Alan Fox, Gary W. Bennett, Charles Burggraf, and Eldon Ray Evans, employed by Amax Coal Co.

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

                          2
   

Page 3

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

                      3

Page 4

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

                           4

Page 5

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

                           5

Page 6

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.

                           6

Page 7

 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

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

Footnote 1 Continued

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.

                           7

Page 8

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 theOld
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

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.

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Page 9

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.




                           9

Page 10

                      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

                          10

Final ALJ decision, not Commission precedent. This decision became final under the 40-day rule in 30 U.S.C. § 823(d)(1) because no later Commission review appears in the official index. It binds the parties but is not binding on the Commission in other cases. The full text below is from the official FMSHRC release.

Plain-English summary

The Secretary sought individual civil penalties against four Amax Coal managers after MSHA issued an order alleging a combustible-material accumulation near a conveyor belt at the Wabash Mine. Judge Gary Melick held that the delay-based dismissal argument did not justify ending the section 110(c) proceedings. He nevertheless found that the Secretary did not prove the managers knowingly authorized, ordered, or carried out the cited condition. The judge dismissed all four individual civil-penalty proceedings.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.400
• Outcome: The individual civil-penalty proceedings were dismissed.
• Key point: Section 110(c) liability requires proof that the individual knowingly authorized, ordered, or carried out the violation.

Full text (FMSHRC public release)

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

Page 2

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.