SEPTEMBER 2002

THERE WERE NO COMMISSION DECISIONS OR ORDERS

ADMINISTRATIVE LAW JUDGE DECISIONS

09-04-2002 Original Sixteen to One Mine, Inc.
09-11-2002 Lattimore Materials Company, L.P.
09-16-2002 Bailey Quan-ies Incorporated
09-16-2002 VT Unfading Green Slate Company
09- 17-2002 Day Mining Incorporated

WEST 2001-61-M
CENT 2002-171-M
CENT 2002-108-M
YORK 2000-65-M
WEY A 2001-66

Pg. 869
Pg. 879
Pg. 882
Pg. 890
Pg. 895

WEST 2002-317-RM
WEST 2002-408-DM
WEST 2001-204-RM
CENT 2002-127-M

Pg.903
Pg.906
Pg.908
Pg.910

ADMINISTRATIVE LAW JUDGE ORDERS

09-04-2002
09-06-2002
09-09-2002
09-11-2002

Aggregate Industries, West Central Region
Thomas P. Dye, III v. Mineral Recovery Specialists
Becon Construction, Inc.
Knaak Sand

i

SEPTEMBER 2002

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

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

ii

ADMINISTRATIVE LAW JUDGE DEOSIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

September 4, 2002
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2001-61-M
A.C. No. 04-01299-05541

v.
Original Sixteen to One
ORIGfNAL SIXTEEN TO ONE MINE,
INCORPORATED
Respondent
DECISION

Appearances: Isabella M. Del Santo, Esq., Office of the Solicitor, U.S. Department of Labor,
San Francisco, California, on behalf of Petitioner.
Michael M. Miller, President and Chief Operating Officer, Original Sixteen to
One Mine, Inc., Alleghany, California, on behalf of Respondent.

Before:

Judge Cetti

This case is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor (Secretary) alleging violations by Original Sixteen to One Mine, Inc. of
various mandatory safety standards set forth in Title 30 of the Code of Federal Regulations.
Pursuant to notice a hearing was held in Nevada City, Californ ia. The parties filed post-hearing
briefs.
Jurisdiction
Preliminarily, Respondent filed a motion for dismissal of this matter on grounds
Petitioner did not have jurisdiction. Respondent states that the Securities and Exchange
Commission (SEC) dete1mined that its mining operation had insufficient reserves to hold itself
out as a mine to shareholders. The respondent argues that if its operation isn't a mine for SEC
purposes, this operation also cannot be considered a mine under the Federal Mine Safety and
Health Act (Mine Act), 30 U.S.C. §801. The SEC does not purport to regulate the health and
safety of miners, and whatever purpose a definition of the term "mine" has in the SEC's
regulatory scheme, that definition is there for a purpose other than the protection of the health
and safety of miners. Since the facility at issue herein was actively engaged in the extraction of
ore from the ground, with approximately nine miners actively engaged in extraction-related

869

activities, the mine is subject to the Mine Act. Respondent's facility certainly comes within the
definition of a mine set forth in Section 3(h)(l) of the Mine Act.
"Coal or other mine" means (A) an area of land from which
minerals are extracted in nonliquid form or, if in liquid form, are
extracted with workers underground, (B) private ways and roads
appurtenant to such areas, and (C) lands, excavations, underground
passageways, shafts, slopes, tunnels and workings, structures,
facilities, equipment, machines, tools, or other property including
impoundments, retention dams, and tailings ponds, on the surface
or underground, used in, or to be used in, or resulting from, the
work of extracting such minerals from their natural deposits in
nonliquid form, or if in liquid form, with workers underground, or
used in, or to be used in, the milling of such minerals, or the work
of preparing coal or other minerals, and includes custom coal
preparation facilities. In making a determination of what
constitutes mineral milling for purposes of this Act, the Secretary
shall give due consideration to the convenience of administration
resulting from the delegation to one Assistant Secretary of all
authority with respect to the health and safety of miners employed
at one physical establishment.
Respondent's request for dismissal for lack of jurisdiction is DENIED.
Citations at Issue At the Hearing
There are eight citations in this docket of which only five were at issue at the hearing. At
the commencement of the hearing, the Respondent advised that it withdraws its notice of contest
of the following three citations: Citation No. 7987874, Citation No. 7987879 and Citation No.
7987880. At issue at the hearing were Citation No. 798785, Citation No. 7987876, Citation No.
7987977, Citation No. 7987878 and Citation No. 7987883. These citations were issued by
MSHA Inspector James Weisbeck who inspected the mine in August of2000.
For reasons discussed below, I modify two of the citations at issue and as modified I
affirm all eight citations and assess a total civil penalty of $651.00.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Citation No. 7987875
Citation No. 7987875 states as follows:

870

An area of restricted clearance at the ore chute on the 800
level behind 49 Winze, which created a hazard to persons who
operate rail equipment, did not have warning devices or signs on
either approach nor was the restricted clearance clearly marked.
The metal chute gate and bang-board were measured at fifty-five
inches above the rail. The motorman's head was measured at sixty
inches while seated in the locomotive. The motorman could
receive serious injuries if his head were to strike the chute parts.
The locomotive travels under the chute on a regular basis.
The cited regulation provides as follows:
§56.9306 Where restricted clearance creates a hazard to persons
on mobile equipment, warning devices shall be installed in
advance of the restricted area and the restricted area shall be
conspicuously marked.
Inspector Weisbeck testified that at the 800 foot level of the mine, he observed a "center
of track" ore chute through which locomotives traveled on a regular basis. The inspector
observed a restricted opening through the chute. He observed no warning devices in advance of
the restricted area. He took measurements. The clearance measured 55 inches above the rail and
the motor man's head measured 60 inches above the rail while he sat in the locomotive. The
restricted area was not "conspicuously marked."
The locomotive had lights. The motor man was aware of the overhead restrictions and
ducked his head down to the side to avoid injury. The inspector was concerned that someday
there would be a time when the motor operator would be distracted and inadvertently not duck in
time to avoid a very serious injury. The violation was abated by painting a bright red "low head
room" sign and by hanging conspicuous streamers in the appropriate area TR-25, Res. Ex. 12.
Respondent contends that there was light in the area and sufficient marking to comply
with the cited standard. That flagging that existed before abatement was dirty and on the side of
the ore chute.
I credit the testimony of Inspector Weisbeck that the restriction was not conspicuously
marked. and find the evidence established a violation of 30 CFR §56.9306.
Citation No. 7987876
Citation No. 7987876 reads as follows:
An area of unsupported rock beside the slusher at 848
Stope had not been tested by a supervisor or designated person
871

J

prior to work commencing in the area. The rock had several large
cracks which started about ten feet from and propagated towards
the slusher operators station. The supervisor and miner both stated
that they knew about the cracks and that neither one had done any
testing to determine how loose the rock was. The ground was
partially supported at the operators station by the stalls which held
the slusher down. A fall of ground could cause fatal injuries to the
slusher operator who works in the area on a regular basis.
Respondent's response to the citation is as follows:
As required by 30 CFR 57.3401 persons experienced in
examining and testing for loose ground are designated by the mine
operator. Appropriate persons examine and, where applicable, test
ground conditions in areas where work is to be performed, prior to
work commencing, after blasting, and as ground conditions warrant
during the work shift. Underground haulageways and travelways
and surface area highwalls and banks adjoining travel ways are
examined weekly or more often if changing ground conditions
warrant.
The lead miner has extensive underground experience,
including rock mechanics and the specific nature of this mine. His
statements were taken out of context or misinterpreted by the
MSHA agent. The miner was aware of the crack and determined
that alleged hazard posed no risk of an unsafe situation.
Furthermore, the crack itself does not constitute a hazard.
The cited standard provides as follows:
§57.3401 Persons experienced in examining and testing for loose
ground shall be designated by the mine operator. Appropriate
supervisors or other designated persons shall examine and, where
applicable, test ground conditions in areas where work is to be
performed, prior to work commencing, after blasting, and as
ground conditions warrant during the work shift. Underground
haulageways and travelways and surface area highwalls and banks
adjoining travelways shall be examined weekly or more often if
changing ground conditions warrant.
Inspector Weisbeck testified to the facts set forth in Citation No. 7987876. He was of the
opinion that the horizontal crack in the rock depicted in P. Exs. 13 and 14 should have been
tested because of vibration of the slusher being used in the area. The crack propagated toward
872

the slusher operator's station and the ground was only partially supported by the operator's
station. The fall of loose ground that could result from the crack and its vibration from the
slusher motor could cause fatalities. A fall of the rock could cause serious and fatal injuries.
Respondent's lead man was aware of the crack but on visual examination alone was of
the opinion the alleged hazard presented no risk. No testing was done.
I credit the testimony of Inspector Weisbeck and find the cited standard was violated. I
affirm the Solicitor's findings in the citation and based on the statutory criteria in Section 11 O(i)
of the Act, I agree with the MSHA's assessment of the $55 proposed penalty for this violation of
the standard and accordingly assess a penalty of $55.00.
Citation No. 7987877
Citation No. 7987877 alleges a significant and substantial (S&S) violation of 30 CFR
§57.3360. The citation reads as follows:
Ground support was not installed in the area of 848 Stope
which was being slushed out. A bowed and split timber, and two
badly cracked pillars indicated that the hanging wall was taking
weight. A large area beyond the two pillars had caved in at some
time in the past. One of the pillars had several large vertical
cracks. The other was badly cracked and appeared loose. The
grain shift across a diagonal crack indicated that about one third of
the pillar had subsided about three inches. An old timber near the
pillar was partially rotten and had bowed out about one foot in the
middle. Many old timbers in other areas of the stope had rotted out
or showed signs of crushing. Mine management stated that the
stope had been mined for about three weeks at this time and was
last mined in 1994. A fall of ground could cause fatal injuries to
the two miners.
The cited standard, 30 CFR §57.3360 provides as follows:
Ground support shall be used where ground conditions, or mining
experience in similar ground conditions in the mine, indicate that it
is necessary. When ground support is necessary, the support system
shall be designed, installed, and maintained to control the ground
in places where persons work or travel in performing their assigned
tasks. Damaged, loosened, or dislodged timber use for ground
support which creates a hazard to persons shall be repaired or
replaced prior to any work or travel in the affected area.

873

I find the Secretary established an S&S violation of the cited standard. Inspector
Weisbeck inspected the work area of the 848 Stope and found inadequate ground support. He
testified as to his observations as set forth in the citation quoted above. He took photographs
showing the bowed and cracked vertical ground support timbers. Petitioner's Exhibits P-15, P16 and P-17. Respondent's response to the facts alleged in the citation was that "[T]he timber
cited was cracked from weight of itself and was not utilized as current ground support. Had there
been rock weight on the timber the timber would not of [sic] held and rock would have fallen."
Respondents contention was not persuasive in view of the photographs and the
inspector's testimony. Two of the damaged timbers in the immediate working area of the slusher
and the portable lighting were replaced with new timber in order to abate the violation.
A "significant and substantial" (S&S) violation is described in Section 104(d)(1) 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'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
In Mathis Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission explained:
In order to establish that a violation of a mandatary safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard- that is, a
measure of danger to safety-contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.

See also, Buck Creek Coal, Inc. v. MSHA, 53 F.3d 133, 135 (71h Cir. 1999); Austin Power, Inc. v.
Secretary, 861 F.2d 99, 103-04 (5 1h Cir. 1988), aff'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
stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in
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)(l), it is the

874

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).

The contribution of the violation to the cause and effect of a hazard 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. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 1007 (Dec. 1987).
The inspector properly made findings noted in the citation "reasonably likely," "fatal,"
and S&S. If the roof were to collapse and strike a miner working in the area the injury to the
miner would most likely be fatal.
Citation No. 7987878.
This citation charges a 104(a) violation of30 CFR §57.16005. The citation reads as
follows:
At the electrical shop of the lower shop area there was a unsecured
acetylene cylinder setting on the floor in the work area. Exposing
persons who enter area to the hazards of the cylinder falling
creating potential injuries. Persons enter on a as needed basis.
In the lower shop area the Inspector saw an upright acetylene cylinder sitting on the floor.
The cylinder was not secured in any way. The Inspector testified that there was not a lot of
exposure. The cylinder was sitting back toward a wall, so it was not out in the center of the work
area. The Inspector testified that, even though empty, it weighed 40 pounds and if it fell it could
result in severe bruising and possibly break a bone in a person's foot.
The facts clearly establish a violation of the cited standard 30 CFR §57.16005 which
provides that "compressed and liquid gas cylinders shall be secured in a safe manner." The
gravity was somewhat less than if the cylinder had been taller and full of gas and left in an area
where there was greater exposure. Everything considered, I find the "negligence" factor in this
citation is "low" rather than "moderate" and the citation is so modified. In view of the small size
of the operator and the very limited exposure and all the other statutory criteria in Section 11 O(i)
of the Act, I assess a penalty of $25 .00.
Citation No. 7987883
This citation charges a 104(a) violation of30 CFR §57.12032 and reads as follows:

875

The cover plate on the 240 volt electric hot water heater in the
store room between the office and the dry was not in place. The
top screw was missing and the cover was turned to the side
exposing the bare energized component$ to possible contact by
persons who use the cleaning equipment stored in the room. An
electrocution could result.
The cited safety standard 30 CFR §57.12032 provides as follows:
§57 .12032 Inspection and cover plates.
Inspection and cover plates on electrical equipment and
junction boxes shall be kept in place at all times except during
testing and repairs.
Inspector Weisbeck testified that the cover plate of the 240 volt electric hot water heater
had its top screw missing and the cover plate was turned to one side exposing the bare energized
components to inadvertent contact.
Respondent asserts:
The top screw had worked itself loose. This was a very recent
occurrence and no one had been in that area to detect it. It is
certain that at the time a miner entered this area and upon
inspection of the workplace, the plate would have been notice [sic]
and the screw put in place.
The Inspector testified that inadvertent contact with an energized part could potentially cause
defibrillation of the heart causing death.
The hot water heater was in a storeroom at the office dry area where people do not work
constantly. There was exposure to persons who go in and out to remove cleaning products and
tools. In Petitioner's Exhibit P-11, the Inspector notes "persons enter only as needed."
Respondent contends that it was unaware that one of the screws holding the cover plate in
place was missing or that any energized component was exposed. Respondent contends the loss
of the screw and exposure of energized parts occurred very recently before management had an
opportunity to see the problem and make the needed correction. TR 321-22.
On review of the evidence, I find the negligence of Respondent was "low" rather than
"moderate" and I would accordingly modify the citation to reflect "low" negligence. In view of
the potential gravity of the violation, I would not reduce the proposed $55.00 penalty.

876

Appropriate Civil Penalties
Under section 11 O(i) of the Act the Commission and its judges must consider the
following criteria in assessing a civil penalty: the operator's history of previous violations, the
appropriateness of such penalty to the size of the business of the operator charged, whether the
operator was negligent, the effect on the operator's ability to continue in business, the gravity of
the violation and the demonstrated good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.
Respondent demonstrated good faith with respect to all the cited violations in the timely
abatement of each citation by compliance with the proper standard after notification of the
violation. The penalties assessed below are modest penalties and appropriate for this small
operator. I find these penalties will not affect the operator's ability to continue in business. The
Secretary has submitted the Assessed Violation History Report for the relevant period prior to the
inspection that resulted in the citations. The report indicates the number of paid citations is 16
and the number of assessed violations is 71 for the period beginning August 16, 1998 to August
15, 2000. I affirm all the citations including the inspector's finding except for the negligence
factor in Citation Nos. 7987878 and 7987883 where I find the negligence on the basis of the
evidence presented to be "low." The negligence in all the other citations is properly charged by
the Inspector as "moderate." Citations 7987877 was properly charged as significant and
substantial as set forth above in my discussion of that citation.
ORDER

Based on the criteria in section 11 O(i) of the Mine Act, 30 USC §830(i), particularly the
small size of the operator and the good faith prompt abatement, I assess the following civil
penalties:

877

Citation No.

30 CFR §

Penaltv

7987875

56.9306

$55.00

7987876

57.3401

55.00

7987877

57.3360

131.00

7987878

57.16005

25.00

7987883

57.12032

55.00

7987874

57.12025

55.00

7987879

57.20003(a)

55.00

7987880

57.12019

55.00

7987874

57.12025

55.00

7987879

57.20003(a)

55.00

7987880

57.12019

55.00
TOTAL

$651.00

Accordingly, the citations in this docket are AFFIRMED, Citation Nos. 7987878
and798783 were modified to reduce the negligence from "moderate" to "low" and as so modified
were affirmed.
Respondent is Ordered to PAY the sum of $651.00 within 40 days of the date of the
decision unless the parties agree upon a different payment schedule. Upon payment of this
penalty, the proceedings is DISMISSED.

Distribution:

gust F. Cetti
Administrative Law Judge

Ms. Isabella M. Del Santo, Office of the Solicitor, U.S. Department of Labor, 71 Stevenson
Street, Suite 1110, San Francisco, CA 94105-2937
Michael M. Miller, President, Original Sixteen to One Mine, Inc., P.O. Box 909, 527 Miners
Street, Alleghany, CA 95910
/ate

.·
878

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

September 11, 2002

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

CIVIL PENALTY PROCEEDINGS
Docket No. CENT2002-171-M
A.C. No. 41-04063-05504

v.
LATTIMORE MATERIALS CO., L.P.,
Respondent

CLEBURNE PLANT #65

DECISION
Appearances:

Thao Pham, Esq., Office of the Solicitor, U.S. Department of Labor,
Dallas, Texas, on behalf of the Petitioner;
Trenton Horner, Safety Manager, Lattimore Materials, McKinney, Texas,
on behalf of the Respondent.

Before:

Judge Schroeder
Introduction

This case is before me on a Petition by the Secreta1y alleging a violation of a mine safety
regulation. The Petition alleged a single violation for which the Secretary proposed a Civil
Penalty of $207.00. After notice, a hearing was scheduled on August 27, 2002, in McKinney,
Texas. Respondent was offered the opportunity for a continuance of that hearing if witnesses
essential to presentation of Respondent's case were unavailable on that date. Respondent
declined the continuance. The hearing was held as scheduled and evidence in the form of both
testimony and documents was received. Both parties were afforded the opportunity for closing
arguments.
Background
This case involves a very basic mine safety regulation, 30 C.F.R. § 56.11001, that
requires "safe access" be provided to all work sites. The Secretary alleged Lattimore Materials
failed to provide "safe access" for it's employees to reach a site from which certain roller
bearings needed to be lubricated on a frequent basis. It is my task to evaluate whether the record
demonstrates that regulation was violated and, if so, what should be the appropriate sanction.

879

Analysis
Lattimore Materials Company operates a sand and gravel processing plant near Cleburne,
Texas. The plant has operated in this location since at least 1998. The plant uses a sorting
system in which material is dumped into a shaker/sorter and then in various sizes onto conveyor
belts to stockpiles. The conveyor belts meet the shaker/sorter in pulleys which require
lubrication on approximately weekly intervals. The pulleys are located more than 10 feet in the
air within a tower structure constructed of steel beams. Resp . Exh. 1. At the time of the alleged
violation, lubrication of the pulley bearings was done by a Lattimore employee who climbed into
the tower structure with a grease gun. The employee wore a safety harness with a lanyard to tieoff on the tower while he used the grease gun. He walked on the steel beams of the structure to
get the the various work sites. The beams had holes at numerous points to clip the lanyard to
while working or moving. While using the grease gun it was necessary to use both hands on the
gun and rely exclusively on the lanyard to reduce the fall hazard.
The allegations by the Secretary are based on an inspection by Mr. Fred Gatewood, a
special agent employed by the Mine Safety and Health Administration, conducted on April 24,
2001. Tr. 11. Mr. Gatewood is a trained and experienced mine inspector familiar with the kind
of equipment used at the Cleburne Plant. Soon after his arrival at the Cleburne Plant he
identified what he believed to be a fall hazard in the pulley lubrication activity. He questioned
the Plant Manager concerning the hazard. He was told the hazard had been identified several
weeks before by management and a means of eliminating the danger had been ordered. The
proposed solution was to install rubber hose on the pulley bearings so that lubrication could be
performed from the ground. The hoses had been ordered. In Mr. Gatewood' s opinion the hoses
would eliminate the hazard. He was not able to identify any other method of pulley bearing
lubrication in use at the Cleburne Plant that would eliminate the hazard. He did not believe a
portable ladder to reach the lubrication sites was feasible or in use because of the accumulation
ofloose stone and mud on the concrete pad below the tower. He testified that he gave the Plant
Manager ample opportunity to explain how the lubrication was done safely and he failed to
provide an explanation.
Without rebuttal the testimony by Mr. Gatewood establishes a violation of 30 C.F.R.
§ 56.11001. Lattimore Materials argued that at least for the several weeks prior to the inspection
by Mr. Gatewood, lubrication had been performed using an extension ladder to provide a solid
platform for a worker to use the grease gun. No witness was offered to support this argument
and the only photographs including a ladder were taken long after Mr. Gatewood's visit. Resp.
Exh. 4. The record is insufficient to rebut the testimony by Mr. Gatewood.
Having found a violation of the regulation, I am required to evaluate the appropriate
sanction. The Cleburne Plant is a small operation, often operated with one or two employees.
The violation had been identified by management before Mr. Gatewood's visit and remedies
developed, albeit without a sense of urgency. Existing safety steps (harness and lanyard) offered
some degree of protection, albeit less than fully desirable. No actual injury was suffered at the
880

plant for lack of sufficient safety measures. I conclude that the violation warrants a Civil Penalty
of$100.00.

For the reasons given above, I find Respondent violated 30 C.F.R. § 56.11001 and a Civil
Penalty of $100.00 is the appropriate sanction. Respondent is directed to pay a Civil Penalty of
$100.00 within 40 days of the date of this Order.

Irwin Schroeder
Administrative Law Judge
Distribution
Thao Pham, Esq., Office of the Regional Solicitor, U.S. Department of Labor, 525 Griffin Street,
Suite 501, Dallas, TX 75202 (Certified Mail)
Trenton Homer, Safety Manager, Lattimore Materials Company, 1700 Redbud Blvd, Suite 200,
McKinney, TX 75069 (Certified Mail)

881

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

September 16, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 2002-108-M
A.C. No. 23-00252-05517

v.

Docket No. CENT 2002-129-M
A.C. No. 23-00252-05518

BAILEY QUARRIES INCORPORATED,
Respondent

Chesapeake Quarry

DECISION

Appearances: Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado, for Petitioner;
Randall D. Bailey, Vice President, Bailey Quarries, Inc., Republic, Missouri, pro
se, for Respondent.
Before:

Judge Hodgdon

These consolidated cases are before me on Petitions for Assessment of Civil Penalty
brought by the Secretary of Labor, acting through her Mine Safety and Health Administration
(MSHA), against Bailey Quarries, Inc., pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815. The petitions allege six violations of the Secretary's
mandatory health and safety standards and seek penalties of $2,562.00. A hearing was held in
Springfield, Missouri. For the reasons set forth below, I affirm the citations and assess penalties
of $1,559.00.
Back2round

The Chesapeake Quarry is one of six limestone quarries operated by Bailey Quarries, Inc.,
in southwest Missouri. Limestone is removed from the quarry and crushed, broken and sized
into several types of stone for sale to the public.
The quarry was inspected by MSHA Inspector Wesley L. Hackworth on July 25 and
September 11, 2001. The inspections resulted in the issuance of six citations which were
contested by the company at the hearing. In contesting the citations, the operator was more
concerned with the amount of the penalties, then the fact of violation. (Tr. 14.)
882

Findin2s of Fact and Conclusions of Law
Citation No. 621104 I

This citation alleges a violation of section 56.14101 (a)(2) of the Secretary's regulations,
30 C.F.R. § 56.141 Ol(a)(2), on July 25, 2001, because:
The park brake on the Euclid R50 haul truck would not
hold when tested. The brake was tested on the inclined road up to
the crusher feed hopper. The truck was loaded and would roll
backward freely when the brake was independently applied. The
truck was being used to haul material from the pit to the plant for
crushing. This condition created a hazard of an employee being
injured should the truck roll from a parked position.
(Govt. Ex. 4.) Section 56.14101 (a)(2) requires that: "If equipped on self-propelled mobile
equipment, parking brakes shall be capable of holding the equipment with its typical load on the
maximum grade it travels."
The inspector testified that the haul truck was equipped with parking brakes. He said that
the truck was loaded with limestone and that both the service brakes and parking brakes were
tested on the road from the pit to the crusher, which was the steepest road it traveled. After the
truck was brought to a complete stop on the hill, the driver was instructed to engage the parking
brakes and take his foot off of the service brake. When he did that, the truck rolled backwards.
Based on the inspector's testimony I find that the Euclid R50 haul truck was equipped
with parking brakes, but that they were not capable of holding the truck with its typical load on
the maximum grade it traveled. Therefore, I conclude that the company violated the regulation as
alleged.
Citation No. 6211042

This citation charges a violation of section 62.120, 30 C.F.R. § 62. 120, on July 25, 2001,
in that:
On July 25, 2001, the plant laborer/ground man performing
cleanup around the plant area was exposed to mixed noise levels of
78.04% as measured with a noise dosimeter for a full shift using a
lower threshold limit of 80 dBA. The amount exceeded the noise
action level of 50% times the instrument error factor ( 1.32) for
dosimeter noise sampling. This is equivalent to an 8-hour
exposure at 88.2 dBA. No hearing conservation program had been
established meeting the requirements of 30 C.F.R. § 62.150.

883

(Govt. Ex. 5.)
Section 62.120 requires that: "If during any work shift a miner's noise level exposure
equals or exceeds the action level the mine operator must enroll the miner in a hearing
conservation program that complies with § 62.150 of this part." Action level is defined in the
regulations as: "An 8-hour time-weighted average sound level (TW A8) of 85 dBA, or
equivalently a dose of 50% integrating all sound levels from 80 dBA to at least 130 dBA." 30
C.F.R. § 62.101. Section 62.150, 30 C.F.R. § 62.150, requires that a hearing conservation
program include: (a) a system of monitoring; (b) the provision and use of hearing protectors; (c)
audiometric testing; (d) training; and (e) record keeping.
Inspector Hackworth testified that he had Tom McDonald, the ground man, wear a
calibrated dosimeter from 10:25 a.m. to 6:00 p.m. At the end of that period, the dosimeter
indicated that McDonald had been exposed to a time-weighted average sound level of 88.2 dBA
and a noise dose of 78.04 percent. Thus, it is apparent that McDonald' s noise level exposure
exceeded the action level both as a time-weighted average and as a noise dose.
The inspector testified that the company's hearing conservation program did not meet the
requirements of the regulation because it "hadn't notified the miner in writing, had not provided
him two types of muffs and earplugs to choose from .... " {Tr. 47.) With regard to the hearing
protection, the operator had offered the miner two types of earplugs, one of which he was
wearing on the day of the inspection, but had not offered him the choice of two types of
eannuffs.
There is no specific requirement in section 62.150 that the miner be notified in writing
that he is enrolled in a hearing conservation program. There is, however, a requirement in
section 62. l lO(d), 30 C.F.R. § 62.l lO(d), that if a miner's exposure exceeds the action level,
"[t]he mine operator must notify the miner in writing within 15 calendar days of: (1) the
exposure determination; and (2) the corrective action being taken." Since section 62.150 refers
to section 62.110 concerning a system of monitoring, it is arguable that this written notification is
incorporated in section 62.150.
Nonetheless, it is apparent that the operator at least minimally violated the hearing
conservation program requirement by only offering the miner the choice between two types of
earplugs, rather than two types of earplugs and two types of ear muffs. Consequently, I conclude
that the Respondent violated section 62.120 by not having enrolled McDonald in a hearing
conservation program that complied with section 62.150.

Citation No. 6211053

This citation is for a September 11, 2002, violation of section 56.12032, 30 C.F.R.
§ 56.12032, because:

884

The cover plate for the motor termination box on the drive
motor of the 3/16 conveyor was not secured properly in place. The
cover had come loose and was hanging down only being held in
place on one comer. The 480 volt wire nut splice connections and
insulated inner conductors were exposed. There was no apparent
damage to the wiring or connections. This condition created a
hazard of the connections being damaged to physical and
environmental conditions and causing a shock hazard.
(Govt. Ex. 8.) Section 56.12032 provides that: "Inspection and cover plates on electrical
equipment and junction boxes shall be kept in place at all times except during testing or repairs."
Inspector Hackworth testified that during his inspection he observed the cover plate
hanging from one comer of the motor termination box. The picture that he took of it clearly
shows that the cover plate is normally held on by a screw at each comer of the box, but was
attached only by one screw, exposing the inside of the box to the elements. (Govt. Ex. 12.)
Accordingly, I conclude that the company violated the regulation as alleged.
Citation No. 6211054
This citation alleges a violation of section 56.14107(a), 30 C.F.R. § 56.l4l07(a), on
September 11, 2001, because:
The fan and V-belt drive assembly on the engine of the
International Harvester haul truck #105 were not guarded to prevent
employee contact. The side engine guards/panels were off/missing. The
truck was hauling waste from the west pit to the waste stockpile area. This
condition created an entanglement hazard to employees.
(Govt. Ex. 9.) Section 56.14107(a) 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."
As the picture taken by the inspector plainly demonstrates, there were no coverings on
either side of the motor compartment of the haul truck. (Govt. Ex. 12.) There were two bolts
located on the side of the engine compartment which indicated that at one time there may have
been side covers. However, no one remembered seeing such coverings, nor was anyone able to
testify that the truck, which had been owned by the company since 1984, originally came with
such coverings.
The evidence adduced at the hearing was that if anyone were working on the motor in the
vicinity of the fan and belt assembly the engine would more than likely by off. Furthermore, if
work had to be performed on the engine while the engine was on, any side coverings would have
885

to be removed, thus offering no protection. Therefore, it appears that the only way that a miner
could have a hand or arm caught in the belt system would be if the person stumbled when
walking by the truck, while the motor was running, and stuck his arm into the motor.
While such an accident would appear to be a highly unlikely occurrence, it is,
nevertheless, possible. Consequently, I conclude that the Respondent violated section
56.14107(a) as charged.

Citation No. 6211055
This citation charges a September 11, 2001, violation of section 56.14132(a), 30 C.F.R.
§ 56.14132(a), because:
The backup alarm on the Euclid R50 haul truck was not
maintained in functional condition. The truck was hauling waste
rock from the west pit to the waste rock stockpile area. There was
no foot traffic in the area. The alarm would not sound when tested.
This condition created a hazard of an employee being injured
should they not realize or be warned of the truck backing up.
(Govt. Ex. 10.) Section 56.14132(a) provides that: "Manually-operated horns or other audible
warning devices provided on self-propelled mobile equipment as a safety feature shall be
maintained in functional condition."
Inspector Hackworth testified that the Euclid truck was equipped with a backup alarm,
but that when he had the driver put the truck in reverse and backup, the alarm did not sound.
Therefore, I conclude that the operator violated this regulation.

Citation No. 6211056
This citation also alleges a September 11, 2001, violation of section 56.14132(a) because:
The backup alarm on the Fiat Allis FR130.2 front end
loader, serial #54226, would not function when tested. The loader
was operating in the stockpile yard area loading customer trucks.
This condition created a hazard of an employee or customer truck
driver being backed over due to not being warned of the loader
backing up.
(Govt. Ex. 11.)

886

Inspector Hackworth testified that the front end loader was equipped with a backup
alarm, but that when he had the driver put the loader in reverse and backup, the alarm did not
sound. Accordingly, I conclude that the company violated section 56.14132(a).
The Inspector found this violation to be "significant and substantial." A "significant and
substantial" (S&S) violation is described in Section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l),
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 Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ).
ln Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out four
criteria that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 10304 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (December 1987)(approving
Mathies criteria). Evaluation of the criteria is made in terms of "continued nom1al mining
operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of
whether a particular violation is significant and substantial must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007 (December 1987).
In order to prove that a violation is S&S, the Secretary must establish: (1) the underlying
violation of a safety standard; (2) a distinct safety hazard, a measure of danger to safety,
contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury will be of a reasonably serious
nature. Mathies, 6 FMSHRC at 3-4.

Considering the criteria in order, I have already concluded that (1) there was a violation
of a safety standard. I also find (2) that the violation created a distinct safety hazard, backing
over employees or truck drivers walking in the vicinity of the loader. With regard to (3), the
company argues that there were signs admonishing truck drivers not to get out of their trucks, so
that it was not reasonably likely that they would be on the ground around the loader. However,
this argument does not take into account the operator's employees working in the area as well as
presuming that tmckers are not going to get out of their trucks because a sign tells them not to. I
find that there was a reasonable likelihood of injury in this instance and that (4) any injury would
be reasonably serious.
Accordingly, I conclude that the violation was "significant and substantial."

887

Civil Penalty Assessment
The Secretary has proposed penalties of $2,562.00 for these violations. However, it is the
judge's independent responsibility to determine the appropriate amount of penalty in accordance
with the six penalty criteria set out in section l lO(i) of the Act, 30 U.S.C. § 820(i). Sellersburg
Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (71h Cir. 1984); Wallace Brothers, Inc., 18
FMSHRC 481, 483-84 (April 1996).

In connection with the penalty criteria, the parties have stipulated, and I so find, that
Bailey Quarries is a small operator and that it demonstrated good faith in abating the violations.
(Jt. Ex. 1.) No evidence was presented at the hearing to indicate that payment of the proposed
penalties would adversely affect the company's ability to remain in business, so I find that they
will not affect the company to such an extent.
The evidence is that the company has a poor history of previous violations, indeed so
poor that it comes within MSHA's excessive history provisions for assessing penalties. 30
C.F.R. §§ 100.4(a)(2) and 100.4(b); (Govt. Exs. 1, 2, 13 & 14.) It appears, however, that this
history arose from one inspection in September 2000, which resulted in 36 citations, a number,
by all accounts, surpassing the number of citations received by the company for previous and
subsequent inspections. Thus, while I find that the company has a poor history of previous
violations, it does not appear that it is a habitual violator.
Turning now to the specific citations and penalties, I find, as did the inspector, that
Citation No. 6201141 was not of serious gravity and that the Respondent's negligence was
"low." The Secretary has proposed a penalty of $317.00 for the violation and I find that
appropriate.
The Secretary has proposed a penalty of $399 .00 for Citation No. 6211042. I agree with
the inspector that the gravity of the violation was not serious, but disagree with his finding of
negligence. While the company had not complied with all of the requirements of enrolling the
employee in a hearing conservation program, it was attempting to do so, and had, in fact,
accomplished the most important parts, having the employee's hearing tested and furnishing him
hearing protection. Not having notified the employee in writing that he was enrolled in a
program or offering him four choices of hearing protection is not that significant in this case.
Accordingly, I find that the company's negligence was "low" and assess a penalty of $100.00.
While the gravity of the violation in Citation No. 621 1053 was not serious, the operator
was "moderately" negligent in allowing the cover plate to be in such a condition. As the
company's witness admitted, an onshift inspector "should notice something like this." (Tr. 146.)
However, I find that the Secretary's proposed penalty of $655.00, $600.00 more than it would be
if the excessive history provisions were not in effect and $180.00 more than the penalty proposed
for the only S&S violation in these cases, is too high. Consequently, I assess a penalty of
$300.00

888

I find the guarding violation on the motor of the haul truck in Citation No. 6211054 to be
the least serious one in these cases. The possibility of injury from this violation is extremely
remote. While the evidence suggests that the truck has been like this since the company acquired
it in 1984, there is no evidence that it has been cited for this violation before. Therefore, I find
that the operator's negligence with regard to this violation was very "low" and assess a penalty of
$50.00 instead of the $399.00 proposed by the Secretary.
Finally, for the two backup alarm violations in Citation Nos. 6211055 and 6211056 the
Secretary has proposed penalties of $_317.00 and $475.00, respectively. I concur with the
inspector's finding that the Respondent's negligence in both cases was "low," as well as his
characterizations of gravity as being fairly serious for Citation No. 6211056 and not so serious
for Citation No. 6211055. Accordingly, I find that the penalties proposed by the Secretary are
appropriate.

Order
In accordance with the above findings, Citation No. 6211042, in Docket No. CENT 2002108-M, is MODIFIED by reducing the level of negligence from "moderate" to "low" and is
AFFIRt'1ED as modified and Citation No. 6211041 in that docket is AFFIRMED; Citation No.
6211054, in Docket No. CENT 2002-129-M, is MODIFIED by reducing the level of negligence
from "moderate" to "low" and is AFFIRl\'IED as modified and Citation Nos. 6211053, 6211055
and 6211056 in that docket are AFFIRMED. Bailey Quarries, Inc., is ORDERED TO PAY a
civil penalty of $1,559.00 within 30 days of the date of this decision.

1r~~

Administrative Law Judge

Distribution: (Certified Mail)
Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550
Randall D. Bailey, Vice President, Bailey Quarries, Inc., P.O. Box 430, Republic, MO 65738
/hs

889

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

September 16, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. YORK 2000-65-M
A. C. No. 43-00196-05521

v.

Docket No. YORK 2000-66-M
A. C. No. 43-00196-05522

VT UNFADING GREEN SLATE CO., INC.,
Respondent

Blissville Quarry & Mill

DECISION ON REMAND
These cases are before me on remand from the Commission. Vermont Unfading Green
Slate Co., Inc., 24 FMSHRC 439 (May 2002). The Commission instructed that the record be
reopened and the company be permitted "to present [Inspector] Tango's testimony relating to the
guarding hazard on the trimmer [Citation No. 7720771]." Id. at 443. The Commission also
directed the judge to "reconcile any conflicting evidence and determine if the guarding was
adequate to protect a miner standing or working on the platform next to the trimmer." Id. at 44344. For the reasons set forth below, I affirm the citation and reassess a penalty of $55.00.
In accordance with the Commission's instructions, a hearing was scheduled for
September 19, 2002, for the purpose of taking Inspector Tango's testimony. Notice of Hearing,
June 27, 2002. However, because Inspector Tango no longer worked in the New England area,
but instead had been reassigned to Iowa, the parties were "directed to confer and attempt to
arrive at [a] method of presenting Mr. Tango's testimony" that would not require his presence at
a hearing. Id. The parties were ordered to inform the judge on or before August 2, 2002,
whether an agreement had been reached on the testimony. Id.
On August 2, the Secretary, by counsel, filed a Motion to Cancel Hearing and Close the
Record because the company had not responded to counsel's July 18, 2002, letter concerning
methods of presenting Tango's testimony. The Respondent did not file anything in response to
the Notice of Hearing, nor did it respond to the Secretary's motion.

Order to Show Cause
Commission Rule 66(a), 29 C.F.R. § 2700.66(a), provides that: "When a party fails to
comply with an order of a Judge or these rules . . . an order to show cause shall be directed to the
890

party before the entry of any order of default or dismissal. The order shall be mailed by
registered or certified mail, return receipt requested." Accordingly, since the operator did not
respond to the Notice of Hearing or the Secretary's motion, an Order to Show cause was mailed
by certified mail, return receipt requested, to the operator on August 16, 2002. It Ordered the
company to show cause, within 21 days of the date of the order, why the "hearing should not be
canceled and a remand decision rendered based on the record evidence, for the company's failure
to prosecute." It warned that: "Failure to respond to this order within the time provided will
result in the above actions being taken."
The return receipt card, signed by "Ranae Wood," shows that the order was received by
the operator on August 19, 2002. As of the date of this decision, no response to the order has
been received. Therefore, it is ORDERED that the hearing scheduled for September 19 to take
Inspector Tango's testimony is CANCELED and the record is CLOSED.
Reconsideration of Citation No. 7720771
This case involved an inspection by MSHA Inspector Brett Budd and Robert Tango, at
the time, an MSHA Inspector-trainee. Budd testified at the hearing that the citations were written
by Tango, but signed by him. Budd testified at the hearing; Tango was not present.
Citation No. 7720771 alleges a violation of section 56.14107(a), 30 C.F.R. § 56.14107(a),
because: "A machine guard was not provided to prevent accidental contact with the V-belt drive
system, exposing pinch points that are about 5 feet from ground level, located on the left side of
the slate trimmer in the garage building and was not in use at the time of this inspection, but is
used daily." (Govt. Ex. 5.) Section 56.14107(a) 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."
Inspector Budd testified that the area of concern was:
[T]he V-belt that's used to drive or make this trimmer move. The
V-belt areas are not guarded, where there was a potential to, for
someone, mainly the operator of the trimmer, to stick their hand
into the V-belt drive or get drawn in from clothing, and potentially
maybe have their fingers cut off or an amputated hand.
(Tr. 64.) He further testified that the machine operator would be standing "within a foot" of the
unguarded V-belt. (Tr. 67.)
Budd related that there were two pinch points on the V-belt, "you would have the top
exposure where the V-belt drive contacts the upper drive pulley, plus the lower electrical pinch
point hazard where the V-belt comes in contact with the drive pulley onto that system." (Tr. 67.)

891

He said that the lower pinch point was "between ankle and knee high" and the upper one was
"from shoulder-high to waist-high" of the operator. (Tr. 69.)
Finally, Budd testified with regard to whether Respondent's Exhibit A, a sketch of the
trimmer, was a true and accurate description, that: "He marked there was an existing guard on
this there, and there was no guard, that's why the violation was cited." (Tr. 77.)
While a great deal of the operator, Shawn Camara's, testimony had to do with whether
someone standing on the ground could be caught in the pinch points, he did testify as follows
concerning the V-belt drive:
THE COURT: Is the pulley guarded?
MR. CAMARA: The pulley was certainly guarded. There was a
guard that came from - see?
THE COURT: Here's the diagram [Resp. Ex. A.] ofit.
MR. CAMARA: I know, but it's hard for me to explain this.
Only that here's a building here, let's say this is the building, just
pretend there's a big wall right here. When a trimmer sits in there,
it's guarded from the top of the wheel to the bottom. Where the
guy sits or where the guy stands, that's where it's guarded. It's
guarded from clothing getting caught in the wheel. It's guarded
from a pinch into the wheel.
Normally what happens is, why they don't want - if a shirt
gets caught, you put your hand in the trimmer, and it gets chopped
off if you get pulled down. That's why they are talking about that.
(Tr. 165.)
On cross examination, Camara admitted that a person operating the trimmer would be
standing on the pallets on which the trimmer was placed. (Tr. 167.) When specifically asked:
"Are you saying the V-belt he cited was in fact guarded?" He responded: "I'm a little unclear.
When you are talking about the V-belt, you are saying the belt is on top like this, and curved like
this?" Then he said: "If a guard was there, there was no possible way- trimming the chips,
there's no possible way he could have gotten caught." (Tr. 167-68.)
Finally, the following colloquy took place:
A: There's that.wheel, it comes down the front. The front part
where the motor is, is guarded.

892

Q: What about the V-belt?

A: Was not guarded. But again, there's only one way a person
could get caught there, and that's by taking a stick and trying to the trimmer wheel is not a V. It's a solid piece that's two inches
wide. And the wheel is a big wheel that's about the size of a tire,
and it's wide like this. The V-belt runs the wheel like this. This
trimmer used to be nm by a foot, and it's weighted so the trimmer
blade comes round like this.
Q: Why does someone have to use a stick to get in the area you are
talking about?

A: Eight feet above the ground, do you think you cc)Uld get your
hand up there?
(Tr. 169, emphasis added.)
As Commissioner Jordan noted in her dissent, Camara's testimony can best be
characterized as "muddied and inconsistent." 24 FMSHRC at 449. Even when talking about the
pulleys, he continually returned to having to be nine feet tall, or having to use a stick to reach it,
which clearly was directed towards coming in contact with the pinch points from the ground. He
talked about the trimmer blade being guarded, the pulley being guarded on the front and the
pulleys being guarded on the outside by walls or benches, but he never directly addressed the
concerns expressed by the inspector, that of the V-belt and the pulleys being guarded on the
inside where the operator would be sitting or standing. In fact, he appeared to admit that it was
not guarded there. (Tr. 169.)
In vie\v of Camara's disjointed, ambiguous testimony, I credit the testimony of Inspector
Budd on this citation. Accordingly, I again conclude that the operator violated section
56.14107(a).

Order
Citation No. 7720771 is AFFIRMED as modified in my original decision. VT Unfading
Green Slate Co., Inc., 23 FMSHRC 310, 315, 320 (March 2001). Vermont Unfading Green
Slate Co., Inc., is ORDERED TO PAY a civil penalty of $55.00, for this violation, within 30
days of the date of this decision.

~~~

Administrative Law Judge
893

Distribution: (Certified Mail)
David L. Baskin, Esq., Office of the Solicitor, U.S. Department of Labor, E-375, John F.
Kennedy Federal Bldg., Boston, MA 02203
Shawn Camara, Esq., Vermont Unfading Green Slate Company, P.O. Box 210, Poultney, VT
05764

lbs

894

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

September 17, 2002
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 2001-66
A.C. No. 46-05437-03621

V.

DAY MINING INCORPORATED,
Respondent

Day Mining Inc.

DECISION
Appearances: M. YusufM. Mohamed, Esq., U.S. Department of Labor, Office of the Solicitor,
Arlington, Virginia, for the Petitioner;
David J. Hardy, Esq., Heenan, Althen & Roles, LLP, Charleston, West Virginia,
for the Respondent.
Before:

Judge Schroeder

Introduction
This case is before me on a Petition by the Secretary of Labor for the assessment of a
Civil Penalty for the alleged violation of mine safety regulations. The Petition alleged two
violations for which the Secretary proposed a total Civil Penalty of $60,000.00. After
prehearing development, a hearing was held in Charleston, West Virginia, on March 5 and 6,
2002. Following the hearing, both sides filed written arguments. The entire record has been
carefully considered. Finding of fact and conclusions of law appear below.
The regulatory provisions at issue in this case are the following:
30 CFR § 77.501

Electric distribution circuits and equipment; repair.
No electrical work shall be performed on electric distribution circuits or equipment,
except by a qualified person or by a person trained to perform electrical work and to
maintain electrical equipment under the direct supervision of a qualified person. Opened
and suitably tagged by such persons.
895

30 CFR § 77.1710(d)

Required Protective Equipment
(d) A suitable hard hat or hard cap when in or around a mine or plant where
falling objects may create a hazard. If a hard hat or hard cap is painted,
nonmetallic based paint shall be used.
My task is to determine whether either or both of these regulations was violated and, if
so, what the appropriate penalty should be under the circumstances.
There appear to be two critical issues which drive the major conclusions to be drawn; (1)
was "electrical work" being performed at the time in question, and (2) were either of the persons
involved in any "electrical work" required to wear hard hats. The factual findings below are
directed primarily at those questions.

Factual Findings
During January 2000, Day Mining experienced difficulties with one of its electric
transformers. Tr. 361. The transformer was part of the Wet Branch substation. Tr. 28.
Management decided to ship the transformer to a service facility for repairs. A trucking company
was hired to haul the transformer; a crane operator was hired to lift the transformer out of the
substation onto the truck; and an electrical company was hired to disconnect the transformer
from the electric power network to· allow the transformer to be hoisted. Power to the
malfunctioning transformer was terminated but the remainder of the substation continued to be
energized. Removal of the transformed was scheduled for February 21, 2000, a Monday.
Day Mining management took the form of Richard Busick, Project Manager, whose
office was located a short drive from the Wet Branch substation. He made arrangements for the
several contractors required for removal and repair of the transformer. Tr. 414. Of particular
importance to this case, Mr. Busick decided to use Williams Electric for the disassembly of the
transformer and assistance to the crane operator in the hoisting process. Steve Williams was the
active employee for Williams Electric, in fact had been the owner of Williams Electric until a
short time prior to the events of interest in this case. Williams Electric was chosen for this job by
Mr. Busick because of Mr. Williams' reputation in the area for quality electrical work. There is
no suggestion in this case that Mr. Williams was anything other than a highly competent and
knowledgeable electrical contractor. In fact, however, he had allowed his certification as a mine
electrician lapse because of his failure to renew by taking continuing education. He had not been
certified for almost 20 years prior to the accident which gave rise to this claim. Tr. 48.
Sec. Ex. 20. Mr. Busick, likewise, had been certified as a mine electrician and had allowed his
certification to lapse.

896

The weight of the testimony suggests that for the 20 years since his certification was
allowed to lapse, Mr. Williams had been employed in the construction and repair of electrical
systems that were not energized and for which a certification under the regulations of the Mine
Safety and Health Administration was not required. Work on or around an energized electrical
system is a very different challenge from work on an electrical system that will be energized by
someone else. The Wet Branch substation is surrounded by metal fencing topped by barbed wire
and covered with signs warning of "High Voltage" in case anyone failed to notice the distinct
hum associated with high voltage transformers. Tr. 92. Mr. Busick never asked Mr. Williams
for evidence of mine electrical certification and Mr. Williams never offered a certification or
asked if certification would be required. Mr. Busick testified he was shocked later to discover
that Mr. Williams had allowed his certification to lapse so long before this work.
On the Friday morning before the scheduled removal of the Wet Branch transformer,
Mr. Williams paid a visit to Mr. Busick at his office. They discussed a number of subjects,
including the upcoming transformer removal, until Mr. Williams asked Mr. Busick to drive him
up to the substation to take a look at the equipment. Mr. Williams had identified several
potential work problems which might confront him on Monday and he wanted to satisfy himself
as to the condition of the site. He expressed particular concern with the fastenings which connect
the top of the transformer to the overhead wires. Tr. 235, 370.
Mr. Busick drove his truck out to the substation with Mr. Williams. Neither of them
took any tools or plans concerning the work. Tr. 491. Neither of them wore a hard hat. They
observed the substation from the outside for a few minutes and discussed the wooden cross-arms
which carried wires to the various transformers. Some of the cross-arms were to be disassembled
and removed to facilitate the crane lift of the transformer. Mr. Williams argued for a while that
the transformer could be removed without removing the cross-arms but Mr. Busick was firm that
the crane operator needed the cross-arms removed.
Mr. Williams then asked Mr. Busick to open the gate to the substation so he could enter
and look more closely at the details of the equipment. Mr. Busick initially stayed out of the
substation while Mr. Williams entered and walked around the equipment. Tr. 379.
Mr. Williams continued to look up at the cross-arms and the wire connection points. Finally,
Mr. Busick entered the substation to point out to Mr. Williams some small parts which earlier
had been removed from the transformer by other workers. Mr. Williams by this time was out of
sight further into the substation. Mr. Busick then heard "a sizzle, hard sound, and a grunt."
Tr. 382 He moved around the transformer in time to see Mr. Williams fall to the ground on the
other side of the transformer. Tr. 432. Mr. Busick attempted first aid but without success.
Subsequent examination showed that Mr. Williams died as a result of a high voltage contact to
the back of his head. A photograph of his baseball cap showed a burn to the back of the head.
Neither Mr. Williams nor Mr. Busick were wearing hard hats when they entered the
substation although both had such hats available without inconvenience. Use of a hard hat in the
mine industry is typical and not considered burdensome.
897

The electrical line which more likely than not was the source of injury to Mr. Williams
was located about 13 feet above ground. Mr. Williams was just over 6 feet tall. The only way he
could have contacted the wire would have been to climb the transformer on cooling fins on the
outside of the transformer. The first step in climbing the fins would have been over 30 inches
from the ground. The ware was located in compliance with the applicable industry standard.
Tr. 129, 263. The fins were not designed to serve as a ladder but would not be damaged by
climbing and were accessible by a reasonably agile person. Tr. 33. The wire was not hidden or
concealed. It would have been visible to Mr. Williams as he looked at the overhead cross-arms.
Mr. Williams climbed the transformer without tools and without an intent to perform current
physical work. His apparent intent was to take a closer look at the upper connections between
the transformer and power wires.
An expert witness employed by the Mine Safety and Health Administration testified in
his opinion if Mr. Williams had been wearing an ordinary hard hat when he contacted the wire,
he would not have received a serious injury. I accept this opinion as reasonably supported by
scientific evidence and analysis.
Analysis

Electrical Work in the Substation
The Secretary has the initial burden of showing evidence of each of the elements of the
claims alleged. The jurisdictional facts are not in dispute. It is also undisputed that neither Mr.
Williams nor Mr. Busick satisfied the requirements for a "qualified person" as that phrase is used
in 30 C.F.R. §77.501 that requires annual recertification under 30 C.F.R. §77.103(g). The issue
is whether the activities conducted by Mr. Williams and Mr. Busick within the Wet Branch
substation on the morning of February 18, 2000, constituted "electrical work" within the meaning
of the regulation. If "electrical work" was performed, the required qualified persons were not
present and the regulation was violated.
The words used in 30 C.F.R. §77.501, and the context of the regulation in a subpart
entitled Electrical Equipment, imply technical meanings which the Secretary is entitled to
interpret. That interpretation must be given deference in this forum unless it is patently
unrealistic. Kaspar Wire Works, Inc. v. Secretary ofLabor, 268 F.3d 1123 (D.C. Cir. 2001 ).
The Secretary has made only limited use of this authority to supply useful interpretations of this
regulation. Exhibits 14 and 18 supplied by the Secretary contain almost the same words in
describing the intention of the Secretary in applying this regulation. What can be gleaned from
these interpretations is the intention to apply the regulation broadly to separate insufficiently
trained persons from a substantial hazard. I find it particularly significant that the interpretation
includes design work as part of electrical work. I interpret design work to include activities like
measurement, inspection, comparison, simulation and similar activities with very limited use of
tools other than the hands and the brain. Respondent's argument that no work was contemplated
by Mr. Williams and Mr. Busick because they did not bring tools with them is overly simplistic.
898

That Mr. Williams died without a tool in his hand is very hard evidence of the hazard involved
even without tools.
I conclude that Mr. Williams went to the Wet Branch substation to perform electrical
work within the meaning of30 C.F.R. § 77.501 in the form of inspection, measuring, planning,
simulation, and alternative analysis. The substation was energized at the time of his visit and
constituted a work site subject to the regulation. In the course of performing this electrical work
he climbed the transformer as he would have done many times in working on nonenergized
facilities. During that climb his head contacted a hot wire and he died.
Mr. Busick argued in his testimony with some force that there was no way he could be
expected to have anticipated that Mr. Williams would climb the transformer out of a safe area
and into danger. But his argument misses the point of designating an area as requiring special
qualifications to enter. The area is so hazardous there are only in two ways can it properly be
entered; (1) by a qualified person or people performing under the direct supervision of the
qualified person, or (2) by a person who has a specific, narrowly defined job to do in a safe zone
and then withdraw. A person entering an electric substation must either know in detail what is
safe or must act very specifically on the instructions of someone who does know what is safe.
Mr. Williams, by definition under the regulation, did not know what was safe in an energized
substation. He should not have been permitted to walk around the inside of the substation as
though he did know.
Hard Hat Use

It is not seriously disputed that the Wet Branch substation was free of dangers from
falling objects. There was some testimony as to the possibility that a cracked wooden overhead
cross-arm might constitute a falling hazard, but no solid conclusions can be reached. There was
also testimony speculating as to the hazards from an unanticipated electrical explosion, as in the
event of a massive power surge. The issue as to hard hats is whether an energized substation
constitutes an area of electrical hazard that would require the use of hard hats, without regard to
overhead risks. That it is likely that Mr. Williams might be alive today if he had worn a hard hat
on February 18, 2000, does not affect the legal question of whether a hard hat was required.
In applying a regulation to a particular set of facts, I am required to apply the plain
meaning of the words used rather than to attempt to imply intended meanings imperfectly
expressed. On the other hand, I am required to use all of the language of the regulation that can
be reasonably applied rather than to pick and chose language to reach a particular result. I am
required to give purpose and meaning to the entire regulation to the extent possible. The words
should be given their natural meaning rather than a meaning known only to regulation writers.
McCuin v. Secretary ofHealth and Human Services, 817 F.2d 161 (1st Cir. 1987)

In this context it is important to note the words used in the second sentence of the
regulation; "If a hard hat or hard cap is painted, nonmetallic based paint shall be used." The

899

conjunction of hat and nonmetallic paint cries out a concern with electrical hazards of some sort.
The second sentence has no reasonable function in the regulation if it does not relate to electrical
hazards. A falling rock does not care about the kind of paint used on the hard hat it hits. A
reasonable person reading this regulation would be prompted to ask the question, "Does this also
apply to solely electricaJ hazards?"
The answer to this question is readily found in the Mine Safety and Health
Administration's Policy and Procedure Manual (PPM) as it relates to 30 C.F.R. §77. l 7010(d).
G. Exh. 15. The PPM very unequivocaJly says the purpose of the regulation includes "to protect
miners against electrical shock or burn." This clear interpretation of the inartful language of the
regulation is entitled to deference from the Commission. The effect of this interpretation is not
avoided by the rnles requiring fair notice of prohibited conduct. Comparison of the hard hat
regulation with the regulation at issue in Morton International, Inc. v. Secretary o.fLabor, 18
FMSHRC 533 (April 1996) illustrates the principal of fair notice. In Morton, supra, the
Commission was dealing with a regulation on mine ventilation. The Secretary argued that the
regulation limiting methane levels applied to abandoned areas of a mine. This interpretation was
contrary to express language of the regulation as amended. The contrary interpretation of the
regulation attempted by the Secretary depended on a reader understanding an error expressed by
the Secretary in the preamble to the regulation that amended the original regulation. The
Commission found this to not constitute fair notice of the prohibited conduct, i.e., the failure to
ventilate the abandoned mine.
ill Morton the Commission held only that "fair notice" cannot be implied from the
possibility that a person might notice an error in a preamble which would infer an intent contrary
to the expressed intent in a regulation. No such convoluted search for meaning is necessary here.
The regulation, by it's express terms, is concerned with electrical hazards and a publication
generally available to the public (now accessible through the MSHA Internet Web Site) makes
the required (or prohibited) conduct crystal clear.
I find that 30 C.F.R. §77.17010(d) applies to persons performing electrical work in an
energized substation of a coal mine. The regulation requires the use of a hard hat. That
regulation was violated at the time Mr. Williams and Mr. Busick stepped inside the Wet Branch
substation.

Appropriate Penalty
My task now is to apply the statutory criteria for penalty amounts to the facts as I have
found them above. It is undisputed that the mine was in an active but unproductive status. The
Secretary made no effort to show a significant history of safety regulation violations. There was
no evidence produced to suggest that a Civil Penalty in the amount proposed by the Secretary
would compromise the ability of the Respondent to continue in business .

.'

900

This leaves three factors to be considered; degree of negligence, gravity of the risks, and
efforts to abate or mitigate the violations. The principles established by the Commission for
consideration of these factors are well known. See, for example, Secretary ofLabor v. GuntherNash Mining, 20 FMSHRC 1205 (Oct. 1998)
Negligence
The key to analysis of negligence is the standard of care demanded of a coal mine
operator. The mining business is considered hazardous. People engaged in the business of
mining must be constantly alert for risks of injury. Actions which might be considered merely
careless elsewhere are significant negligence in a mining context.
Day Mining made at least two mistakes in connection with the visit by Mr. Williams to
the Wet Branch substation. First, there was a failure to verify the qualifications of Mr. Williams
to be in the substation while it was energized. Because this failure began a cascade of
consequences, what would otherwise seem mere careless in light of Mr. Williams long history of
electrical work was really negligence. Since the circumstance of spur-of-the-moment planning
by an assumed expert is a highly unusual event, I find the negligence is low rather than moderate.
Gravity
A violation of a mine safety regulation is "significant and substantial" if the violation
creates a situation in which there is a reasonable likelihood of an injury of a reasonably serious
nature. In my judgement, an energized substation is a place where only serious injuries are
experienced, i.e., the knowledge or luck of the person in the substation either results in no injury
at all or in a serious injury with real risk of death. The injury suffered here, obviously, was quick
and fatal.
Abatement or Mitigation
Because electrical transformers do not need replacement on regular intervals, abatement
or mitigation specific to the Wet Branch substation is difficult to identify. The record is empty of
any suggestion that Day Mining has implemented any generic mitigation measures to give greater
assurance that the qualifications of contractors will be more closely examined in the future. The
record is likewise empty of any suggestion that hard hats will be required in electrical Day
Mining substations. It is sufficient to say that the Respondent received no credit at all from this
lSSUe.

Penalty Amounts
While the conduct of Day Mining certainly resulted in a violation of mine safety
regulations, the combination of unique circumstances and benign motivation makes the amounts
proposed by the Secretary seem excessive. The Secretary offered nothing but oratorical outrage
901

to support the amounts. The purpose of a Civil Penalty is to focus management attention on
hazard prevention by economic coercion. The amount of the Civil Penalty should not be related
in any way to the extent or character of the injury which resulted from the violation. In my
judgement that purpose would be best served by a Civil Penalty of $5,000.00 for each of the two
·
violations.

ORDER ·
For the reasons given above, it is ORDERED that the Respondent pay a Civil Penalty of
$10,000.00 within 60 days of the date of this Order. The parties are each to bear their O\vn costs.

Irwin Schroeder
Administrative Law Judge
Distribution:
Yusuf Mohamed, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Suite 516, Arlington, VA 22203 (Certified Mail)
David J. Hardy, Esq., Heenan, Althen & Roles, LLP, P.O. Box 2549, Charleston, WV 25329
(Certified Mail)

l

902

ADl\DNISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

September 4, 2002
CONTEST PROCEEDINGS

AGGREGATE INDUSTRIES, WEST
CENTRAL REGION, INC.,
Contestant

Docket No. WEST 2002-317-RM
Citation No. 7914271; 01/22/2002

v.
Docket No. WEST 2002-318-RM
Citation No. 7914268; 01 /24/2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Docket No. WEST 2002-319-RM
Citation No. 7914269; 0112412002
Docket No. WEST 2002-320-RM
Citation No. 7943951; 01 /31/2002
Fort Collins Plant
Id. No. 05-04733

ORDER DENYING CONTESTANT'S MOTION TO COMPEL
Aggregate Industries West Central Region, Inc., ("Aggregate Industries") filed a motion
to compel and for other appropriate relief. Aggregate Industries served requests for the
production of documents on the Secretary. The Secretary responded to the requests, but
Aggregate Industries alleged that she did not fully comply with Requests No. 3, 4, and 5.
In reply, the Secretary stated that she provided 307 pages of documents to Aggregate
Industries and provided 170 additional pages relating to Request Nos. 3 through 5, after
discussing the matter with counsel for Aggregate Industries. She also stated that, as a
consequence, the only matter in dispute is the Secretary's response to Request No. 5. The
Secretary asks that the motion to compel be denied because Request No. 5 seeks irrelevant
info1mation.
In response, Aggregate Industries contends that it is entitled to the documents listed in
Request No. 5 because the request is reasonably calculated to lead to the discovery of
information relevant to these proceedings. Aggregate Industries argues that the Secretary is not
proceeding in good faith and asks for attorney's fees.

Request No. 5 states as follows: "Produce for inspection and copying all citations issued
by MSHA in the Rocky Mountain District alleging violations of30 C.F.R. §§ 56.12016,
56.11001 , 56.12008, and/or 56.18014." Aggregate Industries believes that it is entitled to these
903

documents in order to determine whether the Secretary has been consistently enforcing these
standards. In the alternative, it asks for a statistically reliable sample of citations for each safety
standard. The Secretary contends that the citations sought by Aggregate Industries were issued
under a wide variety of factual situations that have no relevance to the log washer accident that
gave rise to the citations in these cases. She also objects because it seeks thousands of pages of
documents that will require hundreds of personnel hours to locate. Thus, she contends that the
request is overly burdensome.
For the reasons set forth below, I deny Aggregate Industries' motion to compel the
production of documents. The documents in question have little or no relevance in these
proceedings. Whether the Secretary has enforced the cited safety standards in exactly the same
manner at every mine throughout MSHA's Rocky Mountain Region is not relevant. Inconsistent
enforcement of a safety standard at a particular mine may mitigate the negligence of that operator
with respect to an alleged violation. In some situations, inconsistent enforcement of a safety
standard at a mine can be the basis for vacating a citation at that mine. But the fact that a safety
standard was applied differently at another mine is not a defense to an otherwise valid citation.
When the Commission determines whether an operator violated a safety standard, it first
considers whether the language of the standard is plain or ambiguous. If it is ambiguous, the
Commission decides whether the Secretary's interpretation is reasonable. The Commission must
defer to the Secretary's interpretation of a standard as long as it is reasonable, consistent with the
statutory purpose, and not in conflict with the statute's plain language. Coal Employment Project
v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989). The Commission also looks to see if the operator
received fair notice of the Secretary's interpretation of the standard by asking "whether a
reasonably prudent person familiar with the mining industry and the protective purpose of the
standard would have recognized the specific prohibition or requirement of the standard." Ideal
Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). Prior decisions of the Commission,
including the decisions of administrative law judges, provide notice of the proper interpretation
of a safety standard. The Commission does not analyze whether the Secretary has applied a
safety standard in exactly the same manner throughout the country or in an MSHA region when
determining whether an operator violated the standard.
It appears from the parties' filings that there were about 2,230 citations issued in MSHA 's
Rocky Mountain Region under these four safety standards. The Secretary provided Aggregate
Industries with a computer printout listing these citations, which included such information as the
mine identification number, whether the violation was significant and substantial, and the date of
the citation. Although providing this printout was relatively easy for the Secretary, searching
through MSHA 's records for these citations will be an immense task. I credit the Secretary's
representations in this regard. (S. Statement in Opposition, 8-10).

I find that the burden of providing these documents far outweighs any benefit to
Aggregate Industries or the Commission under Fed. R. Civ. P. 26(b)(2)(iii). Under this rule, a
judge can determine that a discovery request is unduly burdensome if "the burden or expense of

904

the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the
amount in controversy, the parties' resources, the importance of the issues at stake in the
litigation, and the importance of the proposed discovery in resolving the issues." The advisory
committee notes to the 1983 amendments to Rule 26 state that this provision was added to
"encourage judges to be more aggressive in identifying and discouraging discovery overuse."
The proposed discovery request will not help resolve any of the issues in these cases and is
highly unlikely to lead to evidence that will.
Consequently, Aggregate Industries' motion ~o compel and for other appropriate relief is
DENIED in all respects because the documents sought are not relevant to these proceedings, the
document request is unlikely to lead to the discovery of relevant evidence, and the burden of
providing the documents far outweighs any benefit to Aggregate Industries.

Richard W . Manning
Administrative Law Judge

Distribution:
James J. Gonzales, Esq., Hollan~ & Hart, 555 Seventeenth St., Ste 3200, Denver, CO 802023921
John Rainwater, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550

RWM

905

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEYARD #280
DENVER, CO 80204-3582
303-844-3577IF AX 303-844-5268

September 6, 2002
THOMAS P. DYE II,

DISCRIMINATION PROCEEDING
Complainant
Docket No. WEST 2002-408-DM
RMMD02-1 1

v.

Mine I.D. 05-01732
Cotter Mill

MINERAL RECOVERY SPECIALISTS, INC., :
Respondent
PREHEARING ORDER
This proceeding was brought by Thomas P. Dye against Mineral Recovery Specialists,
Inc., ("MRS!") under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. ("Mine Act") and 29 C.F.R.§ 2700.40 et seq. The complaint alleges, in part,
that MRSI violated section 105(c) of the Mine Act when it did not hire Dye as a permanent
employee because he insisted that a recently repaired piece of equipment be fully safety-tested
before it was put back into service. MRSl has retained counsel who states that he will be filing a
more complete response to
Mr. Dye's complaint. Section 105(c)(3) of the M ine Act provides that proceedings under section
105(c) shall be "expedited by the ... Commission."

-·

It is important for Mr. Dye and MRS! to understand the limits of my jurisdiction. I do not
have authority to determine whether any actions taken against Mr. Dye by MRS! were unfair and
unreasonable unless such actions violated the anti-discrimination provisions of the Mine Act at
30 U.S.C. § 815(c). Under that provision, a mine operator is prohibited from discriminating
against a miner or applicant for employment because he complained about safety or health
conditions at the mine or refused to perform a task that he reasonably and in good faith believed
presented a hazard to his safety or health. A miner's safety complaints or actions are known as
"protected activity." A mine operator may not take adverse action against a miner for such
protected activity.

If the parties are unable to settle the case and if the case is not otherwise dismissed, a
formal hearing will be held. The issues at the hearing will include whether MRS! discriminated
against Mr. Dye. At a hearing, Mr. Dye will be required to present evidence that he engaged in
protected activity and that MRSI's adverse actions were motivated at least in part by that
protected activity. MRS! may attempt to rebut Mr. Dye's case at the hearing by presenting
evidence that either no protected activity occurred or that the actions taken with respect to Mr.
Dye were in no part motivated by the protected activity. If MRS! is unable to present such
906

evidence, it may present evidence that the actions it took with respect to Mr. Dye were also
motivated by unprotected activities and that it would have taken these actions for the unprotected
activity alone.
The Federal Mine Safety and Health Review Commission is not part of the Department of
Labor's Mine Safety and Health Administration (MSHA). Section 105(c)(3) of the Mine Act
authorized Mr. Dye to file this case on his own behalf. This provision provides him with an
opportunity to try to establish that he was discriminated against. Consequently, this case is not
an appeal of MSHA' s decision not to file a discrimination complaint on behalf of Mr. Dye, but it
is a new, independent p~oceeding brought by Mr. Dye on his own behalf. I do not have the
authority to review MSHA's investigation to determine whether it was compete~t or to determine
whether MSHA's decision to not bring a case was defensible. Neither MSHA nor the Secretary
of Labor is a party in this proceeding. If Mr. Dye and MRSI are not able to settle this case, Mr.
Dye will be required to present evidence at a hearing to establish that MRSI discriminated
against him in violation of section 105(c) of the Mine Act, as described above.
1. MRSI shall file its answer in this case on or before September 20, 2002. In order to
encourage the parties to settle this case, counsel for MRSI shall contact Mr. Dye to discuss
settlement. The parties shall confer as often as necessary to negotiate a settlement. If the parties
are unable to settle the case, they shall attempt to narrow the issues, enter into stipulations, and
discuss proposed hearing dates.
2. On or before October 18, 2002, the parties shall initiate a conference call with me to
discuss the status of the case, potential hearing dates, and othe( matters that they wish to discuss.

Richard W. Manning
Administrative Law Judge

Distribution:
Mr. Thomas P. Dye, 1428 S 4th Street, Canon City, CO 81212-9664
Van F. McClellan, Esq., Bearfield & McClellan, P. 0. Box 4210, Johnson City, TN.37602-4210
RWM

907

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

September 9, 2002
BECON CONSTRUCTION, INC.,
Contestant

CONTEST PROCEEDING
Docket No. WEST 2001-204-RM
Citation No. 7994802; 01/02/2001

v.

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

Lebec Cement Plant
Mine ID 04-00213 AF6
CONTEST PROCEEDING

MORTON ENGINEERING AND
CONTRACTING, INC.,
Contestant

Docket No. WEST 2001-226-RM
Citation No. 7994802; 0110212001

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

Lebec Cement Plant
Mine ID 04-00213 8FQ

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 2002-147-M
A.C. No. 04-0021 3-05502 AF6

v.
BECON CONSTRUCTION COMPANY,
Respondent

Lebec Cement Plant

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 2002-164-M
A.C. No. 04-00213-05504 8FQ

v.
MORTON ENGINEERING &
CONSTRUCTION, INC.,
Respondent

Lebec Cement Plant

908

ORDER DENYING AUTOMATIC STAY
These consolidated contest and civil penalty proceedings have been stayed to pennit
the parties to complete discovery on or before October 8, 2002. The parties have agreed that
November 19, 2002, is a satisfactory hearing date.
On August 15, 2002, Morton Engineering & Construction, Inc.(Morton), citing 11
U.S.C. § 362, filed a motion for an automatic stay because of its voluntary bankruptcy
petition filed under Chapter 11 of the Bankruptcy Act. The Secretary opposed Morton's
motion on August 27, 2002.
As noted by the Secretary, although 11 U.S.C. § 362(a) provides that the filing of a
bankruptcy petition under 11 U.S.C. § 301 operates as an automatic stay of specified
proceedings against a bankruptcy petitioner, section 362(b)(4) of the Bankruptcy Act exempts
the continuation of a proceeding involving governmental regulatory enforcement from the
automatic stay provisions. The Mine Safety and Health Administration (MSHA), the
petitioner in the instant proceedings brought pursuant to the regulato1y powers delegated to it
under the Federal Mine Safety and Health Act, 30 U.S.C. § 801 et seq. (1994), is a
"governmental unit" as defined by section 101 (27) of the Bankruptcy Act, 11 U.S.C. §
101(27).
Consistent with the above statutory analysis, this Commission has consistently held
that MSHA proceedings are not subject to the automatic stay bankruptcy provisions of section
362. Secy ofLabor olblo Michael L. Price and Joe John Vacha v. Jim Walter Resources,
Inc., 12 FMSHRC 1521, 1528-30 (August 1990); Sec'y v. L. Kenneth Teel, 13 FMSHRC
1915, 1916-17 (December 1991) (ALJ). Accordingly, Morton Engineering & Construction,
Inc.' s motion for an indefinite automatic stay as a consequence of its bankruptcy filing IS
DENIED. Although the stay of these matters shall continue to permit completion of
discovery, the anticipated hearing date of November 19, 2002, remains in effect.

Jerold Feldman
Administrative Law Judge
· Distribution: (Certified Mail)
Kevin J. McNaughton, Esq., Schaffer & Lax, 5757 Wilshire Boulevard, Suite 600, Los
Angeles, CA 90036-03664
Stephen T. Clifford, Esq., Clifford & Brown, Bank of America Building, 1430 Truxtun
Avenue, Suite 900, Bakersfield, CA 93301-5230
Jason Vorderstrasse, Esq., Office of the Solicitor, U.S. Department of Labor, World Trade
Center, 350 South Figueroa Street, Suite 3 70, Los Angles, CA 90071-1202

909

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

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

September 11, 2002
CIVIL PENALTY PROCEEDINGS
Docket No. CENT 2002-127-M
A.C. No. 13-02194-05501
Docket No. CENT 2002-193-M
A.C. No. 13-02194-05502

V.

KNAAK SAND,
Respondent

Knaak Sand

ORDER DENYING REQUEST FOR RECUSAL
On June 6, 2002, I conducted a telephone conference with James V. Knaak, sole
proprietor of Knaak Sand, and Thomas J. Pavlat, a Conference & Litigation Representative of the
Mine Safety and Health Administration. During the telephone conference Mr. Knaak raised
jurisdictional questions. Consistent with this Commission's decision and 'the longstanding
Federal appellate case law cited in Jerry Ike Harless Towing, Inc., 16 FMSHRC 683 {April
1994), I informed Mr. Knaak that sand and gravel facilities generally are subject to Mine Act
jurisdiction.
In correspondence dated August 23, 2002, Mr. Knaak, citing the June 6 telephone
conference that addressed the issue of jurisdiction, stated "[i]n fairness to me, I believe I should
have a different judge, that will at least listen to me before he finds in favor of the government."
I construe the
August 23 letter as a request for recusal.
In response to Mr.. Knaak's August 23 letter, on September 11, 2002, I initiated a
telephone conference with Mr. Knaak and the Secretary's counsel Edward Falkowski. I again
explained the case law concerning Mr. Knaak's jurisdictional objections. I reque~ted Mr.
Falkowski to provide a copy of the Commission's Harless decision for Mr. Knaak's information.
I assured Mr. Knaak that I had not prejudged his case . However, I also emphasized that, in
deciding this matter, I was bound by statutory law and case precedent.

Commission Rule 55(£), 29 C.F.R. § 2700.55(£), authorizes the presiding judge to hold
conferences in an effort to simplify issues. Mr. Knaak's apparent disappointment with regard to
the case law as it relates to his jurisdictional objections does not provide a basis for my recusal.
Accordingly, the request for recusal IS DENIED. Consequently, the hearing will convene as
scheduled at 9:00 a.rn. on Wednesday, O ctober 16, 2002. The hearing location will be
specified in a subsequent Order.

910

Distribution: (Certified Mail)
Edward Falkowski, Esq., Office of the Solicitor, U.S. Department of Labor,
1999 Broadway, Suite 1600, Denver, CO 80201
James V. Knaak, Knaak Sand, Box 1, Eldon, IA 52554
/hs

911

912 -k U.S. GOVERNMEl'ff PRINTING OFFICE: 2002

496-533175253