SEPTEMBER 2000

COMM1SSION DECISIONS AND ORDERS
09-07-2000 Akzo Nobel Salt, Inc.
09-11-2000 John Richards Construction
09-15-2000 Nolichuckey Sand Company, Inc.
09-19-2000 RAG Cumberland Resources Corp.

LAKE 96-45-RM
WEST 2000-470-M
SE
99-101-RM
PENN 98-15-R

Pg. 1051
Pg. 1054
Pg. 1057
Pg. 1066

WEST 2000-44-M
CENT 2000-65
WEST 99-38-M
YORK 99-39-M

Pg. 1081
Pg. 1091
Pg. 1116
Pg. 1127

WEVA 2000-31-D
YORK 2000-38-M

Pg. 1135
Pg. 1144

WEV A 2000-40-D

Pg. 1148

WEVA 2000-31-D

Pg. 1150

WEV A 2000-31-D

Pg. 1157

CENT 2000-75-DM

Pg. 1160

ADMINISTRATIVE LAW JUDGE DECISIONS
09- 13-2000 Alan Lee Good
09-20-2000 Georges Colliers, Inc.
09-21-2000 Harney Rock & Paving Company
09-22-2000 Douglas R. Rushford Trucking

ADMINISTRATIVE LAW JUDGE ORDERS
09-06-2000 Sec. Labor on behalf of Michael Jenkins, etc.
v. Durbin Coal, Inc.
09-08-2000 Tilcon Capaldi Inc.
09-15-2000 Sec. Labor on behalf of Gary Dean Munson
v. Eastern Associated Coal Corp.
09- 15-2000 Sec. Labor on behalf of Michael Jenkins, etc.
· v. purbin Coal, Inc.
09-22-2000 Sec. Labor on behalf of Michael Jenkins, etc.
v. D·urbin Coal, Inc.
09-28-2000 Sec. Labor on behalf of John Noakes
v. Gabel Stone Company, Inc.
(Decision pending final order)

i

SEPTEMBER 2000

Review was ~anted in the following cases during the month of S~tember:

Secretary of Labor, MSHA v. Lopke Quarries, Inc., Docket No. VA 99-17-M.
(Judge Hodgdon, July 28, 2000)
Secretary of Labor on behalf of Leonard Bemardyn v. Reading Anthracite Company,
Docket No. PENN 99-129-D, 99-158-D. (Judge Weisberger, August 1, 2000)
Secretary of Labor, MSHA v. Shelly Materials, Inc., Docket No. LAKE 2000-64-M.
(Chief Judge Barbour, unpublished Default Order issued August 7, 2000)

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

Secretary of Labor, MSHA v. Eighty-Four Mining Company, Docket No.
PENN 99-218. (Judge Weisberger, August 4, 2000)

ii

COMMISSION DECISIONS AND ORDERS

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

WASHINGTON, D.C. 20006

September 7, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos. LAKE 96-45-RM
LAKE 96-65-RM
LAKE 96-66-RM
LAKE 96-80-RM

AKZO NOBEL SALT, INC.

BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners
ORDER
BY: THE COMMISSION
In this consolidated civil penalty and contest proceeding, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994), the Commission reversed the
decision of Administrative Law Judge George Koutras to vacate a citation issued to Akzo Nobel
Salt, Inc. ("Akzo"), charging a violation of the two-escapewayrequirement of30 C.F.R
§ 57.11050(a): 21 FMSHRC 846 (Aug. 1999). A Commission majority held that the operator,
by failing to provide two escapeways at all times when miners were underground, had violated
the plain terms oftlie regulation. Id. at 853 (Chairman Jordan and Commissioner Riley), 864
(Commissioner Marks). Commissioners Verheggen and Beatty, dissenting in separate opinions,
disagreed that the regulation had the plain meaning ascribed to it by the majority. Id. at 865-69
(Commissioner Verheggen), 870-74 (Commissioner Beatty).
In Akzo Nobel Salt, Inc. v. FMSHRC, 212 F.3d 1301 (D.C. Cir. 2000), the D.C. Circuit
overturned the Commission majority's decision, holding that the regulation does not
unambiguously require that two escapeways be functional at all times when miners are
underground. Id. at 1303. The Court remanded the case so that the Commission could secure
from the Secretary an "authoritative interpretation" of section 57.11050 and apply standard
deference principles to that interpretation. Id. at 1305.
After issuance of the court's mandate, the Secretary vacated the underlying citation and
on July 26, 2000, filed a motion to dismiss this case as moot. Akzo did not file an opposition to
1051

the motion. In her motion, the Secretary stated that the "authoritative interpretation" the court
required of her was contained in Program Policy Letter No. POO-IV-2, which took effect July 31,
2000. Mot. at 2.
In light of the foregoing, the Secretary's motion is granted and this case is dismissed.

James C. Riley, Commissioner

i

·; ;a-/}

Robert H. Beatty, Jr., Commissioner

1052

Distribution
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Mark N. Savit, Esq.
Patton Boggs LLP
2550 M Street, N.W.
Washington, D.C. 20037

1053

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

September 11, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEST 2000-470-M
A.C. No. 24-02070-05504

JOHN RICHARDS CONSTRUCTION

BEFORE: Jordan, Chairman; 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 June 30, 2000, the Commission received from
John Richards Construction ("Richards") a request to reopen a penalty assessment that had
become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a). The Secretary of Labor does not oppose the motion for relief filed by Richards.
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 his request, Richards asserts that he never received a copy of the proposed assessment.
Mot. at 1-2. Richards states that he was not aware of the proposed penalty and would have
appealed it along with all other penalties he has appealed. Id. at 2. Richards requests an
opportunity for a hearing on this penalty assessment. Id.
We have held that, in appropriate circumstances and pursuant to Fed. R. Civ. P. 60(b), we
possess jurisdiction to reopen uncontested assessments that have become final by operation of
section 105(a). See, eg., Kenamerican Resources, Inc., 20 FMSHRC 199, 201(March 1998);
Jim Walter Resources, Inc., 15 FMSHRC 782, 786-89(May1993). We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of adequate or
good cause for the failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Preparation Servs., Inc., 17 FMSHRC 1529,
1054

1530 (Sept. 1995). In accordance with Rule 60(b)(l), we have previously afforded a party relief
from a final order of the Commission on the basis of inadvertence or mistake. See National Lime
& Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal Co., 19 FMSHRC 1613, 161415 (Oct. 1997); Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997); Kinross
Delamar Mining Co., 18 FMSHR.C 1590, 1591-92 (Sept. 1996).
On the basis of the present record, we are unable to evaluate the merits of Richards'
position. While Richards. claims that he did not receive the proposed penalty assessment, the
reasons for, and circumstances surrounding that alleged non-receipt are not clear from the record.
In the interest of justice, we remand the matter for assignment to a judge to determine whether
Richards has met the criteria for relief under Rule 60(b). See, e.g., Bauman Landscape, Inc., 22
FMSHRC 289, 290 (Mar. 2000) (remanding where operator claimed it did not receive penalty
assessment and that the return receipt was not signed by him); Warrior Investment Co., Inc., 21
FMSHRC 971, 973 (Sept. 1999) (remanding where operator did not provide any explanation for
alleged non-receipt of proposed penalty assessment); Harvey Trucldng, 21 FMSHRC 567 (June
1999) (remanding to a judge where the operator did not receive the proposed penalty assessment
because delivery was unsuccessful for no known reason). If the judge determines that such relief
is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.

James C. Riley, Commissioner

. r.
Theodore F. Verheggen, Co

Robert H. Beatty, Jr., Commissioner

1055

Distribution
John Richards
John Richards Construction
Box 316
Seeley Lake, MT 59868
W. Christian Schumaiµi, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

1056

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

September 15, 2000

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

Docket Nos. SE 99-101-RM
SE 99-102-RM
SE 99-103-RM
SE 99-104-RM
SE 99-105-RM
SE 99-106-RM

v.
NOLICffiJCKEY SAND
COMPANY, INC.

BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners
DECISION
BY THE COMMISSION:
This contest proceeding arises under the Federal Mine SafetY and Health Act of 1977, 30
U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). At issue is the decision of Administrative
Law Judge Avram Weisberger to affirm six citations issued to Nolichuckey Sand Company
(''Nolichuckey") alleging violations of30 C.F.R. § 56.14109(a). 1 21FMSHRC681(June1999)
(ALJ). The Commission granted Nolichuckey's petition for discretionary review challenging the
decision. For the reasons that follow, we vacate the judge's decision and remand for further
consideration.

I 30 C.F.R. § 56.14109, entitled "Unguarded conveyors with adjacent travelways,"
provides in pertinent part:

Unguarded conveyors next to the travelways shall be equipped
with - (a) Emergency stop devices which are located so that a
person falling on or against the conveyor can readily deactivate the
conveyor drive motor; or (b) Railings which - (I) Are positioned
to prevent persons from falling on or against the conveyor; ... and
(3) Are constructed and maintained so that they will not create a
hazard.
1057

I.
Factual and Proceciural Background
Nolichuckey operates a sand and gravel pit in Greenville, Tennessee. Notice of Contest;
Tr. 15-17. At Nolichuckey' s pit, loaders mine sand and gravel, which is then transported by haul
trucks to a crusher. Tr. 16-17. The material is then processed and transported along a series of
belts throughout the facility. Tr. 17. Platforms are located alongside all the belts and are traveled
by miners when they conduct routine inspections and maintenance of the belts. Tr. 45, 48-49,
134-36. Some ofNolichuckey's belts are supported by structures called trusses, which measure
24-inches above the adjacent platform. Tr. 39-40, 141; Ex. C-1. These conveyors are equipped
with handrails situated between the belts and the adjacent maintenance platforms. Ex. C-1. The
handrails on these belts measure 42 inches above the platforms and extend higher than the belts.
Ex. C-1; Tr. 155-56. Other belts at Nolichuckey's pit are supported by trusses measuring 42inches above the adjacent platforms. Tr. 39, 43, 140; Ex. C-1. These higher belts are between 50
to 54 inches above the maintenance platforms, and extend between 8 and 12 inches above the
tops of the trusses. Gov't Exs. 1-12; Ex. C-1. Unlike the belts supported by 24-inch trusses, the
higher belts have no separate railing along the platforms. Gov't Exs. 1-12; Ex. C-1.
On January 19, 1999, Elton Hobbs, an inspector with the Department of Labor's Mine
Safety and Health Administration (''MSHA"), inspected Nolichuckey's pit. 21 FMSHRC at 682;
Tr. 20. He observed that the conveyor belts supported by 42-inch high trusses did not have either
stop cords or railings, and he discussed these conditions with foreman Jerry Knight and Thomas
Anthony Bewley, Nolichuckey's president. 21 FMSHRC at 682; Tr. 21. Bewley told Inspector
Hobbs that MSHA had previously informed him that if conveyors were supported by 42-inch
structures, such as the higher belts at Nolichuckey's pit, they did not need to have railings or stop
cords. 21 FMSHRC at 682; Tr. 22, 24-27. Hobbs then spoke with his supervisor, Larry Nichols,
who instructed him to allow Nolichuckey to come into compliance, and not to issue any citations.
21 FMSHRC at 682; Tr. 24. Bewley did not agree to install stop cords or railings on the higher
belts. 21 FMSHRC at 682; Tr. 27. When Hobbs returned on January 28, he discovered that
Nolichuckey had riot provided railings or stop cords. 21 FMSHRC at 682; Tr. 27-28, 49-50.
Consequently, he issued six citations based on the lack of stop cords or railings on the higher
belts. Tr. 27-28. Nolichuckey contested the citations, and the matter proceeded to hearing before
Judge Weisberger.
In affirming all six citations, the judge concluded that the platforms in question were
"travelways" because they were "regularly used" by miners to inspect and maintain the belts, and
therefore the belts alongside them were required to have guards. 21 FMSHRC at 683-84. He
rejected Nolichuckey's contention that MSHA's prior enforcement position permitting the cited
conditions to exist without citation estopped it from issuing the instant citations. Id. at 684. The
judge also stated that the belt structure itself did not constitute a guard and therefore did not place
Nolichuckey in compliance with the standard. Id. at 685. Finally, the judge found that the

1058

operator's diminution of safety argument was not available because it had not fulfilled the
prerequisite of filing a petition for modification. Id.
·

n.
Di§position
Nolichuckey points to conflicting testimony among the Secretary's witnesses regarding
the minimwn belt height above which no guards or stop cords are required, and argues that there
is no "published MSHA policy to inform mine operators of their responsibilities by providing
specific measurement guidance." Amended PDR at 3. The operator claims that the cited
maintenance platforms are not "travelways" because they are not regularly used to go from one
place to another, and that section 56.14109 is therefore inapplicable. PDR at 1; Amended PDR
at 4-6. Nolichuckey further maintains that the judge's interpretation of section 56.14109 is
erroneous because it goes beyond the plain meaning of the regulation. Amended PDR at 7. The
operator submits that it lacked notice that MSHA's interpretation of the standard covered
maintenance platforms next to conveyors. Amended PDR at 4, 6-7. Nolichuckey also argues
that the Secretary should be estopped from requiring compliance because her newly articulated
policy is contrary to her longstanding enforcement policy. Id. at 8 .. Finally, Nolichuckey claims
that the judge erred in refusing to consider its argument that compliance with section 56.14109
would have diminished safety. PDR at 1; Amended PDR at 6.
The Secretary responds that "the evidence in this case supports and indeed compels the
conclusion that 42-inch structures are 'unguarded.'" S. Br. at 14. The Secretary also argues that
the judge properly interpreted the term "travelway" to include the cited catwalks. Id. at 8-18.
The Secretary maintains that Nolichuckey had adequate notice of her interpretation of section
56.14109. Id. at 18-23. Finally, the Secretary submits that Nolichuckey's argument that
compliance wi~ section 56.14109 would create a greater hazard should be rejected because the
operator did not first file a petition for modification. Id. at 23-28.

A.

Threshold Requirements of Section 56.14109

On its face, section 56.14109 contains two threshold requirements which must be ·
satisfied before the regulation's sp~ific requirements apply. First, the cited conveyor belt must
be next to a ''travelway." Second, the conveyor belt must be ''unguarded."
1.

Meaning of"Travelway"

The "language of a regulation . . . is the starting point for its interpretation." Dyer v.
United States, 832 F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm 'n v.
GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). 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
1059

results. See id.; Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993); Utah Power &
Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989). It is only when the meaning is ambiguous that
deference to the Secretary's interpretation is accorded. See Udall v. Tallman, 380 U.S. 1, 16-17
(1965) (finding that reviewing body must "look to the administrative construction of the
regulation if the meaning of the words used is in doubt") (quoting Bowles v. Seminole Rock &
Sand Co., 325 U.S. 410, 413-14 (1945)); Exportal Ltda. v. United States, 902 F.2d 45, 50 (D.C.
Cir. 1990) ("Deference ... is not in order if the rule's meaning is clear on its face."), quoting
Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984).
We have held that the meaning of a broadly-worded regulation may be determined from
its plain language. For instance, in Austin Power, Inc., the Commission held that "[a] plain
reading of [30 C.F.R. §] 77. l 607(g)2 reveals that it does not limit the protection it affords to any
particular class of persons . . . . Rather the standard protects all persons within the potential zone
of danger from all reasonably foreseeable hazards resulting from the starting or moving of the
equipment." 9 FMSHRC 2015, 2019 (Dec. 1987). In Inland Steel Coal Co., we held that the
plain language of a regulation which provides that "each operator of an underground coal mine
shall ... provide bathing facilities ... for the use of the miners at the mine" extended not only to
miners working underground, but also to miners working on the surface at underground mines.
4 FMSHRC 1218, 1221-22(July1982).
The judge's decision upholding MSHA's treatment of the maintenance platforms as
"travelways" under section 56.14109 is consistent with a plain meaning application of that term.
As applied in 30 C.F.R. Part 56, Subpart M, "travelway" is defined as "[a] passage, walk, or way
regularly used or designated for persons to go from one place to another." 30 C.F.R. § 56.14000.
Nolichuckey does not dispute that the cited maintenance platforms were located adjacent to
conveyors, that each platform constituted "a passage, walk, or way," or that the platforms were
regularly used by miners to inspect and maintain the belts. Tr. 135-36. Moreover, despite
Nolichuckey's insistence that the cited maintenance platforms do not go from one place to
another, the pla~ language of the regulation does not limit the definition of the word "place" to
another section of the mine. In this regard, the Commission has looked to the ordinary meaning
of terms not defined by statute or regulation. See Peabody Coal Co., 18 FMSHRC 686, 690
(May 1996) (applying dictionary definition of term not defined in statute), aff'd, 111 F.3d 963
(D.C. Cir. 1997) (table). "Place" is broadly defined as "a particular portion of a surface."
Webster 's Third New Int 'l Dictionary 1727 (1993). Because the end of the platform is a
particular portion of the platforin, and also a particular portion of the mine, we believe that the
end of a maintenance platform may properly be treated as a "place" under the ordinary meaning
of that broad term. Therefore, the platforms fit squarely within the definition of travelways.
Furthermore, given the explicit aim of section 56.14109 to prevent injury to miners working near
conveyors, we see no indication that the rulemakers intended to implicitly exclude conveyors
adjacent to maintenance platforms from the regulation's coverage merely because there are no
2

30 C.F.R. § 77.1607(g) provides, in pertinent part: "Equipment operators shall be
certain ... that all persons are clear before starting or moving equipment."
1060

exits on the other ends of the platforms. This is particularly so where, as here, miners have to
traverse the platforms and then make a return trip, thereby doubling their exposure to the
conveyor hazards section 56.14109 is expressly designed to prevent.3
Courts have held that an agency's interpretation may be permissible but nevertheless fail
to provide the notice required to support imposition of a civil penalty. See General Elec. Co. v.
EPA, 53 F.3d 1324, 1333-34 (D.C. Cir. 1995); Phelps Dodge Corp. v. FMSHRC, 681F.2d1189,
1193 (9th Cir. 1982). Where the imposition of a civil penalty is at issue, considerations of due
process "prevent[] ... deference [to an agency's interpretation] from validating the application of
a regulation that fails to give fair warning of the conduct it prohibits or requires." Gates & Fox
Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986) (citations omitted).
We find no merit in Nolichuckey's assertion that it lacked notice that its platforms were
"travelways" under the Secretary's regulation. The Commission has held that, where "the
meaning of a standard is clear based on its plain language, it follows that the standard provided
the operator with adequate notice ofits requirements." LaFarge Constr. Materials, 20 FMSHRC
1140, 1144 (Oct. 1998); see also Bluestone Coal Corp., 19 FMSHRC 1025, 1029 (June 1997)
(holding that adequate notice provided by unambiguous regulation). Accordingly, because the
meaning of''travelway'' as defined in section 56.14000 and as applied to Nolichuckey's
maintenance platforms by section 56.14109 is clear from the plain language of the regulations, it
follows that the standard itself provided Nolichuckey with notice of its meaning. 4
2.

Meaning of ''Unguarded"

In this case, the Secretary issued citations alleging violations of section 56.14109 because
she determined that the conveyors supported by 42-inch trusses were unguarded. Tr. 44 (Hobbs

3

In support of its claim that the cited maintenance platforms are not ''travelways" withiil
the definition set forth in section 56.14000, Nolichuckey cites several unreviewed administrative
law judge decisions. Amended PDR at 5. Commission Procedural Rule 72, 29 C.F.R.
§ 2700.72, provides that unreviewed administrative law judge decisions are not precedent
binding upon the Commission. See Capitol Aggregates, 2 FMSHRC 1040, 1041 n.1 (May
1980). In any event, the cases NQlichuckey relies on are readily distinguishable from the instant
matter. See Magma Copper Co., 1 FMSHRC 837, 857 (July 1979) (holding that the cited area
did not constitute a "travelway'' because it was not regularly used); Consolidation Coal Co., 8
FMSHRC 1946, 1958 (Dec. 1986) (same); Tide Creek Rock, Inc., 18 FMSHRC 390, 410 (Mar.
1996) (holding that work platform was not a walkway because it was an employee work station
and was not used to go from one place to another or to gain access to equipment).
4

Commissioner Riley believes that the term ''travelway'' is ambiguous, but would affirm
the judge's treatment of the cited platforms as travelways based on his belief that the Secretary's
interpretation is reasonable. However, he has concerns about whether Nolichuckey was on
notice of the Secretary's interpretation.
1061

testifying that he determined that the cited conveyors were unguarded). However, we are unable
to discern the basis for this determination.
The term "unguarded" is not defined in 30 C.F.R. Part 56, Subpart M. Moreover, nothing
in the legislative history of section 56.14109 provides guidance in determining whether the cited
conveyors should be considered unguarded. In the course of defending the instant citation, the
Secretary offered several explanations for how she decided whether a conveyor was unguarded.
In describing the circumstances under which they would not issue citations for violations of
section 56.14109, the Secretary's witnesses failed to present a coherent interpretation of when a
belt is considered "guarded."
For instance, Inspector Hobbs testified that ''if a conveyor is high enough to where it
doesn't create a hazard, then a railing or stop cord does not have to be provided." Tr. 70.
Furthermore, the Secretary stipulated that previous inspectors had treated all ofNolichuckey's
belts as complying with the standard because the belts were equipped with 42-inch trusses. Tr.
22, 24-26. The Secretary's Program Policy Manual, however, states that the conveyor
installation or framework cannot be considered an allowable guard even though it may conform
to the standard railing height of 42 inches. N MSHA, U.S. Dep't of Labor, Program Policy
Manual, Part 56/57, at 55a-55b (1991). Is a higher framework an allowable guard? Testimony
from the Secretary's witnesses seemed to indicate it could be. Hobbs estimated that a conveyor
located seven feet above a walkway would not require stop cords or guarding. Tr. 70-71.
Nichols stated that "[a]nything above head high then we'd have a possibility it wouldn't be a
violation." Tr. 125. He admitted, however, that a problem with a head-high exception is that it
implicitly requires different belt heights depending on the height of the individual on 1he
platform. Tr. 126-27.
The D.C. Circuit has stated that, when interpreting an ambiguous regulation, deference is
normally owed to the Secretary's litigation position before the Conunission. Akzo Nobel Salt,
Inc. v. FMSHRC, 212 F.3d 1301, 1304 (D.C. Cir. 2000). The Supreme Court has upheld the
government's interpretation of a regulation, even where it had articulated a prior inconsistent
interpretation. See Thomas Jefferson Univ. v. Shalala,-512 U.S. 504, 515-18 (1994). However,
courts defer to agency interPretations of ambiguous regulations first put forward in the course of
litigation only where they "reflect the agency's fair and considered judgment on the matter in
question." Auer v. Robbins, 51? U.S. 452, 462 (1997); accord Akzo, 212 F.3d at 1304.
The Secretary's failure to advance any consistent interpretation of ''unguarded" suggests
that she has in fact never grappled with - and thus never exercised considered judgment over the regulation's ambiguity. Therefore, we do not pass on the permissibility of any of the
interpretations advanced at the hearing. Instead, we remand for the judge to secure from the
Secretary an "authoritative interpretation" of what constitutes an unguarded conveyor within the
meaning of section 56.14109. See Akzo, 212 F.3d at 1305. Upon obtaining the Secretary's
interpretation, we direct the judge to apply traditional principles of regulatory interpretation to
determine if the Secretary's interpretation is reasonable and entitled to deference. See Secretary

1062

ofLabor 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 unless it is plainly erroneous or
inconsistent with the regulation"' (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. at
414) (other citations omitted). 5
Separate from the question of whether to accord deference to the Secretary's
interpretation of an unguarded conveyor is whether the operator was on notice of the regulation's
requirements. However, because we do not know what the Secretary's interpretation of the
regulation is or what it requires, we cannot address at this juncture the issue of whether
Nolichuckey was afforded notice that its maintenance platforms were unguarded within the
meaning of section 56.14109. After obtaining the Secretary's interpretation, the judge on remand
must decide whether the operator was on notice of the regulation's requirements. In addressing
the notice issue, the judge must also reconcile the Secretary's claim that Inspector Hobbs
provided actual notice to the operator, with her claim that it is unreasonable for operators to rely
on the oral assertions ofMSHA inspectors when applicable regulations and government manuals
provide notice of the operator's obligations. S. Br. at 21-22.
B.

Stop Cord or Railing Requirements

If the initial conditions of section 56.14109 aie present, the plain terms of the regulation
require the installation of either guard railings or stop cords. The standard, which states that
conveyors falling under the standard must be equipped with "(a) [e]mergency stop devices ... or
(b) [r]ailings" is plainly disjunctive. In his analysis, the judge focused solely on the guard rail
requirement of the standard. While he discussed in the fact section of his opinion the possibility
of compliance through installation of stop cords, he failed to address in his analysis the
possibility that compliance could be achieved through installation of stop cords. See 21
FMSHRC 684-85. We also observe that the operator nowhere claims that installation of stop
cords, if required by the regulation, would pose a safety hazard. If on remand the judge finds that
the threshold requirements of section 56.14109 existed, he must examine both the stop cord and
railing compliance options set forth in subsections (a) and (b) of the standard.
C.

Estoppel

The Commission has held_that the estoppel defense is not ordinarily available against the
government. King Knob Coal Co., 3 FMSHRC 1417, 1421 (June 1981). Furthermore, the
Commission has held that an inconsistent enforcement pattern by its inspectors does not estop .
MSHA from proceeding under an interpretation of the standard that it concludes is correct. U.S.

5

Commissioner Verheggen believes that, for the reasons set forth in his dissent in
Cyprus Cumberland Resources Corp., 21FMSHRC722, 737-38(July1999), the relevant
question here and on remand is whether '"we will accord special weight to the Secretary's view
of the [Mine] Act and the standards and regulations [she] adopts under them"' (quoting He/en
Mining Co., 1FMSHRC1796, 1801 (Nov. 1979)).
1063

Steel Mining Co:, 15 FMSHRC 1541 , 1546-47 (Aug. 1993) ("[T]he fact that U.S. Steel was not
cited prior to July 1990 for failing to conduct weekly examinations of the items cited ... is not a
viable defense to liability."); US. Steel Mining Co., 10 FMSHRC 1138, 1142 (Sept. 1988); Bulk
Transp. Servs., 13 FMSHRC 1354, 1361 n.3 (Sept. 1991). Consistent with our prior approach to
estoppel claims against the government, we hold that previous inspectors' representations about
the requirements of section 56. 14109 did not estop MSHA from issuing the instant citations
against Nolichuckey.

m.
Conclusion
For the foregoing reasons, we vacate the judge's determination that Nolichuckey violated
section 56.14109 and remand with instructions that the judge obtain from the Secretary a
definitive interpretation of what constitutes an unguarded conveyor, and for further consideration
consistent with this decision.

James C. Riley, Commissioner

Robert H. Beatty, Jr., Commissioner

1064

Distribution
Adele L. Abrams, Esq.
Mark N. Savit, Esq.
Patton Boggs LLP
2550 M Street, N.W.
Washington, D.C. 20037
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

.,

1065

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

September 19, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. PENN 98-15-R

RAG CUMBERLAND
RESOURCES CORPORATION1
BEFORE: Jordan, Chairman; Riley, Verheggen and Beatty, Commissioners
DECISION
BY: Jordan, Chairman; Riley, and Beatty, Commissioners
In this contest 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 Jerold Feldman
issued a Decision on Remand concluding that, between the time that the Department of Labor's
Mine Safety and Health Administration ("MSHA") issued an order to Cyprus Cumberland
Resources Corporation ("Cyprus") pursuant to section 104(d)(l) of the Mine Act, 30 U.S.C.
§ 814(d)(l), and the time that it issued a subsequent section 104(d)(2) order, MSHA had
conducted an inspection of the Cumberland Mine which disclosed no similar violations within
the meaning of section 104(d)(2) of the Mine Act. 2 21 FMSHRC 1112 (Oct. 1999) (ALJ). The

1

Cyprus moved to amend the caption in this case to reflect the substitution of its new
parent company, RAG Cumberland Resources Corporation. In an order dated June 15, 2000, we
granted that motion. In this decision, we refer to Cyprus as the entity against whom enforcement
action was taken, and as the party filing a response brief with the Commission.
2

Section 104(d)(2) provides:

If a withdrawal order with respect to any area in a coal or
other mine has been issued pursuant to paragraph (1), a withdrawal
order shall promptly be issued by an authorized representative of
the Secretary who finds upon any subsequent inspection the
existence in such mine of violations similar to those that resulted in
the issuance of the withdrawal order under paragraph (1) until such
time as an inspection of such mine discloses no similar violations.
1066

Commission granted 'the Secretary's petition for discretionary review challenging the judge's
decision. For the reasons that follow, we reverse the judge's decision.

I.
Factual and Procedural Background
The background facts in this proceeding are fully set forth in the Commission's initial
decision in this case, Cyprus Cumberland Resources Corp., 21 FMSHRC722(July1999)
("Cumberland r~, and are summarized here. Cyprus operates the Cumberland Mine, an
underground bituminous coal mine near Waynesburg, Pennsylvania. Id. at 723. The mine
receives four regular AAA inspections,3 which are conducted quarterly beginning on October 1
of each year. Id. MSHA assigns two inspectors on a full-time basis to conduct each quarterly
inspection, which usually takes the full quarter to complete. Id. The assigned inspectors are
assisted by other inspectors. Id. As a result, there is essentially a continuous presence at the
mine of at least two inspectors. Id.
On June 18, 1997, during the third quarterly inspection, MSHA Inspector Thomas
McCort, assigned to conduct the regular inspection, issued to CYP,rus a section 104(d)(l) order
for a significant and substantial ("S&S") and unwarrantable violation of a preshift examination
standard.4 Id. On September 24, during the fourth quarter, Inspector Victor Patterson, who was
assigned to conduct the regular inspection, issued a section 104(a) citation for a violation of a
roof control standard, 30 C.F.R. § 75.202. Id. at 724. The next day, on September 25, Inspector
Patterson issued a section 104(d)(2) withdrawal order alleging an S&S and unwarrantable
violation of the same roof control regulation when he discovered that the hydraulic jack, which
had been used to abate the cited condition, had been removed, and there were indications that
miners had worked under an area of unsupported roof. Id. The fourth quarterly regular
inspection concluded on the next day, September 26, when the 60 West Mains haulage was
inspected. Id. ·
The 60 West Mains haulage is approximately 4,200 feet long and has been the primary
route of travel into and out of the mine since 1983. Id. Between June 18 and September 25,

3

A regular AAA inspection is a "[s]afety and [h]ealth [i]nspection of an entire mine."
MSHA, U.S. Dep't of Labor, MSHA Handbook Series, Coal General Inspection Procedures, at8-1 (Sept. 1995).
4

The S&S terminology is taken from section 104(d)(l) of the Act, 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." 30 U.S.C. § 814(d)(l). The unwarrantable failure
terminology is also taken from section 104(d)(l) of the Act, 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." Id.
1067

inspectors traveled through the area ''many times," or approximately 60 or more round trips. Id.
The inspectors traveled on the tracks by closed mantrips, which travel approximately 15 to 20
miles per hour ("mph"), and by open jeeps, or "crickets," which travel approximately 10 to 12
mph. Id.
Cyprus challenged the section 104(d)(2) order and the matter proceeded to hearing before
Judge Feldman. During the hearing, Cyprus stipulated that it had violated the roof control
standard on Septemb~r 25, and that the violation was S&S and had been caused by its
unwarrantable failure. Id. The parties also stipulated that the issue before the judge was whether
an inspection disclosing no similar violations, i.e., an intervening "clean inspection" of the mine,
had occurred between the time that the section 104(d)(l) order was issued on June 18, and the
section 104(d)(2) order.was issued on September 26. Id. They agreed that ifthe Secretary failed
to prove the absence of an intervening clean inspection, the disputed section 104(d)(2)
withdrawal order should be modified. Id.
In his initial decision, the judge concluded that there had been an intervening clean
inspection between the issuance of the 104(d)(l) and 104(d)(2) orders. 20 FMSHRC 285, 294
(Mar. 1998). The judge reasoned that the purpose of an intervening inspection is to disclose
whether additional violations caused by unwarrantable failure exist, and that such violations are
generally more readily detectible. Id. He noted that, between the time that the 104(d)(l) and
104(d)(2) orders were issued, all areas of the mine had been inspected as part of a regular
inspection except for the-60 West Mains haulage. Id. at 287. The judge determined that MSHA
inspectors' repeated trips through the 60 West Mains haulage in addition to the regular inspection
that had occurred prior to September 25 constituted a clean inspection within the meaning of the
Act. Id. at 294. Accordingly, the judge modified the section 104(d)(2) order to a section
104(d)(l) citation. Id. at 295.
On review, a Commission majority vacated the judge's decision and remanded the case.
21 FMSHR'C at. 728. The Commission concluded that the judge erred by relying on the
inspectors' travel_through the haulageway rather than examining any evidence of inspection
activity to determine whether the 60 West Mains haulage had been inspected. Id. at 727. The
Commission rejected the judge's reasoning that the MSHA inspectors' frequent travel through
the haulage constituted an inspection because it would disclose unwarrantable violations, which
he considered more detectible. The majority found this was inconsistent with Commission
precedent holding that a clean.inspection must be thorough and complete, rather than designed to
disclose only obvious violations. Id. The Commission also disagreed with the judge's
underlying premise, reasoning that unwarrantable violations may not be more immediately
apparent. Id. Consequently, the Commission remanded the case to the judge to determine
whether the Secretary met her burden of proving the absence of an intervening clean inspection
by examining evidence regarding any inspection activity in the haulage area during the relevant
time period. Id. at 728. The Commission specifically instructed the judge to examine a log

1068

maintained by Cyprus depicting all inspection activity at the mine, and to weigh it against other
evidence. Id. 5
On remand, the judge held that the Secretary failed to demonstrate that a clean inspection
had not occurred. 21 FMSHRC at 1118. He found that the Secretary correctly asserted there
were no entries in the log reflecting a regular or spot inspection of the 60 West Mains haulage.
Id. at 1114. The judge also noted that Cyprus did not contend that the log contained any entries
reflecting regular or spot inspections in that area, although it did state that the log showed that the
inspectors were in the 60 West Mains haulage area. Id. The judge also found that the evidence
was "equivocal" as to whether any inSpector disembarked from a vehicle in the haulage during
the relevant time. Id. at 1116. The judge then applied the "reasonable person test," and held that
it was unreasonable to conclude that mine inspectors who are familiar with the hazards of mining
would repeatedly travel through the haulage without ensuring that rib, roof, track and ventilation
conditions were safe. Id. at 1116-17. Accordingly, the judge reinstated his modification of the
section 104(d)(2) order to a section 104(d)(l) citation. Id. at 1118.
On review, the Secretary argues that the judge erred in finding that the Secretary
conducted a clean inspection of the mine during the relevant time period. S. PDR at 2.6 She
contends the judge failed to follow the Commission's holding in Cumberland I that a clean
inspection must encompass a thorough and complete inspection, riot simply one that reveals
obvious violations. Id. at 10. In addition, she argues that the judge's "reasonable person"
approach is inconsistent with the Commission's prior holding. Id. at 14-15.

Cyprus responds that the Secretary failed to meet her burden of proving that a clean
inspection did not occur between the issuance of the section 104(d)(l) order and the section
104(d)(2) order. C. Br. at 9. It maintains that the Secretary adduced no evidence of the specific
activities of nine of the ten inspectors who inspected the mine, and that Cyprus' inspection log
only indicates the ultimate inspection destination of inspectors and does not show that the
inspectors did riot 4ispect the 60 West Mains haulage. Id. at 10. Cyprus also contends that the
judge properly appli('.d the ''reasonable person" standard in evaluating the credibility of the
Secretary's witnesses who testified there was no clean inspection, and that it would be improper
to overturn such credibility determinations. Id. at 14-.18.

5

Commissioner Marks, concurring and dissenting in part, stated that he would have •
reversed the judge because, although he agreed that the judge had erred in concluding that an
inspector's traveling through a haulageway constituted an inspection, he believed that the record
supported only the conclusion that, under applicable court and Commission precedent, no clean
inspection of the mine had occurred. Id. at 730. In his dissenting opinion, Commissioner
Verheggen would have affirmed the judge in result because he believed the Secretary failed to
meet her burden of proof Id. at 735-37.
6

The Secretary designated her petition for discretionary review as her brief.
1069

II.
Di~osition

A.

General Principles

Section 104(d) creates a "chain" of increasingly severe sanctions that serve as an
incentive for operator compliance. See Naaco Mining Co., 9 FMSHRC 1541, 1545-46 (Sept.
1987). Under section 104(d)(l), if an inspector finds a violation of a mandatory standard during
an inspection, and finds that the violation is S&S and that it is also caused by unwarrantable
failure, he or she issues a citation under section 104(d)( 1). That citation is commonly referred to
as a "section 104(d)(l) citation" or a "predicate citation." See Greenwich Collieries, Div. ofPa.
Mines Corp., 12 FMSHRC 940, 945(May1990). If, during the same inspection or any
supsequent inspection within 90 days after issuance of the predicate citation, the inspector finds
another violation caused by unwarrantable failure to comply with a standard, he or she issues a
withdrawal order under section 104(d)(l), sometimes referred to as a "predicate order."
Wyoming Fuel Co., 16 FMSHRC 1618, 1622 n.7 (Aug. 1994). If an inspector "finds upon any
subsequent inspection" a violation caused by unwarrantable failure, he or she issues a withdrawal
order for the violation under section 104(d)(2). 30 U.S.C. § 814(d)(2). The issuance of
withdrawal orders under section 104(d)(2) does not cease and an operator remains on probation
''until such time as an inspection of such mine discloses no similar violations." Id.; see Naaco, 9
FMSHRC at 1545.
Before the judge, the Secretary was required to prove the absence of a clean inspection by
a preponderance of the evidence. See Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152
(Nov. 1989); Consolidation Coal Co., 11FMSHRC966, 973 (June 1989). In describing the
preponderance of the evidence standard, the Commission has stated: "[t]he burden of showing
something by a 'preponderance of the evidence,' the most common standard in the civil law,
simply requires the trier of fact 'to believe that the existence of a fact is more probable than its
nonexistence.,,; In re: Contests ofRespirable Dust Sample Alteration Citations, 17 FMSHRC
1819, 1838 (Nov~ 1995), aff'd sub nom. Secretary ofLabor v. Keystone Coal Mining Corp., 151
F.3d 1096 (D.C. Cir. 1998), quoting Concrete Pipe and Prod. of California, Inc. v. Construction
Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993).
The Commission has determined that, in order to prove the absence of a clean inspection,
the Secretary need not prove a negative. Kitt Energy Corp., 6 FMSHRC 1596, 1600 (July 1984),
aff'd sub nom. UMWA v. FMSHRC, 768 F.2d 1477 (D.C. Cir. 1985). Instead, we have suggested
that the Secretary may prove that an area remains to be inspected during the relevant time period
by presenting records of all inspections at the mine and the extent of those inspections. Id.
Contrary to Cyprus' assertion, in meeting her burden of proving the absence of a clean
inspection, the Secretary was not required to submit "evidence from all of the inspectors who
traveled the haulage" that they did not inspect the 60 West Mains haulage. C. Br. at 11
1070

(emphasis added). Although in Cumberland I we noted that the Secretary may rely upon
inspectors' direct or hearsay testimony in attempting to meet her burden of proving the absence
of a clean inspection, we did not suggest that the Secretary must prove her case by producing the
testimony of every inspector in the mine. 21 FMSHRC at 728 n.7. Rather, we explicitly stated
that the Secretary may rely upon a log depicting all inspection activity at the mine, such as that
admitted by Cyprus, and instructed the judge to consider Cyprus's log as the central piece of
evidence in considering whether the Secretary met her burden.7 Id. at 728. Thus, the Secretary's
burden was to persuade ~e judge that it was more likely than not that a clean inspection did not
occur in the 60 West Mains through a combination of direct and circumstantial evidence.
B.

Whether the Judge Erred in Finding that a Clean In§Pection Had Occurred

Although the Commission instructed the judge on remand to consider all the record
evidence regarding inspections in the haulage including Cyprus' log, and determine whether the
Secretary met her burden of proving the absence of an intervening clean inspection, the judge
failed to do so. Rather, the judge applied the "reasonable person test" to hold that, because the
inspectors traveled through the haulage numerous times, they must have made sure that certain
hazards did not exist. 21 FMSHRC at 1116. We reject this approach, which is inconsistent with
the Commission's remand instructions.
The judge's analysis in his remand decision is almost identical to his reasoning in the
initial decision, which the Commission did not accept. In his first decision he noted that "MSHA
inspectors had an opportunity to observe the rib and roof conditions and experience the track
conditions in the 60 West Mains haulage on a daily basis hundreds of times." 20 FMSHRC at
294. Although the Commission made clear in Cumberland I that the judge erred by failing to
examine evidence of inspection activity in the haulage, and that an intervening clean inspection
must be "thorough and complete" (21 FMSHRC at 727), on remand the judge again neglected to
weigh all of the pertinent record evidence, and simply surmised that "it is unreasonable to
conclude that MS~ mine inspectors ... would repeatedly travel an entry without ensuring there
are no hazardous rib, roof, or track conditions." 21 FMSHRC at 1116.

7

As the Commission indicated in Kitt Energy, the Secretary maintains records of all
mine inspections in order to fulfill her statutory duties. 6 FMSHRC at 1600. Indeed, in Kitt thei
Commission emphasized that "proper administration of the Mine Act requires that the Secretary
maintain a workable mine inspection record keeping system." Id. at 1601. Although the
Secretary "[c]uriously" did not submit such records into evidence (see Cumberland I, 21
FMSHRC at 728 n.7), Cyprus introduced its own log, which, fortuitously for the Secretary, in
this case serves the same evidentiarypurpose. See 29 Am Jur 2d Evidence§ 158 at 185 (1994)
("[A] party may be relieved of its burden of production if the necessary proof is introduced by his
adversary, and if such proof is sufficiently convincing and uncontroverted, the burden of
persuasion as well.").
1071

Cyprus incorrectly asserts· that the judge applied the "reasonable person" standard in
evaluating the credibility of the Secretary's witnesses, and that the Secretary is effectively
requesting the Commission to overturn credibility findings by the judge. C. Br. at 17. The judge
made no credibility findings regarding the statements of the ten inspectors and their supervisor,
nor could he, as most of the inspectors did not testify. See 9A Charles Alan Wright & Arthur R
Miller, Federal Practice and Procedure§ 2586, at 578 (2d ed. 1995) ("At a trial without a jury it
is for the trial judge to determine the credibility of the oral testimony given by the witnesses and
the weight to be accorde.d it" (emphasis added)).
Cyprus more accurately characterizes as an inference the judge's conclusion that the
haulage was inspected. C. Br. at 15. As noted by Cyprus, in order to establish an inference there
must be a "rational connection between the evidentiary facts and the ultimate fact inferred," and
the evidence must be evaluated for the reasonableness of the inference. Garden Creek
Pocahontas, 11 FMSHRC at 2152-53; Midwest Minerals, Inc., 12 FMSHRC 1375, 1378-79 (July
1990); C. Br. at 15. However, the judge's inference that the inspectors' frequent travel through
the haulage must have resulted in a clean inspection is not reasonable because it finds no support
in the record.
The judge simply theorized that "inspectors could have left their vehicles at any time if
they had observed any conditions that caused concern," but points to no evidence that they
actually did so. 21 FMSHRC at 1116. Cyprus also fails to cite evidentiary support for the
judge's conclusion. C. Br. at 14-16.
As we noted in Cumberland L a thorough and complete inspection consists of several
components which the judge did not find were covered by the inspectors during their numerous
trips down the haulageway. For example, the Commission recognized that in order to inspect the
haulage, inspectors must examine, inter alia, any electrical installations in the area, cables,
wiring, switches, fire-fighting equipment, and manholes. 21 FMSHRC at 727 n.6. Furthermore,
in affirming the C_ommission's Kitt Energy decision, the D.C. Circuit held that to find an
intervening clean ~ection had occurred, all areas of a mine must have been thoroughly
inspected for violations, obvious or otherwise, and of any kind. 768 F.2d at 1480. In support,
the court keenly observed that:
many, if not most, safety hazards in a mine are neither
obvious nor even ·visible.
To cite some examples: To determine whether a
mine is complying with its roof control plan, an inspector
generally must consult a copy of that plan - merely walking
through the mine tells him nothing. To determine whether
there are unsafe concentrations of gases or dust an inspector
must employ special monitoring equipment. Likewise, an
electrical inspector may notice a mechanical violation that
1072

is out in the open, but an inspector examining amine's roof
support system is unlikely to open an electrical junction
box to see whether the wiring inside is safe.

Id. at 1479-80.
Consistent with the D.C. Circuit's reasoning, we emphasize that mere travel through an
area of a mine, without ev_idence of a thorough and complete inspection, does not suffice to
support a finding that a clean inspection occurred. Thus, an inspector's frequent travel through
an area may not be used as the sole basis to support an inference that he or she concluded that no
hazards existed and that, consequently, a clean inspection took place. Instead, evidence of
inspection activity in the haulage area during the relevant time period must be considered. Our
review of the record demonstrates that substantial evidence does not support the judge's finding
that the haulage had been inspected. 8 Of special significance is the judge's finding, which is
undisputed on review, that the log entries do not indicate that any regular or spot inspections took
place in the 60 West Mains. 21 FMSHRC at 1114; C. Br. at 10-12. Thus, this case comes to us
in a different stance than when it was first before the Commission, as the record now contains
this material finding that the Commission had requested the judge to make.
The relevance of this finding is apparent from the function of the log. In Cumberland I,
the Commission stated that Cyprus' log "depict(ed] all inspection activity at the mine, including
both state and federal inspections." 21 FMSHRC at 728 (emphasis added). That conclusion is
supported by the testimony of Robert Bohach, Cyprus safety manager, that the log provides "a
day-to-day running total of the number of inspectors. Basically what area of the mine or the
operations they have inspected." Tr. 774-7 5. He stated that the log would show the inspector
visits from June 2, 1997 through September 29, 1997. Tr. 775. When asked what the "area
inspected" category on the log signified, Bohach replied that "(i]t's just a brief generalization as
to what area of the mine the inspection party traveled to and did some portion of their
inspection." Ti. 781-82. In light of this testimony, we disagree with Cyprus' later assertion, in
its brief on appeal, n<?t supported by any citation to the record, that the log "only indicates the
ultimate inspection destination of inspectors on particular days ... [and] cannot be read to_show
that the inspectors who traveled through the haulage did not inspect it." C. Br. at 10-11.

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)). In reviewing the whole record, an appellate tribunal must consider
anything in the record that "fairly detracts" from the weight of the evidence that supports a
challenged finding. Midwest Material Co, 19 FMSHRC 30, 34 n. 5(January1997) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
1073

Supportmg·the judge's finding regarding Cyprus' log, Inspector McCort made clear that
he had not inspected the haulage while traveling through it (Tr. 476), and that he did not inspect
the haulage after the May 5 third quarterly inspection. Tr. 501. Furthermore, although the judge
relied on the statement of Inspector Patterson that "it's possible" he left his vehicle for closer
observation (21 FMSHRC at 1116), it is important to consider that testimony in context.
Patterson testified that before September 25, he had not conducted an inspection of the haulage
area. Tr. 287. Furthermore, when questioned about the difference between traveling through the
haulage and inspecting it, he stated "I didn't stop and I didn't do the things necessary to inspect
the haulage. I just traveled across it." Tr. 288. When asked why the haulage was inspected on
September 26, he replied "[i]t's what was left to do ... It hadn't been done yet." Tr. 294-95.
Subsequently, the following interchange occurred on cross-examination:

Q:

And all your trips into --- along the 60 west main's haulage in July, August
and September, did you ever stop them to inquire about any conditions that
you saw as you came in?

A.

I can't remember doing that, sir.

Q.

You might have done that?

A.

It's possible.

Tr. 301. Considered in its totality, the testimony of Inspector Patterson refutes the judge's
conclusion that a clean inspection took place.9
Finally, we disagree with Cyprus' assertion that the Secretary "cannot prevail because the
evidence does not preponderate in her favor; instead it is 'equivocal"' as to whether any MSHA
inspector disembarked from a cricket or mantrip in the 60 West Mains haulage during the time in
question." C. B_r. at 13. Although the judge found that evidence regarding whether the
inspectors disem}?arked from their vehicles was equivocal (21 FMSHRC at 11 16), this statement
is not the same as a finding that the totality of the Secretary's evidence regarding the absence of a
clean inspection was equivocal. In any event, even if the evidence showed that an inspector
disembarked, this by itself would be insufficient to rebut the Secretary's claim that no complete
and thorough inspection had occurred. See UMWA v. FMSHRC, 768 F.2d at 1479-80
(inspector's mere physical presence does not qualify as a "clean inspection.").

9

In this regard, this case is distinguishable from U.S. Steel Corp., 6 FMSHRC 1908
(Aug. 1984), in which the Commission reversed the judge's decision finding the absence of an
intervening clean inspection. In that case, the inspector offered testimony which the judge
acknowledged was ''possibly conflicting," including the statement that "I have covered the entire
facility, yes." Id. at 1914.
1074

Taking into account Cyprus' log and the inspectors' testimony, we hold that substantial
evidence does not support the judge's finding that the 60 West Mains haulage was inspected
between June 18 and September 25.

m.
Conclusion
For the foregoing reasons, we reverse the judge's decision and reinstate the section
104(d)(2) order.

J aines C. Riley, Commissioner

•
Robert H. Beatty, Jr., Commissioner

1075

-

Commissioner Verheggen, dissenting:
In my dissent in Cyprus Cumberland Resources Corp., I concluded that "the Secretary
failed to meet her burden of proof," and I affirmed in result the judge's finding of no violation.
21FMSHRC722, 735 (July 1999) ("Cumberland I"). I find nothing has changed now that this
case has returned to the Commission after being remanded to the judge. Nevertheless, my
colleagues have decided to reverse the judge. I disagree with their decision, and therefore
dissent.
I based my dissent in Cumberland I on the fact that the Secretary failed to adduce "proof
that an intervening clean inspection [had] not occurred" in the 60 West Mains, as required by Kitt
Energy Corp., 6 FMSHRC 1596, 1600(July1984), aff'd sub nom. UMWA v. FMSHRC, 768 F.2d
1477 (D.C. Cir. 1985). As I stated before, ''under Kitt, the Secretary is required to maintain
detailed records of inspections, and to adduce these records in some fashion when defending the
validity of a section 104(d)(2) order." 21 FMSHRC at 735. Never in these proceedings has the
Secretary adduced any such records. See id., majority opinion at 728 n.7 ("Curiously, the
Secretary failed to admit any records depicting how much of the Cwnberland Mine had been
subject to inspections, other than regular inspections, since issuance of the section 104(d)(l)
order on June 18.").
In reversing the judge, my colleagues seize on the judge's finding that entries made in an
inspection log maintain~d by Cyprus "do not indicate that any regular or spot inspections took
place in the 60 West Mains." Slip op. at 8, citing 21 FMSHRC at 1114. I find, however, that the
Cyprus log is irrelevant to the issue of whether an inspection occurred along the 60 West Mains.
As I stated in my dissent in Cumberland I:
After examining this log, and in light of statements made by
Cyprus' counsel at oral argwnent, it is abundantly clear to me,
h9wever, that no inferences can be drawn from the log that the 60
W ~st Mains were not inspected. All the log shows is the areas to
where inspectors traveled to conduct inspections. It does not
indicate what any inspectors did in transit. Given the extensive
amount of travel in the 60 West Mains, I find that it was incwnbent
upon the Secretary to establish that none of her inspectors
examined the track haulage for hazards, a point on which Cyprus'
log is silent.
21 FMSHRC at 736 (emphasis added). My colleagues' statement that the Cyprus log,
"fortuitously for the Secretary, in this case serves the same evidentiary purpose" as any records of
inspections kept by the Secretary (slip op. at 6 n.7) is just plain wrong. The log simply did not
serve as a record of inspections. As Mr. Bohach, the Cyprus safety manager, testified, the log
shows "the area of the mine the inspection party traveled to and did some portion of their

1076

inspection" (Tr. 782) - no more and no less. The log does not show whether inspections
occurred in the areas through which inspectors traveled. The log is thus no substitute for the
"clear, unequivocal evidence that the track haulage 'remained to be inspected'" (21 FMSHRC at
735) which, under Kitt, the Secretary was obligated to adduce at the hearing.
My colleagues' claim that "this case comes to us in a different stance than when it was
first before the Commission, as the record now contains this material finding" (slip op. at 8), i.e.,
the judge's observation t~at the log did not indicate that the 60 West Mains were inspected.
There is a significant difference, however, between the judge's observation and the majority's
conclusion that no regular or spot inspections took place in that area.
In this regard, try as they might to obfuscate their holding, the majority does in fact
conclude that the 60 West Mains were not inspected. My colleagues state that "substantial
evidence does not support the judge's finding that the 60 West Mains haulage had been
inspected" in the relevant time period. Slip op. at 8. They then set forth their reading of the
evidence and conclude by reversing the judge. Id. at 8-10. In effect, my colleagues have
concluded, without explicitly saying so, that the record compels the conclusion that the haulage
had not been inspected. I do not, however, find that the record in this case compels any
conclusion, one way or the other.
Indeed, the judge concluded that "[t]he evidence is equivocal as to whether any MSHA
inspector disembarked from a cricket or mantrip in the 60 West Mains haulage during the time in
question." 21 FMSHRC at 1116. I find that this conclusion is supported by substantial
evidence, 1 including Inspector Patterson's testimony in which he admitted that it was "possible"
that he might have stopped in the 60 West Mains "to inquire about any conditions that he saw as
[he] came in" (Tr. 301 ), testimony which casts doubt on his other testimony that he did not
inspect the haulage entry.2 Notably, Patterson was but one of many inspectors to travel the
haulageway - all but two of whom the Secretary did not bother to have testify. The Secretary
When reviewing an administrative law judge's factual determinations, the Co~ssion
is bound by the terms of the Mine A~t 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)).
•
1

2

The majority infers that "in its totality, the testimony of Inspector Patterson refutes the
judge's conclusion that a clean inspection took place." Slip op. at 9. Given its equivocal natme,
and the fact that it involves but one of many inspectors who traveled the haulage entry, I find that
Patterson's testimony can support neither the majority's conclusion nor the judge's conclusion
that the 60 West Mains were inspected. Nevertheless, I am able to conclude from this record that
the Secretary failed to prove that the haulage entry remained to be inspected.

1077

failed to account-for the actions of its other inspectors, an evidentiary gap at odds with Kitt which
I find fatal to the Secretary's case.
The majority errs in my view by basing their reversal of the judge on the inference they in
effect draw from the record that the 60 West Mains were not inspected, an inference which was
within the province of the judge to draw, but which he refused to draw because he found the
evidence "equivocal" (21 FMSHRC at 1116). In substituting its judgment for that of the judge
on this matter, the majority has crossed the line from appellate review to de novo factfinding,
contrary to settled principles oflaw. Island Creek Coal Co., 15 FMSHRC 339, 347 (Mar. 1993)
("It would be inappropriate for the Commission to reweigh the evidence in [any] case or to enter
de novo findings based on an independent evaluation of the record."); Wellmore Coal Corp. v.
FMSHRC, No. 97-1280, 1997 WL 794132 at *3 (4th Cir. Dec. 30, 1997) ('"[T]he ALJ has sole
power to ... resolve inconsistencies in the evidence"') (citations omitted), cert. denied, 119 S.
Ct. 600 (1998).
Accordingly, as I stated in Cumberland I, "I find that the Secretary failed to establish a
prima facie case, see U.S. Steel Corp., 6 FMSHRC 1908, 1914 (Aug. 1984) (Secretary failed to
meet burden of proving validity of section 104(d)(2) order where evidence was 'entirely too
vague and uncertain'), and on this ground alone, I affirm the judge's decision in result."
21 FMSHRC at 736.

1078

-

Distribution
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

R. Henry Moore, Esq.
Buchanan Ingersoll
One Oxford Centre
301 Grant St., 20th Floor
Pittsburgh, PA 15219-1410
Michael Duffy, Esq.
National Mining Association
1130 Seventeenth St., N.W.
Washington, D.C. 20036
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1079

1080

ADMINISTRATIVE LAW JUDGE DECISIONS

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

September 13, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 2000-44-M
A. C. No. 45-03086-05512

v.
ALAN LEE GOOD, an individual doing
business as GOOD CONSTRUCTION,
Respondent

Good Portable Crusher

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

Docket No. WEST 2000-149-M
A. C. No. 45-03086-05513

v.
GOOD CONSTRUCTION,
Respondent

Good Portable Crusher

DECISION
Appearances: William W. Kates, Esq., Office of the Solicitor, U.S. Department of Labor,
Seattle, Washington, on behalf of Petitioner;
James A. Nelson, Esq., Toledo, Washington, on behalf of Respondent.
Before:

Judge Melick

This case is before me upon the petitions for civil penalties filed by the Secretary of
Labor pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. the "Act" charging AJ,an Lee Good doing business as Good Construction (Good) with
10 violations of mandatory standards and seeking civil penalties of $854.00 for those violations.
The general issue before me is whether Good violated the cited standards as alleged and, if so,
what is the appropriate civil penalty to be assessed considering the criteria under section 11 O(i) of
the Act.
Alle~ed Violations of30 C.F.R § 56.14107(a)

This standard provides that "[m ]oving machine parts shall be guarded to protect persons
from contacting gears, sprockets, chains, drive, head, tail, and take up pulleys, fly wheels,
1081

couplings, shafts, fan blades and similar moving parts that can cause injury." This standard is
alleged to have been violated in Citations No. 7974337, 7974340, 7974341, 7974342 and
7974343.
Respondent maintains in its post hearing brief that all of the cited areas had been
inspected "many, many times before by a fairly large and representative number of MSHA
inspectors over a period of 18 years or more and they had all considered these areas to be
adequately guarded". ~espondent argues that therefore the citing inspector herein was either
"out of line" or the cited standard is unconstitutionally vague. Respondent raises questions that
seem to arise with some frequency with a change of MSHA inspectors. Moreover Respondent
could very well have prevailed in it's argument if any of those inspectors had offered credible
testimony at trial that he had inspected the precise areas now cited and found those areas
adequately guarded. Without such testimony however I find the allegations to be without
necessary factual support.
fu these cases the credible testimony of the citing inspector, who, it may be inferred is a
reasonably prudent person familiar with the mining industry and protective purposes of the
standard, is sufficient to meet the criteria set forth in Ideal Cement Co. 12 FMSHRC 2409, 241
(November 1990); and BHP Minerals Int'l Inc., 18 FMSHRC 13342 (August 1996). The
standard as applied here has not therefore been shown to be unconstitutionally vague.
Citation No. 7974337 charges as follows:
The unguarded rollers on the roll crusher exposed workers to the hazard of
moving machine parts. The rollers could be contacted by a worker standing on
the work platform beside the rollers. The rollers where a worker could contact
them were five (5) feet off the floor of the platform and the roll crusher was
mounted on and within arms reach of this inspector. The foreman stated the
moving ~achine parts of the crusher had passed previous MSHA inspections.
Moving mi!lchine parts shall be guarded to protect persons from contacting the
moving machine parts and causing injury.
fuspector Terry Miller of the Department of Labor's Mine Safety and Health
Administration (MSHA) was performing a regular inspection at the Brown Road Quarry on June
29, 1999. According to Miller ihe cited roll crusher was located on a portable flat bed trailer
with exposed roll crushers only two feet from where he was standing. The crusher was used to
size rock as it passed through the rollers. Miller testified that he could reach and touch the
moving parts while standing next to it, located 5 to 6 feet off of the platform. He noted that there
was a handrail in front of the cited area but there was nothing to prevent him from touching the
rollers. He discussed the violation with foreman Ken Gates who accompanied him on this
inspection and according to Miller, Gates agreed that Miller was able to reach and touch ijie
rollers. According to Miller, Gates responded only that the area had been inspected previously.
Miller assessed the gravity of the violation as ''wtlikely" based upon representations that the
1082

machinery was turned off to perform maintenance and servicing. According to Miller, there
would be no other reason for persons to be on the platform and subject to exposure to the hazard
unless there was a breakdown or the machinery was out of adjustment. Miller's conclusions that
the violation was, in effect, of low gravity are not disputed.
Miller also found that the violation was the result of"moderate" negligence based on his
belief that there were "no mitigating circumstances". He accepted Gates's explanation that based
on previous inspections, Gates thought the roller had been satisfactorily protected. Gates
testified that the areas here cited had been previously inspected twice a year for the previous eight
years and had never previously been cited. Within this framework I conclude that Gates could ·
therefore have entertained a good faith and reasonable (but mistaken) beliefthat he was ~ot in
violation as charged herein and that therefore the operator is chargeable with but little
negligence.
Citation No. 7974740 charges as follows:
The guarded 'V' belt drive for the cone crusher created a hazard for
workers in the plant area. The 'V' belt drive was located under the
trailer/platform the cone crusher was mounted on. The hazard was located
approximately five (5) feet off ground level. A worker could access the hazard by
ducking under the edge of the platform the crusher was mounted on and walking
over to the 'V' belt drive pulley. The side of the platform where a worker could
duck under to access the hazardous condition was approximately five (5) feet off
ground level. Moving machine parts shall be guarded to protect persons from
contacting them and causing an injury.
Inspector Miller observed that the cited cone crusher was located on a separate trailer
from the roll crusher and there was no guard on the bottom of the V-belt drive. He observed that
the cited area lay beneath the trailer where persons might be exposed if they checked a damaged
belt. The V-belt drive was about 1 foot wide and passed 1 foot beneath the trailer bed. Miller
asked Gates why there was no guard at that location and Gates purportedly responded that it had
been guarded before. Miller acknowledged that the gravity was low and considered' an injury
''unlikely". He observed that very few people would be present in the cited area but that if an
accident would occur it could result in permanently disabling injuries. Miller's findings oflow
gravity are undisputed and I therefore accept those findings. For the reasons previously stated
with respect to Citation No. 7974337, I conclude that the violation was also the result of little ~.
negligence.
Citation No. 7974341 charges as follows:
The unguarded tail pulley on the belt under screen for the cone crusher created a
hazard to workers. The self cleaning tail pulley was six (6) feet off ground level.
The tail pulley was located in the middle of the platform/trailer and was accessible

1083

by ducking under the side of the platform and walking over to the tail pulley. The
side of the platform where a worker could duck under and access the tail pulley
was five (5) feet high. Workers perform scheduled maintenance on the plant
daily. The foreman stated all the equipment is turned off before and any work is
performed on the equipment. Moving machine parts shall be guarded to protect
persons from contacting them and causing injury.
According to fuspector Miller the cone crusher also had an unguarded tail pulley i.e., the
idler pulley, which was located 4 feet to 5 feet off the ground and beneath the platform. The ·
pulley was 3 feet wide and 2 feet within the platform. Miller found that injury was "unlikely''
because the area was not ordinarily accessed while the equipment was operating. Under the
circumstances, a finding of low gravity is warranted. For the reasons previously stated with
respect to Citation No. 7974337 I also find operator negligence to be low.
Citation No. 7974342 charges as follows:
The inadequate guard on the tail pulley exiting the double deck screen
exposed workers to the hazard of moving machine parts. The tail pulley was three
(3) feet off ground level. The top of the pulley was well guarded. The lower back
side of the pulley and the bottom of the pulley were exposed. The sides of the
pulley could also have been accessed by a worker. Scheduled maintenance is
performed on th_e plant daily. The foreman stated no work is performed on the
equipment until the equipment is turned off. Moving machine parts shall be
guarded to protect persons from contacting them and causing injury.
According to Inspector Miller, the double deck screen, which is used for sorting and
sizing rock, had a deficient guard on its tail pulley so that a person could reach beneath the guard.
He observed that the pulley was three feet above ground level and protruded beyond the
machinery. Miller concluded that any injury was "unlikely'' and that the only exposure to the
hazard would be·while servicing, inspecting or shoveling around the equipment. The violation
was accordingly of low gravity. For the reasons previously stated with respect to Citation No.
7974337 I also find the operator chargeable with only low negligence.
Citation No. 7974343 charges as follows:
The inside of the flywheel for the jaw crusher was unguarded. The
unguarded part of the flywheel was two (2) feet out of the walkway used by the
crusher operator to access the crusher control booth. The flywheel went between
two (2) and (7) seven feet high where a worker could slip/trip and possibly contact
the moving machine parts and be injured. The flywheel was usually running when
the crusher operator accessed the walkway to enter/exit the control booth.
Moving machine parts shall be guarded to protect persons from contacting them
and causing injury.
·

1084

Inspector Miller testified that the cited jaw crusher was a separate piece of mobile
equipment. Miller opined that the fly wheel had an ineffective guard and the exposed area was
adjacent to a walkway access ladder. The flywheel was about five feet in diameter and one foot
wide. According to Miller, employees would pass this area on the way to the work station on the
second level and it was as close as two feet from the walkway to the exposed flywheel area. I
accept Miller's testimony as credible and, under the circwnstances, I conclude that the violation is
proven as charged.
The Secretary also alleges that the violation was "significant and substantial". A
violation is properly designated as "significant and substantial" if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1,3-4 (January 1984),
the Commission explained:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety standard, (2) a discrete safety
hazard -- that is, a measure of danger to safety -- contributed to by the violation,
(3) a reasonable likelihood that the hazard contributed to will result in an injury,
and (4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.

See also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), ajf'g 9
FMSHRC 2015, 2021(December1987) (approving Mathies criteria).
The third element of the Mathies formula requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result in an event in which there is an
injury (U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984)). The likelihood of such
injury must be evahlated in terms of continued normal mining operations without any
assumptions as to abatement. U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574(July1984);
See also Halfway, Inc., 8 FMSHRC 8, 12(January1986) and Southern Ohio Coal Co.,
13 FMSHRC 912, 916-17(June1991).

In this regard Inspector Miller testified that since the equipment operator passed this area
several times a day he was thereby frequently exposed to the hazard. In addition he noted that'
the crusher operator would check the conveyor periodically and there was no other means of
access to the operator's compartment other than to pass the area of exposure. Miller concluded
that fatal injuries "might" occur should the operator get caught in the flywheel. According to
Miller his whole body would likely be pulled into the flywheel and crushed. Based on this
testimony it may be inferred that it would be reasonably likely that reasonably serous injuries
would occur. I find this evidence to be credible and I indeed conclude by inference that the
violation was "significant and substantial" and of high gravity. For the reasons previously stated
1085

with respect to Citation No. 7974337 I find the operator chargeable with low negligence.
Citation No. 7974336 alleges a violation of the standard at 30 C.F.R. § 56.14101(a)(3)
and charges as follows:
The inoperative park brake on the 88 Model Ford super duty shop truck
exposed the operator and other persons int he pit to the hazard of possibly of
being struck by unintentional movement of the truck. The truck was parked in the
parking area next to the highwall above the pit where the crusher was located.
The keys were in the truck, and the truck was ready for use. The foreman stated
he did not know how long the park brake had been inoperative. The foreman also
stated he did not know the last time the truck was used or when the truck would
be used again. Braking systems installed on mobile equipment shall be
maintained in a functional condition.
The cited standard 30 C.F.R. § 561401(a)(3), provides that "[a]ll braking systems installed on the
equipment shall be maintained in functional condition."
Respondent does not deny that the cited parking brake was indeed inoperative on the
1988 model Ford Super Duty shop truck or that'the keys were in the truck and that the truck
could be used but argues that only equipment to be operated during a shift needs to be inspected
on any given day. In support of its argument Respondent cites certain qualifying language in a
different regulatory stari.dard from that cited herein. Since the standard at issue herein, 30 C.F.R.
§ 56.14101(a)(3), does not contain any such qualifying language Respondent's argument is
without merit. The cited standard requires proof only that a braking system on the truck was not
maintained in a functional condition. Under the circumstances the violation is proven as
charged. The Secretary's allegations that an injury or illness was unlikely and that the violation
was a result of moderate negligence is undisputed and supported by the record. Gravity is
therefore low.
Citation No. 7974338 alleges a violation of the standard at 30 C.F.R. § 56.11002 and
charges as follows:
No Handrails on the elevated platform where the roll crusher was mounted
exposed workers to the hazard of possibly falling from the platform and being
injured. The platform was six (6) feet off ground level. The ground under the
platform where a worker would fall to was level and covered with pit run
material. One worker accessed the platform daily to perform scheduled
maintenance on the roll crusher. Elevated working and travel areas shall be
provided with handrails and maintained in good condition.
The cited standard, 30 C.F.R. § 56.11002, provides as relevant hereto that "crossovers,
elevated walkways, elevated ramps, and stairways shall be of substantial construction, provided
with handrails, and maintained in good condition."
1086

Respondent argues that there was no violation at this location because the cited area was
an elevated platform and not a travelway. The Secretary in her post-hearing brief did not respond
to this argument so the Secretary's position in this regard is not known. It may reasonably be
inferred however, from the testimony of the citing inspector, that the cited area although
described as a "platform" was of sufficient size to permit actual ''walking". Accordingly I
conclude that the elevated platform cited in this case was indeed an "elevated walkway'' within
the meaning of the cited standard. Respondent's argument herein is accordingly rejected. The
violation is proven as charged. The Secretary's findings that an injury or illness was unlikely is
not disputed. Accordingly I find gravity to be low. In light of the evidence that this operation
had been inspected many times over a number of years without prior citation leads me to accept
Respondent's argument that it therefore, in essence, had a reasonable and good faith belief that it
was not in violation of the standard at this location. Accordingly I find only low operator
negligence.
Citation No. 7974339 alleges a violation of the standard at 30 C.F.R § 56.11002 and
charges as follows:
No handrails on the elevated platform where the Ell-Jay cone crusher was
mounted exposed workers to the hazard of possibly falling from the platform and
being injured. The platform was six (6) feet off ground level. The ground under
the platform where a worker would fall to was level and covered with pit run
material. One worker accessed the platform daily to perform scheduled
maintenance on the cone crusher. Elevated working and travel areas shall be
provided with handrails and maintained in good condition.
Respondent again argues that the cited area was a "platform" and not a "travelway'' and
that it therefore does not come within the terms of the cited standard. It may reasonably be
inferred from the testimony of the inspector that the elevated platform cited in this case was of
sufficient size to permit walking and that accordingly it may be considered to be an "elevated of
walkway'' within the meaning of the cited standard. Accordingly Respondent's argument is again
rejected. There is no· dispute with the Secretary's findings of low gravity. I also fin<;l that the
operator chargeable with low negligence in light of his apparent good faith and reasonable belief
that there was no violation at the cited location based on the absence of any citation over many
previous inspections.
Citation No. 7974344 alleges a violation of the standard at 30 C.F.R. § 56.14100(b) and
charges as follows:
The operative brake lights on the Michigan L-190 F.E.L. SIN 828A00073S
could create a hazardous condition for persons in the pit/plant area. The operator
stated he performed his pre-operational check before operating the F.E.L. But did
not notice the brake lights being inoperative. An off road haul truck and another
F.E.L. operated regularly in the pit/plant area as well as a third F.E.L. used
occasionally. Customer and mine operator highway trucks also entered the mine

1087

area and.were loaded by one (1) of the F.E.L.'s. The inoperative brake lights
could cause another mobile equipment operator in the pit to misjudge the
movement of the F.E.L. and possibly cause an accident resulting in injury to a
worker.
The cited standard, 30 C.F.R. § 56.14100(b), provides that "defects on any equipment,
machinery, and tools that affect safety shall be corrected in a timely manner to prevent the
creation of a hazard to persons."
Respondent argues that even assuming that the inoperative brake lights affected safety,
those brake lights had been found to be working during a pre-operational check of the cited
equipment by Kenneth Gates on the morning of the inspection. It is not disputed that the defect
was caused by a short in the brake light wire adjacent to the light. The Secretary does not appear
to dispute the testimony of Gates and argues only that the brake lights were not working at the
time of the inspection. Under the circumstances I conclude that the Secretary has failed to
sustain her burden of proving that the defect was not corrected in a timely manner within the
meaning of the cited standard. Accordingly the Secretary failed to sustain her burden of proving
a violation herein and the citation must be vacated.
Citation No. 7974345 alleges a violation of the standard 30 C.F.R. § 56.18002(a) and
charges as follows:

An effective work place examination, checking each working place at least
once each shift, for conditions which could adversely affect health or safety, was
not being performed at this operation. This was evidenced by the nine (9)
citations issued during the regular inspection. five (5) citations for missing or
inadequate guards, two (2) citations for missing handrails, one (1) citation for
inoperative brake lights on mobile equipment, and one (1) citation for an
inoperative park brake on mobile equipment. All of these conditions could have
went [sic] undetected and uncorrected if not for the regular MSHA inspection.
Any one of the uncorrected conditions could have resulted in injury to a worker.
The cited standard, 30 C.F.R. § 56.18002(a), provides as follows:
A competent person designated by the operator shall examine each working place
at least once each shift for conditions which may adversely affect safety or health.
The operator shall promptly initiate appropriate action to correct such conditions.
The testimony of Kenneth Gates is undisputed that he indeed performed the examinations
required by the cited standard and indeed produced a copy of his examination performed on the
date of the citation, i.e. July 1, 1999 (Exhibit R-7). Gates described the procedures he followed
in making his inspections as follows:

1088

I inspect all things on the list here personally myself around the pit area and on
individual time cards that are wrote [sic] by each employee at the mine site, they
state on theirs on each day, they have a check list for their safety inspection for
each piece of equipment which they operate, and if there's any problems with it,
it's reported to me and then we usually right underneath this if it needs to be fixed
or if can be fixed in that shift. If it can be fixed on that shift, it is fixed and it's not
stated, but it is still on theirs, and if it is not fixed, I put it on, whether it be
hazardous, it would be red tagged or shut down. (Tr. 89).
The citing inspector in this case acknowledged that indeed the required examinations
were being conducted but it was his opinion that, because of the number of violations he_found,
the examinations were not effective.
While I cannot conclude, because of the lack of credible evidence, that anyMSHA
inspector had previously actually approved of the conditions cited in the instant case, I
nevertheless conclude that, based on MSHA's prior failure to have cited these conditions, the
operator had a reasonable and good faith belief that the conditions were not violative. Under
these circumstances the failure of Mr. Gates to have noted these same conditions as hazardous in
his examinations under the cited standard is not surprising. I cannot therefore conclude that
Mr. Gates' workplace examinations were not effective. Under all the circumstances I conclude
that the Secretary has not sustained her burden of proving a violation as charged in the instant
citation and that citation must accordingly be vacated.
Civil Penalties
Under section 11 O(i) of the Act the Commission and its judges must consider the
following criteria in assessing a civil penalty: the operator's history of previous violations, the
appropriateness of such penalty to the size of the business of the operator charged, whether the
operator was negligent, the effect on the operator's ability to continue in business, the gravity of
the violation and the demonstrated good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.

In this case the gravity and the negligence of the operator has been discussed with respect
to each violation. The evidence regarding the remaining criteria are common to all of the
violations. It has been stipulated that Respondent had a history at the subject mine of three
assessed violations during three inspection days in the approximate 24 month period before the
violations at issue. Accordingly Respondent has a low history of violations. It has been also
stipulated that the subject mine and its controlling entity had reported 11,857 hours worked in the
calendar year prior to the violation at issue. Accordingly the subject operator is small in size.
The Secretary acknowledges that each of the violations was corrected and abated within the time
set forth in the citations. Accordingly this operator is entitled to full credit for its abatement
efforts. There is no claim and no evidence that the penalties herein would have any affect on the
operator's ability to continue in business. fu the absence of such evidence there is a presumption

1089

that indeed the penalties would have no effect on the operator's ability to continue in business.

ORDER
Citations No. 7974344 and 7974345 are hereby vacated. The remaining citations are
affirmed and Good Construction is directed to pay the following civil penalties within 40 days of
the date of this decision: Citation No. 7974336 - $55, Citation No. 7974337 - $55, Citation No.
7974338 - $55, Citation No. 7974339 - $55, Citation No. 7974340 - $55, Citation No. 7974342 $55, Citation No. 7974343 - $200.

~

Administrative Law Judge
Distribution: (Certified Mail)
William W. Kates, Esq., Office of the Solicitor, U.S. Dept. of Labor, 1111 Third Avenue,
Suite 945, Seattle, WA 98101-3212
James A. Nelson, Esq., Attorney at Law, 205 Cowlitz, P.O. Box 878, Toledo, WA 98591
\nt

1090

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000 ·
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204·1

September 20, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 2000-65
A. C. No. 34-01787-03557

v.
Docket No. CENT 2000-80 .
A. C. No. 34-01787-03558

GEORGES COLLIERS, INC.,
Respondent

Pollyanna No. 8 Mine

DECISION
Appearances:

Janice Mountford, Esq, and Ernest A. Burford, Esq.,
Office of the Solicitor, U.S. Department of Labor, Dallas, Texas
on behalf of Petitioner;
·
Elizabeth M. Christian, Esq., Oklahoma City, Oklahoma,
on behalf of Respondent.

Before:

Judge Melick

These consolidated cases are before me upon the Petitions for Civil Penalty filed by the
Secretary of Labor pursuant to Section 105(9.) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801, et seq., the "Act" charging Georges Colliers Inc. (Georges Colliers) with
29 violations of mandatory standards and proposing civil penalties of $6, 151.00, for those ·
violations. 1 At heanngs on April 13, 2000, Georges Colliers admitted the violations as alleged
and the parties stated that they had reached stipulations as to each of the civil penalty criteria
under Section l lO(i) of the Act, except for ·consideration of the effect of the penalties upon the
operator's ability to continue in business. The parties were nevertheless unable to submit such
stipulations for five more months. In the interim Georges Colliers ceased to own or operate the
·
subject mine.
The general issue before me is the appropriate civil penalty to be assessed for each of the
29 violations considering the criteria under Section 1lO(i) of the Act. Under that section the
Commission and its judges are required to consider (1) the operator's history of previous
violations, (2) the appropriateness of such penalty to the size of the business of the operator
The Secretary effectively amended her Petitions in these cases in the "Joint
Stipulations of Fact" filed September 13, 2000. She now is seeking only $3,767.00 in civil
penalties.
1091

charged,-(3) whether the operator was negligent, (4) the effect on the operator's ability to
continue in business, (5) the gravity of the violation and (6) the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after notification of a violation.
The parties reached stipulations regarding the gravity and negligence criteria for each of
the 29 violations at issue. Those stipulations are set forth in the attached Appendix and, in
conjunction with the findings on the face of the charging documents, have been accepted in
determining the appropriate civil penalties in these cases. The four remaining criteria under
Section 11 O(i) are common to all of the charging documents:
Operator's History of Previous Violations
The record discloses, and the parties have now stipulated, that Georges Colliers had a
history of218 paid violations dating back to February 4, 1997. Seventy-three of those violations
were designated as "significant and substantial". This is a serious history and is a factor
warranting significant consideration in the assessment of a civil penalty.
Appropriateness ofthe Penalty to the Size ofthe Business of the Operator
The record shows, and it has now been stipulated, that Georges Colliers had an annual
production of 334,912 tons of coal and 246,544 hours worked. This would place the operator in
a medium size category.
The Demonstrated Good Faith in Attempting to Achieve Rapid Compliance

It appears to be undisputed that the operator demonstrated good faith in attempting to
achieve rapid compliance with respect to all violations except Citation No. 7599671 for which a
"failure-to-abate" order was issued. Those factors have been considered in assessing civil
penalties herein.
The Effect on the Operator's Ability to Continue in Business
The mine operator has the burden of proving that a particular civil penalty would effect
its ability to remain in business. Broken Hill Mining Co., 19 FMSHRC 673 (April 1997 ). At
hearings on April 13, 2000, Georges Colliers submitted numerous financial records and extensive
unrebutted factual and expert testimony from financial consultant and accountant, Paul Matlock.
However since the opinions rendered by Matlock regarding the effect of the proposed penalties
on Respondent's ability to remain in business were premised on the original proposed penalties
of$6,151.00, and not on the amended proposed penalties of$3,713.00, his opinions in this
regard are no longer relevant. In addition, because the parties have delayed more than five
months in reaching stipulations, the financial data, submitted at hearings in April, are clearly now
out of date. The fact that Respondent no longer owns or operates the Pollyanna No. 8 Mine is, of
course, also an important factor not considered by Matlock. Under all the circumstances I do not
1092

find that the Respondent has·met bis burden of proving that the amended proposed penalties,
which are nearly 50% less than the original proposed penalties, would effect its ability to remain
in business. Broken Hill Mining Co., 19 FMSHR.C 673 (April 1997); Sellersburg Stone Co., 5
FMSHRC 287 (March 1983), aff'd 736 F.2d 1147 (7th Cir. 1984). Nevertheless, to minimize the
financial impact of the penalty assessment herein, I am directing that payments be made under an
amortized plan.

QRDER
The admitted violations herein are affirmed and Georges Colliers, Inc., is directed to pay
the following civil penalties totaling $3,713.00 commencing with a payment of$113.00 on
November 1, 2000 and continuing thereafter with equal payments of $150.00 on the first day of
each month for the succeeding 24 months:
Citation Number
07599671
07599672
07600017
07600018
07600019
07600020
07600021
07600022
07600023
07600024
07600025
07600027
07600028
07600030
07600031
07600032
07600035
07600036
07600039
07600040
07600041
07600042
04366679
04367257
04367535
04~67536

04367537

Penalty
$453.00
$ 55.00
$ 55.00
$ 55.00
$ 55.00
$ 55.00
$ 55.00
$ 55.00
$ 55.00
$ 55.00
$399.00
$ 55.00
$ 55.00
$ 55.00
$ 55.00
$399.00
$399.00
$ 55.00
$399.00
$399.00
$ 55.00
$ 55.00
$ 55.00
$ 55.00
$ 55.00
$ 55.00
$ 55.00

1093

03558900
04367258
Total

$ 55.00
$ 55.00
$3,713.00

J

!

-·
I

~
::::

Gary M lick
Adminis ative Law udge
Distribution: (Certified Mail)
Janice H. Mountford, Esq., Office of the Solicitor, U.S. Dept. of Labor, 525 South Griffin St.,
Suite 501, Dallas, TX 75202
Elizabeth M. Christian, Esq., Georges Colliers, Inc., P.O. Box 720528, Oklahoma City, OK
73172-0528
\mca

1094

APPENDIX

UNITED STATES OF AMERICA
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
)
)
)
)
)
)
)
)
)
)
)
)

ALEXIS M. HERMAN, Secretary of
Labor, United States Department
of Labor,
Petitioner,

v.
GEORGES COLLIERS, INC.

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. CENT 2000-65
A. C. No. 34-01787-03557
Docket No. CENT 2000-80.
A. C. No. 34-01787003558

Mine: Pollyanna No. 8 Mine

JOINT STIPULATIONS OF FACT
Pursuant to the court's order dated June 11, 2000, the Secretary and the Respondent
submit the following joint stipulations of fact:
1. For both Docket No. CENT 2000-65 and CENT 2000-80 the history of previous violations is
stipulated to be 218. The revised penalty calculations based on this stipulated history is $2819.00
in total penalties for Docket No. CENT 2000-65 and $948.00 for Docket No. CENT 2000-80.
2. The Respondent no longer owns or operates the mine for abatement purposes.
3. For both Docket No. CENT 2000-65 and CENT 2000-80 the size of the mine operator, based
on mine tonnage or hours worked, is stipulated to be 246,544 hours worked and 334,912 t~ns.
4. Good faith- In Docket No. CENT 2000-65 credit for good faith was given on citations
7600025, 7600032, 7600035, and 7600039 but not given on 7599671; the remainder were single
penalty assessments. In Docket No. CENT 2000-80 credit for good faith was given only on
citation 7600040; the remainder were single penalty assessments.
'
Docket No. CENT 2000-65
Citation No. 7599671
5. The mine operator had an unauthorized field modification on the Lee Norse roof bolter Serial
#21033, model TD1.l.31.13E, approval #2G2777A-O.

1095

6. 1bis roof bolter was observed in the number 6 entry on the 1-51 right section. The ARlOO
Ocenco, Inc., tri-plane area light housing XIP 3190-0 and push button enclosures were found not
acceptable under the 2G2777A-0 drawings. These lights had not been approved for use on this
model of roof bolter by MSHA as required by the standard.
7. Section violated is 30 C.F.R. §75.503.

GRAVITY
8. Injury or illness due to this violation is unlikely because the lights were explosion proof, just
not approved for use on this roof bolter.
9. Injury or illness could reasonably be expected to result in no lost workdays because explosion
was unlikely to occur.
10. This violation was not significant and substantial because of a low likelihood of accident.

NEGLIGENCE
11. The level of negligence exhibited in this violation was moderate because the mine operator
knows that lights must be approved or else he or she must file a field modification with MSHA
and the mine operator failed to do so.
Citation No. 7599672
12. The mine operator had unauthorized field modification on the Lee Norse roof bolter serial
#20921, model TD1.l.31.13E, approval #2G2777A-O.
13. 1bis roof bolter was observed in the number 2 entry on the first right section. The Long
Airdox, Inc., tri~plane area light housing XIP 3190-0 and push button enclosures were found not
acceptable under the 2G2777A-0 drawings.
14. This is a violation of30 C.F.R. § 75.503.

GRAVITY
15. Injury or illness as a result of this violation is unlikely because the lights were explosion
proof, just not approved for use on this roof bolter.
16. Injury or illness could reasonably be expected to result in no lost workdays because
explosion was unlikely to occur.
17. This violation was not significant and substantial because of a low likelihood of accident.
1096

NEGLIGENCE
18. The level of negligence exhibited in this violation was moderate because the mine operator
knows that lights must be approved or else he or she must file a field modification with MSHA
and the mine operator failed to do so.
Citation No. 7600017
19. The mine operator failed to maintain the ventilation stopping at #3 cross cut on the number 3
intake enter on the mains.
20. The stopping was missing a block measuring approximately ten inches by eight inches.
21. The perimeter of the stopping was also leaking air into the belt entry where the plaster had
fallen loose in several places.
22. This was a violation of30 C.F.R. §75.370(a)(l).

GRAVITY
23. Injury or illness as a result of this violation is unlikely because this violation would only
result in injury in case of a fire.
24. Injury or illness could reasonably be expected to result in lost workdays or restricted duty
based on the fact that this could have resulted in health air contamination(carbon monoxide) in
case of a fire.
25. This violation was not significant and substantial because no fire had occurred.

NEGLIGENCE
'
.
26. The level of negligence exhibited in this violation was moderate because it had lasted for
several weeks and the fireboss should have picked it up on pre-shift inspection and corrected it.

Citation No. 7600018
27. The mine operator allowed accumulations of loose coal and other combustible materials to
exist in the electrical transformer station. The combustible materials consisted of wooden crib
blocks and loose coal piled together with rock and other materials from a roof fall.
28. The ~ea measured approximately 40 feet by 20 feet and the combustible material was piled
to a depth of a few inches to 4-5 feet in depth.

1097

29. The accumulations were located in the power center station at cross cut number five on the
number four intake entry on the mains.
30. This condition was a violation of30 C.F.R. §75.400.

GRAVITY
31. Injury or illness as a result of this violation is unlikely because these large pieces of coal and
wood blocks are not as incindiary as other materials such as coal dust.
32. Injury or illness could reasonably be expected to result in lost workdays or restricted duty
due to injuries in the case of a fire (i.e. tripping due to loss of visibility due to smoke, smoke
inhalation, burns, etc.).
33. This violation was not significant and substantial because danger of fire was not high.

NEGLIGENCE
34. The level of negligence exhibited in this violation was moderate because this condition
should have been noted in the pre-shift inspection and corrected.
Citation No. 7600019
35. The mine operator failed to control the top above the T-3 transformer located in cross cut #5
on the #4 intake entry on the mains.
36. The top had fallen loose from two fully grouted resin roof bolts allowing a void between the
bearing plates and the top.
37. Approximately six inches of top was missing due to air slaking.
38. This condition was a violation of 30 C.F.R. §75.202(a).

GRAVITY
39. Injury or illness as a result of this violation is unlikely since the resin grouted bolt still had
some supporting effect and because there was not a lot of foot traffic in this area.
40. Injury or illness could reasonably be expected to result in lost workdays or restricted duty
because of being struck by the roof top rock(i.e. bone fractures, concussions, etc.).
41. This violation was not significant and substantial because the likelihood of material falling
was not great.
1098

NEGLIGENCE
42. The level of negligence exhibited in this violation was moderate because this condition
should have been noted in the pre-shift inspection and corrected.
Citation No. 7600020
43. The mine power cable was not protected from damage. The 2/0 AWG, 3/C GGC, 8 kv cable
supplying 480 volts to the power distribution center on the first right section had a damaged spot
on the outer insulated jacket revealing the copper shielding material.
44. The damaged spot measured approximately two inches in length and one inch in wi~th.
45. The power cable is located at cross cut #5 on the fourth intake entry on the mains.
46. This condition was a violation of30 C.F.R. §75.517.

GRAVITY
47. Injury or illness as a result of this violation is unlikely since the cable was shielded and the
other safety components were still functioning.
48. Injury or illness could reasonably be expected to result in no lost workdays because the
circuit breaker was still working.
49. This violation was not significant and substantial because the four safety components at the
circuit breaker and the inner phase conductors were still intact.

NEGLIGENCE
50. The level of negligence exhibited in this violation was moderate because the operator should
check the condition of this power cable on a weekly basis and should correct any ~~age.
Citation No. 7600021
51. The mine operator failed to perform a preshift examination on the underground electrical
installations, as referred to in 75.340(a), at the T-3 electrical transformer installation located at
cross cut #5 on the #4 intake entry on the mains.
52. The last inspection date and initials indicated was 05/05/99 by RG.
53. This _condition was a violation of 30 C.F.R. §75.360(b)(9).

GRAVITY
1099

54. Injury or illness as a result of this violation is unlikely because the transformers were next on
the list to be inspected, according to the superintendent.
55. Injury or illness could reasonably be expected to result in lost workdays or restricted duty
because of electric shock.
56. This violation was not significant and substantial because no imminent danger existed as a
result of this violation:

NEGLIGENCE
57. The level of negligence exhibited in this violation was moderate because this area should be
inspecyed every 8 hours on a pre-shift examination.
Citation No. 7600022

58. The mine operator failed to provide roof support at cross cut #42 on the intake entry #4 on
the 151 left mains.
59. The roof bolt has a void between the top and the bearing plate which measures
approximately three inches.
60. Material had fallen loose which allowed a void to exist.
61. This condition was a violation of30 C.F.R. §75.202(a).

GRAVITY
62. Injury or ilfuess as a result of this violation is unlikely because the fully grouted resin roof
bolts still retained some supporting quality.
63. Injury or illness could reasonably be expected to result in lost workdays or restricted duty
because of injury due to being struck by falling rock(i.e. bone fractures, concussion, etc.).
64. This violation was not significant and substantial because the likelihood of material falling
was not great.

NEGLIGENCE
65. The level of negligence exhibited in this violation was moderate since the condition had
likely existed for several months and should have been corrected much earlier.

1100

Citation No. 7600023
66. The mine operator failed to provide roof support at cross cut #55 on the intake entry #4 on
the 1st left mains.
67. The roof bolt has a void between the top and the bearing plate which measures
approximately three inches.
68. The material had fallen loose allowing the void. The roof bolt was located on the comer of
the rib.
·
69. This condition was a violation of30 C.F.R. §75.202(a).

GRAVITY
70. Injury or illness as a result of this violation is unlikely because the fully grouted resin roof
bolts still retained some supporting quality.
71. Injury or illness could reasonably be expected to result in lost workdays or restricted duty
beeause ofinjuries caused by falling rock (bruises, laceratiOns, concussion, etc.).
72. This violation was not significant and substantial because the likelihood of material falling
was not great.

NEGLIGENCE
73. The level of negligence exhibited in this violation was moderate because this condition
should have been noted during the pre-shift inspection and corrected.
Citation No. 7600024
74. The mine operator failed to provide roof support at cross cut #56 on the intake entry #4 on
the 1st left mains.
75. The roof bolt has a void between the top and the bearing plate which measures
approximately three inches.
76. The material had fallen loose allowing the void. The roof bolt was located in the middle of
the entry.
77. This condition was a violation of30 C.F.R. §75.202(a).

GRAVITY
1101

78. Injury or illness as a result of this violation is unlikely because the fully grouted resin roof
bolts still retained some supporting quality.
79. Injury or illness could reasonably be expected to result in lost workdays or restricted duty
because of injuries caused by falling rock (bruises, lacerations, concussion, etc.).
80. This violation was not significant and substantial because the likelihood of material falling
·
was not great.

NEGLIGENCE
81. The level of negligence exhibited in this violation was moderate because this condition
should have been noted during the pre-shift inspection and corrected.

Citation No. 7600025
82. The mine operator failed to block the Wanger LST-5 Scoop from accidental movement.
83. The scoop was located in #6 intake entry, in the last open on the third left working section.
84. The scoop was idling with the bucket in the raised position. The operator of the scoop was
located in the cross cut adjacent to the scoop gathering materials.
85. The mine has a history of accidental movement of equipment which caused an accident to
occur to miners.
86. This condition was a violation of 30 C.F.R. §75.1403.

GRAVITY
87. Injury or illness as a result of this violation is reasonably likely because the mine has sloping
roadways and a history of accidents involving moving machinery.
88. Injury or illness could reasonably be expected to result in permanent disability due to severe
injuries from being struck or run over by moving machinery(i.e. severe blunt trauma, extensive
bone fractures, paralysis or death).
89. This violation was significant and substantial because of the imminent danger of catastrophic
lilJury.

NEGLIGENCE
1102

90. The level of negligence exhibited in this violation was moderate because the miners were
aware of the regulation regarding these safeguards and they should have taken corrective action.
Citation No. 7600027
91. The mine operator failed to provide guarding where miners regularly work and pass under
the high voltage power cable.
92. The 4160 volt power ·cable located adjacent to the sectional power center was not guarded.
93. The cable was located on the third left working section.
94. This condition was a violation of30 C.F.R. §75.807.

GRAVITY
95. fujury or illness as a result of this violation is unlikely since the relay was functional and no
damaged spots were noted in the insulation.
96. fujury or illness could reasonably be expected to result in lost workdays or restricted duty
due to injuries from electric shock (second and third degree burns).
97. This violation was not significant and substantial because the other safety components on
were functioning properly.

NEGLIGENCE
98. The level of negligence exhibited in this violation was moderate because this condition
should have been noted in the pre-shift inspection and corrected.
Citation No. 7600028
99. The mine operator failed to maintain the ground monitor on circuit #4 on the sectional
transformer on the third left working section.
100. The monitor unit had three bolts missing and would not pick up the under voltage release
unit on the circuit breaker when tested.
101. This circuit was not tagged out of service to indicate a defective circuit.
102. This condition was a violation of30 C.F.R. §75.900.

GRAVITY
1103

103. Injury or illness as a result of this violation is unlikely since the UVR on the breaker will
not allow the breaker to close without the monitor working.
104. Injury or illness could reasonably be expected to result in lost workdays or restricted duty
due to injuries from electric shock (second and third degree burns).
105. This violation was not significant and substantial because no equipment was hooked up to
·
this circuit.

NEGLIGENCE
106. The level of negligence exhibited in this violation was moderate because a qualified
electrician should have noted this condition during the weekly inspection and tagged it out as out
of service.
Citation No. 7600030
107. The mine operator did not maintain the female receptacle on the #5 coupler unit.
108. The housing which is constructed to ensure that the ground check conductor is broken first
and the ground conductor is broken last was damaged under the latching alignment pin where the
cat head receptacle enters into the female receptacle allowing removal of the cat head nip without
breaking the ground check wire first.
109. The transformer is located on the third left working section.
110. This circuit was energized with the roof bolter machine at time of observation.
111. This condition was a violation of30 C.F.R. §75.902.

GRAVITY
112. Injury or illness as a result of this violation is unlikely since it is unlikely a miner would
pull out the cat head in such a way as to be shocked (flash or arc unlikely to occur unless there
was a short in the machine).
113. Injury or illness could reasonably be expected to result in lost workdays or restricted duty
due to injuries from electric shock (second and third degree burns and shock).
114. This violation was not significant and substantial because the likelihood of injury was
unlikely.

1104

·NEGLIGENCE
115. The level of negligence exhibited in this violation was moderate because a qualified
electrician should have noted this condition during the weekly inspection and tagged it out as out
of service.
Citation No. 7600031
116. The mine operator failed to maintain the female receptacle on circuit #6 on the transformer
on the third left working section.
117. The copper pilot pin (female) was broken and observed on the transformer beneath the
circuit breaker.
118. The circuit was not tagged out of service.
119. This condition was a violation of30 C.F.R. §75.900.

GRAVITY
120. Injury or illness as a result of this violation is unlikely since the missing pilot pin would not
allow the UVR to pick up and this would not allow the breaker to close.
121. Injury or illness could reasonably be expected to result in lost workdays or restricted duty
due to injuries from electric shock (second and third degree bums and shock).
122. 1bis violation was not significant and substantial because the likelihood ofinjwywas low.

NEGLIGENCE
123. The level of negligence exhibited in this violation was moderate because a qualified .
electrician should have noted this condition during the weekly inspection and tagged it out as out
of service.
Citation No. 7600032
124. The mine operator failed to adequately perform the examination on the low and medium
voltage alternating current circuits in the mine.
125. The grounding resistor wire was broken and had oxidation and discoloration.
126. Circuit #10 on the same transformer was missing components to the circuit.

1105

127. These conditions indicate that, at best, an inadequate examination was conducted.
128. This condition was a violation of30 C.F.R. §75.900-3.

GRAVITY
129. Injury or illness as a result ofthis violation is reasonably likely because of the extremely
poor state of repair of the circuit and because of the number of violations associated with this
circuit there was a greater likelihood that at least one of them would result in injury.
130. Injury or illness due to this violation could reasonably be expected to result in permanent
disability due to injuries from electric shock(second and third degree burns and shock) or
electrocution.
131. This violation was significant and substantial because of violation of 104(d)(2) of the Act
cited by order #7600026 for open grounding resistors on 480V circuits which would allow
anyone on the equipment to be energized to 277V.

NEGLIGENCE
132. The level of negligence exhibited in this violation was moderate because a qualified
electrician should have noted this condition during the weekly inspection and tagged it out as out
of service.
Citation No. 7600035
133. The mine operator failed to follow the approved roof control plan. The mine operator did
not take appropriate action to support the roof by using additional roof support materials to
support the adverse geological roof conditions observed on the third left working section located
at cross cut #3 on the #4 intake entry.
134. The top conditions observed indicate that the slick side geological formation exists in the
caved area where a horse back exists.
135. The void created by the fallen material has resulted in a large crack which is approximately
20 feet long and one half inch wide in the middle of the horse back formation.
136. The middle of the top has two fully grouted resin roof bolts which have voids between the
top and the bearing plates.
13 7. The mine has a history of roof falls due to the slick sided rock formations encountered in
the mining process. The face boss has endangered the area until additional support material
amves.

1106

138. This condition was a violation of30 C.F.R. §75.220(a)(l).

GRAVITY
139. Injury or illness as a result of this violation is reasonably likely due to the unstable
geological conditions and the mine's history of roof falls in this area
140. Injury or illness due to this violation could reasonably be expected to result in permanent
disability due to injuries from large scale rock falls (i.e. extensive broken bones, nerve and tissue
damage from crushing impact and possible death).
141. This violation was significant and substantial because of the imminent danger of large-scale
roof rock falls.

NEGLIGENCE
142. The level of negligence exhibited in this violation was moderate because the mine operator
knew this condition existed and failed to correct it.
Citation No. 7600036
143. The mine operator failed to provide adequate supplemental roof support material on the
third left working section. The mine operator had no cribbing material and no timbers.
144. This condition was a violation of30 C.F.R. §75.214(a).

GRAVITY
145. Injury or illness as a result of this violation is unlikely unless roof conditions were unstable.
146. Injury or illness due to this violation could reasonably be expected to result in lost .
workdays or restricted duty due to injuries from large scale rock falls (i.e. extensive broken
bones, nerve and tissue damage from crushing impact and possible death).
147. This violation was not significant and substantial because lack of supplemental support
materials did not cause roof instability.
·,

NEGLIGENCE
148. The level of negligence exhibited in this violation was moderate because the mine operator
lmew of the regulation but failed to take action.
Citation No. 7600039
1107

149. The mine operator allowed accumulations of black colored coal dust to exist in dangerous
amounts inside the electrical enclosures on the Hydcaloader crusher unit.
150. The fine black colored coal dust existed in all six electrical enclosures and covered
electrical components inside the enclosures.
151. The dust measured approximately one inch in depth. The crusher is located on the surface
adjacent to the main shop. The voltage inside the enclosure is 480 volts alternating current.
152. This condition was a violation of30 C.F.R. §77.202.

GRAVITY
153. Injury or illness as a result of this violation is reasonably likely due to the high
accumulation of dust in an area of possible ignition (arcing was noted inside the lectrical
enclosures).
154. Injury or illness due to this violation could reasonably be expected to result in permanent
disability due to injuries from a fire or possible explosion (i.e. smoke inhalation, bums, injuries
from flying pieces of metal or possible death).
155. This violation was significant and substantial because of the high likelihood of ignition and
the extremely violent nature of coal dust explosions(higher kinetic energy per square inch than
TNT).

NEGLIGENCE
156. The level of negligence exhibited in this violation was moderate because a qualified
electrician should have noted this condition during the weekly inspection and tagged it out as out
of service.
·
Docket No. CENT 2000-80
Citation No. 7600040
157. The mine operator failed to maintain the five electrical starter enclosures in good condition.
The boxes are rusted out to the point that coal dust freely enters into the enclosures, creating a
dangerous condition.
158. The enclosures are mounted on the Hydcaloader crusher unit located in the coal yard.
159. This condition was a violation of 30 C.F.R. §77.502.
1108

GRAVITY
160. Injury or illness as a result of this violation is reasonably likely due to the high
accumulation of dust in an area of possible ignition (arcing was noted inside the lectrical
enclosures).
161. Injury or illness due to this violation could reasonably be expected to result in permanent
disability due to injuries from a fire or possible explosion (i.e. smoke inhalation, burns, injuries
from flying pieces of metal, or possible death).
162. This violation was significant and substantial because of the high likelihood ofi~tion and
the extremely violent nature of coal dust explosions(higher kinetic energy per square inch than
TNT).

NEGLIGENCE
163. The level of negligence exhibited in this violation was moderate because a qualified
electrician should have noted this condition during the weekly inspection and tagged it out as out
of service.
Citation No. 7600041
164. The mine operator has failed to maintain the following items on the wash plant in safe
condition: 1. A broken, one inch rigid metallic conduit has a coupler which has broken into the
conduit, located under the main feeder hopper; 2. Three bolts missing from the lighting fixture
located under the hopper.
165. This condition was a violation of30 C..F.R. §77.502.

GRAVITY
166. Injury or illness as a result of this violation is unlikely because the short circuit protection
device would cause the breaker to open.
167. Injury or illness could reasonably be expected to result in lost workdays or restricted duty
due to injuries from electrical shock (second and third degree burns).
168. This violation was not significant and substantial because none of these conditions would
likely cause ~njury.

NEGLIGENCE

1109

169. The level of negligence exhibited in this violation was ·moderate because a qualified
electrician should have noted this condition during the weekly.inspection and tagged it out as out
of service.
Citation No. 7600042
170. The mine operator allowed accumulations of black colored coal dust to exist on the rockdusted surfaces of the ribs, mine floor and adjacent cross cuts from the belt portal to the #1 tail
drive. The belt entry was extremely black in color.
171. This condition was a violation of 30 C.F.R. §75.400.

GRAVITY
172. Injury or illness as a result of this violation is unlikely because no ignition source near.
173. Injury or illness could reasonably be expected to result in lost workdays or restricted duty
due to injuries from fire or explosion (smoke inhalation, burns or death).
174. This violation was not significant and substantial because fire or explosion less likely.

NEGLIGENCE
175. The level of negligence exhibited in this violation was moderate because the mine operator
knew of this condition and took no action to correct it.
Citation No. 04366679
176. The permanent stoppings between the intake air course and the belt line were not
maintained at cross cuts 38, 40, 41 and 42 on the first left mains. Parts of the cinder blocks had
been removed from each of the stoppings allowing the intake air to enter the belt flight.
177. The air from this intake air course is used to provide air to active workings.
178. This condition was a violation of30 C.F.R. §75.333(b)(3).

GRAVITY
179. Injury or illness as a result of this violation is unlikely because this violation would only
result in injury in case of a fire.

1110

180. Injury or illness could reasonably be expected to result in lost workdays or restricted duty
based on the fact that this could have resulted in health air contamination(carbon monoxide) in
case of a fire.
181. This violation was not significant and substantial because no fire had occurred.

NEGLIGENCE
182. The level of negligence exhibited in this violation was moderate because it had lasted for
several weeks and the fireboss should have picked it up on pre-shift inspection and corrected it.
Citation No. 4367257
183. The mine operator failed to provide sufficient fire hose to cover the length of the belt.
There was only 100 feet of fire hose at the No. 3 section belt drive. The drive was pulling 6
crosscuts of belt, which is equivalent to about 360 feet.
184. This condition was a violation of30 C.F.R. §75.l 100(2)(b).

GRAVITY
185. Injury or illness as a result of this violation is unlikely because there was some fire hose,
just not enough.
186. Injury or illness could reasonably be expected to result in no lost workdays because fire was
unlikely.
187. This vio~ation was not significant and substantial because fire was unlikely.

NEGLIGENCE
188. The level of negligence exhibited in this violation was moderatebecause the mine operator
knew of the regulation but took no action to comply with it.
Citation No. 4367535
189. The mine operator failed to maintain the automatic fire warning device in operational
condition. The automatic fire warning device would not give a warning when a fire would occur
on or near a belt. The system showed an open line, which would be detrimental to its proper
operational condition.
190. This condition was a violation of30 C.F.R. §75.1103.

1111

GRAVITY
191. Injury or illness as a result of this violation is unlikely because fire was unlikely to occur
here.
192. Injury or illness could reasonably be expected to result in lost workdays or restricted duty
due to injuries due to smoke inhalation.
193. This violation was not significant and substantial because fire was unlikely.

NEGLIGENCE
194. The level of negligence exhibited in this violation was moderate because the mine operator
should have noted this condition during weekly inspection and corrected it.
Citation No. 4367536
195. The Wagoner diesel powered scoop #1 was left unattended with the engine running in the
#4 entry of 001 section which is the first right off of the first left.

196. This condition was a violation of30 C.F.R. §75.1916(e).

GRAVITY
197. Injury or illness as a result of this violation is unlikely because there was enough ambient
air to dilute the engine exhaust.
198. Injury or illness could reasonably be expected to result in no lost workdays because of
injuries due to e~aust inhalation(i.e. dizziness, headaches, loss of balance, shortness of breath).
199. This violation was not significant and substantial because severe injury was ~ely.

NEGLIGENCE
200. The level ofnegligence exhibited in this violation was moderate because the mine operat~r
knew of this condition and did not attempt to abate it.
Citation No. 4367537
201. The mine operator was not complying with the roof control plan in that a supply of roof
support material was not provided on the working section or within four crosscuts of the working
section as required on page 4, item 14A of plan.

1112

202. This condition was a violation of30 C.F.R. §75.220(a)(l).

GRAVITY
203. Injury or illness as a result of this violation is unlikely unlikely unless roof conditions were
unstable.
204. Injury or illness coµld reasonably be expected to result in lost workdays or restricted duty
due to injuries from large scale rock falls (i.e. extensive broken bones, nerve and tissue damage
from crushing impact and possible death).
205. This violation was not significant and substantial because lack of supplemental support
materials did not cause roof instability.

NEGLIGEN·CE
206. The level of negligence exhibited in this violation was moderate because the mine operator
knew of the regulation but failed to take action.
Citation No. 3558900
207. Coal dust, including float coal dust, and loose coal had accumulated on the entire top
surface of the Long Airdox CM728Illi continuous miner, serial #60-1045.
208. The thickness of the accumulations ranged from one quarter inch to three inches.
209. The continuous miner was located in crosscut 5 between entries 3 and 4 of first right
submains.
210. This condition was a violation of 30 C.F.R. §75.400.

GRAVITY
211 . Injury or illness as a result _o f this violation is unlikely because there was no electrical
equipment or ignition source nearby.
212. Injury or illness could reasonably be expected to result in lost workdays or restricted duty
due to injuries from fire(i.e. burns and smoke inhalation).
213. This violation was not significant and substantial because there was no ignition source
nearby.

NEGLIGENCE
1113

214. The level ofnegligence exhibited in this violation was moderate because the mine operator
should have cleaned the area after the shift inspection.
.
:
:
Citation No. 4367258

.

215. The transformer for the bridges in the 001 section was not being properly maintained.
216. The upper bolt on .a side panel was loose and the lower bolt was missing, which allowed the
enclosure panel to swing out--at the bottom a measured six inches. This gap became
progressively narrower for 18 inches upward until, at the top, it was touching.
217. The panel was not properly protecting the inside of the enclosure.
218. This condition was a violation of30 C.F.R. §75.512.

GRAVITY
219. Injury or illness as a result of this violation is unlikely due to the size of the opening.
220. Injury or illness could reasonably be expected to result in no lost workdays because injury
was unlikely.
221. This violation was not significant and substantial because injury was unlikely.

NEGLIGENCE
222. The level of negligence exhibited in this violation was moderate because a qualified
electrician should have noted this condition during the weekly inspection and tagged it out as out
of service. ·

1114

CONCLUSION
The Secretary and counsel for Respondent respectfully submit these Joint Stipuations of
Fact and respectfully request that these joint stipulations be entered in the record as findings of
fact.

HENRY L. SOLANO
Solicitor of Labor
WILLIAM E. EVERHEART
Regional Solicitor
GEORGES COLLIERS

By:

By:

CE HOLMES MOUNTFORD
Ull$el for Safety and Health
e!.~.wJ;1u7Yj~ Ola-~

Counsel for Respondent

CHRISTOPHER. V. GRIER
Attorney

Law 0,f.fice.5
2600 Tealwood Drive, Suite 326
Oklahoma City, Oklahoma 73 Ii0-5628

U.S. Depamnent ofLabor
Ofiiee of the Solicitor
S25 Oriftio, Suite SO l
Dall~. Texas 75202

Attorney for Respondent

Attorneys for Coinplainaut.

Signed~~ _1_1t_h_ __

Signed ~,_ftihday of~ 2000.

BUZA.BETH M. CHRISTIAN

day of~ 2000.

1115

-·

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
.

1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

.

September 21, 2000

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

CIVIl.. PENALTY PROCEEDINGS
Docket No. WEST 99-38-M
A.C. No. 35-03345-05512

v.

Docket No. WEST 99-53-M
A.C. No. 35-03345-05513

HARNEY ROCK & PAVING CO.,
Respondent

Crusher No. 1

DECISION
Appearances: William W. Kates, Esq., Office of the Solicitor, U.S. Department of Labor,
Seattle, Washington, for Petitioner;
Troy Hooker, Hines, Oregon, for Respondent.
Before:

Judge Cetti

These consolidated civil penalty cases are before me upon Petitions for Assessment of
Civil Penalty, filed by the Secretary of Labor (Secretary) seeking the imposition of civil penalties
against Harney Rock and Paving Co. (Harney Rock) based upon eight citations alleging
violations of mandatory standards which are set forth in Title 30 of the Code of Federal
Regulations. Resp<:mdent filed a timely answer and, pursuant to notice, the cases were heard in
Boise, Idaho. At the hearing the parties presented testimony and documentary evidence which I
have carefully considered in reaching this decision.
Each of these consolidated civil penalty proceedings arise out of an inspection conducted
of the Respondent's mine facility known as Crusher No. 1, located in the vicinity of North
Powder, Oregon. The inspection was conducted by Brian T. Yesko, a Mine Safety and Health
fuspector of the Mine Safety and Health Administration, U.S. Department of Labor. As a result
of the inspection, fuspector Yesko issued the eight citations of violations of the Federal Mine
Safety and Health Act of 1977 (30 U.S.C. § 801 et seq.) (hereinafter the Mine Act) at issue in
these proceedings. A proposed assessment of penalty for such violations was thereafter issued to
and contested by the Respondent.

1116

The parties state they discussed the possible resolution of this matter, short of formal
hearing, but were unable to resolve this matter.
Inspector Y esko was the sole MSHA witness at the hearing. His testimony describes the
factual conditions and practices which he observed during the inspection. His testimony includes
the factual detail underlying each of the violations. The factual detail is set forth in each of the
citations issued to the Respondent.
Respondent presented the testimony of Lester Watkins, Superintendent for Crusher
No. 1 operations and Troy Hooker, Vice-President of Respondent Hamey Rock.

Stipulations
At the hearing, the parties entered into the record the following stipulations:
1. Harney Rock & Paving Co., is a corporation with the main home office and mailing
address Post Office Box 800, Hines, Oregon 97738.
2. Crusher No. 1 at the time of the inspection was located at the site in the vicinity of
North Powder, Oregon:
3. Respondent is under the jurisdiction of the Mine Act at its Crusher No. l mine facility.
4. Respondent, in the 24 months prior to the violations at issue, has a history of having
received 16 assessed violations during the course of 12 inspection days (see Govt. Ex. 1 which is
a printout from the Mine Safety an~ Health Administration that's been certified by an official
with the Civil Penalty Collection Office setting forth the history of violations at this mine).

The Inspection and Citations
Federal Mine Inspector Brian Yesko during his September 1, 1998, inspection of the mine
site located in the vicinity of Power, Oregon, was accompanied by Respondent's Superintendent
Lester Watkins. The inspector volunteered that Superintendent Watkins was cooperative during
his three- day inspection of the mjne site.
Citation No. 7710199
The inspector accompanied by Watkins first inspected the GMC fuel truck at the site.
The fuel tank extended over the top of the truck and obstructed the view to the rear as well as the
view through the rear view mirror. The truck was equipped with side view mirrors but the view
to the rear was very limited. Any person or object within the area immediately behind the truck
would not be visible. The truck was not equipped with a backup alarm. The inspector observed
the truck in use and testified that no observer or spotter was used to signal when it was safe to
1117

back up. I credit Inspector Y esko' s testim0ny that the truck had an obstructed view to the rear
and had no backup alarm. Respondent did not contest the assertion that no spotter was used.
The Respondent, by way of mitigation, presented evidence that the crusher operator was
the only person who drove the fuel truck. The truck is backed up only once a week and that is
when the crusher operator backs up the fuel truck to fuel the crusher. The operator does this
weekly fueling of the crusher at the end of the shift when there is hardly anyone around. (Tr.
100).
Significant and Substantial
A "significant and substantial" violation is described in section 104(d) of the Mine Act as
a violation "of such nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is
properly designated significant and substantial "ifbased upon the particular facts surrounding the
violation there exists a reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature." Cement Division, National Gypsum Co., 3 FMSHRC
825 (April 1981).

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission explained its
interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of a mandatory· safety
standard is significant and substantial under National Gypsum the
Secretary of Labor must prove: (I) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard-that is, a
measure of danger to safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
wil~ be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 1129 (August 1985), the
Commission stated further as follows:
We have emphasized that, in accordance with the language of
section 104(d)(l ), it is the contribution of a violation to the cause
and effect of a hazard that must be significant and substantial. U.S.
Tell Mining Company, Inc., 6 FMSHR.C 1866, 1868 (August
1984); U.S. Steel Mining Company, Inc., 6 FMSHRC 1573, 157475 (July 1984).

I find the testimony of Inspector Yesko established the four elements of the Mathies
formula for designating the violation S&S. There is a reasonable likelihood that the hazard
1118

· contributed to will result in an injury and a reasonable likelihood that the injury in question will
be of a reasonably serious nature.
I agree with the inspector's finding that gravity was relatively high and negligence was
moderate. The S&S violation of the cited standard was established.
Citation No. 7710200
The citation charges Respondent Hamey Rock with the violation of the safety standard
set forth in 30 C.F.R. § 56.14101(a)(2) which reads as follows:
(a) Minimum requirements. (1) Self-propelled mobile equipment
shall be equipped with a service brake system capable of stopping
and holding the equipment with its typical load on the maximum
grade it travels. This standard does not apply to equipment which is
not originally equipped with brakes unless the manner in which the
equipment is being operated requires the use of brakes for safe
operation. This standard does not apply to rail equipment.
(2) If equipped on self-propelled mobile equipment, parking
brakes shall be capable of holding the equipment with its typical
load on the ~aximum grade it travels.

Mr. Yesko presented credible testimony that established the parking brake on the GMC
fuel truck C0#3-33 would not hold when tested on a slight grade. The ground is not level in the
area where the truck is used. The truck could strike an employee. I agree with the inspector that
injury was reasonably likely; the gravity was high; and the negligence was moderate. The
evidence presented establishes an S&S, 104(a) violation of the cited standard. The citation is
affirmed as written.
Citation No. 7720207
The citation charges Respondent Hamey Rock with the violation of the safety standard
set forth in 30 C.F.R. § 56.11002 which in relevant part reads as follows:
Crossovers, elevated walkways, elevated ramps, and stairways
shall be of substantial construction provided with handrails, and
maintained in good condition.
Inspector Yesko presented credible testimony that during his inspection of the site he
observed the hand rails around the rolls unit elevated walkway which is 8Y2 feet high are in poor
condition; one comer post is broken off and hanging below the walkway by the cables used for
hand rails; several other posts were cracked or broken near the point where they are welded to the
walkway. Mr. Y esko observed employees using this walkway.

1119

I agree with Inspector Yesko's finding that the violation was S&S. His testimony
established all four factors of the Mathies formula. I find the operator's negligence was
moderate. The citation is affirmed as written.
Citation No. 7720208
The citation charges Respondent Harney Rock with the violation of the safety standard
set forth in 30 C.F.R. §.56.1 101 which reads as follows:
Safe means of access shall be provided and maintained to all
working places.
During his inspection, Inspector Y esko observed and concluded that a safe means of
access was not provided to the 8'l'2 foot high elevated walkway around the rolls unit. The ladder
to access this area was unsecured and an opening in the hand railing for access to the walkway
was not provided. Employees were observed going up the ladder and over the top rail of the
hand rail to gain access to this elevated walkway which was a working place.
I credit Inspector Yesko's testimony. I agree with the Inspector's findings set forth in this
citation that serious injury was reasonably likely; that negligence was moderate; and the violation
was S&S. The citation is affirmed as written.
Citation No. 7720209
The citation charges Respondent Harney Rock with the violation of the safety standard
set forth in 30 C.F.R. § 56.9300(b) which reads as follows:
(b) Berms or guardrails shall be at least mid-axle height of the
lai:gest self-propelled mobile equipment which usually travels the
roa~way.

Inspector Yesko testified he observed some large 50-ton haul trucks backing up a long
ramp that formed into the five-foot high stockpile. The berms along the five-foot high D-ballast
stockpile measured 26 inches at the highest point. Mid-axle height on the Cat 769C haul truck
backing up and dumping materiru on the stockpile measures 37 inches. The inspector testified
adequate warning would not be given to the driver by this under sized berm in the event of
overtravel. Asked as to what type of accident might happen, the inspector testified the truck
could rollover on its side, but he did not believe it could rollover on its top. Asked as to his
determination of likelihood of such an accident, he replied it would be "reasonably likely." The
operators of the trucks were wearing their seat belts but if a truck were to rollover on its side, it
could result in a whiplash injury. I agree with the inspector that the violation was S&S and the
operator's negligence was moderate. MSHA Form 1000-179 which is part of the record shows a
proposed penalty of$104.00. I believe a penalty of only $104.00 is appropriate since there was a

1120

berm composed of sound substance even though it was not the required mid-axle height. The
under sized berm was composed of crushed basalt that packs down and is quite solid. It was
undisputed, while backing up, the trucks travel only three to five miles per hour. {Tr. 123).
Citation Nos. 7720210
The citation charges Respondent Harney Rock with the violation of the safety standard
set forth in 30 C.F.R. § 5?.14132(b)(l) that when the operator of mobile equipment has an
obstructed view to the rear, requires a backup alann or an observer to signal when it's safe to
backup.
Inspector Yesko testified that he observed the Kenworth Water Truck C0#3-1 lhad a
large water tank on the rear of the truck which obstructed the view to the rear. The truck was
used to wet down the road throughout the mine site. The truck did not have a backup alann and
there was no observer or spotter to signal the driver when it was safe to backup. This is a serious
violation of30 C.F.R. § 56.14132(a). I agree with Inspector Yesko who found the violation to be
an S&S violation and evaluated the operator's negligence to be moderate. The preponderance of
the evidence established the four elements of the Mathies formula. The gravity of the violation
was high. I affirm the citation as written.
Citation No. 7720213
The citation charges Respondent Harney Rock with the violation of the safety standard
set forth in 30 C.F.R. § 56.14132(a) which reads as follows:
(a) Manually-operated horns or other audible warning devices
provided on self-propelled mobile equipment as a safety feature
shall be maintained in functional condition.
Inspector Y e~ko testified that the backup alarm and horn on the Cat 992A front end
loader CO #7-146 used to load the rail cars would not work at the time of inspection. He
observed the loader going forward and also backing up. The loader did not have a complete clear
view to the rear. There was no one serving as a spotter or assisting as to when it was safe to
backup. There was a hazard of an accident with other mobile equipment in use in the area which
could result in a serious or fatal injury. Thus, the gravity was high.
A violation of the cited standard was established. I agree with Inspector Y esko that
negligence was moderate and injury was reasonably likely. I affirm the citation as written.

1121

Docket No. WEST 99-53-M
Citation No. 7720211
This citation charges the operator with an S&S unwarrantable failure violation of 30
C.F .R. § 56. l 4130(g) for the failure of one of the dozer operators to wear the seat belt provided
by the operator. The citation written by Inspector Yesko reads as follows:
The operator of the Fiat Allis HD-31 S/N84M01340 dozer was
observed operating the dozer with the doors and windows open and
without wearing the seat belt provided while pushing material over
the approx. 45 to 50 feet high, high wall. The seat belt was tucked
in down below the seat and the operator refused to put the seat
belts on when I requested him to do so. The company does have a
seat belt policy. Spot checks of seat belt usage have not been
conducted.
Violation is an unwarrantable failure.
The inspector described the dozer as being an 18-foot long Caterpillar tracked vehicle.
He observed the dozer pushing material off the high wall. The inspector entered the cab of the
dozer and saw the seat belt tucked down below the seat. The driver refused the inspector's
request to put the seat belt on, stating that he knew people who "got killed" wearing a seat belt
when pushing material over a high wall. Inspector Yesko told the driver of several cases where
people survived going over high walls in a dozer wearing seat belts. The inspector said the
driver still declined to put the seat belt on.
No one else was in the cab of the dozer during the discussion between the inspector and
the driver. Superintendent Watkins was not present as he was standing on the ground below the
dozer where the conversation could not be heard.
The inspector, after instructing the driver not to operate the dozer, left the cab and talked
to Superintendent Watkins who then entered the cab. Watkins talked to the driver who then put
on and fastened his seat belt. Watkins came down from the cab and reported to the inspector that
the driver was wearing his seat belt. Thereafter, the dozer driver continued to wear his seat belt.
Obviously, the driver was concerned with his safety and felt he could escape injury if he jumped
off the bulldozer, if it should start to tum over or start to go over the high wall, and that he could
do so more easily ifhe were not wearing a seat belt, cf. Walker Stone Co. Inc., 21 FMSHRC
(October 1999).
Inspector Yesko testified that Respondent Hamey Rock has a written policy requiring the
use of seat belts by drivers of mobile equipment. The inspector read the policy. The operator
requires each newly hired employee to read and sign the seat belt policy. Although the operator
was unable to find a written seat belt policy signed by the driver in question, the operator insisted
the driver signed one or he would not be working for Hamey Rock. The operator's Employee
1122

Handbook specifically requires each driver of mobile equipment to wear the seat belt. The
foreman spot checks drivers to make sure all drivers are wearing their seat belts. (Tr. 122).
The evidence presented clearly established a serious violation of the cited belt standard.
The gravity was high. I also find the inspector properly designated the violation S&S. The
evidence presented established all four elements of the Mathies formula. I affirm the inspector's
S&S finding but on the basis of the evidence presented, I do not find the violation resulted from
aggravated conduct on the part of the operator and, thus, find that the violation was not a result of
the operator's unwarrantable failure.
Unwarrantable Failure
Unwarrantable failure" is aggravated conduct consisting of more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001(December1987). Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference," or a serious lack of reasonable care. Id at 2001-04; Rochester & Pittsburgh Coal
Co., 13 FMSHRC 189, 194 (February 1991).
The Commission in its decisions has discussed, among the factors to be considered, in
determining whether a violation resulted from aggravated conduct on the part of the operator are
"the extensiveness of the violation, the length of time the violative condition has existed, the
operator's efforts to elimiriate the violative condition, and whether the operator has been placed
on notice that greater efforts are necessary for compliance." Mullins and Sons Coal Co., 16
FMSHRC 192, 195(February1994). The culpability determination required for a finding of
unwarrantable failure is more than a "knew or should have known" test. Virginia Crews Coal
Co., 15 FMSHRC 2103, 2107 (October 1993). Upon consideration of all these factors, I find that
the violation of the cited standard was not a result of the operator's aggravated conduct. The
warrantable fail:ure designation in the citation should be deleted and the finding, as to negligence,
should be amended to moderate negligence.
I place no evidentiary weight on the vague statements overheard by the inspector in the
lunchroom, where employees were eating, as there was no identification as to the identity of the
two employees making the statements and only speculation as to the identity of the employee
they were talking about.

Evidence was also presented that it is difficult for a person standing on level ground to
see whether a bulldozer operator is wearing his seat belt.
Although the conduct of the driver of the dozer operator may have been aggravating, the
driver was not an agent of the mine operator. REB Enterprises, Inc., 20 FMSHRC 203, 211-12
(Mar. 1998) Whayne Supply Co., 19 FMSHRC 447 (Mar. 1997). The Commission has held that
''[t]he conduct of a rank-and-file miner is not imputable to the operator to establish
unwarrantable failure violation or the penalty. Fertilizer-Cullor, Inc. 17 FMSHRC 1112, 1116
1123

(July 1995). I credit the evidence presented by Respondent that it enforces its seat belt policy
with spot inspections. The fact remains that the driver in question violated the policy and the
standard. The evidence presented established a serious S&S violation of the cited seat belt
standard.

Appropriate Civil Penalties
I am required by Commission Rule 30, 29 C.F.R. § 2700.30, as well as by the Mine Act
itself, to consider the statutory criteria set forth in § 11 O(i) 1 of the Mine Act in determining the
appropriate civil penalty for each violation.
Size of Business of the Operator and History of Previous Violations
The operator's business is small and it does not have a history of excessive previous
violations.
The parties stipulated at the hearing that Respondent, in the 24 months prior to the
violations at issue, has a history of having received 16 assessed violations during the course of 12
inspection days (see Govt. Ex. 1, which is a printout from the Mine. Safety and Health
Ad.ministration that has been certified by an official with the Civil Penalty Collection Office
setting forth the history of violations at this mine).
Govt. Ex. 2 shows Respondent has approximately 10 employees and sets forth the
number of production hours worked each quarter from 1996 through October 1998.

In my assessment of each of the penalties, I have placed considerable weight on the fact
that the operator's business is small and the operator does not have a history of excessive
previous violations and demonstrated good faith in rapid compliance.

1

Section 11 O(i) provides in relevant part:

In assessing civil monetary penalties, the Commission shall consider the
operator's history of previous violations, the appropriateness of such penalty to
the size of the business of the operator charged, whether the operator was
negligent, the effect on the operator's ability to continue in business, the gravity of
the violation, and the demonstrated good faith of the person charged in attempting
to achieve rapid compliance after notification of a violation. In proposing civil
penalties under this Act, the Secretary may rely upon a summary review of the
information available to him and shall not be required to make findings of fact
concerning the above factors.
1124

Operator's Ability to Continue in Business
The parties presented no evidence on the effect of the proposed penalties on the
operator's ability to continue in business. I, therefore, presume that the proposed penalties would
not affect the operator's ability to continue in business. The validity of this presumption in the
absence of contrary evidence is well established. See Sellersburg, 5 FMSHRC at 294.
Negligence

In my separate discussion of each citation, I found the operator's negligence was
moderate. This means I found the Respondent failed to exhibit the ordinary care that was
required by the circumstances.
Gravity
The Commission stated that the gravity penalty criterion contained in § 11 O(i) of the
Mine Act requires an evaluation of the seriousness of the violations and that the focus of the
gravity criterion is on, "the effect of the hazard ifit occurs" (Hubb Corp., 22 FMSHRC 606, 609
(May 2000) (quoting Consolidation Coal Co., 18 FMSHRC 1541, 1550 (September 1996).
Fortunately, in these cases, none of the hazards cited resulted in any injury whatsoever but the
likely effect of each hazard cited, if it occurred, would have been a serious injury or death.
Consequently, I find the degree of gravity in all eight violations is relatively high. I agree with
the inspector that all violations were significant and substantial.
Good Faith in Rapid Compliance
I find the operator demonstrated good faith in attempting to achieve rapid compliance
after notification of the violation with respect to each of the violations. All violations were
timely abated. ·
On the basis of my foregoing findings and conclusions and my de novo consideration of
the civil penalty assessment criteria found in § 11 O(i) of the Act, I conclude and find that the
following penalty assessments are reasonable and appropriate for the violations that have been
affirmed in these proceedings.
Citation No.

30 C.F.R. Section

Assessment

7710199
7710200
7710207
7710208
7710209
7710210

56.14132(1)
56.14101(a)(2)
56.11002
56.11001
56.9300(b)
56. l 4132(b)(1)

$ 200.00
200.00
200.00
200.00
104.00
300.00

1125

7'7 10213
7720211

56.14132(a)
56.14130(g)
TOTAL

300.00
400.00
$1,904.00

ORDER
Accordingly, it is ORDERED THAT HARNEY ROCK & PAVING CO., PAY a civil
penalty of $1,904.00 to the Secretary of Labor within 30 days of the date of this decision. Within
the same 30 days, the Secretary shall modify Citation No. 7720211 to delete the unwarrantable
failure finding and change the degree of negligence to "moderate." Upon receipt of full payment
of the penalties, these proceedings are dismissed.

Administrative Law .Judge

Distribution:
William W. Kates, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 lbird Avenue,
Suite 945, Seattle, WA 98101 (Certified Mail)
Mr.Troy Hooker, _Yice President, HARNEY ROCK & PAVING CO., P .O. Box 800, Hines, OR
97738 (Certified ~fail)

/sh

1126

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

September 22, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. YORK 99-39-M
A. C. No. 30-02851-05504

V.

Seymour Road Pit
DOUGLAS R. RUSHFORD TRUCKING,
Respondent

DECISION
Appearances:

Suzanne Demitrio, Esq., Office of the Solicitor, U.S. Department of Labor,
New York, New York, for Petitioner;
Thomas M. Murnane, Esq., Stafford, Trombley, Owens & Curtin, PC,
Plattsburgh, New York for Respondent.

Before:

Judge Melick

This civil penalty proceeding under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801, et seq., the "Act," is before me upon remand by the Commission for
reconsideration of the $3,000.00 civil penalty imposed on Douglas R. Rushford Trucking
(Rushford) for .its violation of the standard at 30 C.F .R. § 56.14104(b)(2). Pursuant to the
remand, hearings were held on August 24, 2000, to take supplemental evidence on issues not
previously litigated. ·
Background
Rushford operates the Seymour Road Pit in Clinton County, New York. On August 28,
1998, when Rushford employee Nile Arnold attempted to inflate a tire on a fuel truck, the wheel
rim exploded and struck Arnold in the head. At the time, Arnold was not using a stand-off
inflation device nor was there such a device available on the mine site. On August 30, 1998,
Arnold died as a result of the injuries he sustained. After conducting an investigation, the
Department of Labor's Mine Safety and Health Administration (MSHA) charged Rushford with
violating 30 C.F.R. § 56.14104(b)(2). That standard requires that stand-off inflation devices be
used "to prevent injuries from wheel rims during tire inflation." Following hearings the violation
was sustained as well as the associated "significant and substantial" and "unwarrantable failure"
findings and Rushford was ordered to pay a civil penalty of $3,000.00.
1127

On review before the Commission the Secretary presented a new theory not previously
raised in her pleadings or at trial, that she failed to conduct inspections at the subject mine .during
relevant times because ofRushford's failure to file quarterly reports and that therefore
Rushford' s lack of a history of violations could not properly be considered as a mitigating factor
in the penalty assessment. The Commission accepted review of the Secretary's new theory and
remanded the issue for further proceedings. But See Section 113(d)(2)(A)(iii) of the Act;
Commission Rule 70(d), 29 C.F.R § 2700.70(d); Beech Fork Processing, Inc., 14 FMSHRC
1316, (August 1992); Shamrock Coal Co., 14 FMSHRC 1300 (August 1992). Within the
constraints of the Commission• s directive however, the record was accordingly reopened and
additional evidentiary hearings held to enable the Secretary to produce evidence on this issue not
previously litigated. The Commission also requested further explanation regarding application of
the "Section 11 O(i)" criteria.
Evaluation of the Civil Penalty Criteria
Section l lO(i) of the Act requires that "in assessing civil monetary penalties, the
Commission shall consider" the following criteria: (I) the operator's history of previous
violations, (2) the appropriateness of such penalty to the size of the business of the operator
charged, (3) whether the operator was negligent, (4) the effect on the operator's ability to
continue in business, (5) the gravity of the violation, and (6) the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after notification of a violation.
Analysis of the evidence in this case relevant to the above criteria follows hereafter:

Operators' History ofPrevious Violations
At the initial hearings, the Secretary introduced into evidence a document entitled
"R-17-Assessed Violation History Report-Detailed Violation Listing" (Gov't Exh. No. 6). That
report was offered by the Secretary to represent Rushford's history of violations for the period
August 28, 1'996, through August 27, 1998, and reflected that no violations had been committed
during the stated·period. The Secretary acknowledges that, because of its age, a July 2, 1988,
11 year-old violation (Gov't Exh. No. 12) should not be considered as part ofRushford's history
for purposes of these proceedings. At no time, either in her pleadings, at hearings or in her posthearing brief did the Secretary even suggest that her evidence in this regard was not credible or
should be given less than full weight. In the initial decision in this case, significant reliance and
weight was accordingly placed·upon the Secretary's own uncontradicted evidence showing the
absence of any history of violations.
On review before this Commission, the Secretary, for the first time argued, and the
Commission agreed, that her own evidence ofRushford's lack of a history of violations could not
properly be considered as a mitigating factor for a penalty assessment if that lack of history was
due to the company's failure to meet a reporting requirement. While the legal authority for this
argument has never been disclosed it presumably arises under the doctrine of equitable estoppel.
On review the Secretary argued that since Rushford admittedly did not file quarterly reports with

1128

MSHA between 1993 and 1998, as required under 30 C.F.R. § 50.30, she was not aware that
Rushford's mine was active during this period.
In her initial brief following remand the Secretary argued that if a mine that is categorized
as "closed" by MSHA. files a quarterly report the mine is recategorized as an "open" or "active"
mine in MSHA's database. According to the Secretary, when that database is thus amended the
mine is returned to the list of"active" mines required to be inspected by MSHA.
The credible evidence shows however that the facts are different from those argued
before this Commission. The credible evidence shows that MSHA had incorrectly through its
own fault listed the Seymour Road Pit in its records as "closed." It is undisputed that on May 13,
1993, Rushford provided to MSHA inspector Phil Freese, at that inspector's request, a written
notice that the subject mine was "open" (Gov't Exh. No. 9). According to the credible testimony
of Rushford bookkeeper Mary Pelke, Inspector Freese told her that MSHA had "closed" the
Seymour Road Pit on their records in error and that Freese asked her to prepare the notice so that
he could correct MSHA's records and confirm that the mine was "open" and continuing to
operate. MSHA Field Office supervisor, Carl Onder, testified at the hearings on remand that this
notice was sufficient to inform MSHA that the Seymour Road Pit was indeed an "open" mine. It
is indeed undisputed that the mine had in fact continued to be "open" and operating during the
entire period 1993 through 1998. It is clear therefore that MSHA's failure to have classified this
mine as "open" was its own error and not Rushford' s.
MSHA supervisor Onder testified that the MSHA Denver Office maintains a "mine
reference list" of all mines that are "open." According to Onder, the source of this information is
the mine operator himself (Tr. 32-33). The mine operator notifies the MSHA field office which
notifies the MSHA District office which, in turn, notifies the Denver office (Tr. 33). The Denver
office maintains the master list for the entire country. Each quarter, mines that are listed as
"open" on the MSHA master list are sent Quarterly Mine Employment and Coal Production
Report (quarterly report) forms (Gov't Remand Exh. No. 1). In this way each "open" mine is
reminded by MSHA each quarter of the need to file its quarterly report.
In this case then, since Rushford did properly report itself as "open" and indeed had never
reported itself as "closed," it should have continued to receive the quarterly report forms from
MSHA, thereby notifying Rushford of the need to file its quarterly reports. It was therefore also
MSHA's error that caused MSHA's cessation of mailing quarterly report forms to Rushford.
fudeed Rushford bookkeeper Mary Pelke testified that when she stopped receiving those blank
quarterly report forms from MSHA. she assumed it was not necessary to file such reports.

However, in spite ofMSHA's own negligence, according to the undisputed evidence, if
Rushford had continued to file the required quarterly reports whether it was listed as "open" or
"closed" on the Denver office master list, eventually the MSHA field office would have been
notified of the need to conduct an inspection. Thus, regardless of the lack of intent or serious
negligence on the part of Rushford in failing to file the quarterly reports, according to the
1129

Commission's holding, Rushford's lack of a history·of violations cannot be considered as a
mitigating factor in the assessment of a penalty. The increase in penalty herein reflects that
holding.
It should also be noted that the Secretary acknowledges that her allegations that Rushford
committed at least 20 paperwork violations for failing to file quarterly reports should not be
considered as part ofRushford's prior history. Those alleged violations have never been cited
nor litigated. The Secretary is correct in acknowledging that such allegations should not be
considered herein in determining a history of"violations."

The Appropriateness ofthe Penalty to the Size ofthe Business ofthe Operator Charged
It is generally accepted that within the framework of this criterion and with the other
criteria being equal, a small size mine operator should not pay as large a penalty as a medium or
large size operator. In other words the penalty should be proportionate to the size of the operator.
It has been stipulated that indeed this operator is small in size.
The credible record shows that Rushford typically had only three employees working in
the mine only one day a week in mining activity. The record also .shows that Rushford and, its
employees performed significant non-mining·activity such as pipe laying, asphalt paving and
hauling-- activities that were subject to OSHA not MSHAjurisdiction. The Secretary
acknowledges that such non-mining activity should not be considered when evaluating the size of
a mine operator. I find that the operator was therefore very small in size with inte~ttent
mining activity. Significant weight has been placed upon this factor in assessing the civil penalty
in this proceeding. 1

Whether the Operator was Negligent
The find41gs below that the instant violation was the result of high negligence and gross
negligence are not disputed by the Secretary. While these findings are warranted under the facts
of this case I have also noted that such negligence was the result of Douglas Rushford's selfimposed ignorance of the requirements of the cited standard rather than any intentional noncompliance. It is therefore at least arguable that the violation was in fact not the result of
unwarrantable failure. I have also noted that although Rushford's facilities had previously been
inspected by MSHA there is no·evidence that Rushford had previously been cited for failure to
comply with the instant standard or with comparable OSHA standards. While these factors
certainly do not excuse the violation they nevertheless warrant, and were given, due
consideration in determining the appropriate civil penalty herein.

It should also be noted, to clarify a suggestion made in her brief on remand, that
the Secretary acknowledges that an operator's size should not be measured by its "gross profits."

1130

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

Rushford acknowledges in its brief on remand that even a penalty as large as that
proposed by the Secretary, i.e., $25,000.00, would not cause it to cease operations - - but only
claims that it would create hardship to its operation. It contends that the imposition of a "greater
penalty" would affect its "ability to operate." In light of these admissions and the absence of
specific proof that the penalties herein would indeed affect its ability to continue in business, it is
preswned that there woul4 be no such adverse affect. See Sellersburg Stone Co., 5 FMSHRC
287 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984).
The Gravity of the Violation
It was stated in this regard in the decision below as follows:

The failure to use a wheel cage or other restraining device or a stand-off
inflation device under the circumstances of this case resulted in Arnold's fatal
injuries. There can be no question on the facts of this case that the violation was
therefore "significant and substantial."
The violation herein was therefore one that not only was reasonably likely to cause
reasonably serious injuries but in fact was found to have caused fatal injuries. The question, in
effect, raised by the Commission on remand is whether such a violation causing a fatality should
be characterized as of"low," "mediwn," or "high" gravity. As suggested by the Commission,
without such a finding, a decision lacks the precision necessary for appellate review.
Accordingly my finding is that the violation herein, which admittedly caused the death of Nile
Arnold, was of high gravity.
The Demonstrated Good Faith ofthe Person Charged in Attempting to Achieve Rapid
Compliance after Notification ofa Violation

The Secretary has acknowledged that the operator demonstrated good faith in achieving
rapid compliance after notification of the violation herein (Tr. 412, 418). The record shows that
the citation at issue was terminated on September 24, 1998, after the operator obtained a standoff inflation device and posted signs at the shop and pit requiring employees to use the device
when inflating tires. (Gov't Exh. No. 5). These factors were given considerable weight in
assessing the civil penalty herein.
The Secretary's Proposed Penalty
The Commission has held that a judge's assessment of a penalty may not "substantially
diverge" from the penalty proposed by the Secretary without sufficient explanation for that
divergence. See Unique Electric, 20 FMSHRC 119, 1123 n.4 (October 1998); Sellersburg Stone
Co., 5 FMSHRC 287, 293 (March 1983). This holding necessarilypreswnes however that the

1131

Secretary's penalty proposal was itself based on a reasoned analysis of the statutory criteria and
was not arbitrary and capricious.

In this regard it is significant to note that a penalty in this case calculated under the
Secretary's objective and uniform criteria set forth in 30 C.F.R. § 100.3, would have resulted in a
proposed penalty of $317 .10. In particular, Rushford would have been chargeable with no
penalty points for its size and history of violations, possibly the maximum 25 penalty points for
negligence, 10 penalty.points for "severity," and one penalty point for ''persons potentially
affected." In addition, under 30 C.F.R. § 100.3(f) a 30% reduction would have been given for
good faith abatement.
In this case, of course, the Secretary elected to waive her uniform and objective analysis
under Section 100.3 and applied a subjective "special assessment" for which there is little or no
considered analysis. Indeed, the pleading entitled ''Narrative for Special Assessment" is basically
a form letter used in special assessment cases in which bald assertions are anonymously made
that:
MSHA has carefully evaluated the conditions cited, the inspector's
relevant information and evaluation, and the information obtained from the Report
of Investigation. The proposed penalty reflects the results of an objective and fair
appraisal of all the facts presented.
The Secretary was unable to furnish any information underlying her purported penalty
analysis in this case. There is indeed no explanation for the extreme divergence between the
Secretary's objective standard civil penalty of $317 .10 calculated under her Section 100.3
formula and her subjective inadequately substantiated proposal of$25,000.00, in this case.
Without an adequate explanation for such a divergence, the credibility of her "special
assessment" is indeed jeopardized by the appearance of arbitrariness and should not properly be
considered a8 a ~enchmark or guideline for an appropriate de novo penalty assessment by the
Commission and i!s judges.
In her brief on remand the Secretary also argued that the penalty should be of an amount
sufficient to make it more economical for an operator to comply with the Act's requirements than
it would be to pay the penalties assessed and continue to operate while not in compliance (Brief
p. 2). While this argument is outside the scope of the civil penalty criteria considered for the
penalty herein it is nevertheless addressed. It is not disputed that the cost of the standoff inflation
device which Rushford purchased to abate the citation at issue was no more than $60.00. A
penalty of $4,000.00 is more than 66 times this amount and is clearly sufficient to address the
Secretary's concerns in this regard. A penalty of$25,000.00 as proposed by the Secretary is over
400 times the cost of a standoff inflation device and is clearly disproportionate.
In any event it is apparent that the Secretary's proposed penalty of$25,000.00, is without
adequate analytical support and is disproportionate to an appropriate consideration of the penalty
1132

criteria as discussed herein. Accordingly such a proposed penalty is not credible and should not
be utilized as any benchmark or guideline for evaluating an appropriate de novo penalty assessed
by the Commission or its judges.

ORDER
Douglas R. Rushford Trucking is hereby directed to pay a civil penalty of$4,000.00
within 40 days of the date of this decision.

Gary M ick
Administrative Law Judge
Distribution:
Suzanne Demitrio, Esq., Office of the Solicitor, U.S. Dept. of Labor, 201 Varick St., Room 707,
New York, NY 10014 (Certified Mail)
Thomas M. Murnane, Esq., Stafford, Trombley, Owens & Curtin, PC, One Cumberland A venue,
P.O. Box 2947, Plattsburgh, NY 12901 (Certified Mail)
/mca

1133

..,

1134

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

September 6, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF MICHAEL JENKINS
AND MICHAEL MAHON,
Complainants

DISCRIMINATION PROCEEDING
Docket No. WEVA 2000-31-D
HOPE CD 99-10
Mine No. 1
Mine ID 46-08102

v.
DURBIN COAL, INC.,
Respondent

ORDER DENYING. IN PART. RESPONDENT'S MOTION TO COMPEL
This case is before me on a complaint by the Secretary of Labor on behalf of two miners,
Michael Jenkins and Michael Mahon, alleging that they had been discriminated against in
violation of Section 105(c)(1) of the Federal Mine Safety and Health Act of 1977, ("the Act"),
30 U .S.C. § 815(c)(l). Respondent, Durbin Coal, Inc., has moved to compel production of
documents requested in discovery that the Secretary contends are protected from disclosure on
grounds of privilege.
The thirteen documents at issue are described in a "privilege log", an amended version of
which was appended to the Secretary's opposition to the motion to compel. They consist of the
notes of the investigator, four witness statements and various internal Department of Labor
(DOL) memoranda, including the report of the investigation. The Secretary has claimed the
work product privilege as to all of the documents and also asserted, variously, the informant's,
deliberative process and law enforcement privileges. Statements obtained from Jenkins and
Mahon have been produced to Respondent. The Secretary has also produced several statements
obtained from management representatives and individuals associated with management's
position in the litigation. 1

Respondent asserts that all such statements must be produced upon request by its
counsel, who also represents the individuals. Counsel for the Secretary has confirmed that none
of the witness statements at issue were made by individuals represented by Respondent's
counsel.
1135

I find that the documents at issue are materials prepared in anticipation of litigation and
fall within the work product privilege. I also find that Respondent has not, at this time, met its
burden of showing substantial need for the materials and undue hardship. However, further
information is needed before a final decision can be made on those issues as to some of the
documents, portions of which would also be protected by the informant's privilege.
Respondent's motion to compel is, therefore, denied, in part, at this time. The witness statements
and, possibly, portions of the investigator's notes will be reviewed in camera and a further order
will issue with respect to those documents.
The Work Product Privilege
The most instructive discussion by the Commission of the work product privilege, as
applied to materials similar to those sought here, is found in ASARCO, Inc., 12 FMSHRC 2548
(December 1990).2 The following portion of the ASARCO decision, at pp. 2557-59, addresses
the controlling legal principles in a similar factual context.
The work product rule has its modem origins in the case of Hickman v.
Taylor, 329 U.S. 495 (1947), and in Rule 26(b)(3) of the Federal Rules of Civil
Procedure (''Fed. R Civ. P"). Unlike the attorney-client privilege* * * the work
product rule does not solely protect confidential communications between
attorney and client and is best described as a qualified immunity against
discovery. In order to be protected by this immunity under Fed. R Civ. P.
26(b)(3) the material sought in discovery must be:
1. "documents and tangible things;"
2. "prepared in anticipation of litigation or for trial;" and
3. "by or for another party or by or for that party's representative."
It is. not required that the document be prepared by or for an attorney. If
materials meet the tests set forth above, they are subject to discovery "only upon a
showing that the party seeking discovery has substantial need of the materials in
the preparation of the party's case and that the party is unable without undue
hardship to obtain the substantial equivalent of the materials by other means."

2

The work-product privilege applies in this context only to documents or tangible
things, not to factual information contained therein. The identities of persons with knowledge of
relevant facts and other factual information obtained in the course ofMSHA's investigation are
available to Respondent through properly framed interrogatories and depositions. See, gen, 6
Moore's Federal Practice,§ 26.70[2][a] (Matthew Bender 3d ed.). The Secretary has indicated
that the identities of witnesses have been disclosed in response to an interrogatory requesting the
identities of persons with knowledge of relevant facts.
1136

Fed. R. Civ.' P. 26(b)(3). Ifthe·court orders that the materials be produced
because the required showing has been made, the court is then required to "protect
against disclosure of the mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party concerning the litigation."
Id.
Commission Procedural Rule [56(b)], 29 C.F.R. § 2700.[56(b)], provides,
as pertinent here, .t hat parties may obtain discovery of any relevant matter that is
not privileged. The Commission is guided, "so far as practicable" and as is
"appropriate," by the Federal Rules of Civil Procedure on procedural questions not
regulated by the Mine Act or its rules. 29 C.F.R. § 2700.l(b). In applying Fed. R.
Civ. P. 26(b)(3) to the contested passage of Exhibit K, the material in dispute is
clearly a document. In addition it was prepared by a party to this litigation or by
its representative, MSHA Special Investigator R.L. Everett. As stated above, it is
not necessary that the document be prepared by or for an attorney.
The key issue is whether Exhibit K was prepared in anticipation of
litigation. If, in light of the nature of a document and the factual situation in the
particular case, the document can fairly be said to have been prepared because of
the prospect of litigation, then the document is covered by the privilege. If, on tlie
other hand, litigation is contemplated but the document was prepared in the
ordinary course of business rather than for the purposes oflitigation, it is not
protected. In addition, particular litigation must be contemplated at the time the
document is prepared in order for the document to be protected. Finally,
documents prepared for one case have the same protection in a second case, if the
two cases are closely related.
The record appears to us to reveal that the disputed portions of the special
investigator's notes were prepared in anticipation of litigation. A major function
of an MSHA special investigation is to determine whether litigation should be
commenced under section 1lO(c) or (d) of the Mine Act. 30 U.S.C. § 820(c) &
(d). A special investigator does not know at the outset of his investigation
whether charges will be filed in that particular case. Nevertheless, the purpose of
his investigation is to allow the Secretary to determine whether a case should be
filed. (footnote omitted) (citations omitted)

See, also, Consolidation Coal Co., 19 FMSHRC 1239, 1242-44(July1997).
As in ASARCO, the key question here is whether the materials sought were prepared in
anticipation of litigation. The materials in dispute were prepared by the Secretary's Mine Safety
and Health Administration (MSHA) in the course of investigating a complaint filed by Jenkins
and Mahon pursuant to § 105(c)(2) of the Act. The complaint, a copy of which was appended to
the complaint filed with the Commission, was filed on March 3, 1999, and alleged that Jenkins

1137

-

and Mahon had been unlawfully discharged on March 2, 1999. It identified the responsible
person as Forrest Newsome, Superintendent of the mine, and described the unlawful action and
relief requested as follows:
We feel that we have been discriminated against in that we were falsely accused
of reporting safety violations to inspectors and for stealing. These charges have
resulted in our being discharged.
We request as our relief to have our records cleared, our jobs restored and back
pay for all lost pay, wages, etc.
MSHA promptly initiated an investigation, in the course of which it interviewed numerous
miners and management personnel, reducing many of those conversations to writing, including
fonnal signed witness statements. A report of the investigation was ultimately prepared and
typically would consist of a compilation of the factual information gathered in the investigation
and a recommendation on whether or not to initiate litigation on behalf of the complaining
mmers.
The facts of this particular case present a more compelling justification than those in
ASARCO for concluding that the documents generated in the course of the investigation were
prepared "in anticipation of litigation." The determination of whether litigation should be
commenced is virtually the sole purpose of an investigation of discrimination complaints
pursuant to§ 105(c) of the Act. Moreover, the complaint filed by Jenkins and Mahon stated the
essence of a claim actionable under § 105(c) of the Act, including a specific claim for relief.
Consequently, the prospect of litigation here was more concrete than presented in ASARCO,
especially considering that Jen.kins and Mahon could initiate litigation even if the Secretary
ultimately determined not to proceed.
Durbin att~mpts to distinguish ASARCO by arguing that the disputed materials there
involved an inspector' s notes "concerning the inspector's conversation with an attorney from the
Secretary's Solicitor's Office regarding the case. "3 Durbin's argument reflects the erroneous
focus of the parties in ASARCO. While the underlying purpose of the work product privilege was
protection of the mental impressions of an attorney, under the federal rules the privilege·is
considerably broader and does not depend upon involvement by an attorney. The factual
distinction noted by Respondenfwas not pertinent to, or mentioned in, the Commission's rational
for detennining that the materials were prepared in anticipation of litigation. Respondent also .,
argues that in the absence of at least a preliminary determination that the complaint had merit, the
prospect of litigation was far from certain and the documents should be viewed as having been
generated in the mandatory regular course of business of MSHA. However, the "regular COlJ!Se
of business" concept can be misleading when applied to a government investigation. As

3

Durbin Coal, lnc.'s Reply to the Secretary's Response to Durbin's Expedited
Motion to Compel Production of Documents, at p. 5. (emphasis in original).
1138

observed in ASARCO, "a major function" of the special investigation there was to determine
whether litigation should be brought. Here, neither party has identified any other potential
purpose of the investigation initiated in response to the discrimination complaint. The materials
at issue here can be said to have been generated in "the ordinary course of business" only because
the anticipation of litigation was MSHA 's "business" in investigating the complaint filed by
Jenkins and Mahon.4
On the facts of t~s case, the documents sought by Respondent here were generated in
anticipation of litigation and are protected by the work product privilege.
This conclusion is reinforced by the fairly well-settled proposition, that the initiation of
an investigation by a government agency is sufficient to satisfy the "anticipation of litigation"
requirement. Maertin v. Armstrong World Industries, Inc., 172 F.R.D. 143 (D.N.J. 1997);
Vermont Gas Systems, Inc. v. United States Fidelity & Guaranty Co., 151 F.R.D. 268, 275-76
(D.Vt. 1993); Pacamor Bearings, Inc. v. Minebea Co., 918 F. Supp. 491, 513 (D.N.H. 1996);
and, see gen., 6 Moore's Federal Practice§ 26.70[3][d] (Matthew Bender 3d ed.). If Durbin had
conducted it's own investigation upon being notified by MSHA of Jenkins' and Mahon's
complaint, and it may well have done so, materials generated in the course of that investigation
would likely fall within the work product privilege and Durbin could assert that privilege in
response to any discovery requests by the Secretary.
Substantial Need - Undue Hardship

As noted above, Respondent can overcome the privilege by establishing that it has a
substantial need for the materials and is unable to obtain the substantial equivalent of the
materials without undue hardship. Respondent asserts two arguments in an attempt to overcome
the privilege. It posits that the witness statements and similar materials are unique in that they
were prepared within days or weeks of the alleged act of discrimination and, consequently, are
likely to more accU;fately reflect the witness' observations of events and cannot be duplicated
through a deposition: Respondent also argues that the materials would be useful for
impeachment, although it offers no evidence that there are likely to be discrepancies between the
statements and any other similar materials, e.g. a deposition of the witness, or anticipated
testimony.

4

See, Kent Corp. v. NLRB, 530 F.2d 612, 623 (5th Cir.), cert. denied. 429 U.S. 920
(1976); People by Vacca v. Mid Hudson Medical Group, P.C., 877 F. Supp. 143, 150-51
(S.D.N.Y. 1995).

1139

The Commission observed in Consolidation Coal Co., supra. 19 FMSHRC 1243-44,
that "[a] number of courts*** have concluded that, by itseU: the desire to determine through
discovery whether potential impeachment material exists within protected work product does not
constitute a "substantial need" for purposes of the work-product privilege." (Footnote omitted)
Respondent's "more contemporaneous" argument has more substance. The witness statements
were taken on March 5, 11, 15, 1999 and April 12, 1999, relatively close to the March 2, 1999,
tennination of the Complainants. The other materials were generated from March 3 through
April 29, 1999. Respondent relies on Smith v. Black Diamond Offshore Drilling, me., 168
F.R.D. 582, 584-85 (S.D.Tex. 1996) in which production of witness statements taken
immediately following an accident was ordered.
Facts relevant to allegations of unlawful discrimination under§ 105(c) of the Act,
typically occur over a considerably longer time span than those pertinent to an accident.5 In this
particular case, however, the pertinent time frame may be relatively short. Discovery responses
submitted in conjunction with another pending motion to compel indicate that the disputed
"stealing" incident likely occurred on March 2, 1999, the date of the alleged terminations.
Complainants here do not allege engagement in protected activity over a lengthy period. Rather
they argue that Respondent suspected that they had engaged in protected activity and terminated
them for that reason. The factual predicate for this allegation is presently unknown to the
undersigned. It is possible that the four witness statements contain information so
contemporaneous with occurrences critical to the issues in this case, that Respondent would have
substantial need of it to prepare its defense and could not duplicate it through other means, e.g.
interviews or depositions of persons identified as having relevant knowledge or information.
Similar considerations apply to portions of the special investigator's notes, if any, that reflect
communications from other witnesses whose statements have not already been provided to
Respondent. Other factors suggest that those materials are unlikely to contain contemporaneous
information satisfying the substantial need - undue hardship tests. Respondent's discovery
responses indicate that there were five witnesses to the "stealing" incident and subsequent
alleged temiinations and it has been provided statements from all of them. The other portions of
the notes and the ~temal memoranda are not likely to contain such information.
,
.
Without knowing the identities of the four witnesses who provided statements, or the
content of the statements, Respondent claims that there is little more that it can advance in
support of its argument. In the absence of more information about the four witness statements
and any similar portions of the -investigator's notes, an informed decision on Respondent's need
and hardship arguments cannot be made. While it is Respondent's burden to establish need and
hardship, it is the Administrative Law Judge's responsibility to make informed decisions on

5

An operator's knowledge or suspicion of protected activity and its attitude toward
such activity may be established by facts that occurred days, weeks or even months before the
alleged adverse action.
1140

discovery issues.6 Rather-than direct the Secretary to provide detailed descriptions of the
materials, it would be much more efficient to review them in camera. Accordingly, the Secretary
will be directed to submit for in camera review copies of the four witness statements, and
portions of the investigator's notes, if any, reflecting communications by any other persons
whose statements have not been provided to Respondent. The statements and excerpts from the
notes should be marked so as to indicate proposed redactions to protect the identities of
informant's and any deliberative process material.7
The Informant's Privil~e
The Secretary claimed the informant's privilege as to the four witness statements, the
investigator's notes and some of the internal memoranda. The Commission has recognized the
importance of the informant's privilege in effectuating the purposes of the Act. Secretary oho
Logan v. Bright Coal Co., Inc., 6 FMSHRC 2520 (Nov. 1984). It is the identity of the informant
that is protected by the privilege, not the contents of a statement, except for those portions of the
content that would tend to identify an informant. ASARCO, supra., 12 FMSHRC at 2553-54.
It is the Secretary's burden to establish that the privilege applies. Id. Because the privilege is
qualified, a party may seek to overcome it by demonstrating that the infonnation is necessary for
a fair determination of the case and that its need for the information outweighs the Secretary's
need to maintain the privilege.
The Secretary h~s not presented factual evidence from which application of the privilege
can be determined, aside from information directly identifying an informant, e.g. name, address,
etc. Information, such as, job title and duties and responsibilities may be privileged if unique to
the informant, or to such a small group of persons that the informant would tend to be identified.
Without competent evidence establishing that the entire statement consists of such information
and that it would disclose an informant's identity, however, the Secretary clearly has not satisfied
her burden as to the entirety of the witness statements, or to those portions of the investigator's
notes, if any, desc~bed above.

6

As the Commission observed in ASARCO, Inc., 14 FMSHRC 1323, 1329 (August
1992) (ASARCO II):

It is the judge, not the Secretary, who must determine whether the privilege
obtains with respect to a particular document or group of documents and he must
be provided with evidence sufficient to make such a determination.
1

Noted on the Secretary's privilege log is an assertion of the law enforcement
privilege with respect to the investigator's notes. In opposition to the motion, however, the
applicability of that privilege is not explained and the Secretary has clearly failed to sustain her
burden on that issue.
1141

As noted above, a final determination on whether Respondent has met its burden of
establishing substantial need and undue hardship as to the witness statements and portions of the·
investigator's notes will be made after a review of those materials. If the redactions proposed by
the Secretary go beyond a straightforward application of the legal principles and privileges
discussed herein, the Secretary may also provide evidence that such portions of the witness
statements and portions of the investigator's notes are covered by the privilege by submitting for
in camera review an affidavit by a person with knowledge of the facts relied upon. See,
ASARCO II, 14 FMSHRC at 1330, 1333.

The Deliberative Process Privilege
The deliberative process privilege was first discussed by the Commission in In Re:
Contests ofRespirable Dust Sample Alteration Citations, 14 FMSHRC 987, 990-93 (June 1992).
Following a brief review of the origin of the privilege the Commission observed:
The breadth of the privilege is described by the court in Jordan v. U.S.
Dept. ofJustice, 591 F.2d 753 [772] (D.C. Cir. 1978):
This privilege protects the 'consultative functions' of government
by maintaining the confidentiality of 'advisory opinions,
recommendations and deliberations comprising part of the process
by which governmental decisions and policies are formulated'
(citations omitted). The privilege attaches to inter- and intraagency communications that are part of the deliberative process
preceding the adoption and·promulgation of an agency policy.
To be covered by the privilege, the material must be both "pre-decisional" and "deliberative." Id.
Purely factual material that does not expose an agency's decision making process is not covered
by the privilege, unless it is so inextricably intertwined with deliberative material that its
disclosure would ·compromise the confidentiality of the deliberative information that is entitled to
protection. It is the Secretary's burden to prove that the privilege applies to material,it see~ to
protect from disclosure. Id. 14 FMSHRC at p. 993. Consolidation Coal Co. , supra, ·
19 FMSHRC ·at 1246-47. A party seeking to overcome the privilege has the burden of
demonstrating that its need for the information outweighs the governmental interest in protecting
it from disclosure.
The deliberative process privilege it not truly at issue here. While Respondent argues that
the privilege has not been properly invoked, it also has made clear that it does not seek portions
of the documents that would be protected by the privilege. In its reply to the Secretary's
opposition to the motion, at p. 9, Respondent made clear that "the deliberative process privilege
does not apply to the factual portions of these documents, which are all that Durbin seeks."
(emphasis in original) Factual information, with limited exception, is not protected by either the .
informant's or deliberative process privilege. If, on review of the documents described above, it

1142

is determined that ·they should be produced under the work-product analysis, only those portions
of the documents that contain information that does not identify an informant or reflect the predecisional, deliberative processes of the Secretary will be ordered produced.

Conclusion and Order
Respondent is generally entitled to relevant factual information in possession of the
Secretary that has properly been requested through discovery. The work-product privilege
applies to the materials generated in the course ofMSHA's investigation. However, Respondent
may have a substantial need for, and be unable to obtain by other means without undue hardship,
the four witness statements and any similar portions of the investigator's notes. Even if not
protected from disclosure by the work-product privilege, information that identifies or tends to
identify a person who has provided information to the Secretary would be protected by the
informant's privilege. The Secretary's pre-decisional deliberations, information that is of
marginal, if any, relevance and unlikely to be factual in nature, has not been requested and is
unlikely to be contained in the materials that have been ordered produced for in camera
inspection.
The motion to compel is denied, except as to the four witness statements and portions of
the special investigator's notes reflecting communications by other individuals whose statements
have not already been provided to Respondent. On or before Wednesday, September 13, 2000,
the Secretary is directed to provide for in camera review, copies of those materials with proposed
redactions to protect the identity of informants and the Secretary's pre-decisional deliberations.
The Secretary may also submit evidence establishing the applicability of the informant's
privilege to those portions of the documents to which its application may not be obvious. Upon
review of the documents and consideration of any such evidence, a further order will be issued.

Distribution:
M. YusufM. Mohamed, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Blvd., Suite 516, Arlington, VA 22203 (Certified Mail and Facsimile Transmittal)
David J. Farber, Esq., Alexandra V. Butler, Esq., Patton Boggs, LLP, 2550 M Street, NW,
Washington, D.C. 20037 (Certified Mail and Facsimile Transmittal)
/mh

1143

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 LABO~
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

September 8, 2000
CIVIL PENALTY PROCEEDING
Docket No. YORK 2000-38-M
A.C. No. 37-00002-05516

v.
Cranston Quarry
TILCON CAPALDI INC.
Respondent

ORDER DENYING MOTION TO DISMISS
This case is before me on a petition for assessment of civil penalties under section 105(d) of
the Federal Mine Safety and Health Act of 1977 (the "Act"). 30 U .S.C. § 815(d). Respondent has
moved to dismiss the petition because it was not filed timely. For the reasons set forth below, the
motion is denied.

Facts
MSHA conducted inspections of Respondent's mine in August and October, 1999. Eleven
citations were issued in August and an additional six citations were issued in October. On
September 9, 1999, Respondent initiated Contest Proceedings as to each of the August citations.
Commission Docket No.'s YORK 99-69 through 99-79. On October 15, 1999, the Secretary, with
Respondent' s consent, moved to late file answers to the contest proceedings and to stay proceedings
pending the assessment of civil penalties for the eleven citations. By Order dated, October 19, 1999,
the motion to stay"was grantec,l. On October 15, 1999, MSHA assessed civil penalties for eight of
those citations, and apetition to assess civil penalties was filed on December 23, 1999, Docket No.
YORK 2000-12-M. By Order dated February 15, 2000, proceedings in that case were stayed pending
the filing of a petition for civil penalties in the remaining three August 1999 citations.
Penalties were assessed by MSHA for the remaining three August citations on January 27,
2000. However, included in the assessment were the six citati~ns issued during the October, 19~9,
inspection. Respondent contested that assessment on February 25, 2000, and requested that the
three August citations be consolidated.with the other pending cases and that the six October citations
be referred to the Alternative Case Resolution hritiative (ACRI). The Solicitor attempted to
accommodate that request.
Meanwhile, in the absence of any definitive commitment by the Secretary as to when penalty
proceedings would be filed with respect to the remaining three August citations, the undersigned,
by Order dated May 3, 2000, lifted the stay of proceedings on the eleven contest cases and the related
1144

penalty docket, and scheduled a hearing in those cases for September 27, 2000. 1 The notice
indicated an intention to also hear the penalty proceedings for the remaining three citations in the
event that they were filed prior to the hearing date.

In response, the Secretary initiated penalty proceedings for the citations included in the
January 27, 2000 assessment. The Secretary attempted to split those citations into two groups, the
August and October citations, by filing a petition for only the six October 1999 citations in this
assigned docket number, intending to file a separate petition for the three August 1999 citations
under the pending penalty proceeding docket number. When informed by Commission staff that that
could not be done, a petition as to all nine of the citations concluded in the January 27, 2000
assessment was filed. The filings occurred on May 15 and 17, 2000, respectively.
Respondent moved to dismiss the petition asserting that its filing was untimely by over a
month and that it had suffered prejudice as a result.2 Petitioner opposed the motion arguing that
there was adequate cause for the untimely filing and that no prejudice was demonstrated by
Respondent. Petitioner relies upon an affidavit by counsel describing the circumstances under which
the petition was filed late.
Applicable Law
The Commission has made clear that the time limits for filing a penalty petition are not to
be lightly regarded by t~e Secretary and that adequate cause must be shown to justify a late filing.
Even if adequate cause is shown, a motion to dismiss may be granted if the delay has resulted in
prejudice to Respondent. Rhone-Polenc of Wyoming Co., 15 FMSHR.C 2089(October1993); Salt
Lake Co. Road Dept., 3 FMSHR.C 1714(July1981). In Salt Lake, the Commission was critical of
the Secretary's reliance on high case loads and limited clerical help as a justification for untimely
filing and also admonished the Secretary to proceed with a timely motion to extend time when extra
time is legitimately needed.3

1

The Order stated, in pertinent part: "Three citations at issue in the contest proceedings
apparently have yet to be made the subject of a petition for civil penalties. Six months should have
been adequate time to allow the filing of civil penalty proceedings with respect to all of the citations
at issue and there is no compelling justification for extending the stay further. If civil penalty
proceedings are filed with respect to those three citations, they will be consolidated for purposes of
the hearing."
2

Respondent's contest of the proposed assessments was hand delivered on
February 25, 2000. Commission Rule 28(a), 29 C.F.R. § 2700.28(a), specifies that a petition
for assessment of civil penalties shall be filed within 45 days of receipt of a timely contest, i.e., here,
by April 10, 2000.
3

There, as here, the Secretary had not filed a motion for extension of time prior to the
expiration of the time limit, as required by Commission Rule 9(a). 29 C.F.R. § 2700.9(a).
1145

Nevertheless, the Commission reversed the dismissal that had been entered in that case,
holding that "effectuation of the Mine Act's substantive scheme, in furtherance of the public
interest" precluded automatic dismissal of an untimely filed petition. Id. at 1716. It established the
"adequate cause" test for justifying a late filing and recognized that "procedural fairness" could
dictate dismissal where an operator could establish that it had suffered prejudice as a result of any
delay. The Commission concluded its analysis with the following language: "Allowing * * * an
objection [based on prejudice] comports with the basic principle of administrative law that
substantive agency proc~edings, and effectuation of a statute's purpose, are not to be overturned
because of a procedural error, absent a showing of prejudice." (citations omitted). Id.
On the facts of this case, I find that the Secretary has fulfilled, but just barely, her burden of
showing adequate cause for the delay. Because Respondent makes no showing of prejudice
attributable to the delay, merely noting that more time will have elapsed between issuance of the
citations and resolution of the penalty cases, the motion to dismiss will be denied.
For reasons unknown to at least Respondent and the undersigned, MSHA determined to split
the assessment of penalties for the eleven citations issued during the August 1999 inspection. Eight
were done in due course and a petition for assessment of penalties was timely filed, Docket No.
YORK 2000-12-M. Assessment of the remaining three citations did not occur until January 27,
2000, which probably would not have had any detrimental consequences, except that MSHA also
included in that assessment the six, essentially unrelated, citations issued during the October 1999
inspection. In contesting the proposed assessments, Respondent requested, quite reasonably, that
the three August citations be consolidated with the remaining August citations and that the October
citations be diverted into the ACRI program. The Secretary agreed with that proposal and attempted
to effectuate it, ultimately finding that it was difficult to do.
The Secretary's explanation of the difficulty, however, is somewhat ''thin". While the
opposition and affidavit list numerous questions that needed to be answered, there is precious little
detail as to paiticwar actions required to obtain answers and when (or even if) those actions were
taken. The delay as to the August citations ended, for all practical purposes, on May 3, 2000, when
the stay on the contest proceedings and the penalty proceedings on the other eight August citations
was lifted and a hearing date was set. It is somewhat ironic that the Secretary should benefit from
this action because it was born partially out of frustration with the delay in assessment of penalties
for the three outstanding citatio~ and the inability to obtain meaningful information about the
processing of the assessments despite a requirement for periodic status reports incorporated into the
stay order.
On the whole, however, the complication of the combined assessments and what appear to
be good faith efforts to accommodate the reasonable request of Respondent for diversion of the
October citations to the ACRI program rise, but just barely, to the level of adequate cause even
though Respondent bears no responsibility for that initial assessment processing anomaly. It is also
relevant that Respondent assented to the initial stay of the contest proceedings, and noted no
objection to the extension of the stay to Docket No. YORK 2000-12. If Respondent had a strong

1146

interest in more expeditions litigation of the August citations, it could have taken steps to achieve
that objective. The finding of adequate cause does not excuse the conduct of the Solicitor's office.
While the attempts to deal with the complications resulted in delay, there is no excuse for failing to
monitor the approach of the filing deadline or for disregarding the admonition of the Commission
in Salt Lake, to "proceed by timely extension motion when extra time is legitimately needed."
The October citations stand on a slightly different footing. There were no previous cases
filed with the Commission as to those citations and the lifting of the stay in the other cases did not
end the delay as to them. Considered alone, the motion as to those citations presents a more
straightforward argument for dismissal based upon delay in filing. However, the original
complicating factor that prompted the delay as to the August citations had the same impact on the
October citations. On the whole, I also find adequate cause for the delay in filing as to the October
citations. If the parties still desire to attempt to resolve those citations through the ACRI program,
a stay of proceedings as to those citations could be requested.

Distribution:
Margaret S. Lopez, Esq., Heenan, Althen & Roles, 1110 Vermont Avenue, N.W., Suite 400,
Washington, D.C. 20005 (Certified Mail)
Kathryn A. Joyce, Esq., Office of the Solicitor, U. S. Department of Labor, John F. Kennedy Federal
Building, Room E375, Government Center, Boston, MA 02203 (Certified Mail)
/mh

1147

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

September 15, 2000

SECRETARY OF LABOR,
:MINE SAFETY AND HEALTH
ADMINISTRATION, on behalf of
GARY DEAN MUNSON
Complainant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEYA 2000-40-D
MORG-CD-2000-01

v.
Federal No. 2
Mine ID 46-01456

EASTERN ASSOCIATED COAL CORP.
Respondent

ORDER NOTING WITHDRAWAL OF MOTION
On July 6, 2000, Respondent filed a ''Motion to Stay 'Economic' Reinstatement."1 On
July 20, 2000, Complainant filed a response. 2 Respondent ultimately determined to withdraw its
motion and, on August 14, 2000, filed a paper entitled: "Withdrawa~ of Respondent Eastern
Associated Coal C01poration's Motion to Stay 'Economic' Reinstatement." While titled, in part,
"withdrawal" the text stated that Respondent ''moves this Court to withdraw" its motion and
requested "that its withdrawal of said Motion be granted." The Secretary did not file a response.
Respondent's "withdrawal" is framed somewhat inconsistently with its position voiced
during a telephonic conference after the "stay" motion had been filed. There, Respondent took
the position tliat I.no longer had jurisdiction in the Temporary Reinstatement Proceeding. The
Secretary took the Qpposite position in her response to the original motion.

1

On March 10, 2000, following a hearing, I had ordered that Complainant be
temporarily reinstated pending resolution of a discrimination complaint likely to be filed by the
Secretary on his behalf. The parties subsequently agreed to economic reinstatement. I was not
notified of the agreement and no request was made to amend the Order of Temporary Reinstatement.
Complainant later decided that he would rather return to work and by letter dated June 21, 2000, his
counsel requested that he be "immediately return[ ed] to his former job." Respondent declined the
request. When the dispute was brought to my attention, I initially placed the burden on Respondent
to seek modification of the temporary reinstatement order. I later reconsidered that decision.
2

The response erroneously carried the caption of the subsequently filed discrimination
case, rather than the temporary reinstatement proceeding.
1148

Respondent's "withdrawal" obviates the need to resolve the jurisdictional issue. While
there is some authority for the proposition that a motion may not be withdrawn without leave of
court, the general and, in my opinion, more preferred rule is that, in the absence of prejudice to
the opposing party, no such permission is required and withdrawal of a motion leaves the record
as it stood prior to the filing of the motion. See, gen. 56 Am. Jur. 2", Motions, Rules and Orders,
§ 22.
Respondent's motion has been effectively withdrawn. The record on the temporary
reinstatement proceeding stands as it was prior to the filing of the motion.

/t~~~;>~r~
~~l. ~- · inski
Administrative Law Judge

Distribution:
Douglas N. White, Esq. Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Suite 516, Arlington, VA 22203 (Certified Mail)
Rebecca 0. Zuleski, Esq., Furbee, Amos, Webb & Critchfield, PLLC, 5000 Hampton Center,
Suite 4, Morgantown, WV 26505 (Certified Mail)

/mh

1149

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

September 15, 2000

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF MICHAEL JENKINS
AND MICHAEL MAHON,
Complainants

DISCRIMINATION PROCEEDING
DocketNo. WEVA2000-31-D
HOPE CD 99-10

v.

MineNo.1
Mine ID 46-08102

DURBIN COAL, INC.,
Respondent

ORDER DENYING. IN P ARI. AND GRANTING> IN PART.
THE SECRETARY'S MOTION TO DETERMINE SUFFICIENCY OF
RESPQNSES TO REQUESTS FOR ADM!SSIONS
AND IO COMPEL ANSWERS IO INTERROGATORIES

This case is before me on a complaint by the Secretary of Labor on behalf of two miners,
Michael JenJ9ns and Michael Mahon, alleging that they had been discriminated against in
violation of Section 105(c)(l) of the Federal Mine Safety and Health Act of 1977, ("the Acf'),
30 U.S.C. § 815(c)(l). The Secretary served Requests for Admissions and Interrogatories on
Respondent on April 7 ~ 2000. Dissatisfied with the responses, the Secretary presented its ·
concerns to Respondent by letter. Respondent replied to the letter, submitted amended responses
to three of the requests and declined to supplement or amend its other responses. The Secretary
has moved to determine the sufficiency of Durbin Coal's responses to twenty requests for
admissions 1 and to compel responses to six interrogatories. For the reasons set forth below, the
motion is granted in part and denied in part.

The Secretary included a discussion of three other responses in her motion, but
noted that Respondent had amended those responses and does not seek relief as to them.
1150

Requests for Admissions
Requests for admissions in Commission proceedings are governed by Commission
Rule 58(b), 29 C.F.R. § 2700.58(b), and through§ 2700.l(b), Rule 36, Fed. R. Civ. Proc., which
provides, in pertinent part:

****

Each matter of which an admission is requested shall be separately set
forth. The matter·is admitted unless, within [25 days of service, unless the party
making the request agrees to a longer time]2 the party to whom the request is
directed serves upon the party requesting the admission a written answer or
objection addressed to the matter, signed by the party or by the party's attorney. If
objection is made, the reasons therefor shall be stated. The answer shall
specifically deny the matter or set forth in detail why the answering party cannot
truthfully admit or deny the matter. A denial shall fairly meet the substance of the
requested admission, and when good faith requires that a party qualify an answer
or deny only a part of the matter of which an admission is requested, the party
shall specify so much of it as is true and qualify or deny the remainder. An
answering party may not give lack of information or knowledge as a reason for
failure to admit or deny unless the party states that the party has made reasonable
inquiry and that the information known or readily obtainable by the party is
insufficient to enable the party to admit or deny. * * * *
The party who has requested the admissions may move to determine the
sufficiency of the answers or objections. Unless the court determines that an
objection is justified, it shall order that an answer be served. If the court
determines that an answer does not comply with the requirements of this rule, it
may order either that the matter is admitted or that an amended answer be served.
The court may, in lieu of these orders, determine that final disposition of the
request be made at a pre-trial conference or at a designated time prior to trial.

***
Proper use of requests for admissions can expedite and streamline litigation by
establishing matters not truly in dispute and avoiding the expenditure of time and effort required
by other discovery devices. See gen., 7 Moore's Federal Practice,§ 36.02[1] (Matthew Bender 3d
ed.). However, in order to achieve that desired result both parties must fulfill their obligations
under the rule. "Parties may not view requests for admissions as a mere procedural exercise
requiring minimally acceptable conduct. They should focus on the goal of the Rules, full and
efficient discovery, not evasion and word play." Marchand v. Mercy Medical Center, 22 F.3d
933, 936 (91h Cir. 1994)(citations omitted).

2

The inserted language is from Commission Rule 58(b).
1151

Parties should endeavor to propound requests that are "direct, simple and limited to
singular relevant facts so that [they] can be admitted or denied without explanation." Herrera v.
Scully, 143 F.R.D. 545, 549 (S.D.N.Y. 1992)(citations omitted). "[!]tis entirely within the
discretion of the court as to what level of expression and detail should be tolerated for each
individual case." Diederich v. Dept. Ofthe Army, 132 F.R.D. 614, 619 (S.D.N.Y. 1990). Parties
responding to requests, as the rule specifically states, should exercise good faith by admitting or
denying parts of requests, and qualifying responses, where appropriate, rather than noting blanket
objections.
Where it is evident that multiple, interdependent issues are contained in
one request, defendant may deny the entire statement if one fact, on which the
remainder of the request is premised, is denied; plaintiff drafts complex requests
at his peril. Compound requests that are capable of separation into distinct
components and that follow a logical or chronological order, however, should be
denied or admitted in sequence with appropriate designation or qualification by
defendant in its response.

Diederich, supra, 132 F.R.D. at 621.
As noted in the rule, the party propounding the requests may file a motion challengmg the
sufficiency of responses. The party opposing such a motion has the burden of persuasion to
show that objections to a request are warranted or that the answers are sufficient. Moore's
Federal Practice, supra, § 36.12[1]
Neither party has fulfilled its obligations here. As a result, rather than expediting
resolution of the issues, considerable effort of both the parties and the judge has been diverted to
litigating discovery disputes spawned by poor drafting of requests and responses that appear to be
motivated more by evasion than good faith. ·
The requests for admissions propounded to Respondent, at least those addressed in the
motion, suffer from two recurring flaws that opened the door to uncomplimentary respo~es compound questions and inclusion of an element that was known to be disputed. Some requests
were compound and so far reaching that sufficient responses were virtually impossible. Requ~st
numbered 16, for example, reads:
Admit that Forest Newsome or other persons in mine management had
actual or constructive knowledge, at some point in time between February 25,
1999 and March 3, 1999, that someone had written ''Rat" on Complainant
Mahon's belt.
This request is addressed to the actual knowledge of a number of persons as well as to
information not directly known by them but that was so widely known in their respective spheres
of operation that they could be legally charged with knowledge. It cannot, even with the most

1152

charitable ·o f constructions, be characterized as "direct, simple and limited to a singular relevant
fact."
Despite the unwieldy wording of the request, however, it provided an opportunity for
Respondent to exhibit good faith by responding to those parts that were capable of succinct reply.
For example, it could have responded as to Forest Newsome's actual knowledge and the actual
knowledge of other specified individuals in mine management, and objected to the more
ambiguous parts of the request. Respondent declined the opportunity. It noted an objection to
the compound nature of the request and claimed such uncertainty as to its meaning that it was
unable to answer. It also added to its response the following sentence: "To the extent that Durbin
cannot respond to this request, it should be deemed denied."
The extent of this qualified denial is unclear. On the one hand, Durbin claims an inability
to respond to the entire request based upon lack of understanding. The denial could, therefore, be
viewed as applying to the entire request, a sufficient response under the rule. However, the
request must be fairly read to address at least Forest Newsome's actual knowledge. By its terms,
the denial does not include parts of the request that could or should have been understood.
Many of the requests included a reference to the alleged termination of Complainants'
employment, a fact that Durbin has consistently denied.3 This problem could have been avoided
by more thoughtful drafting of the requests, for example, by referring instead to a date and time,
or, an undisputed description of the event, e.g. when complainants ceased working at the mine.
Respondent frequently objected to such requests, even when the "termination" part was not
interdependent on other parts of the request.
Further problems with the parties' approach to discovery in this case are evidenced by
three requests as to jurisdictional matters that are described in the motion, but which are no
longer part of this dispute. Illustrative is the Secretary's request no. 7 which asked Durbin to:
Admit that during Complainant's employment at Durbin, and at all
relevant times herein, they were miners as defined by Section 3(g) of the Federal
Mine Safety and Health Act of 1977 (hereinafter the "Mine Act").
It is unclear why the Secretary propounded this request. In its answer to the complaint
Durbin had admitted "that Complainants William Jenkins and Michael Mahon were employed at
Durbin's Mine No. 1 and that they were miners as defined in§ 3(g) of the Federal Mine Safety

3

Respondent's version of the events of March 2, 1999, includes an explanation that
Complainants specifically asked whether they were fired, were told that they weren't, but that
they, nevertheless, left the job site and did not return. See, Durbin Coal Inc. 's Response to the
Secretary' s First Set of Interrogatories, interrogatory number 1.
1153

and Health Act of 1977 ("Act"), 30 U .S.C. § 802(g).'>4 Rather than simply admitting the request,
however, which Durbin later effectively did after an exchange of correspondence with the
Secretary, the following response was made:
Durbin objects to this Request on the ground that it is vague and ambiguous, and,
therefore, unanswerable. Durbin cannot ascertain from the phrase "at all relevant
times herein" the time period to which the Secretary refers. In additio~ the term
"they" is vague and undefined. Further, this request calls for a legal conclusion.
Durbin cannot; therefore, answer this Request. To the extent that Durbin cannot
respond to this Request, it should be deemed denied.

It would take a more than charitable characterization to describe this response in terms other than
evasion and word play in disregard of Respondent's obligations under the Rule.
The Secretary moves that the disputed requests be taken as admitted. The Rule provides
other, less drastic, and here more appropriate alternatives i.e. directing that supplemental or
amended responses be filed, or deferring final resolution of disputed responses until a later time
in the litigation.
Durbin will be directed to submit amended responses to requests numbered 3,"5, 18, 19,
30, 32, 33 and 34. Objections noted to those requests are overruled. The responses were evasive
and insufficient. It may qualify its amended responses as appropriate under the standards
discussed above.

,

The motion as to requests numbered 15, 16, 17, 21, 22, 23, 24, 25, 26, 27, 28 and 29 is
denied. Durbin's responses to those requests were sufficient in that the objections noted are
sustained (requests numbered 16 and 17) or, despite objections invalid at least in part, the
answers were sufficient (Requests numbered 22, 23, 27, 28 and 29). As to others, while
objections interposed cannot be sustained, particularly the objections as to relevance, information
responsive to the request has been supplied either in the response itself or in binding responses to
other discovery requests (requests numbered 15, 21, 24, 25 and 26).

Interrogatories
The Secretary has moved to compel responses to six interrogatories. The criticisms of the
parties' approach to discovery with respect to the requests for admissions are largely applicabre
here, except that for the most part the questions are better drafted and the precise wording of an
interrogatory is not nearly as critical as in the case of requests for admissions. The Secretary's
primary concern appears to be objections interposed by Respondent. However, in many
instances, Respondent also provided an answer. The Secretary does not address the propriety of
the answers provided. The interrogatories, objections and answers will not be discussed in detail.

4

Durbin Coal, Inc.' s Answer, ~ 2.
1154

Interrogatozy numbered I requested the basis for any denial or qualification of
Respondent's responses to the Secretary's requests for admissions. While the objections noted in
response to this inquiry are of questionable validity, the information provided, as a whole was
reasonably responsive. In light of the disposition of the motion with respect to the requests for
admissions, the Secretary is entitled to no further relief and the motion as to this interrogatory is
denied.
Interrogatozy numbered 5 requested information as to any discipline that was or would
have been imposed for legitimate, non-discriminatory reasons. The interrogatory, fairly read,
refers to Complainants' alleged termination. Respondent interposed multiple objections, none of
which have merit, and referred to other discovery responses. The Secretary complains that
"Respondent seeks to preserve the availability of this defense while refusing to give the Secretary
any meaningful information about the facts that purportedly support such a defense." Motion at
p. 18. Respondent's objections are overruled. However, the answer provided despite the
objections may well be complete. The Secretary has not presented any evidence that there is
additional information responsive to this question that Respondent has refused to disclose.
Respondent will be bound by its answer, and the Secretary need not be concerned about
confronting new facts in support of any such defense. If, in light of this disposition, Respondent
determines to amend or supplement its answer to this interrogatory it must do so on or before
September 29, 2000.
Interrogatozy numbered 6 requested information regarding communications about the
subject matter of Complainants' termination or disciplinary action. Respondent objected to the
question as "overbroad and burdensome" and referred to its other discovery responses.
Respondents' objections are not well founded and are overruled. Again, however, there is no
direct evidence to indicate that the answer provided was incomplete, though the question is not
confined to communications that occurred on March 2, 1999. The motion as to this interrogatory
will be granted. Respondent must disclose communications and discussions known to it that
occurred on March 2, 1999 and thereafter, with the exception of privileged communications.
Interrogatorj numbered 7 requested information regarding disciplinary procedures in
effect at the mine. Respondent objected on numerous grounds and referred to other discovery
responses. The objections as to relevance, and overbreadth have some merit because the request
was not limited in time or to procedures that might have been applicable to Complainants.
Respondent' s objections are sustained, except as to disciplinary procedures, written or de facto,
applicable to Complainants from March 2, 1998 through March 2, 1999 and any changes to those
procedures subsequent to the alleged terminations. Respondent must answer the interrogatory as
so limited. On or before September 29, 2000, Respondent must supplement its answer or certify
that its original answer was complete.

1155

Interrogatoi:y numbered 8 requested information as to disciplinary actions taken against
Complainants. Respondent objected on numerous grounds and referred to other discovery
responses. Respondent's objections are overruled. On or before September 29, 2000,
Respondent must supplement its answer or certify that its original answer was complete.
Interrogatory numbered 9 requested information about changes in responsibilities and
duties of Forest Newsome subsequent to the alleged terminations. Respondent objected on
grounds of relevance and stated that the information could be "better provided" by Mr.
Newsome. Respondent also proceeded to describe a change in Mr. Newsome's responsibilities.
However, no documents associated with the change were identified and there was no reference to
documents produced in discovery. Respondent's objections are overruled. On or befor~
September 29, 2000, Respondent must supplement its answer or certify that its original answer
was complete.
ORDER
The Secretary's motion is granted in part and denied in part. As to requests for
admissions numbered 15, 16, 17, 21, 22, 23, 24, 25, 26, 27, 28 and 29, and, as to interrogatory
numbered 1, the motion is denied.
The motion is granted as to requests for admissions numbered 3, 5, 18, 19, 30, 32, 33 and
34. On or before September 29, 2000, Respondent shall submit amended responses to those
requests, complying fully with the requirements discussed above. The motion is also granted as
to interrogatories numbered 5, 6, 7, 8 and 9. On or before September 29, 2000, Respondent shall
supplement its answers to interrogatories numbered 6, 7, 8 and 9, or certify that its original
answers to those interrogatories were complete.

Distribution:
M. YusufM. Mohamed, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Blvd., Suite 516, Arlington, VA 22203 (Certified Mail and Facsimile Transmittal)
David J. Farber, Esq., Alexandra V. Butler, Esq., Patton Boggs, LLP, 2550 M Street, NW,
Washington, D.C. 20037 (Certified Mail and Facsimile Transmittal)
/mh

1156

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

September 22, 2000

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF MICHAEL JENKINS
AND :MICHAEL MAHON,
Complainants
v.

DISCRJMJNATION PROCEEDING
Docket No. WEVA 2000-31-D
HOPE CD 99-10
Mine No. 1
Mine ID 46-08102

DURBIN COAL, INC.,
Respondent

SUPPLEMENTAL ORDER
DENYING RESPONDENT'S MOTION TO COMPEL

By Order dated September 6, 2000, Respondent's motion to compel production of
documents was denied, in part. The Secretary was ordered to produce, for in camera inspection,
four witness statements and any similar portions of the special investigator's notes. Review of
those materials in camera was determined to be the most efficient means of determining whether
Respondent had a substantial need for the documents and would be unable to obtain the
substantial eqqivalent of them without undue hardship.
The Secretary was directed to submit the documents by September 13, 2000. An
extension of that deadline, to September 20, 2000, was requested, without opposition by
Respondent. On that date, the Secretary advised that an "unforseen staff shortage" would delay
submission of the documents until the following day. The documents were hand delivered on
September 21, 2000, along with a "Response" to the order consisting of further argument on the
substantial need - undue hardship issues. 1 The Secretary did not request leave to submit further
argument on these issues and further argument was not contemplated in the Order. I have not
considered the Secretary's further argument.

While the Secretary's response to the Order (without enclosures, of course) was
hand delivered to the Commission, it was mailed to counsel for Respondent. On the morning of
September 22, 2000, counsel for the Secretary was, by phone, directed to transmit a copy of the
response to Respondent by facsimile.

1157

-The documents submitted consist of four witness statements, three of which were
properly identified on the privilege log. The fourth statement, however, is a statement by
Franklin Runyon, which is already in Respondent's possession and does not match any of the
descriptions of the four witness statements on the log. 2 Also submitted is a document identified
on the privilege log as a "memo to file", dated March 10, 1999. It reflects the substance of a
conversation that the investigator had with a witness, wherein the witness described a phone
conversation with an individual in mine management. No other materials were identified as
responsive to the Order. 3
None of the documents submitted match the description of the forth witness statement
identified on the privilege log as being dated March 5, 1999. Upon inquiry, Complain~t's
counsel advised that there is no such statement in the file and speculated that the statement of
Franklin Runyon may have been erroneously described on the log. Counsel expressed an intent
to submit a corrected privilege log and confirmed that no privilege is asserted with respect to the
Runyon statement.
As noted in the Order, I determined to review the documents in camera because it was
possible that they might "contain information so contemporaneous with occurrences critical to
the issues in this case, that Respondent would have substantial need of it to prepare its defense
and could not duplicate it through other means, e.g. interviews or depositions of persons
identified as having relevant knowledge or information." It was also observed that the facts of
this case suggested that the presence of such information was unlikely.
A review of the documents has established that they do not contain information so
contemporaneous with critical events that Respondent could have a substantial need for the
documents in preparation of its case. None of the individuals witnessed the "search" incident or
the discussion with the Complainant's that followed. There is also no reason to believe that
Respondent could not obtain the equivalent of the information contained in the statements by
other means-. The individuals have been identified as persons with knowledge of relevant facts
and are, presumably, available for interview or deposition. There is no reason to believe that they
would not disclose all relevant information known to them. In any event, Respondent has_not
established that any person with knowledge of relevant facts is unavailable or has claimed such
failed recollection that relevant information is effectively unavailable to it. See, Varuzza by
Zarrillo v. Bulk Materials, Inc., 169 F .R.D. 254 (N.D.N.Y. 1996); Ehrlich v. Howe, 848 F. Supp.
482, 492-94 (S.D .N.Y. 1994). ·

2

Handwritten versions of the witness statements, as initially taken by the
investigator, were also produced.
3

Copies of the materials with proposed redactions were also submitted. The
disposition of the motion makes it unnecessary to review the propriety of the proposed
redactions.
1158

Conclusion and Order
Respondent's motion to compel is denied as to the witness statements and memorandum.
The materials submitted by the Secretary will be filed under seal, and will be available in the
event they are needed for further review.

Distribution:
M. YusufM. Mohamed, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Blvd., Suite 516, Arlington, VA 22203 (Certified Mail and Facsimile Transmittal)
David J. Farber, Esq., Alexandra V. Butler, Esq., Patton Boggs, LLP, 2550 M Street, NW,
Washington, D.C. 20037 (Certified Mail and Facsimile Transmittal)
/mh

1159

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

September 28, 2000
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF JOHN NOAKES,
Complainant

DISCRIMINATION PROCEEDING
Docket No. CENT 2000-75-DM
MSHA Case No. MD 99-03

v.
Mine ID No. 23-02064
Gable Quarry

GABEL STONE COMPANY, INC.,
Respondent

DECISION
Appearances: Jennifer A. Casey, Esq., and Kristi Floyd, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, for Complainant; .
Donald W. Jones, Esq., and Jason N. Shaffer, Esq., Hulston, Jones, Gammon &
Marsh, Springfield, Missouri, for Respondent.
Before:

Judge Hodgdon

This case is before me on a Complaint of Discrimination brought by the Secretary of
Labor, acting through her Mine Safety and Health Administration (MSHA), on behalf of John
Noakes, against Gabel Stone Company, Inc., 1 pursuant to section 105(c) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(c). A hearing was held in Springfield, Missouri.
For the reaso~ set forth below, I find that the Complainant was discharged by Gabel Stone .
because he engaged in activities protected under the Act.

Backa=round
Gabel Stone Company, Inc., operates the Gabel Quarry in Howell County, Missouri. The
company is owned by Gary and Joyce Gabel and is a small mining operation involving the
mining, crushing, sizing and stockpiling of stone for commercial sale. Stone is obtained by ,
blasting it from the quarry wall. It is then carried by front-end loader to the crusher, where it is
reduced into smaller rocks. From there it is carried by conveyor belt to a scalper, roll crusher and

1

The complaint was originally filed against Gary Gabel d/b/a Gable Stone Company
because that was what the legal identity card on file with MSHA indicated. After the Respondent
pointed out that the company was incorporated, the Secretary's motion to amend the caption was
granted at the hearing. (Tr. 13-14.)
1160

screen to be further-sized and separated. The company employs five to six employees including
the Gabels. The normal workweek is 45 hours.
John Noakes was hired by Gary Gabel as a loader operator on March 10, 1998. As loader
operator, he moved stone from the areas where it was deposited by the conveyor belts to the area
where it was stockpiled by size, loaded customer trucks and shoveled rock from underneath the
conveyor belts, as needed. He also performed other duties, such as maintenance and welding, as
required.
On November 10, 1998, Noakes filed a 103(g), 30 U.S.C. § 813(g), confidential hazard,
complaint with the local MSHA office.2 As a result of the complaint, MSHA Inspectors Allan
Studenski and Stanley Sturgill arrived at the mine on November 17 to conduct an inspection.
After a two day inspection, eight citations were issued, some of which related to allegations
Noakes made in his complaint.
On November 30, 1998, Noakes was reassigned to the maintenance shop to perform
welding and maintenance tasks. On December 3, 1998, Noakes was advised that there was no
work available for him at the quarry, but that he should continue to call in to check on the
availability of assignments. He never worked at the quarry again.
Noakes filed a discrimination complaint with MSHA on December 14, 1998. In it he
alleged that he was "harassed, removed from my usual work-place and my hours were cut down
and finally cut off' because he had filed a 103(g) complaint.3

Evidentiary Ruling
After the hearing, counsel for the Respondent filed a Motion to Supplement Record with
a copy of the conviction of Michael Shoeman, a witness for the Complainant, for Failure to Pay
Controlled Substance Tax, a felony in the state of Wisconsin, as Respondent's Exhibit 76. This
conviction was in connection with a misdemeanor conviction for possession of marijuana. The
Secretary's objection to the admission of the marijuana conviction was sustained at trial. (Tr.
371.) Not surprisingly, the Secretary also objects to the admission of this conviction pointing
out, among other things, that the Wisconsin statute giving rise to the conviction was declared
unconstitutional by the Supreme Court of Wisconsin in 1997. State v. Hall, 207 Wis. 2d 54
(1997).

2

Section 103(g) provides, in pertinent part, that: ''Whenever ... a miner ... has
reasonable grounds to believe that a violation of this Act or a mandatory health or safety standard
exists, or an imminent danger exists, such miner ... shall have a right to obtain an immediate
inspection by giving notice to the Secretary or his authorized representative of such violation or
danger."
3

The body of the complaint is set out in its totality as an Appendix to this decision.
1161

While the proffer of this evidence raises a lot of interesting issues for discussion in a law
review article, resolution of those issues is not necessary to the disposition of this case. Without
considering the convictions to which I sustained objections at the hearing, or the one proffered
now, I did not find Shoeman to be a credible witness and I did not consider his testimony at all in
arriving at a decision in this case. Accordingly, the Secretary's objection to the admission of
Respondent's Exhibit 76 is sustained.
Motion to Dismiss
The Respondent argues that the case should be dismissed because "the complaint was not
furnished to the Respondent [as required by the Act], since Respondent only received
Respondent's Exhibit 24 without factual allegations." (Resp. Br. at 74.) The company alleges
that the Secretary violated the requirement in section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2),
which states that: "Upon receipt of such complaint, the Secretary shall forward a copy of the
complaint to the Respondent and shall cause such investigation to be made as he deems
appropriate. Such investigation shall commence within 15 days of the Secretary's receipt of the
complaint .... "
The company asserts that since it was only shown the first paragraph of the complaint,
and not the 12 paragraphs of factual details following that paragraph, when the investigator came
to investigate the complaint, it did not have sufficient information on which to defend itself. It
also complains that the investigation was not begun within 15 days ofreceipt of the complaint.
Neither of these claims has merit.
The Respondent cites no law to support the motion. With regard to the sufficiency of the
information contained in the complaint, as shown to the Respondent during the investigation,
there do not appear to be any cases on the issue. Nonetheless, since the paragraph furnished to
the Respondent included the Complainant's 'name, the protected activity that he claimed to have
engaged in and a description of the adverse action he claimed resulted from the activity, I fin(!
that the company was provided with adequate information to participate in the investigation.
Therefore, it was furnished with a copy of the complaint.
Turning to the timeliness issue, even accepting the Respondent's calculations, the
investigation was commenced on the 22nd day after receipt of the complaint by MSHA. And that
assumes that an investigation is·not commenced until the investigator goes to tht: mine. It is well
settled that the time limits set out in section 105(c) are not jurisdictional and that a discrimination
complaint is only subject to dismissal "if the operator demonstrates material legal prejudice
attributable to the delay." Secretary on behalfofHale v. 4-A Coal Co., Inc., 6 FMSHRC 905,
908 (June 1996). Here, the delay was at most seven days; not a serious delay. Furthermore,
between MSHA's receipt of the complaint and the investigator's arrival at the mine, the
Christmas and New Year's holidays intervened. Finally, the Respondent has not alleged any
prejudice at all resulting from the delay.

1162

Accordingly, the request that the case be dismissed on procedural grounds is DENIED.
Findings of Fact and Conclusions of Law

Section 105(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 right
afforded by this Act."
In order to establish a prima facie case of discrimination under Section 105(c) of the Act,
a complaining miner bears the burden of establishing (1) that he engaged in protected activity and
(2) that the adverse action complained of was motivated in any part by that activity. Secretary 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 (3rd Cir. 1981); Secretary
on behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981 ); Secretary on
behalfofJenkins v. Hecla-Day Mines Corp. , 6 FMSHRC 1842 (August 1984); Secretary on
behalfof Chacon v. Phelps Dodge Corp. , 3 FMSHRC 2508(November1981), rev'd on other
grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).

The operator may rebut the prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by the protected activity. Pasula, 2
FMSHRC at 2799-800. If the operator cannot rebut the 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 (4th Cir. 1987); Donovan v. Stafford Const. Co., 732 F.2d 954, 958-59 (D.C.
Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving the
Commission's Pasula-Robinette test).
There is no dispute that by filing a 103(g) compliant, Noakes engaged in protected
activity or that he was discharged by Gabel Stone shortly thereafter. The issue is, then, whether
Noakes' discharge was the result of his engaging in protected activity or whether he was
terminated for a reason unconnected to the complaint, or, if it was associated with the complaint,
whether he would have been fired for the non-protected activity alone. I find that the
Complainant was discharged because of the complaint he filed, and that he is, therefore, entitled
to relief under the Act.
Most of the pertinent facts are undisputed. On November 10, 1998, without discussing
the matter with his boss, Noakes filed a 103(g) complaint with MSHA. He listed the following
1163

hazards as needing to be addressed: (1) Lack of safety or first-aid meetings; (2) ''Poorly guarded
head and tail pulleys;" (3) "Working boulders in a running Jaw Crusher at least once a day,
usually more often than that;" (4) ''Exposed radiator fan and head pulley drive belts on roll
crusher plant;" (5) ''No ladder or hand rails on roll plant to get to where we start motor or engage
clutch;" (6) ''No ladder on little screening plant and exposed belts on screen drive motor and we
do climb up there when running occasionally;" (7) "Only one fire extinguisher and it is on the
fuel tank, none in the loaders;" and (8) "Loose boulders on down ramp into the quarry ready to
fall at any time on wall side of ramp." (Comp. Ex. 4 at 3.)
As a consequence, on November 17, 1998, MSHA Inspectors Allan Studenski and
Stanley Sturgill went to the mine to conduct an inspection based on the complaint. They
presented Gary Gabel with a sanitized copy of the complaint which contained only a listing of the
eight allegations set out above. (Comp. Ex. 5.) After Gabel read the summarized complaint, he
was "really aggravated" and knew who had made the complaint. (Tr. 659.) He asked the
inspectors for the name of the complainant and said that he was going to get rid of him.
Gabel then shut down operations at the mine and had all of the miners come up to the
shop. He then went with the inspectors to inspect the mine. As they walked past the employees,
Gable "handed [the complaint] to Johnny [Noakes] and I said, here, this might be yours .. . ."
(Tr. 663.) Gabel and the two inspectors went down into the mine and began the inspection.
During the inspection, Gabel said to the inspectors:

I want to know the name of the man that done [sic] this, and
[Studenski] said, well, I can't do that, and I said, well, I think that
I'm entitled by law - and I didn't really know anything about the
law, but I said, I'm entitled - I should be entitled by law to have
the man's name, and he said, what are you going to do, and I said,
I'm going to fire him, and he just, no, no, don't do that, Gary, don't
. do that, so by then we had gone back up to the office then and I
asked him again for the name ... .

And he said, you have miners' rights and he has the right to
do this, and before you do anything drastic, you call Charles Sisk,
and he went to his car and got the number. He brought this little
yellow book in with miners' rights, and he said, read this; don't do
that; do not fire anybody : . . .
(Tr. 664.)
Gabel called Charles Sisk, the supervisor of the MSHA District Office in Dallas, Texas,
and Sisk advised him that if he fired Noakes for making a safety complaint, that under the Mine

1164

Act Noakes could file a discrimination complaint against him. When the inspectors returned on
November 18, Gabel told them that he had talked to Sisk and read the Miners' Rights handbook
and knew that he could not terminate Noakes for filing the complaint. However, according to
Inspector Sturgill, he also said, "that the guy was going to lose his job. He might have to wait
awhile, a week or two, but, you know, that he was going to get rid of him." (Tr. 261.)
The week after the inspection was Thanksgiving week. On the Wednesday before
Thanksgiving, Gabel told all his employees, except Noakes, that working on the Friday after
Thanksgiving was optional. He did not give that option to Noakes, but instead told him:
that he ought to take the weekend, talk to his family, discuss it. I
said, it's obvious you're not happy here; you need to discuss it with
your family and decide what you want to do; if you want to stay
here, we're going to have to make some changes. If you don't
want to be here, I'll understand that you need to pursue something
else ....
(Tr. 683.) When Noakes returned for work the following Monday, November 30, he and Gabel
had a discussion in the shop. At the end of the discussion, Gabel told Noakes: "I'm going to
give you some work up here in the shop, but I thiilk it would be a good idea if you could look for
another job .... " (Tr. 698.)
Noakes worked in the shop through Thursday afternoon, December 3. He left at 2:30
p.m. Gabel told him that since it looked like rain on Friday, he should call in to see if they were
going to work. It did rain Friday and no work was done. On Sunday, December 6, when Noakes
called him, Gabel told him: "I've made up my mind, just go ahead and bring in your uniforms in
the morning and Joyce will have your check, and I said, give her an hour or so in the morning,
you know, to get there and do the payroll, and I said, we need to just be done with it." (Tr. 703.)
Sometime later in December, or early January, Gable had a safety and health conference
with Charles Sisk concerning the citations issued during the inspection that resulted from
Noakes' complaint. During the conference they also discussed Noakes. Gabel informed Sisk
that Noakes had quit his job. (Tr. 280, 745-46.)
The Respondent argues that Noakes' discharge was in no part motivated by his protected
activity but rather by the manner that he performed his job in the shop and further, that if
Noakes' protected activity did enter into the motivation for firing him, the Respondent had
reasons to terminate him which were not protected and which occurred prior to, and after, the
protected activity and would have resulted in his discharge as soon as a state highway department
contract had been completed, whether the protected activity occurred or not. (Resp. Br. at 74,
77.)

1165

Clearly, the reason for Noakes' termination rests with Gabel's intent or motivation at the
time Noakes was fired. However, it is very hard to discern what a person is thinking. Since the
very first discrimination cases it c~nsidered, the Commission has recognized this problem and
has set out guidelines for determining motivation. Thus, it recently stated:
We have acknowledged the difficulty in establishing a
motivational nexus between protected activity and the adverse
action that is the subject of the complaint. ''Direct evidence of
motivation is rarely encountered; more typically, the only available
evidence is indirect . . .. 'Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial
evidence.'" Secretary ofLabor on behalfof Chacon v. Phelps
Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other
grounds, 709 F.2d 86 (D.C. Cir. 1983) (quoting NLRB v. Melrose
Processing Co., 351F.2d693, 698 (8th Cir. 1965)). In Chacon, we
listed some of the circumstantial indicia of discriminatory intent,
including (1) knowledge of the protected activity; (2) hostility or
animus towards the protected activity; and (3) coincidence in time
between the protected activity and the adverse action. Id. We also
have held that an "operator's knowledge of the miner's protected
activity is probably the single most important aspect of a
circumstantial case" and that "knowledge ... can be proved by
circumstantial evidence and reasonable inferences." Id.

Secretary on behalfofBaier v. Durango Gravel, 21 FMSHRC 953, 957 (September 1999).
The Complainant has clearly established a prima facie case of discrimination. That he
engaged in protected activity is undisputed. That he was discharged is undisputed. Nor is it
disputed that Gary Gabel had knowledge of the protected activity, he admitt.e d that he knew
Noakes had made the complaint, that Gary Gabel expressed hostility toward the protected
activity, he admitted that he said to the inspectors that he would fire the person who made the
complaint, or that there was a coincidence in time, less than three weeks, between the Gabel's
learning of the complaint, November 17, and Noakes' discharge, December 7. The Respondent
has failed to rebut the case by showing that Noakes was terminated solely for his unprotected
activity and it has also failed to affirmatively establish that even though the protected activity
provided some motivation for discharging Noakes, it would have discharged him anyway for his
unprotected activity.
The company presented evidence, mainly through the testimony of Gary and Joyce Gabel,
but also somewhat corroborated by Gabel Stone employees, Tommy Havens and David Cancel,
that Noakes was on medical leave during the month of September 1998 and that when he
returned on October 5, his attitude had changed and he became a poor employee. Some of the
examples of his poor attitude given were his refusal to work on Saturdays, his failing.to properly

1166

weld a plate on the back of a bin to keep material from leaking out, his failure to check the
battery terminals on his loader before complaining that it would not start, his leaving work early
to babysit while his wife went to a medical appointment, his failure to properly build guards on
the equipment associated with the new scalper, occasional lateness for work, his failure to
complete assigned jobs and his generally acting sullen.
The Respondent asserted that it had determined to terminate Noakes prior to the
November 17 inspection but had not done so because of a contract for chip rock awarded it by
the state highway department. The contract was awarded sometime prior to November 4 and was
canceled "the end of November, first of December." (Tr. 573.) The operator claimed that he
wanted to fulfill the contract before letting Noakes go.
On its face, this argument is somewhat compelling. The problem is, however, that the
facts suggest that this reason for Noakes' discharge was arrived at after the fact, when the
company learned that Noakes had filed a discrimination complaint. By Gabel's own admission,
other than asking Noakes if anything was wrong a few times and getting a negative response, he
never counseled Noakes concerning his bad attitude or his poor work performance. He never
took any disciplinary action for Noakes' alleged failures. He never had it indicated on the time
cards that Noakes had been late for work. Furthermore some of these alleged failures turned out
not to be failures at all. For instance, Noakes advised Gabel prior to the Saturdays he did not
work of the reasons he would not be working and was excused.
Additionally, in early November the company shut down to put guards on the conveyors
servicing the new scalper. Gabel assigned Noakes to perform this task because he considered
him the best man he had for building guards. He had him perform this task essentially
unsupervised. Between the time the guards were built and the inspection, Gabel apparently never
inspected them or informed Noakes that they needed work. This assignment and trust are
certainly inconsistent with the portrayal of Noakes as a poor performer.
Further, Noakes only worked in the shop for four days. By his own admission, he failed
to complete one of the tasks assigned him. However, once again Gabel never so much as advised
Noakes that he had not finished a job, let alone counseled or disciplined him for the failure.
Even when he terminated Noakes, he did not tell him that it was because of his poor
performance.

In addition to these reasons, there are several other factors which indicate that the
company's professed reason for discharging Noakes is pretextual. The first is Gabel's anger and
undisputed statement that he would fire the person who made the safety complaint. The second
is his statement to the inspectors, even after he had been advised by both them and their
supervisor that he could not fire someone who had made a safety complaint, that he would wait a

1167

few weeks and then get rid of Noakes. 4 A third is that Gabel encouraged Noakes to quit several
times between the inspection and Noakes termination in an apparent attempt to avoid the
consequences of firing him. A fourth factor is that Gabel did not assert at the hearing that the
reason he fired Noakes was because the state contract bad been canceled so he could finally take
the action he had planned to all along.5 Finally, the fifth, and most significant, reaso~ is Gabel's
statement to Sisk during the conference on the citations that Noakes had quit. This undoubtedly
indicates guilty knowledge on Gabel's part that he should not have discharged Noakes for filing
the safety complaint and was obviously an attempt to withhold that information from the man
who had told him not to.

In conclusion, the Complainant has made out a very strong case that he was disctj.mi.nated
against, and the Respondent has failed both to rebut it or affirmatively defend against it.
Consequently, I conclude that Noakes was discharged on or after December 3, 1998, in violation
of section 105(c) of the Act and is, therefore, entitled to the remedies prescribed by that section.
Order
Having determined that Noakes was discharged unlawfully, it follows that he is entitled
to the relief sought in his complaint. He is not seeking reinstatement, but he is entitled to back
pay, reimbursement of any other reasonable and related economic losses or expenses "incurred as
a result of his discharge and to the expungement from his personnel file and company records of
his discharge and all references to the circumstances involved in it. He may also be entitled to
other damages. In additio~ the company is liable for a civil penalty.
Accordingly, the parties are ORDERED to confer within 21 days of the date of this
decision for the purpose of arriving at an agreement on the specific actions and monetary
amounts that the Respondent will undertake to carry out as remedies necessary to restore Noakes
to the situation he would have occupied but for the discrimination, as well as the amount of civil
penalty the Respondent will pay.6 If an agreement is reached, it shall be submitted within 30
days of the date of this decision.

4

Gabel denied having made this statement. However, there is no reason not to believe
Inspector Sturgill. He has no stake in the case, he did not investigate the complaint and he do~s
not even work in that area of the country anymore. No evidence was presented that Sturgill was
unworthy of belief. Indeed, when discussing credibility issues in its brief, the company does not
even address this statement.
5

It is not clear from the evidence whether the contract had even been canceled at the time
Noakes was discharged.
6

Such an agreement will not preclude either party from appealing this decision.
1168

If an agreement cannot be reached, the parties are FURTHER ORDERED to submit
their respective positions concerning those issues on which they cannot agree, with supporting
arguments, case citations and references to the record, within 30 days of the date of this decision.
For those areas involving monetary damages on which the parties disagree, they shall submit
specific proposed dollar amounts for each category ofrelief.7 With regard to disagreement
concerning a civil penalty, the parties should propose an appropriate civil penalty based on the
civil penalty criteria set out in Section 1 IO(i) of the Act, 30 U.S.C. § 820(i), with a discussion of
how the criteria apply in this case. Secretary on behalf ofJohnson v. Jim Walters Resources,
Inc., 18 FMSHRC 552, 556-60 (April 1996). If a further hearing is required on the remedial
aspects of this case, the parties should initiate a telephone conference call to set forth their
reasons for such a request and to discuss setting a hearing date.
The judge retains jurisdiction in this matter until the specific remedies Mr. Noakes is
entitled to are resolved and finalized. Consequently, this decision will not become final until an
order granting specific relief, awarding monetary damages and assessing a civil penalty has been
entered.

'1r~!f.f4-

Administrative Law Judge

7

The proper method of calculating interest on back pay is: Amount of interest= The
quarter's net back pay x number ofaccrued days of interest (from the last day of that quarter to
the date of payment) x the short-term federal underpayment rate. Secretary on behalfofBailey
v. Arkansas-Carbona Co., 5 FMSHRC 2042, 2052 (December 1983), as modified by Clinchfield
Coal Co., 10 FMSHRC 1493, 1505-06 (November 1988). The applicable interest rates and daily
interest factors may be obtained on the Internet at: www.nlrb.gov/ommemo/ommemo.html.
1169

APPENDIX
Discrimination Complaint of {name{s))

Mine Safety and Health Administration
. case Number

John Noakes
Summary ofDisc:riminltory Actioo

I John Noakes am filing this discrimination complaint in pursuance to title 30 section
105(c) of the Federal Mine Safety And Health Act of 1977. In this complaint I will document
the events which I believe were brought upon me as A result of my filing a complaint under
title 30 section 103(g) of.the Act. I sent the complaint to Mr. Feeney, the supervisor of the
Rolla office. I described what I thought to be safety violations that needed immediate
attention. As a result I was harassed, removed from my usual work-place and my hours
were cut down and finally cut off. Gary Gabel has not yet told me if I was laid off, fired or
suspended. The following is a chronological record of events which occurred after M.S.
H.A. inspectors arrived at Gabel Stone Company on Nov. 17th, 1998.
Nov 17, 1998.

On Nov 17 my co-workers and myself were crushing rock when our drill operator Came down and
told us to shut down and go to the shop. We waited at the shop for quite some time not knowing what
was going on. Finally Gary Gabel (Owner/Operator) came out of his office, he looked very upset. He
walked by all of us as he was headed to the hole and banded me the complaint form and said "is this
yours." I did not reply. My co-workers and I stayed at the shop discussing ~e matter while Gary
Gabel went with the inspectors down into the hole to Inspect. While we were eating lunch the
inspectors drove by and said they would be back tomorrow to watch us work for awhile. A few
minutes later Gary Gabel came from his office and told us there was nothing wrong in the quarry. He
also said that none of the allegations were true. And that we could run, and if someone did not feel
safe at this time they could leave now.
Nov 19,1998.

On Nov 19 we started up as usual. As we were letting the engines warm up, Gary Gabel called all of
us over to talk to us. He explained that he had nothing to hide and that we were to run like we
normally do with the exception of me. He explained that I was to only load trucks and stockpile. He
said that I was not to
on or around the other equipment. My job was to start the generator and
bring it up to running voltage, start the screening plants and most of the time the roll crusher. Later
that day A coworker mentioned that I should be careful that Gary Gabel was going to fire me for any
reason.

be

Nov 20, 1998.

On Nov 20th at lunch period Gary Gabel came out of his office and explained to us that we would
quit at two-thirty and since that we had quit at two-thirty on Thursday that would be forty hours. He
then explained that we would no longer work forty-five hour weeks, because this inspection cost him
quite a bit. H.e said we would no longer get to work overtime.
Signature(s) of Complainant{s)
Date

MSHA Form 200 24, Jun 79

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Nov 23, 1998.
On Nov 23d I w~s in the hole working on guards to cover some tail pulleys. L~ter that
morning Gary Gabel. came down to see how far along I was. He asked how I was getting
along, then walked around like he was doing some serious thinking. He then started to
describe to me how costly this inspection was and how it really kept the truck drivers from
wanting to come to his quany. He then gave me an example that included A good customer
Steve Abby and how he was afraid to come back until the inspectors left. Later a co-worker
said that Gary Gabel was telling the truck drivers that they did not have to come back that
day if they did not want to. Later that day Gary Gabel again explained to everyone how
costly this inspection was and how much business was scared off.
Nov 25, 1998.
On Nov 25th I found out what I believe to be the reason for the events on Nov 23rd. I
discovered that Gary Gabel had said that he was going to sue me for malicious intent
to do harm to his business. I also heard that Gary Gabel said he was going to
approach me and offer me a chance to pay him five thousand dollars to let this go and
if I didn't he was going to take everything I had and he wanted to see my family go
hungry. I also heard that Gary Gabel called the Texas M.S.H.A. office and that he
knew that it was me by what was said in the complaint. Toward the end of this day
Gary Gabel called everybody together to talk to us. He explained that was absolutely
sure that this was a deliberate attempt to hurt his business. He said he knew this
because nothing was discussed with him before or after the inspection. He also said
that he had left us to guard the devices in any way we thought necessary. This is not
true he gave specific instructions on how he wanted these devices guarded and that
we were NOT to even start guarding the surge bin head-pulley unless we had time to
finish it. He continued to say that there was to much tension and that this business
could not operate like this because everyone has had to watch there backs. He then
made it clear that today would be the end of it. He then told Everyone who he had
talked to earlier to come in Friday to work. I found later that this was everyone but
me.
Gary Gabel then told me that he wanted to speak to me alone. We walked over to my loader
to close up the doors. As we approached the loader Gary Gabel said that he wanted me to
take the next two days, go home and discuss with my wife about what we really wanted to do
about this. He said that he didn't like the tension and that he lmew that I didn't like the
tension. He repeated that I should really go home and talk things over with my wife. He then
said that I could come in Monday morning and that Joyce Gabel would be there around 9:00
and that she could have my check ready and that I could drop my uniforms off. He said that
if I wanted to work somewhere else that would be fine with him. And that if I wanted to stay
there that things would have to change.

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Nov 30, 1998

On Nov. 30th I arrived at the quarry, waited by the shop for a few minutes then went to
the hole to fuel my loader. Gary Gabel drove down into the hole and talked to some
co-workers, then drove out never saying a word to me. I decided to go to the shop and
see what he had planned for the day. I asked what he wanted me to do today, he said
he wanted me to talk to him. We went into the shop and sat down. Gary Gabel started
the conversation by asking me what I was doing here today. I asked why wouldn't I
be here? He said he really didn' t expect me to show up today. He then said don't you
feel the tension? I replied yes, but I came in with this complaint anonymously. You
instantly assumed it was me and stirred things up. We then debated whether or not
this was over safety matters or not. I explained that it was not just the safety
violations but the safety attitude. I reminded him about him saying that he was going
to take the guards off and that only a dumbass would get caught in a tail-pulley. I then said
so you think I'm a dumbass because I was injured? He said yes John you are, you are a
dumbass. He then explained that he'd been in the business so many years and never
been injured. He asked me ifl didn't feel safe in the hole? I explained that when I
was running from plant to plant, crawling into a moving jaw, and shoveling under
tail-pulleys that no I didn't feel safe. He then tried to convince me that I had been
doing a poor job since Oct 12th. I asked him to explain why. He brought up the how I
messed up the screening plant putting screens in wrong. This is not true, you can look
at these screens how and there still wrong even after two other guys worked half a
day on it, the screen deck has dropped to low, not my fault. He tried with a couple of
more examples but they were not true. He then said so were stuck with each other. I
Said yes. He then told me not to go in the hole that he'd find me something to do up
here in the shop.
Dec 01, 1998
On Dec 1•1 Gary Gabel told me to take off at 4:00 I was not finished with the loader
bucket yet and .to my lmowledge everyone else worked until 5:00. Before leaving I
asked Gary Gabel if he lmew where my uniforms were, I had forgot to get them
Monday. He replied .that he had them and was going to keep them because this was
probably my last week, that this was not going to work. I asked him what would
happen on Friday, he said that he didn't lmow. He said he was going to give me some
time to find another job. He said that ifl didn't come with something that he might
be able to find something for next ~eek.

Dec 3, 1998
On Dec 3rd I worked on a dozer. When done I went to the office and asked Joyce
Gabel if she would call down to tell Gary Gabel that I was done with the dozer and
ask what he would like for me to do next? He called back saying that he did not have
anything else for me to do and to just go ahead and go home. He also said he didn' t
lmow what tomorrow was gonna be like with the rain, for me to call in around
8:00 am and see what was going on. I left at 2:30 pm.

1172

Dec4, 1998
On Dec 4th I called Gary Gabel at the quarry to ask if he had anything for me to do.
He replied that he dido 't and that he didn't forsee anything next week, but to call
him Monday or even Sunday evening and see if things had changed.

Dec6, 1998
On Dec 6" I called Gary Gabel at his house to see what was planned for Monday.
He said that there was nothing for me to do but I could get my check and bring the
rest of my uniforms in.

Dec 7, 1998
On Dec 7th I went to the quarry around 11 :30 to pick up my check and return the one
uniform I had found. While Joyce Gabel was finding out how much my missing
uniforms would cost Gary Gabel asked me into his office. He asked if I had found
another job, told me he had seen some ads for work in the paper we then just talked
normally for awhile. I eventually asked him what the deal was, if he was just cutting
me off from work or firing me or what? He then said that he dad nothing for me to do
because I said that I didn't feel safe in the hole doing my job. I told him that I didn't
say that, I was referring to before the safety matters were addressed, and since he
limited me to the loader only I was fine with that. He repeated that he could no longer
have me working in the quarry because I didn't feel safe. Gary Gabel then said that he
remembered my saying that my friends turned their back on me at twin bridges sand
and gravel, and now there were three men outside that didn't want anything to do
with me and that two of them wanted to ''beat your ass". He continued with asking if
I had ever thought that the problem was me. I thought for a second then replied yeah
it could be me, because I don't go for that sociological bullshit attitude of oh well
that's just how it is, or just suck it up and drive on. Or maybe because I don't crawl\
into the back otso~eone' s pocket just because they have money. I then said if your
done with me I take ~y check and leave. He then said what Im about to say is for
your benefit, I hope that after this that things are done between me and you. I replied
no, I don't think so. He seemed to get upset and stood up. He then asked me when I
thought I was going to get my settlement from my hand, I replied that it would be six
months before I go back to the doctor, why? He said he was just curious, he then asked
how much I thought I was gonna get, I replied not very much, but you'll not get it. I
then asked for a receipt for my uniforms and left. I called back Tuesday the 8th and
Wednesday the 9th he told me that he did not see anything for me for the rest of the
week.

I am seeking backpay from the time I was discriminated
against to until I find an equal paying job.

1173

Distribution: (Certified Mail)
Jennifer Casey, Esq., Office of the Solicitor, U.S~ Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5716
Donald W. Jones, Esq., Hulston, Jones, Gammon & Marsh, 2060 E. Sunshine, Springfield,
M065804

Int

1174