OCTOBER 2002

THERE WERE NO COMMISSION DECISIONS OR ORDERS

ADMINISTRATIVE LAW JUDGE DECISIONS

10-16-02
10-1 7-02
10-18-02
10-31-02

Sec. Labor on behalf of Terry McGill v.
U.S. Steel Mining Company, LLC.
Hamilton Pipeline, Inc.
UMWA, Local 2368, Dist. 20 on behalf
of miners v. Jim Walter Resources, Inc.
William E. Averette, employed by
Jim Walter Resources, Inc.

SE
2000-39-D
CENT 2001-330-M

Pg. 913
Pg. 915

SE

2002-22-C

Pg. 931

SE

2002-86-M

Pg. 937

ADMINISTRATIVE LAW JUDGE ORDERS

10-31-02
10-18-02
10-21-02
10-22-02
10-23-02

Hanson Permanente Cement
Paiute Aggregates Inc.
Sec. Labor on behalf of Jimmy and Jerry
Caudill v. Leeco, Inc., et al.
Paiute Aggregates Inc.
Sec. Labor on behalf of Billy Begley v.
Coastal Coal Co., LLC.

i

WEST 2002-370-RM Pg. 941
WEST 2002-269-M Pg. 943
KENT 2002-114-D
WEST 2002-441-M

Pg. 948
Pg. 950

KENT 2002-195-D

Pg. 955

OCTOBER 2002

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

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

ii

ADMINISTRATIVE LAW JUDGE DECISIONS

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

October 16, 2002

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of Terry McGill,
Complainant

DISCRIMINATION PROCEEDING
Docket No. SE 2000-39-D
BIRM CD 99-04

v.
Oak Grove Mine
Mine ID 01-00851

U.S. STEEL MINING COMPANY, LLC.,
Respondent

DECISION APPROVING SETTLEMENT
AND
ORDER OF DISMISSAL

Before:

Judge Weisberger

This Discrimination Proceeding is before me based upon a decision of the Commission,
23 FMSHRC 981, remanding the case to me for further proceedings consistent with its decision.
Upon receipt of the decision, the undersigned contacted the parties to explore the possibility of
resolving by way of settlement, the issues raised by the Commission's decision. The parties
engaged in extensive and protracted negotiations, and, on October 4, 2002, filed a joint motion to
approve settlement.
l find that the terms of the settlement are appropriate under the terms of the Federal Mine
Safety and Health Act and I approve it. I therefore grant the motion to approve settlement.
It is Ordered that the parties abide by all terms of the settlement; that Respondent will
pay to Mr. McGill the amount of $200.00 for expenses that arose from Respondent's termination
of his employment and $42.00 as interest on these expenses; that Respondent will forward a
check or money order in the amount of $242.00 payable to Terry McGill to the office of the
Solicitor, 61 Forsyth Street, Room 7Tl0, Atlanta, Georgia 30303, within 30 days of this Order;
that the Office of the ·s olicitor will forward the check to Mr. McGill; and that Respondent shall
pay $2,500.00 in full settlement of the civil money penalty sought by the Secretary in this matter.
Such payment shall be made within 30 days of this decision.

913

It is Further Ordered that this case be Dismissed.

,./

ram Weisberger
Administrative Law Judge

Distribution List:
. Lany A. Auerbach, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street,
N.W., Atlanta, Georgia, 30303
Anthony Jeselnik, Esq., U.S. Steel Mining Company, Law Department, 600 Grant Street,
Pittsburgh, PA 15219-2749
/sc

914

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVE., N.W., Suite 9500
WASHINGTON, D.C. 20001

October 17, 2002

CNIL PENALTY PROCEEDING

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

Docket No: CENT 2001-330-M
A.C. No. 41-03894-05504

V.

HAMILTON PIPELINE, INC.,
Respondent

Plant 530

DECISION
Appearances: Christopher V. Grier, Esq., Office of the Solicitor, U.S. Department of Labor,
Dallas, Texas, on behalf of Petitioner;
William H. Sommers, Esq., The Gardner Law Firm, San Antonio, Texas,
on behalf of Respondent.
Before:

Judge Zielinski
\

This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary
of Labor pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 815. The petition alleges that Hamilton Pipeline, Inc., is liable for 15 violations of mandatory
safety and health standards applicable to surface metal and nonmetal mines. 1 A hearing was held
in San Antonio, Texas. The parties submitted briefs foJlowing receipt of the transcript. Neither
party submitted a reply brief. At the commencement of the hearing, the Secretary vacated two of
the citations. The Secretary also modified two of the remaining citations and Respondent agreed
to pay reduced penalties in the amount of $110.00. Respondent withdrew its notices of contest as
to three of the remaining citations. The Secretary proposes civil penalties totaling $1,310. 00 for
the eight alleged violations remaining at issue. For the reasons set forth below, I find that
Hamilton committed four of the alleged violations and impose civil penalties totaling $384.00.

Citation No. 7896144 is listed on the assessment control sheet attached to the
petition, but a copy of that citation was not included in the papers filed with the Commission.
Respondent advised that that citation was not contested and had been paid, which the Secretary
confirmed following the hearing. Citation No. 7896144 is not at issue in this proceeding.
915

Findings of Fact - Conclusions of Law
Respondent, Hamilton Pipeline Inc., operates a portable crusher, screens and related
equipment, producing crushed stone for use in highway construction and other paving projects.
In 1988, the equipment had been moved from Del Rio, Texas, to a site near Brackettville, Texas,
to produce crushed stone for a highway paving project in that area. When that project was
completed in June of2000, the equipment was moved back to Del Rio. The crusher is operated
intermittently, as product is ordered or needed, and such operations are inspected annually by the
Department of Labor's Mine Safety and Health Administration (MSHA).
MSHA Inspector, Danny Ellis, arrived at the Del Rio site at approximately 8:30 a.m., on
August 22, 2000, to conduct the annual inspection. A locked gate prevented access to the
facility. He telephoned the corporate office, some 100 miles away, and waited until
approximately 12:30 p.m., for a Hamilton employee, Carlos Caba1los, to arrive and unlock the
gate. Two men were working at the site that day, but there was no means to contact them. The
two men at the site spoke only Spanish. Caballes spoke Spanish and limited English. Ellis
spoke only English. His inquiries to the men at the site were translated by Caballes. Based upon
the responses to his inquiries and his observations, Ellis concluded that the crusher had been
operated for the two month period following the move from Brackettville. Respondent maintains
.that the plant was in the process of being set up following the move, and that Ellis' conclusion
that it had been operated for two months was erroneous.
In the course of the inspection, Ellis issued sixteen citations for alleged violations of
safety and health standards, which deviated markedly from the results of previous inspections. A
history of violations submitted by the Secretary showed that only two, non-significant and
substantial, violations had been issued to Respondent within the 24 month period preceding
August 22, 2000. Ellis had inspected the crusher on three prior occasions. Some of the citations
he issued on August 22, 2000, were for conditions that neither he, nor other MSHA inspectors,
had cited in the past.
The citations at issue will be discussed in the order that evidence was presented at the
hearing.
Citation No. 7896146
Citation No. 7896146 alleged a violation of 30 C.F.R. § 56.14112(b), which requires that
guards to protect persons from moving machine parts "shall be securely in place while machinery
is being operated, except when testing or making adjustments which cannot be performed
without removal of the guard." The conditions noted on the citation were:
The finned tail pulley on the belt under the crusher was not guarded. The guards
had been removed when the crusher was moved from the Brackettville pit
approximately two months ago and not replaced. The guards were found under
916

the crusher motor's fuel tank, in a container.
Ellis concluded that it was reasonably likely that the violation would result in a
permanently disabling injury, that the violation was significant and substantial, that one person
was affected and that the violation was due to the operator's high negligence. A civil penalty of
$259.00 is proposed.
The Violation
Ellis issued the citation because he observed that the guard had been removed and he
believed, at the time, that the crusher had been in operation for two months. He was informed
that the guard had been removed when the crusher was relocated to Del Rio and had not been
replaced. Tr. 46. He also had been informed that the move had taken place about two months
before the inspection, and he believed that the plant had been operated during that time. He
initially testified that he had been informed that "the plant had been in operation for
approximately two months." Tr. 49. Those facts lead him to conclude that the violation was due
to the operator's high negligence. Tr. 55, ex. P-2.

In preparation for the hearing, Ellis had an opportunity to examine records maintained by
James R. Hamilton, Respondent's President, that showed that key components of the crusher
equipment had been moved to the site only shortly before the inspection. Tr. 61. He did not
. recall the specific wording of his inquiries during the inspection, but realized at the time of his
testimony that he probably had been informed only that the crusher had been at the Del Rio site
for about two months -- not that the crusher had been in operation for two months. Tr. 73, 78-79,
176. However, he continued to believe that the plant had been operated for production purposes
without the guard in place because of the presence of stockpiles and build-ups of material under
the plant and belts. He felt that there would have been no reason for one of the men to have been
shoveling in the area if there hadn't been significant spillage from operation of the equipment.
Tr. 55-56.
Respondent does not contest the fact that the guard had been removed at the time of the
inspection. It contends that the plant was in the process of being set up after the move to Del
Rio, and that the guard had been removed to make adjustments to the pulley and conveyor belt,
which was permissible under the regulation.
The crusher had been moved to the Del Rio site in late June. However, other equipment
had not been relocated until shortly before the inspection. The generator, which powered the
electrically driven conveyor belts, had been delivered on July 13, 2000, and a new battery was
purchased for it on July 14, 2000. Tr. 255-56. The move was not completed until Saturday,
August 19, 2000,just three days before the inspection. Tr. 61, 257-61. Setting-up of the
equipment was delayed because of a need to modify the "rock box," a stationary funnef-like
device into which rock is dumped and fed to the crusher. Modifications to the crusher, done at
Brackettville, required changes at Del Rio before the crusher could be positioned under the rock
917

box. Tr. 262-63. This work proceeded at a somewhat leisurely pace because there were adequate
stockpiles of material at the site, remaining from when the crusher had last been operated there
two years before, and there was no reason to hurry the installation. Tr. 250, 301-02.
The plant consists of two main pieces of equipment -- the crusher and screens. The
product, crushed stone, is moved between the equipment and to stockpiles by conveyor belts.
The final set-up of the equipment is depicted in Exhibits R-1 and R-6. The heaviest piece of
equipment, the crusher, must first be positioned under the rock box. The various conveyor belts
and the screen are then positioned to facilitate the flow of material. The conveyor belt frames are
welded in place after being leveled and positioned with relation to the crusher and screen. Tr.
263-66. The pulleys on the conveyor belts must then be adjusted so that the belt remains on the
pulleys and transports the material with a minimum of spillage. James Hamilton explained that
new set-ups generally require multiple adjustments to the belts, and the most efficient way to
perform the adjustments is to remove the guards and adjust them sequentially, first without
material and then when they are loaded. Tr. 266-70, 305-06. The guard in question, along with
guards on other belts, had been removed on August 21, 2000, so that the pu Heys could be
adjusted. Tr. 223.
I reject the Secretary's argument that the plant had been operated for production purposes
without the guard in place. Ellis admitted that his initial conclusion that the plant had been in
operation for two months was erroneous and apparently had been the product of communication
difficulties. His attempt to buttress his conclusion that the plant had been operated by reference
to stockpiles and a build-up of material is unconvincing. He had no recollection of the size of the
stockpiles that had been left at the site when the plant had been moved from Del Rio two years
previously. Tr. 87. Nor did he know how much of the stockpiles remained when the equipment
was moved back to Del Rio. The presence of stockpiles does not tend to prove that the plant was
operated after it was moved back to the Del Rio site. As to build-up of material, Ellis first
testified that the pictures taken during the inspection showed a build-up of material under the
plant and belts and that some of it was shown in the picture included in Exhibit P-3. Tr. 56.
However, he later conceded that there was no build-up of material shown in that exhibit, but
maintained that the build-up was shown in other photographs. Tr. 68, 78-79. However, there
was no testimony regarding a build-up of material depicted in other photographs taken at the time
of the inspection. Those photographs appear to depict equipment and surrounding areas that are
relatively clean, indicating that the crusher had not been operated.
Respondent contends that the power sources of the plant were red-tagged and locked-out
of service on the day of the inspection. It is clear, however, that the plant had been operated prior
to the inspection. The purchase of a battery for the generator evidences that the electrical power
was functional as early as July 14, 2000, and pul1eys for conveyor belts were being adjusted on
August 21, 2000. Tr. 221. I find that the plant had been operated while at the Del Rio site, but
only for the purpose of setting it up, not for running production. I further find that the guard had
been removed for the purpose of making adjustments to the pulley, which could not be
performed without removal of the guard. Accordingly, I find that the Secretary has failed to carry
918

her burden of proving that Respondent violated the regulation, as alleged in the citation.
Citation No. 7896147
Citation No. 7896147 alleged a violation of30 C.F.R. § 56.14107(a), which requires that
"Moving machine parts shall be guarded to protect persons from contacting gears, sprockets,
chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar
moving parts that can cause injury." The conditions noted on the citation were:
The ... finned tail pulley on the oversize belt was not sufficiently guarded. The
guard would not prevent anyone from accidentally contacting the tail pulley. The
end of the guard was almost even with where the tail pulley started. The tail
pulley was at the end of the steps that lead to the belt's catwalk. There was a step
that was broken that a person could slip on, propelling [him] into the tail pulley.
Ellis concluded that it was reasonably likely that the violation would result in a
permanently disabling injury, that the violation was significant and substantial, that one person
was affected and that the violation was due to the operator's moderate negligence. A civil
penalty of $184.00 is proposed.
The Violation
The condition observed by Ellis is shown in a picture included in Exhibit P-4. A guard
had been installed preventing access to the tail pulley. However, the pulley was near the end of
the guard and the belt/pulley pinch point was relatively accessible. Ellis determined that a miner
could encounter the pinch point accidently while servicing the pulley, cleaning up the area, or in
the course of falling from adjacent steps, one of which was tilted at approximately a 45 degree
angle. Tr. 100-01. He assessed the operator's negligence as moderate because he believed that
the guard had likely been adequate when first installed, and that the hazardous condition
developed over time as adjustments were made to the belt and pulley. Tr. 105.
Respondent's defense to the alleged violation is similar to its defense to the previous
citation. Respondent elicited from Ellis on cross-examination that he did not know whether the
belt had been finally adjusted at the time of the inspection, suggesting that the pulley might have
been less accessible by the time the plant was operating for production purposes. Tr. 108.
However, Respondent introduced no evidence that subsequent adjustments to the pulley
corrected the dangerous condition, which would have supported its argument that this condition
was temporary in nature, pending final adjustment of the belt. In any event, the plant was
operated in this condition during the set-up process and miners were exposed to the hazard. Ellis
also confirmed that he had not identified this condition as a violation in previous inspections. Tr.
109-10. However, he noted that that particular condition, which would have varied over time as
the belt was adjusted and repaired, may not have existed during prior inspections. Tr. 112-13.

919

I find that the guard was inadequate and that the condition violated the regulation. I also
concur with Ellis' determinations that the violation was a result of the operator's moderate
negligence and that one person was affected.
Significant and Substantial
A significant and substantial ("S&S") violation is described in section 104(d)(l) of the
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." A violation is properly designated
S&S "if, based upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious
nature." Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
The Commission has explained that:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety--contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question wilJ be of a
·
reasonably serious nature.

Mathies Coal Co, 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7 1h Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), afj'g, Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).
In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission
provided additional guidance:

We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)( 1), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S. Steel
Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984);.U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in terms of "continued normal mining operations." U.S. Steel
Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is
significant and substantial must be based on the particular facts surrounding the violation.
920

Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC
1007 (Dec. 1987).
Whether this violation was S&S turns upon the likelihood of injury. It could hardly be
disputed that the violation contributed to a discrete safety hazard and that an injury caused by an
encounter with the pinch point of the pulley would be serious. I find that there was a reasonable
likelihood that the violation would result in an injury. A miner working in the immediate area of
the pulley, cleaning up spillage from the belt, could inadvertently contact the pinch point. Ellis
also postulated that inadvertent contact might occur when the pulley was serviced. While it
appears that the belt would not generally be running when the catwalk was accessed, a miner
could access the catwalk and the tilted stair, while the belt was running and encounter the pulley
while trying to prevent a fall. I find that the violation was significant and substantial.
Citation No. 7896148
Citation No. 7896148 alleged a violation of30 C.F.R. § 56.14112(b), supra. The
conditions noted on the citation were:
The guard on the finned tail pulley on the stacker belt had been removed on the
side facing the road, and not replaced. The guard had been removed when the
crusher was moved from the Brackettville plant approximately two months ago.
The tail pulley was approximately 60 inches from the ground. A person could
accidentally contact the tail pulley.
Ellis concluded that it was reasonably likely that the violation would result in a
permanently disabling injury, that the violation was significant and substantial, that one person
was affected and that the violation was due to the operator's high negligence. A civil penalty of
$259.00 is proposed.
The Violation
Respondent's defense to this alleged violation is identical to its defense to Citation No.
7896146, i.e., that the guard had been removed so that the pulley could be adjusted during the
set-up process. While Ellis was of the opinion that removal of the guard on only one side of the
pulley tended to indicate that adjustments to the pulley were not being made, he conceded that it
might be possible to adjust the pulley by removing only one guard. Tr. 119-20, 122-23.
Hamilton explained that it was difficult to access the other side of the pulley, and it was not
'improper to attempt to adjust the pulley by removing the guard on only one side. Tr. 282-83.
For the reasons discussed with respect to Citation No. 7896146, I find that the guard in
question had been removed for the purpose of making adjustments to the pulley and that
Respondent did not violate the regulation.

921

Citation No. 7896149
Citation No. 7896149 alleged a violation of30 C.F.R. § 56.14107(a), supra. The
conditions noted on the citation were:
The v-belt drive on the oversize belt bead pulley was not guarded on the backside.
The v-belt was approximately 18 inches from the end of the catwalk. A person
could reach and contact the pinch points.
Ellis concluded that it was unlikely that the violation would result in an injury causing
lost workdays or restricted duty, that the violation was not significant and substantial, that one
person was affected and that the violation was due to the operator's moderate negligence. A
civil penalty of $55.00 is proposed.
The Violation
The "oversize belt" transports material that has been screened out as being too large back
to the crusher for reprocessing. A catwalk runs along the belt up to the v-belt drive pulley which
is some 15 feet above ground level. The pulley is located approximately two feet beyond the end
of the catwalk. It was guarded on one side, but the side nearest the conveyor belt was not
guarded. Ellis estimated the distance from the end of the catwalk to the v-belt pulley to be about
18 inches and determined that it was possible for someone standing at the end of the catwalk to
reach outward and down to the pinch point, i.e., where the belt engaged the pulley. He concluded
that a laceration, fracture, dislocation or amputation of a finger might result, but that an injury
was unlikely because the area was accessed only once per week and a miner would have to reach
out to contact the pinch point to sustain an injury. Tr. 131-34; ex. P-6.
Ellis admitted that this condition had likely existed since the plant was in operation, and
he conceded that he had inspected the plant, and that specific condition, on three previous
occasions and had not issued a citation. Tr. 135, 138. Nor was he aware of any citation issued
for that condition by other .MSHA inspectors. When the plant was first set up after it was
acquired several years earlier, Hamilton requested that MSHA conduct a "courtesy inspection,"
wherein MSHA inspects the equipment, noting any potential violations, or other matters of
i.nterest, but does not issue citations or take enforcement action. This condition was not
identified as a deficiency during that inspection. Nor was the condition cited during any other
formal inspection by MSHA over the 5-8 years that the equipment had been operated in its
present configuration. Tr. 284-86.
In construing an analogous standard2 in Thompson Bros. Coal Co., 6 FMSHRC 2094,

2

30 C.F.R. § 77.400
(a) Gears; sprockets; chains; drive, head, tail and takeup pulleys; flywheels;
couplings; shafts; sawblades; fan inlets; and similar exposed moving machine
922

2097 (Sept. 1984), t4e Commission stated:
We find that the most logical construction of the standard is that it imports the
concepts of reasonable possibility of contact and injury, including contact
stemming from inadvertent stumbling or falling, momentary inattention, or
ordinary human carelessness. In related contexts, we have emphasized that the
constructions of mandatory safety standards involving miners' behavior cannot
ignore the vagaries of human conduct. See, e.g., Great 1festern Electric, 5
FMSHRC 840, 842(May1983); Lone Star Industries, Inc., 3 FMSHRC 2526,
2531 (Nov. 1981 ). Applying this test requires taking into consideration all
relevant exposure and injury variables, e.g., accessibility of the machine parts,
work areas, ingress and egress, work duties, and as noted, the vagaries of human
conduct. Under this approach, citations for inadequate guarding will be resolved
on a case-by-[case] basis.
The potential hazard at issue here was 15 feet above ground and was not located near or
adjacent to any work area. There was no realistic possibility of inadvertent contact. As Ellis
testified, "[i]t is not something that [a miner] would accidently fall into contact with." Tr. 133.
A miner would likely be in the area about once per week. However, the evidence reflects that the
catwalk was used only to change the belt or service the pulley. In either case, Hamilton testified,
the belt drive would be shut off and locked out. Tr. 285-87. Numerous MSHA inspectors,
including Ellis, had inspected that condition on prior occasions and determined that the
regulation did not require a guard to be installed on that side of the belt drive.
Considering all of the factors discussed in Thompson Bros., I find that the absence of a
guard on the conveyor-side of the v-belt drive was not a violation of the regulation. The virtual
inaccessibility of the pinch point, and the fact that the belt drive would typically not be operating
during the limited time that a miner would be at the end of the catwalk reduce the likelihood of
injury well below the "reasonably possible" benchmark.
The Secretary introduced an excerpt from a publication identified as "the guarding
handbook," presumably an MSHA guideline on guarding, indicating that "Where contact is
possible from both sides, the belts and pulleys must be totally enclosed." Tr. 129-30; ex. P-7.
An illustration depicts av-belt drive that is at ground level with a worker servicing machinery in
proximity to the unguarded side of the belt drive. Here, the belt drive was located approximately
15 feet in the air and was accessible only by a catwalk that ended approximately two feet from
the drive. There is no evidence that reaching near the unguarded side of the drive was necessary
to perform servicing and, in any event, the drive would not be operating when service was
performed. While it is feasible that a person could lean over or through the railing of the catwalk
and reach to the pinch point, there is nothing in the record to indicate that there is even a remote

parts which may be contacted by persons, and which may cause injury to persons
shall be guarded.
923

possibility that that would occur. 3
Citation No. 7896152
Citation No. 7896152 alleged a violation of 30 C.F.R. § 56.14107(a), supra. The
conditions noted on the citation were:
The head pulley on the stacker belt was not guarded. The head pulley was
approximately 18 inches from the end of the catwalk. A person could reach and
contact the pinch point.
Ellis concluded that it was unlikely that the violation would result in an injury causing
lost work days or restricted duty, that the violation was not significant and substantial, that one
person was affected and that the violation was due to the operator's moderate negligence. A
civil penalty of $55.00 is proposed.
The Violation
This alleged violation presents issues nearly identical to those presented with respect to
Citation No. 7896149. Tr. 152. The condition cited as hazardous was inaccessible from the
ground and was not located near or adjacent to any work area. A miner would have to reach
from the end of the catwalk to contact the pinch point of the pulley. Tr. 146-47. There was
virtually no possibility of inadvertent contact. The belt would generally not be operating during
the limited time that a miner would be on the catwalk. Other MSHA inspectors, including Ellis,
had inspected the condition on prior occasions and determined that the regulation did not require
installation of a guard. For the reasons discussed with respect to Citation No. 7896149, I find
that Respondent did not violate the regulation, as alleged.
Citation No. 7896153
Citation No. 7896153 a11eged a violation of30 C.F.R. § 56.11001, which requires that
"Safe means of access shall be provided and maintained to all working places." The conditions
noted on the citation were:
The third step, top step, going to the oversize belt catwalk was broken and laying
at approximately a 45 degree angle. A person could slip and fall and contact the

3

Respondent did not specifically argue that enforcement of the regulation, as
proposed by the Secretary, would contravene the fair notice concept of due process. MSHA's
failure to identify the need for a guard during the courtesy inspection and numerous subsequent
regular inspections could well give rise to a due process defense. See Lodestar Energy, Inc.,
24 FMSHRC 689, 694 (July 2002); Island Creek Coal Co., 20 FMSHRC 14, 24 (Jan 1998);
Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986).
924

ground approximately 3 feet [below], or could fall and contact the unguarded
finned tail pulley on the oversize belt.
Ellis concluded that it was reasonably likely that the violation would result in a
permanently disabling injury, that the violation was significant and substantial, that one person
was affected and that the violation was due to the operator's moderate negligence. A civil
penalty of $184.00 is proposed.
The Violation
The lower end of the catwalk running along the oversize belt, approximately 3-4 feet
above ground level, is accessed by a set of ladder-like steps, the top of which is attached to the
catwalk by hooks. The angle of the ladder, and the treads of the steps, is adjusted by blocking at
the bottoms of the side rails. The ladder is depicted in photographs included in Exhibits P-4 and
P-9. Whether the step in question, the top step, was welded in place or loose, is disputed. Tr.
165, 280.
Respondent suggested that the angle of the step would have been corrected by final
adjustments before operations commenced. Tr. 279-80. However, it appears that the lower steps
are nearly horizontal, or at a mild slope, similar to that of the catwalk. The top step is at a
significantly greater angle, and the hazard presented by it would not have been alleviated by an
adjustment to the slope of the ladder. It is also apparent that the steps were used by miners while
the plant was being operated during the start-up procedure, as belts were adjusted and other tasks
performed. Tr. 226.
Regardless of the ladder's design or whether the top step was securely welded, it was
tilted at approximately a 45 degree angle and presented an obvious slip and fall hazard to any
miner accessing the catwalk. I find that the condition violated the regulation and I agree with
Ellis' determinations that the condition was the result of the operator's moderate negligence, and
that one miner was affected.
Significant & Substantial
Ellis testified that, in addition to typical injuries that might result from a fall, a miner
might also encounter the inadequately guarded tail pulley of the oversize belt and suffer a severe
injury as described in the discussion of Citation No. 7896147. However, as noted in that
discussion, the oversize belt was not typically running while a miner would access the catwalk to
service the head pulley or replace the belt. Consequently, there was little risk of a miner falling
and encountering an operating tail pulley. Ellis testified that if the risk of severe injury from the
tail pulley were eliminated, an injury caused by the violation would most likely result in lost
work days or restricted duty, and maintained that the violation would still be S&S.
I disagree. The ladder was narrow, relatively short, extending only 3-4 feet up to the
925

catwalk, and had railings on both sides. While the violation presented a reasonable likelihood
that an injury would occur, the probability of a serious injury occurring as a result of the violation
was too remote to render the violation S&S. I find that any injury would likely have resulted in
no lost work days.
Citation No. 7896157
Citation No. 7896157 alleged a violation of 30 C.F.R. § 56.18002(b), which requires that
"A record that such examinations [of working places] were conducted shall be kept by the
operator for a period of one year, and shall be made available for review by the Secretary or his
authorized representative." The conditions noted on the citation were:
A record that each work place is being examined at least once each shift for
conditions that may adversely affect safety and health is not being kept. This is
evidenced by the numerous citations written for conditions that would adversely
affect the safety of the miners.
Ellis concluded that it was reasonably likely that the violation would result in a
permanently disabling injury, that the violation was significant and substantial, that one person
was affected and that the violation was due to the operator's high negligence. A civil penalty of
$259.00 is proposed.
The Violation
When nothing was produced in response to his request for workplace examination
records, Ellis issued the citation. At the time, he was under the impression that the plant had
been operating for production purposes for two months and that workplace examinations had not
been conducted. Tr. 176. He candidly admitted, however, that Respondent's employees may not
have understood what he had asked for, especially in light of the communication difficulty. Tr.
184-85.
Respondent introduced evidence that records of workplace examinations had been kept
for January through June of2000. Ex. R-4. Presumably, those records were available and would
have been produced in response to Ellis' request, if it bad been understood. It appears that
Respondent was performing workplace examinations and keeping a record of them during the
time that the plant was in operation at the Brackettville site. However, such examinations are to
be performed, and records kept, for each shift that a miner is working, regardless of whether the
plant is being operated. Tr. 182. Consequently, records of workplace examinations should have
been kept for each day that miners were engaged in setting up the plant at the Del Rio site. It
appears that no such records were kept. There were no work place examination records for July
or August included in Exhibit R-4. When asked why there were no records for July or August,
Vicente Guerrero explained that work was not performed at the plant all the time, and that he
"now" keeps a record reflecting "no work" when they are not at the plant. Tr. 237. While his

926

response does not directly address the status of records for days when men were at the plant
engaged in the set-up process, he made no claim that records for the July-August period existed,
and Respondent introduced no evidence of the existence of such records.
Respondent was required to maintain work place examination records for each day that
miners worked at the Del Rio site, setting up the crusher, screens and conveyors. I find that no
records were kept for those days and that the regulation was violated.
Significant and Substantial
Ellis' S&S determination was based upon his mistaken belief that the plant had been
operated for two months, during which miners were exposed to numerous serious safety hazards.
Tr. 174, 184-85. As noted above, the plant was not operated for production purposes prior to the
inspection. The plant, or portions of it, were operated only for short periods on intermittent days
while it was being set up. In addition, many of the alleged violations that Ellis determined to be
S&S were eventually determined to be less serious. Of the 15 citations originally at issue in this
proceeding, nine were alleged to have been S&S. Of the eight other S&S violations, the
Secretary vacated one citation and agreed to modify two others to non-S&S violations, and two
citations are vacated and one modified to non-S&S by this Decision. One of the remaining S&S
violations had nothing to do with work place examinations. 4 Consequently, only one violation
that had relevance to records of work place examinations actually posed a risk of serious injury to
ammer.
I find that the violation was not S&S and was unlikely to result in an injury.

Citation No. 7896159
Citation No. 7896159 alleged a violation of30 C.F.R. § 56.12028, which requires that:
Continuity and resistence of grounding systems shall be tested immediately after
installation, repair, and modification; and annually thereafter. A record of the
resistence measured during the most recent tests shall be made available on a
request by the Secretary or his duly authorized representative."
The conditions noted on the citation were:
There is no record that a test has been done of the continuity and resistence of the
grounding system since the plant was moved from Brackettville approximately
two months ago.

4

Respondent withdrew its contest to Citation No. 7896150, which charged an S&S
violation for the failure of two employees to wear protective footwear.
927

Ellis concluded that it was unlikely that the violation would result in an injury that would
be fatal, that the violation was not significant and substantial, that one person was affected and
that the violation was due to the operator's high negligence. A civil penalty of $55.00 is
proposed.
The Violation
Ellis testified that he determined that the regulation had been violated because no record
of continuity and resistence testing was produced in response to his request. He admitted,
however, that it was likely that Respondent's employees were not familiar with the test or records
associated with it and did not understand what he had asked for. Tr. 192-94. At the hearing,
Respondent produced a record of testing that had purportedly been conducted on the grounding
system on August 15, 2000. Ex. R-7. That record, written on a piece of cardboard, purports to
show a resistence of one ohm or less in circuits connecting 14 motors and other electrical
devices. The Secretary appears to concede that the record existed at the time of the inspection,
was not produced due to the communication difficulty noted above, and would not pursue this
alleged violation if the record satisfied the regulatory requirement.
The Secretary contends that the record does not satisfy the regulation because it is a
record only of a continuity test between the plant's various electrical devices and the main
grounding electrode. The resistence test required by the regulation is considerably more involved
and is intended to demonstrate that the grounding electrode, itself, is effectively in contact with
the ground, i.e., that there is a low resistence in the connection of the grounding electrode to the
earth. Respondent argues that Ellis was merely speculating about the meaning of its record, and
that the last entry shows the results of the ground earth resistence test, and reads "motor loop
grounded." Tr. 292.
A proper resistence test of the ground-to-earth connection, as described by Ellis, involves
driving metal rods at equal intervals from the grounding electrode and measuring the resistence
between the various rods and the grounding electrode. The resistence at 62.5% of the longest
distance should be less than five ohms. Tr. 202, 21 1. The entry relied upon by Respondent does
not appear to reflect the results of such a test. Rather, it reflects only the results of continuity
tests showing low resistence between the various electrical devices and the grounding electrode.
I find that the record maintained by Respondent of electrical testing done on August 15,
2000, did not include a record of testing the resistence of the grounding system, and that the
regulation was violated. I agree with Ellis' assessment of the gravity and negligence factors.
The Appropriate Civil Penalties
Hamilton Pipeline had only two non-S&S assessed violations in the two year period
preceding August 22, 2000. Respondent does not contend that imposition of the proposed
penalties would threaten its ability to remain in business, and it is not disputed that Respondent
928

demonstrated good faith in achieving compliance with the regulations. The gravity and
negligence assessments with respect to each violation are discussed above.
Respondent does contend that no penalty can be imposed because the Secretary failed to
introduce evidence on one of the factors required to be taken into account in the assessment of
any civil penalty - " the appropriateness of the penalty to the size of the business of the operator
charged." 30 U.S.C. § 820(i). However, the record does contain evidence of the size of the mine
and the operator. The Del Rio plant is operated intermittently, and on days that it is operated,
only two employees work for one shift. Ex. P-2. Respondent also operates one other crusher and
its employees work at different sites, depending upon product demand. Tr. 221, 247-48, 304.
Respondent clearly falls into the category of a small operator, the most beneficial category for
purposes of penalty assessment.
Citation No. 7896147 is affirmed as a significant and substantial violation. The Secretary
proposes a penalty of $184.00. Upon consideration of the factors itemized in section 1 lO(i) of
the Act, I impose a penalty of $184.00.
Citation No. 7896153 is affirmed. However, the violation is found not to be significant
and substantial. Rather, the violation is found to be reasonably likely to result in an injury
resulting in no lost work days. A civil penalty of $184.00 is proposed by the Secretary. I impose
a penalty in the amount of $90.00, upon consideration of the factors enumerated in section 11 O(i)
of the Act.
Citation No. 7896157 is affirmed. However, the violation is found not to be significant
and substantial. Rather, the violation is found to be unlikely to result in an injury. A civil
penalty of$259.00 is proposed by the Secretary. I impose a penalty in the amount of $55.00,
upon consideration of the factors enumerated in section 11 O(i) of the Act.
Citation No. 7896159 is affirmed in all respects. The Secretary proposes a penalty of
$55.00. Upon consideration of the factors itemized in section l lO(i) of the Act, I impose a
penalty of$55.00.
The Settlement
At the commencement of the hearing, the parties announced that they had negotiated an
agreed resolution of two of the citations and, by motion, sought approval of the settlement
agreement. The Secretary agreed to modify Citation Nos. 7896154 and 7896155 to specify that
an injury was unlikely to occur, that the violations were not significant and substantial and that
the violations were the result of the operator's moderate negligence. It is proposed that the total
penalty for those violations be reduced from $455.00 to $110.00. I have considered the
representations and evidence submitted and conclude that the proffered settlement is appropriate
under the criteria set forth in section 11 O(i) of the Act.

929

ORDER
As to the citations vacated by the Secretary, Citation Nos. 7896151 and 7896158, the
petition is DISMISSED.
As to the citations that the parties have agreed to settle, Citation Nos. 7896154 and
7896155, the motion to approve settlement is GRANTED, and Respondent is directed to pay a
civil penalty of $110.00 within 45 days.
The citations that Respondent no longer contests, Citation Nos. 7896145, 7896150 and
7896156, are AFFIRMED, and Respondent is directed to pay a civil penalty of $306.00 within
45 days.
Citation Nos. 7896146, 7896148, 7896149 and 7896152 are hereby VACATED, and the
petition as to them is DISMISSED.
Citation Nos. 7896147 and 7896159 are AFFIRMED, and Citation Nos . .7896153 and
7896157 are AFFIRMED, as modified, and Respondent is directed to pay a civil penalty of
$384.00 within 45 days.

tlf~~~-...;:;:: MichaeJ.,E. Zielinski
Admiriistrative Law Judge

Distribution:
Christopher V. Grier, Esq., Office of the Solicitor, U.S. Department of Labor, 525 South Griffin
St., Suite 501, Dallas, TX 75202 (Certified Mail)
William H. Sommers, Esq., The Gardner Law Firm, 745 E. Mulberry Ave., Suite 100,
San Antonio, TX 78212 (Certified Mail)
/mh

930

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

October 18, 2002
UNITED MINE WORKERS OF AMERICA,
LOCAL 2368, DISTRICT 20,
on behalf of miners,
Applicant

COMPENSATION PROCEEDING
Docket No. SE 2002-22-C

v.
JIM WALTER RESOURCES, INC.,
Respondent

No. 5 Mine
Mine ID 01-01322

DECISION
Appearances: Darryl Dewberry, United Mine Workers of America, District 20,
Birmingham, Alabama, and Joyce A. Hanula, Esq., United Mine
Workers of America, Fairfax, Virginia (on the brief), on behalf of
the Applicant;
David M. Smith, Esq. and William M. Campbell, Esq., Maynard,
Cooper & Gale, P.C. Birmingham, Alabama, and Harold D. Rice, Esq.
Jim Walter Resources, Inc., Brookwood, Alabama, on behalf of the Respondent.
Before:

Judge Melick

This case is before me upon an Application for Compensation filed by the United Mine
Workers of America, Local 2368, District 20 (UMWA), pursuant to Section 111 of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994), the "Act" seeking
compensation from Jim Walter Resources Inc. (JWR) for miners it represents who were idled
following several explosions at JWR's No. 5 Mine on September 23, 2001. 1
It is undisputed that on September 23, 2001, at approximately 5:30 p.m., a portion of the
roof in the No. 4 section at JWR's No. 5 Mine fell, followed by an explosion. At approximately
6:15 p.m., there was a second explosion and all miners who had not already been told to do so
were told to evacuate the mine. Thirteen miners died and a number of others suffered injuries as
a result of the explosions. At approximately 6:05 p.m. on that date a JWR employee contacted
Department of Labor, Mine Safety and Health Administration (MSHA) field supervisor, Charles

Section 111 of the Act provides in relevant part that if a mine or area of a mine is
"closed by an order issued under Section 103 ... [and] such order is not terminated prior to the
next working shift, all miners on that shift who are idled by such order shall be entitled to full
compensation by the operator at their regular rates of pay for the period they are idled, but for not
more than four hours of such shift."
931

Terry Langley, and informed him of the first explosion. Mr. Langley then called the mine and
spoke with Harry House, a salaried JWR employee, who confirmed that there had been an
ignition or explosion on either the No. 4 or the No. 6 section of the mine. Around 7 p.m., JWR
mine officials decided to close the mine and, beginning around 7:30 p.m., JWR employee
Rodney McMinn began notifying miners on later shifts that the mine was closed and not to report
for work.
A team ofMSHA inspectors arrived at the mine around 7:15 p.m. and, at 8:15 p.m.,
MSHA inspector Edward Nicholson issued Order No. 767687 pursuant to Section 103(k) of the
Act. 2 The order stated that "a non-fatal, injury explosion has occurred on the No. 4 section, this
being issued to protect the miners until and [sic] investigation is completed." The order was
initially limited to the No. 4 section but was modified at 8:58 p.m., extending it to the entire No.
5 mine. The order was terminated on June 11, 2002.
In this case the UMWA seeks, pursuant to Section 111 of the Act, four hours of
compensation for the miners who were scheduled to work underground on the "owl" shift (11
p.m., September 23, 2001, to 7 a.m., September 24, 2001). JWR argues that the miners are not
entitled to "Section 111" compensation based on the Commission's decision in Local Union
1261, District 22, UMWA v. Consolidation Coal Company, 11FMSHRC1609(September1989)
ajf'd, 917 F.2d, 42 (D.C. Cir. 1990). As noted, Section 111 of the Act provides that if a mine or
area of a mine is "closed by an order issued under Section 103 . .. [and] such order is not
terminated prior to th~ next working shift, all miners on that shift who are idled by such order
shall be entitled to full compensation by the operator at their regular rates of pay for the period
they are idled, but for not more than four hours of such shift." In the Local Union 1261 case the
Commission held, however, that since the mine operator in that case had voluntarily withdrawn
all miners for their safety before the issuance of the withdrawal order and since the operator
advised miners on later shifts that the mine was "idle until further notice"none of those for whom
compensation was claimed were on "the next working shift." The Commission accordingly held
that the miners in that case were not entitled to compensation.

The rationale for this holding was stated by the Commission therein as follows:
Here, the record shows immediate action on the part of a mine operator to
remove all afternoon shift employees from the mine because of rising gas levels -

2

Section 103(k) of the Act provides as follows:

In the event of any accident occurring in a coal or other mine, an authorized
representative of the Secretary, when present may issue such orders as he deems appropriate to
ensure the safety of any person in the coal or other mine, and the operator of such mine shall
obtain the approval of such representative, in consultation with appropriate state representatives,
when feasible, of any plan to recover any person in such mine or to recover the coal or other
mine or return to the areas of such mine to normal.
932

- clearly a threat to the health and safety of the miners. The wisdom of this action
was attested by the action of MSHA inspectors who, after being summoned by the
operator, issued a control order on the following morning, officially closing the
mine and thereby confirming the evacuation order issued during the previous
evening by the mine operator. Thus, apart from the fact that no miners were
present in the mine when the MSHA closure order was issued, it is apparent that
the safety first edict of section 2 was observed conscientiously by the mine
operator here and that it would be a departure from the clear intent and purpose of
the Mine Act to penalize the operator for voluntarily idling miners for their own
protection. To impose such liability could conceivably encourage less
conscientious operators in similar circumstances to continue production, at risk to
the miners, until the MSHA inspector arrived to issue a control order idling the
miners. We do not believe that the Mine Act was intended to stifle such safety
conscious actions by operators, as Consol took here.
The purpose and scope of shift compensation can also be determined by
another important concern expressed by Congress in adopting section 111 in its
specific terms: insulating the mine inspector from any repercussions that might
arise from his withdrawing miners and temporarily depriving them of their
livelihood. A key passage from the Report of the Senate Committee setting forth
the rationale for the miners' compensation provision concludes by stating, "[t]his
provision will also remove any possible inhibition of the inspector in the issuance
of closure orders." Leg. Hist. At 635. This convinces us that Congress intended
shift compensation rights to arise only when the physical removal of miners is
effectuated by the inspector himself so that the inspector in carrying out his
enforcement duties is not inhibited or distracted by workplace considerations
wholly extraneous to the protection of miners. Here, however, the operator
unilaterally and voluntarily withdrew its own miners and notified all shifts that the
mine would be closed until further notice. Obviously, under such circumstances,
no inhibitions would have attached to the inspector's enforcement actions taken
twelve house later when the mine was empty. The need to insulate the inspector
from any purported miner animus had by then evaporated.
The UMWA notes, however, that the Commission, in Local Union 1261, also observed
that the case did not involve an attempt to avoid Section 111 liability by withdrawing miners in
anticipation of withdrawal action by the Secretary and suggested a different result if that were the
case. Local Union 1261, 1614 n.6. The issue before me then is whether the owl shift was
cancelled and the mine closed down in this case for the safety of the miners before the issuance
of the withdrawal order or whether the closure of the mine on the owl shift was only an attempt
to avoid "Section 111" liability by closing the mine in anticipation of withdrawal action by the
Secretary. Based on the uncontradicted and credible testimony of mine manager Jesse Cooley, it
is abundantly clear that his decision around 7 p.m. on September 23, 2001, to close the mine and
notify all miners on subsequent shifts that the mine would be closed until further notice, was

933

based only upon consideration for the safety of the miners.
On September 23, 2001, Cooley was mine manager of the No. 5 mine and had been for a
total of about 8 years. He had 3 5 years experience in the mining industry and 29 years of that
experience was in a supervisory capacity for JWR. Cooley retired in March 2002. Cooley
testified, without contradiction, that he was the person who made the decision around 7 p.m. on
September 23, 2001, to withdraw all miners (except for the properly equipped and trained rescue
teams) and to close the underground area of the mine. At that time he also made the decision to
cancel the 11 p.m. to 7 a.m. owl shift. He instructed other mine officials to see that the
underground owl shift miners were notified not to report to work. Beginning around 7:30 p.m.
miners scheduled to work on subsequent shifts were notified that the mine would be closed until
further notice.
Cooley testified that, after he leamed of the explosion on his cell phone around 5:45 p.m.,
he immediately reported to the mine. He arrived around 6:30 p.m. Survivors were then still
exiting the mine and were being taken to ambulances. They had bruises and abrasions and
appeared to be in shock. He was able to confirm that there indeed had been an explosion in the
No. 4 and/or No. 6 sections destroying stoppings and other ventilation controls to such an extent
that mining could not, in any event, safely be continued. Fan chart readings confirmed that the
ventilation controls had been destroyed. Around this time he learned of the second explosion and
that 13 miners were unaccounted for. Cooley also learned that all of the carbon monoxide (CO)
monitors had been destroyed in the Nos. 4 and 6 sections and that other CO monitors in the mine
showed such high levels of the gas that only specially equipped and trained rescue team members
could enter the mine.3 Based on reports from some of the exiting survivors, Cooley also believed
that a fire was continuing to bum in the mine. Cooley was also told by other observers that, at
the time of the second explosion, a fireball and smoke came out of the No. 59 intake shaft.
Based on this information, Cooley determined that the underground mine could only be entered
by properly equipped and trained mine rescue personnel. Accordingly the underground mine was
closed to all but such persons. Cooley also detenpined around 7 p.m. on September 23, that it
would be unsafe to allow the owl shift miners to proceed underground and that such shift would
therefore have to be canceled. He accordingly directed that the owl shift miners be telephoned
and told not to report to work. Cooley also credibly testified that at no time before he made these
decisions did it ever "cross his mind" to close down the owl shift to avoid paying compensation
or because a withdrawal order might be issued by MSHA.
David Thrasher, then deputy mine manager, corroborated Cooley regarding the conditions
extant before Cooley announced his decision to shut down the owl shift. He recalls that there
were reports of flames coming out of the shaft and that major ventilation controls had been
damaged. Thrasher further testified that at no time before Cooley made the decision to shut

3

Administrative notice may be taken that carbon monoxide is a colorless, odorless,
very toxic gas which is formed during fires and explosions. See Dictionary of Mining, Mineral,
and Related Terms, Second Edition, American Geological Institute, 1997.
934

down the owl shift was there any discussion with Cooley about the possibility of a "K-order" or
about compensation for the owl shift miners.
Within this framework of credible and uncontradicted evidence it is clear that mine
manager Cooley decided, around 7 p.m. on September 23, 2001, to withdraw the underground
miners on the evening shift and to shut down the owl shift based on the safety of the miners and
without consideration that, by closing down the owl shift, he might very well avoid payment of
"Section 111" compensation to those miners. Therefore, and in accordance with the Local 1261
decision, the owl shift miners are not entitled to Section 111 compensation. This finding is
entirely consistent with the rationale cited in Local 1261 and previously quoted herein.

In reaching the conclusions herein, I have not disregarded the UMWA's argument that
JWR management, including Mr. Cooley, were aware that it was MSHA's practice at this mine
to issue "Section 103(k)" control orders following mine ignitions. The suggestion is that Cooley
therefore would have anticipated the issuance of a 103(k) order and therefore shut down the owl
shift, not for safety reasons, but only to avoid to paying Section 111 compensation. In light of
Cooley's credible and uncontradicted testimony and the overwhelming evidence that, following
two mine explosions, the destruction of ventilation controls, the presence of high levels of toxic
carbon monoxide gas, the fact that the 13 underground miners were still missing, and evidence of
fire continuing to burn in the mine, I find little difficulty in concluding that Cooley's decision
was indeed dictated by the recognition that it would clearly have been unsafe to allow the owl
shift miners to proceed underground.
The UMWA also attempts to distinguish Local 1261 by arguing that JWR's closure of the
No. 5 Mine was not "voluntary" at all but rather that JWR had "no option" but to cease coal
production once the explosions occurred. The UMW A misconstrues Local 1261 however, in that
the critical distinction in that case was whether the decision to close the mine was made by the
mine operator on his own for the safety of miners before any withdrawal order compelled such
closure.
The UMWA also argues that the instant case is distinguishable because the explosions
and injuries had already occurred. This argument fails however to account for the continuing
hazardous conditions and the fact that additional injuries and fatalities would likely have
occurred if the mine were not closed. In addition, the likelihood, or even certainty that a 103(k)
control order would be issued following the two explosions only makes the Commission's
rationale in Local 1261 even more persuasive. The more dangerous the mine conditions, the
more persuasive is the rationale for prompt withdrawal action by the mine operator.
Under all the circumstances this application for compensation must be denied.

935

ORDER
Docket No. SE 2002-22-C is hereby dismissed.

A 1
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;C·· , ~. \1 vtv 'v\v ~'<;Jary Melick\
Administrative Law Judge
Distribution: (Certified Mail)
Joyce Hanula, Esq., United Mine Workers of America, 8315 Lee Highway, Fairfax, VA 22031
Danyl Dewberry, United Mine Workers of America, 1200 4 1h Avenue South, Birmingham, AL
35233
David M. Smith, Esq., William L. Campbell, Jr., Esq., Maynard, Cooper & Gale, P.C., 1901
Sixth Avenue North, 2400 AmSouth/Harbert Plaza, Birmingham, AL 35203
Harold Rice, Esq., Jim Walter Resources, Inc., P.O. Box 133, Brookwood, AL 35444
\mca

936

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

October 31 , 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMTNISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. SE 2002-86-M
A. C. No. 01-01401-04392 A

WILLIAM EUGENE AVERETTE, employed by
JIM WALTER RESOURCES, INC.,
Respondent

No. 7 Mine

DECISION
Appearances:

Keith E. Bell, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, on behalf of Petitioner;
William L. Campbell, Jr., Esq., & David M. Smith, Esq., Maynard,
Cooper & Gale, P.C., Birmingham, Alabama, on behalf of Respondent.

Before:

Judge Melick

This case is before me upon the Petition for Civil Penalty filed by the Secretary of Labor
pursuant to Sections 105(d) and 110(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. , (1994) the "Act" charging William E. Averette, as an agent of corporate
mine operator Jim Walter Resources, Inc., (JWR) with "knowingly authorizing, ordering, or
carrying out" a violation on July 11 , 2000, of the mandatory standard at 30 C.F.R. § 75.400. The
general issue before me is whether Mr. Averette, indeed, knowingly authorized, ordered or
carried out the noted violation and, if so, what is the appropriate civil penalty to be assessed
considering the relevant criteria under Section 11 O(i) of the Act.
Section l IO(c) provides that whenever a corporate operator violates a mandatory health or
safety standard, an agent of the corporate operator who knowingly authorized, ordered, or carried
out such violation shall be subject to an individual civil penalty. The proper legal inquiry for
determining liability under section 1 lO(c) is whether the corporate agent knew, or had reason to
know, of a violative condition. Kenny Richardson, 3 FMSHRC 8, 16 (January 1982), aff'd on
other grounds, 689 F.2d 632 (61h Cir. 1982), cert. denied, 461 U.S. 928 (1983). Accord, Freeman
United Coal Mining Co., v. FMSHRC, 108 F.3d 358, 362-64 (D.C. Cir. 1997). To establish
Section 1IO(c) liability, the Secretary must prove only that an individual knowingly acted, not
that the individual knowingly violated the law. Warren Steen Constr. Inc., 14 FMSHRC 1125,
1131 (July 1992), citing United States v. International Minerals & Chem. Corp., 402 U .S. 558,
563 (1971 ). An individual acts knowingly when he is "in a position to protect employee safety
and health [and] fails to act on the basis of information that gives him knowledge or reason to
937

know of the existence of a violative condition." Kenny Richardson, 3 FMSHRC at 16. Section
110(c) liability is predicated on aggravated conduct constituting more than ordinary negligence.
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (August 1992).
It is undisputed that, during relevant times, Mr. Averette was an agent of corporate
operator JWR. The underlying violation as set forth in Citation No. 7674474, is also
undisputed. That citation, which was issued at 9:45 a.m., on July 11, 2000, charges as follows:

Float coal dust, including float coal dust deposited on rock dusted
surfaces, was present, in a very substantial amount, in the No. 1 Longwall section
tailgate entry. The float coal dust was deposited on the roof, ribs, floor and ribs
for approximately 200 feet outby the longwall face, and for an undetermined
distance inby the longwall face into the gob area. The floor, ribs and timbers were
black throughout the described area and no apparent effort had been made to
apply rock dust after production had started on the owl shift, 7-09-2000.
The critical issue remaining for disposition then, is whether Averette, as an agent of JWR,
knew or had reason to know of the violative condition and failed to act to correct the condition
before it was cited. Kenneth Cannon, an inside laborer for JWR, with 22 years of mining
experience, testified that on July 11, 2000, he was acting as the alternate union safety
committeeman accompanying Inspector Greer of the Department of Labor's Mine Safety and
Health Administration (MSHA) on the 7 a.m. to 3 p.m. day shift. At the tailgate area of the No.
1 Longwall, at around 9:50 a.m., he observed that for over 200 feet the tailgate area was dark
black in color from rib to rib. Based on this evidence and Cannon's experience, he opined that
no rock dust had been applied to the area. In addition, neither he nor the inspector could find any
dates, times or initials evidencing the presence of a preshift mine examination in that area for the
preceding owl shift.
Cannon subsequently came upon the pod duster (a mechanical rock duster) and observed
that although its unit with its air compressor were working, the lines were leaking so severely
that no rock dust was reaching the tailgate. Cannon also observed that there were no piles of
rock dust at the joints where it had been leaking before the inspector had instructed that it be
turned on, - - the inference being that the pod duster was not capable of being used and had not
been used. Cannon also observed that there were ignition sources at the tailgate area, including
an electrical motor and lights along the face. Based on his experience Cannon opined, from the
conditions of the tailgate area, that those conditions had been there for a while.
Averette, was the "owl" shift longwall foreman on July 11, 2000, and was responsible for
conducting the preshift mine examination on that date. 1 H_e testified that he performed that

The "owl" shift began at 11 :00 p.m., on July 10, 2000, and ended at 7:00 or 8:00
a.m. on July 11, 2000. For a foreman, like Averette, the shift ordinarily begins at 10:00 p.m. and
ends around 9:00 a.m.
938

preshift exam between 5 a.m. and 6 a.m., on July 11, 2000, and reported no hazardous conditions
in the examination book. There is no dispute that his preshift exam was required to include the
cited No. 1 Longwall section tailgate entry. Averette testified that he began his preshift
examination on July 11, at 5 a.m., at the tailgate area. While acknowledging that it was common
practice to place the date, time and initials in the tailgate area following such an exam, he claims,
but without explanation, that on this occasion he placed his initials and the date and time of his
examination at the No. 134 Longwall shield located about 100 feet from the tailgate. He also
maintained that he personally rock dusted 100 feet of the tailgate area by hand while he was
conducting this preshift examination. He maintains that bags of rock dust had been placed there
and that when he left the area it was white in color. Averette also testified however that the rock
dust he used was gray in color right out of the bag, not the customary white. He claims that when
he last saw the tailgate area it was white in color and that he believed it was then properly rock
dusted.
I find the testimony of Kenneth Cannon to be credible and sufficient alone to establish
that Mr. Averette had reason to know of the cited violative condition. From this credible
evidence and the undisputed allegations in Citation No. 7674474, it is clear that substantial
amounts of float coal dust were found on the roof, ribs and floor in the No. 1 Longwall section
tailgate entry and for 200 feet outby the longwall face at the time the inspection party arrived at
that area at approximately 9:50 a.m., on July 11, 2000. I give Mr. Cannon's opinion significant
weight that, based on the amount of float coal dust, its black coloration throughout this area and
the absence of any evidence of rock dust, that the cited coal dust had indeed also existed in
violative amounts at the time Mr. Averette purportedly conducted his preshift examination at that
area around 5 a.m., on July 11, 2000. In reaching this conclusion I have not disregarded the
evidence that the longwall shear cut coal on two additional passes following Averette's purported
5 a.m. preshift examination. However, it may reasonably be inferred from the absence of any
rock dust in the cited area, that rock dust had not been applied even before these additional cuts.
I also have credibility concerns with Averette's testimony. For example, while claiming
that he had spread rock dust by hand that was gray in color, he also claimed that when he left that
area it was white in color. In addition, Averette's claims that the pod duster and its lines were
functioning are in clear contradiction to the essentially undisputed evidence that the equipment
was in fact not capable of delivering rock dust to the tailgate area because of severe leakage. The
fact that Averette placed his initials and the date and time of his purported examination some 100
feet away from the tailgate area while admitting that he ordinarily did so within the tailgate area,
also suggests guilty knowledge and an attempt to avoid responsibility for the violative coal dust.
Within this framework of evidence I find that the Secretary has met her burden of proving
that Averette knew of the existence of violative coal dust conditions at the time of his preshift
examination on the morning of July 11, 2000, and that he failed to take adequate corrective
action. Accordingly I find that the charges against Mr. Averette have been sustained.
In assessing a civil penalty under Section 11 O(i) of the Act the Commission and its judges
must consider "the operator's history of previous violation·s, the appropriateness of such penalty
939

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." With respect to individuals charged under Section 110(c) the criteria
regarding the effect and appropriateness of a penalty can be applied by analogy. Sunny Ridge
Mining Co., 19 FMSHRC 254, 272 (February 1997). In this case I find Averette's negligence to
be high as this has been established as a "knowing'., violation. The violation was of high gravity
based on the credible evidence that the subject mine was a "gassy'' mine emanating significant
amounts of methane and had a history of methane ignitions. In addition, there is undisputed
testimony establishing the existence of ignition sources in the vicinity of the cited float coal dust.
The evidence shows that should a methane ignition or explosion occur, the float coal dust could
become suspended thereby enhancing the volatility of any such explosion with the attendant
likelihood of fatalities. The Respondent produced no evidence regarding his income, support
obligations, ability to pay or the appropriateness of the penalty in light of his job responsibilities.
See Sunny Ridge at 272 and Wayne Steen, 20 FMSHRC 381, 385 (April 1998). The Commission
has previously held with respect to operators that "[i]n the absence of proof that the imposition of
authorized penalties would adversely affect [an operator's] ability to continue in business, it is
presumed that no such adverse [e]ffect would occur." Sellersburg Stone Co., 19 FMSHRC 673,
677 (April 1997); Spurlock Mining Co., 16 FMSHRC 697, 700 (April 1994). There does not
appear to be any reason that the same presumption should not apply as well to 110(c)
respondents. There is no evidence that Mr. Averette had any prior history of violations.
According to the citation, adequate rock dusting was applied to the cited area and the citation was
abated by 11: 15 a.m., on July 11, 2000. Within this framework of evidence I find that the civil
penalty of $650.00, as proposed by the Secretary, is appropriate.

ORDER
William Eugene Averette is hereby directed to pav a civil penalty of $650.00, within 40
days of the date of this decision.

,1

\

.\

L/.,
\.\ '
// t{,Nv~\-~\ ~

Distribution: (Certified Mail)

Gary Melick
Administrative Law Judge

Keith E. Bell, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22"d
Floor West, Arlington, VA 22209-3939
William L. Campbell, Jr., Esq., & David M. Smith, Esq., Maynard, Cooper & Gale, P.C., 1901
Sixth A venue North, 2400 AmSouth/Harbert Plaza, Birmingham, AL 35203
\ mca
940

ADMINISTRATIVE LAW JUDGE ORDERS

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

October 31, 2002
CONTEST PROCEEDINGS

HANSON PERMANENTE CEMENT,
Contestant

Docket No. WEST 2002-370-RM
Order No. 6333431; 3/2012002

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

Docket No. WEST 2002-317-RM
Order No. 6333432; 3/2012002
Docket No. WEST 2002-372-RM
Order No. 6333433; 3/2012002
Mine: Pennanente Plant
Mine: ID 04-04075

ORDER OF DISMISSAL
Appearances: Michael T. Heenan, Esq., Heenan, Althen & Roles LLP, Washington, D.C., for
the Contestant;
Christopher B. Wilkinson, Esq., U.S. Department of Labor, Office of the
Solicitor, San Francisco, California, for the Secretary.
Before:

Judge Weisberger

The above captioned notices of contest were scheduled for hearing on October 8 and 9,
2002. In the course of the second day of the trial, the parties engaged in extensive negotiations,
and reached a settlement resolving all issues raised by the notices of contest. Pursuant to the
settlement, contestant moved to withdraw its pleading, the Notice of Contest in Docket No.
WEST 2002-372, and based on the settlement, the motion was granted In addition, the Secretary
made a motion, which was not opposed by contestant, to dismiss Docket Nos. WEST 2002-370
and WEST 2002-371. Based on the lack of opposition, and the parties' settlement, the motion
was granted.

941

It is Ordered that Docket Nos. WEST 2002-370, WEST 2002-371 and WEST 2002-372
be Dismissed. It is further Ordered that the parties shall abide by all the terms of their
settlement.

vrarn eisberger
,· Administrative Law Judge
/

Distribution:
Michael T. Heenan, Esq., Heenan, Althen & Roles LLP, 1110 Vermont Avenue, NW, Suite 400,
Washington, DC 20005
Christopher B. Wilkinson, Esq., U.S. Department of Labor, Office of the Solicitor, 71 Stevenson
Street, Suite 1110, San Francisco, CA 94105
/sc

942

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

October 18, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 2002-269-M
A.C. No. 26-00789-05527

P AIUTE AGGREGATES INC.,
Respondent

Mine: Paiute Aggregates

ORDER DENYING RESPONDENT'S 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, 30 U.S.C. § 815(d). Respondent has moved
that the petition be dismissed on grounds that the Secretary did not notify it of the proposed civil
penalties within a reasonable time after completion of the investigation. The Secretary has
opposed the motion, relying in part on an affidavit ofMSHA's Director of Assessments
describing a number of factors that affected the processing of penalty assessments during the
relevant time period. Respondent does not claim prejudice resulting from the alleged delay. For
the reasons set forth below, Respondent's Motion to Dismiss is denied.

On February 16, 2001, a fatal accident occurred at Respondent's mine in Wadsworth,
Nevada. MSHA commenced an investigation of the accident that day. On March 20, 2001,
MSHA issued eight citations and orders, two of which are the subject of this penalty proceeding. 1
Respondent filed Notices of Contest as to the alleged violations on April 19, 2001. Those cases
were stayed, with Respondent's consent, pending the filing of civi l penalty proceedings. MSHA
issued its final investigative report on April 12, 2001. The citations and orders were transmitted
to MSHA's Special Assessments Section on May 29, 2001. A related special investigation to
determine whether enforcement proceedings would be initiated against individual agents of
Respondent pursuant to section 110(c) of the Act was completed by August 2, 2001. MSHA
issued its proposed penalty assessments for the two alleged violations at issue here on January 4,
2002.
The time consumed by MSHA in issuing the proposed assessments, over nine months

Three other alleged violations are at issue in Commission Docket No. WEST
2002-441-M. A similar motion to dismiss has been filed in that case.
943

from the completion of the initial investigation and five months after the closure of the special
investigation, was the result of a number of factors that the Secretary describes as "staffing
constraints of an Agency with too much work for too few employees." Opposition, at p. 3.
MSHA's Director of Assessments, executed an affidavit citing MSHA's policy program manual,
which specifies that penalty proposals in cases involving a fatality be issued within eighteen
months after the investigation report is issued, and .noting that the office's goal is to issue such
penalty assessments within 180 days. He explained that from March 2001 to May 2002, of the
four people employed to process all special assessment cases, one was on extended leave and
another was involved in training for much of 2001. In addition, the supervisor of the special
assessments group was heavily involved in the development ofMSHA's Standardized
Information System, a multi-year project. In calendar year 2001, the office considered 2,153
citations and orders for "routine" special assessments, 217 fatal/serious injury-related special
assessments and 204 assessments for section l lO(c) violations. In the first nine months of
calendar year 2002, 1,949 citations and orders were considered for routine special assessments,
183 fatal/serious injury-related special assessments and 158 assessments for l lO(c) violation
were considered. Over 2,500 special assessment referrals were processed in 2001 and it is
projected that 3,000 such requests will be processed in 2002.
Applicable Law
Section 105(a) of the Act, 30 U.S.C. § 815(a), provides, in pertinent part:
If, after an inspection or investigation, the Secretary issues a citation or
order under section 104 (814], he shall, within a reasonable time after the
termination of such inspection or investigation, notify the operator by certified
mail of the civil penalty proposed to be assessed ....

The Commission addressed the Secretary's obligation to issue proposed assessments in
Steele Branch Mining, 18 FMSHRC 6, 14 (Jan. 1996)2, stating that:
Section 105(a) does not establish a limitations period within which the
Secretary must issue penalty proposals. See Rhone-Poulenc of Wyoming Co.,
15 FMSHRC 2089, 2092-93 (October 1993), aff'd, 57 F.3d 982 (10th Cir. 1995);
Salt Lake County Rd. Dept., 3 FMSHRC 1714 (July 1981); and Medicine Bow
Coal Co., 4 FMSHRC 882 (May 1982). In commenting on the Secretary's
statutory responsibility to act "within a reasonable time," the key Senate
Committee that drafted the bill enacted as the Mine Act observed that "there may
be circumstances, although rare, when prompt proposal of a penalty may not be
possible, and the Committee does not expect that the failure to propose a penalty
with promptness shall vitiate any proposed penalty proceeding." S. Rep. No. 181,

2

While Steele Branch Mining was a split decision, all four Commissioners who
participated agreed on this issue.
944

95th Cong. 1st Sess. 34 ( 1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 622 (1978). Accordingly, in cases of
delay in the Secretary's notification of proposed penalties, we examine the same factors
that we consider in the closely related context of the Secretary's delay in filing his penalty
proposal with the Commission: the reason for the delay and whether the delay prejudiced
the operator.
Steele Branch Mining involved a period of 11 months between termination of the citation
and issuance of the proposed penalty assessment. The Secretary did not offer any explanation for
the time that elapsed. Nevertheless, the Commission took "official notice" of the fact that the
Secretary had an unusually high case load in 1992, and found that to be an "adequate reason for
the delay." Id. Rhone Poulenc, and Salt Lake County involved failures by the Secretary to
comply with the 45-day time limit for filing a petition for assessment of civil penalties
established by Commission Procedural Rules. 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. 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. 3 FMSHRC 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 proceedings, 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.
Analysis
The statute's term "within a reasonable time" has not been further defined by
Commission Rule. The Secretary's interpretation, as reflected in MSHA's program policy
manual, is that assessments issued within 18 months of the completion of an investigation satisfy
the "reasonable time" standard. However, the Commission, in Steele Branch Mining,
characterized as "delay" an 11 month period between termination of a citation and issuance of a
proposed penalty assessment. Here slightly more than nine months elapsed between completion
of the investigation and the assessment. While it would be difficult to describe that as a
"prompt" proposal of a penalty, it appears to fall within the range of a "reasonable time" as
required by the statute. The incident that triggered the investigation, a fatal accident, was
extremely serious, and several citations and orders were referred for special assessment. Careful
scrutiny of the facts and consideration of the factors statutorily required to be considered in the
formulation of a penalty assessment and the processing of the recommendation for final approval

945

were appropriately part of a deliberative process that consumed considerable time.3
Assuming, arguendo, that the nine month period did not satisfy the "reasonable time"
standard, the Secretary has demonstrated adequate cause for whatever portion of that period
could be characterized as delay. The special assessments office handles a considerable volume
of cases, each of which must be considered on its own merits. Four persons are employed to
process those assessments and during the pertinent time period one was on extended leave and
another spent considerable time in training. The supervisor's ability to assist was considerably
reduced by involvement in a comprehensive multi-year project. Under the circumstances,
considering the period of time involved, this justification constitutes adequate cause for any delay
beyond a reasonable time.
While claims of excessive work load have often been found to satisfy the adequate cause
requirement, the Commission has made clear that such claims will not receive blanket approval.
Steele Branch Mining, 18 FMSHRC at 14; Salt Lake County Rd. Dept., 3 FMSHRC at 1717.
The "excessive work load" argument advanced here is substantially different from that found to
have justified delays in Steele Branch and Rhone-Poulenc. In the 1991-92 time period involved
in those cases, there was an almost 300% increase in cases, coupled with an "unusually high
volume of penalty reassessments." Rhone-Poulenc, 15 FMSHRC at 2094. The increase in
special assessments during the time period pertinent here was considerably more modest,
approximately 20%. While two of the four employees assigned to the special assessments office
were unavailable for significant portions of the period, the reason for one's extended leave was
not explained and the absence of another for training purposes appears to have been a voluntary
staffing decision by MSHA. The Secretary has also not disclosed whether efforts were made to
transfer or detail other MSHA staff to remedy these staffing shortages and/or why those efforts
were unsuccessful.
The showing necessary to establish adequate cause for delay will necessarily vary
depending upon the length and circumstances of the delay. Here, I have found that the penalty
assessment was issued within a reasonable time, i.e., that there was no "delay." Alternatively, if
a portion of the period could be classified as delay, on the facts of this case, the justification
advanced by the Secretary constitutes adequate cause. A case involving egregious delay will
require a greater justification to meet the adequate cause test. As the Commission recognized in
Rhone-Poulenc, unanticipated significant increases in work load can easily overwhelm an office
whose budget is formulated years in advance. However, chronic under staffing may be the result
of deliberate choices in allocating resources and, especially if compounded by voluntary staffing
decisions, might well fail to establish adequate cause.

3

A related special investigation was completed only 5 months before the proposed
assessment was issued. The Secretary has not claimed that the assessment process was
justifiably suspended pending completion of that investigation, though it may have been
reasonable to do so.
946

Respondent makes no claim that its ability to defend the Secretary's allegations has been
prejudiced and the Secretary argues convincingly that it could not have been. Respondent was,
no doubt, involved in the investigation, and was served with the citations and orders a little over
a month after the accident occurred. The parties have engaged in discovery during the pendency
of the contest proceedings.

ORDER
On the facts of this case, I find that the proposed penalty assessments were issued within
a reasonable time after the investigation was completed. In the alternative, I find that the
Secretary has fulfilled her burden of showing adequate cause for any portion of that period that
might be characterized as delay. Respondent makes no claim of prejudice attributable to the
delay. Accordingly, Respondent's Motion to Dismiss is Denied.

Distribution:
Laura Beverage, Esq., Jackson & Kelly, PLLC, 1660 Lincoln, Suite 2710, Denver, CO 80264
Sue Gillett-Kumli, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson St.,
Suite 1110, San Francisco, CA 94105
/mh

947

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVE., N.W., Suite 9500
WASHINGTON, D.C. 20001

October 21, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of Jimmy Caudill and
and Jerry Michael Caudill,
Complainants

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

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

No. 75

ORDER DENYING SECRETARY'S MOTION
TO OPEN SEALED DOCUMENT
This case is before me on a complaint of discrimination filed by the Secretary of Labor on
behalf of Jimmy Caudill and Jerry Michael Caudill pursuant to Section 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c). The Secretary has filed a motion
seeking to open a portion of a record that was ordered sealed in another case. Respondent
opposes the motion.
The record at issue, a settlement agreement entered into by Jerry Michael Caudill and
Respondent in Commission Docket No. KENT 98-128-D, was ordered sealed by Commission
ALJ Barbour, in a May 28, 1998, Decision Approving Settlement. Sec '.Y of Labor on behalf of
Caudill v. Leeco, Inc. , 20 FMSHRC 532 (May 1998). As Respondent correctly points out, a
Commission ALJ's jurisdiction terminates when a decision has been issued. 29 C.F.R.
§ 2700.69(b). The Secretary's motion seeks relief from that final order of the Commission.
Neither Chief Judge Barbour, nor the undersigned, has jurisdiction to grant the relief requested.
Accordingly, the Secretary's Motion to Open Sealed Document is DENIED.

. Michael E. z· linski
Administr~·ve Law Judcre
202'-43-~9981
I:>
948

Distribution:
MaryBeth Bernui, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Rd., Suite B-201, Nashville, TN 37215-2862
Stephen A. Sanders, Esq., Appalachian Citizens Law Center, Inc., 207 W. Court St. Suite 202,
Prestonsburg, KY 41653-7725
Melanie J, Kilpatrick, Esq., Wyatt, Tarrant & Combs, LLP, 250 West Main Street, Suite 1700,
Lexington, KY 40507-1746
/mh

949

FEDERAL MINE SAFETY AND HEALTH REVI EW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

October 22, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 2002-441-M
A.C. No. 26-00789-05528

v.
Mine: Paiute Aggregates

PAnJTE AGGREGATES INC.,
Respondent

ORDER DENYING RESPONDENT'S MOTION TO DISMISS
This case is before me on a petition for assessment of ci vi 1penalties under section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Respondent has moved
that the petition be dismissed on grounds that the Secretary did not notify it of the proposed civil
penalties within a reasonable time after completion of the investigation. The Secretary has
opposed the motion, relying in part on an affidavit ofMSHA's Director of Assessments
describing a number of factors that affected the processing of penalty assessments during the
relevant time period. Respondent does not assert a colorable claim prejudice resulting from the
alleged delay. For the reasons set forth below, Respondent's Motion to Dismiss is denied.

On February 16, 2001, a fatal accident occurred at Respondent's mine in Wadsworth,
Nevada. MSHA commenced an investigation of.the accident that day. On March 20, 2001,
MSHA issued eight citations and orders, three of which are the subject of this penalty
proceeding. 1 Respondent filed Notices of Contest as to the alleged violations on April 19, 2001.
Those cases were stayed, with Respondent's consent, pending the filing of civil penalty
proceedings. MSHA issued its final investigative report on April 12, 2001. The citations and
orders were transmitted to MSHA's Special Assessments Section on May 29, 2001. A related
special investigation to determine whether enforcement proceedings would be initiated against
individual agents of Respondent pursuant to section l lO(c) of the Act was completed by
August 2, 2001. MSHA issued its proposed penalty assessments for the three alleged violations
at issue here on May 31, 2002.

Two other alleged violations are at issue in Commission Docket No. WEST 2002269-M. A similar motion to dismiss, filed in that case, was denied by Order dated, October 18,
2002.
950

The time consumed by MSHA in issuing the proposed assessments, over 13 months from
the completion of the initial investigation and almost 10 months after the closure of the special
investigation, was the result of a number of factors that the Secretary describes as "staffing
constraints of an Agency with too much work for too few employees." Opposition, at p. 3.
MSHA's Director of Assessments, executed an affidavit citing MSHA's policy program manual,
which specifies that penalty proposals in cases involving a fatality be issued within eighteen
months after the investigation report is issued, and noting that the office's goal is to issue such
penalty assessments within 180 days. He explained that from March 2001 to May 2002, of the
four people employed to process all special assessment cases, one was on extended leave and
another was involved in training for much of2001. In addition, the supervisor of the special
assessments group was heavily involved in the development ofMSHA's Standardized
Information System, a multi-year project. In calendar year 2001, the office considered 2,153
citations and orders for "routine" special assessments, 217 fatal/serious injury-related special
assessments and 204 assessments for section 110(c) violations. In the first nine months of
calendar year 2002, 1,949 citations and orders were considered for routine special assessments,
183 fatal/serious injury-related special assessments and 158 assessments for 1lO(c) violation
were considered. Over 2,500 special assessment referrals were processed in 2001 and it is
projected that 3,000 such requests will be processed in 2002.
Applicable Law
Section 105(a) of the Act, 30 U.S.C. § 815(a), provides, in pertinent part:
If, after an inspection or investigation, the Secretary issues a citation or
order under section 104 [814], he shall, within a reasonable time after the
termination of such inspection or investigation, notify the operator by certified
mail of the civil penalty proposed to be assessed . . . .

The Commission addressed the Secretary's obligation to issue proposed assessments in
Steele Branch Mining, 18 FMSHRC 6, 14 (Jan. 1996)2, stating that:
Section 105(a) does not establish a limitations period within which the
Secretary must issue penalty proposals. See Rhone-Poulenc of Wyoming Co.,
15 FMSHRC 2089, 2092-93 (October 1993), aff'd, 57 F.3d 982 (10th Cir. 1995);
Salt Lake County Rd. Dept., 3 FMSHRC 1714 (July 1981 ); and Medicine Bow
Coal Co., 4 FMSHRC 882 (May 1982). In commenting on the Secretary's
statutory responsibility to act "within a reasonable time," the key Senate
Committee that drafted the bill enacted as the Mine Act observed that "there may
be circumstances, although rare, when prompt proposal of a penalty may not be
possible, and the Committee does not expect that the failure to propose a penalty

2

While Steele Branch Mining was a split decision, all four Commissioners who
participated agreed on this issue.
951

with promptness shall vitiate any proposed penalty proceeding." S. Rep. No. 181,
95th Cong. 1st Sess. 34 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative History ofthe
Federal Mine Safety and Health Act of 1977, at 622 (1978). Accordingly, in cases
of delay in the Secretary's notification of proposed penalties, we examine the
same factors that we consider in the closely. related context of the Secretary's
delay in filing his penalty proposal with the Commission: the reason for the delay
and whether the delay prejudiced the operator.

Steele Branch Mining involved a period of 11 months between termination of the citation
and issuance of the proposed penalty assessment. The Secretary did not offer any explanation for
the time that elapsed. Nevertheless, the Commission took "official notice" of the fact that the
Secretary had an unusually high case load in 1992, and found that to be an "adequate reason for
the delay." Id. Rhone Poulenc, and Salt Lake County involved failures by the Secretary to
comply with the 45-day time limit for filing a petition for assessment of civil penalties
established by Commission Procedural Rules. In Salt Lake County, the Commission was critical
of the Secretary's reliance on high case loads and limited clerical help as a justification for
untimely filing. 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. 3 FMSHRC 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 proceedings, 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.
Analysis
The statute's term "within a reasonable time" has not been further defined by
Commission Rule. The Secretary's interpretation, as reflected in MSHA's program policy
manual, is that assessments issued within 18 months of the completion of an investigation satisfy
the "reasonable time" standard. However, the Commission, in Steele Branch Mining,
characterized as "delay" an 11 month period between termination of a citation and issuance of a
proposed penalty assessment. Here more than 13 months elapsed between completion of the
investigation and the assessment. Because Respondent does not make a colorable claim of
prejudice, the issue to be decided is whether the Secretary has established adequate cause for the
delay.
While claims of excessive work load have often been found to satisfy the adequate cause
requirement, the Commission has made clear that such claims will not receive blanket approval.
Steele Branch Mining, 18 FMSHRC at 14; Salt Lake County Rd. Dept., 3 FMSHRC at 1717.

952

The "excessive work load" argument advanced here is substantially different from that found to
have justified delays in Steele Branch and Rhone-Poulenc. In the 1991-92 time period involved
in those cases, there was an almost 300% increase in cases, coupled with an "unusually high
volume of penalty reassessments." Rhone-Poulenc, 15 FMSHRC at 2094. The increase in
special assessments during the time period pertinent here was considerably more modest,
approximately 20%. While two of the four employees assigned to the special assessments office
were unavailable for significant portions of the period, the reason for one's extended leave was
not explained and the absence of another for training purposes appears to have been a voluntary
staffing decision by MSHA. The Secretary has also not disclosed whether efforts were made to
transfer or detail other MSHA staff to remedy these staffing shortages and/or why any such
effo1ts were unsuccessful.
Despite these shortcomings in the Secretary's explanation of the delay, I find that
adequate cause has been established. The incident that triggered the investigation, a fatal
accident, was extremely serious, and several citations and orders were referred for special
assessment. Careful scrutiny of the facts and consideration of the factors statutorily required to
be considered in the formulation of a penalty assessment and the processing of the
recommendation for final approval were appropriately part of a deliberative process that
consumed considerable time. 3 The special assessments office handles a large volume of cases,
each of which must be considered on its own merits. Staff resources in the office were
significantly reduced during the pertinent time period, and the supervisor's ability to assist was
considerably reduced by involvement in a comprehensive multi-year project.
Respondent made no claim of prejudice in its motion. However, in its reply, Respondent
asserted that the delay was inherently prejudicial to its ability to defend the Secretary's
allegations, and speculated that witnesses' memories made have faded and/or that witnesses may
have become unavailable. Respondent was, no doubt, involved in the investigation, and was
served with the citations and orders a little over a month after the accident occurred. It was on
notice that it was alleged to have committed several violations of mandatory health and safety
standards and, because of the seriousness of the incident, could and should have anticipated that
significant civil penalties would be proposed. Respondent was free to take whatever steps it
desired to preserve witnesses' recollections and/or testimony and there is no indication that it
failed to do so. The parties have engaged in discovery during the pendency of the contest
proceedings. Respondent's assertions of possible prejudice to its case fall far short of
establishing that it has suffered actual prejudice because of the delay in issuance of the penalty
assessments.
Respondent has pointed out some of the deficiencies in the Secretary's explanation of the

3

A related special investigation was completed almost 4 months after issuance of
the investigative report as to these alleged violations against the operator. The Secretary has not
claimed that the assessment process was justifiably suspended pending completion of that
investigation, though it may have been reasonable to do so.

953

delay, and I agree that the Secretary's explanation does not establish that every week or day of
the nearly 14 month period was necessitated by factors beyond the Secretary's control. However,
Congress clearly intended that delays in proposing penalties should not nullify penalty
proceedings and the Commission's decision in Salt Lake County was premised, in part, on the
"basic principle of administrative law that substantive agency proceedings, and effectuation of a
statute's purpose, are not to be overturned because.of procedural error, absent a showing or
prejudice." 3 FMSHRC at 1716. On the facts of this case, the Secretary's explanation of the
reasons for the delay satisfies the adequate cause portion of the test. A showing that the delay
resulted in actual material prejudice to Respondent's ability to defend against the allegations
could justify dismissal of the case. Respondent has failed to make such a demonstration.
The facts in this case are comparable to those in other cases decided by Commission
Administrative Law Judges where essentially the same justification has been found to establish
adequate cause. See BGS Const., Inc., 24 FMSHRC 787 (May 2002) (ALJ) (over 14 months,
fatality); Cactus Canyon Quarries of Texas, Inc., 24 FMSHRC 604 (June 2002) (ALJ) (12
months, no serious accident involved). While these decisions do not constitute Commission
precedent, I note that this case is more comparable to BGS Construction than other cases relied
upon by Respondent.
ORDER
On the facts of this case, I find that the Secretary has fulfilled her burden of showing
adequate cause for the delay in issuing the proposed penalty assessment. Respondent has not
demonstrated that it has suffered prejudice attributable to the delay. Accordingly, Respondent's
Motion to Dismiss is Denied.

,,7, l(/J_;~,

/ YU0v~~/

0..--._..;,__;:;..,..!:.___..

,, . Michael E. Z1 nsk1
' ·-·-. - Administra · e Law Judge
202-43 -9981
Distribution:
Laura Beverage, Esq., Jackson & Kelly, PLLC, 1660 Lincoln, Suite 2710, Denver, CO 80264
Sue Gillett-Kumli, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson St.,
Suite 1110, San Francisco, CA 94105
/mh

954

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADM INISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, Suite 9500
WASHINGTON, D.C. 20001

October 23, 2002
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of Billy R. Begley,
Complainant
v.

Docket No. KENT 2002-195-D
PIKE CD 2001-08
Red Star No. 1 Mine
Mine ID 15-18306

COASTAL COAL CO., LLC.,
Respondent

ORDER DENYING RESPONDENT'S MOTION TO COMPEL
AND
DIRECTING THAT DOCUMENTS BE PLACED UNDER SEAL

Respondent has moved to compel production of portions of the MSHA investigative
report, notes of witness interviews and memoranda of witness interviews that were not produced
in response to its discovery requests. The Secretary asserted that the documents, and portions of
documents withheld were protected from disclosure by the work product, investigative file,
deliberative process and informant's privileges. The Secretary opposed the motion. A
telephonic discussion was held on October 17, 2002, which clarified the issues.
The Secretary, in essence, had waived the work product privilege. She produced
unredacted copies of memoranda of interviews of Respondent's management employees, the
miner-complainant's statements, and most of the investigative report. The report consists almost
entirely of essentially verbatim recitals of memoranda of witness interviews. The portions of the
investigative report that were withheld consisted of information tending to identify miner
informants, which was withheld on a claim of the informant's privilege, and the evaluation and
recommendation of th~ MSHA investigator, which was withheld on a claim of the deliberative
process privilege. The informant's privilege protects from disclosure the identity of the
informant, not the contents of a statement except those portions that would tend to identify the
informant. See Sec '.Yon behalf ofLogan v. Bright Coal Co., 6 FMSHRC 2520 (Nov. 1984). The
deliberative process privilege protects from disclosure pre-decisional deliberative information.
See Jn Re: Contests of Respirable Dust Sample Alteration Citations, 14 FMSHRC 987 (June
1992). Neither privilege protects factual information that can be segregated from the protected
information.
As stated in Respondent's motion and clarified by counsel during the telephonic
discussion, Respondent does not seek to compel production of material that is legitimately
protected by either privilege. Respondent seeks only factual information related by witnesses or
955

contained in the investigative report. The dispute has condensed down to a question of whether
the Secretary's redactions to the investigative report were properly made.
In order to assure that the Secretary had withheld only information protected by the
respective privileges, I directed that unredacted copies of the investigative report and miner
witness statements be submitted for in camera review. The Secretary promptly responded to the
directive and submitted documents contained in three attachments. Attachment "A" consisted of
the Secretary's Supplemental Response to Respondent's First Request for Production of
Documents, including a redacted copy of the investigative report and unredacted copies of
memoranda of interviews of management employees. Attachment "B'' consisted of an
unredacted copy of the investigative report. Attachment "C" consisted of unredacted memoranda
of interviews of four miner witnesses.
I have reviewed the documents submitted and am satisfied that the Secretary's redactions
to the investigative report were entirely proper. The memoranda of interviews of the miner
witnesses were included, virtually verbatim, in the report, and the only portions withheld were
those identifying, or tending to identify, the miner informants. The only other redactions
consisted of certain organizational information, and the evaluation and recommendation of the
investigator.

ORDER
Respondent's motion to compel is DENIED. Attachments "B" and "C" to the Secretary
of Labor's Response to the Bench Order on the Respondent's Motion to Compel Discovery shall
be FILED UNDER SEAL and shall not be disclosed except on order of the Commission or
a reviewing court.

v

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- ----··

.

~frchael E. Zielinski

..

· Adminis~~ Law Judge
Distribution:
Brian Dougherty, Esq. Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Rd., Suite B-201, Nashville, TN 37215
Julia K. Shreve, Esq., Jackson & Kelly, PLLC, P.O. Box 553, Charleston, WV 25322
Billy R. Begley, 2467 Right Fork Road, Viper, KY 41774
/mh

956