;

1253

(3) a reasonable likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.
Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th
Cir. 1995); Austin Power, Inc. v. Secretary ofLabor, 861F.2d99, 103 (5th Cir. 1988) (approving
Mathies criteria).
At issue here is whether the judge erred in concluding that the third Mathies factor had
not been satisfied. Central to this question are his findings that the "likelihood of further rock
falls" had not been established because of the lack of evidence regarding the numbers or extent
of loose rocks and since Bellefonte employees would have traveled or worked in the cited areas
for only one more shift. 19 FMSHRC at 425. We agree with the Secretary that the judge erred. 6
First, the judge incorrectly concluded that the likelihood of injury was "mitigated to a
great degree" by evidence that mining would continue in the northwest cut for only one more
shift. Id. During that last shift, limestone would have been extracted under the same conditions
that gave rise to the citation, and miners would have been exposed to the same degree of hazard
as miners working in the shifts preceding issuance of the citation. Compare Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007, 2012-13 (Dec. 1987) (affirming determination that roof
control violation was not S&S where mining had completely discontinued in an area and danger
signs had been posted to prevent entry into area) with Halfway, Inc., 8 FMSHRC 8, 12-13 (Jan.
1986) (concluding that roof control violation was S&S because, although mining had
discontinued in the cited area, the area remained accessible and travelways to the cited area
would be used by miners). Accordingly, contrary to the judge's finding, the S&S allegation was
not ameliorated by short term exposure of the miners to the cited hazard.
In addition, the judge erred by confining his consideration to the "likelihood offurther
rock falls" during continued normal mining operations. 19 FMSHRC at 425 (emphasis added).
The third Mathies element requires the Secretary to establish a reasonable likelihood that the

6

Commissioner Marks agrees that this violation is S&S. However, for the reasons set
forth in his concurring opinions in United States Steel Mining Co., 18 FMSHRC 862, 868-75
(June 1996), and Buffalo Crushed Stone, Inc., 19 FMSHRC 231, 240 (Feb. 1997), he continues
to urge that the ambiguous language of the Commission's Mathies test, 6 FMSHRC at 3-4, be
replaced with a clear test that is consistent with Congressional intent. On February 5, 1998,
MSHA issued a lengthy Interpretive Bulletin, setting forth a new agency interpretation of S&S
and announcing that MSHA would challenge the Commission's narrow interpretation of S&S.
63 Fed. Reg. 6012 (1998). However, on April 23, 1998, MSHA suspended that Interpretive
Bulletin with little explanation. Id. at 20,217. Commissioner Marks is curious as to MSHA's
change in position on the S&S question and requests, as he has done on numerous occasions, that
the Secretary promptly advise him on this important issue.

1254

hazard contributed to will result in an event in which there is an injury. See U.S. Steel Mining
Co., 6 FMSHRC 1834, 1836 (Aug. 1984). The "operative time frame for determining if a
reasonable likelihood of injury exists includes both the time that a violative condition existed
prior to the citation and the time that it would have existed if normal mining operations had
continued." Rushton Mining Co., 11FMSHRC1432, 1435 (Aug. 1989).
The judge failed to consider whether there was a reasonable likelihood of injury during
the "operative time frame ... [of when the] violative condition existed prior to the citation." Id.
Having credited evidence that rocks fell from the cited areas prior to the issuance of the citation
(19 FMSHRC at 418, 421-22), the judge was required to consider whether there was a reasonable
likelihood that injury would have resulted from those rock falls. The judge failed to make his
S&S determination based on the ground conditions that he had considered in finding a violation.
For his S&S determination, the judge, in effect, required the Secretary to prove the probable
occurrence of new hazardous ground conditions during the last mining shift. The judge should
not have confined himself to a prospective analysis, asking only whether an injury-producing
event was reasonably likely to occur during continued operations where, as here, the event
creating the potential for injury had occurred prior to issuance of the citation. 7 See Bluestone
Coal Corp., 19 FMSHRC 1025, 1033 (June 1997); Walker Stone Co., 19 FMSHRC 48, 53 (Jan.
1997) (affirming S&S findings without prospective consideration of continued normal mining
conditions where injury-producing event had occurred prior to issuance of citations).
In viewing the record and the credibility determinations made by the judge in finding a
violation, we conclude that substantial evidence does not support the judge's conclusion that
Bellefonte's violation was not S&S. 8 Neither party has challenged the judge's finding that rocks
and other materials had fallen from the cited areas "at points in time not significantly remote
from the cited date." 9 19 FMSHRC at 418; see id. 421, 422. Testimony of witnesses credited by

7

That the rock falls that occurred prior to issuance of the citation did not actually result
in injury is not dispositive of the S&S determination. See Buffalo Crushed Stone, 19 FMSHRC
at 238 ("[T]he fact that no injuries had been reported as a result of the condition of the walkway
is not determinative of a conclusion that the third Mathies element has not been established.").
8

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means '"such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).

9

Bellefonte does not challenge the judge's finding that rocks fell from the cited areas
prior to March 17, 1995. B. Br. at 12 n.2. Rather, it argues that there is no evidence that an

1255

the judge (id. at 420-21) revealed that rocks falling from the right bank ranged in size up to two
feet in diameter, and that, depending upon how fast they came down, rocks sometimes rolled all
of the way across the working area. Tr. 203-04, 230-31. In addition, it is undisputed that the
areas were not benched to catch falling material, that the working area below was confined, and
that the loader operated at times approximately ten feet away from the spoil pile. 19 FMSHRC
at 421; Tr. 41, 63, 164, 166, 227-29. The judge also credited evidence that miners in the working
area were exposed to the falling material, discrediting testimony by Bellefonte's expert witness,
Lawrence Beck, that a rock falling off the pile would not be high enough to hit an equipment
operator in the area. 19 FMSHRC at 421-22. Bellefonte has offered no compelling reason to
overturn that credibility determination. In re: Contests of Respirable Dust Sample Alteration
Citations, 17 FMSHRC 1819, 1881 n.80 (Nov. 1995), aff'd sub nom. Secretary ofLabor v.
Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998).
Accordingly, we reverse the judge's determination that the violation was not S&S and
remand for the judge to consider whether the violation was caused by Bellefonte's unwarrantable
failure. Consequently, the question of whether the unwarrantable failure allegation survived
dismissal of the S&S allegation is moot, and we do not reach it. 10

injury producing rock fall would have occurred during the final mining shift. Id. at 12-17, 21.
Because we consider only those rock falls that occurred prior to March 17, we need not address
Bellefonte's argument.
10

In Commissioner Marks' opinion, the unwarrantable failure finding survived the
modification of the section 104(d)(l) citation to a section 104(a) citation, and consideration of
the special finding by the judge would have been appropriate.

1256

III.
Conclusion
For the foregoing reasons, we reverse the judge's determination that Bellefonte's
violation of section 56.3200 was not S&S. We remand to the judge for his consideration of
whether the violation had been caused by Bellefonte's unwarrantable failure to comply with the
standard, and for the reassessment of the civil penalty, if appropriate.

M~6:~

'h,tw1...,
Marc Lincoln Marks, Commissioner

Theodore F. Verheggen, Commis

1257

Distribution
Y oora Kim, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Boulevard, Suite 400
Arlington, VA 22203
John A. Snyder, Esq.
McQuaide Blasko
811 University Drive
State College, PA 16801
Administrative Law Judge Avram Weisberger
Federal Mine Safety and Health Review Commission
Office of the Administrative Law Judge
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1258

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

November 30, 1998

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

v.

Docket No. KENT 98-308
A.C. No. 15-07475-03560A

ROGER RICHARDSON

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

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On September 16, 1998, the Commission received from
Roger Richardson ("Richardson") a Request for Hearing on a proposed penalty assessment that
allegedly had become a final order of the Commission pursuant to section 105(a) of the Mine
Act, 30 U.S.C. § 815(a). It has been administratively determined that the Secretary of Labor
does not oppose the motion for relief filed by Richardson.
Section 105(a) of the Mine Act, and the Commission's procedural rules implementing
that section, provide that a person against whom a penalty is proposed to be assessed shall inform
the Secretary that he intends to contest the proposed penalty assessment "30 days from the
receipt of the notification issued by the Secretary." 30 U.S.C. § 815(a); 29 C.F.R. § 2700.26. If
the operator or person fails to so notify the Secretary, the proposed penalty assessment is deemed
a final order of the Commission. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.27.
In his request, Richardson submits that he first received notice of the proposed
assessment on approximately August 3, 1998, when he received documents from the Department
of Labor's Mine Safety and Health Administration ("MSHA") in response to a Freedom of
Information Act request that he had made to MSHA through counsel. Mot. at 1-2. He asserts
that he requested a hearing on August 11. Id. at 2. Richardson states that on approximately
September 5, his counsel received a letter from MSHA denying the hearing request as untimely.

1259

Id.; Ex. D. Richardson states that upon review of the September 5 letter, it appeared that the
proposed assessment had been sent to an address where he no longer resided, had been signed for
by his former wife, and that she had not forwarded the assessment to his new address. Mot. at 2.
Richardson claims that, since he contested the proposed penalty within 30 days after receiving
notice, he acted within the time limit imposed by the Mine Act. Id. He also requests that any
final order be set aside and that he be granted a hearing. Id. at 2-3.

Here, the proposed penalty assessment was mailed to an address where Richardson no
longer resided. Richardson was not required to notify MSHA of his change of address under
30 C.F.R. § 41.12. Richardson received a copy of the proposed penalty assessment on August 3,
1998, through a FOIA request that he initiated through counsel. Under these circumstances, we
conclude that Richardson did not "receive" the penalty assessment within the meaning of section
105(a) of the Mine Act and the Commission's Procedural Rules until August 3. Because
Richardson contested the proposed penalty assessment on August 11, well within the 30-day
time period, we conclude that Richardson timely notified the Secretary that he contests the
proposed penalty.

1260

Accordingly, the proposed penalty assessment is not a final order of the Commission.
We remand this matter for assignment to a judge. The case shall proceed pursuant to the Mine
Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Marc Lincoln Marks, Commissioner

Robert H. Beatty, Jr., Commissi

1261

er

Distribution

Billy R. Shelton, Esq.,
Baird, Baird, Baird & Jones, P.S.C.
415 Second Street
P.O. Box 351
Pikeville, KY 41502
W. Christian Schumann, Esq.
U.S. Department of Labor
Office of the Solicitor, Suite 400
4015 Wilson Boulevard
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

1262

ADMINISTRATIVE LAW JUDGE DECISIONS

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

NOV 18 1996
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 96-235
A. C. No. 42-01280-03644

V.

Docket No. WEST 96-338
A. C. No. 42-01280-03654

WHITE OAK MINING
AND CONSTRUCTION CO., INC.,
Respondent

White Oak #2 Mine

DECISION ON REMAND
Before:

Judge Hodgdon

This case is before me on remand from the Commission. White Oak Mining &
Construction Co., Inc., Docket Nos. WEST 96-235 and WEST 96-338 (October 30, 1998). 1
The Commission vacated the determination that White Oak did not violate section 48.7(a),
30 C.F.R. § 48.7(a), in task training Keith Smith as a continuous miner operator and remanded
the case for further analysis of whether the training given Smith constituted "the type of training
that a reasonably prudent person would have provided in order to meet the protection intended by
the standard's requirements." 2 Id at 6. For the reasons set forth below, I find that it did.
On March 24, 1995, Blue Samples, a 20-year old, inexperienced miner, who had worked
only 15 shifts at the mine, was hit and killed by the tail boom of a continuous-mining machine
being operated by Smith. At the time, Samples was working as Smith's miner helper. As the
result of an investigation into the accident, the Mine Safety and Health Administration (MSHA)
concluded that neither Samples nor Smith had been properly task trained. The original decision
found that Samples had not been adequately trained, but that Smith had. White Oak Mining &
Construction Co., Inc., 19 FMSHRC 1414 (August 1997).

1

Forthcoming as White Oak Mining & Construction Co., Inc., 20 FMSHRC 1130
(October 1998).
2

Section 48.7 requires that miners assigned to new work tasks as mobile equipment
operators shall not perform those tasks until they have been trained in the health and safety
aspects and safe operating procedures for the equipment, have had supervised practice during
non-production or supervised operation during production and have demonstrated safe operating
procedures for the equipment to the operator or the operator's agent.

1263

Order No. 3415831 alleges that Keith Smith was not "adequately" task trained as a
continuous miner operator because his training did not include the information that "[r]emote
control operations of continuous miners create special safety considerations with respect to
tramming the machine" as set out in Joy Service Bulletin No. FG-176 (9/24/91 ). Other than
tramming the continuous miner, the order makes no mention of what health and safety
information should have been included in the training, but was not. Furthermore, in her post
hearing brief, the Secretary did not state what health and safety information was required by
section 48.7(a), but seemed to rely entirely on the fact that the training only took 15-30 minutes
and that it did not involve use of the Joy Service Bulletin, as evidence of the violation.
There is no Commission precedent concerning what health and safety information and
supervised practice or supervised operation during production are required by section 48.7(a).
The only evidence offered by the Secretary on such requirements was the testimony of Donald E.
Gibson, Electrical, Educational and Training Supervisor for MSHA District 9. To the extent his
testimony was germane, it was, for the most part, generic and not tailored to specific facts of this
case. For instance, when asked what health and safety aspects should be included in the task
training of an experienced miner who had not operated a continuous miner in the previous 12
months, he replied:
Health first. Health would be -- and in conjunction with
health we're going to take into consideration the ventilation plan
because those run hand in hand and in our office when we evaluate
the ventilation plan for any coal mine, we do that hand in hand.
We look at the spray configuration on the machine, we look at if
it's a scrubber, we look at if it's a spray fan system, we look at the
water pressure, we look at the amount of water in gallons per
minute, we look at the flow rate, again, as gallons per minute,
orientation of the sprays when cutting left side, right side. All that
is for the prevention of pneumoconiosis and also silicosis, so those
are health aspects.
Another aspect of the health issue would be possibly
hearing protection, the operator is required to do noise survey, so is
there something causing abnormal or more than what is required
noise levels to be addressed in a hearing conservation plan?
(Tr. 384-85.) As can be seen, no indication is given of what training concerning the ventilation
plan was required in this case, nor are the deficiencies of the training given Smith pointed out.
In fact, little training was provided in this area because Smith had worked with Shane
Hansen, the person training him, for three months as a miner helper and Hansen was aware that
Smith was already familiar with the ventilation plan, and the roof control plan as well. Section
48.7(a) provides that task training is not required for "miners who have performed the new work

1264

tasks and who have demonstrated safe operating procedures for such new work tasks within
12 months preceding assignment." Consequently, I find that Smith's training met the
requirements of the section 48.7(a) in these two health and safety areas.
Gibson stated that Smith should have been trained in safe operating procedures for the
continuous miner. Once again he did not relate what specifically should have been covered, or
how Smith's training may have been deficient. However, based on the evidence, I find that
Smith was task trained in operation of the remote control, tramming the miner and the extent to
which the miner could swing, how to split the miner's tracks when turning, how to tum in
crosscuts, safe positions for miner's helpers to stand and the avoidance of pinch points at the
head and at the boom, specific methods of maneuvering the machine to cut coal, cutting coal
downhill, the cutting cycle, cleaning the scrubber, handling the cable, examining the cable for
damage, activation of the fire suppression system, scaling the roof and ribs, how to take gas
checks every 20 minutes, examination of the continuous miner, including the lights, bits, sprays,
scrubber, cable and fire hose and examination of the working area, including ventilation, before
commencing work. Accordingly, I conclude that Smith was adequately task trained in the safety
aspects of operating the continuous miner.
With regard to supervised practice or operation, Hansen testified as follows:
Q. During this time you were task training Mr. Smith did you ever
supervise him while he practiced operating the equipment?
A. Yeah.
Q. And was that during production or non-production?
A. Well, he just took just a few minutes to play with the controls
and get used to everything and then we trammed it into the face
and that was probably in production.
Q. Okay. And then he started cutting coal?
A. Yeah. And then I was probably there with him most of the day.
(Tr. 510-11.) The Secretary did not present any evidence to rebut this testimony. Therefore, I
find that Smith's training did include supervised operation during production.
I conclude that the task training provided to Smith amounted to the type of training that a
reasonably prudent person would have provided in order to meet the protection intended by the
requirements of section 48. 7(a). At the time that Smith was trained on the continuous miner he
had almost 20 years mining experience. He had previously operated the miner when employed at
this same mine by Valley Camp some 15 months prior to his training. Furthermore, he had

1Z65

served as a miner helper to Hansen on the same miner he was trained on for 3 months since
coming to work for White Oak. As even Gibson admitted, "[h]ad he been properly trained as the
miner helper ... the only difference [between miner helper training and miner operator training]
is it may be the operation of the machine because maybe they didn't train the helper to operate
the machine." (Tr. 394.) Needless to say, there is no evidence that Smith was not properly
trained as a miner helper.
The Secretary, relying mainly on the length of the training and the fact that the Joy
Service Bulletin was not used in the training, has failed to show that the training was not
adequate. While it is true that the service bulletin was not used in the training, it appears that the
materials in the bulletin with respect to tramming the miner and avoiding pinch points were
covered. Everything in White Oaks training plan, which had been approved by MSHA, was
covered in the training given to Smith, except changing bits and servicing the continuous miner.
These two items are also included in miner helper training, which Smith had already received.
The Secretary did not present any evidence concerning how the requirements of section
48.7(a) should have been met in this instance, nor did she demonstrate what was missing from
Smith's training that was required by the regulation. In fact, it is apparent that no one from
MSHA even bothered to interview Shane Hansen, Smith's trainer, concerning what the training
included. Accordingly, I conclude that White Oak did not violate section 47.8(a) when it task
trained Keith Smith as a miner operator.
ORDER
In view of the above, Order No. 3415831 is VACATED.

v.'J,#~

T. Todd Hod;~···
Administrative Law Judge

Distribution:
Yoora Kim, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Suite 400, Arlington, VA 22203 (Certified Mail)
William K. Doran, Esq., Heenan, Althen & Roles, 1110 Vermont Avenue, N.W., Suite 400,
Washington, D.C. 20005-3593 (Certified Mail)

/tb

12(6

ADMINISTRATIVE LAW JUDGE ORDERS

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

NOV 91998
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. SE 98-145
A. C. No. 01-00851-04031 A
Oak Grove Mine

WAYNE JONES, Employed by
UNITED STATES MINING COMPANY
LLC,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 98-146
A. C. No. 01-00851-04032 A

v.
Oak Grove Mine
MIKE SUMPTER, Employed by
UNITED STATES MINING COMPANY
LLC,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEAL TH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENAL TY PROCEEDING
Docket No. SE 98-147
A. C. No. 01-00851-04033 A

v.
Oak Grove Mine
DANNY JOE COOK, Employed by
UNITED STATES MINING COMPANY
LLC,
Respondent

1267

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

CIVIL PENAL TY PROCEEDING
Docket No. SE 98-148
A. C. No. 01-00851-04034 A

v.
Oak Grove Mine
ROBERT CUNNINGHAM, Employed by
UNITED STATES .MINING COMPANY
LLC,
Respondent

ORDER DENYING RESPONDENT'S
MOTION TO DISMISS
These cases are before me base upon Petitions for Assessment of Civil Penalty filed
pursuant to section 1 lO(c) of the Federal Mine Safety and Health Act of 1997 (the Act),
30 U.S.C. § 820(C). On October 7, 1998, Respondents filed a Motion to Dismiss the Secretary's
Petitions asserting that the Secretary did not notify Respondents within a reasonable time that it
intended to assess civil penalties against them; that it did not investigate and file the instant
Petitions in a timely manner; and that it did not issue citations with reasonable promptness. On
October 29, 1998, the Secretary filed its opposition to Respondents' motion.

Sequence of Events
The following is the sequence of events in these cases as set forth in Respondents'
motion, and not challenged in the Secretary's opposition:
1. On August 16, 1996, MSHA inspector 0. L. Jones issued a Section 104(d)
Order, No. 4478893, to U.S. Steel Mining Company ("USM") alleging a violation
of 30 C.F.R. § 75.204(f)(4). USM did not contest the Order and paid the penalty
it was assessed.
2. On August 17, 1996, MSHA inspector 0. L. Jones issued a Section 104(d)(l)
Order, No. 4478891, to USM alleging a violation of 30 C.F.R. § 75.202(b). USM
did not contest the Order and paid the penalty it was assessed.
3. These orders arose out of an investigation of a fatal accident at an overcast
construction site in the Main North Area ofUSM's Oak Grove Mine on
August 16, 1996. The conditions alleged in the two orders did not cause or
contribute to the accident according to the report MSHA prepared concerning the
accident.

1268

4. Mr. Clinningham was the Area Manager in the Main North Section in August
1996.
5. Mr. Sumpter was the general mine foreman at the Oak Grove Mine.
6. Mr. Jones was a section foreman at the Oak Grove Mine but was not present
at the mine on August 16, 1996.
7. Mr. Cook was a construction foreman at the Oak Grove Mine.
8. On August 30, 1996, a determination was made by the MSHA District
Manager with responsibility over the Oak Grove Mine, that a special investigation
should be performed to determine if individual liability under Section 110(c) of
the Federal Mine Safety and Health Act of 1977 ("the Act"), 30 U.S.C. § 820(c),
should be imposed.
9. Despite MSHA's determination on August 30, 1996 that special investigation
should be initiated, the case was not assigned to a special investigator until
February 21, 1997. Special Investigator Mike Belcher conducted the
investigation in conjunction with Mr. Deason, at that time a special investigatorin-training.
10. Mr. Belcher and Mr. Deason did not work on the case full time after it was
assigned to them but did interview six witnesses before March 18, 1997. At that
point, Mr. Belcher ceased to be part of the investigation but Mr. Deason and
another MSHA special investigator, conducted another witness interview on
March 20, 1997. This was the last interview conducted in the special
investigation before Mr. Deason submitted his report over six months later.
11. In late March into early May, 1197, Mr. Deason sought to arrange interviews
of management personnel. He was unable to do so but if he had done so, he
would have had to obtain a special investigator to actually conduct the interview.
12. On or about May 14, 1997, MSHA District Manager, Michael J. Lawless,
notified Ron Osborne, General Manager of the Oak Grove Mine, that Mr. Deason
was seeking to interview him and others in the special investigation and that if
such an interview was not conducted by May 20, 1997, the special investigator's
report would be forwarded to MSHA' s headquarters for processing.
13. According to MSHA' s Program Policy Manual, investigative reports are to be
submitted to MSHA's Headquarters Technical Compliance and Investigation
Division ("TCID") within 240 days from the date the subject citation or order is
issued. The Program Policy Manual also indicates "the maximum time for

1269

submission to the investigative report on TCID is 365 days from the date of the
issuance of the citation or order. TCID monitors all special investigations "to
ensure compliance with the 240-day time frame." Chapter 4 of MSHA'a Special
Investigation Procedures Handbook contains the same time deadlines.
14. Despite these guidelines, the investigative report in this matter was not
submitted to TCID until October 10, 1997, approximately 14 months later.
15. As part of the review process with MSHA, the cases are referred to the
Solicitor's office. This was done on October 23, 1997.
16. The Solicitor's office completed its review of the file on or before
February 13, 1998, the date of the letters notifying Respondents ofMSHA's intent
to prepare penalties. That review is to be completed within 60 days of submission
of the file to the Solicitor's Office. Such timeframe was apparently not met in this
case.
17. Respondents were notified by letters dated February 13, 1998, that MSHA
intended to assess individual civil penalties against them as a result ofMSHA's
investigations. Mr. Cunningham is charged with respect to both Orders
No. 4478891 and 4478893. Mr. Cook, Mr. Jones and Mr. Sumpter are charged
only with respect to Order No. 4478891.
18. A Part 100 Manager's Conference was held on February 24, 1998. By
Proposed Assessments dated May 27, 1998, Respondents were notified of their
proposed individual penalties. Respondents notified MSHA of their intent to
challenge the penalties and on June 25, 1998 the Secretary filed the instant
Petitions for Assessment of Civil Penalties.
Discussion
Section 105(a) of the Act requires that operators must be notified of penalty proposals
"within a reasonable time." This requirement, by reason of fairness, should also apply to
individuals against whom penalties are sought pursuant to section 110(c) of the Act. Further,
section 104(a) of the Act, requires that citations be issued by the Secretary to operators "within
reasonable promptness." However, there is no binding legal authority which would require
dismissal of the instant proceedings because of any delay by the Secretary in its investigation of
these matters, and in the initiation of proceedings against the individual Respondents. There is
no Commission decision on point. The cases cited by Respondents on page 14 of their brief are
by Commission Judges and thus have no precedential value under the Commission's Rules,
29 C.F.R. § 2700.72. Further, the cases relied on by Respondents time are distinguishable. In
Doyal Morgan et al, 20 FMSHRC 38 (Chief Judge Merlin, January 1998), the 1 lO(c)
proceedings were dismissed by Judge Merlin who held that the record did not indicate any

1270

difficulties in the investigation or acceptable reason to explain the delay. In Reymond P. Ernst
employed by Lyon Sand and Gravel Company, 18 FMSHRC 1674 (Chief Judge Merlin,
September 1996), the 110(c) action was dismissed by Judge Merlin based on the failure of the
Secretary to present reasons explaining the cause of the delay. In Robert J Cox, 19 FMSHRC
1094 (Judge Fauver, 1997) a 1 IO(c) proceeding was dismissed as being untimely, but the
decision does not discuss whether the Secretary presented any reason to explain the delay. In
contrast, in the case at bar, an affidavit of Fredrick R. Schell sets fourth credible reasons for the
delays encountered in this case. Schell avers as follows:

***
8. The Section 11 0(c) investigation at issue was not a routine special
investigation. It arose out of investigation of a fatal roof control accident which
occurred at an overcast location in the Main North area of United States Steel's
Oak Grove Mine. The special investigation was conducted concurrently with
three Section 105(c) discrimination investigations, which arose out of the same
violations issued in this matter. The two roof control violations, which are subject
to this Section 110(c) investigation, were in the same location of the mine as a
fatal roof fall accident.
9. During the time period when this Section 110(c) investigation was being
conducted, the District's Special Investigation Unit had a very heavy case load,
including more than 50 Section 110(c) and 110(d) violations to investigate, and
only one trained special investigator. Also there was a number of concurrent
Section 105(c) investigations which were being investigated by the District
Special Investigation Unit. This caused a delay in starting and completing this
special investigation. As a result, the nonmandatory guidelines for completing
this investigation, stated in MSHA' s Program Policy Manual, were not met.
10. This was a complex case which contained 15 separate interviews and
numerous documents to determine which of the operator's agents knowingly
violated the regulation. Based upon my review of this file, I believe the time
period to investigate this case was reasonable.
I find that the delays in this case were not so egregious as to require the harsh remedy of
dismissal (see, White Oak Mining and Construction, Inc., 20 FMSHRC 551 (Judge Hodgdon)
(May 1998). Respondents also assert prejudice occasioned by the Secretary's delay citing the
fading of witnesses memories which inevitably occurs with the passage of time. Respondents
have not set forth any specifics in this case to support their assertion, and I reject it. I concur
with Chief Judge Merlin that prejudice will not be incurred from passage of time alone
(James Lee Hancock employed by Pittsburgh and Midway Coal Co., 17 FMSHRC 1671, 1675
(Judge Merlin, September 1995). The only specific allegations of prejudice asserted by
Respondents are references to the death J. T. Williams a potential witness to the events in issue,

1271

and Walter Deason the MSHA investigator who conducted the investigation at issue. I find these
assertions inadequate to establish legal prejudice. Williams died 2 months after the citations
were issued and thus in all likelihood would not have been available to testify at a hearing.
Deason, as the MSHA investigator, would, in all likelihood, have been a witness for the
Secretary as part of its prima facie case. Hence, his death would appear to be a detriment to the
Secretary and not to Respondents.
Accordingly, for all the above reasons, I find that Respondents have failed to establish
that dismissal of these proceedings is appropriate. Accordingly, Respondents motion to dismiss
is DENIED.
ORDER
It is ORDERED that Respondents Motion to Dismiss Because of Unreasonable Delay by
the Secretary is DENIED.

'4---\

A~;~isbergerL.-Administrative Law Judge
Distribution:
Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Suite 400, Arlington, VA 22203 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll Professional Corporation, One Oxford Centre,
301 Grant Street, 20th Floor, Pittsburgh, PA 15219 (Certified Mail)

dcp

1272

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

NOV 10 1998
GREGORY BENNETT,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. WEST 98-115-D
WEMD 97-21

NEWMONT GOLD COMPANY,
Respondent

Twin Creeks Mine
Mine ID 26-01942

ORDER
By motions dated October 7 and 16, 1998, and November 9, 1998, Gregory Bennett
seeks: 1) citing Commission Rule 80, that I take disciplinary action against Newmont Gold
employees Blas Duran, Cindy Jones, Chris Conley, Richard Tucker and David Stacy, for alleged
false testimony during the hearing on his discrimination complaint, and 2) citing Commission
Rule 81, that I withdraw from his case, because I am biased and have denied him the right to
fully present his case.
Noting one occasion that I addressed the perjury concerns, on August 11, 1998, my
secretary, Maggie Herrera, read my handwritten message to Mr. Bennett that he should reference
untruthful and contradictory testimony from the transcript in his post-hearing memorandum, and
that I make rulings on the credibility of witnesses. Discipline of Newmont Gold's employees is
simply not authorized under Commission Rule 80, nor is it within the purview of my authority
under any other Commission Rule.
Respecting Mr. Bennett's motion that I withdraw from his case, I have carefully
considered all the reasons advanced in support of his request and conclude that they are without
foundation.

WHEREFORE, Gregory Bennett's motions for discipline of Newmont Gold employees
and my withdrawal from his case are DENIED.

~-~~
Administrative Law Judge

1273

Distribution: ·
Mr. Gregory Bennett, P.0.Box 61, Golconda, NV 89414 (Certified Mail)
David J. Farber, Esq., Patton Boggs, L.L.P., 2550 M Street, N.W., Washington, DC 20037
(w/attachments: 1017/98, 10/16/98 and 11/9/98 motions of Gregory Bennett) (Certified Mail)
\mh

1274