SEPTEMBER AND OCTOBER 2006

COMMISSION DECISIONS AND ORDERS

09-29-2006
09-29-2006
10-10-2006
10-17-2006
10-30-2006
10-30-2006

Speed Mining, Inc.
hnerys Pigments, LLC.
Hosea 0. Weaver & Sons, Inc.
George P. Reintjes Company, Inc.
Oak Grove Resources, LLC.
Drummond Company, Inc.

WEVA 2005-20-R
SE 2005-236-M
SE 2005-301-M
KENT 2004-37-M
SE 2005-250
SE 2007-1

Pg. 773
Pg. 788
Pg. 803
Pg. 806
Pg. 809
Pg. 813

CENT 2005-139-M
SE 2004-68-M
WEYA 2006-788-R
WEST 2003-451-M

Pg.817
Pg.835
Pg.842
Pg.848

SE 2006-319-DM
SE 2002-111
WEVA2005-221-R

Pg.884
Pg.886
Pg.888

WEVA 2006-788-R
WEVA 2006-629-R
WEYA 2006-712-R
WEYA 2006-824-R
WEYA 2006-716-R
WEVA 2006-737-R
PENN 2002-23-C
WEYA 2006-824-R
PENN 2006-217-RM
SE 2006-328-RM

Pg. 890
Pg. 892
Pg.896
Pg. 898
Pg. 900
Pg. 902
Pg.904
Pg. 910
Pg. 912
Pg. 917

ADMINISTRATIVE LAW JUDGE DECISIONS

09-11 -2006
09-22-2006
09-27-2006
09-29-2006
10-06-2006
10-18-2006
10-23-2006

Bob Bak Construction
Master Aggregates Toa Baja Corp.
Marfork Coal Company, Inc.
Qmax Company
Sec. Labor o/b/o Mary Jane Osbon v.
R.E. Grills Construction Co.
Sedgman and David Gill, empl. By Sedgman
Anker West Virginia Mining Co.

ADMINISTRATIVE LAW JUDGE ORDERS

09-11 -2006
09-28-2006
09-29-2006
09-29-2006
10-11-2006
10-11-2006
10-24-2006
10-24-2006
10-26-2006
10-31-2006

Marfork Coal Company, Inc.
Spartan Mining Company
Highland Mining Company
Aracoma Coal Company, Inc.
Raw Sales & Processing Co.
Stirrat Coal Company
UMWA, Local 1248 v. Maple Creek Mining
Aracoma Coal Company, Inc.
Laurel Aggregates, Inc.
Austin Powder Company

i

SEPTEMBER AND OCTOBER 2006

No cases were filed in which Review was granted during the months of Ss>tember and October:

Review was denied in the following case during the months of September and October:

Secretary of Labor, MSHA v. Summit Anthracite, Inc., Docket No. PENN 2006-191.
(Judge Melick, August 21, 2006)
Secretary of Labor, MSHA v. Hosea 0. Weaver & Sons, Inc., Docket No. SE 2005-301-M, et al.
Denial of Weaver's Petition for Interlocutory Review. (Judge Barbour, July 13, 2006)

ii

COMMISSION DEQSIONS AND ORDERS

· FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW J ERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

September 29, 2006
Docket Nos. WEVA 2005-20-R
WEVA2005-21-R
WEVA 2005-22-R
WEVA 2005-23-R
WEVA 2005-24-R
WEVA 2005-25-R
WEVA 2005-97

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

v.
SPEED MINING, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY: Jordan and Young, Commissioners
On January 10, 2006, the Commission granted the petition for discretionary review filed
by the Secretary of Labor in the above-captioned proceeding. The Secretary's appeal raised the
issue of the responsibility of the mine operator, Speed Mining, Inc. ("Speed"), for violations
committed by an independent contractor. The administrative law judge had dismissed the
citations and the associated civil penalty proceeding against Speed, relying on the Commission's
decision in Twentymile Coal Co., 27 FMSHRC 260 (Mar. 2005).

The Court of Appeals for the D.C. Circuit has reversed the decision of the Commission in
Twentymile Coal Co., holding that the Secretary's decision to cite the owner-operator of a mine,
as well as its independent contractor, is an exercise of her prosecutorial discretion that is
unreviewable. Sec'y ofLabor v. Twentymile Coal Co., 456 F.3d 151 (D.C. Cir. 2006). 1 In light

1

Commissioner Young shares the Chairman's concerns regarding the D.C. Circuit
Court's decision in Twentymile and agrees with the Chairman's thoughtful analysis of the Mine
Act in his concurrence. Regrettably, the Circuit Court has consistently maintained a different
view of this Commission and has repeatedly applied Martin v. OSHRC, 499 U.S. 144 (1991), to
cases arising under the Mine Act, in spite of the differences the Chairman has noted in the
respective organic statutes and the "available indicia oflegislative intent," Martin, 499 U.S. at
157, reflecting Congress' will to empower the Commission to provide meaningful review of all
issues brought before it. Commissioner Young nevertheless declines to join the Chairman's
28 FMSHRC 773

of the court' s decision, we remand·the case to the judge forr~consideration ofhis :dismissal of
the citations and the civil penalty pro~eeding.
·

~ ~~
MLt;fun,
coJill6'sioner

.

·.

.
. .
concurring opinion because the Twentymi/e decision is in accord with precedent in the D.C.
Circuit and the principle of stare decisis controls our decision in the instant case. ,

28 FMSHRC 774

Chairman Duffy, concurring:
I join with my colleagues in remanding this matter to the judge for further proceedings
consistent with the Court's decision in Secretary ofLabor v: Twentymile Coal Co. and Federal
Mine Safety and Health Review Commission, 456 F.3d 151 (D:C. Cir. 2006). Nevertheless, I
respectfully take issue with several of the Court's asswnptions used to support its view that,
under the Mine S~ety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) (''Mine Act"), this
Review Commission lacks "authority to determine policy issues," 456 F.3d at 160, and "is not as
a general matter authorjzed to review the Secretary's exercise of prosecutorial discretion." Id. at
161.
Indeed, the Court ~ppears to have expansively addressed issues that were not before it.
On the perennially disputed issue of whether a blameless mine owner-operator can be held liable
for violations committed by its independent contractor, the Court could ·s imply have cited the
relevant precedents, found the Commission's reasoning in this case insufficient to overcome those
precedents, and have been done with it. Instead, the Court has inappropriately applied the
Supreme Court's decision in Martin v. Occupational Safety and Health Review Commission, 499
U.S. 144 (1991).
.
The D.C. Circuit, at firstblush, correctly renders the view of the Supreme Court· in Martin:
· Martin involved review under the Occupational Safety arid
Health Act ("OSH Act"), in which, like the Mine Act, "Congress
separated enforcement and rulemaking powers from adjudicative
powers, assigning these respective functions to two different
administrative authorities." Under the OSH Act, the former
functions are assigned to the Secretary of Labor and the latter to the
Occupational Safety and Health Review Commission (OSHRC);
under the Mine Act, the former are again assigned to the Secretary
of Labor and the latter to the Federal Mine Safety and Health
Review Commission (FMSHRC). Under this "split enforcement''
structure, the Court held, "enforcement of the Act is the sole
responsibility of the Secretary." Moreover, since "Congress did not
invest the Commission with the power to make law or policy by
other means, we cannot infer that Congress expected the
Commission to use its adjudicatory power to play a policymaking
role."[1]
456 F.3d. at 160-61 (citations omitted).

1

For reasons that will be made clear below, it is important to note that, in the quote from
Martin, the only "Commission" to which the Supreme Court is referring is the Occupational
Safety and Health Review Commission ("OSHRC"), not this Commission.
28 FMSHRC 775

The D.C. Circuit goes on to extrapolate from the Supreme Court's decision in Martin a
·
··
severe limitation on this Commission's separate authority under the Mine Act:
We have previously, and repeatedly, applied Martin's ·
analysis to the Mine A.ct. We do so here as well. As is truct under
the OSH Act, "enforcement of the [Mine] Act is the sole
responsibi.l ity of the Secretary," and the Com.mission has no
"policymaking role." fustead, "Congress intended to delegate to the
Commission the type of nonpolicymaking adjudicatory powers
typically exercised by a court in the agency-review context."
"Under this conception of adjudication, the Commission is
authorized to review the Secretary's interpretations only for
consistency with the regulatory.language and for reasonableness."
And, like. a court, the Commission is not as,a general matter
authorized to review the Secretary's exercise of prosecutorial
discretion.
456 F.3d at 161 (citations omitted; alteration in original).
H~wever, the Court ignores the fundamental cav~t expre~sed by the Supreme Court in

Martin, i.e., that its decision was limited strictly to the split enforcement structure adopted in the
Occupational Safety and Health Act of 1979, .29 U.S.C. § 65_1 et seq. C'OSH Act"):
We emphasize the narro.wness ofour holdil,zg. We deal in ·
this case only.with the division ofpowers between.the Secretary and
the Commission under the OSH Act. We conclude from the
.
available indicia oflegislative intent that Congress did not intend to
sever the power authoritatively to interpret OSH Act regulations
from the Secretary's power to promulgate and enforce them.
Subject only to constitutional limits, Congress is free, of course, to
divide these powers as it chooses, and we take no position on the
division ofenforcement and interpretive powers within other
regulatory schemes that conform.to the split-enforcement struclur~.

499 U.S. at 157-58 (emphases added).
Seven years after passage of the OSH Act, Congress did, indeed, divide the respective
powers of the Secretary and this Commission, and it did so along lines far different from and

28·FMSHRC 776

much clearer than those set forth in the earlier statute. A simple side-by-side comparison of the
statutory provisions establishing the two Commissions is most instructive:2
THE FEDERAL MJN:E SAFETY AND
HEALTH REVIEW COMMISSION
Section 113. (a) The Federal Mine Safety
and Health Review Commission is hereby
established. The Commission shall consist
of five members, aJ?pointed by the President
by and with the advice and consent of the
Senate, from among persons who by reason
of training, education, or experience are
qualified to carry out the functions of the
Commission under this Act. The President
shall designate one of the members of the
Commission to serve as Chairman.

*

*

* .

*

( c) The Commission is authorized to
delegate to any group of three or inore
metl).bers any or all of the powers of the
Commission, except that two members shall
constitute a quorum of any group designated
pursuant to this paragraph.

*

*

OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION
Section 12. (a) Establishment; membership;
appointment; Chairman
The Occupational Safety and·Health·Review
Commission is hereby established. The
Commission shall be composed of three
members who shall be appointed·by the
President, by and with the advice and
consent of the Senate, from among ·persons
who by reason of training, education, or
experience are qualified to carry out the
functions of the Commission under this
chapter. The President shall designate one of
the members of the Com.mission to serve as:
Chairman.

•*

(f) Quorum; official action
For the purpose of carrying out its functions
under this chapter, two members of the
Commission shall constitute a quorum and
official action can be taken only on the
affirmative vote of at least two members.

*

*

(d)(l) An administrative law judge appointed
by the Commission to hear matters under this
Act shall hear, and make a determination
upon, any proceeding instituted before the
Commission and any motion in connection
therewith, assigned to such administrative
law judge by the chief administrative law

*

*

*

(j) Administrative law judges;
determinations; report as final order of
Commission
An administrative law judge appointed by·
the Commission shall hear, and make a
determination upon, any proceeding
instituted before the Com.mission and any

2

For the sake of brevity, non-germane, "housekeeping" sections dealing with such ··
matters as location of offices, authority to hire or transfer administrative law judges, etc., have ·
been deleted from the comparison. Certain provisions of section 12 of the OSH Act have been
rearranged to coincide with their counterparts iti the Mine Act.
28 FMSHRC 77'7

judge of the Commission qr by the
Commission, and shall make a decision .
which constitutes his final disposition of the
proceedings. The decision of the
administrative la'Y judge of the Commission
shall become the final decision of the
Commission 40 days after its issuance unless
within such period of the ~ommission has
directed that such decision shall be reviewed
by the Commission in accordance with
paragraph (2). An administrative law judge.
shall not be assigned to prepare a
recommended decision under this Act.

*

*

*

*

(d)(2) Th~ Gommission shall prescribe rules
of procedur.e for its review of the decisions
of administrative law judges in cases under
this Act which shall meet the following
standards for review:

*

*

motion in connection therewith? as$igned to
. such administrative la~ judge by the
Chairman of the Commission, and shall
make a report of any such .determination
which constitutes his fuial disposition of the
proceedings. The report of the
administrative law judge shall become the
final order of the Commission within thirty
days after such report.QY the adininistrative
law judge, unless within silch penod any
Commission member has directed that such
report shall be reviewed by the Commission.

*

(g) Hearings and records open to public;
promulgation of rules; applicability of
Federal Rules of Civil Procedure
Every official act of the Commission shall be
entered of record, and its hearings and
records shall be open to the public. The
Commission is authorized to m,a ke such rules
as are nec~ssar}r. for the orderly.transa~tio~ of
its procee<;lings. Unless the Conlmission ·has
adopted a different 'r ule, its proceedings shall
be in accordance with the Federal Rules of
Civil Procedure.

*

*

(d)(2)(A)(i) Any person adversely affected or
aggrieved by a decisio~ of an administrative
law judge, may file and serve a petition for
discretionary review by the Commission of
such decision within 30 days after the
issuance of such decision. Review by the .
Commission shall not be a matter of right but
of the sound discretion of the Commission.

*

*

[No comparable provision]

(ii) Petitions for discretionary review shall be
filed only upon .one .o r more of the followi,ng..
grounds.:
28 FMSHRC 778

*

(I) A finding or conclusion of material
fact is not supported by substantial
evidence.
(Il) A necessary legal conclusion is erroneous.
(III) The decision is contrary to law or to
the duly promulgated rules or decisions of
the Commission.
(IV) A substantial questio11 oflaw, policy
or discretion is involved.
(V) A prejudicial error of procedure was
committed.
(iii) Each issue shall be separately numbered
and plainly and concisely stated, and shall be
supported by detailed citations to the record
when assignments of error are based on the
record, and by statutes, regulations, or
principal authorities relied upon. Except for
good cause shown, no assignment of error by
any party shall rely on any question of fact or
law upon which the administrative law judge
had not been afforded an opportunity to pass.
Review by the Commission shall be granted
only by affirmative vote of two of the
Commissioners present and voting. If
granted, review shall be limited to the
questions raised by the petition.

(B) At any time within 30 days after the
issuance of a decision of an administrative
law judge, tire Commission may in its
discretion (by affirmative vote oftwo ofthe
Commissioners present and voting) order
the case before it for review but only upon
the ground that the decision may be
contrary to law or Commission policy, or
that a novel question ofpolicy has been
presented. The Commission shall state in
such order the specific issue oflaw,
Commission policy, or novel quesdon of
policy involved. If a party's petition for
discretionary review bas been granted, the
Commission shall not raise or consider.
additional issues in such review proceedings

[No comparable provision]

28 FMSHRC 779

except in compliance with the requirements
of this paragraph.
(C) For the purpose of review by the
Commission under paragraph (A) or (B) of
this subsection, the record shall include: (i)
all matters constituting the record upon
which the decision of the administrative law
judge was based; (ii) the rulings upon
proposed findings and conclusions; (iii) the
decision of the administrative law judge; (iv)
the petition or petitions for discretionary
review, responses thereto, and the
Commission's order for review; and (v)
briefs filed on review. No other material
shall be considered by the Commission upon
review. The Commission either may remand
the case to the administrative law judge for
further proceedings as it may direct or it may
affirm, set aside, or modify the decision or
order of the administrative law judge in
conformity with the record. If the
Commission determines that :further
evidence is necessary on an issue of fact it
shall remand the case for further proceedings
before the administrative law judge.
(The provisions of section 557(b) of title 5,
United States Code, with regard to the
review authority of the Commission are
hereby expressly superseded to the extent
that they are inconsistent with the provisions
of subparagraphs (A), (B), and (C) of this
paragraph.)

*

*

*

(e) In connection with hearings before the
Commission or its administrative law judges
under this Act, the· Commission and its
administrative law judges may compel the
attendance and testimony of witnesses and
the production of books, papers, or
documents, or objects, and order testimony

(h) Depositions and production of
documentary evidence; fees
.
The Commission lllay order testimony tQ be
taken by deposition in any proceeding
pending before it at any state of such
proceeding. Any person may be comp~lled
to appear and depose, and to pro.duce books,

28 ·FMSHRC 780

to be taken by deposition at any stage of ihe
proceedings before them. Any person may
be compelled to appear and depose and
produce similar documentary or physical
evidence, in the same manner as witnesses
may be compelled to appear and produce
evidence before the Commission and its
administrative law judges. Witnesses shall
be paid the same fees and mileage that are
paid witnesses ·i n the courts of the United
States and at depositions ordered by such
courts. fu case of contumacy, failure, or
refusal of any person to obey a subpoena or
order of the Commission or an
administrative law judge, respectively, to
appear, to testify, or to produce documentary
or physical evidence, any district court ·of the
United States or the Umted States coiirts of
any territory or possession, within the
jurisdiction of which such person is found, or
resides, or transacts business, shall, upon the
application of the Commission, or·the
administrative law judge, respectively, have
jurisdiction to issue to such person an order
requiring such person to appear, to testify, or
to produce evidence ~ ordered by the·
Commission or the administrative law judge,
respectively, and any failure to obey such
order of the court may be punished by the
court as a contempt thereof.
30 U.S.C. § 823 (emphases added).

papers, or documents; in the same manner as
witnesses tnay be compelled to appear and
testify and produce like documentazy
evidence before the Commission. Witnesses
whose deposition8 are taken under this
subsection, and the persons taking such
depositions, shall be entitled to the same fees
as are paid for like services in the courts of
the United States.
(i}fuvestigatorypowers
For the purpose of any proceeding before the
Commission;:the provisions of section 161
of this title ~e hereby made applicable to the ·
jurisdiction and powers of the Commission.

29 U.S.C. § 661.

Quoting its prior decision in Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 464 (D.C.
Cir. 1994), the D.C. Circuit iterates in Twentymile that section 113 of the Mine Act, 30 U.S.C. §
823, "merely states" the grounds upon which a "petitioner may call upon the Commission's power
of discretionary review over a decision of an administrative law judge." 456 F.3d·at 160. To ..
which petitioner is the court referring? If the Secretary loses on a matter oflaw, policy or
discretion before the administrative law judge, by the coUrt's logic· she can appeal to the
Commission, which is then bound to vindicate her position. If the Secretary wins on a matter of
law, poliCy or discretion before the a4ministrative law judge, and the mine operator appeals, the
Commission is, by the court's logic, likewise bound to vindicate the Secretary's position. Thus, ·

28 FMSHRC 781

the court's opinion can b_~ read as.having the Commission engage in a kind of adjudicative bait-.
and-switch whereby mine op~ratqrs are encouraged to appeal matters oflaw, policy or discretion
even though tb,e Commissio~ is powerless to do anything but ~ide with the Secretary. Under such_
a i:eading of the opinion; there is littlt: or no difference between the D.C. Circuit's concept' of tµe_
split enforcement structure under the Mine Act and the unitary struc.t ure of IQ.ine safety and health
enforcement ap.d adjudication established within the Department of the Interior under ~e Miri_e
Act's predecessor statutes.3
·
·
Contrary to the D.C. Circij.i.t's ~~ent positio~ the language of section 113 cannot be
read to limit the scope of this Commission's oversight to the.judge's decision -· a sort ofinhouse quality control function. Section 113(d)(2)(A)(ii), which states that parties may petition for
review of administrative l~w judg~ decisions,. does indeed provide for Commission·oversight of ··
an administrative law-judge if his decision is "contrary to law, or to the duly promulgat~ rules or
decisions of the Com.nllssion." 30 U~S.C. § .823(d)(2)(A)(ii). But, sigllificantly, the subsectioµ . ·
also goes.on to establish that the Commission is authorized to grant a petition when "[aJ
.
substantial question oflaw, policy or discretion is involved." Id. It is particularly noteworthy that
there are no statutory limitations on the types of "law, policy or discretion" :questioJ?,s th~t the .
Commission is authorized to review in granting parties' petitions. This strongly indicat~;S that
Congress intended for the Commission to have broad interpretive and policy-making powers: · the
D.C. Circuit simply does not directly address the significance of this sp~cific language ch.osen by
Congress. Instead, it glosses over the language in its effort to fit.the Mille Act scheme W:i.t hin .the
split-enforcement mold created for the OSH Act under the Martin decision:
·
The error in the D.C. Circuit's reasoning is made .even more apparent by the langu~g~ in.'
section 113(d)(2)(B) of the Act, which addresses the Commission's authority to grant review of
administrative law judge decisions sua sponte. That provision authorizes the Commission to
grant review sua sponte only if ''the decision may be contrary to law or Commission policy, or
that a novel question of policy has been presented." 30 U .S.C. § 823(d)(2)(B). If the Commission
is confined to reviewing only its own internal policies, why is "policy'' used twice in the Same
sentence - once in connection with the Commission and then, again, without qualification? The
only reasonable answer is that Congress intended that the Commission be authorized not only to
review decisions where established "Commission policy" is being contravened but also decisions
involving novel, general policy questions under the Mine Act itself.4 Otherwise, one must asswne

3

The D .C. Circuit's position also conflicts with the Senate Committee on Hwnan
Resources' view that "an independent <;:om.mission is essential to provide administrative
adjudication which preserves due process and ~stills much more confidence in the program."
S. Rep. No. 95-181 at 47 (1977), reprinted in Senate Subcpmm..o:n ~bor, Comm. on Human
Res., Legislative History ofthe Federal Mine Safety and Health Act.of 1977, at 635 (1978).
The very same di~tinctjon betw~en "Commission policy" and "policy" in general is
contained in the next sentence of section 113(d)(~)(B): ''The Commiss~on shall state in such
order the specific issue oflaw, Commission policy~ or novel question of policy involved."
4

28 FMSHRC 782

that Congress was unable to choose the correct words to describe the Commission's review
authority and limit it to purely internal policy matters. Section 113(d)(2)(B) unmistakably
demonstrates that Congress intended for the Commission to have a substantial policy-making role
under the Mine Act.
Aside from the obviously expanded role of this Commission evident in the enabling
provisions of the Mine Act as compared to those of the OSH Act, the legislative-history of the
Mine Act underscores the conclusion that Congress intended this Commission to have a
significant policy-making function:
One of the essential reforms of the mine safety program is
the creation of an independent Federal Mine Safety and Health ·
Review Commission charged with the responsibility of assessing
civil penalties for violations of safet}r·or health standards, for
reviewing the eriforcement activities of the Secretary of Labor, and
for protecting miners against unlawful discrimination.
It is our hope that in fulfilling its responsibilities under the
Act, the·Commission will provide just and expeditious resolution of
disputes, and will develop a unifomi and comprehensive
interpretation of the law. Such actions·will p'rovide guidance to the
Secretary in enforcing the [A]ct and to the mining industry and
miners in appreciating their responsibilities under the law. ·When
the Secretary and mine operators understand precisely what the law
expects of them, they can do what is necessary to protect our
Nation's miners·and to improve productivity in a safe and healthful
working environment
Hearing on the Nomination ofMembers ·o fthe Federal Mine Safety and Health Review Comm 'n
Before the Senate Comm. on Human Res., 95th Cong., 1 (1978).
The above statement by Senator Williams, Chairman of the Human Resources Committee,
carries considerable weight with respect to the Commission's policy role under the Mine Act.
Senator Williams was the Mine Act's principal author. Senator Williams' statement that the
Commission is to "develop a uniform and comprehensive interpretation of the law," ''provide
guidance to the Secretary in enforcing the [Act]," and etisure that "the Secretary and mine
operators understand precisely what the law expects of them" strongly indicates that the
Commission is to play a significant interpretive and policy-making role.
Quite importantly, Senator Williams' statement also carried considerable weight with the
Supreme Court. In Thunder Basin Coal Co. v Reich, 510 U.S. 200 (1994), decided three years
after Martin, the Supreme Court, citing with approval Senator Williams' statement, held that a
mine operator could not circumvent the adjudicative procedures set forth in the Mine Act by
28 FMSHRC 783

seeking a pre-enforcement injunction against MSHA in a case involying whether non-employee
union organizers could represent employees in a non-union mine for purposes of asserting rights
under.the Mine Act. The Supreme Court rejected the operator's attempt at injunctiveTeli!!fby
emphasizing strongly that the Commission, as an independent review body, could and should
decide. the merits of the case:
Petitioner's statutory claims at root require intexpretation of the
parties' rights and duties. under§ 813(f) and 30 CFR pL 40, and as
such arise under the Mine Act and fall squarely within the
Commission's expertise. The Commission, which was established
as an independent-review body to "develop a uniform .an.d
comprehensive interpretation " of.the Mine Act, Hearing on the
Nomination ofMembers of the Federal Mine Safety and Health
Review Commission before the Senate Committee on Human
Resources, 95th Cong., 2d Sess., l (1978), !ias· extensiwrexperience
interpreting the walk-around rights and recently addr.essed t~e
precise NLRA claims presented here. Although the Commission
has. no particular expertise in construing statutes other than the Mine
Act, -we conclude that exclusive Ieview before·the Commission is .
appropriate since ''.agency expertise.[could] be brought to bear on"
the statutory questions presented here.. .

As for petitioner's constitutional claim, we agree that
"[a]djudication of the constitutionality.of congressional ~nactments
has generally been thought beyond the jurisdiction of administrative
agencies." This rule is not mandatory, however, and is perhaps of
less consequence where, as here, the reviewing body is not. the
agency itself but an independent commission established
exclusively to adjudicate Mine.Act disputes. The Commission has
addressed constitutional questions in previous enforcement
proceedings.

Id. at 214-15.(footnotes and citations omitted; emphasis added.)
Thus, contrary to .the D.C.,Circuit's version ofMine Act history, the Supreme Court has
had occasion to opine·specifically on the "division of enforcement" model adopted by C9ngress in
the Mine Act. The Supreme court ~phasize<l the Commission's duty to "develop a uniforµi and .
comprehensive interpretation" of.th.e.MJ.ne Act and the "agency expertise" of the Commis~ion in
intexpreting the Mine Act. The contrast between the Supreme Court's characterization of the
relationship between MSHA and this Commission on the one hand, and OSHA and OSHRC on
the other, is compelling.

28 FMSHRC 784

The D.C. Circuit's contention that the Commission·-is not authorized to review the
Secretary's exercise of her prosecutorial discretion is further belied by section 105(c) of the Mine
Act, 30 U.S.C. § 8i5(c). There, Congress authorizes the Commission to entertain discrimination
complaints brought by miners when the Secretary has declined to do so. Under section 105(c), a
miner is allowed to file a discrimination complaint if he believes an operator has retaliated against
him for the exercise of his safety rights under the Act. The miner first files the complaint with the
Secretary who, upon finding discriminatory conduct, files a complaint for relief with the
Commission. If, however, on preliminary investigation, the Secretary determines that no
discriminatory practice has occurred, the miner retains the right to bring a complaint on his own
behalf before.the Coinmission. Ifthe Commission concludes that the complaint is meritorious, it
can order appropriate remedies, including directing the Secretary to propose a civil penalty.
Section 105(c) demonstrates clearly the Congressional intent that the Commission is
authorized to second guess the enforcement choices made by the Secretary. No such authority
resides with OSHRC under the OSH Act, underscoring the view that Congress overtly intended to
expand the policy-making and discretionary powers of FMSHRC beyond those granted to
OSHRC under the OSH Act.
Moreover, Congress recently con.firmed the interpretive and policy-making role of the
Commission in the Mine hnprovement and New Emergency Response Act of 2006 ("MINER
Act"), Pub. L. No. 109-236, 120 Stat. 493 (June 15, 2006), which amended the Mine Act in
certain key respects. Section 2 of the MINER Act amends section 316 of the Mine Act, 30 U.S.C.
§ 876, by adding a new section (b), entitled "Accident Preparedness and Response." Section
316(b)(2)(G), which is entitled "Plan Dispute Resolution," provides for Commission review of
disputes involving accident response plans, which are to be submitted by operators for approval
by the Secretary. The provision gives the Commission broad authority to resolve "[a]ny dispute
between the Secretary and an operator with respect to the content of the operator's plan or any
refusal by the Secretary to approve such a plan ...." 120 Stat. at 496. Because such disputes will
ordinarily involve issues of legal interpretation and issues of policy regarding how such disputes
should be resolved and what plan contents are acceptable, Congress clearly intended that the
Commission should exercise a significant degree of independent interpretive and policy-making
authority to resolve such disputes. Otherwise, there would be no reason to provide for
Commission review. In the absence of a significant interpretive and policy-making role for the
Commission, the Secretary could adopt a particular policy with regard to the contents of mine
plans, and the Commission would be bound to uphold the Secretary's policy in every instance.
Certainly, Congress did not intend that the "plan dispute resolution" process would become a
meaningless exercise in which the Commission essentially rubber-stamps the Secretary's policy
judgments in each case.
By ignoring the unequivocal caveat expressed by the Supreme Court that its holding in
Martin should not be applied in the Mine Act context, the D.C. Circuit hears its own "sounds in
the [self-imposed] silence" of the Supreme Court. 456 F.3d at 158. Moreover, the D.C. Circuit
ignores the obvious expansion of authority granted to this Commission by Congress in the Mine
28 FMSHRC 785

Act well beyond that ~ted OSHRC under the OSH Act. Section 113 of t4e Mine Act allocates
resolution of matters of law, policy and, discretion to the .R eview Commissipn.in keeping with the
view of Senator Williams, quoted above, and as applied by the Supreme .Court in Thuntfer jJasin.

.......

28 FMSHRC 786

_

Distribution
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor West
Arlington, VA 22209-2247
Daniel W. Wolff, Esq.
Crowell & Moring, LLP
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N .W., Suite 9500
Washington, D .C. 20001-2021

28 FMSHRC 787

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

September 29, 2006
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. SE 2005-236-M

IMERYS PIGMENTS, LLC

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY: Jordan and Young, Commissioners:
On April 21, 2006, the Commission granted the petition for discretionary review filed by
the Secretary of Labor in the above-captioned proceeding. The Secretary's appeal was limited to
the issue of the responsibility of the mine operator, Imerys Pigments, LLC ("Imerys"), for the
violation committed by the employee of an independent contractor in Citation No. 6095226. The
administrative law judge had dismissed the citation against Jmerys, relying on the Commission's
decision in Twentymi/e Coal Co., 27 FMSHRC 260 (Mar. 2005). In addition, the Commission
further directed review, on its own motion, on the issue of whether the administrative law judge
adequately explained his action in increasing the proposed penalty for Citation No. 6095227.

The Court of Appeals for the D.C. Circuit has reversed the decision of the Commission in
Twentymile Coal Co., holding that the Secretary's decision to cite the owner-operator of a mine,
as well as its independent contractor, is an exercise ofherprosecutorial discretion that is
unreviewable. Secy ofLabor v. Twentymile Coal Co., 456 F.3d 151 (D.C. Cir. 2006). 1 In light

1

Commissioner Young shares the Chairman's concerns regarding the D.C. Circuit
Court's decision in Twentymile and agrees with the Chairman's thoughtful analysis .o f the Mine
Act in his concurrence. Regrettably, the Circuit Court has consistently maintained a different
view of this Commission and has repeatedly applied Martin v. OSHRC, 499 U.S. 144 (1991), to
cases arising under the Mine Act, in spite of the differences the Chairman has noted in the
respective organic statutes and the "available indicia of legislative intent," Martin, 499 U.S. at
28 FMSHRC 788

of the court's decision, we remand the case to the judge for reconsideration of his dismissal of
Citation No. 6095226. The judge shall also further consider on remand his increase in the
proposed penalty of $305 to $800, for Citation 6095227, analyzing the ·penalty criteria in section
1lO(i),30 U .S.C. § 810(i), consistent with the Commission's decision in Sellersburg Stone Co., 5
FMSHR.C 287, 293 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984).

.

.

157, reflecting Congress' will to empower the Commission to provide meaningful review of all
issues brought before it Commissioner Young nevertheless declines to join the Chairman's
concurring opinion because the Twentymile decision is in accord with precedent in the D .C.
Circuit and the principle of stare decisis controls our decision in the instant case.

28 FM.S HRC 789

Chairman Duffy,. concurring:
.
.
..
I join with my colleagues in remandipg this matter to the judge for.further proceedings .
consistent with the Court's decision in Secretary ofLabor v. Twentymile Coal Co. and Federal
Mine Safety and Health Review Commission, 456 F.;M 151 (D.C. Cir. 2006). The judge should
also reconsider his assessment of a penalty in excess of the Secretary's recommendation.
Nevertheless, I respectfully take issue with several of the Court's assumptions used to support its
view that, under the Mine Safety and Health Act of 1977, 30 U .S.C. § 801 et seq. (2000) ("Mine
Act''), this Review Commission lacks "authority to determine policy issues," 456 F.3d at 160,
and "is not as a general matter authorized to review the Secretary's exercise of prosecutorial
discretion." Id. at 161.

fudeed, the Court appears to have expansively addressed issues that were not before it.
On the perennially disputed issue of whether a blameless mine owner-operator can be held liable
for violations committed by its independent contractor, the Court could simply have cited the
relevant precedents, found.the-:Commission 's .re~.oning in this case insufficient to overcome those
precedents, and have been·donewith it. fustead, th¢..Court has inappropriately applied the
Supreme Court's decision in Martin v. Occupational Safety and Health Review Commission, 499
U.S. 144 (1991).
The D .C. Circuit, at first blush,_correctly:rehders the view of the Supreme Court in Martin:

Martin involved.review under the Occupational Safety and
Health Act ("OSH Act"), in which, like the Mine Act, "Congress
separated enforcement and rulemaking powers from adjudicative
powers, assigning these respective functions to two different
administrative authorities." Under the OSH Act, the former
functions are assigned to the Secretary of Labor and the latter to the
Occupational Safety and Health Review Commission (OSHRC);
under the Mine Act, the former are again assigned to the Secretary
of Labor and the latter to the Federal Mine Safety and Health
Review Commission (FMSHRC). Under this "split enforcement"
structure, the Court held, "enforcement of the Act is the sole
responsibility of the Secretary." Moreover, since ''Congress did not
invest the Commission with the power to make law or policy by
other means, we cannot infer that Congress expected the
Commission to use its adjudicatory power to play a policymaking
role."( 1]

For reaso~s that .will be.made clear .below, it is important to note that, in the quote frQm
Martin, the only "Commission" to. which the Supreme Court is referring is the Occupational
Safety and Health Review Commission ("OSHRC"), not this_C<?mmissioll.
1

28 FMSHRC 790

456 F.3d. at 160-61 (citations omitted).
The D.C. Circuit goes on to extrapolate from the Supreme Court's decision in Martin a
severe limitation on this Commission's separate authority under the Mine Act:
··
We have previously, and repeatedly; applied Martin's ·
analysis to the Mine Act. We do so here as well. As is true under
the OSH Act, "enforcement of the [Mine] Act is·the sole
responsibility of the Secretary," and the Commission has no
"policymaking role." Instead, "Congress intended to delegate to the
Commission the type of nonpolicymaking adjudicatory powers
typically exercised by a court in the agency-review context."
"Under this conception of adjudication, the Commission is
authorized to review the Secretary' s interpretations only for
consistency with the regulatory language and for reasonableness."
And, like a court, the Commission is not as a general matter
authorized to review the Secretary's exercise of prosecutorial
discretion. ·
456 F.3d at 161 (citations omitted; alteration in original).
However, the Court ignores the fundamental caveat expressed by the Supreme Court in
Martin, i.e., that its decision was limited strictly to the split enforcement structure adopted in the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. ("OSH Act''):

We emphasize the narrowness ofour holding. We deal in
this case only with the division ofpowers between the Secretary and
the Commission under the OSH Act. We conclude from the
available indicia oflegislative intent that Congress did not intend to
sever the power authoritatively to interpret OSH Act regulations
from the Secretary's power to promulgate and enforce them.
Subject only to constitutional limits, Congress is free, of course, to
divide these powers as it chooses, and we take no position on the
division ofenforcement and interpretive powers within other
regu,/atory schemes that conform to the split-enforcement structure.
499 U.S. at 157-58 (emphases added).
Seven years after passage of the OSH Act, Congress did, indeed, divide the r~.ective
powers of the Secretary and this Commission, and it did so along lines far different from and

28 FMSHRC 791

much clearer than those set forth in the earlier statute. A simple side-by-side comparison of the ·
statutory provisions establishing the two Commissions is most instructive:2
THE FEDERAL MINE SAFETY AND ·
HEALTH REVIEW COMMISSION
Section 113. (a) The Federal Mine Safety
and Health Review Commission is hereby
established. The Commission shall consist
of five members, appointed by the President
by and with the advice and .c onsent of the
Senate, from among persons who by reason
of training, education, or experience are
qualified to carry out the functions of the
Commission under this Act. The President
shall designate one of the members of the
Commission to serve as Chairman.

*

*

*

*

(c) The Commission is authorized to
delegate to any group of three or more
members any or all of the powers of the
Commission, except that two members shall
constitute a quorum of any group designated
pursuant to this paragraph.

*

*

· OCCUPATIONAL SAFETY ANJ> .
HEALTH REVIEW COMMISSION
Section 12. (a) E~tablishment; membership;
appointment; Chairman .
The Occupational Safety and Health Review
Commission is hereby esta'f?lished. The
Commission shall be composed of three
. mf?mber$ who shall be appointed by the
President, by and with the advice and
. c9nsent of the Senate, from, among persons
who by re~OD: of training~ education, or
e?Cperience ~ qualified to carry out the
functions of the. Commission
. under this
chapter. T.Qe President shall designate one of
the members of the Commission to serve as
Chairman.

*

(f) Quorum; official action
For the purpose of.carrying out its functi~ns
under this chapter, two members of the
Commission shall constitute a quorum and
official action can be taken only on the
affirmative vote of at least two members.

*

*

(d)(l) An administrative law judge appointed
by the Commission to hear.matters under this
Act shall hear, and make a determination
upon, any proceeding instituted before th~
Commission and any motion in connection
therewith, assigned to such administrative
law judge by the chief administrative law

*

*

*

(j) Administrative law judges;
detenninations; report as final order of
Commission .
An administrative law judge appointed by
the Commission shall bear, and make a
determination upon, any proceeding
instituted before the Commission and any

2
·

For the sake of brevity, non-germane, "housekeeping" sections dealing with such
matters as location of offices, authority to hire or transfer administrative law judges, etc., have
been deleted from the comparison. Certain provisions of section 12 of the OSH Act have been
rearranged to coincide with their counterparts in the Mine Act.
28 FMSHRC 792

judge of the Commission or by the
Commission, and shall make a decision
which constitutes his final disposition of the
proceedings. The decision of the
administrative law judge of the Commission
shall become the final decision of the
Commission 40 days after its issuance unless
within such period of the Commission has
directed that such decision shall be reviewed
by the Commission in accordance with
paragraph (2). An administrative law judge
shall not be assigned to prepare a
recommended decision under this Act.

*

*

*

*

(d)(2) The Commission shall prescribe rules
of procedure for its review of the decisions
of administrative law judges in cases under
this Act which shall meet the following
standards for review:

*

*

motion in connection therewith, assigned to
such administrative law judge by the
Chairman of the Commission, and shall
make a report of any such determination
which constitutes his final disposition of the
proceedings. The report of the
administrative law judge shall become the
final order of the Commission within thirfy
days after such report by the administrative
law judge, unless within such period any
Commission member has directed that such
report shall be reviewed by the Commission.

(g) Hearings and records open to public;
promulgation of rules; applicability of ·
Federal Rules of Civil Procedure
Every official act of the Commission shall be
entered of record, and its hearings and
records ·shall be open to the public. The
Commission is authorized to make such rules
as are necessary for the orderly transaction of
its proceedings. Unless the Commission has
adopted a different rule, its proceedings·shall
be in accordance with the Federal Rules of
Civil Procedure.

*

*

(d)(2)(A)(i) Any person adversely affected or
aggrieved by a decision of an administrative
law judge, may file and serve a petition for
discretionary review by the Commission of
such decision within 30 days after the
issuance of such decision. Review by the
Commission shall not be a matter of right but
of the sound discretion of the Commission.

*

*

[No comparable provision] ·

(ii) Petitions for discretionary review shall be
filed only upon one or more of the following
grounds:

28 FMSHRC 793

.*

(I) A finding or conclusion of material
fact is not supported by substantial
evidence.
(II) A necessary legal conclusion is erroneous.
(ill) The decision is contrary to law or to
the duly promulgated rules or decisions of
the Commission.
(IV) A substantial question oflaw, policy
or discretion is involved.
(V) A prejudicial error of procedure was
committed.
(iii) Each issue shall be separately numbered
and plainly and concisely stated, and shall be
supported by detailed citations to the record
when assignments of error are based on the
record, and by statutes, regulations, or
principal authorities relied upon. Except for
good cause shown, no assignment of error by
any party shall rely on any question of fact or
law upon which the administrative law judge
had not been afforded an opportunity to pass.
Review by the Commission shall be granted
only by affirmative vote of two of the
Commissioners present and voting. If
granted, review shall be limited to the
questions raised by the petition.
(B) At any time within 30 days after the
issuance of a decision of an administrative
law judge, the Commission may in its
discretion (by affirmative vote oftwo ofthe
Commissioners present and voting) order
the case before it for review but only upon
the ground that the decision may be
contrary to law or Commission policy, or
that a novel question ofpolicy has been
presented. The Commission shall state in
such order the specific issue oflaw,
Commission policy, or novel question of
policy involved. If a party's petition for
discretionary review has been granted, the
Commission shall not raise or consider
additional issues in such review proceedings

[No comparable provision]

28 FMSHRC 794

except in compliance with the requirements
of this paragraph.
·
(C) For the purpose ofreview by the
Commission under paragraph (A) or (B) of
this subsection, the record shall include: (i)
all matters constituting the record upon
which the decision of the administrative law
judge was based; (ii) the rulings upon
proposed findings and conclusions; (iii) the
decision of the administrative law judge; (iv)
the petition or petitions for discretionary
review, responses thereto, and the·
Commission's order for review; and (v)
briefs filed on review. No other·material
shall be considered by the Commission upon
review. The Commission either may remand
the case to the administrative law judge for
further proceedings as it may direct or it may
affirm, set aside, or modify the decision or
order of the administrative law judge in
conformity with the record. If the
Commission determines that further
evidence is necessary on an issue of fact it
shall remand the case for further proceedings
before the administrative law judge.
(The provisions of section 557(b) of title 5,
United States Code, with regard to the
review authority of the Commission are
hereby expressly superseded to the extent
that they are inconsistent with the provisions
of subparagraphs (A), (B), and (C) of this
paragraph.)

*

*

*

(e) In connection with hearings before the
Commission or its a~nistrative law judges
under this Act,. the Commission and its
administrative law judges may compel the
attendance and testimony ofwitnesses and
the production of books, papers, or
documents, or objects, and order testimony

(h) Depositions and production of
documentary evidence; fees
The Commission may·order testimony to be
taken by deposition in any proceeding·
pending before it at any state ofsuch
proceeding. Any person may be compelled
to appear and depose, and to produce books,

28 FMSHRC 795

to be taken by deposition at any stage of the
proceedings before them. Any person may
be compelled to appear and depose and
produce similar documentary or physical
evidence, in the same manner as witnesses
may be compelled to appear and produce
evidence before the Commission and its
administrative law judges. Witnesses shall
be paid the same fees and mileage that are
paid witnesses in the courts of the United
States and at depositions ordered by such
courts. In case of contumacy, failure, or
refusal of any person to obey a subpoena or
order of the Commission or an
administrative law judge, respectively, to
appear, to testify, or to produce documentary
or physical evidence, any district court of the
United States or the United States courts of
any territory or possession, within the
jurisdiction of which such person is found, or
resides, or transacts business, shall, upon the
application of the Commission, or the
administrative law judge, respectively, have
jurisdiction to issue to such person an order
requiring such person to appear, to testify, or
to produce evidence as ordered by the
Commission or the administrative law judge,
respectively, and any failure to obey such
order of the court may be punished by the
court as a contempt thereof
30 U.S.C. § 823 (emphases added).

papers, or doctµnents, in the same manner as
witnesses may be compelled to .appear and
testify and produce like documentary ·
evidence before the Commission. .Witnesses
whose depositions are taken under this .
subsection, and
persons ~g such
depositions, shall be entitled to.the ~aine fees
as are paid for like services. the court~ of:
the United States.
·

the

m

(i) Investigatory powers
For the purpose of any pro~~dlng before.the
Commission, th~ provisions of section 161
of this title are hereby made applicable to .t he .
jurisdiction.and powers of the Commission.

.·

29 U.S.C. § 661.

Quoting its prior decision in Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 464 (D.C.
Cir. 1994), the D.C. Circuit iterates in Twentymile that section 113 of the Mine Act, 30 U.S.C. §
823, "merely states" the grounds upon which a "petitioner may call upon the Commission's power
of discretionary review over a decision of an administrative law judge." 456 F.3d at 160. To
which petitioner is·the court referring? If the Secretary loses on ·a matter of law, policy or
discretion before the administrative law judge, by the court's"logic she can appeal to the
Commission, which: is tp.en bo~d to vindicate her position. If the Secretary wins on a matter of
law, policy or discretion before ~e administrative law judge, and the mine operator appeals, the
Commission is, by ~.e court's logic, likewise bound to vindicate the Secretary's position. Thus,
28 FMSHRC 796

the court's opinion can be read as having the Commission engage in a kind of adjudicative baitand-switch whereby mine operators are encouraged to appeal matters of law, policy or discretion
even though the Commission is powerless to do anything but side with the Secretary. Under such
a reading of the opinion, there is little or no difference between the D.C. Circuit's concept of the
split enforcement structure under the Mine Act and the unitary structure of mine safety and health
enforcement and adjudication established within the Department of the Interior under the Mine
Act's predecessor statutes.3
Contrary to the D.C. Circuit's apparent position, the language of section 113 cannot be
read to limit the scope of this Commission's oversight to the judge's decision - a sort of inhouse quality control function. Section 113(d)(2)(A)(ii), which states that parties may petition for
review of administrative law judge decisions, does indeed provide·for Commission oversight of
an administrative law judge if his decision is "contrary to law, or to the duly promulgated rules or
decisions of the Commission." 30 U.S.C. § 823(d)(2)(A)(ii). But, significantly, the subsection
also goes on to establish that the Commission is authorized to grant a petition when "[a]
substantial question oflaw, policy or discretion is involved." Id. It is particularly noteworthy that
there are no statutory limitations on the types of "law, policy or discretion" questions that the
Commission is authorized to review ill granting parties' petitions. This strongly indicates that
Congress intended for the Commission to have broad interpretive and policy-making powers. The
D.C. Circuit simply does not directly address the significance of this specific language chosen by
Congress. Instead, it glosses over the language in its effort tO fit the Mine Act scheme within the
split-enforcement mold created for the OSH Act under the Martin decision.
The error in the D.C. Circuit's reasoniilg is made even more apparent by the language in
section 113(d)(2)(B) of the Act, which addresses the Commission's authority to grant review of
administrative law judge decisions sua sponte. That provision authorizes the Commission to
grant review sua sponte only if ''the decision may be contrary to law or Commission policy, or
that a novel question of policy has been presented." 30 U.S.C. § 823(d)(2)(B). If the Commission
is confined to reviewing only its own internal policies, why is "policy" used twice in the same
sentence - once in connection with the Commission ·and then, again, without qualification? ·The
only reasonable answer is that Congress intended that the Commission be authorized not only to
review decisions where established "Commission policy" is being contravened but also decisions
involving novel, general policy questions under the Mine Act itself.4 ·Otherwise, one must assume

3

The D.C. Circuit's position also conflicts with the Senate Committee on Human
Resources' view that "an independent Commission is essential to provide administrative
adjudication which preserves due process and instills much more confidence in ·the program.,,
S. Rep. No. 95-181at47 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human
Res., Legislative History of the Federal Mine Safety and Health Act ~f 1977, at 635 (1978).
4

The very same·distinction between "Commission policy'' and "policy'' in general is
contained in the next sentence of section 113(d)(2)(B): "The Commission shall state in such
order the specific issue of law, Commission policy, or novel question of policy involved."
28 FMSHRC 797

that Congress was unable to choose the correct words to describe the Co~ssio:n's review
authority .and limit it to purely-int~mal policy matters. Section 113(d)(2)(B) umiµstakably
demonstrates that Congress intended for the Commission to-have a subst:mtial policy-maJQng role
under the Mine·Act.
·
·
Aside from the obviously expanded role of this Commission e:vident in tbe enabling
provisions of the Mine Act as compared to those of the OSH Act, the legislative history of the
Mine Act underscores the conclusion that Congress intended this Commission to have a ·
significant policy-making function:
One of the essential reforms of the mine
safety proiram. is
.
the creation of an independ~nt Federal Mine Safety and Health
Review Commission charged with the responsibility of assessing
civil penalties for -v iolations of safety or health standards, for .
reviewing the enforcement activities of the Secr~tar)r of Labor~ and
for protecting miners against unlawful discrimination.

.
.
.
It is our hope that in :fulfilling its responsibiliti!!s under the
Act, the Commission will provide just and expeditious resolution of
disputes, and will develop a uniform and ~omprehensive
interpretation of the law. ~uch actions will provide guidance to the
Secretary in enforcing the [A]ct and to the mining industry and
miners in appreciating their responsibilities under the law. When
the Secretary and mine operators understand precisely what the law
expects of them, they can do what is necessary to protect our
Nation' s miners and to improve productivi.t y in a safe and healthful
working environment.

Hearing on the Nomination ofMembers ofthe Federal Mine Safety and Health Review Comm 'n
Before the Senate Comm. on Human Res., 95th Cong., 1 (1978).
The above statement by Senator Williams, Chairman of the Human
. . Resources Committee,
.
carries considerable weight with respect to the Commission' s policy role,under the Mine Act.
Senator Williams was the Mine Act' s principal author. Senator Williams' statement that the
Commission is to "develop a uniform and comprehensive interpretation of the law," ''provide
guidance to the Secretary in enforcing the [Act]," and ensure.that ''the Secretary and mine
operators understand
of them" strongly indicates that the
. precisely what the law expects
.
Commission is to.play a sigx.tlficant interpretive and policy-making role.
Quite importantly, Senatoz: Williams' statement also .c arried considerable weight,with th~
Supreme Court. In Thunder Basin Coal Co. v Reich, 510 U .S. 200 (1994), decided three years
after Martin, the Supl'.eme Court, citing with approval Senator Williams' statement, held that a
mine operator could·not circwnvent the·adjudicative procedures.set forth .in the Mine Act by

28 FMSHRC 798

seeking a pre-enforcement injunction against MSHA in a case involving whether non-employee
union orgallizers could represent-employees in a non-union mine for purposes of asserting rights
undet the Mine Act. The Supreme Court rejected the operator's attempt at injunctive relief by
emphasizing strongly that the Commission, as an in_d ependent review body, could and should
decide the merits of the case:
·
Petitioner's statutory claims at root require interpretation of the
parties' rights and duties under§ 813(f) and 30 CFR pt. 40, and as
such arise under the Mine Act and fall squarely within the
Commission's expertise. The Commissl.on, which was established
as an independent-review body to "develop a uniform and·
comprehensive interpretation" ofthe Mine Act, Hearing on the
Nomination ofMembers ofthe Federal Mine Safety and Health
Review Commission before the Senate CbmmUtee on Human ·
Resources, 95th Cong., 2d Sess., 1 (1978), has extensive experience
interpreting the walk-around'rights and recently addressed.the ·
precise NLRA claims presented here. Although the Commi8sion
has no particular expertise in construing statutes other than the Mine
Act, we conclude that exclusive review before the Commission is
appropriate since ''agency expertise [could] be-brought to bear. on"
the statutory questions presented here.
As for petitioner's constitutional Claim, we agree that
"[a]djudication ofthe ·constitutionality of congressional enactments
has generally been thought beyond the jurisdiction of admiiristrative
agencies." This rule is not mandatory, however, and is perhaps of
less consequence where, as here, the reviewing body is notthe
agency itself but an independent commission established
exclusively to adjudicate Mine Act disputes. The Cominission has
addressed constitutional questions in ·previous enforcement
proceedings.

Id. at 214-15 (footnotes and citations omitted; emphasis added.)
Thus, contrary to the D.C. Circuit's version of Mine Act history, the Supreme Court has·
had occasion to opine specifically-on the "division of enforcement" model adopted by Congress in
the Mine Act. The Supreme court emphasized the Commission's duty to "develop a uniform and·
comprehensive interpretation" of the Mine Act and the "agency expertise" of the Commission in
interpreting the Mine Act. The contrast between the Supreme Court's characterization of the
relationship between MSHA and this Commission on the one hand, and OSHA and OSHRC on
the other, is compelling.
:

28 FMSHRC 799

The D.C. Circuit's contention that the Commission is not authorized to review the
Secretary's. exercis.e of her prosecutorial discretion is further belied by section 105(c) of the Mine
Act, 30 U.S.C. § 815(c). There, Congress authorizes the Commission to entertain discrimiµa,tion
complaints brought by mine.rs when the Secretary has declined to.do so.· Under seep.on. JOj.(c), a
miner is allowed to file a discrimination complaint if he believes an operator has retaliated against
him for the exercise of his safety rights under the Act. The miner first files the complaint with the
Secretary who, upon finding discriminatory conduct, files a complaint foI relief with the
Commission. If, however, on preliminary investigation, the Secretary d~te~es. that no
discriminatory practice has occurred, the miner retains the rigµt to bring a complaint on bis own
behalf before the Commission. If the Commission concludes that the complaint is meritorious, it
can order appropriate remedies, including directing the Secretary to propose a civil penalty.
Section 105(c) demonstrates clearly the Congressional intent that the Commission is
authorized to second guess the enforcement choicC?s 111:ad~ by the Secretary. No_such authority
resides with OSHRC under the OSH Act, underscoring the view that Congress o:v~y intended to
expand the policy-making and discretionarY.power~: ofFMSHRC _beyond those granted to
OSHRC under the OSH Act. .
Moreover, Congress recently con.finned.the interpretive and policy-making role of the
Commission in the Mine Improvement and New Emergency Response Act of 2006 (''MINER
Act"), Pub. L. No. 109-236, 120 Stat. 493 (June 15, 2Q06), which,~ended. the Mine Act in
certain key respects. Section 2 of the MINER Act amends section 316 of the Mine Act, 30 U.S.C.
§ 876, by adding a new seGtj.on.(b), entitled "Accident P_reparegness:and Response." Section
316(b)(2)(G), which is entitled "Plan Dispute Resolution;'' .provides for Co~ission review of
disputes involving accident response:plans, which are to be.submitted by operators.for approval
by the Secretary. The provision gives.the Commission broad authority to resolve "[a]ny dispute
between the Secretary and an .operator with·respect to the content of the operator's plan or any
refusal by the Secretary to approve such a plan . .. . . " 120 Stat. at 496. Because such disputes will
ordinarily involve..issues of legal interpretation.and i.s sues of policy regarding how such disputes
should be resolved and what plan contents are acceptabl~, Congress clearly intend~ that the
Commission should exercise a significant degree of independent interpretive and.policy-making
authority to resolve such disputes. Otherwise, there would be no reason to provide for
Commission review. In the absence of a significant interpretive and policy-making role .for the
Commission, the Secretary could adopt a particular policy with regard to the contents of mine
plans, and the Commission would be bound to uphold the S.ecretary's policy in every instance.
Certainly, Congress did not intend that the "plan dispute resolution" .process would become a .
meaningless exercise in which the Commission ess~tially rubber-stamps the Secretary's policy
judgments in each case.
By ignoring the.unequivocal caveat expressed 'by the Supreme ~ourt that its hpldjng in
Martin should not be applied in the Mine Act context, the D.C. Circuit hears its own "sounds in
the [self-imposed] silence" of the Supreme Court. 456 F.3d at 158. Moreover, the D.C. Circuit
ignores the obvious expansion of authority granted to this Commission by Congress in the Mine

28 FMSHRC 800

Act well beyond that granted OSHRC under the OSH Act. Section 113 of the Mine Act allocates
resolution of matters oflaw, policy and discretion to the Review Commission in keeping with the
view of Senator Williams, quoted above, and as applied by the Supreme Court in Thunder Basin.

28 FMSHRC 801

Distribution
Jack Powasnick; Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-2247
Craig S. Stickley .
finery Pigments,'.LLC.
P.O. Box330
849 Fayetteville Road
Sylacauga, AL 35150
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28 FMSHRC 802.
·:

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

October 10, 2006
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos. SE 2005-301-M
SE 2006-131-M
SE 2006-167-M

HOSEA 0. WEAVER & SONS, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

.ORDER
BY THE COMMISSION:
This matter arises under,the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000). On September 15, 2006, pursuant to Commission Procedural Rule 76, 29
C.F.R. § 2700.76, Hosea 0. Weaver &.Sons, Inc. ("Weaver") filed with the Commission a
petition for interlocutory re:view.-0f an order issued by Administrative Law Judge David F.
Barbour granting the Secretary of Labor's motion for summary decision and denying Weaver's
motion for smnmary decision. 28 FMSHRC 688, 692 (July 2006) (ALJ). Judge Barbour also
denied Weaver's motion to certify this ruling to the Commission for interlocutory review. 28
FMSHRC 751, 752 (Aug. 2006) (ALJ). 1 On September 25, 2006, the Secretary filed an
opposition to Weaver's petition for interlocutory review.

1

On August 29, 2006, the Commission granted the Secretary's motion to dismiss
Weaver's Petition for Discretionary Review, or in the Alternative, Petition for Interlocutory
Review, which Weaver filed concurrently with its motion to certify the judge's ruling, on the
grounds that it was prematurely filed. 28 FMSHRC 542, 543 {Aug. 2006).

28 FMSHRC 803

the

Upon considerati~n of
pleadings filed by Weaver and the Secretary, we have
determined that Weaver has failed ·to establish that the order denying its motion for summary
decision involves a controlling question of law and that immediate review may materially
advance the final disposition of the proceeding. See 29 C.F.R. § 2700.76(a)(2). We therefore
deny the petition.

28 FMSHRC 804

Distribution

Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209-2247
Administrative Law Judge David F. Barbour
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

28'FMSHRC 805

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

October 17, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. K.ENJ' 2004-37,..M
A.C. No. 15-05484-11598

v.
GEORGE P. REINTJES COMPANY, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (''Mine Acf'). On August 7, 2006, the Commission received a motion from
the Secretary of Labor requesting that the Commission reopen the judgment in this proceeding
and dismiss the proceeding as moot.
This proceeding arose when the Department of Labor's Mine Safety and Health
Administration (''MSHA") issued a citation to George P. Reintjes Company, Inc. ("Reintjes") on
July 28, 2003. Mot. at 1. On October 23, 2003, MSHA sent to Reintjes a proposed penalty
assessment for the citation, which the company timely contested. Id. at 2. Jn January 2004,
MSHA vacated the citation. Id. When the Secretary moved to dismiss the case, however, the
motion was captioned Docket No. SE 2004-37-M, instead of KENT 2004-37-M. Id. On
March 4, 2004, Chief Administrative Law Judge Robert J. Lesnick, apparently unaware that the
Secretary had vacated the citation and moved to dismiss this proceeding, issued an order
directing Reintj es to file an answer to the Secretary' s penalty petition. Id. When the company
failed to respond to the judge' s order, he entered a default judgment against Reintjes on May 13,
2004. Id.
The judge' s jurisdiction in this matter terminate(l when his decision was issued.
29 C.F.R. § 2700.69(b). It became a final decision of the Commission on June 22, 2004. 30
U.S.C. § 823(d)(l) (if the Commission does not direct review within 40 days of a decision's
issuance, it becomes a final decision of the Commission).

28· FMSHRC 806

The Secretary argues in her motion that "[b]ecause the citation in Case No. KENT
2004-37-M was vacated in January 2004, the default judgment entered ... on May 13, 2004, was
invalid." Mot. at 3. The Secretary "requests that the Commission reopen the default judgment
on the ground that, under Rule 60(b)(4) of the Federal Rules of Civil Procedure, the judgment is
'void.'" Id. Finally, the Secretary requests that the Conunission dismiss this proceeding
because, "inasmuch as the citation has been vacated, the proceeding is moot." Id.· ·
We have held that in appropriate circumstances, we possess jurisdiction to reopen final
Commission orders. Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR''). In
evaluating requests to reopen final section 105(a) orders, the Commission has found guidance in
Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be
entitled to relief from a final order that is "void." Fed. R. Civ. P. 60(b)(4); see 29 C.F.R.
§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure''); JWR., 15 FMSHRC at 787.
We agree with the Secretary that vacating the citation rendered the judge's default order
void. See Youghiogheny & Ohio Coal Co., 7 FMSHRC 200, 203 (Feb. 1985) ("[V]aeation of the
underlying citation requires vacation of the judge's decision affirming the citation.").
Having reviewed the Secretary' s motion, in the interest ofjustice, we hereby reopen this
proceeding, vacate the judge's default order, and dismiss this matter as moot.

28 FMSHRC 807

Distribution
W. Christian Schwnann, Esq. .
Ofrice of the Solicitor
U.S. Department of Labor·
1100 Wilson Blvd., 22nd Floor We.s t .
Arlington, VA 22209-2247
Melody S. Wesson, Conference & Litigation Representative
U.S. Department of Labor, MSHA
135 Gemini Circle, Suite .2 12
Binningham, AL 35209
Sal Panis, Corporate Safety Manager
George P. Reintjes, Co., Inc.
P.O. Box 410856
Kansas, MO 64141-0856
.
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey AvenQ.e,.N.W,,. Suite
9500
.
Washington, D.C. 20001-2021
.

28. FMSHRC 808

.

·.

FEDERAL MINE SAFETY·AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

October 30, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. SE 2005-250
SE 2005-251
SE 2005-252

v.
OAK GROVE RESOURCES, LLC,.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). 1 On October 12, 2005, Chief Administrative Law Judge
Robert J. Lesnick issued to Oak Grove Resources, LLC. ("Oak Grove") three Orders to Show
Cause for failure to answer the Secretary of Labor's petitions for assessment of civil penalty. On
January 19, 2006, Chief Judge Lesnick entered Orders of Default against Oak Grove in each of
the three cases.
On August 22, 2006, the Commission received motions from Oak Grove requesting that
the Commission reopen the penalty assessment proceedings and relieve Oak Grove from the
orders of default. Oak Grove states that, in all three cases, a notice of appearance was filed by
Oak Grove's Safety Director within 30 days ofreceiving the Petition for Assessment of Penalty
from the Department of Labor's Mine Safety and Health Administration ("MSHA"). The notice
of appearance, which is not contained in the file or attached to the motion, allegedly listed the
appropriate contact as an address in Pennsylvania. However, the orders to show cause and the
default orders were sent to the General Manager of Oak Grove at the mine site in Adger,
Alabama. Oak Grove alleges that its Safety Director did not timely receive the orders to show

1

Pursuant to Commission Procedural Rule 12, on our own motion, we hereby
consolidate Docket Nos. SE 2005-250, SE 2005-251, and SE 2005-252, all captioned Oak Grove
Resources, LLC., and all involving similar procedural issues. 29 C.F.R. § 2700.12.
28 FMSHRC 809

cause and default <?rders because they were not sep:t ~o the designated address.
The judge's jurisdiction in this ~tter temnnated.when his decision was issued on
January 19, 2006. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's
procedural rules, relief from a judge's decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). If the Commission does not direet review within 40 days of a decision's issuance,
it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(l). · the judge's orders ·
became final decisions of the Commission on February 28, 2006.
·
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested.assessments that have become final Commission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). fu evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the ·.
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.l(b) (''the Commission and its Judges ..shall be guided so fat as practicabl~ by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a
harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

28 FMSHRC 810

Upon review of the record, we have determined that the wording of the Orders to Show
Cause did not conform with the Commission's Procedural Rules. Accordingly, in the interest ·o f
justice, we hereby vacate the Orders of Default and remand this matter to the Chief Judge for
further appropriate proceedings. See Paul F. Becker Coal Co., 28 FMSHRC 237, 238 (May
2006).

28.FMSHRC 811

Distribution
Robert H. Beatty, Jr., Esq.
Carol Ann Manmich, Esq.
Dinsmore & Shohl, LLP
2604 Cranberry Square
Morgantown, WV 26508
W. Christian Schwnann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington:, VA 22209.:.2 247
Brian W. Dougherty, Esq.
Office of the Solicitor
U.S. Department of Labor
618 Church.Street,.Suite 230
Nashville, TN 37219-24S6
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C.. 20001-2021

28 FMSHRC 812

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

October 30, 2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
DocketN~. SE 2007-1

v.

A.C. No. 01-02901-40618
DRUMMOND COMPANY, INC.

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER

...
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U .S.C.
§ 801 et seq. (2000) (''Mine Act"). On October 2, 2006, the Commission received from
Drummond Company, Inc. (''Drummond'') a motion made by counsel to reopen a penalty
assessment that had become a final order of the Commission pursuant to section 105(a) of the
Mine Act, 30 U.S.C. § 815(a). On October 13, the Secretary of Labor filed a response to
Drummond's motion to reopen.
Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

On October 15, 2004; the Department ofLabor~s Mine Safety and Health Administration
("MSHA") issued a proposed penalty assessment to DrummQnd for Citation No. 7669699. Mot.
at 1-2 & Attach. A, 1-2. Drummond intended to contest the penalty but mistakenly failed to do
so. Mot. at l. Drummond did not realize its mistake in failing to contest the penalty until it
received a delinquency notice for that and other citations. Id. at 2. On September 13, 2006,
Drummond mailed to.MSHA a check and a cover letter stating that the payment did not include
the penalty associated with Citation No. 7669699. Id. at 2 & Attach. D. Drummond requests
28 FMSHRC 813

that the Comntission ·reop~ the penalty assessment associated :with .Citation No. 7669699 and be
·
relieved of any penalties or interest as a.result of its nristake. Mot. at 2. 1
The Secretary states in her response that she opposes the Commission granting
Drummond's motion under Rule 60(b)(l) of the Federal Rules of Civil Procedure on the grounds
that it was not filed within one year after the proposed penalty assessment at issue became a final
Commission order. S. Resp. at 1-2 (citing JS Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct.
2004)). The Secretary notes here that Drummond did not file its request to reopen until more
than one year and ten months after a final Commission order. S. Resp. at 2. Therefore, the
Secretary concludes that the Commission should deny Drummond's request. 2 Id. ·
We have held that in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final Comnrission orders under section 105(a). Jim
Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure. See 29 C.F.R § 2700.l(b) ('~the Commission and its·Judges
shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR, 15
FMSHRC at 787.
We have been presented with Drummond's unexplained failure to timely contest the
proposed penalty assessment. This is the type of error that falls squarely within the ambit of Rule
60(b)(1 ). Ho:wever, under Rule 60(b), any motion for relief must be made within a reasonable
time, and in the case of mistake, inadvertence, or excusable neglect, not more than one year after
the order was entered. Fed. R. Civ. P. 60(b).
·"

1

Drummond also requests that it be relieved of interest and penalties in two other cases,
A.C. 000040162 and A.C. 000052560, which were paid on September 13, 2006, because those
cases were "a result ofthe same mistake"·as in the proceeding at bar. Mot. at 2.
2

The Secretary also states that she opposeS' Drummond's request to be relieved of any
interest and fees with respect to penalty assessments in A.C. Nos. 000040162 and 000052560,
which is comparable to a request to reopen a-penalty assessment, because that request was filed
more than one year and five months after fimll"Commission orders. S. Resp. at2-3.
28 FMSHRC 814

Because Drummond waited well over a year to request relief, its motion is untimely.
JS Sand & Gravel, 26 FMSH;R.C at 796. Accordingly, Drwnmond's motion is denied.3 ·

·ssioner

3

We do.not reach Drummond's request to be relieved of interest and penalties in A.C.
000040162 and A.C. 000052560 because the underlying penalty assessments constitute final
Commission orders and Drummond has not made a motion to reopen those proceedings. In any
event, if it had, we see no material difference between those proceedings and the instant one, in
terms of whether relief from the final orders is warranted.
28 FMSHRC 815

Distribution
Noelle Holladay True, Esq.
Rajkovich, Williams, Kilpatrick & True, PLLC
2333 Alwnni Park Plaza, Suite 310
Lexington, KY 40517
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nc1 Floor
Arlington, VA 22209-2296
Myra James, Chief
Office of Civil Penalty Compliance, MSHA

U.S. Department of Labor
1100 Wilson Blvd., 25m Floor
Arlington, VA 22209-3939
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & He~th Review Commission
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 2ooor-2021

28 FMSHRC 816

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-84+5268

September 11 , 2006
CIVILPENALTYPROCEEDJNGS

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

Docket No. CENT 2005- 139-M
A.C. No.. 39-01328-~2100
Docket No. CENT 2005-162-M
A.C. No. 39-01328-39719

V.

Docket No. CENT 2006-009-M
A.C. No. 39-01328-67942

BOB BAK CONSTRUCTION,
Respondent

Crusher#3

DECISION
Appearances:

Jennifer Casey, Esq., Office of the Solicitor, U.S. Department
of Labor, Denver, Colorado, and Ronald Pennington, Con(erence &
Litigation Representative, :fy.line Safety and Healtb .Administratio~
Denver, Colorado for Petitioner;
·
Jeffrey A . Sar, Esq., ~aron, Sar, Goodwin & Lohr, Sioux City, Iowa, for
Respondent.

Before:

Judge Manning

These cases are before me on three petitions for assessment.of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"),
against Bob Bak Construction ("Bak Construction"), pursuant to sections 105 and 110 of the
Federal Mine Safety and Health Act.of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The
cases involve seven citations and one order issued by MSHA at the ~o. 3 crusher operated by
Bak .Construction. An evidentiary hearing was held in Pierre, South Dakota.. The parties
presented testimony and documentary evidence and filed post-hearing briefs.
At all pertinent times, Bak.Construction operated the No. 3 Crusher ("crusher'') on an
intemrittent basis at .different locations in central South Dakota. The citations and order at issue
in these cases were issued by MSHA Inspect<;>r John King on August 26, 2004.

28 FMSHRC 817

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Citation No. 7915395

On August 26, 2004, MSHA Inspector John King inspected the crusher. The mine was
operating wi_th two end loaders and a dozer. The shaker and screener/crusher were-operating.
(Tr. 17). The inspector issued Citation No. 7915395 under section 104(a) of the Mine Act
alleging a violation of section 57.l 4130(g) as follows, in part:
The operator of the Michigan Clark 175A front end loader was
observed not wearing his seatbelt as required. He stated that he
had been trained to wear it and had heard the mine operator state
that it was a requirement to do so at all times. There was a
poteritial for the front end loader operator to sustain severe or even·
fatal injuries were he to be thrown from his loader..
Inspector King determined that an injury was reasonably likely and that any injury could
reasonably be expected to be fatal. He determined that the violation was of a significant and
substantial nature ("S&S") and that Bak Construction's negligence was moderate. The safety
standard provides, in part, that "[s]eat belts shall be worn by the equipment operator except when
operating graders from·a standing position . . . ·. '-' The standard applies to various types of self-.
propelled mobile equipment mcluding "wheel ldaders.'' 30 C.F.R.' § 57.14130(a)(3). The
Secretary proposes a penalty of$275.00·for this citation.
When Inspector King began his inspection, he observed David Spider in the operator's
compartment of the Clark Michigan 175A .front end loader. King signaled with his hand for
Spider to drive the loader over to where he was standing. (Tr. 22). King testified that when he
climbed up into the operator's compartment he saw that Spider was not wearing a seatbelt. (Tr.
22-23). The inspector testified that Spider told him that he had been wearing the seatbelt most of
the day but that he "had been in and out of his piece·of equipment a couple of times and just
didn' t put it back on at that time." (Tr. 23).
Spider testified that when the inspector arrived he was parked without the engine running.
(Tr. 134, 141 ). Spider said that he was sitting in ~e loader watching the hopper to determine
when he should get more'clay to mix with the gravel. · Id. When the hopper needed more day, he
would start up the engine, build up air for the brakes, and put on his seatbelt before operatirig the
loader. (Tr. 135). He testified that he needed to get more clay about every 20 minutes. (Tr.
134). Spider testified that, although he was not wearing a seatbelt, he was not operating the front
end loader at the time of King's inspection of t~e · loader. (Tr.134-36;141.:.42). He furl:ber
testified that he had been trained to use his seatbelt and was aware of the ·MSHA requirement.·
(Tr. 138).

28 FMSHRC 818

fu rebuttal, fuspector King testified that when he first arrived at the crusher, he observed
Spider operating the loader feeding Clay into the hopper. (Tr. 23, 224-25). King testified that,
while he is not certain, he believes that the loader was moving at the time he signaled Spider to
drive toward him. (Tr. 223-34). King also doubted if a loader operator would kill the engine
while waiting to load more clay because turning the engine on and off would not be good for the
engine or the hydraulic system. (Tr. 224, 228). Although Spider may not have been moVing the
loader at the precise instant that he called him over, King believes that the engine was running.
During discovery, Bak Construction responded in the affirmative to the following request
for admission served by the Secretary: "Please admit that, on or about August 26, 2004,
Respondent violated 30 C.F.R. § 56.14130(g) when the operator of the Clark Michigan 175A
fr:ont end loader was observed not wearing·his seatbelt as required.,, Following the hearing, Ba.le
Construction filed a motion to withdraw this admission because the testimony of Spider ·
demonstrates that he was just sitting in the loader at the time he was observed by fuspector King
and the·engine was not running. The Secretary opposes the motion. Under the authority granted
me under Commission Procedural Rule 58(b), I grant Bak Construction's motion to withdraw·the
admission. ~ find that there will be no prejudice to the Secretary in granting the motion. My
holding in this regard 1s limited to the facts in.this case.
Based on the testimony of Inspector King, I find that a violation of the safety standard has
been established. I credit Inspector King~ s testimony·concerning these events over the testimony
of Mr. Spider. Spider's testimony
neither persuasive nor convincing. ·Specifically, I find
that, although Spicier may have been wearing "his seatbelt during part ofhis shift, he was not ·
wearing it while operating the loader prior to the time the inspector entered the operator's
compartinent. I credit King's testimony that Spider told him, at the time of his inspection, that he
forgot to put on the seatbelt the last time he got back into the loader.

wa8

fuspector King testified that the violation was S&S because the loader operator must
make sharp turns when operating the equipment. (Tr. 24). Some of these turns must be made in
reverse gear and some must be made with the bucket in a raised position. He also testified that
he believed that, although the ground was level, soft spots could develop on the ground which
could turn into ruts over time. fu addition, the ground is likely to become slippery when wet.·
(Tr. 25). The door on the operator's·compartment was pinned open. As a consequence, Spider
could have fallen out of the loader to the ground 12 feet below. (Tr. 30). Another loader was
operating in close proximity to Spider' s loader. It was reasonably likely that Spider would be
ejected from the cab if he encountered heavy ruts or if he collided with another piece of
equipment. (Tr. 29-31, 59-60). The Secretary argues that, based on potential ground conditions
and the specific use and condition of the loader, it was reasonably 1=ikely that a serious injury
would occur, assuming continued mining operations.
Bob Bak testified that the area was very well maintained, without holes or ruts, and that
the area was not dangerous to equipment. (Tr. 148). Darrell Dawson, another loader operator at
the crusher, testified that the area was fairly smooth. (Tr. 124). Bak Construction argues that,

28 FMSHRC 819

because the w.orking surfaces were mostly flat and the loader never travels faster than five miles
per hour, the possibility of a serious injury was unlikely. Bak Construction also maintains that
the potential hazax:ds that were of concern to Jnspector.King were highly speculative and did not
create a potential for a serious injury._
.A violation is .classified as S&S ."ifb,ased upon the facts surrounding the violation, there
exists a reasonable likeliP.ood that the hazard contributed to will result in an injury or illnes~ ofa
reasonably serious nature." National Gypsum Co., 3 FMSHRC 822, 825 (April 19Sl). In ..
Mathtes Coal.Co., 6 FMSHRC 1, 3-4(January1984), the Co~ssion set out a foqr-part test for
analyzing S&S issues.. Evaluation of the criteria _is made assuming "co~tinued noi;xllal mining
operations." U. S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984), The.question of
..·.··
whether a ·particular violation is S&S must be based on the particular facts. surrounding the.
violation. Texasgulf, Inc., 10 FMSHRC.498 (April ~988) . The Secretarymust establi~h:. (l) th~
underlying vio.lation of the safety standard; (2) a discrete Safety hazard, a measure of dariger.to ·
safety, contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to ·
will result in an inj ury; and (4) a reasonable likelihood.that the injury iµ question wiU b~ of a.
reasonably serious nature. The Secretary is not required to show that it is more propable..than not
that an injury will result from the violation. U.S. Steel Mining Co., 18 FMSHR.C 862, 865 (June.
1996).
.
· . I find that the Secretary established that the violation was serious and S&S. Adiscrete
safety hazard was created by the violation. Although the loader traveled at a very low rate
speed, the door Qn the operator's side of the load.er was open. I credit ~e testWi~ny of Inspector
King with respect to the hazards tha,t were present, as s~arized above. Although·t)le ground
was fairly smooth at the time of the inspection,.there was a ~light slope in the area. In addition,
with the door to the operator's compartment pinned open, there was a risk that the equipm~nt
operator would fall from the loader in the event of an accident or other unexpected event. I find
that it was reasonably likely that the hazard contributed to by the violation would result in an
injury of a reasonably serious ~ture.

of

Some of the evidence suggests that Bak Construction' s negligence was less than
moderate. Nevertheless, it is significant that, of the three pieces of mobile equipment operating
on August 26, two were cited for seat belt violations. In ~dition, Bak Construction has been
cited for seat belt violations in the past. Bob Bak Construction, 19 FMSHRC 582, 585-86 ·
(March 1997) (ALT); Bob Bak Construction, 19 FMSHRC 1791, 1793-94 (Nov.. 1997) (AIJ).
Consequently, I find that the violation was the result of Bak Construction's moderate negligence.
.
.
The Secretary's proposed penaltyof$275.00 is appropi:iate.

B. Citation No. 7938404
Inspector King also issu~d Citation No. 7938404 under section 104(a) of the Mine Act
alle~g. a violatipn of section 57.1413.0(i) as follows, in part: ..

28 FMSHRC 820

The operator of the Clark Michigan 17SB front end loader had not- ,
properly attached his seat belt to the unit when he replaced the seat
on this day. He stated that he had failed to complete bolting the
female end of the seat belt to the unit as required. He went on to state that he had received training in seat belt use, was aware of the
written company policy on seat belt use, and was told by the
operator to wear his seat belt when in self-propelled mobile
equipment at the beginning ·of the shift that day. There was a
potential for the front end loader operator to be thrown from the
unit were an accident to occur and sustain·fatal injuries.
Inspector King deternrined that an injury was reasonably likely and that any injury could
reasonably be expected to be fatal. He determined·that the violation was S&S and that Bak
Construction's negligence was moderate. The safety standard.provides, in part, that "[s]eat belts
shall be maintained in functional condition and replaced when necessary to .assure proper
performance." The Secretary proposes a penalty of $275.00 for this citation.
Inspector King testified that when he climbed up onto the loader to inspect it, he noticed
that the seatbelt was not'properly attached to the loader. It was draped across Jeremy Heron's
lap. (Tr. 35-37~ Exs G-4, G-5). The inspector testified that the doors Qf the ioader had been
propped open and Heron was operating in close proximity to ·Spider's lOader. (Tr. 29, 38).
Huron told the inspec~or that he had replaced the seat in the cab that morning and he-did riot·
secure the seatbelt to the floor of the cab. (Tr. 37). He told the inspector that 'Mr: Bak ·had told
him to attach the seatbelt before operating the loader. Id. Bak Construction·'cobtends that
because it bas policies in place regarding seatbelt u8e and he instructed Heron·to reattach the
seatbelt before operating the loader, the citation should ·be vacated.
The Secretary argues that the evidence establishes that Mr. Bak failed to effectively
enforce its seatbelt policies. Two of the three pieces of mobile equipment in operation on_the day
of the inspection were in violation of the seatbelt standard. In addition,-the Secretary argues that
Bak Construction's history of previous violations shows ·that it has·violated the seatbelt standard
a number of times in the past. Given this history, the Secretary contends that Bak Construction
had a heightened responsibility to ensure that functioning seatbelts were installed in all of its
mobile equipment and that the operators use these belts.

I find that the Secretary established a violation. There is no question that the seatbelt in
the loader operated by Heron was not ftmctional. Bak Construction argues that the Secretary did
not establish that the violation was S&S. Its arguments are the same as for the previous citation.
For the same reasons discussed abOve, I find that the violation was serious and S&S. The ·
operator's door for this loader was also pinned back creating a similar hazard. ·
I also find that Bak Construction's negligence was moderate for the reasons discussed
with respect to the previous citation. The Secretary's proposed penalty of$275.00 is appropriate.

28 FMSHRC 821

C. Order No. 7915397
Inspector King also issued Order No. 7915397 under section 104(g)(l) of the Mine Act
alleging a violation of section 46.6(a) as follows, in part:
Jack Sun;merswas operating a Dresser TD-25 bulldozer and
pushing bas~ material to the pi~ for loading by front end 101J.ders
. . . . He had not received the safety training required by Part 46 of
the Mine Safety and Health Act. Mr. Sumners is a newly hired
experienced miner who has been working since August 23 at_this
location.
Inspector King determined that an injury was reasonably likely and that any iJ:ijlU)' could
reasonably be expected.to be fatal. He detennined that the violation was S&S and that :Sak
Construction' s negligence.was high. The safety standard p_rovides, in part, that ~~g must-be
provided to newly hired experienc~d-miners. The Secretary proposes a penalty of $500.00 for
·
this order.
.

.

Near the end of his inspectio~ Inspector King asked for the training records for Bak
Construction's employe~s. ln.sRector King_testijied that the training records for Jack Sumners.
could not be located. (Tr. 41-42, 78, 82)... Sumners started working at the crusher on Augus~ 23,
2004. Sumners .b,adw.~:rked in the constru~tion, mdustry for at ieast 20 yea.rs operating'heary
equipment and h~ J:Ui4 .also previously.wo~ked ~t-a quarry: (Tr. 42, ~5,"69,i9.l,_ 200). The
inspector believe4-tQ.~(Bob Bak called his.wjfe, Elsi~ Bak, at the offi,ce to deteniliJ:le .if a
certificate of training w.~ there. (Tr. 41 ). :King testified that it app~ared that Sumner had not
been trained because Mr. Bak believed that his wife had trained him while Ms. Bak believed that
Mr. Bak had trained him. (Tr. 42). Elsie Bak is authorized to provide experienced miner
training. Inspector King recalls that Bob Bak.told his wife to come to the crusher to ~omplete
Sumner's training. (Tr. 46). MSHA Supervisory Inspector Joe Steichen, who accompanied King
on the inspection, also testified that Bak asked his wife to come to the mine site. (Tr. 108, 119).
Nevertheless, Sumner told fuspector King, on the day of the inspection, that he had.been trained.
(Tr. 78). .The training certificate that was subsequently provided to Inspector King shows that
Sumners received,his training on August 23, 2004. (Tr. 47-48; Ex . .G-7). Sumners had initialed
the form at the time he was given the training. Inspector Steichen testified that Mr. Bak never
told him that Sumners had actually been trained. (Tr. 109).

.
.The.Secretary.contends that the preponderance of the evidence sh0;ws that.Sumners did
not receive the man~tory training. ht the altern~tive, the Secretary ~oved at the hearing.to
plead, in the alternative, that Bak Construction violated section 46.9(c)(2)(i) . .That section
provides that a recor4 of ~e newly-hired experi~ed miner's training must be made _and given to
the miner. As grounds for the motion, the Secretary states that the Commission's procedural
rules authorize pleading in the alternative thro~gh the Federal Rules of Civil Procedure. 29
C.F.R. § 2700. l(b).· The Commission ruid its judges have allowed the Secretary to plead in the
'•,

28 FMSHRC 822

alternative. See Walker Stone Co. v. Sec'y ofLabor, i'56 F.3d 1076 (10th Cir. 1998); Cyprus
Empire Corp., 12 FMSHRC 911, 916(May1990); CDK Contracting, Inc., 23 FMSHRC 783
(July 2001) (ALJ). The Conunission has analogized the modification of a citation to an
amendment of a pleading under rule 15(a) of the Federal Rules of Civil Procedure. The
Commission put forth the following standard with regard to the amendment of a citation:
In Federal Civil proceedings, leave for amendment 'shall be freely
given when justice so requires.' The weight of authority·under Rule
15(a) is that amendments are to be liberally granted unless the
moving party has been guilty of bad faith, has acted for the purpose
of delay, or where the trial of the issue will be unduly delayed.

Wyoming Fuel Co., 14 FMSHRC 1282, 1289-90 (Aug. 1992) (citations omitted). The Secretary
also points to cases in which the Commission has recognized that citations may be amended
during .t he course of the hearing. Faith Coal Co., 19.FMSHRC '1357, 1361-62 (Aug. 1997);
Higman Sand & Gravel, 18 FMSHRC 951, 958-59 (June 1996) (AlJ). ·Finally, she reasons that,
because the motion to leave.was made at hearing, ·B ak was given ample opportunity to cross
examine the Secretary's witnesses and to question its oWn witnesses on this issue. The Secretary
contends that the record reveals that Bak Construction failed"to complete the necessary training
record.and ~rovide it to Inspector King ~on r~uest.
Mr. Sumners testified that he received his required training oti August 23, 2004. (Tr.
192-94; Ex. R-103). The training record shows that Bob Bak provided the training. Id. Elsie ..
Bak testified that she was never asked to take part in Sumners' training. (Tr. 205). Instead, she
was merely asked to sign all of the training certificates, including Sumners', When Mr. Bak
returned to the office later on April 26. (Tr. 208, 211-12). She testified that the certificates had
been in Mr. Ba.k's pickup truck at the crusher on August 26: (Tr. 208). Bak Construction also
contends that Inspector King was initially confused. at the hearing but that he eventually admitted
that the training certificate for Sumners was at the mine, but that it wasn't signed at the bottom of
the form. (Tr. 85). King admitted that the training certificate was initialed by Sumners. (Tr. 86,
Exs. G-7, R-103). He also admitted that if he had noticed Sumners' initials·on the certificate, he
probably would have vacated the order. (Tr. 72-73). Inspector King vacated other section
104(g)(l) orders that he issued with respect.to the training of other miners when he realized that
each miner had initialed the form. (Tr. 85-86). He also·admitted that Sumners told him that he
had been trained. (Tr. 88).
I find that the Secretary did not establish a violation of section-46.6(a). Inspector King
based his conclusion that Sumners had not received the·required training in large part on the
telephone conversation he overheard when Mr. Bak called Elsie Bak. King could only hear one
side of the conversation. Specifically, Inspector King testified that "there was no reason for me
to believe that Mr. Sumners had, iri fact, received his tralning other than his statement to me that
he had; otherwise I was listening in on the conversation of which I was made privy to between
Mr. and Mrs. Bak, and it led me to believe that Mr. Sumners had not received the required 4

28 FMSHRC 823

hours of the seven core subject training." (Tr. 89). I cannot affirm a citation on the basis of
testimony concerning one.side of a phone conversation, especially where the training certificate
shows that training w~ provided on Augll;St 23 and Elsie Bak denies that she w~ asked to
provide any additional training.
·
Bak Construction opposes the Secretary's moti~n to amend the Citation to include, in the
alternative, a charge ~at it violated section 46.9(c)(2)(i). B~ Construction .conceded that the
Commission has the pow:er to allow such an.amendment; however, it argues that such an
amendment is only appropriate when it
not prejudi~e the opposing party. it contends that it
will be prejudiced by such an amendment.

will

.

..

I grant the Secretary' s motion to amend the order to also allege a violation of section
46.9(c)(2)(i). There.will be no prejudice to the Bak Construction in granting the motion. I find
that the Secretary did not meet her burd~n of proving a violation of section 46.9(c)(2)(i). · The
record is extremely murky as to what tr~g records were available to Inspector King on the ,day
of the inspection. .In,~pector King issued similar orders for other empfoyees ai the crusher but he
vac~ted them when he 4iscoy~red that they~ere initi.aled.bythe individual.employees. Ms. Bak
testified that all of the c.ertificates were in Bob Bak' s pickup truck at the crush~ on August 26. _I
find that there was gep.uine confusion about what training records were availabfo at the crusher
on August 26 be~ause there was a lack of communication between Inspector ~g a,nd. Bob Bak
concerning the training that was given and the training records that were available. The .
Secretary, who has the b:urden of proof, faile4 to establish a violation of either of the two cited
training regulations. C<;msequently, Or-0.er No. 7915397 ~vacated.
~-

Citation No. 7915396

Inspector King also issued Citation No. 7915396 under section 104(a) of the.Mine Act
alleging a violation of section 56.14132(a) .as follows:
'

The Clark Michigan 175A front .e nd loader did not have a manually
operated horn. The manually operated horn was originally
provided by the manufacturer as a safety feature and is used to
signal when starting up and in emergency situations. There was a
potentia~ for.a person in the area to not know the loader was placed .
into motion.
Inspector King detennined that an injury was unlikely but that ap.y injury could reasonably be
expected to be fatal. He determined that the violation was not,S&S anc,l that Bak Co~truction ' s .
negligence was.modera:fe. · The safety standard provides, in part, "[m ]anwiny ·operat~d horns...· .
provided on self-propelled mobile equipment as a .safety feature shall be m.aintajn~d.in. functional
· ·
..
condition." The Secretary proposes a penalty.of$60.00 for this ~itation. · .

28 FMSHRC 824

Inspector King testified that section 56.14200 requires equipment operators to sound a
warning before starting such equipment. (Tr. 238-39). He stated that it appeared to him that the
horn had been removed at some point prior to the inspection. (Tr. 237-38; Ex. G-9). He also
testified that he believes that the loader was originally equipped with a horn. (Tr. 266-67). He
contends that Mr. Bak should have recognized that the horn was missing. Id.
Bob Bak testified that, although all of the ·company's other mobile equipment were
equipped with horns, this particular loader had never been so equipped. (Tr. 325-26). He stated
that he bought the loader used about 20 years ago. He testified that the company has never been
cited by MSHA for the absence of horn on this equipment.

a

The Secretary argues that she established a violation of the safety standard because
Inspector King testified that the loader was once equipped with a horn and that it had been
removed. He stated that, if the loader had never been equipped with a horn, previous MSHA
inspectors would have noticed this fact. He also stated that Mr. Bak seemed surprised to learn
that the loader was not equipped with a horn since all other loaders at the site had horns. ·{Tr.
242). Bak also testified that the cited loader was not equipped with a horn because he did not
believe that the loader needed one. (Tr. 326). The.Secretary argues that Bak's incrinsistent
statements make his testimony less than credible.
Bak Construction argues that the evidence establishes that the cited loader had never been
equipped with a horn. This safety standard 'does not require that-a mine operator install a horn on
mobile equipment that was never provided with a horn; it only requires that horns that are so
provided must be mamtained in working order. Inspector Kirig'·s testimony makes clear that he
was not really sure that this particular loader had ever been equipped with a horn. Bob Bak
credibly testified that this particular loader never had a horn on it. (Tr. 308). Bak Construction
also maintains that, in the previous 20 years that it has been using this loader, it has not been
cited by MSHA for the failure to have a horn. It argues that, if the Secretary believes that a horn
were required, she would have cited the loader years ago. Bak Construction contends if it is now
required to install a horn on equipment that was never provided with one, the Secretary failed to
provide fair notice of her change in the interpretation of the standard. Alan Lee Good , 23
FMSHRC 995 (Sept. 2001). As a consequence, Bak Construction argues that the citation should
be vacated.
It is clear that the Secretary intended that this safety standard require that horns installed
on mobile equipment be maintained in operating condition. The standard does not require the
installation of a horn on a piece of equipment that was never equipped with a horn. The
Secretary's Program Policy Manual provides:

Standard 56/57.14132(a) sets a maintenance standard for manually
operated horns or other audible warning devices that are provided
as safety features on self-propelled mobile equipment.·. . . This
standard should be cited if any audible warning 'd evice that was

28 FMSHRC 825

provided on the equipment as·a safety feature is not functional.
This includes manually-operated horns, automatic reverse,
activated signal alarms,
wheel-mounted
bell
al~s
and
.
.
.
.
discriminating backup alarms. ·.· :.
IV MSHA, U.S. Dep't of Labor, Program Policy Manual, Part 56, at 6l (2003.) (emphasis
added). As stated abpve, Bak Construction pres~nted credible evidence that this lo~er was
never provided with a horn. (Tr. 308,.325). ~~Construction abated the citation by removing an
air horn from a "salvage truck" and.installing it on: the c~h of the loader. (Tr. 325). Thus, Mr.
Bak did not repair an existing horn. I find that .t he Secretary failed to es~ablish a violation of the
standard. There has been no credible showing that this loader, which Mr. Bak bought used over
20 years ago, had ever been equipped with a horn. The standard does not require.the installation
of a horn on a loader that had never been equipped with one. Consequently, Citation No. .
7915396 is vacated.

. E. Citation No. 7915400
Jnspecto:r King also issued Citation ;No. 7915400 under sectio!l.l04(a) ofthe Mine Act
alleging a violation of section 56.11002 as follows, in part:
·
The steps leading into the power.generation: ·van were;; not provided
.. with handrails. The unit is.accessed daily t~ service, start) and s~ut
it down. The steps were clean and in good state of repair... .' ·
There was a potential for a slip and/or fall resulting in an:injury.
Inspector King originally determined that an injury was unlikely and that any ifljury could
reasonably be expected result in lost workdays or restricted duty. JnsPector King amended the
citation on September 7, 2004, to add the following language:
After a review. of the photo taken and discussion, it was determined
that a significant and substantial violation occurred. It was noted
that the interior floor of the power generation van was wet with
spilled lubrication oil, the steps were steep and 53" off the ground,
and there was oil on the steps.
He determined Bak Construction's negligence was moderate. The safety standard provides, in
part, "(c]ro~sovers, elevated walkways, elevated ramps, and stairways shall be of substantial
construction provided with handrails, and maintained in good condition." The Secrt::tary
proposes a penalty of $72.00 for this citation.
Inspector King testified that the van was a standard c~go trailer that was about 40 feet
long and 8 feet wide. (Tr. 243). J1ie van. was used to house the generator and to store diesel fuel,
grease, and oil. (Tr. 244, 26Q-70; ·E x. G-1_0).· The inspector also testified that the stairs had

28 FMSHRC 826

previously been equipped with a handrail but, when the crusher was moved earlier in the year,
the handrail was not reinstalled. (Tr. 243, 249; Ex. G-11 ).
As to the S&S allegation, Inspector King ~estified that miners were exposed to a trip and
fall hazard when entering and leaving.the generator van to start it up in the morning and to shut it
down at the end of the shift. (Tr. 244-45). In addition, miners would occasionally enter the van
at other times of the day. Inspector King noted that the stairs were steep and the steps were ·
stained with oil. As a consequence, he believed that the stairs could become slippery at tim~.
(Tr. 246, 248, 289). fu addition, the inspector testified that the floor of the van was covered with
accumulate.d oil from years of use. (Tr. 246). Without a handrail, a miner would not be able to
brace himself if he slipped while carrying tools or other materials. If a miner were to fall, he
could suffer broken bones or sprains. ·The side supports for the steps extended slightly above the
floor of the van, which created a tripping hazard for anyone entering' or exiting the van. ·
Supervisor Steichen also observed fresh oil anq grease on the ·f loor of the van as well as oil stains
on the stairs. (Tr. 299-300). He noted that ~e ground at the_bottom of the stairs was uneven and
scattered .with rocks.
Mr. Bak testified that there \VaS.not any spilled oil or grease Within 15 feet of the door of
the van. (Tr. 310). Any oil on the floor was by the generator at the back of the van. He also
testified that there was no oil on the steps. (Tr. 311 ). Mr. Back stated that if someone·carrying a
five gallon paii walked up the steps, he could· grab the side of the van with ·his other hand and
safely walk up. Finally, Mi-. ~ak testified that he had to fabricate a handrail to· abate the citation.
(Tr. 310). He stated that a handrail had never existed on these stairS.
Bak Construction contends that the testimony of Kiilg and Steichen is not credible. For
example, it points out that Inspector King did not make any reference to oil on the stairs in his
inspection notes. (Tr. 270). fudeed, his notes stated that the steps were 'clean and in·good repair,
as did his original citation. (Tr. 271 -72). His notes also do not mention the presence of grease or
oil on the floor of the van. (Tr. 273). fuspector King acknowledged that a person·walking up the
stairs can hold on to the doorway for-the van to steady himself. (Tr. 274). Bak Construction
also argues that, because these·stairs have never been equipped with a handrail and the ·generator
van has been inspected many times by-MSHA, it did ·not receive fair notice that a handrail was
required at that location.

Bak Construction maintains that the evidence shows that King changed the citation to
include the S&S allegation because Supervisory Inspector Steichen required him to do so. (Tr.
274-75). It further maintains that MSHA changed the inspector's notes relating to this citation to
support this S&S finding. For example, King originally believed that the steps were 48 inches
high, but the modified citation states that the steps were 53 inches high. While this difference is
not significant, Bak Construction argues that it shows that King and Steichen's testimony should
not be credited. fuspector King admitted that he changed some of his notes concerning the
citation. (Tr. 270). Supervisory Mine fuspector Steichen admitted at the hearing that his notes

28 FMSHRC 827

did not document any concern about oil on the steps and that he also did not document any
tripping hazards. (Tr. 306).
·
I find that the Secretary established tbe yiolation. The cited area was a stairway that was
required to be equipped with a handrail under.t4e safety standard. The photograph clearly shows
that the .stairs were equipped with a bracket to'hold a handrail. (G-11). Inspector King credibly
testified that Mr. Bak told hi.m that he forgo.t to replace the handrail when the c,rusher was moved.
(Tr. 243). To abate the cit~tion, Mr. Bak fou,nd the handTrul that had been·u8ed at the previous
loc~tion. (Tr. 243, 249). I credit the testimony of Inspector King over the testimony of Mr. Bak
on this issue.
I also find that tJ?,e Se.cretary established that the violation was S&S. It must be
remembered that, when considering whether a vioJation is S&S, the judge must ass~e
continued normal mining op,erations. In addition,. the Secretary is ~ot required to e$blish that it
is more probable than not that an injury will result from the violation. The stairway to the
generator van was rather steep and it was· about four feet hi~. The steps on the stairs were not
non-skid metal treads but were wooden boards that were secured to the metal frame. Although
there was no fresh oil or grease on the steps, they were stained with oil. Thus, the ('.vidence
establishes that oil is sometimes spilled on the stairWay. the ground at the bottom of the stairs
was uneven. The frame for the stairs .extended above the floor of the van. I find that these .
conditions create4 a tripping and stumbling haz~d.to anyone entering.or exitjng the van. As a
consequence, it was .reasonably likely that somoone. would stumble and injure themselves,
assuming continued mining operations. The haZard contributed to by the violation would likely
result in a reasonably serious injury. · As Inspector King testified, the types of injuries tbcrt can ·
reasonably be expected include broken bones or.sprains.
I do not accept Bak Construction's argument that I should not credit the testimony of
King and Steichen because .the citation was modified to include an S&S determination or because
som~ of the details of their.testimony were not documented in their notes. MSHA inspectors
·
frequently modify citations after consulting with their supervisor and other inspectors and after
reflecting on the conditions observed. I do not agree with Bak Construction's statement that
" [t]he whole process of amending the citation.to make it an S&S is suspect." (Bak.Br. 23). Both
King and Steichen freely admitted that the citation was amended based in part on subsequent
discussions between the two of them.
I also find that Bak Construction' s negligence was moderate. A penalty of$80.00 is
appropriate for this violation.
F. Citation No. 7938402

Inspector King also _issued Citation.N~: ·793~402 under section 104(a) of the Mine A~t
alleging a violation of section 56.14107(a) as ,follmys:

28 FMSHRC 828

The side·discharge conveyor located on the underside of the
Pioneer 212 screen plant was not provided with adequate guards at
the drive motor v-belts and the head ·and tail pulleys. There is
normally no foot traffic in this area while the plant is running.
However, there was a potential for a person to become entangled
were they to come in contact with a pinch point.
Inspector King determined that an injury was unlikely buHhat any injury could reasonably be
expected to be permanently disabling.' He determined that the violation was not S&S and that
Bak Construction's negligence was moderate. ·
safety standard provides, in part, " [m]oving
machine parts ~hall be guarded to protect persons from cont:aeting gears, sprockets, chains, drive,
bead, tail, and takeup pulleys ... and similar moving parts that can cause injury}' The Secretary
proposes a penalty of $60.00 for this citation.

The

Upon inspection of the Pioneer 212 Screen Plant, King determined that three areas·ofthe
side discharge conveyor were not properly gllii.rded. ·(Tr. 250-52). The existing guards on the
head pulley and drive motor v.:belts, only folir feet off the ground, were inadequately constructed
to keep an employee from comfug into contact with either the head pulley or v-belt. Tr. 251 . In
addition, the tail pulley on the conveyer was not guarded at all (Tr. 250~ Ex. G-13). King
acknowledged that the only employees who would enter into the area surrounding the ··conveyor
were the skid ~r operator, or possibly the front end loader operator. (Tr. 252). He also
conceded that he did not have notes regarding emplOyees being in the area and that he did not see
any footprints in the area. (Tr. 282).
·
Bak Construction's witnesses testified· that employees rarely walked or worked near the
screen plant while it was operating. Darrell Dawson testified that the tail pulley was too high for
any employee to trip into it. (Tr. 334). He admitted, however, that both Bob Bak and Spider
walk around the conveyor area while it is in operation. (Tr. 333). Bob Bak testified that no ·
maintenance is done on the equipment while it is in operation and that cleaning is performed with
a loader or skid steer, with no possibility of physical contact with the machinery. (Tr. 314). He
also opined that the guard covering the v-belt drive and pulley was adequate enough to prevent
injury if someone were to stumble or fall in the vicinity. (Tr. 315).
The Secretary maintains that the use of machines for cleanup does not exclude Bak from
complying with mandatory safety regulations. Sec'y Br. 30. She concludes that "[t]he fact that
exposure to guarding hazards was limited does not negate the existence of a violation - it merely
reflects on the gravity of the violation." (S. Br. 30). The guarding standard"'imports the
concepts of reasonable possibility of contact and injury, including contact stemming from
inadvertent stumbling or falling, momentary inattention, or ordinary hrunan carelessness."
Thomson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984). Therefore, with regard to the
few employees who enter the conveyor area, there is a possibility of inadvertent contact with
moving machinery and the standard should apply.

28 FMSHRC 829

Bak Construction contends that, because.the guards on th~ head pulley and v-belts met
minimal standards and the tail _p ulley was too high.for any employee to make accidental contact,
there was no chance for injury. (Bak Br._24-26; tr. 280, 313). This f~~ coupled with the fact
that the few employees who enter the area do so in machinery, leads .B·ak: Construction to
conclude that there is no violation of the guarding standard and that, if a violation is found, its
negligence was low.
I fin4 that the .Secretary established a yi~~ation. The Commission interpret~ $afety
standards to take into consideration "ordinary human carelessness.,., Thompson Bros., 6
FMSHRC at 2097. Jn that case, the Commission.held that the gtiarding standard must be ·
interpr~ted to consider whether there i~ .a "reasonaple possibility of contact and injury, induding
contact-s temming from inadvertent stumbling or falling,.monientary inattention, or ~rdinary
human carelessness." Id. Human behavior can be erratic and unpredictable. For example,
someone might attempt to perform minor maintenance or cleaning near an ungtiaided tail pulley
without first shutting it down. :f:ii such ~instance, the employee's clothing could b.e come
entangled in the moving parts and a serious injury could r~Ult. Guards.are designed i~ prevent
just such an accident. There is a history of such in}uries.at crus~g pJants. .througJi~ut the U~ted
States. "Even a skilled e.ni.ployee may suffer a lapse pf attentiveness, either from f~gue or
environmental distractions . . ~." Great .Western .fileciric Co.~ 5 FMSHR.C 840;842 (May.1983).
Although the evidence reveals that foot traffic around the screen plant was low, peop~e .d o walk .
through the area from time to time. (Tr. 333, 340). An employee may attempt ~o clean up small
accumulations of material.with a shov~l while the plant is operatiiig. A well-constructed guard
provides a physical barrie~ that prevents accidental contact witli m~ving machine.parts. .
I find that the violation was not serious because the hazar~ contributed to by the violation
is unlikely to result to an injury. Bak Construction's negligence was relatively low because Mr.
Bak did not believe that the.cited conditions created a safety hazard. The Secretary's proposed
penalty of$60.00 is appropriate.

G. Citation

No. 7938403

Inspector King issued Citation No. 7938403 under section 104(a) of the Mine Act
·
alleging a violation of section 56.14107{a) as follows, in part:
The smooth tail pulley under the clay hopper was not provided
with a guard. The pinc_h point is approximately.one foot off the
ground and the belt travels at approximately 32 feet per minute.
Normally, there is no foot traffi~ in this area while the plant is
running. Were a person to become ~tangled, a debilitating injury
could occur.
Inspector King determined that an injury was unlikely but that any injury could reasop.ably be
expected to be permanently disabling. He determined that the violation was not S&S and that

28 FMSHRC 830

Bak Construction's negligence was moderate. The Secretary proposes a penalty of $60.00 for
this citation.
Inspector King issued the citation because the smooth tail pulley on the clay hopper was
not provided with a guard. (Exs. G-15, G-15). Inspector King testified that the clay hopper is
used to feed the clay binding material into the mined product to meet customer specifications.
(Tr. 257). King also stated that the clay in the hopper readily absorbs moisture with the result
that the hopper often becomes clogged. Tr. 258. The inspector believed 'that, as a result, an
employee was required to monitor the area and clean up clogged material. (Tr.· 258-59). King
testified that the smooth tail pulley was previously guarded, but that Bak Construction removed
the guard at some point in time. (Tr. 255-56).
Bob Bak first testified that, in the 20 years in which he has operated the hopper, the
pulley has never been guarded. (Tr. 324). He also testified that, when the clay sticks in the
hopper, a 12-volt vibrator shakes the clay loose. (Tr. 319-21). The conveyor belt is normally not
running when the vibrator is in use. (Tr. 321) . As with the previous citation, only those
responsible for cleanup would come into the area surrounding the tail pulley and those employees
would do so using machinery. (Tr. 283). Additionally, Mr. Bak testified that, because the pinch
point on the conveyor is extremely low, it is not likely that anyone would come into contact with
the pulley. (Tr. 318). In fact, he stated that if someone were to approach the conveyer on foot,
he would likely hit his head on one of the hopper braces before reaching the pulley. (Tr. 319,
337-38). Finally, he testified that Bak Construction had not received any citations in the past for
failing to guard the pulley. (Tr. 324).
The Secretary makes the same arguments with respect to this citation as she did with
respect to the previous citation. She maintains that the guarding standard is not dependent on a
high likelihood of injury, but rather on any possibility of inadvertent contact with moving
machinery. She concludes that Bak Construction failed to guard moving parts and is therefore in
violation of the standard.
Bak Construction also makes similar arguments with respect to this citation. The
company states that, because of location of the pulley, it is not possible for any employee to make
accidental contact with the moving machinery. (Bak Br. 26-27). Therefore, it concludes that
there is no violation of the relevant machine guarding standard. Finally, Bak Construction
maintains that it was not provided with fair notice that a guard was required at this location
because it was never cited during MSHA's previous inspections.
I find that the possibility that anyone would come in contact with the cited smooth tail
pulley was extremely remote. The pulley was at ground level and it was located at the bottom of
a chute that narrowed at the bottom. Someone walking in the area would hit his head on the side
of the chute or on the structure supporting the chute before he could reach the pulley. In
Thompson Bros, the Commission made clear that citations issued under this standard must
"resolved on a case-by-[case] basis." Id. I find that the Secretary did not establish that there was

be

28 FMSHRC 831

a reasonable possibility of contact because of the location of $.e pulley. A miner would be
unable to get close enough to the pulley for it to pose a hazard in the event he stumbled and fell
down. Consequently there was no realistic possibility that anyone stumbling or falling would
come into contact with the moving parts or that anyone would make contact due to inattention or
careless behavior. In.addition, the belt moves at a low speed and the pine~ point is located on.the
underside of the pull~ynext to the ground. (Tr. 318; Ex. G- 15). Other Commissio:Q
administrative law judges have vacated citations where the Secretary did not establish a
reasonable possibility of contact with the moving machine parts. See Hamilton Pipeline, Inc., 24
FMSHRC 915, 922-23 (Oct. 2002) (ALJ); Chrisman Ready-Mix, Inc., 22 FMSHRC 1256, 125961 (Oct. 2000) (ALJ). Consequently, this citation is vacated.
·

28 FMSHRC 832

H. Citation No. 7938407
Bak Construction withdrew its contest of this citation at the·hearing and agreed to pay the
Secretary' s proposed $60.00 penalty. (Tr. 344).

II. APPROPRIATE CIVIL PENALTIES
Section 1 lO(i) of the Mine Act sets forth six criteria to be considered in determining
appropriate civil penalties. The record·shows that the Crusher No. 3 was not issued any citation
in the 24 months preceding August 26, 2004. Bob 'Bak Construction is a small mine operator.
All of the violations that were affirmed in this decision were abated in good faith. The penalties
assessed in this decision will not have an adverse effect on Bak Construction's ability to continue
in business. My gravity and negligence findings are set forth above. Based on the penalty
criteria, I find that the penalties set forth below are appropriate.

ID. ORDER
Based on the criteria in section l lO(i) of the Mine Act, 30 U.S.C. § 820(I), I assess the
following civil penalties:

Citation/Order No.

30 C.F.R. §

Penalty

56.14130(g)
56.14130(i)

$275.00
275.00

56.11002
56.14132(a)
56.14107(a)
56.14107(a)
56.4402

80.00
Vacated
60.00
Vacated
60.00

46.6(a)/46.9(c)(2)(i)

Vacated

TOTAL PENALTY

$750.00

CENT 2005-139-M
7915395
7938404
CENT 2005-162-M
7915400
7915396
7938402
7938403
7938407
CENT 2006-009-M
7915397

28 FMSHRC 833

For the reasons set forth above, the citations and orders are AFFIRMED ot VACATED,
as ·set forth above. Bob Bak Construction is ORDERED TO PAY the Secretary of Labor the
sum of $750.00 within 30 days of the date of this decision.

Richard·W : M3nning ·· ·
Administrative Law Judge

Distribution:

Jennifer A. Casey, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202 (Certified Mail)
·
Ronald Pennington, Conference & Litigation.Representative, .Mine Safety and Health
Administration, P.O. Box 25367, Denver, CO 80225-0367 (First Class Mail)
Jeffrey A. Sar, Esq., Baron, Sar, Goodwin, Gill & Lohr, P.O. Box 717, Sioux City, IA,511020717 (Certified Mail)

RWM

28 FMSHRC 834

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

September 22, 2006
CIVIL PENALTY PROCEEDING

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

Docket No. SE 2004-68-M
A. C. No. 54-00297.:.11648

v.
MASTER AGGREGATES TOA BAJA CORP.,
Respondent

Cantera Master Aggregates Mine

DECISION
Appearances:

Suzanne Demetria, Esq. and Donyell Thompson, Esq., Office of the
Solicitor, U.S. Department of Labor, New Yorl,c, New York, on behalf of
the Petitioner;
Willa Perlµiutter, Esq. and Mark Savit, Esq., ?atton Boggs, LLP,
Washington, D.C., on behalf of the .Respondent. ·

Before:

Judge Melick

This case is before me upon a petition for civil penalty filed by the .Secr~tary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq., the "Act," charging Master Aggregates Toa Baja Inco~orated (Master Aggregates) with two
violations ofmandatory standards and proposing civil penalties of$70~000..00 for the violations. The
general issue before me is whether Master Aggregates violated the cited standards and, if so, what
is the appropriate civil penalty to be assessed in accordance with Section 11 O(i) of the Act.
Additional specific issues are addressed as noted.
Master Aggregates owns and operates Cantera Isabela, a crushed limestone quarry located
in Isabela, Puerto Rico. The quarry operates two overlapping shifts with a total oftwenty employees.
The first shift.is from 6:00 a.m. to 3:00 p.m. and the second is from 8:00 a.m. to 5:00 p.m. In
November 2002, the daily operations ofthis facility were directed by Plant Manager Jeffrey Albrecht
and Plant Supervisor Otoniel Acevedo. Messrs. Albrecht and Acevedo were also responsible for the
mine inspections.

On November 13, 2002~ Mr. Acevedo arrived at 6;00 a.m. At approximately 7:00 a.m.,
Acevedo assigned Julio Rios-Beauchamp, along . with three others, to work near a highwall
approxi~ately 27 feet high. Mr. Rios-Beauchamp was assigned the task of operating a bulldozer
parallel ~o .the highwall. He was piling and pushing shot m::ttC?rial along the face of the highwall to
be picked up by a front-end loader. Mr. Rios-Beauchamp performed this assigned task from 7:00
a.m. to 11 :00 a.m. before he left to relieve the dispatcher.

28 FMSHRC 835

At approximately 1:00 p.m., Acevedo drove Rios-Beauchamp back to the highwall and told
him to resume the work he had been performing in the morning. At approximately 1:45 p.m., part
of the highwall collapsed onto the bulldozer, crushing Mr. Rios-Beauchamp to death.
Citation No. 7798760
Citation No. 7798760, as modified, alleges a "significant and substantial".violation of the
standard at 30 C.F.R.·§ 56.3401 and charges as follows:
On November 13, 2002, a bulldozer operator was fatally injured when he was stockpilling
[sic] material from a previously blasted area in the quarry. Unconslidated [sic] material
containing large boulders struck the bulldozer causing two columns of the ROPS structure
and roof of the dozer to collapse c111s~ng the victim. Persons experience [sic] in examining
and testing for loose ground had n6t adequately inspected the area prior to work being
performed.
The cited standard provides as follows:
Persons experienced in examin.llig and testing for loose ground shall be designated by the
mine operator. Appropriate supe.ivisors 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.
Highwalls . and banks adjoining .travelways shall be examined weekly or more. often if
changing ground conditions warrant. ·
·
The Secretary'·s argumen~ is ·straightforward. ·She contends that Plant Manager Jeffrey
Albrecht and Plant Supefvi.sor OtoID:ei Acevedo, the persons responsible for conduc.ting mspections
ori November 13, 2002, simply failed to do so (Secty. Brief p. 10).
In this regard it is undisputed that work commenced at the highwall at 7:00 a.m. on
November 13, 2002, when the deceased, Mr. Rios-Beauchamp, began pushing material with the
bulldozer at the highwall base. Plant Manager Albrecht admitted in a taped interview given on
November 14, 2002, the day after the fatal accident, that he did not perform the mine insp~tion on
November 13 (Gov't. Exh.30 p.5). He thought that Plant Supervisor Acevedo had performed that
inspection, that they kept documents of such inspections and that Acevedo had documented it
(Gov't. Exh. 30 p.5).

In.a taped statement.also given on November 14, 2002, Plant Supervisor Acevedo disputed
Albrecht's claim that they docum.ente~ their inspections and also admitted that he did not conduct
the mine inspection ori the morning of November 13 (Goy't. Ext. 3 l pp. 7:8). He also clanned, at
one point in the intervie~, that he could not then remember w~ether he had conducted an inspection
even· later that day (Gov't. Exh. 31 pp. 7-8). He later acknowledged that he ·~did not lookat the
walls" that day (Gov't. Exh. 31 p. 12).
'
·

28 FMSHRC 836

While the Respondent attempts to discredit its witnesses' statements, noted above, by citing
their subsequent testimony in dei)ositions taken two and one-halfyears later, in May 2005; and more
than three years l~ter at trial on March 9, 2006, it is clear that the best recollection of the witnesses
and their most credible testimony would come on the day after the highwall failille rather than years
later and after the witnesses have become aware of the consequences of their prior admissions.
Under the circumstances, I find the subsequent deposition and trial testimony of these witnesses
unpersuasive.
Within the framework of the witnesses' admissions in their November 14~ 2002, statements,
I have no difficulty in concluding (1) that Plant Manager Jeffrey Albrecht did not conduct an
inspection of the ground conditions at the highwall, prior to the accident before work commenced
at that location on November 13, 2002, and (2) that Plant Supervisor'Otoniel Acevedo failed to
conduct an inspection of the ground conditions at the highwall before work commenced .at that
location on the morning of November 13, 2002. Based on Acevedo's statement of November 14,
2002, I also ·conclude that, in fact, he also failed to conduct any inspection·of the higbwall on
November 13, 2002, before·the accident. Under the circumstances, and considering that Messrs.
Albrecht and Acevedo were the persons responsible for performing the-inspection, J ·find that the
violation is proven as charged.

In reaching these conclusions, I have not disregarded the somewhat confused trial testimony
of Mr. Torres-Aponte, an investigator for the Department of Labor's Mine Safety and Health
Administration, that; in his deposition he stated that, in his notes~ he reported that Mr. Acevedo had
in fact "made these inspections" and that "[h]e did the inspection but in an inadequate manner" (Tr.
I-104-105). Mr. Torres-Aponte also testified however that Mr. Acevedo told him in his "deposition"
that he did not make an inspection on the day of the accident {Tr. I-105). 1 Under all the
circumstances, I give the direct recorded statement of Mr. Acevedo himself the persuasive weight
(Gov' t . Exh. 31).
The Secretary also alleges that the violation was·"signifi.cant and substantial". A violation
is properly designated as "significant and substantial" if, based on the·particular facts surrounding
that violation, there exists a reasonable likelihood that the:hazard contributed:to will result in an
injury or illness ofa reasonably serious nature. Cement Division, National Gypsum Co., 3 FMSHRC
822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission
explained:

In order to establish that a violation of a mandatory standard is significant and substantial
under National Gypsum the Secretary must prove: (1) the underlying violation of a
mandatory safety standard, (2) a discrete safety hazard-that is, ameasbre ofdanger to safety
- - contributed to by the violation, (3) a reasonable likelihood that the injury in question will
be of a reasonably serious nature.

1

Mr. Torres-Aponte is presumably here referring to Mr. Acevedo' s taped statement of

November 14, 2002 (Gov't. Exh. 3 1).
28 FMSHRC 837

See also ,Austin Power Co. v. Secretary, 861 F.2d 99, .1.03-04 (5th Cir. 1988), aff'g
9 FMSHRC 2015, 2021 (December 1987) (approving Mathies cr:iteria).
The third element of the Mathies formula requires t!J.at the Secretar)r establish a reasonable
likelihood that the hazard contributed to will result in an event in w9Jch there.i s.an injmy.. US. Stee.l
Mining Co., 6 FMSHRC 1834, 1836 (August 1984), and .also that the likelihood of injmy be
evaluated in terms of continued normal mining operations. US. Steel Mining Co., Inc.,. 6 FMSHRC
1573, 1574(July 1984);SeealsoHaijWay, Inc., 8FMSHRC 8, 12(January 1986)andSoutliern Ohio
Coa/Co., 13 FMSHRC 912, 916-917 (June 1991).
· The Secretary argues in this regard that if Master Aggregates had insj:>ecied·the .highwall as
required, it would have reduced or eliminated the hazard of the rock fall which killed Mr. RiosBeauchamp. While it is certainly speculative that even a .thorough inspection ofthe high'_Vall in this
case would have prevented this particular rock fall, it is clear that the failure to conduct appropnate
highwallinspections, particularly following the obs~rvation ofcracks after blasting the week before,
is reasonably likely:to result in serious.and fat~ injuries. Accordingly, the vi<;>:lation was "si~ficant
and substantial'' and of high gravity.
. ..
The Secretary also alleges that the violation was the result ofhigh operator negligence. She
notes in this regard that Plant Manager Albrecht had knowledge that crac~ were on top of the
highwall a week before the accident (Tr. rr~64-65). Clearly, lqiowledge on the part ofthe.operator's
agent that the area above the highwall indeed showed some crac}9ng, combined with his.failure to
have inspected the highwall.before·work .commenced on the qay of the accident,.constitutes gross
negligence.
•.
·
... .
.
Even asswning, arguendo, that credit c.ol,l.}d be given to Mr. Acevedo's testimony at.hearing
that he did conduct an inspection of the highwall after lunch on November 13, 2002, but before the
accident, the evidence is clear from his statement of November 14, 2002, that he failed to conduct
an inspection before work commenced that morning and I would nevertheless find that there was still
a violation which was "significant and.substantial", ofhigh gravity and the result ofgross negligence
even though not perhaps a direct causative factor in t.µe fatality 4i this case.
Citation No. 7798761
Citation No. 7798761 alleges a "significant and substantial" violation of the standard at 30
C.F.R. § 56.3200 and charges as follows:

On November 13, 2002, a bulldozer operator was fatally. injured when he was stockpilling
[sic] material from a previously blasted area in the quarry. Unconsli~~ [sic] material
containing large boulders struck the bulldozer causing two collllllll$..of.the RO.PS structure
and roof of the dozer to collapse crushing the victim. Loose ground had not been taken down
or supported before work was permitted in the area.
The cited standard, 30 C.F.R. § 56.3200, provides as follows:

28.FMSHRC 838

Ground conditions that create a hazard to persons shall be taken down or supported before
other work or travel is pennitted in the affected area. Until corrective work is completed, the
area shall be posted with a warning against entry and, when left unattended, a barrier shall
be installed to impede unauthorized entry.

fu her post-hearing brief the Secretary alleges that the citation · was issued "because
Respondent failed to address the cracks that appeared on the top of the highwall prior to the fat~
accident" (Secty. Brief p. 15).2 That allegation does not however, in itself charge a violation ofthe
cited standard. Within the framework of the cited standaid, the issue is whether the· Secretary has
sustained her burden of proving that the ground conditions on the highwall before work was
pemritted adjacent to the highwall on November lJ, 2002, created a hazard to persons.
The Secretaryrelies in this regard, on the contradictory statements ofPlant Manager Albrecht
that the crack~ he had' seen on top of the highwall a week before the accident were similar to the
cracks he saw in that area after the accident and that "if' he had seen the cracks before the accident
he "probably would have taken some corrective action" (Secty. Briefp. 15; Tr. II-64,65,77-80). The
Secretary herself acknowledges that this contradictory testimony is curious. fu any event, because
of this contradiction, I find that I cannot give the testimony in this context any probative.weight.
Under the circumstances, there is no probative direct evidence in this ca8e that the ground
conditions on the highwall before the work of bulldozer operator Rios-Beauchamp was permitted
on November 13, 2002, were hazardous to persons. Significantly, the credible testimony from the
Secretary's expert, Doruild Kirkwood, a·licensed professional civil engineer and expert in soil and
rock mechanics, is that cracks appearing above a highwfill do not necessarily indicate that a highwall
is about to fail
that Mr. Rios-Beauchamp marhave caused the ground fail~e himself by
undercutting the highwall (Tr. I-181, 182).

and

Both Kirkwood and Plant Manager, Albrecht, testified· that the cracks they observed
followiiig the fatal rock fall were likely the same as before the rock fall (Tr. I-148, Tr. II-78-80). fu
addition, according to the Respondent's, witness, David West, an expert in rock mechanics and the
micro seismic monitoring ofmine sites, three "catastrophic" events (i.e. the grourid fallitself; rainfall
that occurred in the area of the rock fall on the evening of November 13, and an earthquake
measuring 4.7 on the Richter scale 190 miles from the mine site) occurred after the rock fall and
before Mr. Kirkwood observed cracks on November 15'\ which affected the ground and influenced
the presence, or visual size, of the cracks (Tr. Il-152).. I find Mr. West highly credentialed and bis
testimony entitled to persuasive weight. Accordingly, I find that the cracks observed after the rock
fall, if anything, would likely have appeared larger than before the rock fall and, would therefore
have appeared more hazardous after the rock fall.

In light of the credible evidence, cited below, that the cracks above the bighwall after the

2

The Secretary does not assert that the failure of the highwall per se establishes a
violation of the cited standard.
·
28 FMSHRC 839

accident did not, in fact, pres~nt a hazard to persons, it may reasonably be inferred that the cracks
appearing before the rock fall likewise did not appear to present a hazard to persons. In this regard
I have again considered the testimony of the Secretary' s .expert, .Donald Kjrkwood, that cracks
appearing above a higbwall do not necessarily indicate that a higbwall is about to fail, .that the cracks
he observed after the accident on November 15, 2002, did not present a danger of imminent failure
and that Mr. Rios might have caused the ground failure himself by undercutting the highwall (Tr.
I-159-160,172, 181).
.
.
Jn addition, MSHA .in.spector. Armondo Pena testified .thllt, after the accident,.he exaniined
the highwall and that once the:boulder was taken off the bulldozer there W?S, in ess~nce, no danger
to persons working below the highwall. MSHA inv:es~igator T oires-Aponte a}.so·acknowledged that,
after the accident, he observed Mr. Albrecht standing one or two feet from the edge ofth.e highwall,
between a crack and th~ edgt?._o fth.e highwall without being in any kind .o f danger. Finally, Messrs.
Albrecht and Acevedo testified that wheµ th.ey inspected the ~<?P of th.e highwall after blasting
(apparently a week before the accident) th.ey, in effect, saw no~g hazardous (Tr. II-65', lOO).
.
Under all the circum~tances. then, .I cannot find that . the Secretary has proven .by, a
preponderance of the evidence.that th.ere has b~en a.violation of the cited standard .as aJ.l;~ged...
~;

Civil Penalties - Citation.No. 779860
- Under Section 11 O(i) of the Act, the Copimission an~ its jll;dges.must.consider the foUo~ID:g
factors in assessing a civil penalty: tb.e history
the negligence
of the
.
. of violatio~,
.
. .
'
. operator
. in
.
committing the violation, the size ofthe operator, the gravity C)f the violatj.on, whether th.e violation
was abated in good faith and whether .the penalti,es would affec.t the operator~ s ability to contiD.ue in
business. The record ·s hows that the operator is small in size with a not.insignificant hiStozy.of
violations. There is no dispute that the violation was abated in a timely and good faith nianner and
no evidence has been presented as to the effect the p~nalty would have on ·the operator' s. ability to
continue in business; The negligence. and .g ravity :findings have previously been discussed in the
instantdecision. Underthe.circumstances,I:findthattheSecretary'spr~posedpenalty.of$35,000.00
is appropriate for the. violation folllJ.d ~ Citation No. 779860.
·

ORDER.
Citation No. 779861 is vacated. Citation No. 779860 is affirmed and Master Aggregates Toa
Baja Corporation is directed to pay a civil penalty of$35,000.00 for the violation charged therein
·
within 40 days of the date of this decision.

Gary

elick
Administrative La
(202) 434-9977

28 FMSHRC 840

Distribution: (Certified Mail)
Donyell M. Thompson, Esq., Office of the Solicitor, U.S. Dept. of Labor, 102 Varick Street,
Room 983, New York, NY 10014
Willa B. Perlmutter, Esq., Patton Boggs, LLP, 2550 M Street, N.W., Washington, D.C. 20037

/lh

28 FMSHRC 841

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

September 27, 2006

MARFORK COAL COMPANY, INC.,

CONTEST PROCEEDINGS

Contestant
Docket No. WEVA 2006-788-R
Citation No. 7257574; 06/27/2006
Docket No. WEVA 2006-789-R
Citation No. 7257575;06/27/2006

v.
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Respondent

Docket No. WEVA 2006-790-R
Citation No. 7257568;06/27/2006
Slip Ridge Cedar Grove Mine
Mine ID No. 46-09048

ORDER OF DISMISSAL
Before:

Judge Feldman

These proceedings are before me based on a Notice of Contest of the subject citations
filed with the Commission by Marfork Coal Company, Inc. (Marfork) on July 10, 2006, pursuant
to section 105(d) of the Federal Mine Safety and Health Act of 1977, as amended, (the Mine
Act), 30 C.F.R § 815(d).
An operator served with a citation alleging a violation of the Mine Act, or alleging a
violation of a mandatory safety standard that has been abated, may immediately contest the
citation llllder section 105(d) of the Mine Act without waiting for notification of the proposed
penalty assessment. 30 C.F.R § 815(d). In such cases, section 105(d) provides that "the
Commission shall afford an opportunity for a hearing." An operator may have an interest in an
early hearing, such as in cases where continued abatement is expensive, or where the validity of
the citation or order impacts on an operator' s continued exposure to 104(d) withdrawal sanctions.
Energy Fuels Corporation, 1 FMSHRC 299, 307-08 (May 1979). Thus, the purpose of a 105(d)
contest proceeding is to adjudicate the validity of a citation without waiting for the Secretary's
proposed civil penalty.

28 FMSHRC 842

Alternatively, if tJie operator does not immediately contest a citation after it is issued, the
operator may wait to contest the citation in a civil penalty proceeding pursuant to section 105(a)
of the ¥ine Act. 30 C.F.R. § 815(a). Waiting to contest citations until after the civil penalty is
proposed facilitates settlement negotiations and limits discovery to citations that can only be
resolved through litigation. In addition, as discussed below, postponing a contest until after the
proposed civil penalty provides the opportunity for informal settlement conferences between
mine operators and MSHA personnel wherein citations frequently are vacated by MSHA without
the need for l~tigation.
Commission Rule 20, 29 C.F.R. § 2700.20, implements the contest provisions of section
105(d). Commission Rule 20(e)(l)(ii) provides that a notice of contest shall provide a plain
statement of the relief requested.

In its contests, Marfork denies each and every allegation contained in the contested.
citations. _Manork identifies the relief sought in its contest as "issuance· of an Order directing that
all the subject Citations be vacated and dismissed." (Marfork Contest, p.3). The Order sought
can only be issued after a hearing on the merits. Thus, the relief requested by Marfork is a
Commission hearing on the merits of the citations Without waiting for the Secretary's proposed
civil penalties.
The Secretary filed an answer to Marfork's contests on July 27, 2006, in which she
moved to stay these matters pending the related civil penalty cases. The Secretary's answer
noted that "counsel for the Contestant has indicated ... that he has no objeciion··t o this motion."
(Sec '.Y Mot., p.2). (Emphasis added). The Secretary's answer was accompanied by a cover letter
stating:
[Marfork's] Counsel has also indicated that it is the operator's.intention to file
notices of contest of all significant and substantial citations and orders but will
agree to continuances of those cases involving 104(a) citations. While it is the
Contestant's prerogative to file duplicative contest and civil penalty proceedings
pursuant to the Commission's rules, the Contestant's policy of always filirtg a
notice of contest and then agreeing to a stay seems to be a needless use of the
Commission's and Secretary's resources. This is especially true when the
operator can contest both the civil penalty and the underlying citation when the
civil penalty is proposed.
By filing a contest on July 10, 2006, seeking an early adjudication, only to .agree
shortly thereafter to stay its contest pending the civil penalty case, Marfork apparently does not .
want a disposition on the merits before the civil penalty is proposed. In other words, Marfork's
contest does not ad~quately articulate the relief it seeks in its 105(d) notice of contest, since it has
elected to wait for the 105(a) civil penalty matter.

28 FMSHRC 843

. Accordingly, on August 11, 2006, Marfork was ordered to show cause why its contest of
the subject citations should not be dismissed because of its apparent disinterest in a Comrois$ion
hearing in contravention of Commission Rule 20(e)(1 )(ii), and because,it is a duplicative.and .
needless consumption of$e Commission~s resources. 2.8 FMSHRC 745. The SecretacywiS· ..
· ·
provided the opportunicy to reply to Marfork's response to the Order to Show Ca~e.
Marfork responded to the show caus~ order on September 1, 2006. In its response
Marfork does not even express a pretense that it seeks an early adjudication on the merits.
Rather, Marfork asserts it is contesting all citations, with the exception of those designated a5
non-significant and substantial, for the purpose of initiating 4jscovery and informal negotiations
·
.
with the Secretary. (Marfork resp., p.5)
The Secretary replied to Marfork's response in correspondence dated September 7, 2006.
While the.Secretary opined that there was "no discemable reason" served by Mar;fork~~ .contest,
and that discoveryi.c annotproperly be characterized as "reiief sought" 'by conteScimt,',the
Secretary did not provide any meaningful analysis of.Commission case law, or refoV.~t .~tutory
and Commission.Rule provisions. (Letter from Glenn Loos, Esq.,i<;> Judge Feldman. of9/7/06).
Nor did the Secretary articulate whether or not Marfork's ~ntest Should be dis~$Sed~.

a

Consequently, on September 11, 2006, the Secretarywas ordered to state in writing, with
specificity, whether she.bt:lieves the subject Notice of Contest.$h~uld be dismissed. The
Secretary was requested ~o provide the relevant statutory and rule provisions and/or case.i~w in
support of her position. The Secretary responded on SepJ.ember 19·, 200~. "Wi~out providlii~ the
analysis requested by.~e September 11 Order, the Secretary stated she "is unaw~e .of ~y
statutory provision, any procedural rule, or any case law that requires dismissal the operator's
contest in the circumstances [of this case]." To the extent that there is no case law involving
frivolous operator requests for over 600.contests, 1 with contemporaneous expressions by the
contestants that they are not really interested in prosecuting their contests, I agree with the
Secretary's perfunctory analysis. However, the analysis must not stop here.

of

As noted, Marfork's contest has not even been filed under the guise of pursuing its
contest prior to.the Secretary's civil penalty proposal. Thus, Marfork has removed all genuine
issues of fact. Fundamental questions of law concerning defective filings that are tantamount to
an abuse of process cannot be ignored. Although the Commission long ago recognized an
operator's right to an early hearing under section 105(d), the right to an early hearing must be
accompanied by an operator's desire for an early hearing - - a desire Marfork admittedly does not
possess. Energy Fuels, supra. Although the C.ommission noted in E_ner:gyFuels that it saw no

1

The law finn representing Marfork has recently filed approximately 250 section 105(d)
contests on behalf of its clients. This law firm is not alone. For example, another law fimi has
filed more than 375 contests on behalf Aracoma Coal Company (Aracoma). All ·of these ·
contestants have agreed to stay their contests immediately after filing them. An Order to Show
Cause has been issued to Aracoma.
28 FMSHRC 844

reason why operators that filed bona fide contests seeking early hearings could not be persuaded
to postpone their contests until the civil penalty is proposed, surely Energy Fuels did not
sanction, or even contemplate, the current follythat is being thrust on this Commission.
1 FMSHR.C at 308. The unprecedented filing of voluminous contests under these circumstances
results in the needless expense and wasted effort associated with extensive photocopying,
meaningless assignment, pre-hearing and stay orders, and the preparation and storage of contest
docket files for no legitimate reason. 2

As a threshold matter, Marfork's policy of contesting all significant and substantial
citations, regardless of the underlying facts, lacks any considered thought. Thus, there is no
consideration of the underlying facts of a particular citation to support a need for an early
hearing.
Moreover, Marfork' s contest is defective. Commission Rule 20(e){l){ii) requires a
contestant to state the relief requested~ The desire to start discovery is not relief and does not
provide a basis for a 105{a) contest. · fu addition, discovery during a 105(d) stay is
counterproductive because it can result ill needless interrogatories and depositions of MSHA
inspectors concerning citations that the operator may not contest after the Secretary proposes her
penalty. Unnecessary deposition of mine inspectors interferes with their primary responsibility
of inspecting the nation's mines. fu this regard, I am no· longer inclined to allow discovery
during a stay in light of the multitude of unnecessary 105(d) contests. Thus, absent a request for
a hearing, Marfork' s contest serves no purpose.
I am not persuaded by Marfork' s assertion that its contests are remedial in.nature in that
they alleviate hann ·caused by any delay in the Secretary's proposal of civil penalties by initiating
the discovery and settlement negotiations process. (Marfork resp., p.5). fu fact, Marfork's
contest is an impediment to the settlement negotiations process. Informal MSHA safety
conferences offer operators the best opportunity for expeditious and simple resolution of operator
concerns. However, as the Secretary explained, contests place citations in litigation under the
exclusive direction of the solicitor and preclude the availability of informal MSHA safety
settlement conferences. (Letter froni Glenn Loos, Esq., to Judge Feldman of9/7/06, p.2). As
noted by the D.C. Court of Appeals, although the statutory provision in section 104(a) of the
Mine Act requires the Secretary tO propose a civil penalty within a "reasonable time," this

2

I am not suggesting that administrative burden provides a basis for denying an operator
the right to file a bona fide 105(d) contest. However, administrative expenditures incurred as a
result of frivolous filings are wasteful and must not be ignored.
28 FMSHR.C 845

provision is intended to ..spur the Secretary to action''. rather than confe~ rights on Inine op~rators .
Sec '.Y ofLabor v. Twentymilt: Coal Co., 411F.3d256,.261 (D.C. Cir. 2005). Tardiness by the ,
Secretary does not justify the filing of an avalanc4e of me.aningless contests with the Office of
the Secretary and with this Commission. .In the final analysis, section 105 of the Mine Act do.es
not confer on Marfork .t he right to be frivolous.
·
Finally, dismissal ofMarfork' s contest is consistent with the classic tenets of statutory
construction. "In ascertaining the plain meaning of the statute, the court must look to the
as a
particular statutory language at issue as well as the language and design 9f
. the statute
.
whole." K Mart Corp. v. Cartier, Inc. , 486 U.S. 281, 291 (1988) (citations omitted).
Section 105(d) provides:

If, within 30 days ofreceipt thereof, an operator ofa . . . mine notifies the ·
Secretary that he intends to contest .the issuance , . .. ofan order issued under
section 104, or citation or a notification of proposed assessment of a penalty :
issued under subsection (a) or (b) oftbis section,. or the reaso~leness of the .
length·of abatement time fixed in a citation ... .· Issued under section l()4, ·. .. .th,e
Commission shall afford an opportunity for.a IJearing . ..· And thereafter shall
issue an order . . . affirming, modifying, or vacating the Secr~tary 's citatio_n~ .
order, or proposed penalty, or directing·other:.appropriate relief.
·. . .
•.··

(Emphasis added.)
The plain meaning of section 105(d) provide~ an opera~or with the right to .contest a
citation within 30 days of its.issuance, rather than wait for the Secretary's civil penalty proposal,
if the operator-wants an expeditious Commission hearing. In other words, s~ctjc>n 105(d).affords
an operator with a right to an early hearing that should be given priority by.t his. Commission. .
The abuse of section 105(d) by filing disingenuous contests interferes with the .Commission'.s
orderly processes. In other words, if everything is·a priority, nothing is. a.priority~
Moreover, statutes·must be interpreted reasonably when Congress has not spoken on the
matter in issue. See, eg., Chevron US.A. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582,.584 (April 1996). Congress has
not directly spoken on, nor could it contemplate, the precise question in issue - - does a mine
operator have an unfettered right to contest a citation even if it does not want an early hearing?
Put another way, can any reasonable statutory interpretation of section 105(d) confer on an
operator the absolute right to file a contest for no apparent reason? Surely, the answer is no.

28 FMSHRC 846

Even in the absence of an articulated opposition by the Secretary, I cannot ignore the fact
that Marfork's contest is contrary to section 105(d) as well as Commission Rule 20(e)(l)(ii)
because it is devoid of relief sought, notwithstanding the abuse of process it creates.
In other words, I decline to be a patron of the theater of the absurd. Accordingly,
IT IS ORDERED that Marfork's contest IS DISMISSED.3

Jerold Feldman
Administrative Law Judge
Distribution: (Certified Mail)
Robert H. Beatty, Jr., Esq., Dinsmore & Shohl, LLP, 2604 Cranberry Square, Morgantown, WV
26508
Glenn M. Loos, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22"d Floor West, Arlington, VA 22209::2247
/mh

3 On September 13, 2006, Massey Energy Company (Massey), of which Marfork is a

subsidiary, reached an informal agreement with the Secretary that all subsidiaries "agree to
refrain from filing Notices of Contest on I 04(a) Significant and Substantial citations until the
proposed penalty is assessed unless there is something particular to be immediately addressed
with an individual citation." In recognition of Massey's restraint, I will stay all other pending
contests that Massey has agreed to stay without formal discovery being authorized during the
pendency of the stay. I have dismissed this contest on the merits because of the.important issues
raised, and the effect of this decision on similar contests that do not involve Massey.
28 FMSHRC 847

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

September 29, 2006
SECRETARY OF LABOR,
MlNE SAFETY AND HEALTII
ADMlNISTRATION (MSHA),
Petitioner

CIVILPENALTYPROCEEDJNGS
Docket No. WEST 2003-451-M
A. C. No. 02-01691-05844
Docket No. WEST 2004-76-M
A. C. No. 02-01691-10445

v.
Docket No. WEST 2004-103-M · ·
A. C. No. 02-01691-12689
·'

Docket No. WEST 2004-196-M
A. C. No. 02-01691-17038

QMAX COMPANY,
Respondent

Portable Plant for Qmax Co.
SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
JAMES L. FANN, Employed by
QMAX COMPANY,
Respondent

CIVILPENALTY PROCEEDlNG
Docket No. WEST 2005-61-M
A. C. No. 02-01691-27590A

Portable Plant for Qmax Co.

DECISION

Appearances: Isabella M. Del Santo, Esq., Office of the Solicitor, U.S. Department of Labor,
San Francisco, California, on behalf of the Secretary of Labor;
James L. Fann, Elaine P. Fann, Williams, Arizona, on behalf of Qmax Company
and Jam.es L. Fann.
Before:

Judge Zielinski

These cases are before me on Petitions for Assessment of Civil Penalties filed by the
Secretary of Labor ("Secretary"), pursuant to sections 105 and 110 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815 ("Act"). Thepetitioils allege that Qmax Company ·
("Qmax") is ·liable for twelve violations of the Secretary's regulations applicable to surface metal
28 FMSHRC 848

and non-metal mines, and propose the imposition of civil ·penalties totaling $1,539.00. The
petition in Docket No. WEST 2005-61-M alleges.that James L. Fann, Qmax's president at the
time, is liable, in his individual capacity, for one such.violation, and proposes a civil penalty in
the amount of $500.00. A hearing was held in Flagstaff, Arizona. After receipf of the transcript,
the Secretary submitted her post-~earing brief. Shortly thereafter, James Fann died after
suffering a spontaneous intra cerebral hemorrhage. He is survived by his wife, Elaine P. Fann,
who is also the personal representative of Mr. Fann's estate. Further settlement negotiations
proved Wlsuccessful and Respondents' brief was then filed. For the reasons set forth below, I
find that Respondent, Qmax, committed six of the alleged violations and impose civil penalties
totaling $333.00. I also find that the action against James L. Fann did·not survive his death, and
dismiss the petition filed against him.
The Record
The record in these actions consists of the transcript of the hearing and the exhibits
admitted into eviqence. During the course of the hearing, Respondents requested leave to
supplement the record with an amended affidavit and a statement pointing out portions of MSHA
video tape training materials, exhibits R-5 and R-6 (103.:.M), that they contend are particularly
relevant.1 The amended affidavit of Scott Langstaff was submitted by facsimile ori February 17,
2006, and a letter dated February 22, 2006, addressed the contents of the video tapes and other
issues. The Secretary objected to the amended ciffidaVit, and·agreed with the·proposal advanced
by the lUldersigned Administrative Law Judge, that the -letter be treated as part of Respondents'
brief. Respondents' request to supplement the record with the amended affidavit of Scott·
Langstaff is hereby denied. The amendment to the ·original affidavit, exhibit R-14 (103-M), adds
nothing of relevance. The letter, which was intended.to highlight portions of video tapes·that
Respondents contended were particularly relevant, goes well beyond that stated purpose. It will
not be considered as part of the evidentiaryrecord, but as part of Respondents' brief
Findings ofFact- Conclusions ofLaw . .
Qmax operates a small portable crushing and ·screening plant near Williams; Arizona On
JlUle 17 and 18, 2003, Jerry Kissell, an Inspector employed with the Department of Labor's Mine
Safety & Health Administration ("MSHA"), conducted an inspection of the Qmax plant. He
issued four citations charging Qmax with violations of safety and health standards. On August
20 and 21, 2003, he returned to the plant to investigate a complaint regarding safety violations
that had been reported telephonically to MSHA. In the course of that investigation, he issued
seven citations for various alleged violations. When he returned on August 25, 2003, to deliver
copies of the citations, he observed what he believed to be·a serious safety violation and issued
another citation. Following a special investigation,· th3t citation was also issued fo James L.
Fann, charging m111:in his individual capacity. as a "director, officer, or agent of [Qmax] who

1

R~spondents submitted separate sets of exhibits for each docket i:nimber. The

infonnation provided in parentheses refers to the docket number of the penalty proceeding.
28 FMSHRC 849

knowingly authorized, ordered, or carried out'' the violation. 30 U.S.C. § 820(c).
.

.

.

. The relation.ship between Qmax and MSHA was clearly strained, and became .
increasingly so during Kj.ssell 's inspections.. James Fann had requested a Compliance Assistance
Visit ("CAV") when he was setting up the operation in the summer of2002.2 Tr. 414. Although
he had had substantial experience in the.in4ustry, he was,restartmg operations that had been
donnant since 1996. MSHA denied th~ request. Fann believed that many of the citations issued
during Kisse)l's inspections could.have been avoided if a CAV had been provided. He
repeatedly protested the denial of the.CAV request in response to the issuance of the citations.
Ex. R..:19 (451-M), R-10 (196-M), R-12 (196-M). He raised it with Kissell at the beginning of
the inspection and, according to Kissell, appeared agitated with MSHA and complained of
inconsistency during the inspection. Ex. R-1 1 (451-M) at 5, 15. Fann testified that Kissell made
disparaging comments to the effect that, as a mine operator with millions of dollars worth of
equipment, all he was interested in was profits, not the safety of miners. Fann defended Qmax's
prior safety record, an.d countered that the equipment was worth co~iderably less th~ Kissell
thought and that m1;1ch of it was rented at a cost of about $2,500.00 per day.. Tr. 4 i9, 507-08.
Fann was concerned that Kissc;;ll's multiple inspec~on days resUlted ill a virtual sh~t-down of .
operations, and considerable expense t~ Qmax.3 Tr. 601-03. Fann n~acted angrily when cldvised
of some of the citations, and claimed that Kissell ''threatened" excessive enforcement actions.4
Fann also-raised other issues, including n~t being properly advised of conference rights and not
getting a copy of the hazard complain~ that prompted the second mspection. Most of the
arguments were premised upon Fann's.view that under the Act arid MSHA's.puQlished policy,
MSHA should have be~ mo~e helpful in providi_p.g technical assistance rather~ empha.$izing
enforcement-action, particularly as to small pperato~s whos_e.~p.erations experienced more
disruption by inspections. See 30 U.S.C. §.952(b).
·
·

As explained in MSHA's Program Policy Manu~ ("PPM''), a Compliance Assistance
Visit is conducted like a regular inspection, except that citations issued for potential violations
are marked "CAV-NONPENALTY." Inspectors assure that appropriate corrective actiqn had
been taken during subsequent regular inspections. ·PPM, IV,§ G-3.
2

3

Seen. 5, infra.

4

Citation N:o. 6292706, issued on June 17, 2003, the first day ofKissell's ;iispecti.on,
particularly angered Fann. It alleged a violation of a rollover .p rotection labeling requirement on
an excavator. Based upon consultations with .the manufacturer and others, Qmax protested that
the citation h~ been i~sued in error. The conflict was not innnediately resolved, and Kissell
threatened to red-tag the excavator on a subseque_p.t visit, whi~h would have ~ignificantly .
impaired Qmax's operation. As Fann expiruned at the hearing, ''there are suggestions in here that
I became irritated, that is right, I did, and what I thought was good reason." Tr. 415- 16; ex. R-19
(451-M). That citatipn is not at issue in these proce.edings, apparently because MSHA eventually
agreed with Fann' s ppsiti.on. Ex. R-10 (196-M) at 3. ·
· ·· ·
·
·
t

•

•

28 FMSHRC 850

•

As explained in a January 30, 2004, letter, manpower limitations in the Mesa, Arizona
field office dictated that MSHA be ''very selective" in providing CAVs and, since Qmax had
previously been in the industry for many years, its request was denied. Ex. R-14 (196-M). While
the question of whether a CAV should have been provided is not an issue in these cases, the
denial of the request appears to have been reasonable. In addition, with one possible exception, it
is difficult to perceive how a CAV could have avoided the citations at issue. The other issues,
e.g., the alleged failure to fully advise Fann of oonference rights, are also irrelevant to the
disposition of the particular violations alleged in these cases.
Fortunately, overtly adversarial behavior was not exhibited in the course of the hearing.
All parties, representatives and witnesses conducted themselves with a high degree of
professionalism throughout the proceedings. It is unnecessary to decide exactly when or how the
strained relationship was initiated or escalated, and no attempt will be made to do so. However,
it does appear that a niore civil and cooperative relationship may have resulted in fewer or less
serious enforcement actions and/or a significantly higher chance ofresolution short of a decision
by an Administrative Law Judge after a three-day hearing. MSHA's policies recognize that
enforcement actions can have· a disproportionate adverse impact on small operators·and, unda
the circumstances, Fann's reaction is at least somewhat understandable.5
·
Fann and Qmax timely contested the citations and the assessed penalties. The citations
are discussed below in the order that they were presented at the hearing.
Citation No. 6292707
Citation No. 6292707 alleges a violation of 30 C.F.R. § 56.4230, which provides:
.

.

(a)(l) Whenever a fire or its effects could impede escape from self-propelled
·
equipment, a fire extinguisher·shall be on the equipment.
(2) Whenever a fire or its effects would not impede escape from the
equipment but could affect the escape of other persons in the area, a fire
extinguisher shall be on the equipment or within 100 feet of the ·equipment.
The citation specifically alleges a violation of section 56.4230(a)(2). Kissell described the
violation in the "Condition or Practice" section of the citation as follows:
A fire extinguisher was not provided on or within 100 feet of the Caterpillar 225DLC track-hoe (excavator), Unit"# EX-10. The track-hoe is used to break rocks

5

MSHA's PPM recognizes that inspections of small mines often dictate that "time
devoted to accompanying an inspector be subtracted from productive endeavors and may be a ·
financial burden on the operator." It further specifies that "all issues should be addressed..during
a single·inspection so that the number of follow-up :i nspections fot compliance purposes can be
reduced to an absolute minimum." PPM, N, § G-7.
28 FMSHRC 851

with .a hydraulic hammer. No visib~e oil leaks or fire hazard potentials were
observed.
Ex. P-4.
Kissell determined that it was tµtlikely that the violation would result in ~ injtiry
resulting in .Jost work days or restricted duty, that the violation was not significant and
substantial, that one employee was affected, lUl,d that the operator's negligence was low. A civil
penalty in the amount of $60.00 has been proposed for this violation.
The Violation
T}ie excavator in question operated ~ the quaey arid near the primary crusher. It had a
two-piece mobil~ boom, o.n which was mounted a hydraulic hammer that was used f()t:' breaking.
large rocks.. When not in the quarry, it was parked on the side of the feed ramp to the pri~azy .
crusher, where.it was available to break rocks th~t were .too large to pass through the crusher'. s
grizzly. In ord_er.to break such rocks, the excavator was maneuvered so truit the arm With the ·
hammer swung out over the feed hopper. Becaus~.the operator could not see into ~e hopper, a
person climbed up to the crusher operator's platform and used hand signals to guide the
excavatQr.oper.ator to position ~e hammer on a ro.c~. The crusher operator's.platform had a
railing around it, and was accessed by ladder from .the.rear. A piec~ of conveyor belt ":'as .
attached to the railing on the side nearest the hopper and the two adjacent sides, to deflect pieces
of rock that might be impelled by the hammer. The crusher operator's platform is shovyn on the
left side of photographs introduced by Respondent, in which a portion of the yellow-pa.ihie'd ·
excavator, located on the feed ramp, is also visible. Ex. _R-2, R-2A (451-M). Normally, the
excavator was operated by the miner who operated the front-end loader that fed the hopper.
The citation, as written, alleges a violation of section 56.4230(a)(2), which: concerns the
ability ofpersons other than the equipment operator ~o escape a fire. Howev~r, it is apparent that
Kissell was more concerned about the excavator operator. His justification for the gravity of the
violation, as recorded at the time he decided·to issue a citation, reads ..persons caught in fire with
no extinguisher on mobile equipment could receive lost time from work due to·injuries." Ex. P-5.
Kissell rea~ily admitted that he·wanted to write the citation under subsection (a){l), because he
was more concerned about the excavator operator, but was convinced by "someone" not to do so.
Tr. 230-31. He believed that he could have better supported such a violation.
Kissell had difficulty explaining how someone other than the excavator ·operator might
have ms ability to escape impeded by a fire on the excavator. The "persons" referenced in bis
documentation are not identified. He speculated that a laborer or another loader operator might be
in the vicinity, but was unable to explain why. either of those persons couldn't have simply walked
or driven away. Fann explained that, because of space limitations, no loader.could use the feed .
ramp while the excavator was operating, and th~t no other individual would be in the a:rea.
.
Tr. 431-33. At the hearing, Kis~e]] focused upon a.fir~ impaipng the escape of the person on the

28 FMSHRC 852

crusher operator's platform. However, at the time he wrote the citation, he did not know that a
person would be in that position. Tr. 61-62, 222-24. His recollection was also affected by the
lengthy passage of time between the issuance of the citation and his testimony, and he testified
that he may have "mixed a few of the ideas between each inspection to a certain extent." Tr. 223.
Also troubling is an inconsistency in his testimony regarding input from other MSHA officials.
He testified on cross-examination that, as to all of the citations issued during the June 17
inspection, including specifically this one, he received "no input from the field office" and that all
of the citations were "my decisions and based upon my observations." Tr. 68-69. However, as
noted above, there was significant input from the field office, in that "someone" ·convinced him to
base the charge on section 56.4230(a)(2), rather than sub-section (a)(l). Tr. 230-33.
Kissell finally conceded, that "it would be difficult in this case" to conjure up a situation
where the ability of a person other than the excavator operator to escape would be impaired by a
fire on th~ excavator. Tr. 230-31. In an enforcement proceeding under the Act, the Secretary has
the burderi of proving all elements of an alleged violation by a preponderance ·of the evidence.
In re: Contests ofRespirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838
(Nov. 1995), affd, Sec'y ofLabor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir.
1998); ASARCO Mining Co., 15 FMSHRC 1303, 1307(July1993); Garden Creek Pocahontas
Co. , 11FMSHRC2148, 2152 (Nov. 1989); Jim Walter Resources, Inc., 9 FMSHRC 903, 907
(May 1987).
. I find that the Secretary has failed to carry her burden ·of proof on this violation.
Specifically, it has not been established by a preponderance the evidence that a fire on the
excavator couid affect the escape of other persons in.the area. In addition, I find ·that there was a
fire extinguisher located within 100 feet of the excavator. ·Mrs. Fann, who I found highly credible,
described the location of a fire extinguisher that was present on the day in question, located within
100 feet of the subject area Tr. 446-48; ex. R.:2, R2-A (451-'M ). Mr. Fann also testified that that
fire extinguisher was present at that location on the day in question. Tr. 433-35. Kissell testified
that the fire extinguisher was not present. Tr. 65. However, his testimony was based upon the
absence of any notation of it in his field notes. Mrs. Fann was responsible for placement and
maintenance of the fire extinguishers and I accept her testimony. Kissell may well have failed to
note the presence of the fire extinguisher, which
partially hidden behind a tire.
,

was·

Citation No. 6292708
Citation No. 6292708 alleges a violation of30 C.F;R. § 56.12016, which provides:
Electrically powered equipment shall be deenergized before mechanical work is
done on such equipment. Power switches shall be locked out or other measures
taken which shall prevent the equipment from being energized without the
knowledge of the individuals working on it. Suitable warning notices shall be
posted at the power switch and signed' by the individuals who
to do the work.
Such locks or preventive devices shall be ·r emoved only by.the persons who

are

28 FMSHRC 853

installed them or by authorized personnel.
Kissell described the violation in the "Condition ·or Practice" section of the citation as follows_:
The jaw-crusher under feed.belt was not locked or tagged out by persons who had
been doing repair work on a .tom belt on this conveyor. The generator supplying
electrical power to this conveyor was running and the main disconnect was in fue
on position. Persons who were to finish the repaif. work on this belt were exposed
to the equipment being inadvertently started while ~orklllg on the conveyor belt.
Persons could be entangled in the equipment causing permanently disabling
injuries.

Ex. P-7.
Kissell determined that it was·reasonably likely that the violation would resuit in a .
permanently disabling injury, that the violation was signifi<'.ant and $ups~tial, ~ tw~
employees were affected, and that the operator's negligence was low. A civil p~ty in the
am.ountof$75.00 has been proposed f~r this violatfon. ·
·
· ..
The Violation
Two miners were engaged in repairing tears in the conveyor belt. Despite the_p,:esence of
suitable devices, they had failed to lock-out .and Jag,-,o ut the electrical controls.to ~e ~o~veyqr .
while they performed the wor~, and had not placed any warning notices at the:poweJ; switch. .
They explained th~t they felt s~cure .and safe,.apparently because they were tp.e oniy 'mdividuals
present on the site that were authorized to operate.controls starting and stopping equipment, such
as the conveyor. Tr. 90, 483. It is dear that the regulation was violated. 6
·
Significant and Substantial
A significant and substantial ('~S&S'') viqlatton is described in section 104(d)(l) of the Act
as a violation "of such nature as could significantly and sul;>stantially contribute to ~e 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).

6

Respondent appears to argue that tb,e crrcwnstances amount to sufficient "other
measures" having been taken: However; the regulcµion, when read in its ~tirety, ~akes clear
that use of physical devices that would prevent ·energizirig of the equipment is required.

28 FMSHRC 854

The Commission has explained that:

In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation ·of a mandatoxY: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.
·

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), ajfg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).
·

In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug-. 1985); the Commission
provided additional guidance:
We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to ·
will result in an event in which there is an injury." U.S. Steel Mining Co., Inc.,
6 FMSHRC 1834, 1836 (August 1984).· We have emphasized that, in accordance
with the language of section 104(d)(l ), it is the contribution ·of a violation to the
cause and effect ·of a·hazard that must be significant and substantial. U.S. Steel
Mining Co., Inc., 6 'FMSHRC 1866, 1868(August1984); U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574-75(July1984).
This evaluation is made in consideration of the length of time that the violative condition
existed prior to the citation and the time it would have existed if normal mining operations had
continued. Elk Run Coal Co., 2TFMSHRC 899, 905 (Dec. 2005); 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); Youghivgheny & Ohio Coal Co. , 9.FMSHRC 2007 (Dec. 1987).
Because electrical power to the conveyor was not positively disconnected, the conveyor
could have been started by activation of a switch located in the plant's control room. There was
no clear view of the work area from the control room. There were also other persons on the site
who could have entered the unlocked control room and inadvertently activated the switch. Tr. 8,
83-84, 90-91. Based upon those facts, Kissell concluded that it was reasonably likely that tlie
conveyor could have been started while the men were working on it. As to the mechanism and
severity of any possible injury, he believed that rivets that had been used to repair the belt, some
of which had not yet been cut o~ could have caught the clothing of one of the men and dragged
him to the wiper blade of the self-cleaning belt, resulting in serious irijuty. Tr. 86. Although he

28 FMSHRC 855

also thought it possible that a person could get pulled over the self-cleaner blade to the tail pulley
and suffer a fatal injury, he did not believe that was reasonably likely to happen. Tr. 75-76, 86-87.
Qmax contends that there was no..reallstic possibilify that the conveyor ~ould be started
while the men were workiµg on it. The men doing the work were the only persons on the mine
site that were authorized to operate the equipment. Tr. 488. While there w~re other persons on
the site, i.e.,. a laborer and two loader operators, it was unlikely that they would enter the control
trailer, which was posted with appropriate signage, and even more unlikely that they would
activate any equipment because, they were not authorized to do so. Tr. 10 l; ex. R-1 O(B) (451-M).
Moreover, the conveyor switch was not mounted on the control panel. It was located in the
Northwest comer of the control room, in a location that was hard to access. Tr. 93, 485.
A failure.to loak-out..and ta:g-ou~ electrically powered equipment while work is being
performed is normally a very serious violation. Mistaken, or inadvertent activation o.f. the
equipment can often result in serious, even fatal, injuries. On the particular facts of this case,
however, I find that the·Secre~ has failed to carry her burden of proving that the violation was
S&S. The violative condition was of relatively short duration. Because of;the lµnited.number of
people who could have entered the control room and the relative inaccessibility of the switch, the
risk of inadvertent start-up was small, and the possibillty that a serious. injury w:ould have
occurred if the equipment were started, was also small. .
The citation was is~ed at 8:5.0 a.m., and the work on the belt·had been :P,~ally
completed. There is limited evidence in the ~~cord as to when the work hacf. .b een started and how
long it would have continue4. However, ji;om the facts available, ~t appears that it most likely
started at the beginning of the work day and would have been completed that morning.
Consequently, the condition would have existed for no more than a few hours, during which time
the men would have periodically stopped working on the belt, and re-positioned it so that another
tear could be repaired. 7 While it is possible.that other persons working at the site could have
entered the control room during that.time, there is virtually no evidence of the likelihood of that
happening, and it remains little more than a theoretical possibiijty. It appears that there were,only
two or three other persons who may have been working, and there is limit~ evidence as to their
locations and assignments. None of them were authorized to operate the equipment, and it is
unlikely that they would have volitionally attempted to do so. When .c ombined w.ith the relative
inaccessibility of the switch, making the possibility of inadvertent contact unlikely, the possibility
that the conveyor would .have been started while the men were working on it was highly remote.
Also remote was the possibility that either of the men would have suffered a serious injury
if the conveyor had been started while they were working on the belt. The specific work site. is
depicted in photographs taken by Kissell. Ex. P-.8, P-9. The mep. were working under the belt,

0

7

The men were repairing s.everal tears, and had to re-position the b elt to move the tears
to a location where they could be worked on. The need to periodically re-pqsition the belt may .
·
have been a consideration· in their decision not to lock-out and tag-out the equipment.

28 FMSHRC 856

which, if started, would have moved from left to right as seen in the photographs. That would, no
doubt, have been a startling occurrence. However, it does not pose an obvious threat of serious
injury. Kissell postulated that un-cut rivets protruding about one inch from the belt could have
snagged one of the men's clothing and dragged him into the self-cleaning wiper blade. Like his
analysis of whether the conveyor could have been started, however, his injury assessment appears
to be focused on a theoretical possibility and did not progress to any realistic assessment of the
likelihood of a serious injury occurring. The process by which repairs were being made to the belt
was not explained~ other than the fact that rivets were being used. The positions that the men
would have been in at various points in the process, the type of clothing that they·were wearing,
whether or how often they would have been positioned such that an uncut rivet could have caught
that clothing if the belt had moved, are all questions left unanswered on the record.

On consideration of all of these factors, l find that the Secretary has not proven by a
preponderance of the evidence that an injury was reasonably likely to occur because of the hazard
contrlbuted to, or that any injury would have been of a reasonably serious nature. The violation
was not S&S. I agree that the operator's negligence was low and that two persons were affected
by the violation.
Citation No. 6292709
Citation No. 6292709 alleges a violation of 30 C.F.R. § 56.14132(a), which provides:
"Manually operated horns or other audible warning·devices provided oil self-propelled mobile
equipment as a safety feature shall be maintained in functional condition." Kissell described the
violation in the "Condition or Practice" section of the citation as follows:
The back-up alarm on the International S-1900 welding truck, Unit# TM-08, was
not maintained in functional condition. Employees in the mine plant are exposed
to being struck by this truck when it is backing up. Mobile equipment and foot
traffic work in the same areas that this truck is used daily. The truck is used as
needed throughout the mine for repair work.
Ex. P-14.
Kissell determined that it was reasonably likely that the violation would result in a fatal
injury, that the violation was significant and substantial, that one employee was affected, and that
the operator's negligence was low. A civil penalty in the amount of$91.00 has been proposed for
· ·
this violation.
The Violation - S&S
Respondent admitted that the welding truck in question was equipped with a back-up
alarm and that the alarm did not work when tested by Kissell. Tr. 494; ex. P-2, P-3. Therefore,
the specific portion of the regulation cited in the citation was violated. The truck was used

28 FMSHRC 857

occasionally throughoµt the plant on an as-needed basis. The alanµ. had been working when last
checked, but a wire had become disconnected shortly before the inspection. .Tr. 492. In Fann's
experience, noise levels near the plant were typically so high that audible alarms were hard to
hear, and men tended to get used to them, siich that they were of marginal effectivene_ss. Tr. 493.
For that reason, a written policy was in effect at Qmax requiring that a ,spotter or observer be
present to assure that the intended backward path of "mechanic or service trucks" was clear of
persons and objects. Tr. 493, 496; ex. R-6. At the time of the violation, two.men were 'Y.Orking
from the truck, and one was available to_perform the observer's duties. Qmax's p<;>licy was · .
consistent with the standard in question, which provides th~t a back-up alarm is not required when
there is an "ob.server to signal when it is safe to back up." 30 C.F.R. § 56.14132(b)(l)(iv).8
There is no evidence that the miners who were using the truck were unaware of Qmax' s
policy, or o~erwise not complying or inten~g to comply with it. While the failure to maintain
the back-up alarm in functional condition was a violation of the regulation, the violation was
purely technical. Use of an observer would be, as the regulation coi:itemplates, at least as effective
as an audible back-up alarm. Consequently, the malfunctioning a}arm did not cc;mstittite a haz;ard,
or present any risk of injury to miners. The violation was not S&S. I agree that th~ ·op~tor' s
negligence was low and that one person was affected by the violation.
Citation No. 6292710
Citation No. 6292710 alleges.a violatio~ of30 C.F.R. § 56.14107(a), which proVides: . .
"Moving machine parts shall be guaided ~o. protec~ persons fro~ ~ntacting ge.ar~, sprockets, . ·
chains, drive, head, tail and takeup pulleys, flywheelst couplings, shafts, fan bla4es,. and similar
moving parts that can cause injury." Kissell described the violation in the "Condition or Practice"
section of the citation as follows:
The Svedala under-cone feed belt head pulley shaft was not guarded to prevent
contact with the moving machine parts. The e)f.posed shaft opening measured 4.5
inches wide, for the entire diameter of the pulley. The exposed shaft measilred 61
inches above ground level. Persons do clean-up in this area 1-2 times weekly.
Persons are exposed to entanglement injuries.
Ex. P-16.
8

. (b)(1) When the operator has an obstructed view to the rear, selfpropelled mobile equipment shall have (i) An automatic reverse-activated signal alarm;

. . . ; or
(iv) An observer to signal ~hen it is.s~e to back up.
30 C.F.R. § 56.14132(b)
28 FMSHRC 858

Kissell determined that it was reasonably likely that the violation would result in a
permanently disabling injury, that the violation was S&S, that one employee was affected and that
the operator's negligence was moderate. Qmax protested the issuance of this citation at an MSHA
health and safety conference. As a result, another MSHA official modified the citation on
September 30, 2003, to allege that an injury was unlikely and that the violation was not S&S.
A civil penalty in the amount of$106.00 had been proposed for this violation on August 7, 2003.
The assessment was not amended to reflect the modification of the citation.
The Violation
The cited condition is depicted in a series ·of photographs. Ex. P-17 thru P-20. The first
photo shows the right side of the head pulley. Ex. P-17. The pinch point, where the conveyor belt
contacts the dnun of the pulley, is protected by the framing of the conveyor and an approximately
6-inch by 18-inch steel plate that appears to be a factoiy installed guard. Tiie area that was the
focus of the violation, according to Kissell, was the approximately 2.5-inch diameter shaft of the
pulley that extends about 4.5 inches from a bearing mounted on the conveyor frame to the drum of
the pulley. That shaft would spin at a high rate of speed, as would the drum of the pulley, which
was also unguarded. Kissell's concern was that workers, who cleaned the area 1-2 times per
week, might become entangled in the rotating shaft.
The modification to the citation cites the reason for changing the violation to non-S&S as
"Person would have to reach up into the shaft and head pulley' during operation, and only if
maintenance was done ·during operatfon. Practice is to conduct maintenance when equipment is
locked down." Ex. P-16. The cited reason for changing the probability ofinjury to ~'Unlikely"
. was "Equipment is locked out prior to conducting maintenance at the head pulley. In addition,
person would have to reach up into this pulley and shaft during operation."
The location of the condition relative to the surrounding area is depicted in two
photographs. Ex. P-19, P-20. The shaft was 61 inches above ground level. However, it was not
directly accessible; because the tail pulley of another conveyor Wa.s located underneath the head
pulley, and the guard for that pulley extended beyond the end of the bearing the head·pulley's
shaft. Ex. P-19, P-20. In order to reach the shaft, a person would have had to stand against the
lower guard and reach up over it to the pulley shaft. While the distance from any potential
walking or working surface.to the shaft had both vertiCal and horizontal components, Kissell
measured only the vertical component. Tr. 145.

of

28 FMSHRC 859

fu construing an analogous stand~d9 in Thompson Bros. Coal Co., 6 FMSHRC 2094,
2097 (Sept. 1984), the Commission st~ted:
We find that the 111-0St logical constrnc~ion of the standard is that it imports the
concepts of reasonable possibility of ~ontact and injury, including contact
stemming from inadvertent stumblii),g or falling> momentary inattention, or
ordinary hwnan carelessness. Jn related contexts, we have emphasized that the
constructions of mandatory safety standards involving miners' behavior cannot
ignore the vagaries ofhuman·conduct. See, e.g., Great Western Electric,
5 FMSHRC 840, 842 (May 1983); Lone Star Industries, Inc. , 3 FMSHRC 2526,
2531(November1981). Applying this test requires taking into consideration: all
relevant exposure and injury variables, e.g., accessibility of the machine.parts, .
work areas, ingress and egress, work duties, and.as noted, the vagaries ofhwnan
conduct. Under this approach,..citation~ .for inad~qu~te guarding will be r~olved
on -a case-by-[case] basis.
·
I find that under _the standard, additional guar4ing was not required for the.cit~ condition
because there was no possibility of injury. Whi_le miners <#d clean areund the area pne to two
in .the left-foi:eground
of
times per week, they would have been located down.the
. slope shown
.
.
exhibit P-19, below the level Kissell used for his measurement, and some distance away from it.
Tr. 775-76. They would have used shovels to move loose material away from the conveyor, and
would have been unable to reach the he.a d pulley's shaft, even if they had tried. .Kissell believed
that miners worked in the.area directly adj~ent to the guard, .where he took his measurement.
Tr. 145. He also took particular note of footp~ts in the.area, as shown in the photogr~h$. ·
Tr. 132; ex. P-19, P-20. ;However, the footptjnts may well have been made by maintenan9e
workers greasing the pulley bearing l?efore operations began. Tr. 518. In addition, Kissell himself
and/or his accompanying trainee may have walked in the area before the photo was taken.
Tr. 133. Both Mr. Fann and Mrs. Fann testified that Kissell's impression that miners would stand
in close proximity to the belt ~d clean the area by. shoveling. the spillage onto .the belt was
erroneous. Tr. 520, 775-76. They explained that spilled.material was "never" shoveled onto the
belt because it would be unsafe and would contaminate the end product. Tr. 520-22, 775-76.
Kissell testified that his cont;rary understanding was based upon a conversation with.one of
Qmax' s employees. Tr. 724-25_. However, neither the conversation nor the information is
reflected in his field notes or th~ citation documentation. Ex. R-4 (196-M); P-21. As previously
noted, Kissell' s recollection of events that had occurred over two years prior to his testimony was
understandably not crystal clear. I accept Respondent' s description of the process, and find that

9

30 C.F.R § 77.400
(a) Gears; sprockets; chains; drive, head, tail and takeup pulleys; flywheels;
couplings; shafts; sawblades; fan inlets; and similar exposed moving machine
parts which may be contacted by persons, and which may cause injury to persons
shall be guarded.
28 FMSHRC 860

there was no walking or working surface within seven feet of the pulley shaft. 10 Even if miners
occasionally worked closer to the conveyors and guards, I find that because of its nature, location,
height, and the interference pres~ted by the guard for the tail pulley, there was no risk of
inadvertent ·contact, and that the pulley shaft did not present a hazard. 11
The August 20-21. 2003. Hazard Complaint Ins.pection
On August 18, 2003, MSHA received a c0mplaint alleging unsafe work practices and
conditions, and violations of training and accident reporting regulations at Qmax 's plant. Ex. R-7
(103-M) at 1. The complainant was Charles Manke, a miner who had recently been fired by
James Fann for taking an unannounced two-week vacation. The complaint focused on three
incidents, one of which did not lead to any enforcement action. On August 20 and 21, 2003,
Kissell visited Qmax's plant to conduct an inspection regarding the complaint. He issued seven
citation$ alleging violations related to tWo of the incidents. One had occurred-on July 30 and
involved Manke, and the second had occurred on August 4 and involved an injury to Mrs. Fann.
The July 30 Incident
On July 30, 2003, Manke was standing on a conveyor belt and jumped off as it was
started. He suffered no reportable· injury and did not seek medical attention~ The conveyor in
question·was referred to as SP04A. Ex. P-6. It transported material being discharged-from the
"El-Jay Screen," located near the center of the plant. Occasionally, material fallirig ·onto the belt
would cause it to stick. Tr. 558-60. Qmax's miners had developed an escalating set of responses
to that problem. Initially, the belt was struck with a piece of wood or another available
·
implement. If that didn't work, a miner stepped up onto the belt and jumped up and down.
Tr. 275, 558-60.
On July 30, James Fann was about to start the conveyor. He asked Manke to watch the
belt to make sure it started. There was considerable noise in the area, -so Fann mouthed the words
to Manke and motioned with his hand and fingers to convey his message, and Manke nodded
indicating that he understood what he was being asked to do. Tr. 567. Fann then walked over to

10

In addition to cleaning, maintenance was performed OI). the pulley, presumably
greasing of the shaft bearing. However, Kissell did not identify exposure of maintenance ·
workers as a reason for citing the condition or evaluating its gravity, most likely because, as
noted in the modification, maintenance was performed while the equipment was not operating.
11

Respondent also claimed lack of fair notice of the Secretary's interpretation::that
additional guarding was required. While the Secretary argues that the notice defense was not
raised, I find that it was sufficiently raised by Respondent's repeated protests of denial of its
CAY request, and in its responses to discovery. However, Respondent's inference that the
equipment must have been inspected by MSHA at other facilities; while it was in the same
configuration, is too speculative to establish a fair notice defense to this citation.
28 FMSHRC 861

the control trailer, and started the conveyor. In the interim, Manke mounted th~ conveyor. As it
started, he jumped off and scraped his right leg and knee.
.

.

.

.

.

Kissell interviewed Manke, although not at the .Qmax .plant, and concluded that M~e
had been about 12 feet from the lower end of the belt and had ju.Inped or fallen a distance of about
56 inches. On August 21, Kissell issued three citations with respect to the incident~ charging .
Qmax with failure to sound a warning before startirig the conveyor, failure to provide sate access
to the position where the jumping occur;red, ~4 Manke' s f~lure to wear fall protection.
Citation No: 6292733
·;

';

·.

Citation No. 62:92733 alleges a violation of 30 C.F.R. :§ 56.15005., _which provides, in
pertinent part: "Safety belts and lines shall be worn when persons work ~here .there is :~ger_ of
falling .... Kissell qescribed the violation in.the ".Con~tion or Practice" sec~on of the citation~
follows:
During a hazard complaint inspection, the company confirmed an employee had
climbed onto a conveyor belt where a fall hazard existed without wearllig fall
protect;ion. A fall of 56 inches existed at t~e time of the inspection.. The ,o"'.D.er did
not direct the employee to climb on the belt. Employ~s had climbed on the ..·
conveyor belt to use their weight to break loose mud inatenals which would cause
the·belt to seize and not turn when s~ed.
Ex. P-36.
Kissell determined that it was reasonably likely that the violation would result.in an injury
resulting in lost work days or restricted duty, that the violation was significant and substantial, that
one employee was.affected, and that the _operator's negligence was low. A civi~ penalty in the
amount of.$72.00 has ~een proposed for this violation.
The Violation
There is no dispute that Manke was on the belt and jumped off as it was started. The
major controversy is over his position on the belt when the incident occurred. Kissell concluded,
from his interview with Manke three weeks after the incident, that he had been.approximately 12
feet from the tail pulley, i.e., about ruilf-way up the 24-foot conveyor, ·a t which point he measured.
its height at 56 inches. Qmax contends that Manke was much closer to the tail pulley, and no ·
more than two to three feet above the ground surface at the time. Its position is based upon the
practice that the ~iners followed itlhreaking the belt loose, and Mrs; Fann's interview of Manke
the day after the incident.
.

-

Unbeknownst to Kissell, Manke b_ad .reported-the incident. Qmax 's daily time cards
provide space for recording accide.p.ts. Mank:e.r~ortt'..d on his time card for July 3(), 2003, that he
28 F:M;SHRC 862

had experienced a personal accident, which he described as "breaking belt loose Jim started belt
and I got throw[n] off- scrape[d] right leg and knee." Ex. R-9 (103-M). Elaine Fann (then
Moffitt) noted the report and investigated it the next day. She spoke to James Fann and Manke,
and prepared an "Accident/Incident Investigation Rq)ort."J2 Ex. R-8 (103-M). Her description of
the incident noted that when the belt started ''Manke jumped off to the grol.ind, approx. 3ft." Her
comments noted that Manke didn't want to go to a doctor and that: ..He said he climbed on
conveyor to look at belt but didn't get off before waniing buzzer because he wanted to make sure
belt was [moving]." Ex. R-8 (103-M). That note is followed by a question mark, because
Manke's explanation of why he was on the belt did not make sense to her. . Tr. 577; ex. R-8
(103-M).
The place where the belt became stuck was at its lower end, near the tail pulley, where
material dropped onto it. Tr. 558, 593; ex. P-37. There was no reason·for Manke or any other
miner intent on freeing the belt to have gone more than a few feet from the tail pulley. Tr. 586.
The incident report is a critical piece of evidence in resolving the dispute about where
Manke was when the belf started. It was prepared iiI the normal course of business by-Elaine
Fann; Qmax's safety officer, whose interest was a5suring that Manke was healthy and ascertaining
what had occurred so that future incidents could be avoided. There was no ·citation pending - no
MSHA investigation - Manke had not been discharged - and no complaint had been filed with
MSHA. Moreover, Mrs. Fann's investigation occurred less than 24 hours after, and at the scene
of, the incident. Mrs. Fann went with Manke to the conveyor, and he pointed out to her where he
was when the incident occurred. Tr. 575. It w~ at a poi.pt-about six feet from the tail pulley,
which she estimated to have been about three feet above the ground. Tr. 575. The comment
about the buzzer sound was from Manke. Tr. 576.
Kissell's assessment ofManke's position is unreliable for a number of reasons. It was
based upon an interview that did not occur until three wee.ks after the incident, and was not held at
the mine site where the equipment was located. The complaint and interview followed Manke's
tennination. 13 Manke' s verbal description left Kissell with conflicting information, i.e., that
Manke was about halfway up the belt and at a height of six and one-half feet. Tr. 274. K.issell's

12

Because Manke had indicated that he hadn't lost time from work or gone to a doctor,
Kissell knew that the incident was not reportable as an injury under MSHA regulations. Tr. 33545. Consequently, he did not ask if there was a report of the incident, and did not review the
report during his investigation. Tr. 335-45. He was uncertain as to whether he had reviewed
Manke's time card, although there is nothing in his notes to indicate that he had. Tr. 344-45;
ex. R-7 {l 03-M).
·
·n. Kissell stated that the fact that Manke had been discharged had "no effect" on his
evaluation of what Manke told him, but then added that he "considered the possibility of a
disgruntled employee and tried to keep in mind that some of the allegations could be just made
because of anger arid disappointment." Tr. 363-64.
·
28 FMSHRC 863

measurements confinned that, even at halfway up the belt, the height at the time of the inspection
was 56 inches, and it may have been approximately .o ne foot lower when the incident occi.irred:14'

an

Kissell ·claimed to have confirmed Manke' s approximate position in
iiiterview with . .
another miner. Tr. 290-9~. However, there is no indication in any of his discussioD.$-\\'ith Fann or
in Fann' s testimony that anyone else was present or observed the incid~nt. There is·also no~h..ing
in those parts of his :field notes that were introduced jllto evidence to coiifum that .SlJCh an .
interview occurred. 15 Ex. R-7 (103-M). In any event, whether or not he was·able to cor;tfi.nn the
somewhat vague description of "about half way up the belt'' with another employee, it' wouid do
little to undennine the on-the-scene assessment made by Mrs. Fann. 16 ·rn addition~ other miners
present during Kissell's discussion of the use of fall protection while on the conveyor questioned
how a four-foot safety line would have helped "as the conveyor that Manke was on was only 2 to
..
3 foot off the ground at that point."17 Ex. R-14 (103-M); tr. 624~
I find, as Manke explained to Mrs. F~, that he stepped up onto the belt, in order to
"unstick it." Using the procedure that had been.developed at lli;e mine, he was positioned at the
lower end of the belt, near the:t<lil pulley. Tber~ was no reason for M~e to have.gone mor~ than
·a few feet from the tail pulley,. and.I fu,td that he did not do so. At the time of th~ July 30 incident,
he was no more than three.feet above the ground. His post-discharge claims to have gone ~p to a

14

Kissellnoted in the;body of the citation that:·"'A fa1Jof56 inches existed at the time of
the inspection." The measurement is qiia.J.ified because, as· he noted in his field notes, the area
had been "cleaned down approx. [one] foot." Ex. R -7 (103.-.M)·at 15. At the time oftheJuly 30
incident, the distance from the top-midpoint of the conveyor to the uncleaned ground surface
would have been about 44 inches.
15

There is a reference in Citation No. 6292737-to "another" person being. in .the area. .
That person has never been identified, and.his location at the time is unknown. !tis apparent
that, whoever that person was, he played no part in the incident.
16

The accuracy of Mrs. Fann's estimate is supported by a sketch depicting the slope of
the 24-foot long conveyor, with its tail pulley at a height of 22 inches and its head pulley at a
height of seven feet, nine inches. Ex. R-20 (.103-M). While the conveyor had been relocated
before those measurements were ta.ken, it was in essentially the same configuration, and was
blocked and supported, as it was on July 30. Tr. 587-89, 596-97, 632-33. The sketch shows that
at 12 feet from the tail pulley, the height was 57 inches, nearly identical to Ki.s sell's
measurement. At six feet or less from the tail pulley, the height would have ~een no more than
37.5 inches, and with one foot of spilled material, it would have been only about two feet.
'
17

There was conflicting testimony about what Mr. Fann saw from t)l.e control.trailer. It
was focused upon w~ether he saw, or could see, Manke's feet when he was on the:,l;>elt, while i~ ..
the air, or after he had landed. Tr. 283, 285-86, 292, 327, 580, 58.5-86.
. .
. The uncertainties
. .. .
.
.
associated with this evidence render it unhelpful in d~termining M~e' s pQ~iti?n. ..
'

28 FMSHRC .8 64

height of six and one-half feet, which would have been close to the head pulley, were obviously
prompted by a desire to retaliate for his discharge. The failure to wear fall protection under such
circumstances is not a violation of the regulation. The Secretary has failed to carry her burden of
proof on this ~llegation.
Citation No. 6292734
Citation No. 6292734 alleges a violation of 30 C.F.R. § 56.11001, which provides: "Safe
means of access shall be provided and maintained to all working places." Kissell described the
violation in the "Condition or Practice" section of the citation as follows: ·
A means of safe access was not provided to the SPo4A conveyor belt. Persons are
exposed to slip and fall hazards when they climb over the frame to gain access to
the elevated conveyor belt. Persons perform this task as necessary during the shift.

Ex. P-40.
Kissell determined that it was reasonably likely that'the violation would result in a
permanently disabling injury, that the violation was significant and substantial, that one employee
was affected, and that the operator's negligence was moderate. A civil penalty in the amount of
$106.00 has been proposed for this violation.
The Violation - S&S
This citation is related to the previous one, in that it is the practice of "climbing" or
stepping up onto the SP04A belt and moving to a location to jump up and-0.own to free the belt
that gave rise to the alleged violation. This practice made the top of the belt a work place,
according to Kissell: Tr. 322. As noted in a photograph of the conveyor, since there was "no
ladder or stairs, or·handrails provided to access the conveyor or walk on the belt," he determined
that there was a hazard presented to miners who accessed that area. Ex. P-42.
Respondent's defense is that ladders were readily accessible to miners at Qmax and that
the tail pulley end of the conveyor was only about two feet off the ground, allowing miners to
simply step up onto the conveyor. As evidenced byphotographs introduced by Respondent, there
were several ladders available for use by miners at Qmax. Tr. 630; ex. R-4(e) and (f) (103-M).
Kissell acknowledged that there were ladders present, but noted·that ladders were not immediately
adjacent to the belt. Tr. 323-24. Mr. Fann testified that miners simply stepped up onto the belt to
access the area, and that Manke, who had had significant medical problems, had no trouble getting.
onto the conveyor. 18 · Tr. 594.

18

Fann stated that Manke had undergone two knee replacements and major back
surgery, and did not have full movement. Tr. 594.

28 FMSHRC 865

It appears that, in assessing the safe: access issue, Kissell was operating on the erroneous
premise that the ''work place" in question was th,e top of the belt about half way between the head
and tailpWleys, a height of close to five feet ·a bove the ground. In fact, as decid~ above, the
work place was close to the tail pulley, at a height of two to three feet above the ground. Kissell
was concerned that a miner could fall while climbing onto the belt, and could suffer permanent
injury "because they could fall from a distance depending where they chose to clim~ on." Tr. 324.

I find that ladders were .available for miners to use, but that there was no requirement that
they be used, and they were not used by miners accessing the belt to ''unstick it." While miners
simply stepped up onto the belt at the tail pulley end, they had to step first onto a relatively narrow
part of the conveyor frame that typically had some spilled material on it, as shown in a
photograph. Ex. P-42. They also had to negoti~te the spillage guard plates, approximately one
foot in height, that were a:ected around the b9ttom ofthe conveyor. A slip and fall hazard was
presented by these obstacles, .~d a safe mecws of access was not.provided to that work place.
However, the heights involved were considerably lower truin Kissell had believed. There would
have been no reason for any miner to have climbed onto the conveyor at the 56-inch height that
Kissell mistakenly believed the work place to be. While it might have been reasonably likely for
an injury to occur, becaµse ,of th~ low~ height involved, it was not reasonably likely that any
injury would have been reasonably serious. Consequently, the violation was not significant and
substantial. I agree )Vith the assessment of the operator's neglig~nce as moderate.
Citation No. 6292737
Citation No. 6292737 alleges a violation of 30 C.F.R. § 56.1420l(b), which provides:
When the entire length of a cop.veyor is not visible from the starting.sWitch,
a system which provides visible or audible warning shall be installed and operated
to warn persons that the conveyor will be .started. Within 30 seconds after the
warning is giveJ,1, the conveyor shall be starre4 or a second w~g shall be given.
Kissell described the violation in the "Condition or Practice" section of the citation as follows:
The audible.warniµg system for conveyor belt start-up was not sounded to warn
persons of a conveyor belt start-up. On~ person was on the conveyor·belt and
another in the area when the conveyor was started. The entire.length of the
conveyor belt was not in sight from the start switch location. Persons unaware of
equipment starting are exposed to serious injuries.
Ex. P-44.
Kissell determined that it was reasonably likely that the violation would result in a fatal
injury, that the violation was significant and substantial, that one employee was affected, and that
the operator's negligence was low. A civil penalcy in the amount of $91.00 Jias been proposed for

28.FMSHRC 866

this violation.
The Violation - S&S
There is no dispute that the entire length of the SP04A conveyor belt was not visible from
the starting switch location in the control trailer. Photographs of the scene show that only a few
feet of the conveyor near the tail pulley could be seen from the window in the control trailer. fu
one photograph, a portion of the window is visible behind a ladder in the center ofthe picture.
Ex. P-42. There is also no dispute that Mr. Fann advised Manke, both verbally and.thiough hand
signals, that he should watch the belt, and that Fann proceeded directly to the control trailer to
start the conveyor. 19 There is a question as to whether Manke understood Fann' s communication,
and whether it occurred within 30 seconds of his starting the belt. There is also a question as to
whether Fann activated a warning buzzer prior to starting the conveyor.
When questioned by Kissell three weeks after the incident, and after having been fired,
Manke reported that he did not hear Fann' s verbal instruction and that he interpreted th~ hand
signals as instructions to climb on the belt to unstick it. Tr. 349. He also said·that he could not ·
recall hearing the warning buzzer prior to the conveyer being started: ·However, Manke had· ·
reported to Mrs. Fann, the day after the incident, that he understood that he was supposed to watch
the belt, and also mentioned the sounding of a warning buzzer. Tr. 574.:75; ex. R-8 (103-M). He
decided to climb on the belt to try and unstick it, believing that it wowd only take •Jjust a·second."
Tr. 574-75. I find that Manke wa8 effectively advised, both visibly arid audibly;tbat Mr. Fann ·
was going to start the conveyor, and that he made a personal decision to try·arid tinstick it before
·
the conveyor was started. ·
The Secretary' s position appears to be that ifFann's warnings were effective, they did not
occur within 30 seconds of his starting the conveyor, and that the functional and available audible
warning buzzer system was not activated prior to starting the conveyor. There was considerable
dispute at the hearing about the amount of time that elapsed between Fann's verbal-and visual
warnings and when he started the conveyor. Kissell testified·that a "small test" was conducted
and it took 25 to 29 seconds to move from where Fann gave the warnings to where he could
activate the conveyor, "if he was moving fairly fast." Tr. 347. He also testified that the test
showed that it could have been done in "approximately 28 seconds," but that a person "would
have had to nearly been running." Tr. 726-27. Fann testified that he had demonstrated to Kissell
that he, at age 72, could cover the distance in less than 30 seconds. Tr. 739-40. He also testified
that there was no doubt in his mind that he covered the distance and activated the conveyor within
30 seconds, and· opined that "If somebody is going to watch us any closer than that .. . then I need
to get out of the business." Tr. 569.

19

Even the unknown third person, seen. 15, supra, confirmed that verbal and visual
signals were given by Mr. Fann. Tr. 359.
28 FMSHRC 867

Kissell's citation documentation for this alleged violation includes the following language:
The owner directed the employee to watch the conveyor belt, not climb on it, and
told the employee that he was going to start the belt and then within approx. I 0-15
seconds, started the belt• .Empl~yee.was on the belt at the time and did not hear the
warning horns.
Ex. R-7 (103-M) at 40. The S<?cretary had listed Kissell's cit~tion documentation as an exhibit,
but did not attempt to introduce it into evidence. Qmax introduced the document as part of
Kissell's field notes.
Upon consideration of the above, I find that Mr. Fann provided a .visl,lal ru.idaudible .
warning that the conveyor was going to start within 30. seconds of its being s~ed~ ef~ectively
complying with the regulation.
.· · .

.Although it is.not necessary to reach the issu,e, I also find that .the warning buzzer ~y~em
was. sounded before th,e belt was started..· This is a much closer qu~stion. At one poµit .Kis$~n.:, : ·
testified ~atFann said he did~ot sound the buzzer. Tr. ~59. Ho~~ver, _h:e initially statedpiat .
Fann "hadn'
sounded.the buzzer. Tr. 349.. His .fjeld
notes.reflect
that.the
latter
. t .said"
. that.he
.
.
. ..
.
.
stat~ent is·more accurate, ·In response to _Ki~sell' s inquiry about the buzzer, Fann ~epHed that he
had ~ade hand signals to M~e that he was g~ing to stfil1_the conv~yor. . ~JC ~-7 at.26. ~sell :.
apparep.tly did not f~llP~:-UP on this indirect reply. Fann t~sti.fied .that l:le .cijd not .recall whether
or not he soU1lded t)J.,cr buz2'.er, b~cause "it's.a natural thing.'~ Tr. 570, _607. _Jn contenpmg that the
buzzer was sounded, Qmax places great significance on the notation in the nearly
contemporaneous incident report which, according to Mrs. Fann, reflects that Manke mentioned
that a warning buzzer sounded. Tr. 576; ex. R- 8 (I 03-M). Kissell, as previously noted,.was
unaware of the incident report untjl the.time of the hearing.
~

On balance, I finq that.the warning buzzer was sounded ~d, that the Seci;etary f~Jed -t o .
carry her burden of proving otherwise. It is understandable that witnesses would not be..able to
recall whether a routine prac_ti~e, i.e., sounding the warning buzzer, actually occurred on a given
occasion some three weeks in the past. This is especially.so when it was-not aJocal point of any.
inquiry, because the perso~s i nvolved understood that the conveyor was about to be started..
I accept Mrs. Fann' s testimony that the mention of the warning buzzer cam~ from _M anke when .
she interviewed him at the scene the morning after the incident. This is a strong indication that
Mr. Fann followed his routine practice ofsounding the buzzer prior to starting the
The
. .conveyor.
.
.
.
Secretary's evidence that th9se present did not later. recall he~ng a blJ2'.Zer,.wh.en ~onsidered in
light of the Manke statement, is insufficient to establish by a preponderance of the evidence that
an audible warning was not sounded.

28 FMSHRC 868

The August 4, 2003, incident
On August 4, 2003; Elaine Fann was assisting at the quarry because of the absence of the
subject complaining miner. She was positioned on the crusher operator' s platform and was
guiding James Fann as he operated the excavator and positioned its hydiaulic hammer to break
rocks in the crusher's grizzly. Mrs. Fann had her hands on the railing of the platfonn. The
hammer slipped off a rock and moved suddenly over to the platform crushing Mrs. Fann's left
hand against the railing. In the course of investigating this incident Kissell issued ·four citations.

Citation No. 6292735
Citation No. 6292735 alleges a violation of 30 C.F.R: §. 50.20(a), which requires that
operators "mail completed [accident report] forms to MSHA within ten working days cifter an
accident oceurs. Kissell described the violation in the "Condition or Practice" section of the
citation a5 follows:
The company failed to submit the·MSHA 7000-1 Accident, Injur)r Report on time.
The accident occurred on August 4th, 2003. The 70Q0-1 report was completed on
August 19, 2003, one day late, and then mailed on August 20th, 2003, two days
late.
·
Ex. P-22.
Kissell determined that there was no possibility of injury attributable to the violation, that
it was not significant and substantial, that no employees·were affected, and that the operator's
negligence was moderate. A civil penalty in the amount of$60.00 has been proposed for this
violation.
The Violation
Mrs. Fann was hospitalized for five days, and multiple surgeries were eventually
performed on her hand. Ex. R-3, R-4 (76-M). Because of a risk of infection, she was advised not
to perform work. Mrs. Fann served as Qmax's administrative officer. She handled payroll and
the bulk of office papeiwork. The office consisted of a room in a ranch house, which was not a
particularly sanitary environment. Acting on the advice of her doctor, she did not go to the office
for several days. Tr. 525-26. She finally did go in, to handle payroll and prepare and file the
required MSHA report of injury, which she deposited in the mail on August 19, the eleventh
working day after the injury. Respondent readily admitted that the report was not mailed timely.
Tr. 525; ex. P-29, P..:3'0.
Mrs. Fann' s testimony explains why the report was not timely submitted, but it does not
raise a legal defense to the citation. Qmax; through its president and chief operat.i ng officer,
James Fann, was obligated to comply with the regulation. It is understandable that Elaine Fann
28 FMSHRC 869

was not able to timely prepare and submit the report. However, James Fann should have been
aware of the requirement and obtained necessary information and documentation from Elaine
Fann, MSHA, the regulations, or any other source available to him, and complied with the injury
reporting ~equirement within the two-week deadline. H~s explanation that he wouldn't have
known where to find a copy of the form.in Qmax's filt'.s is unavailing. Tr. 529.

I find that the regulation was violated, as alleged, and concur with Kissell' s evaluat;i<?n. of
the gravity and ·operat(!r~ s negligence.
Citation No. 6292736
Citation No. 6292736 alleges a violation of 30 C.F.R. § 46.9(a), which requires that
operators "record and certify on MSHA Form 5000-23, or on a form that contains the information
listed in paragr~ph (b) of this section,. that each miner has received training require4 under this
part." Subparagraph (b) describes the requirements of the certification, and subparagraph (c)
provides that "new task training" shall be recorded and certified upon completion. Kissell
described the violation in the "Condition or Practice" section of the. ~itation ~ follows:
The company failed to record and certify that each miner had received the requi,red
training.

Ex. P-24.
Kissell determined
. ...
. that it was unlikely that the violation would result.in.an
..
. . injury
. resulting
in lost work days or restricted duty, that it was not significa.n:t ~d substantial, ~t n~ employ~es
were affected, and that the operator' s negligence was moderate. A civil penalty in the amount of
$60.00 has been proposed for this violation.
The Violation
This citation, and the one discussed immediately hereafter, No. 6292738, are related and
there is some overlap in Kissell ~ s citation documentation. Tr. 177. Citation No. 6292736
addresses Qmax's failure to document.training given to Mrs. Fann. Kissell's understanding of
Mrs. Fann's responsibilities when he conducted the June 17 inspection was.that she was the..
administrative officer, who performed office duties and occasionally made deliveries to the mine.:
As such, she was not working as a m4ter and was no~ required to have been trained as a fili:ner. .
Tr. 178-79. In fact, Mrs. Fann was an experienced miner, and had attained that status prior to.the
effective date of the training regulations. T:r. 532. As a result of the complaint investig~tion, :
Kissell became aware that, at the time of her injury, Mrs. Fann had been performing duties as a .
miner, including guiding the excavator operator from the crusher operator's platform. James Fann
had given her new task traii:ring on operation of the crusher .o n the morning of the_accident.
Tr. 533. However, that trainip.g had not. b~en recorded and certified, as required by section 46.9(a)
and (c)(3). Tr. 533. Qmax; admitte4 that .i t di4not.havedocum~tation for Mrs. Fann;s t:rainingat
28 FMSHRC 870

the time of the August 20 -21 inspection. Ex. P-29, P-30. Mrs. Fann explained that the training
Tr. 533.
·
she had received had not .been recorded because she had'been injured.
..
Although adm~tting that the documentation did not exist, Qmax raises several arguinents
in its brief in defense of this citation. It argues that the citation is ambiguous, in that it does not
specifically identify the training records at issue. However, the records in question must have ··
been sufficiently identified by Kissell, because he terminated the citation upon his return to the
mine on August 25 and 26. Ex . P-24. · Qmax 'also argues that certification of new task training is
not required upon completion, citing 30 C.F.R. § 46.9(d)(3). However, that provision applies to
ensuring that records are certified and that a copy is provided to the miner. Section 46.9(c)(3)
requires that a record of new task training be made upon completion of the training. In addition,
Qmax contends that the training had not been completed. However, it apparently has not
advanced this contention previously. The regulation requires that new task training be completed
before the miner perfonns the task, and it has not been ·disputed that Mrs. Fann had been trained in
the new task she was performing at the time of her injury. 30 C.F.R. § 46.7(a).
·

I find that the regulation was vfolated, as·alleged. Kissell testified that the citation
mistakenly noted that the probability of an injury occurring was "Unlikely'' that a "LoSt
Workdays" injury could result .from the violation: In fact, as noted on his citation documentation,
there was no likelihood of injury created by the violation. Tr. 183; ex. P-25. I agree with his
assessment of gravity and operator negligence.
Citation No. 6292738
Citation No. 6292738 alleges aviolation of 30 C.F.R. § 46.9(h); which requires, with
exceptions not pertinent here, that operators maintain copies of training certificates and training
records for each currently employed miner. Kissell described the violation in the "Condition or
Practice" section of the ci tation as follows:
The company failed to maintain recordS of training for two miners at the mine.
Training had been done on I 0/29/2002.
Ex. P-26.
Kissell determined that it was unlikely that the violation would result in an injury, that it
was not significant and substantial, that no employees were affected, and that the operator's
negligence was moderate. A civil penalty in the amount of $60.00 has been proposed for this
violation.
The Violation
As evidenced by the citation documentation for Citation No. 6292736, the records in
question were for annual refresher training of James Fann and Arillio Soto that had been

28 FMSHRC 871

adminjstered on October 29, 2002. Ex. P-25. Kissell had actually reviewed those records during
the June inspection, but requested that they again be produced during the August hazard complaint
inspection. Tr. 187, 536. At the time, he knew that the training had been done, and that Qmax
had recorded and certified it, as required by the regulation. Tr. 187, 53 7 . .Hpwever, the records
had .b~en moved, Elaine Fann was unable to.locate them, and they were not pi;oduced at the ~e
of the .request. Tr. 184, 536. Slie did lQcate them .shortly ~fter Kissell departed, and was prepax:ed
to.provide them if he returned on August 22. Tr. 536; eX. R-7 (76-M). How.ever, :Kissell did not
retUm until August 25, at which time the r~,ords were produced and.the citation was terininated.
Ex. P-26.
.
. .
.
.
.
.
There is no dispute that Qm~ had rp.aintained the required records. The cited portion of
the regula~ion, 30 .C.F.R. § 46.9(h), requires only that tht records be maintained. ·The preceding
subsection, 46.9(g), provides that "If trainfug certificates are not maintained at the mine, yoq·must
be able to provide the certificates upon request by Us, miners, or their representatives.~· Kissell
cited an MSHA policy and procedm:e letter that ~pparently provided c01:npliance ~dance, which
indicated that the records should be produced within 24 hoiirs of request. Tr. 188-89~ He
further testified that he allowed "more than one day'' for the_records to be produced, but. they were
not. Tr. 189. Qmax maintains that the recprdS were .n ot·requested
Au~st 21, and that they
were avajlable later that day and the following day. Ex. P-29, P-30.

a
until

I find that the Secretary has failed to carry her burden of proof on this ·allegation. The .
cited portion of the regulation requires only that the records be ~aintain~ and it is clear that they
had been maintained. Moreover, Kissell knew that the records had been maintained because he
had seen them two months earlier. There is no specific requirement that the records be kept at the
mine site, or that.they be produced within a specific time after a request is made. MSHA's
guidance letter is not a binding regulation. In any event, I also find that the specific records in
question were not requested until August 2 1. Kissell' s field notes indicate that on Au~ 20 he
called Mrs. Fann and made arrangements to meet with her on August 21 and review records.
Ex. R-7 (103-M) at 18. I accept Mrs. Fann's testimony that the specific records were not
requested until August 21, were l<?cated that day shortly aftei: Kissell left, and were available at
that time and thereafter. Tr. 536.
Citation No. 6292739
Citation No. 6292739 alleges a violation of30 C.F.R. § 56.11012, which provides:
"Openings above, below, or near travelways through which persons or mat~als may fall shall be
protected by railings, barriers, or covers. Where it is impractical·to install such protective devices,
adequate warning signals shall be installed." Kissell described the violation in the "Condition qr
Practice" section Gfthe citation as follows:
·

An approx. 20 inch wide opening at the top of the elevated jaw crusher operator
platform was not barricaded to prevent persons from falling. .Persons are exposed
to a fall hazard of approx. 16 feet above ground level. Persons access the jaw. ·
28 FMSHRC 872

crusher operator platform 2-3 times daily to do work.
Ex. P-28.
Kissell determined that it was reasonably likely that the violation would result in a fatal
injury, that the violation was significant and substantial, that one employee was affected, and that
the operator's negligence was moderate. A civil penalty in the amount of$133.00 has been
proposed Jor this violation. ·
The Violation
The cniSher operator's platform is rectangular, approximately four by six feet,· and· is
accessed by a fixed ladder that extends down approximately nine feet to the base of the ·.
equipment. The platform is surrounded by a railing, and there is a twenty-inch-wide opening in
the railing where the ladder is located. The platform, ladder and opening in the railing are
depicted in photographs taken by Kissell. Ex. P-31 , P-32, P-33, P-34. The distance from the
platform to the ground is 16 feet. Ex. P-32. Kissell did not cite the condition dunng his June 17
inspection because it was his understanding at that time that the crushe~ operator' s platform was
accessed only temporarily to activate the switch providing power to the crusher. Tr. 200. On
August 21 , however, he became aware that a miner accessed the platform two or three times·daily
to guide the excavator operator while rocks were broken on the grizzly. Tr. 201-09. Mrs. Fann
had been injured while performing that function. He determined that a miner engaged in that
activity could faff through the unprotected opening while attempting to avoid the rock breaking
device being maneuvered by the excavator operator, or that a miner might get ''knocked. through"
the opening by the excavator's boom. Tr: 193. Kissell determined that a person falling from the
platform would land on the base of the crusher, or fall all the way to the ground, and could sustain
fatal injuries.
Respondent's defense to this citation is based upon lack offair notice and -conflict with
other safety regulations. Tr. 550-51. However, Kissell explained why he did not cite the
condition during the June 17 inspection, and I fmd that a reasonably prudent person, familiar with
the mining industry and the protective purposes of the regulations would have realized that the
regulation required that the opening be protected while a miner worked on the platfonn.20 · Qmax's
argument that a person on the ladder would be required to use his hands to hook and un-hook the
protective chain, thereby violating 30 C.F.R. § 56.11011, is nonsensical. Tr. 555.
The unguarded opening in the railing of the crusher operator's platform presented a
hazzard to a miner working on the platform, especially because the miner's attention would be
directed to guiding the excavator operator, and he might have to move quickly back from the
railing toward the opening to avoid the excavator's boom: I find that the regulation was violated,
and that the violation was S&S. It was reasonably likely that the hazard contributed to would ·

20

See discussion of the due process, "fair notice," defense, infra.
28 FMSHRC 873

result in an injury and that any injury would be serious, possibly even fatal. Further, I agree with
J(jssell' s assessment of operator negligence and the number of persons affected.
The August 25, 2003. visit and citation.
Kissell returned to Qmax on August 25., 2003, to deliver copies of the citations issued on
August 20 and 21. He was accompanied by Lai:zy Nelson, an. inspector in training. As they were
driving into the plant, they obseived a person later identified as Frank Rho~, on top of the
Svedala screen, handing a tool to Mr. F~ who was located on the catwalk surrounding the
screen box. As Rhodes climbed down from the screen, Nelson took a photograph. Ex. P-49,
P-50. J(jssell detennined that Rhodes should have worn fall protection while on the screen, and
that Mr. Fann' s allowing him to be in that position without f~llprotection rose to the level of an
unwarrantable failure to comply with a mandatory safety standard. He issued Citatio~
No. 6292740. Following a special investigation, Mr. Fann was also _charged wi~ the violation in
his individual capacity.
·
·
·
Citation No. 6292740
Citation No. 6292740 alleges a violation of30 C.F.R~ § 56.15005, the falfprotection .
standard. J(jssell described the violation in .the "Condition or Practice" section the citation
~~ =

.

.

of. .

as

A miner was .o bserved standing on top of a Svedala screen, .o ver the screen feed .
head pulley (belt #EQ-204), without the required safety fuie or harness for fall .. ..
protection. The employee was exposed to a fall of approx. 14 feet to ground level.
Jim Fann, mine owner, was on the Svedafa screen walkway receiving h!llld tools ·
from the employee on top of the Svedala screen. A citation, #629733, was issued
to the company on 08/21/2003, for a violation of this same standard and MSHA
had·discussed CFR-30 standard 56.15005 with Jim.Fann and employees at that
time. Mr. FaJ?ll stated the employee was only up here for a minute. Fall protection
was available for use at the mine. Mine owner, Jim Fann, engaged. in aggravated
conduct constituting more than ordinary negligence in that he was aware the
employee was working where a fall hazard existed and did not require the .
employee to wear fali protection. This violation is an unwarrantable failure to
comply with a mandatory standard.
Ex. P-48.
J(jssell determined that it was reasonably likely that th~ violation would resUtt in a fatal ..
injury, that the violation was significant and su~stantial, that .on~ employee was affected, ~d that.
the operator' s negligence was hi~. As noted in the citation, it was issued pursuant to section

28 FMSHRC 874

104(d) of the Act, because of the unwarrantable failure allegation. 21 Civil penalties for this
violation were proposed against the operator and against James L. Fann~ in his individual capacity.
A civil penalty in the amount of $625.00 has been proposed for the operator, and a penalty of
$500.00 has been proposed against Mr. Fann.
Survivability of the Claim Against James L. Fann
The allegation against James L. Fann, in his individual capacity, was brought pursuant to
section 110(c) of the Act, which provides, in pertinent part:
Whenever a corporate operator violates a mandatory health or safety
standard .. . , any director, officer or agent of such corporation who knowingly
authorized, ordered, or carried out such violation . . . shall be subject to the same
civil penalties, fines, and imprisonment that may be imposed upon a person under
subsections (a) and (d).
30 U .S.C. § 820(c).
On August 24, 2006, Mrs. Fann filed a paper titled Suggestion of Death of a Party,
formally noting the death of James L. Fann on·1he record, presenting the issue of whether the
claim against him survived. In general, the survival of a federal cause of action up~ri the death of
a party is, in the absence of an expres"sion of contrary intent, a question ·o f federal common law.
Actions that are remedial generally survive, and actions that are penal generally do' not. U.S. V.
NEC Corp., 11F.3d136 (11th Cir. 1993); Smith v. Dept. ofHuman Services, State of Oki., ·
876 F .2d 832, 834 (10th Cir. 1989); International Cablevision, Inc., v. Sykes, 172 F .R.D. 63
(W.D .N .Y. 1997); and see Sinito v. U.S. Dept. ofJustice, 176 F.3d 512 (D.C.Cir. 1999).
There is nothing in the Act addressing the survivability of claims arising thereunder, or
suggesting that established rules governing the abatement of actions upon the death of a party
should not apply to claims under the Act. While the determination of whether a particular claim is
21

The unwarrantable failure terminology is taken from section 104{d) of
the Act, 30 U.S.C. § 81 4{d), and refers to more serious conduct by an operator in
connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997
{Dec. 1987), the Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable
failure is characterized by-such conduct as "reckless disregard," "intentional
misconduct,'l "indifference," or a "serious lack of reasonable care." Id. at
2003-04; Rochester &Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991)
("R&P''); see also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136
(7th Cir. 1995)] {approving Commission's unwarrantable failure test).

Lopke Quarries, Inc., 23 FMSHRC 705, 711 {July 2001).
28 FMSHRC 875

"penal" or "remedial" f~r purposes of swvivability can.present difficult issues,22 it apl?ears tha~ a
claim under section 110(c) of the Act, seeking imposition of a civil p~nalty against an individual
corporate director, officer or agent, is clearly penal in nature. Accordingly, under fe<l;eral common
law, the action against Mr. Fann abated upon his death and will be dismissed.23
The Violation as to Qmax
The Svedala screen stands about 14 feet high. The screen box, which holds three layers of
screens, is approximately 6 feet wide by 20 feet long. A catwalk at the base of the screen box
extends around the box. The catwalk is about 30 inches wide on the sides of the box, and about
36 inches wide on the end where the feed conveyor is located. 'J;r. 670. There is a railing around
the perimeter of the catwalk. The top of the railing is about one foot below the uppemiost edge of
the screen box. Photographs taken by MSHA on the day in question show the end of the screen
and catwalk where Mr. Fann was located and indicate the location of Rhodes. Ex. P-51,.P-52.
Photographs taken by Qmax also depict the screen box, catw3.J.k and rail~g. Ex. R-.19~ B and C
(196-M).
Rhodes was an employee of Fann Contracting, Inc., which operated an asphalt plant at the
Red Lake Quarry site. Tr. 673; ex. R-23 (196-M). He noticed Mr. Fann engaged in replacing
drive belts on the feed conveyor to the Svectaia scrPeiL Rhodes climbed up onto the screen to
offer assistance. When Rhodes approached, Fann was almost finished with the job. He noticed a
tool on the belt, and handed it to Fann. They then saw Kissell and Nelso~ w~o had stopped .their
vehicle near the screen, and had exited it in order to take a picture of.them, . Tr. 6.71-73 ~ .Th~y
wondered what the MSHA inspectors were interested in, and Rhodes mention~ the ~ssibility of
fall protection. Fann told him that, if that were the c~e, he should get down offtb,e sc~ee:n:
Nelson's photograph depicted Rhodes as he was climbing down from the screen. Kissell
infonned Fann that he was going to issue an unwarrantable failure citation for Rhodes' failure to

22

See NEC, supra; Smith v. No. 2 Galesburg Crown Finance Corp'. , 6l5 F.2d 407, 414
(7th Cir. 1980) (overruled, in part, on other grounds, Pridegon v. Gates Credit Union, 883 F.2d
182, 193-94 (7th. Cir. 1982)). In detennining whether a particular claim is penal or remedial,
courts typically consider three factors: (a) whether the purpose of the ~tatutory claim was to
redress individual wrongs or wrongs to the public; (b) whether the·recovery goes to the
individual or the public; and (c) whether the recovery is disproportionate to the harm suffered.
NEC, 11 F.3d at 137; Smith, 876'F.2d at 835; Sykes, 172.F.R.D. at 67.
23

In response to an order directing the .Secretary to advise of her position on the.claim
against Mr. Fann in light oflus death, she ini~ally took the position thai the.·claun wol;lld be
pursued, as filed, By order dated August i4, 2006,.citing the above pr7cedent, Re5pqndent was
directed to file a formal Suggestion of Death, and the Secretary was directed to show cause why
the action as to Mr. Fann should not be dismissed. The Secretary responded by advising that a
decision had been made to vacate the citation as to Mr. Fann. Because the.action against ·
Mr. Fann abated upon his death, the Secretary's belated.decision is ~. legal nullity.
28 FMSHRC 876

use fall protection.
The parties' positions on whether use of fall protection is required while standing on top of
the screen box, and the advisability of such use, are diametrically opposed. MSHA maintains that
use of fall protection is required under the regulation because there is a danger of falling 14 feet to
the ground. As Kissell explained his decision, the handrails arourid the catwalk did not provide
fall protection because Rhodes could have fallen beyond·them if he felf"straight out." Tr. 380.
In his and the Secretary's view, the need for·fall protection was so obvious, especially in light of
the prior citation and discussion conceriring fall protection, that Mr. Fann was grossly negligent or
acting recklessly in allowing Rhodes to be in that position.
· Qmax contends that requiring the use of fall protection by persons who mount a screen
box is a completely unrealistic and unheard of interpretation of ~he regulation, and·that the use of
fall protection under such circumstances would, itself, present a far greater hazard. The basis for
Respondent's position is that miners routinely climb onto screens in the process of changing them,
and that the use of fall protection during that process has never been required by MSHA at Qmax
or anywhere else in the industry. Neither Fann, nor Qmax's miners could envision a fall
protection system that could safely be used by miners engaged in changing screens. Qmax
contends that Rhodes' conduct was not in violation of the regulation._ and, if it were, it did not have
fair notice of the Secretary's interpretation of the regulation.
While Qmax contends that there was no.violation, the thrust of its argument is that
MSHA's tacit approval of miners standing and working on screens without using fall proteetion,
i.e., its inconsistent enforcement of the regUiation, deprived it of fair·notice of
S·e cretary's
interpretation of the regulation. The Secretary denies any inconsistency; She also- argties that
Qmax' s fair notice argument was not specifically raised, and·that Qmax was on notice that the
conduct violated the regulation. However, as discussed below, the Secretary's attempts to
distinguish the cited conduct from the screen changing process are unavailing, and ·her arguments
on fair notice are easily disposed of.
·

the

The Secretary maintains that: ''This citation·is not related to the·question of whether fall
protection is required while changing screens." Sec'y. Br. at 10. However, her attempts to
distinguish the cited conduct fail to address the evidence, and
belied by her own descr!ptiqns
of the conduct. Moreover, it is clear that Kissell and MSHA were well aware that the citation
implicated the screen changing process from the day it was issued.

are

The conduct cited, as stated in the body of the citation, was a miner "standing on top of a
Svedala screen." Ex. P-48. That same description was recorded by Kissell in his
contemporaneous field notes, i.e., "miner was observed on top of a Svedala screen." Ex. R-7
(103-M) at 27. The Secretary's arguments.in her brief reflect the same nature of the conduct
charged. "The miner ... should not have been allowed on top ofthe screen without wearing fall
protection equipment.,, Sec'y. Br. at 9 (emphasis added). "Mr. Fann's conduct, in allowing the
miner to climb onto the screen without being tied off, constitutes more than ordinary negligence ..

28 FMSHRC 877

. ." Sec'y. Br. at 13. (emphasis added).
. Miners changing screens engage in the same conduct, i.e., climb onto, stand on, and work
on top of screens. Mr. ·Fann testified that throughout his many years ~f experience, miner~
mounted the screen box every time the scre~s were cha,nged, about once a month. Tr. 682-84.
The brackets that clamp the screens in pl~c~ get wedg~d~in tj.ghtly and minei:s geperauy stand on
the screen deck_and break them lose with a hamme~ and bar. Tr. 757-58. They then traverse the
screen, carrying screen sections to a location where they can be removed. Tr. 679-80. It ~not an
uncommon event at Qmax or within the industzy. Tr. 86?-86. Kissell, who had 20 y~ars. of ,
mining experience, most of it in operations similar to Qmax 's, and had inspected roughly 200 to
500 screens, eventually agreed. Tr. 18, 34-35; ex. P-1. He related that he had heard of other
methods that might be us.ed, describing miners using "J-hooks" from the catwalk, and was aware
that some newer designs allowed screens to be removed through the end of the screen box.24
Tr. 731-32. But, Kissell agreed that Qmax' s screens had to be accessed from.the top, which w~
true for about 90% of the screens in the industzy. Tr. 753-54. ·He also .agreed that, although.he' s
seen it doµe differently, Mr..Eann's description of the process was "for the most p~ .. .
accurate." Tr. 760.
·
·
·
·
.,

was

There is nothing in the.record to indicate that Rh~des' conduct
unusually hazardo~.
In fact, his position, as pointed out in the Secretary' s ph~tograph, was at the.end of the screen box
next to the conveyor that fed the screen. Ex. P-52. At that location, there was a three-foot wide
catwalk occupied by Mr. Fann, with a railing arounq its perimeter, and the end of the.conveyor
was two to thre.e .feet above the screen box. Ex. R-l9C (196-M}. The probability or'!Uiodes
falling.to the ground from th;at position was, .if anything, less than that of a miner standllig .
elsewhere on the ~creen. There is no evidence that Rhodes was walking ar9und or domg anything
that would have increased the likelihood of his trippmg 9rfalling. The Secretary's suggestion that
Rhodes' having a wrench in his hand made a fall more likely is unconvincing. Sec'y. Br. at 1011 . Miners.engaged in changing screens use hammer and bar, i.e., they have tools in both.of
their hands, and
of them lift and carry seiments of screens wei~g approximately 85
pounds. Tr. 679-82. If anything, miners working on top of the screens during the screen changing
process would have a higher risk of falling than Rhodes ..

fom

a

Because miners engaged in changing screens mount and stand on the screens, p:t:ecisely ·the
conduct cited by Kissell, it is little wonder that the discussion ·of the impact of his determination
that miners on the screen had to use fall protection, triggered a discussion of how fall protection

24

.

.

Mr. Fann had never seen anyone replace screens from the catwalk, and it would .

appear to be an extremely difficult, i~not impossible, task. Tr. 684-85_. Respondent' s .
.
photographs of the Sve~a screen reveal that mine~ would have to reach over.
appro~~ately
five-fo~t high lip of the screen box, lift the heavy screen, and maneuver down the catwalk around
the screen's machinery. Ex. R-19C (196-M).

the

28 FMSHRC 878

could safely be used during the screen changing process.25 Qmax's miners, joined by Fann,
directly raised concerns about using fall protection while changing screens when meeting with
Kissell on August 25. Tr. 376, 676-82, 686-87; ex. R-23 (196-M). In fact, use of fall protection
while changing screens was the exclusive focus of Qmax/MSHA discussions from the day the
citation was issued, and there is no evidence that Kissell or anyorie else at MSHA ever advised
Qmax that its concerns were unwarranted, because the requirement to use fall protection while on
a screen had no application to the process of changing screens.
The Secretary claims to have been swprised by Respondent's screen changing argument,
asserting that: "During the hearing, Respondent raised, for the first time, the issue of the feasibility
of using fall protection when changing screens on the Svedala screen." Sec'y. Br..at 9 (emphasis
added): It would be hard to imagine a more erroneous statement. In fact, as noted above, from
the day that the citation was issued, the discussion of its validity and the feasibility of abatement
efforts centered exclusively on the use of fall protection while changing screens. These concerns
were reiterated several times by Qmax in correspondence with MSHA officials. One example is a
letter dated November 25, 200~, to Andrew Lowe, an MSHA-special investigator, wherein
problems with the use of fall protection while-changing screens were discussed. Ex. R-10
(196-M) at 12-15. The issue was also raised in subsequent letters. Ex. R-12 (196-M) at 4, R-15
(196-M) at 3.
Qmax certainly raised the fair notice issue. As early as November 25, 2003, Qmax
asserted in the letter to Lowe: "Based on information that I had on August 25, 2003[,] and
instructions that Mr. Kissell had given to miners earlier, it wa5 impossible for me or any Qmax
miners to know that Kissell' s interpretation would be that a miner must wear a harness and
lanyard tied off on a ·screen of any size ...." Ex. R-10 (196-M), at 15. Respondent asserted in its
Prehearing Report, "no tie off systems existed and neither Kissell nor Nelson brought this to the
attention of the miners or the operator, on any of the 4 previous days at the Qmax plant. Fair
Notice." Resp. Prehr. Rpt. (196-M) at l.26 {etnphasis in original). ·The Secretary did not object to
Respondent's inclusion of the fair notic'e argument in its prehearing report. At the hearing,
Mr. Fann testified that he had never been advised 't hat fall protection was required for a person on
a screen and, even at the time of the hearing, he had "no knowledge of fall protection having been
used or required on a screen." Tr. 665. Qmax's actions were more than adequate to raise the fair
notice defense, even without taking into account the less stringent standards typically applied to
those ''untutored in the law." See Marin v. ASARCO, Inc., 14 FMSHRC 1269, 1273 (Aug. 1992).

2

s Rhodes' approach, as Fann replaced the conveyor's drive belts, appears to have been
purely coincidental. Fann had not requested assistance, or directed any of his employees to help

in the process. Tr. 667-74; ex. R-23 (196-M). Consequently, K.issell's interpretation of the
regulation to require use of fall protection for a miner standing on the scre~n had no implications
for the belt changing process. It had major, still unresolved, implications for the screen changing
process.
26

Respondents filed separate prehearing reports in each docket.
28 FMSHRC 879

When "a violation of a regulation subjects private parties to criminal or civil sanctions, a
regulation cannot be construed to mean wbat ·an agency intended but did not adequately express."
Phelps Dbdge Corp. v. FMSHRC, 681 .F.4d 1189, 1193 (9th Cir. 1982), quoting piamond.Roofing
Co. ·v. OSHRC, 528 F.2d 645, 649 (5th Cir.·1976). The issue arises frequently in the enforc~ent
of standards like that .addressing fall prptectiQn, which must be written in simple terms in order to
be broadly adaptable to myriad circumstances. Alabama By-Prod.$.. Corp., 4 FMSHRC 2128, .
2129 (Dec. 1982). To determine whethe.r an operator received fair notice of the agency's
interpretation, the Commission has applied an objective standard, the reasonably prudent person
test, i.e., ''whether a reasonably prudent person familiar .with the minip.g ~dustry and the
protective purposes·ofthe standard would have recognized the specific.prohibition or requirement
of the standard." Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990); BHP Minerals Int'!
Inc. , 18 FMSHRC 1342, 1345 (Aug. 1996)-: Jn applying_this standard, a wide variety of factors
are considered, including the text of the regulation, its placement in the overall regulatory scheme,
its regulatory history, the consistency ~f the agenc;y's .enforcem~t, whether MSHA has published
notices informing the regulated community with ."ascertainable certainty'' of its interpretation of
the standard in question, ~d. whether the practice at issue effect~ safety. See Island Creek Coal
Co., 20 FMSHRC 14, 24-25 .(Jan. 1998); Ideal Cement Co., 12 .FMSHRC at 2416. .
.

.

The overriding factor affecting the fair notice issue, with respect to this citation, is the.
consistency of the Secretary's enforcement. It is clear that the vast majority of screens in use in
the industry were designed so that the screens must be replaced from the top. 1'Us requires
miners, when removing·wom screens, to D10lll,lt and st~d-on the sere~ box to.break the screens'
retaining brackets loose and carry the screen'sections· to a location where they can .be lowered to
the ground by machinery. The pro~ess is.repeated,.in ~eyers~~ ;wh;en-installing new scr~~· .
MSHA inspectors, like Kissell,.typically have had considera~le experience,iA the industry before
being employed byMSHA. Kissell, himself, had worked .w ith,screens for.several years.and had
seen from 200 to 500 screens~ MSHA clearly had .been aware of this practice for a considerable
period of time. From the evidence of record, it is apparent that-MSHA has. almost never taken the
position that a miner standing.cµid working on top of a screen is in danger of falling, such that the
use of fall protection is required by the standard; .That was the.case in August of 2003, and
apparently remains the case today.
Neither the Svedala, nor any other screens, were_designed or built, such that fall protection
devices could be used by a person on top of the screen 1'ox. Mr. Fann visited similar mining .
operations and did not find screens with fall protection structures. Tr. 703. He found only one
exception, where a structure had been added, but the safety director of that operation told·him that
the structure was merely for show, and the men didn~t.use it because ~eywere afraid ofit.27
Tr. 703-05. Pictures of some of the other screens observed by.Fann that lacked ~.pro~ection
Kissell testified that he had seen a "couple" ~f screens with fall protection structures
prior to issuing the citation to Qmax, and several since. Tr. 383-84. However, he identified only
one location, and it appears to be the same location that Fann identified, where the safety director
told him that the structure was not used. Tr.- 383-~4, 703-05.
27

28 ™.SHRC 880

structures were introduced into evidence. Tr. 703; ex. R-19D (196-M). Fann contacted screen
manufactures and suppliers, who informed him that the issue of fall protection structures for
screens had never been raised, and that an ·operator's addition of fall protection structures, at least
to the screen box, would void the warranties. Tr. 693-94. Fann's own view, and that of his
miners, was that attempting to use fall protection while changing screens posed a nwnber of
serious practical and safety issues. Tr. 676-82. He unsuccessfully sought design assistance from
28
•
.
MSHA. Tr. 691-97.
Respondent introduced an MSHA training module addressing safetjr practices for changing
screens. Although only a guideline, It does not mention the use of fall protection, except for ·
dealing with a special type of screen. Tr. 699-700; ex. R-6 (176M). There is no evidence that the
Secretary has published any notices informing the regulated coin:mwiity of the position taken here,
i.e., that a miner standing on a screen is in "danger of falling" within·the meaning of30 C.F.R.
§ 15005, such that safety belts and lines must be worn. · ln"fact, from the evidence introduced by
Respondent, it appears that she has consistently taken the position that the catwalks and handrails
surrounding screen boxes are sufficient to ensure that miners standing and working on screens are
not in danger of falling, within the meaning of the regulation, and is not prepared to change her
interpretation of the standard without undertaking a "separate irivestigation with regard to the
·
changing of screens." Sec'y. Br. at 10:
The Secretary has, over the course of years, consistently and knowingly declined to
enforce the subject regulation with respect to the screen changing process. Miners have routinely
climbed on, stood on, and worked on top of screens, without using fall protection, all with the
Secretary's at least tacit approval. Respondent's fair notice argument-was timely raised, and
precludes enforcement of the regulation with respect'io the conduct cited·here. If the Secretary
intends to take the position that a miner on top of a screen is required to use fall protection under
the regulation, absent some llllUSUally hazardous behavior by the miner, she would be welladvised to conduct the mvestigation noted in her brief; and engage in notice and'comment
rulemaking prior to initiating such enforcement action.
The Appropriate Civil Penalties
Qmax is a small operator, as is its controlling entity. Kissell's inspection was the first by
MSHA since Qmax had reopened after several years. Consequently, for penalty purposes, Qmax
has no history of violations. Qmax does not contend that payment of the penalties would impair
its ability to continue in business. All of the violations were promptly abated in good faith. The
gravity, negligence, and other penalty factors required to be addressed by section 11 O(i) of the Act
have been discussed, above, with respect'to each alleged violation.
28

For the hearing, Kissell prepared diagrams of structures that might be mounted on a
screen that would allow miners wearing harnesses and lanyards to tie~off. Ex. P-54, P-55, P-56.
However, these were simple concept depictions, similar to a rough sketch he had prepared while
talking with Qmax 's miners.
28 FMSHRC 881

Citation No. 6292708 is affirmed. However, it was found not to ~ve been S&S. The
violation was unlikely.to result in an injury, and ~y injury would have been minor. The
operator' s negligence was found to :p.ave been low. A civil .penalty of $75.00 was proposed by the
Secretary. I impose a penalty in the amount·of.$60.00, upon consideration of the above and the
factors enumerated -i n section 11 O(i) of the A~t.
Citation No. 6292709 is affirmed. However, it was found not to have been S&S. The
violation was purely technical and did not constitute a hazard. A civil penalty of $91 .00 was
proposed by the Secretary. I impose a penalty in the _amount of $15.00, upon consideration of the
above and the factors enumerated in section l lO(i) of the Act.
.
.
Citation No. 6292734 is affirm~d. However, it.was found not to have been S&S. The
violation contributed to created a_reasonable possibility.of a minor injur}r. .A civil penalty of
$106.00 was proposed by the Secretacy._) impose a pen~lty in the am~unt of $6p.oo, ~pon
consideration of the above and the factors enumerated in sectio~ 1lO(i) _ofthe Act.
.
:
.
.
..
.
Citation No. 6292735 is affirmed. The injury report w.as mailed one day late, beca1'se of
Mrs. Fann's injury. A civil penalty of $60.00 was_proposed by the Secretary. In light of th~ de
minimis nature of the violation, and the mitigating circumstances, I impose a penalty in the
amount of $20.00, upon consideration of the above and the factors emimerated in section 11 O(i) of
the Act.

...

Citation No. 6292736 -~s affirmed. -Mrs. Fann's task training was not recorded and
.
certified, as requir~d. However, the citation was corrected to reflect that no ipj~ w~ likely to be
caused by the violation, rather than that a lostworkdays injury was unlilcely•.. A civil penalty of
$60.00 was proposed by the Secretary. In light of the reduced gravity, and ihe_initigating factors
presented by Mrs. Fann.'s serious injury, I impose a pen~ty in the amount of $45.00, upon
consideration of the above and the factors ~umerated in s ection 11 O(i) of the A~t.
Citation No. 6292739 is affirmed as an S&S violation. A civil penalty of$133.00 was
proposed by the Secretary. I impose a penalty in the amount of $133 . 00,.upo~ consideration of
the above and the factors enumerated in section 11 O(i) of the Act.
ORDER

Citation Nos. 6292707, 6292710, 629273_3, 6292'137, 6292738 and.6292740 are.hereby
VACATED, and the petitions as to those citatjons, including the petition lodged against lames
Fann, in his individual capacity, are hereby ;DISMISSED.

28 FMSHRC 882

are

. Citation Nos. 6292735 and 6292739
hereby AFFIRMED. Citation Nos. 6292708,
6292709, 6292734 and 6292736 are hereby AFFIRMED, as modified. Respondent, Qmax, is
directed to pay civil penalties totaling $333.00 for.those violations. Payment shall be made within
45 days.

Distribution (Certified Mail):
Isabella M. Del Santo, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson·
·
Street, Suite 1110, San Francisco,,CA:94105.:-2937 .. · , .
Elaine P. F~ c/o Qmax Company, P.O. Box 877, Williams, AZ 86046

/mh

28 FMSHRC 883

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Sui~ 95QO
Washington, DC 20001

October-6, 2006
TEMPORARY REINSTATEMENT
PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalfofMARY JANE OSBON,
Complainant

.Docket No. SE 2006-319-DM
SE'MD 2006-07

v.
RE. GRILLS CONSTRUCTION CO.,
Respondents

Ragland Quarry
Mine ID 01-00027- 2XL

DISMISSAL OF.APP.LICATION
FOR TEMPORARY REINSTATEMENT
Before: Judge Feldman
This case is before me based on an Application For Temporary Reinstatement filed
on September 1, 2006, by the Secretary of Labor on behalf of Mary Jane Osbon pursuant to
section 105(c)(2) of the Federal Mine and Safety Health Act of 1977, 30 U.S.C. § 815(c)(2).
On October 4, 2006, the Secretary filed a Motion to Withdraw her application for the temporary
reinstatement of Ms. Osbon. As grounds for her Motion, the Secretary represents that:
1. On Friday, September 29, 2006, RE. Grills Constructions Company,
Inc. (''Respondent'') voluntarily agreed to temporarily reinstate Ms. Osbon to the
position she held as a haul truck operator, immediately prior to her discharge on
June 6, 2006, at the same rate of pay, the same benefits, same number of hours
worked and with the same duties assigned to her.
2. Respondent will temporarily reinstate Ms. Osbon at the Old CastleTiftonia Quarry in Tiftonia, Hamilton County, Tennessee, on October 9, 2006.
3. The Secretary' s Motion for Temporary Reinstatement is withdrawn
without prejudice to the Secretary to bring a discrimination action against the
Respondent in this matter.

28 FMSHRC 884

4. Each party agrees to bear its own attorney's fees, costs and other
expenses incurred by such party in connection with any stage of these proceedings
including, but not limited to, attorney's fees which may be available under the
Equal Access to Justice Act, as amended.

In view of the above, IT IS ORDERED that the Secretary's Motion to Withdraw
IS GRANTED. IT IS. FURTHER ORDERED that the subject temporary reinstatement
application IS DISMISSED without prejudice to refile if the above terms are not satisfied, and
without prejudice to the Secretary's subsequent filing of a related discrimination case on behalf
of Ms. Osbon.

Jerold Feldman
Administrative Law Judge
(202) 434-9967
.
Distribution:
Kristina Harrell, Esq., Office of the S.olicitor, U.S. Department of Labor, 61 Forsyth Street, SW,
Atlanta, GA 30303
Thomas M . Eden, ill, Esq., Wallace, Jordan, Ratliff & Brandt, L.L.C., P.O. Box 530910,
Birmingham, AL 35253
/mh

..

28 FMSHRC 885

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

October 18, 2006

'
. .· .

·:

·:

CIVlLPENALTYPROCEEDINGS

SECRETARY OF LABO,R,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner .

Docket No. SE 2002-111
·A.C. No. 01-01247-03501 V AD
Docket N:o. SE 2003-:69
A:C. No. .01-01247-03502

v.

Docket No. SE 2003-189
A.C. No. 01-01247-06606

SEDGMAN and DAVID GILL, employed
bySEDGMAN
Respondent.
·.

Mine No. 4 Mine

DECISION ON REMAND

On June 30, 2006, the Commission issued a decisio~ Secretary v. Sedgman, 28
FMSHRC 322, which, inter alia affirmed the initial decision in this matter, 26 FMSt.mC.873 . ·
(November, 2004), regarding the violations at issue, but vacated the decision regarding the
penalty to be assessed for the violation of 30 C.F.R. § 77.200, and remanded the case for:
reassessment of the penalty.
Subsequent to telephone conference calls, ·the parties were ordered _to file briefs relating
to the issues raised by the Commission's decision and remand, 28 FMSHRC, supra. The
Secretary filed her brief on September 1, 2006.
Thereafter, the parties filed a Joint Motion to Approve Settlement and to Dismiss the civil
penalty proceeding. The Seqetary had initially proposed a penalty of $35,000·for the violati.on of
Section 77.200, supra. The parties seek approval of a proposed settlement of $19,000. Based on
the assertions set forth in the motion, and the record in this case, including the testimony and
documentary evidence adduced at the initial hearing, I find that the settlement is appropriate, and
in compliance with the terms of the Federal Mine Safety and Health Act of 1977: Accordingly,
the settlement is approved.
·

It is Ordered that, within 30 days of this decision, Respondent shall pay a civil penalty of
$19,000 for.the violation cited in Citation No. 7676881, and that these cases be Dismissed.

Adnrinistrative Law Judge
28 FMSHRC 886

Distribution:
Leslie Paul Brody, Esq. Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street,
s.w., Room 7TIO, Atlanta, GA 30303
R. Henry Moore, Esq., Bu~hanan Ingersoll Professional Corporation, One Oxford Centre, 301
Grant Street, 20th Floor, Pittsburgh, PA
/lp

28 FMSHRC 887

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

October 23, 2006
ANKER WEST VJRGJNIA MINING CO.,
Contestant

CONTEST PROCEEDINGS
Docket No. WEVA 200.?-221-R
Order No. 709,8153; 08/16/2005
Docket No. WEVA 2005-222-R
Order No. 7098154; 08/16/2005

v.

Docket No. WEVA 2005-223-R
Order No. 7098158; 08/16/2005

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Docket No. WEVA 2005-224-R
Order No. 7098159; 08/16/2005

Respondent

Docket No. WEVA 2006-4-R
Order No. 4890534; 09/12/2005
Docket No. WEVA 2006-5-R
Order No. 4890535; 09/12/2005
Docket No. WEVA 2006-6-R
Order No. 4890536; 09/12/2005
Docket No. WEVA2006-7-R
Order No. 4890537; 09/12/2005
Docket No. WEVA 2006-8-R
Order No. 4890539; 09/12/2005
Docket No. WEVA 2006-80-R
Order No. 7098644; 12/14/2005
Sago Mine
Mine ID 46-08791

ORDER LIFfING STAY
AND
DISMISSAL ORDER

28.fMSHRC 888

Before:

Judge Feldman

These contestant proceedings were stayed pending the docketing and assignment of the
related civil penalty matter. The civil penalty case has been docketed as WEVA 2006-296 under
the respondent name of Wolf Run Mining Company (WolfRun). 1 The captioned contests have
now been superceded by WolfRun's contest of the Secretary's proposed civil penalties for the
captioned citations and orders. Accordingly, IT IS ORDERED that the captioned contest
matters ARE DISMISSED as moot.

-~~·Jerold Feldman
Administrative Law Judge
Distribution:
R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Avenue,
Suite 1340, Pittsburgh, PA 15222
Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington. VA 22209-2247

/mh

1

OnDecember13, 2005, Anker West Virginia changed its name to Wolf Run Mining
Company. Ownership and operation of the Sago Mine did not change. Anker West Virginia
merely changed its corporate name. The caption reflects Anker West Virginia as the contestant
to avoid confusion.
28 FMSHRC 889

ADMINISTRATIVE LAW JUDGE ORDERS

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

September 11, 2006
MARFORK COAL COMPANY, INC.,
Contestant

CONTEST PROCEEDINGS
Docket No. WEYA 2006-788-R
Citation No. 7257574; 06/27/2006
Docket Np. WEVA 2006-789-R
Citation No. 72S7575;06/27/2006

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
AD:MINISTRATION, (MSHA),
Respondent

Docket No. WEV A 2006-790-R
C.i tation No. 7257568;06/27/2006
Slip Ridge Cedar Grove Mine
Mine -I D 46-09048

ORDER REQUESTING CLARIFICATION
On August 11, 2006, I issued an Order requiring Marfork Coal Company, Inc., (Marfork)
to show cause why its Notice of Contest of the subject citations should not be dismissed.
28 FMSHRC 745 (Aug. 2006). The Order was issued after·the Secretary, as part of her
July 27, 2006, response to Marfork' s Notice of Contest, alleged that Marfork' s counsel was
contesting all significant and substantial 104(a) citations. Id.
The Order to Show Cause noted that Marfork's contest may be contrary to section lOS(d)
of the Federal Mine Safety and Health Act of 1977, as amended, (the Mine Act), 30 C.F.R.
§ 815(d), as well as Commission Rule 20(e)(l)(ii), 29 C.F.R. § 2700.20(e)(l)(ii). Id. at 746. The
Order also noted that Marfork' s contest may be contrary to the Commission's decision in Energy
Fuels Corporation, 1FMSHRC299, 307-08(May1979). Id. Finally, the Order asked Marfork
to address whether its contest was duplicative and a needless consumption of the Commission' s
resources. Id. at 747. The August 11 Order provided the Secretary the opportunity to reply to
Marfork's response to the Order to Show Cause.
Marfork filed its response on September 1, 2006, contending that its contest should
not be dismissed. Marfork admits it is not seeking a Commission hearing of its contest. Rather,
Marfork contends the relief it seeks is discovery while its contest is stayed. 1 Consequently, the

1

Marfork refers to the delay as a continuance without date. (Maifork resp. p.4). If the
contest is not dismissed, I am inclined to stay this matter rather than continue the contest without
date.
28 FMSHRC 890

central issue is the propriety of a request for discovery as the sole basis for a contest
The Secretary replied to Marfork's response in correspondence dated September 7, 2006.
While the Secretary opined that there was "no discemable reason" served by Marfork's contest,
and that discovery cannot properly be characterized as "relief sought" by.a contestant, the
Secretary did not provide any meaningful analysis of Commission case law, or relevant statutory
and Commission Rule provisions. (Letter from Glenn Loos, Esq., to Judge Feldman of 917/06).
Nor did the Secretary articulate whether or not Marfork's contest should be dismissed.
Accordingly, IT IS ORDERED that the Secretary, within 10 days of the date of this
Order, State in wxiting, with specificity, whether she believes the subject Notice of Contest
should be dismissed. The Secretary's response should provide the relevant statutory and rule
provisions and/or case law in support of her position.

Jerold Feldman
Administrative ·:caw Judge
Distribution: (Regular Mail and Facsimile)
Robert H. Beatty, Jr., Esq., Dinsmore & -Shohl, LLP,. 2604 Cranberry Square, Morgantown~ WV

26508

'.. .

.

Douglas N. White, Associate Regional Solicitor, Glenn M. Loos, Esq., Office of the Solicitor,
U.S. Department of Labor, 1100 Wilson Blvd., 22nc1 Floor West, Arlington, VA 22209-2247
/mh

28 FMSHRC 891

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

September 28, 2006

SPARTAN MINING COMPANY,

CONTEST PROCEEDINGS

Contestant
Docket No. WEVA 2006-629-R
Citation No. 7062296; 05/ 15/2006
Docket No. WEV A 2006-630-R
Citation No. 7062297; 05/15/2006
Docket No. WEVA 2006-63 1-R
Citation No. 7062298; 05/ 15/2006
Docket No. WEVA 2006-632-R
Citation No. 7062299; 05/15/2006
Docket No. WEVA 2006-633-R
Citation No. 7062300; 05/15/2006
Docket No. WEVA 2006-634-R
Citation No. 6601519; 05/15/2006
v.

Docket No. WEVA 2006-635-R
Citation No. 6601515; 05/ 15/2006
Docket No. WEVA 2006-636-R
Citation No. 6601518; 05/ 15/2006
Docket No. WEVA 2006-637-R
Citation No. 6601521; 05/15/2006
Docket No. WEVA 2006-638-R
Citation No. 6601523; 05/ 15/2006
Docket No. WEVA 2006-639-R
Citation No. 6601524; 05/ 15/2006
Docket No. WEVA 2006-640-R
Citation No. 6601526; 05/ 15/2006
Docket No. WEVA 2006-681-R
Citation No. 6601530; 05/ 16/2006
28 FMSHRC 892

Docket No. WEYA 2006-682-R
Citation No. 6601532; 05/16/2006

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

Docket No. WEYA 2006-683-R
Citation No. 6601533; 05/16/2006
Docket No. WEYA 2006-684-R
Citation No. 6601534; 05/16/2006
Docket No. WEYA 2006-685-R
Citation No. 6601535; 05/16/2006
Docket No. WEYA 2006-686-R
Citation No. 7062302; 05/ 16/2006
Docket No. WEYA 2006-687-R
Citation No. 7458067; 05/ 16/2006
Docket No. WEYA 2006-688-R
Citation No. 7458068; 05/16/2006
Docket No. WEYA 2006-689-R
Citation No. 7458069; 05/ 16/2006
Docket No. WEVA 2006-690-R
Citation No. 7458070; 05/16/2006
Docket No. WEYA 2006-691-R
Citation No. 7458071; 05/16/2006
Docket No. WEYA 2006-692-R
Order No. 7458072; 05/ 16/2006
Docket No. WEVA 2006-693-R
Citation No. 7458073; 05/16/2006
Docket No. WEYA 2006-694-R
Citation No. 7458074; 0511612006
Docket No. WEVA 2006-695-R
Citation No. 7458075; 05/ 16/2006

28FMS~C893

Docket No. WEYA 2006-696-R
Citation No. 7460800; 05/16/2006
Laurel Creek/Spirit Mine
Mine ID 46-08387

ORDER STAYING PROCEEDINGS
These cases are before me on Notices of Contest pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The Secretary, by counsel, has
filed a motion to stay the cases pending .assessment of civil penalties on the contested citations so
that the contest and civil penalty proceedings can be consolidated for hearing. The motion states
that the Contestant does not object to it.
Because the Commission was being inundated with notices of contest in which the
contestant immediately acquiesced in the proceedings being stayed, I issued an order to show
cause in these 28 Notices of Contest requesting the Contestant to show cause why the contests· ·
should not be dismissed. The Contestant's response was that the Act permits it. The Secretary,
while asserting ''that such 'pre-penalty' notices of contest are not an appropriate or·reasonable
use of the litigation process unless the contestant has an urgent or specific need for a hearing on ·
the underlying violation," agreed.
Certainly, section 105(d), which permits filing a notice of contest within 30 days of
receipt of a citation or an order, does not state that filing a notice of contest even though the party
does not desire a hearing is prohibited. Further, early in its existence, the Commission held that
when a party had an interest in "immediately'' challenging an allegation, filing a notice of contest
was proper. Energy Fuels Corp., 1 FMSHRC 299, 308 (May 1979). It also opined that if the
party lacked an urgent need for a hearing, the contest proceeding could be continued to be tried
with the penalty proceeding. (Id.) It went on to state, however, that if there were no need for an
immediate hearing, ''we would expect [the operator] to postpone his contest of the entire citation
until a penalty is proposed." (Id.) For almost 30 years that is the way things have proceeded,
notices of contest were the exception, not the rule.
However, neither Congress, in drafting section 105(d), nor the Commission, in Energy
Fuels, could have anticipated the current routine filing of literally hundreds of notices of contest
when the operator had no interest in an immediate hearing. Such filings clog up the system.
While they may not violate the letter of the law, they clearly violate its spirit. Unlike the
Secretary, I am not of the opinion that the Commission is without recourse to remedy this abuse
of its processes.
Nevertheless, I am aware that the attorneys for Massey Energy subsidiaries have agreed
with the Secretary to refrain from filing notices of contest on section 104(a), 30 U.S.C. § 814(a),
citations until a penalty is assessed, unless there is an immediate need for a hearing. Since that

28 FMSHRC 894

reaches the practical result sought by the order to show cause, I see no need to dismiss these
cases.
Accordingly, the motion of the Secretary is GRANTED and further proceedings in the
above captioned cases are STAYED pending the filing of the corresponding civil penalty
proceedings in these matters. Counsel for the Secretary is directed to inform the judge, in
writing, of the status of the civil penalty cases on Decemb er 29, 2006, and on the last working
day of each quarter there~fter until all of the cases have been docketed.

1;i!~

Administrative Law Judge
(202) 434-9973

Distribution:
Robert H. Beatty, Jr., Esq. Dinsmore & Shobl, L~ 2604 Cranbeny Square, Morgantown~ WV
26508
Peter B. Silvain, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nc1
Floor W~st, Arlington, VA 22209-2247
/sr

28 FMSHRC 895

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

September 29, 2006
HIGHLAND MJNING COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. WEVA2006-712-R
Citation No. 7244885; 05/25/2006

v.

Docket No. WEVA 2006-713-R
Citation No. 7244889; 05/25/2006
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent ·

Highland Coal Handling
Mine ID: 46..:06558

ORDER STAYING PROCEEDINGS
These cases are before me on Notices of Contest pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U .S.C. § 815(d). The Secretary, by counsel, has
filed a motion to stay the cases pending assessment of civil penalties on the contested citations so
that the contest and civil penalty proceedirtgs can be consolidated for hearing. The motion states
that the Contestant does not object to it.
Because the Commission was being inundated with notices of contest in which the
contestant immediately acquiesced in the proceedings being stayed, I issued an order to show
cause in these Notices of Contest requesting the Contestant to show cause why the contests
should not be dismissed. The Contestant's response was that the Act permits it. The·Secretary,
while asserting ''that such 'pre-penalty' notices of contest are not an appropriate or reasonable
use of the litigation process unless the contestant has an urgent or specific need for a hearing on
the underlying violation," agreed.
Certainly, section 105(d), which permits filing a notice of contest within 30 days of
receipt of a citation or an order, does not state that filing a notice of contest even though the party
does not desire a hearing is prohibited. Further, early in its existence, the Commission held that
when a party had an interest in "immediately'' challenging an allegation, filing a notice of contest
was proper. Energy Fuels Corp., 1FMSHRC 299, 308(May1979). It also opined that if the
party lacked an urger.it need for a hearing, the contest proceeding could be continued to be tried
with the penalty proceeding. (Id.) It went on to state, however, that if there were no need for an
immediate hearing, "we would expect [the operator] to postpone his contest of the entire citation
until a penalty is proposed." (Id.) For almost 30 years that is the way things have proceeded,
notices of contest were the exception, not the rule.

28 FMSHRC 896 ·

However, neither Congress, ix1- drafting section 105(d), nor the Co~ssion, in Energy
F.ue/s, could have anticipated the current routine filing of literally hundreds of notices of contest
when the operator had no interest in an immediate hearing. Such filings clog up the system.
While they may not violate the letter of the law, they clearly violate its spirit. Unlike the
Secretary, I am not of the opinion that the Commission is without recourse to remedy this abuse
of its processes.
Nevertheless, I am aware that the attorneys for Massey Energy subsidiaries have agreed
with the Secretary to refrain from filing notices of contest oii section 104(a), 30 U.S.C. § 814(a),
citations until a penalty is assessed, unless there is an immediate need for a hearing. Since that
reaches the practical result sought by the order to show cause, I see no need to dismiss these
cases.
Accordingly, the motion of th~ Secretary is GRANTED and further proceedings in the
above captioned cases are STAYED pending the filing of the corresponding civil penalty
proceedings in these matters. Counsel for the Secretary is directed to inform the judge, in
writing, of the status of the civil penalty cases on December 29, 2006, and on the last working
day of each quarter thereafter until all of the cases have been docketed.

~~
~
T. ToddHodg
· Adm.inistrative:.Law Judge
(202) 434-9973 :
Distribution:
Ramonda C. Lyons, Esq., Huntington Squar~. 900 Lee Street, Suite 600, P.O. Box 11887,
Charleston, WV 24339
Peter B. Silvain, Jr., Esq., Office of the Solicitor, U.S. Department ofLabor,.1100 Wilson Blvd.,
22nc1 Floor, Arlington, VA 22209

28.FMSHRC 897

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

September 29, 2006

ARACOMA COAL COMPANY, JNC.,
Contestant

CONTESTPROCEEDJNGS
Docket No. WEVA 2006-824-R
Citation No. 7253529; 07/13/2006

v.

Docket No. WEVA 2006-825-R
Order No. 7253530; 07114/2006

SECRETARY OF LABOR,
MJNE SAFETY AND HEALTII
ADMINISTRATION, (MSHA),
Respondent

Aracoma Ahna Mine #1
Mine ID 46-08801

ORDER TO RESPOND TO.
ORDER TO SHOW CAUSE
.

.

,•

To date, Aracoma has filed more than 350 Notices of Contest under sec~on 105(d) of the
Federal Mine Safety and Health Act of 1977, as amended, (the Mine Act), 30 C.F.R. § 815(d),
that it has contemporaneously agreed to stay pending its contest of the Secretary's proposed civil
penalties. On August 25, 2006, Aracoma was ordered to show cause why its contest of the
captioned citations should not be dismissed as a result of its apparent contravention of
Commission Rule 20(e)(l )(ii), 29 C.F.R. § 2700.20(e)(l)(ii) because it fails to adequately specify
the relief requested, and because it is a duplicative and needless consumption of the
Commission's resources. 29 FMSHRC 763. The August 25, 2006, Order to Show Cause issued
to Aracoma is incorporated by reference.
During a subsequent telephone conference, Aracoma was advised to hold its response to
the August 25 Order in abeyance pending the disposition of a similar Order to Show Cause
in Marfork Coal Company, Inc. (Marfork), Docket Nos. WEVA 2006- 788-R through
WEVA 2006-790-R. 29 FMSHRC 745 (Aug. 2006). Marfork' s 105(d) contest was
dismissed on September 27, 2006. Order ofDismissal, 29 FMSHRC _ (Sept. 2006).1

1

A copy of the recent Marfork Order ofDismissal has been provided for the Aracoma's
reference.
28 FMSHRC 898

The Maifork matter now· having been resoJved, IT IS ORDERED that Aracoma
SHOW CAUSE, within fifteen (15) days of this·Order, why its contest of the captioned cases
should not be dismissed. Aracoma's response should include a statement of the facts, if any, that
distinguish its contest from the underlying facts in Maifork. Aracoma' s response should
specifically address the applicability of the statutory and Commission Rule provisions, and the
case law cited in Maifork that support its contests. In addition, using traditional methods of
statutory construction, .A!acoma should state why it believes its contest satisfies the provisions of
section 105(d).

Administrative Law Judge·
Distribution: (Certified Mail)
David J. Hardy, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East,
P.O. Box 273, Charleston, WV 25321
Francine A. Serafin, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209-2247
·

..

/mh

28 FMSHRC 899

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

· October 11, 2006

RAW SALES & PROCESSING CO.,
Contestant

CONTEST PROCEEDING
Docket No. WEVA 2006-716-R
Citation No. 7248006; 05/18/2006

v.

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

Preparation Plant
Mine ID: 46-02515 GTQ
STAY ORDER

The Secretary has filed a motion to stay the above contest matter pending the docketing
and assignment of the related civil penalty case. The respondent does not oppose the
Secretary's motion. Accordingly, this proceeding IS STAYED. 1 . Discovery is not authorized
during the pendency of the stay. IT IS ORDERED that the parties initiate a conference call with
the undersigned within 21 days of the docketing and assignment of the pertinent civil penalty
case to lift this stay and to schedule these matters for a consolidated hearing.

· Jerold Feldman
Administrative Law Judge
(202) 434-9967

1

OnSeptember27, 2006, contestant's counsel was advised that a contest prior to the
Secretary's civil penalty proposal that lacked a request for an early bearing was defective.
Maifork Coal Company, Inc., Or.der of Dismissal, 28 FMSHRC _ (Sept. 2006). Contests filed
after September 27, 2006, that do not reflect a request for an early hearing will be dismissed.
28 FMSHRC-900

Distribution:
Ramonda C. Lyons, Esq., Dinsmore & Shohl, LLP, P.O. Box 11887, 900 Lee Street, Suite 600,
Charleston, WV 25339
I . Matthew McCracken, Esq., Office of the Solicitor, U.S. Department of Labor, 11 oo·Wilson
Blvd., 22nd Floor West, Arlington, VA 22209-2247
.

/mh

28 FMSHRC 901

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

October 11, 2006
STIRRAT COAL COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. WEVA 2006-737-R
Citation No. 7248007; 05/18/2006

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

Preparation Plant
Mine ID: 46-02515

STAY ORDER
The Secretary has filed a motion to stay the above contest matter pending the docketing
and assignment of the related civil penalty case.. The respondent does not oppose the
Secretary's motion. Accordingly, this proceeding IS STAYED. 1 Discovery.is not authorized
during the pendency of the stay. IT IS ORDERED that the parties initiate a conference call with
the undersigned within 21 days of the docketing and assignment of the pertinent civil penalty
case to lift this stay and to schedule these matters for a consolidated hearing.

Jerold Feldman
Administrative Law Judge
(202) 434-9967

1

On September 27, 2006, contestant's counsel was advised that a contest prior to the
Secretary's civil penalty proposal that lacked a request for an early hearing was defective.
Maifork Coal Company, Inc., Order ofDismissal, 28 FMSHRC _ (Sept. 2006). Contests filed
after September 27, 2006, that do not reflect a request for an early hearing will be dismissed.

28' FMSHRC 902

Distribution:
Ramonda C. Lyons, Esq., Dinsmore & Shohl, LLP, P.O. Box 11887, 900 Lee Street, Suite 600,
Charleston, WV 25339

J. Matthew McCracken, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Blvd., 22"d Floor West, Arlington, VA 22209-2247
/mh

:

• v

~

• ~ . ••

28 FMSHRC 903

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

·October 24, 2006
UNITED MINE WORKERS OF
AMERICA, LOCAL 1248,
Complainant

COMPENSATION PROCEEDING
Docket No. PENN 2002-23-C

v.

MAPLE CREEK :MINING, INC.,
Respondent

Maple Creek Mine
Mine ID 36-00970

ORDER DENYING RESPONDENT'S
MOTION
FOR RECONSIDERATION
•
• c
Tiris case is before me on a complaint filed pursuant to.section 111 of the Mine Safety
and Health Act of 1977 ("Act"), 30 U.S.C. § 821. The United Mine Workers of America, Local
1248 ("UMWA''), seeks compensation for miners idled by an order issued by the Secretary of
Labor's Mine Safecy and Health Administration ("MSHA''.) requiring the withdraw~! of miners
from the Maple ~reek Mine. J3y Order dated May 4, 2006, Respondent's motion for sumn;iary
decision was denied, on grounds that the section 104(b) withdrawal order upon which the
compensation claim is predicated became final for purposes of section 111. Respondent has
moved for reconsideration of that ruling, and the UMWA has opposed the motion. The Secretary
of Labor was invited to appear as amicus curiae, and submitted a brief addressing three issues.
As explained more fully below, Respondent's motion to reconsider is denied.
Pertinent Facts
A more detailed recital of facts is set forth in the May 6, 2006, order. On July 30, ~001,
an MSHA inspector found that the bleeder system was not effectively ventilating a sec~on of
Maple Creek's mine. He issued Citation No. 7082157, alleging a violation of30 C.F.R.
§ 75-334(b)(l), and directed that the violation be abated the following day. He returned to the
mine on July 31, 2001, found that virtually no steps had been taken to abate the violation, and
issued Order No. 7060223 pursuant to section 104(b) of the Act, which required the withdrawal
of miners from the affected area. Complainant seeks compensation for miners idled by that
order.
Maple Creek did not contest Order No. 7060223 pursuant to section 105(d) of the Act.
On February 25, 2002, MSHA proposed civil penalty assessments for various citations and
orders issued t'? Maple Creek, including Citation.No.. 7082157, for which a penalty of$9,000.00
was proposed. Maple Creek contested the proposed penalties, and the Secretary filed with the
Commission a Petition for Assessment of Civil Penalties against Maple Creek,.Commission
28 FMSHRC 904

Docket No. PENN 2002-116. No civil penalty was assessed"for Order No. 7060223, and it was
not specifically identified in the assessment, the petition·or Maple Creek's answer to the petition.
The Secretary subsequently filed a Motion for Decision and Order Approving Partial Settlement,
which sought Commission approval of settlement that included a proposed reduction in the
civil penalty assessed with respect to Citation No. 7082157. The motion described the citation
and added the following disclli>sion:
·
·

a

A § 104(b) Order Number 7060223 was issued on July 31, 2003 [sic], for
the Respondent's failure to correct the condition cited in Citation Number
7082157. A penalty of $9,000.00 was specially assessed based on the high
negligence rating and the .§ 104(b) Order.
After further discussions with the operator, the Secretary recommends that
the citation should remain ~.lassified as high neglige,nce but Order Number
7060223 should be vacated. ~ietlie negligence is still high, the parties submit
that it is somewhat less than initially determined. Respondenf was unsuccessfully
attempting to correct the condition listed in Citation No. 7082157 at the time the
l04(b) QrderNo. 7060223 was issued. Therefor~; areduction in the assessed
penalty to $2,000.00 is warranted. .
.
On August 11, 2003, a Decision Approving Partial Settlement was entered, granting the
Secretarjfs motion and approving the proposed reduction of the.civil penalty assessed for ·
Citation No. 7082157.
Discussion
Based upon the representations in the Secretary's motion in PENN 2002-116, and the fact
that the motion was granted, Respondent argued that Order No. 7060223 was vacated, i.e., never
became final, and could not form the basis for an award of up to one week's compensation under
section 111 . Respondent's arguments were rejected based upon findings that the 104(b) order
was not at issue in the civil penalty proceeding and, since Respondent had not contested the order
within 30 days of its issuance pursuant to section 105(d), it had beeome final-for purposes of
section 111. Maple Creek now -seeks reconsideration of that ruling, reasserting its argument that
the ALJ's "decision approving the settlement was effective in vacating (ilider No. 7060223]."

I hereby reaffirm the earlier holding that the 104(b) withdrawal order was not at issue in
the civil penalty proceeding, i.e., the Administrative Law Judge did not have jurisdiction to ·
entertain a challenge or grant relief with respect to that order. Section 104(b) orders, like the one
at issue here, typically do not allege a separate violation. Consequently, no civil penalty can be
assessed for the order under the mandatory language of section 110(a) of the Act It appears that
a penalty could be assessed for a section 104(b) order under section 11 O(b), which provides that a
civil penalty of up to ·$ 5,000.00 may be assessed for·each day that a violation continues beyond ·
the specified abatement d,ate. However, the ·Secretary ha5 rarely soughtto impose that
.

:

28 FM.S HRC 905

. .

.

considerably more severe sanction.1 Of course, a penalty must be assessed for the violation
charged in the underlying citation. The assessment typically describes the ''Type of Action" of
the citation as "l 04A - 104B," as was done with respect to the citation relevant to this case.
Maple Creek argiles that the description on the assessment form "must be presumed to
include·the 104(b) order within the civil penalty proceedings., " or eise it would have had no
opportunity ''to a civil penalty proceeding on the 104(b) order." Res. Mot. at 2. The Secretary
takes the position that, since there are no specific' requirements as to the form or content of a
notice of contest, "a5 long·as the operator has indicated, and MSHA understands, which citations
and orders [the operator] wishes to contest . . ., the contest(s) will be accepted and forwarded to
the Commissipn. 1n this case, the operator returned a proposed ·a ssessment card which contained
the notation ' 104A ....:. 1Q4B' in the 'Type of Action' column. MSHA pro-c~eded with the
understanding that the operator had contested both the Order issued under section 104(b) and the
underlying 104(a) citation." Sec' y. Br. at 3.
The Commission's jurisdiction to entertam a challenge to or grant relief from a section
I 04(b) withdrawal order must be·determined by the authorify bestowed upon it in the Act, not ·by
"presumptions" or by "understandings" between tnine operators and MSHA The Act provides
two potential opportunities for an·operator to contest before the Commission an order issued
under section 104. Section 105(d) provides an operator a right to contest an order issued under
section I 04 within 30 days of receipt of the order. Maple Creek did not exercise its right to
contest Order No. 7060223 within the 30-day period.
Where a proposed civil penalty is assessed tinder section l lO(a) for a cited ~olatfon,
section 105{a) provides that an operator has a right to contest the alleged ·violation or. the .
proposed assessment of penalty within 30 days of receipt of notice of the proposed assessment
However, no opportunity to contest the 104(b) order was provided under section 105(a) because
there was no violation alleged in the 104(b) order, and there was no proposed assessment ofa
penalty for it.2 Maple Creek was not entitled to have a penalty assessed for the 104(b) order, or
to a second opportunity to contest it.

1

See Thunder Basin Coal Co., 19 FMSHRC 1495 (Sept. 1997), for an example of
assessment of penalties under section 11 O(b) of the Act.
2

Because no penalty was assessed for the 104(b) order, the notation "l 04A - 104B" on
the assessment form was nothing more than a shorthand reference to the operator's 'lack of good
faith in attempting to achieve rapid compliance after notification of a violation, one of the factors
that the Commission must consider in fixing the amount of a civil penalty. 30 U.S.C. § 820(i).
The operator's good faith is only one of several factors that might be addressed in determining
the reasonableness of an inspector, s decision to is8ue a 104(b) ·o rder. See Youghiogheny and
Ohio Coal Co., 8 FMSHRC 330, 339 (Mar. 1986) (citing Consolidation Coal Co., BARB 76-143
(1976)).
.
28 FMSHRC 906

Similarly; the Secretary's "jurisdiction by agreement of the parties" ~gmnent must be
rejected because it is inconsistent with the statute. Moreoyer, it appears that the ·secretary has
. .
.
taken a contrary position in cases before the Commission.

In.Consolidation Coal Co.,. 20 FMSHRC 988 (Sept. 1998), an operator soug4t to
challenge a section 104(b) order. a peµalty, proceeding on the un4erlying citation.. The AU
held that he lacked jurisdiction:~wer the section 104(b) ox:der .b ecause it was not attached to the
Secretary's petition for a.Ssessment ofa ciVil penalty'. It is not clear.how.tl;le jurisdiction3.I issue
was raised, or what position the Secretary took with respect to #. ·However, when the operator
filed a notice of contest of the order, the Secretary moved to dismiss, claiming it.had not been
timely filed. The Judge denied the motion, and eventually vacated the or4er. On review, the
Commission affirmed the ALJ's decision, and dld 11;ot comi;nent on the earlier jt¢sdictional .
ruling or the AIJ's decision to accept tlie late-filed notice of contest.
·
. . ..
More recently, the Secretary argued that section 104(b) orders that are not immediately
contested pursuant to section 105(d) ar~ not.subject to challenge in a civil penalty.proceeding
under .section 105(a) for the underlyillg ·citation becall$e they do.not contain sp.e cia(findmgs.
Nelson Brothers Quarries, 24 FMSHRC 980, 982 (Nov. 2002) (ALl)."3 . Maple· C~eek has cited
several AlJ d,ecisions approving settlenients of civil penalty actions, in which reiateci seetion
104(b) orders were also addressed. However, it is unclear whf?ther the subj ~ci ·o rders had been
properly contested in tlio$e cases. In any ev.ent, tlie jurisdictional issue was not raised or
.
discussed, and AU decisions are not.binding:
·
·

in

As noted above, Commission ALJ's haye reached different conclusions on .the.issue of
whetlier a 104(b) order ~an be challenged in a civil penalty proceeding on.tlie underlying citation.
Jn Mid-Continent Resources, Inc., 11 FMSHRC 505 (April 1989), the operat<?r ruid _also
·
challenged a 104(b) order in a penalty proceeding on the .underlyi:IJ.g.citation. . In affirming the .
AIJ's decision vacating the .order, the Commission identified the jurisdictional issue presented
by the operator's failure to .contest the order pursuant to section 105(d), but,declined to address
the issue because it was not argued to the judge or raised on review. Id. n. 5. at.508 . .
Because tlie 104(b) order was not contested pursuant to section 105(d) and could not be
contested pursuant to section 105(a) because there was no civil penalty assessed, the order-was
not at issue in the civil penalty proceeding and the ALJ in that case did not have jurisdiction to
entertain a challenge to it or grant relief from it.

As the Secretary points out in her submissioJ?., she has the sole <Uscretjon to d~ide
whether to prosecut~ . or vacate a citation or order, at least one that has not becoiµe a ~al order of
the Conµnjssion, and that discretion is unrevi.ewable by either the Commission or it~ ;.t\.l.J.s.

.. . .

·. :·

· The Judge in that case helQ. ~t tlie section 104(b) orders could be challeng~.u; th.e
civil penalty proceeding involving the underIYing citations, :finding tliat they .were related aD:<l that
neitlier the Act nor tlie Commission's Procedural Rules precluded tlie challenge.
3

28 FMSHRC 907

RBK Construction, Inc. , 15 FMSHRC 2099 (Oct. [check] 1993); Eastern Associated Coal Corp.,
19 FMSHRC 659, 669 ( 1997). However, aside from the fact that there is no evidence in the
record establishing thatthe Secretary took steps to vacate the order, e.g., by issuing a ·
continuation sheet stating that the order was vacated, it is not clear that the Secretary would have
had the authority to vacate the uncontested order.4

In any event, a bela4Xf agi;-eement by the Secretary to vacate a 104(b), which had little or
no continuing legal significance and·was not at issue ·in ~ contest proceeding before the
Commission, would not render the order'invalid for puq)oses of section 111. Section 111 is
remedial in nature and was not intended by Congress to be interpreted and applied narrowly.
Local Union 1889, District 17 UMWA v. Westmoreland Coal Co., 8 FMSHRC 1317, 1323
(Sept. 1986). The compensation claimed here is available only ..after all interested parties are
given an opportunity for a public hearing, which shall be expedited in such cases, and after [the
subject] ()rder is final." 30 U.S.C. § 821. For a 104(b) withdrawal order for which no civil
penalty was assessed, the proceeding in which the opportu.Dity for a public hearing would be
presented would be a section 105(d) contest proceeding. There was no such proceeding for
Order No. 7060223, because it was not contested·within 30 days of its receipt.:: The onus of that
failure must fall on Maple Creek, the only party that had an interest in challenging tlie order.5
I find that resolution of the limited issue presented by Maple Creek's renewed motion is
governed by Local Union 2333, District 29, UMWA v. Ranger Fuel-Corp., 12 FMSHRC 363,
370-71(March1990) and Local Union 1810, District 6, UMWA v. Nacco Mining Co.,
11FMSHRC1231, 1239 (July 1989). Because Maple Creek did not contest the issuance of
Order No. 7060223 within 30 days of receipt, it became final for purposes of section 111. The
validity of the order was not at issue in PENN 2002-116, and it was not affected by the
settlement of the related citation.

4

The question of the Secretary' s authority was suggested as an issue upon which the
. Secretary might wish to comment in the June 13, 2006, Invitation to the Secretary of Labor to
Appear as Amicus Curiae. The Secretary' s brief did not specifically address that issue.
5

While miners or their representatives may also contest the issuance of a 104(b) order
under section 105(d), it would be an unreasonable interpretation of the Act's compensation
provisions to require them to challenge the very order they rely upon for their claim.
28 FMSHRC 908

ORDER
Upon consideration of the above, Respondent's Motion for Reconsideration of the Denial
of its Motion for Summary Decision is hereby DENIED.

Distribution:
Judith Rivlin, Esq., United Mine Workers of Ani~rica, 8315 Lee High'"'.ay, F~ VA 22031
Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumni Parle
Plaza, Suite 310, Lexington, KY 40517
Timothy S. Williams, Esq., Office of the Solicitor, United States Department of Labor, 1100
Wilson Blvd., 22nd Floor, Arlington, VA 22209-2296
·
·

/mh

·.

28 FMSHRC 909

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

October 24, 2006
CONTEST PROCEEDINGS

ARACOMA COAL COMPANY, INC., .
Contestant
.

.

Docket No. WEVA 2006-824-R
Citation No. 7253529; 07/13/2006
Docket No. WEVA 2006-825-R
Order No. 7253530; 07/ H /2006

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

Aracoma Alma Mine #1
Mine ID 46-08801

ORDER DENYING REQUEST TO HOLD RESPONSE
TO ORDER TO SHOW CAUSE IN ABEYANCE
To date, Aracoma has filed more than 350-Notices of Contest under section 105(d) of the
Federal Mine Safety and Health Act of 1977, as amended, (the Mine Act), 30 C.F.R. § 815(d), :
that it has contemporaneously agreed to stay pending its contest of the Secretary's proposed ·civil
penalties. On August 25, 2006, Aracoma was ordered to show cause why its contest of the
captioned citations should not be dismissed as a result of its apparent contravention of
Commission Rule 20(e)(l)(ii), 29 C.F.R. § 2700.20(e)(l)(ii) because it fails to adequately specify
the relief requested, and because it is a duplicative and needless consumption of the
Commission's resources. 29 FMSHRC 763. The August 25, 2006, Order to Show Cause issued
to Aracoma is incorporated by reference.
During a subsequent telephone conference, Aracoma was advised to hold its response to
the August 25 Order in abeyance pending the disposition of a similar Order to Show Cause
in Maifork Coal Company, Inc. (Maifork), Docket Nos. WEVA 2006- 788-R through
WEVA 2006-790-R. 29 FMSHRC 745 (Aug. 2006). Marfork' s 105(d) contest was
dismissed on September 27, 2006. Order ofDismissal, 29 FMSHRC _(Sept. 2006). 1
The Maifork matter having been resolved, on September 29, 2006, Aracoma was ordered
to respond to the Order to Show Cause within fifteen (15) days. On October 11, 2006, Aracoma
requested a fourteen (14) day extension, until October 27, 2006, to respond because of the
"complex" issues raised in the Order to Show Cause.

1

Aracoma has been provided with a copy of the recent Marfork Order ofDismissal.
28 FMSHRC 910

During an October 20, 2006, telephone conference with the parties, Aracoma stated that it
was contesting virtually all citations to document its ultimate intention to contest all proposed
civil penalties in the event Aracoma seeks to reopen a civil penalty because it was paid in error.
During the course of the telephone conference, Aracoma requested that its response to the
Show Cause Order be held in abeyance pending the disposition of an anticipated appeal of the
Marfork dismissal order: Aracoma's request IS DENIED.
Once again, Aracoma is requested to analyze the circumstances that it believes distinguish
its situation from Maifork. Aracoma should also explain why one written correspondence to the
Secretary and/or to this Commission evidencing its intention to contest all civil penalties, in lieu
of the multitude of contests it has and continues to file, would not serve the same purpose it
purportedly seeks to achieve. Accordingly, IT IS ORDERED that Aracoma respond to the Show
Cause Order on or before November 8, 2006. Further requests for extensions to respond will not
be favorably entertained.
·
··

__..,,,/O'@s;e)
Jerold 'F eidman
Administrative Law Judge
Distribution: (Facsimile and Certified Mail)

.. :

David J. Hardy, Esq., Spilman, Thomas & Battle, PLLC, 300-Kanawha Blvd. East,
P.O. Box 273, Charleston, WV 25J21
Francine A. Serafin, Esq., Office of the Solicitor,' U.S. Department of Labor, 1100 Wilson Blvd.,
22nd Floor West, Arlington, VA 22209-2247
/mh

28 FMSHRC 911

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

October 26, 2006
LAUREL AGGREGATES, INC.,
Contestant

CONTEST PROCEEDINGS
Docket No. PE;NN 2006-217-RM
Citation No. 6038673; 06/07/2006
Docket No. PENN 2006-218-RM
Citation No. 6038638; 06/07/2006
Docket No. PENN2006-219-RM
Citation No. 6038639; 06/07/2006
Docket No. PENN 2006-220-RM
Citation No. 6038641; 06/07/2006
Docket No. PENN2006-221-RM
Citation No. 6038643; 05/30/2006
Docket No. PENN 2006-222-RM
Citation No. 6038644; 05/30/2006

v.
Docket No. PENN 2006-223-RM
Citation No. 6038645; 05/30/2006
Docket No. PENN 2006-224-RM
Citation No. 6038646; 05/30/2006
Docket No. PENN 2006-225-RM
Citation No. 6038647; 05/30/2006

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

Docket No. PENN 2006-226-RM
Citation No. 6038648; 05/30/2006
Docket No. PENN 2006-227-RM
Citation No. 6038649; 05/30/2006
Docket No. PENN 2006-228-RM
Citation No. 6038650; 05/30/2006

28 FMSHRC 912

Docket No. PENN 2006-229-RM
Citation No. 6038651; 05/30/2006
Docket No. PENN 2006-230-RM
Citation No. 6038652; 05/30/2006
Docket No. PENN2006-231-RM
Citation No. 6038653; 06/07/2006
Docket No. PENN 2006-232-RM
Citation No. 6038654; 05/30/2006
··

Docket No. PENN 2006-233-RM
Citation No. 6038655; 0513012006
Docket No. PENN 2006-234-RM
Citation No. 6038657; 05/30/2006
Docket No. PENN 2006-235-RM
Citation No. 6038658; 05/30/2006
Docket No. PENN 2006-236-RM
Citation No. 6038659; 05/30/2006
Docket No. PENN 2006-237-RM
Citation No. 6038660; 05/30/2006
Docket No. PENN 2006-238-RM
Citation No. 6038661; 05/30/2006
Docket No. PENN 2006-239-RM
Citation No. 6038662; 0513012006
Docket No. PENN 2006-240-RM
Citation No. 6038663; 05/30/2006
Docket No. PENN 2006-241-RM
Citation No. 6038664; 05/30/2006
Docket No. PENN 2006-242-RM
Citation No. 6038665; 05/31/2006
Docket No. PENN 2006-243-RM
Citation No. 6038666; 05/31/2006

28 FMSHRC 913 ·

Docket No. PENN 2006-244-RM
Citation No. 6038667; 05/31/2006
Docket No. PENN 2006-245-RM
Citation No. 6038668; 05/31/2006
Docket No. PENN 2006-246-RM
Citation No. 6038669; 06/01/2006
Docket No. PENN 2006-247-RM
Citation No. 6038670; 06/07/2006
Lake Lynn Quarry
Mine ID 36-08891

. ORDER TO SHOW CAUSE
These proceedings are before me based on a Notice of Contest of the subject" citations ·
filed with the Commission on June 26, 2006, pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977, as amended, (the Mine Act), 30 C.F.R. § 815(d). . In its contests,
Laurel Aggregates, Inc. (Laurel) denies each and every allegation·contained in the contested ·
citations. Laurel identifies the relief sought as a Commission review and declaration that the
contested citations are invalid and void. (Laurel Contest, ·p.18). · Such a declaration can only be
rendered after a hearing on the merits of the contested citations.
·· ·
The Secretary filed an answer to Laurel's contest on July 17, 2006, at which time the
Secretary moved to stay these matters pending the related civil penalty case. · Laurel did not
oppose the Secretary's motion.
An operator served with a citation alleging a violation·ofthe Mine Act, or alleging a
violation of a mandatory safety standard that has been abated, may immediately contest the
citation under section 105(d) of the Mine Act without waiting for notification of the proposed
penalty assessment. 30 C.F.R. § 815(d). In such cases, section -105(d) provides that ''the
Commission shall afford an opportunity for a hearing." An operator may have an interest in an
early hearing, such as in cases where continued· abatement is expensive, or where the validity of
the citation or order impacts on an operator's continued exposure to 104(d) withdrawal sanctions.
Energy Fuels Corporation, 1 FMSHRC 299, 307-08 (May 1979). Thus, the purpose of a 105(d)
contest proceeding is to adjudicate the validity of a citation without waiting for the Secretary's
proposed civil penalty.
Alternatively, if the operator does not immediately contest a citation after it is issued, the
operator may wait to contest the citation in a civil penalty proceeding pursuant to section 105(a)
of the Mine Act. 30 C.F.R. § 815{a). Waiting to contest citations until after the civil penalty is

28 FMSHRC 914

proposed facilitates settlement negotiations and limits discovery to citations that can only be
resolved through litigation.
Commission Rule 20~ 29 C.F.R. § 2700.20, implements the contest provisions of
section 105(d). Commission Rule 20(~)(1)(ii) provides that a notice of contest shall provide a
plain statement of the relief requested. The relief requested by Laurel is a Commission hearing
on the merits of the citations without waiting for the Secretary's proposed civil penalties.
By filing a contest on June 26, 2006, seeking an early adjudi~ation, only to agree
shortly thereafter to stay i~ contest pending the civil penalty case, it appears tha~ Laurel is,
in substance, waiting for a .d isposition o~ the merits after the civil penalty is proposed.
In other words, Laurel has not adequately articulated the relief it seeks in its I 05(d) notice
of contest, since it has elected to wait .for the I 05(a) civil penalty matter.
The Commission's processing of Laurel's 105(d) contests requires the duplication of
docket files with incidental copying.and.storage for b~th the .contest dockets and the ultimate
civil penalty docket. Moreover, Laurel's 105(d) Notice of Contest requires proJonna rulings on
stay motions that are lacking in substance. I am also cognizant of the Secretary's burden of
answering multitudes of 105(d) contests, only to await.d1JPlication of her answers in the
ultimate civil penalty proceedings. Simply put, a stay order postpone~ the pre-civil penaltY
hearing requested by.Laurel;. a hearing that Laurel implicitly concede~ it does not want. ·· ·

In view.of the above, Laurel IS .ORDERED TO SJJOW CAUSE, in Writing, .
within 15 days from the date of this Order, why its 1O~(d) Notice of Contest
snbject
citations should not be dismissed because of its apparent contravention of Commission
Rule 20(e)(l)(ii), and because it is a duplicative and needless consumption of the Commission's
resources. Laurel's response should include a statement of the facts, if ati.y, that distinguish its
contest from the underlying facts in Marfork Coal Company, Inc. (Marfork), Docket Nos.
WEVA 2006- 788-R through WEVA 2006-790-R. Order ofDismissal, 29 FMSHRC _
(September 27, 2006). 1 Laurel's resp9nse .should specifically address whether the statutory and
Commission Rule provisions, ,and the case law cited in Marfork support its contest. In .addition,
using traditional methods of statutory COJ'.!,Struction, Laurel should state why it believes its contest
satisfies the provisions of section 105(d).

of the

. ....

Jerold Feldman
Administrative Law Judge

I

A copy of the recent Marfork Order ofDismis~al has been provided to the parties.
28 FMSHRC 915

Distribution: (Certified Mail)
David J. Hardy, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East,
P.O. Box 273, Charleston, WV 25321
John M. Strawn, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630 East,
The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106-3305

/mh

28 FMSHRC 916

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

October 31, 2006
AUSTIN POWDER COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. SE 2006-328-RM
Citation No.·7784642; 09/07/2006

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

Rock Hill
Mine ID 38-00026 E24

ORDER
TO CONFER ON HEARING DATE
.

This proceeding is before me based on a Notice of Contest of Citation No. 7784642,
designated as non-significant and substantial, :filed with the Commission on September 27, 2006,
pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, as amended,
(Mine Act), 30 C.F.R. § 815(d). In its contest, Austin Powder Company (Austin)"... requests
that a hearing on the merits [for the purpose of vacating the citation] be held at a date, place, and
time to be mutually agreed upon by the parties." (Austin Contest, p .2).
Accordingly, IT IS ORDERED that the parties confer for the purpose of agreeing on a
suitable hearing da~e within the next six weeks, as well as a suitable hearing location. The
parties should advise me, in writin2. within fifteen (15) days of this Order of the mutually
satisfactory hearing date and location. - IT IS FURTHER ORDERED that if the parties do not
agree on a hearing date in furtherance of the prosecution of Austin's contest, Austin should state,
in writini. within fifteen (15) days of the date .o f this Order, why its contest should not be
dismissed. If it is the Secretary who is unwilling to agree to a timely hearing, the Secretary
should state, in writine, within fifteen (15) days, why Austin's contest should not be.granted.

Jerold Feldman
Administrative Law Judge

28 FMSHRC 917

Distribution: (Certified Mail)
Adele L. Abrams, Esq., CMSP, Law Office, 4740 Corridor Place, Suite D,
Beltsville, MD 20705
Deborah C. Wakefield, Esq., Office of the Solicitor, U.S. Department of Labor,
61 Forsyth Street, S.W., Room 7Tl0, Atlanta, GA 30303

/mh

28 FMSHRC 918
G:Xl' U.S. GOVERNM£NT PRl NTING OFFICE: 20Q6-330.902/43955