<DOC>
[DOCID: f:l95-298.wais]
ALAX FOX, employed by AMAX COAL CO.
February 8, 1996
LAKE 95-298
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
February 8, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
Petitioner :
v. :
:
:
:
ALAN FOX, : Docket No. LAKE 95-298
Employed by AMAX COAL CO., : A.C. No. 11-00877-4105 A
Respondent :
:
:
GARY W. BENNETT, : Docket No. LAKE 95-299
Employed by AMAX COAL CO., : A.C. No. 11-00877-04104 A
Respondent :
:
:
CHARLES BURGGRAF, : Docket No. LAKE 95-300
Employed by AMAX COAL CO., : A.C. No. 11-00877-04102 A
Respondent :
:
:
ELDON RAY EVANS, : Docket No. LAKE 95-338
Employed by AMAX COAL CO., : A.C. NO. 11-00877-04103 A
Respondent :
: Wabash Mine
DECISION
Appearances: Christine M. Kassak, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois, for
Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania, for Respondents.
Before: Judge Melick
These cases are before me upon the petitions for civil
penalty filed by the Secretary of Labor pursuant to Section
110(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. � 801, et seq., the "Act," charging the named
Respondents as agents of corporate mine operator, Amax Coal
Company (Amax), with knowingly authorizing, ordering or
carrying out a violation of the mandatory standard at 30
C.F.R. � 75.400, on August 3, 1993. The Secretary seeks
civil penalties of $2,600 each against Amax Shift Managers,
Bennett, Evans and Fox and a civil penalty of $3,000 against
Mine Manager Charles Burggraf.
Motion to Dismiss
In a preliminary motion, Respondents claim that these
proceedings should be dismissed because the Secretary
"unduly delayed the special investigation and the issuance
of the proposed assessment of civil penalties and that delay
has prejudiced their ability to defend themselves". The
undisputed facts related to this claim are set forth below:
1. On August 3, 1993, MSHA inspector Arthur D. Wooten
inspected the Wabash Mine and issued Order No. 4054387 to
Amax Coal Company alleging a violation of 30 C.F.R. � 75.400,
on the Main West No. 1 conveyor belt, pursuant to Section
104(d)(2) of the Federal Mine Safety and Health Act of 1977
("the Act"). The Order described the condition as follows:
Accumulation of fine coal dust and loose coal
was allowed to accumulate on the mine floor
between the bottom belt and takeup pulleys of
The Main West No. 1 conveyor belt drive. The
accumulation of combustible material measured
18 inches in depth - 4 foot wide and 10 feet in
length. The belt was running when this
condition was observed with smoke coming
from the friction areas.
AMAX did not contest the Order and paid the penalty it
was assessed.
2. Mr. Burggraf was the mine manager for the North
Portal or No. 1 of the Wabash Mine on the day when
Inspector Wooten issued the Order.
3. Messrs. Fox, Bennett and Evans were shift mine
managers at the Wabash Mine in and around the time of the
issuance of the Order.
4. On August 12, 1993, MSHA District Manager Rexford
Music recommended a preliminary special investigation be
conducted into a possible willful or knowing violation under
Section 110(c) and (d) of the Act be conducted, with respect
to Order No. 4054387. No such investigation was conducted.
[reference omitted]
5. On April 28, 1994, Acting MSHA District Manager Fred
Casteel recommended that a special investigation be
conducted under Section 110(c) and (d) of the Act, with
respect to Order No. 4054387.
6. On June 14-15, 1994, MSHA Special Investigator
Curtis Haile first visited the mine to review record books.
[reference omitted] He began to conduct interviews on July
12, 1994, but did not interview Respondents until
July 29, 1994.
7. Special Investigator Haile submitted his report on
August 3, 1994, to Lawrence M. Beeman, Chief, Technical
Compliance and Investigation Division.
8. On January 19, 1995, the MSHA Solicitor's Office
wrote Mr. Beeman indicating that it agreed with the
recommendation to assess individual civil penalties against
Respondents. [reference omitted]
9. On January 31, 1995, Mr. Beeman indicated in a
memorandum from District Manager Music that a determination
was made to propose a civil penalty against Respondents,
pursuant to Section 110(c) of the Act. He noted that 18
months had elapsed since the Order was issued and suggested
Mr. Music notify Respondents of MSHA's intention to assess
individual penalties by telephone. [reference omitted]
10. On March 14, 1995, after a Health and Safety
conference was conducted, Marvin W. Nichols, Jr., MSHA's
Administrator for Coal Mine Safety and Health, directed
Richard G. High, Jr. to assess civil penalties against the
Respondents. [reference omitted] The proposed assessment
of such penalties were [sic] issued on March 22, 1995. All
Respondents, except Mr. Evans, contested such penalties on
or about April 4, 1995. Mr. Evans contested such penalty
on June 3, 1995, because of confusion over service of the
proposed assessment.
11. On May 15, 1995, the Secretary filed the Petition
for Assessment of Civil Penalty against all Respondents
except Mr. Evans. The Petition against him was filed
on July 11, 1995.
Respondents argue that under Section 105(a) of the Act
the delay that occurred before the Secretary proposed a civil
penalty in these cases was unreasonable. In particular
Respondents cite the following part of Section 105(a):
If, after an inspection or an investigation, the Secretary
issues a citation or order under Section 104, he shall,
within a reasonable time after the termination of such
inspection or investigation, notify the operator by
certified mail of the civil penalty proposed to be
assessed under Section 110(a) for the violation cited and
that the operator has 30 days within which to notify the
Secretary that he wishes to contest the citation or proposed
assessment of penalty.
Clearly, however, by its plain language, Section 105(a) is
inapplicable to proceedings such as these initiated under
Section 110(c) of the Act. Section 105(a) is precisely
limited to penalty cases arising from citations or orders
issued to mine operators under Section 104 and it refers
specifically to notification only to the "mine operator". I
further find inapposite the cases cited by Respondents
regarding delays on the part of the Secretary in filing
petitions for assessment of civil penalty under former
Commission Rule 27(a), 29 C.F.R. � 2700.27(a) (now Rule 28,
29 C.F.R. � 2700.28). The issues in those cases arose from
the failure of the Secretary to have filed petitions for
assessment of civil penalty within 45 days of receipt of
a timely contest of a proposed penalty assessment.
There is in fact no specific statute or regulatory time
limitation for prosecuting violations under Section 110(c)
of the Act. Moreover, it is the generally established law
that unless a period of limitation is fixed by statute or
regulation or unless there exist unusual circumstances of
high prejudice, the prosecution of even criminal offenses is
not barred by lapse of time. See 21 Am Jur 2d Criminal Law
� 223. While the Respondents herein claim prejudice because
of the Secretary's delay and, indeed, they have demonstrated
some degree of prejudice, that prejudice was not to such a
high degree as to have precluded viable defenses or to
warrant dismissal.
Even assuming, arguendo, that the same factors the
Commission considers in the context of Secretarial delays in
filing penalty proposals under Section 105(a) are examined
in relation to Section 110(c) cases, i.e. the reason for the
delay and prejudice to the operator, the Respondents' motion
would nevertheless fail. This Commission has generally
accepted Secretarial delays caused by his heavy caseloads
and the lack of budgetary resources and manpower to handle
those caseloads. See Steele Branch Mining, 18 FMSHRC ___,
Docket No. WEVA 92-953, slip op. January 25, 1996; Salt Lake
County Road Dept., 3 FMSHRC 1714 (July 1981) and Medicine
Bow Coal Co., 4 FMSHRC 882 (May 1982). The Secretary has
evidentiary support for such reasons in these cases. In
addition, as noted, while Respondents have demonstrated some
degree of prejudice from the delay herein it is not of the
severity warranting dismissal.
Under the circumstances the Respondents' motion to dismiss
is denied.
The Merits
Section 110(c) of the Act subjects certain individuals to
civil penalties if the Secretary can sustain his burden of
proving that: (1) a corporate operator committed a violation
of a mandatory health or safety standard (or an order issued
under the Act); (2) the individual was an officer, director,
or agent of the corporate operator; and (3) the individual
"knowingly authorized, ordered, or carried out" the violation.
A violation by the corporate operator must be established
and such violation must be proved in the proceeding against
the individuals. Kenny Richardson, 3 FMSHRC 8, 10 (January,
1981), aff'd sub nom. Richardson v. Secretary of Labor, 689
F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983).
The Secretary also has the burden of proving that the person
charged is an agent of the corporate operator. Under
Section 3(e) of the Act "agent" is defined as "any person
charged with responsibility for the operation of all or part
of a coal or other mine, or the supervision of miners in a
coal or other mine."
Finally, the Secretary must prove that the agent "knowingly
authorized, ordered or carried out" the violation. The
appropriate legal inquiry in this regard is whether the
corporate agent "knew or had reason to know" of the
violative condition. Secretary v. Roy Glenn, 6 FMSHRC 1583,
1586 (July 1984), citing Kenny Richardson, 3 FMSHRC 8, 16
(January 1981). In Kenny Richardson, the Commission stated:
If a person in a position to protect employee safety
and health fails to act on the basis of information
that gives him knowledge or reason to know of the
existence of a violative condition, he has acted
knowingly and in a manner contrary to the remedial
nature of the statute.
3 FMSHRC at 16. In order to establish section 110(c)
liability, the Secretary must prove only that the
individuals knowingly acted, not that the individuals
knowingly violated the law. Beth Energy Mines, Inc., 14
FMSHRC 1232, 1245 (August, 1992). In Roy Glenn, 6 FMSHRC
1583 (July, 1984), the Commission held, however, that
something more than the possibility of an underlying
violation must be shown to establish "reason to know". 6
FMSHRC at 1587-8. Moreover, a "knowing" violation requires
proof of aggravated conduct and not merely ordinary
negligence. Wyoming Fuel Co., 16 FMSHRC 1618, 1630 (August,
1994)
The underlying violation in these cases as charged in Order
No. 4054387 does not appear to be in dispute. As noted, the
order was issued on August 3, 1993, at 9:25 a.m., about five
minutes after the issuing inspector arrived at the belt
entry and discovered the described condition. The order
charges as follows:
Accumulations of fine coal dust and loose coal was
allowed to accumulate on the mine floor between the bottom
belt and takeup pulleys of the Main West No.1 conveyor belt
drive. The accumulation of combustible material measured 18
inches in depth - 4 foot wide and 10 feet in length. The
belt was running when this condition was observed with smoke
comming [sic] from the friction areas.
The cited standard, 30 C.F.R. � 75.400, provides that
[c]oal dust, including float coal dust deposited on rock-
dusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on electric equipment
therein."
Neither the dimensions, the location nor the content of the
cited accumulation appear to be disputed. Moreover, it is
not disputed that the belt, in close proximity to the
accumulations, was found rubbing on the belt frame resulting
in friction heat. The issuing inspector speculated that
both the accumulations and the belt frame were so hot that
they could not be touched. There is no dispute that coal
was then being produced and transported on the belt. The
uncontradicted evidence is clearly sufficient to establish
that the violation existed as charged. However, even
assuming, arguendo, that each of the Respondents was an
"agent" of the corporate operator during relevant times, I
do not find that the Secretary has met his burden of proving
that any of them "knowingly" authorized, ordered, or carried
out the violation.
In these cases the Secretary claims that Respondents "knew
or had reason to know" of the cited violation based on an
inference from prior pre-shift examiners' reports that
conditions at the cited takeup "needed cleaning". For
several reasons I find that no such inference can properly
be drawn. First, the Secretary would necessarily have to
prove that such earlier conditions had not been cleaned.[1]
In this regard, contrary to the Secretary's position, I do
not find that the absence of on-shift report entries prior
the last pre-shift report filed at 7:00 a.m. on August 3,
1993, established that the noted conditions had not been
cleaned up. The Secretary argues that from the absence of
such entries corresponding to pre-shift entries showing the
need to clean the cited area (at least following the last
reported cleanup in the on-shift report for the day shift on
August 1, 1993) it may reasonably be inferred that those
conditions had not, in fact, been cleaned. However, in
light of the credible and undisputed evidence that it was
not then the practice at the Wabash Mine to always report in
the on shift books when such conditions were cleaned no such
inference may properly be drawn.[2] It is noted, moreover,
that corrective action following a report by a pre-shift
examiner is not required to be recorded in the on-shift
books by the Secretary's regulations. Thus, the pre-shift
reports indicating that certain areas "needed cleaning"
supports neither the inference that violative conditions
then existed nor that such conditions had not thereafter
been cleaned up.
The credible evidence shows, moreover, that it was the
accepted practice at the Wabash Mine for pre-shift examiners
to verbally notify the shift manager of any hazardous
condition if it was deemed necessary. The fact that none of
the pre-shift reports indicating that cleaning was needed
were apparently brought to the attention of the shift
managers in this manner further suggests that the areas
noted as needing cleaning were neither violative
"accumulations" within the meaning of the Old Ben decisions
nor that they needed immediate attention.
Finally, the credible record and undisputed evidence
establishes that, following the pre-shift report filed at
7:00 a.m. on August 3, 1993, and before the order at bar was
issued, outby Foreman Mike Baize, an assistant to Respondent
Evans, directed a miner to clean the specific takeup area
noted in that pre-shift report. Evans testified that Baize
was also delegated the responsibility to countersign the
pre-shift report that morning because he (Evans) was
scheduled to attend a meeting with Mine Foreman Burggraf at
the beginning of the shift. Baize, who has since become
employed "somewhere" in Arizona and was presumably,
therefore, unavailable to testify, told Evans that he had
assigned miner Mike Riley to clean the cited takeup area
before the order was issued. It was later observed that a
protective guard had been removed from the takeup,
presumably in preparation for the cleanup, but apparently
either no one completed the job or additional spillage
occurred before 9:25 that morning when the order was issued.
It is also apparent that the conditions cited by the MSHA
inspector at 9:25 a.m. on August 3 were considerably more
serious than when the same area was inspected by the pre-
shift examiner between 5:00 and 6:45 that morning (Exhibit
R-11, page 160). It was later discovered that defective
pillow bearings had caused the belt to become misaligned.
It may reasonably be inferred that such misalignment could
have rapidly caused the cited accumulation as well as the
heat and smoke generated by the belt rubbing on its frame.
It may also reasonably be inferred that these severe
conditions had not existed at the time of the pre-shift
examination, because, in accordance with mine procedures and
common sense, the examiner would no doubt have taken
immediate action and have reported such serious conditions
in the pre-shift report. Significantly, the belt had
previously been aligned (trained) only shortly before, on
the August 2 midnight shift. Consistent with this evidence
it is noted that Burggraf testified that he had no notice of
the severity of conditions found by the inspector at 9:25
a.m. on August 3, 1993.
It is also significant that pre-shift mine examiner
Robert Orr, who was familiar with the cited area on a daily
basis, stated that he was not concerned in late July and
early August 1993 about the takeup and the material he found
there. He was, in fact, apparently surprised that the order
was issued because he had not observed, in the two weeks
before this, anything suggesting that the takeup area
warranted an order.
Under all the circumstances, I do not find that any of the
Respondents "knew or had reason to know" of the violative
condition cited in Order No. 4054387.
In reaching this conclusion, I have not disregarded the
Secretary's other argument that the purported statements by
MSHA personnel to Evans and Burggraf on July 12 and July 2,
respectively, regarding cleanup problems at the mine,
established that Respondents "knew or should have known" of
the specific violation on August 3. However, the alleged
statements were not at all specific to the belt at issue and
there were 20 miles of belt at this mine nor to the specific
problem identified as causing the violation herein, i.e. the
misalignment of the belt caused by a defective bearing. In
addition, these statements were not sufficiently time
related to the incident at bar to bear any compelling weight
on the issue. Moreover, in light of the totality of
credible evidence previously discussed, I can give but
little weight to the speculation of the issuing inspector
that the cited accumulation had been present for more than a
day. Under the circumstances, the charges against the Respondents
herein under Section 110(c) of the Act must be dismissed.
ORDER
These civil penalty proceedings are hereby dismissed.
Gary Melick
Administrative Law Judge
Distribution:
Christine M. Kassak, Esq., Office of the Solicitor,
U.S. Dept. of Labor, 8th Floor, 230 S. Dearborn Street,
Chicago, IL 60604
R. Henry Moore, Esq., Buchanan Ingersoll Professional Corp.,
USX Tower, 57th Floor, 600 Grant Street, Pittsburgh, PA 15219
/jf
**FOOTNOTES**
[1]: It is also significant that the Secretary has never
proven that any of the conditions noted in those prior pre-shift
examiners' reports, to the effect that the areas "needed
cleaning" or words to that effect, were actually in themselves
violative conditions. The Commission has held that whether coal
spillage constitutes an accumulation depends on the amount and
size of the spillage. Old Ben Coal Company, 1 FMSHRC 1954
(December, 1979). The Commission has also held that a violative
"accumulation" exists where the quantity of combustible materials
is such that, in the judgement of the authorized representative
of the Secretary, it likely could cause or propagate a fire or
explosion if an ignition source is present. Old Ben Coal
Company, 2 FMSHRC 2806, 2808 (October 1980). In none of the pre-
shift examiners' reports where areas were noted as "needing
cleaning" was an evaluation made that could be reviewed to
determine whether a reasonably prudent person familiar with the
industry and purposes of the regulation would have recognized the
conditions as hazardous. See Utah Power and Light Company, 12
FMSHRC 965, 968 (May 1990). Thus the pre-shift reports
themselves cannot and did not establish that violative
accumulations had existed at any time prior to the issuance of
the order at bar.
[2]: It is noted that the practice at the Wabash Mine has
been since changed so that reports are apparently now made in the
on-shift books when such reported conditions have been cleaned.