i 

May 2016 

TABLE OF CONTENTS 

COMMISSION DECISIONS 

05-17-16 WARRIOR COAL, LLC KENT 2011-1259-R Page 913

05-17-16 UNITED MINE WORKERS OF 

AMERICA O/B/O MARK A. 

FRANKS v. EMERALD COAL 

RESOURCES, LP 

PENN 2012-250-D Page 935

COMMISSION ORDERS 

05-19-16 ACI TYGART VALLEY WEVA 2014-685 Page 939

ADMINISTRATIVE LAW JUDGE DECISIONS 

05-02-16 SEC. OF LABOR O/B/O ERIC 

GREATHOUSE v. MONONGALIA 

COUNTY COAL CO., 

CONSOLIDATION COAL 

COMPANY, MURRAY AMERICAN 

ENERGY, INC., and MURRAY 

ENERGY CORPORATION 

WEVA 2015-904-D Page 941

05-03-16 OAK GROVE RESOURCES, LLC SE 2013-301 Page 957

05-03-16 OIL DRI PRODUCTION COMPANY SE 2013-0507 M Page 990

05-03-16 SIMS CRANE SE 2015-315 Page 1008

05-03-16 ORIGINAL SIXTEEN TO ONE 

MINE, INC. 

WEST 2014-527-M Page 1019
ii

05-03-16 D. HOLCOMB & COMPANY, LLC WEST 2015-382-M Page 1074

05-11-16 PRODUCTOS DE AGREGADOS DE 

GURABO 

EAJA 2016-0003 Page 1077

05-11-16 THE OHIO VALLEY COAL 

COMPANY 

LAKE 2015-251 Page 1084

05-16-16 BLUE DIAMOND COAL COMPANY KENT 2014-0620 Page 1098

05-16-16 TRIAD UNDERGROUND MINING, 

LLC 

LAKE 2014-0610 Page 1101

05-16-16 EAGLE CREEK MINING, LLC WEVA 2013-1149 Page 1104

05-18-16 MICHAEL WILSON v. JIM 

BROWNING 

KENT 2016-0095-D Page 1161

05-25-16 MACH MINING, INC. LAKE 2014-77 Page 1168

05-31-16 KENTUCKY FUEL CORPORATION KENT 2015-575 Page 1222

ADMINISTRATIVE LAW JUDGE ORDERS 

05-02-16 SEC. OF LABOR O/B/O JEREMY 

COOTS v. YELLOW ROSE COAL 

CO., LLC 

KENT 2016-320-D Page 1247

05-09-16 WEST ALABAMA SAND & 

GRAVEL, INC. 

SE 2009-870-M Page 1250

05-10-16 SEC. OF LABOR O/B/O GEORGE M. 

SCOLES v. HARRISON COUNTY 

COAL CO. 

WEVA 2016-274-D Page 1253

05-11-16 DOMINION COAL CORPORATION VA 2015-285 Page 1256

05-16-16 SEC. OF LABOR O/B/O MICHAEL 

MURRAY v. MACH MINING, LLC 

LAKE 2016-186-D Page 1258
iii

05-24-16 SANDRA G. MCDONALD v. 

GEORGE KING, MARK TOLER, 

GUARDCO SECURITY, LLC, and 

NEW TRINITY COAL, INC., as 

successor-in-interest to FRASURE 

CREEK MINING, LLC 

WEVA 2014-387-D Page 1261

05-25-16 SEC. OF LABOR O/B/O JENNIFER 

MORREALE v. VERIS GOLD USA, 

INC., JERRITT CANYON GOLD, 

LLC, WHITEBOX MANAGEMENT, 

& ERIC SPROTT 

WEST 2014-793-DM Page 1267

05-26-16 SEC. OF LABOR O/B/O KELLY 

RAWLEY v. J.L. SHERMAN 

EXCAVATION 

WEST 2016-467-DM Page 1269
iv

Review was granted in the following cases during the month of May 2016: 

United Mine Workers of America obo Mark A. Franks, et al. v. Emerald Coal Resources, LP, 

Docket No. PENN 2012-250-D, et al. (Judge Miller, April 11, 2016) 

Oak Grove Resources, LLC v. Secretary of Labor and Secretary of Labor v. Oak Grove 

Resources, LLC, Docket No. SE 2009-261-R, et al. (Judge Moran, April 6, 2016) 

Review was denied in the following cases during the month of May 2016: 

Secretary of Labor v. Consol Pennsylvania Coal Company, LLC, Docket No. PENN 2015-41, et 

al. (Judge Lewis, March 24, 2016) 

Mark L. Lujan v. Signal Peak Energy, LLC, Docket No. WEST 2015-252-D (Judge Barbour, 

January 15, 2016) 

Secretary of Labor v. Stone Plus, Inc., Docket No. WEST 2013-263-M, et al. (Judge Gill, April 

5, 2016) 
COMMISSION DECISIONS
38 FMSHRC Page 912
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May 17, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) Docket Nos. KENT 2011-1259-R 

KENT 2011-1260-R 

v. KENT 2012-705 

WARRIOR COAL, LLC 

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners 

DECISION

BY: Jordan, Chairman; Cohen, and Nakamura, Commissioners 

These proceedings, which arise under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), involve a citation and an order issued by 

the Secretary of Labor’s Mine Safety and Health Administration (“MSHA”) to Warrior Coal, 

LLC (“Warrior”) following its failure to comply with a request for information made by MSHA 

investigators. The investigation was initiated after an inspector observed miners working in 

close contact to multiple hazardous roof and rib conditions. MSHA’s request for information 

about the position, shifts worked, and contact information for each mine employee was made 

pursuant to section 103(h) of the Mine Act.1

 

Warrior contested the citation and the order before the Commission. After considering 

motions for summary decision, a Commission Administrative Law Judge affirmed both the 

citation and the order, assessed a penalty, and ordered that Warrior provide the requested 

information. 35 FMSHRC 2968, 2976 (Sept. 2013) (ALJ). 

Warrior petitioned the Commission for review of the Judge’s order. We granted review, 

and for the reasons that follow, we affirm the order of the Judge.

1

 Section 103(h) of the Mine Act requires mine operators to “provide such information, 

as the Secretary . . . may reasonably require from time to time to enable him to perform his 

functions under this Act.” 30 U.S.C. § 813(h). 

38 FMSHRC Page 913
I. 

Factual and Procedural Background 

On May 10, 2011, an MSHA inspector visited the underground Cardinal Mine in 

Kentucky owned by Warrior. During an inspection of the mine’s No. 2 unit, he observed 

multiple hazardous roof and rib conditions in a place where miners were actively working. The 

inspector immediately issued an order to withdraw the miners pursuant to section 107(a) of the 

Mine Act.2

 In addition, the inspector issued Warrior a citation and an order pursuant to section 

104(d), 30 U.S.C. § 814(d). The citation alleged a violation of 30 C.F.R. § 75.202(a)3

 for a 

failure to protect miners from the hazards related to roof and rib falls. The order alleged that the 

hazardous conditions were not listed in the pre-shift examination book, in violation of the safety 

standard at 30 C.F.R. § 75.360(a)(1).4 

Thereafter, MSHA began a special investigation into the hazardous roof and rib 

conditions pursuant to section 110(c) of the Act, which addresses liability for corporate directors, 

officers, or agents.5 The investigators suspected that the hazards may have existed for multiple 

shifts and sought to interview Warrior’s employees. On June 21, 2011, the MSHA District 

Manager sent Warrior a letter stating: 

MSHA is conducting a preliminary investigation of a possible 

willful/knowing violation. The Federal Mine Safety and Health 

Administration (MSHA) is requesting the names, addresses, 

positions, shift worked and telephone numbers of the employees at 

the Cardinal Mine. 

S. Ex. G; W. Ex. 1.

2

 Section 107(a) states that “[i]f, upon any inspection . . . an authorized representative of 

the Secretary finds that an imminent danger exists, such representative shall . . . issue an order 

requiring the operator of such mine to cause all persons . . . to be withdrawn from . . . such area.” 

30 U.S.C. § 817(a). 

3

 Section 75.202(a) states that “[t]he roof, face and rib’s of areas where persons work or 

travel shall be supported or otherwise controlled to protect persons from hazards related to falls 

of the roof, face or ribs and coal or rock bursts.” 

4

 Section 75.360(a)(1) provides that “a certified person designated by the operator must 

make a preshift examination within 3 hours preceding the beginning of any 8-hour interval 

during which any person is schedule to work or travel underground.” 

5

 Section 110(c) states that “[w]henever a corporate operator violates a mandatory health 

or safety standard or knowingly violates or fails or refuses to comply with any order issued under 

this Act or any order incorporated in a final decision issued under this Act . . . any director, 

officer, or agent of such corporation who knowingly authorized, ordered, or carried out such 

violation, failure, or refusal shall be subject to . . . civil penalties, fines, and imprisonment . . . .” 

30 U.S.C. § 820(c). 

38 FMSHRC Page 914
In response, Warrior sent the District Manager a letter which raised concerns that the 

demand for information was “overly broad, unduly burdensome, an unwarranted invasion of 

confidential and proprietary information of Warrior, and an unwarranted invasion of the privacy 

of Warrior’s employees . . . .” S. Ex. H; W. Ex. 2. Warrior also represented that it would 

cooperate with MSHA provided that MSHA first obtained the permission of the employees 

involved. Id. 

An exchange of several letters followed; in each of the letters, Warrior stated that it 

disagreed with the scope of the request, and, in turn, the District Manager demanded that Warrior 

provide his investigators with the list. Warrior continuously represented that it would not 

provide employee contact information without first receiving prior approval from the individual 

employees involved. 

On July 14, 2011, MSHA issued Citation No. 8503376 to Warrior, alleging that Warrior 

failed to provide requested information during an investigation in violation of section 103 of the 

Act.6

 After receipt of the citation, Warrior continued to refuse to supply the contact information. 

Accordingly, MSHA issued an order to Warrior pursuant to section 104(b) of the Mine Act for 

its failure to abate the violation.7

Warrior filed notices of contest with the Commission, and the proceedings were assigned 

to an Administrative Law Judge. The Judge scheduled the case for a hearing. Thereafter, the 

parties filed cross motions for summary decision and responses pursuant to Commission 

Procedural Rule 67, 29 C.F.R § 2700.67. 

The Judge granted the Secretary’s motion for summary decision, denied Warrior’s 

motion, and ordered that Warrior provide the requested information to the Secretary. 35 

FMSHRC at 2973-76. The Judge concluded that MSHA’s specific request to Warrior was 

“reasonable and for a legitimate government purpose.” Id. at 2974. Accordingly, he affirmed 

the citation and the order and assessed a civil penalty of $555. Id. at 2976. 

On review before the Commission, Warrior asserts that section 103 of the Act does not 

grant the Secretary the authority to compel an operator to produce the contact information of its 

employees to MSHA investigators. Warrior also maintains that the Judge’s ruling conflicts with 

an MSHA policy document that states that miner participation in interviews is “voluntary.” 

6

 Section 103(a) provides that “[a]uthorized representatives of the Secretary . . . shall 

make frequent inspections and investigations in coal or other mines each year . . . .” 30 U.S.C. 

§ 813(a). Section 103(h) states that “[i]n addition to such records as are specifically required by

this Act, every operator of a coal or other mine shall . . . . provide such information, as the 

Secretary . . . may reasonably require from time to time to enable him to perform his functions 

under this Act.” 30 U.S.C. § 813(h). 

7

 Section 104(b) authorizes an inspector to issue an order to an operator if, upon any 

follow-up inspection of the mine, he determines that a violation was not abated in the time 

specified. 30 U.S.C. § 814(b). 

38 FMSHRC Page 915
Finally, Warrior contends that the Judge erred in affirming the section 104(b) order because the 

violation of section 103(h) did not affect a physical location at the mine. 

II. 

Disposition 

A. Section 103(h) of the Mine Act authorizes the Secretary to make reasonable 

requests for information from a mine operator as part of an investigation. 

As noted above, section 103(h) of the Mine Act states that “[i]n addition to such records 

as are specifically required by this Act, every operator of a coal or other mine shall . . . provide 

such information, as the Secretary . . . may reasonably require from time to time to enable him to 

perform his functions under this Act.” 30 U.S.C. § 813(h) (emphasis added). 

The Commission had occasion to consider the reasonableness of the Secretary’s request 

for records under section 103(h) in Big Ridge, Inc., 34 FMSHRC 1003 (May 2012), aff’d, 715 

F.3d 631 (7th Cir. 2013), a case which involved citations issued during an audit of accident,

injury, and illness reports. In Big Ridge we made clear that the Secretary has broad authority to

request information from mine operators. As part of the audit, the Secretary requested access to

medical reports and payroll information, and issued citations alleging violations of 30 C.F.R. §

50.41 to the mine operators who refused to provide the requested information.8

 On review, the

Commission concluded that the Secretary’s requests were within the broad scope of authority

provided by section 103(h) of the Mine Act. It stated that section 103(h) provides “clear

instructions that ‘information’ that is not specifically required to be maintained by the Act shall,

nonetheless, be provided to the Secretary to enable her to perform her functions, as long as the

request is reasonable.” Id. at 1012-13 (emphasis added and omitted).

In affirming the Commission’s decision, the Seventh Circuit emphasized that section 103 

“unambiguously requires mines to provide MSHA with records, reports and information beyond 

what mines are otherwise required to maintain.” 715 F.3d at 641. It further stated that the text of 

section 103(h) “permits MSHA to make information demands for a wide range of purposes – any 

reasonable requirement that would help MSHA fulfill the purposes of the Mine Safety Act.” Id. 

Warrior incorrectly asserts that the court’s ruling in Big Ridge was premised on its 

finding that the records at issue there were “relevant and necessary” for MSHA to verify whether 

operators complied with Part 50 reporting requirements. W. Br. at 5. Although the posture of 

8

 30 C.F.R. § 50.41 states that “[u]pon request by MSHA, an operator shall allow MSHA 

to inspect and copy information related to an accident, injury or illnesses which MSHA considers 

relevant and necessary to verify a report of investigation required by § 50.11 of this part or 

relevant and necessary to a determination of compliance with the reporting requirements of this 

part.” 

38 FMSHRC Page 916
the case in Big Ridge concerned MSHA’s records request pursuant to Part 50, the court did not 

restrict its holding to the “relevant and necessary” language of that standard. It emphasized that: 

[The text of section 103(h)] permits MSHA to make information 

demands for a wide range of purposes – any reasonable 

requirement that would help MSHA fulfill the purposes of the 

Mine Safety Act. 

715 F.3d at 641. The court then stated that “[s]ection 50.41 and the document demands here are 

well within those bounds.” Id. at 642. It held that MSHA may reasonably require operators to 

turn over records, even records they are not required to maintain, when that information would 

enable MSHA to perform any of its functions under the Act. Id. at 641. In other words, 

MSHA’s statutory authority is not limited to “relevant and necessary” information. 9

B. The Secretary’s request was reasonable. 

In determining the reasonableness of the Secretary’s document request, we will consider, 

as the Big Ridge court did, whether the request is “sufficiently limited in scope, relevant in 

purpose, and specific in directive so that compliance will not be unreasonably burdensome.” 715 

F.3d at 646 (quotation omitted); see also id. at 642, 646-48.

Applying that framework here, we conclude that the request was clearly reasonable. 

First, the request was relevant to MSHA’s purpose, which was to investigate if any agent of the 

operator “knowingly authorized, ordered, or carried out” a violation of a mandatory safety 

standard. 30 U.S.C. § 820(c). The investigation concerned serious failings with regard to roof 

and rib control requirements. MSHA suspected that the roof and rib hazards had existed for 

multiple shifts. Failures in these areas have a potential for the most serious safety consequences, 

and the employees of the operator are the only potential witnesses who may have relevant 

information. 

While the scope of the request was broad, we conclude that the broad scope was justified 

by the circumstances of the investigation. In connection with an investigation into a potential 

systemic compliance failure, MSHA obviously must have access to a broad number of potential 

employee witnesses, and must have the ability to follow the investigation where it leads without 

unnecessary encumbrance. By having the names of all employees, MSHA can pursue the 

investigation without the need to have further conversations with the operator, thereby 

maintaining the important aspect of confidentiality during the progress of the investigation. 

MSHA could have attempted to frame the request more narrowly by specifying types of job 

duties at the mine. However, such an effort might have inadvertently omitted the identities of 

persons not directly working on the section who nonetheless would have relevant information. 

The Secretary correctly observes that employees might have information by dint of their duties in 

9

 Even if it could be said that MSHA must establish that the information it seeks from 

Warrior is “necessary” for its investigation, MSHA has met this burden in this case. As noted, 

infra, miners other than those who worked in the immediate area of the violations may have 

relevant information, and MSHA must be able to follow the investigation where it leads. 

38 FMSHRC Page 917
office administration or relationships with other employees rather than by virtue of their 

particular duties at the operation. 

We also conclude that the request was sufficiently limited in both time and manner. 

MSHA requested only the names of the employees who were employed at the mine at the time of 

the request. Furthermore, the manner is limited to obtaining a list of employees, with their shifts 

and contact information. It does not include searching through Warrior’s offices for additional 

documents. 

 In the Big Ridge decision, the Seventh Circuit recognized that while the Mine Act does 

not empower MSHA to serve administrative subpoenas during an investigation, the power to 

request information pursuant to section 103(h) “amounts to an administrative subpoena in 

substance.” 715 F.3d at 646.10 Our determination here that the Secretary’s request is reasonable 

is fully consistent with the broad authority the federal courts have accorded agencies’ 

enforcement of administrative subpoenas. 

For example, the Supreme Court has held that an administrative subpoena issued by the 

Secretary of Labor pursuant to the Walsh-Healey Act should be enforced if the “evidence sought 

by the subpoena was not plainly incompetent or irrelevant to any lawful purpose of the Secretary 

in the discharge of her duties under the Act.” Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 

509 (1943); see also United States v. Whispering Oaks Residential Care Facility, LLC, 673 F.3d 

813, 818 (8th Cir. 2012) (“a subpoena ‘should be enforced when the evidence sought by the 

subpoena is not plainly incompetent or irrelevant to any lawful purpose of the agency in the 

discharge of its duties.’”) (citation omitted). 

We also find the opinion of the Fourth Circuit in EEOC v. Randstad, 685 F.3d 433 

(4th Cir. 2012) instructive. In that case, the EEOC filed an application to enforce an administrative 

subpoena against an employment agency. The subpoena requested employment information from 13

offices in Maryland over a five-year period. The EEOC was investigating allegations of disability 

discrimination based on an alleged literacy policy of the employer. The Fourth Circuit rejected the 

employer's claim that the geographic and temporal scope of the subpoena went too far. Although the 

10 Our dissenting colleague is deeply critical of the Seventh Circuit’s analogizing of 

MSHA’s authority to request information pursuant to section 103(h) to the issuance of 

administrative subpoenas, and suggests that the court may have been unaware of MSHSA’s lack 

of general subpoena power. Slip op. at 15-16 n.1. It is certainly true that the Mine Act does not 

provide MSHA with the express power to issue subpoenas except in connection with summoning 

witnesses to appear and documents to be produced for investigatory public hearings. 30 U.S.C § 

813(b). However, as discussed supra, the Mine Act, in section 103(h), clearly requires “every 

operator of a coal or other mine [to] establish and maintain such records, make such reports, and 

provide such information, as the Secretary . . . may reasonably require from time to time . . . .” 

30 U.S.C. § 813(h) (emphasis added). Hence, although Congress did not give MSHA the power 

to subpoena individuals to testify except in connection with investigatory public hearings, it did 

give MSHA the power to reasonably require the production of records and other information 

from operators. This power is properly analogized to the power to issue administrative 

subpoenas for such records and information. 

38 FMSHRC Page 918
employer argued that the subpoena should have been limited to the position assignments made only by 

the complainant's office during the years he was temporarily employed there, the court disagreed, stating

that it and the district court “must defer to the EEOC's appraisal of what is relevant so long as it is not 

obviously wrong. We conclude the thirteen-office, five year scope of the subpoena was not an 

unreasonable exercise of the EEOC's discretion in deciding how to investigate whether [the 

employer's] literacy policy was discriminatory.” Id. at 451 (citation omitted).11

The Supreme Court has also held that the burden of showing that the request pursuant to 

a subpoena is unreasonable, and therefore should not be enforced, is on the subpoenaed party. 

See Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 218 (1946) (holding that “[n]o sufficient 

reason was set forth in the returns or the accompanying affidavits for not enforcing the 

subpoenas, a burden petitioners were required to assume in order to make ‘appropriate 

defense.’”); see also FTC v. Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir. 1977) (“The burden of 

showing that the request is unreasonable is on the subpoenaed party.”). If an operator has an 

objection to the scope of a request made by the Secretary pursuant to section 103(h), it 

appropriately bears the burden of identifying the basis for its objection that the request is not 

reasonable. 

Warrior did not carry that burden. Warrior’s submissions included a letter to the District 

Manager stating that the scope of the Secretary’s request was too broad because it included 

employees who were not underground miners. W. Ex. 6. Warrior failed, however, to provide 

the Judge with specific objections stating why a certain category of employee would lack 

relevant knowledge. Instead, Warrior requested that the Judge decide the case on the arguments 

it presented in its motion for summary judgment. See 35 FMSHRC at 2973. In that motion, 

Warrior argued that, as a general matter, section 103(h) does not provide the Secretary the right 

to the disclosure of private contact information of miners, that the Secretary’s position was in 

conflict with an MSHA handbook, that Big Ridge was distinguishable, and that the Secretary was 

disregarding a miner’s right not to provide his contact information to MSHA. W. Mot. for Sum. 

11 Commissioner Young’s reliance on United States v. Johnson, 628 F.2d 187, 193 (D.C. 

Cir. 1980), slip op. at 17, is misplaced. Johnson involved a discharged employee’s request that a 

government agency issue subpoenas for witnesses on his behalf. Our opinion rests not on 

MSHA’s power to issue subpoenas, but on Congress’s explicit grant of authority to MSHA 

pursuant to section 103(h) of the Act. 

Commissioner Young relies on Donovan v. Dewey, 452 U.S. 594 (1981) for the Fourth 

Amendment proposition that MSHA’s reasonable search must be both authorized by law and 

necessary. Slip op. at 19. However, as the Seventh Circuit made clear in Big Ridge, the 

protections available to mine operators under the Fourth Amendment when faced with a 

documents request are best analogized to the protections available to a regulated entity which has 

received a request for documents in the form of an administrative subpoena. Accordingly, it 

distinguished the document request in Big Ridge from MSHA’s ability to conduct warrantless 

physical searches of mine property considered in Donovan. Because Big Ridge, like this case, 

did not involve a physical search of a mine, the Seventh Circuit concluded that “the Fourth 

Amendment issues are better understood in terms of the law applicable to administrative 

subpoenas.” 715 F.3d at 645. 

38 FMSHRC Page 919
Dec. at 6-11. As to MSHA’s request being overly broad, Warrior’s argument for summary 

decision was limited to the following general assertion: “The request was unreasonably broad 

because it clearly sought information from people who MSHA knew would have no information 

to provide.” Id. at 11. 

Therefore, Warrior did not provide to the Judge any significant context or factual support 

for its cursory contention that the Secretary’s request was “overly broad and not relevant.” PDR 

at 6. The mere statement of the breadth of the request does nothing to explain why such breadth 

makes the request unreasonable. Warrior needed to assert with particularity why inclusion of 

non-underground miners resulted in overbreadth, created a burden, or otherwise was 

unreasonable. It failed to do so. 

MSHA’s information request placed virtually no “burden” upon the operator. Obviously 

the operator could easily produce a list of its employees, and Warrior made no effort to 

demonstrate any burden in doing so. As the Judge found, “[s]imply supplying the contact 

information for its employees placed almost no burden on Warrior.” 35 FMSHRC at 2974. 

Further, such disclosure did not impose any obligation upon any employee. Each 

employee could choose whether to cooperate with any MSHA investigator who might contact 

the employee. The information sought by the Secretary only enabled his representatives to 

contact relevant witnesses away from the mine site, a measure that ensures that the identity of 

potential witnesses remains confidential during the course of an investigation. See Commission 

Procedural Rule 61, 29 C.F.R. § 2700.61 (“A Judge shall not, except in extraordinary 

circumstances, disclose or order a person to disclose to an operator or his agent the name of an 

informant who is a miner.”). 

MSHA had an understandable preference to speak with potential witnesses in true 

privacy rather than in a closed room at the workplace of the entity under investigation. MSHA 

must be able to conduct an effective investigation. Therefore, an objection that MSHA could 

satisfy its need to speak with potential witnesses by interviewing employees at the mine carries 

no weight whatsoever.12

The Commission is mindful and protective of individuals’ right to privacy. However, 

every individual working at a mine understands the dangers faced by miners. Therefore, in 

undertaking such employment, individuals also understand that the Secretary has the important 

task of assuring compliance with laws and regulations protecting the health and safety of miners. 

Although employees may refuse to participate in an investigation by MSHA, it does not 

overreach by obtaining their names and addresses in the course of conducting an ongoing 

investigation into a serious safety situation at a mine. 

12 Warrior suggests that the investigators could have visited the mine and asked miners 

to join them at an off-site location for interviews. We reject this argument. The Mine Act does 

not require such an ungainly process and, as stated above, MSHA is authorized to make 

reasonable requests for information during an investigation. 

38 FMSHRC Page 920
Accordingly, we hold that Warrior failed to demonstrate that any portion of the 

Secretary’s information request was unreasonable. 

C. The Secretary’s special investigation handbook does not authorize Warrior’s 

refusal to comply with the information request, and MSHA’s request did not 

deprive Warrior of fair notice of its obligations under the Mine Act. 

Warrior argues that the Secretary’s request for miner contact information impermissibly 

forces it and its miners to participate in the Secretary’s investigation, which conflicts with 

MSHA’s policy that states that participation in an investigation is voluntary. W. Br. at 6-9. 

Warrior’s assertion is based on the statement “all information is voluntary and may be refused” 

found in MSHA’s Special Investigations Procedures Handbook at page 5-9. W. Ex. 12. 

We disagree. As to Warrior itself, the argument would give any operator carte blanche to 

refuse to participate in an MSHA special investigation, which would eviscerate MSHA’s ability 

to conduct a meaningful inquiry. 

As to individual miners, there is no conflict between the MSHA Special Investigations 

policy and the Secretary’s request to Warrior. Any miner contacted by the Secretary during the 

course of the investigation can voluntarily choose whether to participate in a subsequent 

interview and to what extent. Under the Secretary’s proposed investigation method, miners 

retain their individual ability to make a decision for themselves, and inform the investigators of 

their decision. The Handbook in no way sanctions Warrior’s refusal to comply with the 

Secretary’s request. 

Further, because there is no conflict between an employee’s right to choose whether to 

participate in an investigation and the right of the Secretary to obtain material reasonably related 

to its investigation, Warrior was not deprived of fair notice. 

Finally, we note that it is well established that policy manuals are not officially 

promulgated and do not prescribe rules of law that are binding on the Commission or its Judges. 

King Knob Coal Co., Inc., 3 FMSHRC 1417, 1420 (June 1981) (citing Old Ben Coal Co., 2 

FMSHRC 2806, 2809 (Oct. 1980)). 

D. The Secretary’s interpretation of section 104(b) of the Mine Act is reasonable. 

The Judge concluded that an inspector can issue an order alleging a failure to abate a 

violation pursuant to section 104(b), even if the inspector determines that no discrete physical 

location in the mine is affected by the violation. 35 FMSHRC at 2975. 

Warrior argues that the Judge erred, in that the language of the standard makes the 

inspector’s ability to issue a section 104(b) order conditional on his determination that a specific 

area has been affected. We disagree. 

38 FMSHRC Page 921
Section 104(b) of the Mine Act states: 

If, upon any follow-up inspection of a coal or other mine, an 

authorized representative of the Secretary finds (1) that a violation 

described in a citation issued pursuant to subsection (a) has not 

been totally abated within the period of time as originally fixed 

therein . . . and (2) that the period of time for abatement should not 

be further extended, he shall determine the extent of the area 

affected by the violation and shall promptly issue an order 

requiring the operator of such mine or his agent to immediately 

cause all persons, except those persons referred to in subsection 

(c), to be withdrawn from, and to be prohibited from entering, such 

area until an authorized representative of the Secretary determines 

that such violation has been abated. 

30 U.S.C. § 814(b) (emphases added). 

Section 104(b) provides two conditions for the issuance of an abatement order: (1) a 

violation has not been totally abated within the time period fixed and (2) the inspector 

determines that the period for abatement should not be further extended. If those two conditions 

are satisfied, the inspector must then “determine the extent of the area affected by the violation” 

and issue the order which requires the withdrawal of miners from that area. It is this second set 

of requirements that arguably injects ambiguity into the standard. The Mine Act provides no 

specific direction for how an inspector is to proceed if he determines that a violation has not been 

abated within the time fixed, the period should not be extended, but “the extent of the area 

affected” language is not applicable. 

When the Mine Act is silent on an issue, the Secretary’s interpretation which reasonably 

effectuates the health and safety goals of the Act is controlling. Sec’y of Labor on behalf of 

Wamsley v. Mutual Mining, Inc., 80 F.3d 110, 115 (4th Cir. 1996). Deference is accorded to “an 

agency’s interpretation of the statute it is charged with administering when that interpretation is 

reasonable.” Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) 

(citing Chevron U.S.A., Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 

(1984)). 

We conclude that the Secretary’s interpretation of the statute, permitting the issuance of a 

section 104(b) order which states that the inspector determined that no area of the mine in 

particular was affected by the violation, is a reasonable interpretation. 

It is significant that nothing in the language of section 104(b) prohibits the Secretary from 

issuing a “no area affected” order. The language indicates that, if the two conditions above are 

met, the MSHA inspector “shall determine the extent of the area affected by the violation” and 

order the appropriate withdrawal of miners from “such area” until it is determined that the 

violation has been abated. Thus, if no specific area of the mine is affected by the violation, it is 

reasonable to read the statute as providing that the inspector is to state that determination and 

issue a corresponding section 104(b) order. 

38 FMSHRC Page 922
The Secretary’s interpretation is also consistent with the remedial nature of the Act. See 

Pattison Sand Co., v. FMSHRC, 688 F.3d 507, 513 (8th Cir. 2012) (“The Act is remedial in 

nature and its terms should therefore be construed broadly.”). Furthermore, it is consistent with 

the Mine Act’s structure and progressive enforcement scheme of increasingly severe sanctions 

being applied when an operator incurs repeated violations. See 30 U.S.C. § 814(d) and (e). 

A “no area affected” order provides an important deterrent to operators who fail to abate 

violations in a timely fashion. Moreover, issuing such orders has been an ongoing and accepted 

practice for many years. See Thunder Basin Coal Co., 16 FMSHRC 671 (Apr. 1994) 

(acknowledging the Secretary’s practice of issuing “no area affected” section 104(b) orders). 

The issuance of an order for a failure to abate promotes compliance by imposing a consequence 

on an operator that refuses to comply with the Mine Act. 

While the immediate result of miner withdrawal is not applicable if no physical space in 

the mine is affected by the violation, the withdrawal of miners is not the only consequence 

associated with the issuance of a section 104(b) order. Pursuant to section 105(b)(1)(A) of the 

Act, 30 U.S.C. § 815(b)(1)(a), the Secretary is authorized to seek a separate civil penalty if an 

operator has not corrected a violation in a timely manner, i.e., if the issuance of a section 104(b) 

order for failure to abate the violation was warranted. Moreover, section 110(b)(1) of the Act, 30 

U.S.C. § 820(b)(1), authorizes the assessment of a civil penalty on a daily basis if an operator 

fails to abate a violation. Finally, a Judge can assess an elevated civil penalty as a result of an 

operator’s failure to abate a violation. See 30 U.S.C. § 820(i) (“In assessing civil monetary 

penalties, the Commission shall consider . . . [factors that include] the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance after notification of a violation.”). 

In these instances, the issuance of a “no area affected” section 104(b) order documents the 

operator’s failure to comply, and the prospect of a higher penalty acts as a deterrent. 

Our dissenting colleague suggests that the operator was not afforded due process 

protection because “[r]ather than an opportunity to seek judicial review concerning the scope and 

nature of the agency’s request . . . the operator was exposed to the threat of immediate and 

coercive penalties simply for defending its fundamental rights.” Slip op. at 20. The Seventh 

Circuit in Big Ridge categorically rejected a similar claim (that the mine operators’ due process 

rights were violated because MSHA was allowed to impose daily penalties on mines not 

complying with record demands before any opportunity for judicial review). After analyzing the 

legislative history of the Mine Act, the Court found that the procedures for imposing penalties 

were constitutional. 715 F.3d at 652-53. It also noted that the Secretary had granted the 

operators’ request not to assess any failure-to-abate penalties until after the disposition of the 

hearing before the Judge, and that the Commission granted the mine operators’ request to 

expedite its review. Id. at 654. The Court concluded that “the penalties do not violate the mine 

operators’ right to due process because the statutory scheme offered opportunities both for 

review and to mitigate the penalties.” Id. 

Moreover, although our colleague implies that Warrior was forced to pay penalties for its 

failure to turn over the records without recourse to Commission review of MSHA’s request, this 

was not the case. Pursuant to the scheme set forth by Congress in the Mine Act, the Secretary 

proposed a penalty for Warrior’s failure to turn over the records, the operator contested the 

38 FMSHRC Page 923
citation and the penalty, and was only ordered to pay a $550 penalty after the opportunity for a 

hearing before a judge. In addition, there is no record of any proposed penalty for the failure to 

abate order.13 

For the aforementioned reasons, we conclude that the Secretary’s interpretation of section 

104(b) of the Mine Act as authorizing MSHA inspectors to issue “no area affected” orders is 

reasonable and should be given deference. 

III. 

Conclusion

We affirm the Judge’s decision to grant the Secretary’s motion for summary decision. 

Accordingly, the citation and the order are both affirmed. Warrior is ordered to pay the assessed 

civil penalty and to provide the requested information to MSHA within 30 days of the date of 

this decision if it has not already done so. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

13 We also note that Warrior could have requested an expedited hearing before the Judge. 

See Commission Procedural Rule 52, 29 C.F.R. § 2700.52. 

38 FMSHRC Page 924
Commissioner Althen, concurring:

I concur with the majority decision. Commission precedent establishes that, although 

MSHA does not have authority to issue administrative subpoenas except in very limited 

circumstances, sections 103(a) and (h) of the Mine Act authorize MSHA to demand documents 

beyond those required by the Act. Here, MSHA was pursuing an important investigation; the 

document demand imposed virtually no burden on the operator, and implicated minimal, if any, 

privacy rights. I think the request was “reasonable.” 

However, I share many of the important concerns expressed in Commissioner Young’s 

dissent. In particular, a document demand under section 103(h) is not an administrative 

subpoena. There are important differences. A fundamental difference is the absence of a 

hearing before assessment of a proposed civil penalty arising from the failure to comply with a 

document demand.14 The right to a fair hearing at a meaningful time and in a meaningful manner 

is a fundamental requirement of the due process clause of the Fifth Amendment. Mathews v. 

Eldridge, 424 U.S. 319, 333 (1976). 

In Big Ridge, Inc. v. FMSHRC, 715 F.3d 631 (7th Cir. 2013), the Seventh Circuit offered 

three reasons that a penalty assessment before a hearing in a document demand case did not 

create constitutional difficulties: (1) mine operators could ask MSHA to delay imposing the 

penalty; (2) penalties are not automatic; and (3) mine operators can contest a penalty assessment 

before it becomes final. Id. at 653-54. The first two points rest upon a speculative, secular faith 

in the goodwill of government.15 Only, the third point is substantive. 

In Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), the Supreme Court did not find 

a constitutional defect in a pre-hearing assessment of a civil penalty. However, the Court was 

careful to state that it was the record in that case that did not support finding a constitutional 

defect. Id. at 216-18. That case focused upon the jurisdiction of federal district courts and upon 

the circumstances associated with inspections – that is, the type of MSHA actions that formed 

14 There are other differences. For example, it appears that the operator never provided 

the demanded information at issue in this case. Unless MSHA has kept a section 110(c) 

investigation open for more than four years awaiting the names and addresses of all employees, it 

completed its investigation without the operator’s compliance with the demand. Assuming that 

is the case, if this proceeding was analogous to an administrative subpoena proceeding, then, 

when the agency closed the investigation, a motion to compel compliance with a subpoena 

would be moot. Here, apparently, the Secretary collects a monetary penalty even though MSHA 

has foregone receipt of the documents in completing its investigation. 

15 This unusual case provides only a modicum of justification for the Big Ridge court’s 

initial propositions. Here, MSHA did not seek a daily fine for the failure to abate order, and 

followed normal processes in assessing a fine for the section 104(a) citation. Indeed, the records 

obviously were not of real interest to MSHA as it allowed the contest to continue for over four 

years and, apparently, closed the investigation without obtaining the information. This provides 

no comfort that in other cases, when MSHA actually wants the information, it will not propose 

daily fines to coerce compliance before a hearing. 

38 FMSHRC Page 925
the gravamen of the Court’s acceptance of warrantless inspections in Donovan v. Dewey, 452 

U.S. 594 (1981). Such urgency does not attach to document demands and, thus, does not offer 

the set of facts or intellectual underpinning upon which the Court rested its Thunder Basis

decision. 

I do not find due process concerns sufficiently raised and articulated in this case to 

warrant definitive analysis. However, I am uncomfortable with the notion that MSHA may 

impose significant daily fines upon respondents to coerce compliance with a demand for records 

before a fair hearing. A future case in which MSHA does not meet either of the first two 

hypotheses of Big Ridge would present an opportunity to review the constitutionality of MSHA’s 

imposition of severe, pre-hearing fines to coerce disclosure in the context of a specific 

investigation or discrimination case. 

In this regard, MSHA recently alleviated constitutional concerns over the right to 

immediate review of a notice of safeguard by instituting a procedure for a technical citation 

followed by a hearing. See Program Policy Letter (“PPL”) No. P14-V-02 (issued Sept. 24, 

2014); Contest of Mine Approval Actions, MSHA’s Program Policy Manual, V.G-4. Such a 

procedure for document demands, if coupled with an expedited hearing, would go far toward 

vindicating the Seventh Circuit’s otherwise naïve assumptions about MSHA and toward assuring 

the constitutionality of enforcement procedures for document demands under section 103(h). 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 926
Commissioner Young, dissenting: 

I joined our opinion approving the Secretary’s information request in Big Ridge, Inc., 34 

FMSHRC 1003 (May 2012), despite some misgivings, because the Mine Safety and Health 

Administration’s (MSHA) request was narrowly crafted and the information sought was 

necessary to proper, specific and publicly-noticed auditing functions. Further, the rulemaking in 

Big Ridge gave notice that the Secretary intended to seek precisely the types of information at 

issue. Finally, and most critically, the information request at issue in Big Ridge was authorized 

and directed by the Secretary’s own designated Administrator, whom Congress intended to 

exercise the discretionary powers under the Act. 

The current information request is not similarly graced, and the majority seeks to follow 

an appeals court’s invitation16 – on an issue we pointedly did not address in our decision in Big 

Ridge – to engage in an alarming and unconstitutional expansion of the law, and to permit the 

sort of low-level policy freelancing the Supreme Court has expressly disapproved on Fourth 

Amendment grounds. I dissent. 

At the heart of the majority’s opinion lies the mistaken assumption that MSHA has the 

authority to issue administrative subpoenas in connection with routine mine inspections.17 The 

16 The Seventh Circuit’s reference to administrative subpoenas provides no support for 

its recognition of a general subpoena power in the Mine Act. Like the majority (see n.2, infra), 

the Court of Appeals simply assumes that the subpoena power exists, stating that it is “not 

persuaded” otherwise. Big Ridge, Inc. v. FMSHRC, 715 F.3d 631, 642 (7th Cir. 2013). This is a 

bare conclusion that cites no law governing the issuance of subpoenas under the Act or as a 

general matter of administrative law. Somewhat ironically, the court states, “we conclude that 

the record demands are best understood, in constitutional terms, as administrative subpoenas.” 

Id. at 644. Of course, “in constitutional terms,” MSHA has no power whatsoever, except that 

which has been bestowed by Congress. It may be understandable that the Court of Appeals 

would assume that the Mine Act authorizes the issuance of administrative subpoenas – a 

prerequisite to their use and enforcement under the Administrative Procedure Act. See 5 U.S.C. 

§ 555(d) (requirement that agency subpoenas be “authorized by law”). It is relatively rare for an

agency not to have Congressional authorization to issue administrative subpoenas, which

suggests strongly that such power must be express, and not implied. See Edward A. Tomlinson,

Discovery in Agency Adjudication, 1971 DUKE L.J. 89, 93 n.19 (1971) (“Those few remaining

agencies which do not possess the subpoena power must obtain it from Congress.”)

17 In seeking to rationalize the Seventh Circuit’s position on administrative subpoenas, 

the majority falls into the same trap as the appeals court but lacks the legally-valid fallback 

position afforded by the distinguishable facts in Big Ridge. The appellate court could properly 

have noted that Congress did, in fact, confer significant powers on the Secretary, along with the 

appropriate rulemaking he had undertaken in direct support of the records request, and affirmed 

our holding on that basis. Instead, it sought to overcome the significant impediments the 

Supreme Court has imposed on agency searches and seizures by assuming, as the majority now 

has in turn, that MSHA has a power Congress withheld from it. Thus, the majority’s 

(continued...) 

38 FMSHRC Page 927
problem with this rationale is that Congress not only failed to confer general administrative 

subpoena power on MSHA, it designed the Mine Act to preclude any inferences in favor of that 

power. 

As we very recently held in Pocahontas Coal Company: 

The precise list of jurisdictional triggers in section 105(d) strongly 

indicates a Congressional intent to exclude other types of actions. 

See Saxon v. Georgia Ass’n of Indep. Ins. Agents, Inc., 399 F.2d 

1010, 1014 (5th Cir. 1968) (holding that “a power which has been 

withheld or denied by Congress cannot be found to exist as an 

‘incidental’ and ‘necessary’ power” when Congress has 

specifically delineated other powers). 

38 FMSHRC 157, 160-61 (Feb. 2012). 

Despite our fresh recognition of this fundamental principle of statutory construction, the 

majority finds a general subpoena power where none was given. Indeed, the Mine Act 

authorizes subpoenas in only two circumstances: 1) to compel the attendance of witnesses when 

the agency holds public hearings to assist its investigation following an accident or other 

occurrence (section 103(b)); and 2) to authorize the Commission to compel the appearance of 

witnesses and production of evidence for hearings (section 113(e)). 30 U.S.C. §§ 813(b), 823(e). 

Not only is the express authority for subpoenas severely limited under the Act, the power 

is extended to the Commission, and not the Secretary, except when summoning witnesses to 

public hearings. This is important.18 “The Supreme Court has characterized as ‘treacherous 

17 (...continued) 

fundamental error is its endorsement of the Seventh Circuit’s assumption that the authority exists 

and then analogizing the case at bar to cases where the issue was the scope of an authorized 

administrative subpoena. These cases have no relevance because MSHA does not possess 

subpoena power, and the alternative justifications offered have been expressly refuted by the 

Supreme Court. See pp. 18-19, infra. 

18 In addition to the case law cited in this opinion, it’s worth noting that, in a Report to 

Congress directed by Public Law 106-544, Section 7, the Department of Justice expressly noted 

the limited scope of the Secretary’s subpoena power under the Act. Citing section 103(b) of the 

Act, the report states that this conferral is the Act’s sole administrative subpoena authority: 

For the purpose of making any investigation of any accident or other occurrence 

relating to health or safety in a coal or other mine, the Secretary may, after notice, hold 

public hearings, and may sign and issue subpoenas for the attendance and testimony of 

witnesses and the production or [sic] relevant papers, books, and documents, and 

administer oaths.” Federal courts have long recognized that the subpoena power of the 

Secretary under this and the predecessor Federal Coal Mine Health and Safety Act of 

(continued...) 

38 FMSHRC Page 928
business’ such imputations of power from one agency to an entirely different agency.” Peters v. 

United States, 853 F.2d 692, 699 (9th Cir. 1988) (citing FTC v. Bunte Bros., Inc., 312 U.S. 349, 

353 (1941)). 

Peters is directly on point, and confronts the extension of subpoena power where none 

was conferred by Congress. The Immigration and Naturalization Service (INS) assumed it had 

the power to issue subpoenas because the Internal Revenue Service had been granted similar 

power to issue summonses in an analogous situation. Id. at 698. In reversing the District Court’s 

“expansive” reading of the authorizing statute, the Court of Appeals contrasted the inferred 

power with the “specific legislative direction [given to the IRS] in an area heavily explored by 

both Congress and the courts.” Id. at 698-99. 

Here, the structure of that Act clearly evinces Congressional intent to limit the 

Secretary’s subpoena power, by specifying this power may be wielded by the Secretary in only 

one situation not at all like or related to the circumstances presented by this case. Further, the 

legislative history and the structure and operation of the Act make clear that Congress intended 

independent adjudication by the Commission, and placed significant restraints on the Secretary’s 

ability to enforce the Act and to adjudicate issues unilaterally. Thus, except when MSHA 

convenes a public hearing authorized by the Act, only the Commission has the authority to issue 

subpoenas, as a necessary extension of its power to conduct hearings. 

This necessity, too, has been examined in a Court of Appeals, which similarly found 

unavailing the government’s arguments in favor of an inferred power to issue subpoenas. See 

Johnson v. United States, 628 F.2d 187, 193 (D.C. Cir. 1980) (“Subpoena power is not an 

intrinsic feature of the administrative process, and courts cannot engraft subpoena authority onto 

an agency’s charter from Congress.”) (citation omitted). In Johnson, a discharged federal 

employee claimed that his due process rights were violated by the Civil Service Commission’s 

failure to issue subpoenas for witnesses on his behalf. Id. The Court of Appeals held that there 

was no authority for the subpoenas sought by the employee. Id. Citing precedent, the Court 

reiterated that “‘(t)he Commission cannot confer upon itself the power of subpoena in the 

18 (...continued) 

1969 (P. L. 91-173) is limited to public hearing settings, United States v. Blue Diamond 

Coal Co., 667 F2d 510, 519 (6th Cir. 1981); UMWA v. Martin, 785 F. Supp. 1025, 1027 

[n].1 (D.D.C. 1992). Thus, it is clear both from the wording of the statute and the court 

interpretations that the subpoena power of the Mine Act is limited to investigatory public 

hearings being conducted by the Secretary. 

U.S. Department of Justice, Office of Legal Policy, Report to Congress on the Use of 

Administrative Subpoena Authorities by Executive Branch Agencies and Entities, Appendix A-1 

(emphasis added). Of course, pursuant to Section 112 of the Mine Act, all litigation by the 

Solicitor before the Commission is subject to the direction and control of the Attorney General, 

and the Justice Department’s frank appraisal in a statutorily-mandated report should thus be 

accepted as authoritative. 

38 FMSHRC Page 929
absence of a statute requiring it to hold hearings of the type involving subpoenas.’” Id. (citing

Deviny v. Campbell, 194 F.2d 876, 880 (D.C. Cir.), cert. denied, 344 U.S. 826 (1952)).19 

One cannot overlook, in this context, the significance of Congress’ choice to establish an 

independent Commission. Not only does the Labor Department lack the authority to conduct 

hearings, but Congress assigned that function to another, distinct entity: the Commission. 

Indeed, the Commission has express subpoena power as an extension of its authority to conduct 

hearings under the Act. Where Congress has clearly delineated, and limited, the subpoena power 

under the Mine Act, it is improper for the Commission – or the courts – to infer additional power 

clearly withheld.20 

Noting the Secretary’s own awareness that it lacks subpoena authority beyond that 

expressed in the Act seems almost beside the point, in light of the overwhelming authority 

weighing against a more expansive view. But the Secretary’s representatives did in fact seek 

greater subpoena powers, and the sponsors of the bill acknowledged the Secretary’s absence of 

authority to issue such subpoenas. See Big Ridge, 715 F.3d at 642 (citing Committee on 

Education and the Workforce Democrats, H.R. 1373: The Robert C. Byrd Mine Safety 

Protection Act of 2013, 113th Cong., 1st Sess. (Mar. 21, 2013) (citation omitted)). While the 

Seventh Circuit dismissed this, id., the Secretary’s clear understanding of its administrative 

boundaries is nothing less than an acknowledgment of the governing law here. 

Even if one were to somehow find the request permissible under another theory, in this 

context the request must be recognized on principle as facially overbroad and unreasonable 

under Donovan v. Dewey, 452 U.S. 594 (1981). From conditions in one section of a mine, 

MSHA has concocted theories justifying an unbounded inquisition into the operator’s affairs and 

the authority, not only to question anyone whom it wishes on any subject, but to compel the 

operator’s cooperation in what appears to be the classic – and forbidden – “fishing expedition.” 

The agency presents no evidence of a mine-wide problem, but appears confident that it 

would find one, but for the operator’s intransigence. See S. Br. at 20 (“At the beginning of its 

19 The majority attempts to distinguish Johnson on its facts, but the fundamental legal 

principles upon which the decision rests are express, forceful and controlling here and do not 

depend on the peculiar circumstances of that case for their vitality. 

20 Where some courts have inferred a subpoena power from a statute, the inference arose 

from a statutory grant that implied the power by necessity. See U.S. v. Florida Azalea 

Specialists, 19 F.3d 620, 622-23 (11th Cir. 1994) (court, citing Peters, affirmed issuance of 

subpoena as within the scope of the subpoena authority conferred by Congress, even though the 

specific circumstance was not expressed in the statute authorizing investigations by the Office of 

Special Counsel); U.S. ex rel Richards v. De Leon Guerrero, 4 F.3d 749, 753 (9th Cir. 1993) 

(subpoena power is inferred from the grant of audit power to the Department of Interior under 

Insular Areas Act, which was expressly made “in addition to the authority conferred upon the 

Inspector General by the Inspector General Act of 1978.”) (citation omitted). Both cases 

followed Peters and specifically quoted its holding that “[t]he authority of an administrative 

agency to issue subpoenas for investigatory purposes is created solely by statute.” Florida 

Azalea, 19 F.3d at 623; De Leon Guerrero, 4 F.3d at 753. 

38 FMSHRC Page 930
section 110 investigation, MSHA could not have known how long the [subject] violations had 

existed, which agents knew or had reason to know of their existence, and whether the violations 

occurred because of broader practices occurring elsewhere in the mine . . . .”) (emphasis added). 

This is essentially an acknowledgment that MSHA, despite the broad – and Donovan-approved – 

authority to enter the mine as part of the regular inspection process and to examine all 

documentation in the mine, must nonetheless also be given general authority to demand 

documentation that a low-level field agent (contra the Supreme Court’s proscription in Marshall 

v. Barlow’s, Inc., 436 U.S. 307 (1978)) believes he may need to build a case without any reason

to believe, at the outset, that the case exists.

The agency’s argument is seductive. The logistical difficulty and inconvenience of 

complying with the Secretary’s request in this case is, indeed, trivial. In light of the protracted 

litigation that has ensued, it may in fact have been easier and less costly for the operator to 

provide access to all of the contact information for everyone who works at the mine, just as it 

may be more convenient to simply consent to an officer’s request to rifle through one’s 

possessions on the street rather than insisting on a warrant. However, the Seventh Circuit’s 

opinion in Big Ridge rests squarely on Donovan, which draws its force in turn from the Fourth 

Amendment. 

We might do well to remember, then, that Donovan explains conformance to 

constitutional protections – it does not do away with them. Contrary to the majority’s 

assumption, Donovan requires that a reasonable search be both authorized by law and necessary. 

See Donovan, 452 U.S. at 599 (“Inspections of commercial property may be unreasonable if they 

are not authorized by law or are unnecessary for the furtherance of federal interests.”). Thus, the 

majority’s confidence in the breadth of the Seventh Circuit’s opinion – which dismisses with 

hardly a concern the operator’s argument against the supposed “subpoena” power – is sorely 

misplaced. Asserting that Congress “authorized” agency personnel below the Secretary to seek 

any “relevant” information from operators, with the bounds of that inquiry left solely to those 

subordinate agents, disregards Donovan and its constitutional underpinnings, as well as the Act’s 

provision of a forum for ensuring the agency does not have the very sort of unfettered discretion 

it claims before us in this case. 

Donovan, in fact, speaks directly to just that problem: 

“Where Congress has authorized inspection but made no 

rules governing the procedures that inspectors must follow, the 

Fourth Amendment and its various restrictive rules apply.” 

Colonnade Corp. v. United States, supra, 397 U.S., at 77, 90 S.Ct., 

at 777. In such cases, a warrant may be necessary to protect the 

owner from the “unbridled discretion [of] executive and 

administrative officers,” Marshall v. Barlow’s, Inc., supra, 436 

U.S. at 323, 98 S.Ct., at 1826, by assuring him that “reasonable 

legislative or administrative standards for conducting an . . . 

inspection are satisfied with respect to a particular 

38 FMSHRC Page 931
[establishment].” Camara v. Municipal Court, 387 U.S. 523, 538, 

87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967).

Id. Furthermore, the very concerns which led the same Supreme Court to disapprove of 

warrantless searches under the Occupational Safety and Health Act in Marshall v. Barlow’s, Inc.

are present in this case. As the Donovan Court explained, in contrasting the regularity of 

inspection spelled out in the Mine Act with the asserted authority to inspect the panoply of 

businesses regulated under the OSHA: 

In assessing this regulatory scheme [under the 

Occupational Safety and Health Act], this Court found that the 

provision authorizing administrative searches “devolves almost 

unbridled discretion upon executive and administrative officers, 

particularly those in the field, as to when to search and whom to 

search.” 

452 U.S. at 601 (emphasis added). This, then, represents the proper perspective for analyzing the 

request at issue in this case: is there any limit or regularity inherent in the exercise of the 

Secretary’s discretion under section 103(h), when employed by an inspector? 

There is precious little. The request in Big Ridge involved an initiative developed by or 

at the direction of the Assistant Secretary, published in advance, and subject to public review and 

comment. The nexus between the information sought and the audit function for which it was 

needed was, as we held and the Seventh Circuit affirmed, tightly focused. 

Contrast those facts with the current request, initiated by the type of low-level field agent 

whose discretion the Supreme Court found so troubling in Donovan and Barlow’s, Inc. Not only 

does the agency assert de facto subpoena power has somehow been conferred (silently) all the 

way from Congress to a mine inspector, it does so without even the modest due process 

protections an actual subpoena might provide to its recipient. Rather than an opportunity to seek 

judicial review concerning the scope and nature of the agency’s request here, as it would have 

with a proper subpoena, the operator was exposed to the threat of immediate and coercive 

penalties simply for defending its fundamental rights.21 

21 This really is a matter of fundamental rights. As the Court of Appeals for the Sixth 

Circuit has noted, and as the Secretary once conceded, the diminished expectation of privacy the 

Supreme Court has applied to businesses, even those that are “pervasively regulated,” has not 

abrogated the protections of the Fourth Amendment. McLaughlin v. Kings Island, Div. of Taft 

Broadcasting Co., 849 F.2d 990, 993-94 (6th Cir. 1988), (citing New York v. Burger, 482 U.S. 

691, 699 (1987)). Indeed, the Supreme Court established clear standards in Burger for balancing 

(continued...) 

38 FMSHRC Page 932
Those rights are the elephant in a relatively small room. Having been granted the power 

to conduct unnoticed inspections, and access without a warrant to various documents and 

information, the agency nonetheless asserts it must also have the power to require the operator to 

produce documents beyond those needed to investigate a known violation, in order to determine 

whether there might be other violations elsewhere in the mine, without providing any 

foundational facts to gird its suspicions. 

Speaking of facts, we should also recall that this case came to us on summary decision. 

Thus, the majority today affirms the judge’s finding that the government was entitled to the 

information it sought as a matter of law and that no plausible factual scenario – a rogue 

inspector, government overreach on the particulars – might give pause on the way to affirmance. 

This is a loose and dangerous game, with principles that protect the rights of a free people 

21 (... continued) 

the government’s interests against the Fourth Amendment rights of pervasively regulated 

businesses: 

[B]efore any such warrantless inspection or search is

constitutionally acceptable:

First, there must be a “substantial” government interest that 

informs the regulatory scheme pursuant to which the inspection is 

made. 

Second, the warrantless inspections must be “necessary to further 

[the] regulatory scheme.” 

. . . 

Finally, “the statute’s inspection program, in terms of the certainty 

and regularity of its application, [must] provid[e] a constitutionally 

adequate substitute for a warrant.” In other words, the regulatory 

statute must perform the two basic functions of a warrant: it must 

advise the owner of the commercial premises that the search is 

being made pursuant to the law and has a properly defined scope, 

and it must limit the discretion of the inspecting officers. 

Id. at 994 (citing Burger, 482 US at 702-03) (ellipsis in original). The majority fails to even 

consider that the Supreme Court has established benchmarks which control our evaluation of 

such matters, let alone attempt to analyze the case before us against those benchmarks. There is 

no administrative subpoena or any other “constitutionally adequate substitute for a warrant” here, 

and as this opinion has noted, there are no real limits on the discretion exercised by the 

Secretary’s delegates at the district level. The request is therefore invalid even if the Secretary 

could establish that the first two Burger requirements have been met. 

38 FMSHRC Page 933
arguably at stake. In the end, the fact that Ernest Miranda was probably guilty22 didn’t prevent 

the Supreme Court from honoring the promises made by the Constitution, see Miranda v. 

Arizona, 384 U.S. 436 (1966), and the fact that this petitioner operates a mine which failed to 

fulfill its duties under the Mine Act – as almost all do, from time to time – should not preclude a 

proper constitutional analysis in this case. 

The Mine Act represents a negotiated settlement of contentious safety and health issues 

among labor, industry and government interests. It was produced through compromise, and has 

inured to the benefit of both the nation’s miners and the mining industry. As with all federal 

laws, it must be read in harmony with the Constitution’s protection of fundamental rights. The 

Commission must respect the Constitution’s limits on the exercise of federal power, and is also 

bound to respect the terms of the Act as they were negotiated, including the significant 

procedural limits imposed on the Labor Department and the requirement for independent 

adjudication by the Commission. Extending to the agency powers that Congress withheld in 

drafting the Act represents legal error and a breach of trust. Accordingly, I dissent. 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

22 After his confession was suppressed, Miranda was retried without it and convicted of 

the kidnapping and rape of which he had been accused. See Arizona v. Miranda, 450 P.2d 364 

(Ariz. 1969). 

38 FMSHRC Page 934
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May 17, 2016 

UNITED MINE WORKERS OF AMERICA 

 (UMWA), on behalf of MARK A. FRANKS 

v. PENN 2012-250-D 

EMERALD COAL RESOURCES, LP 

UNITED MINE WORKERS OF AMERICA 

 (UMWA), on behalf of RONALD M. HOY 

v. PENN 2012-251-D 

EMERALD COAL RESOURCES, LP 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. PENN 2013-305 

PENN 2013-306 

EMERALD COAL RESOURCES, LP 

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners 

DECISION APPROVING SETTLEMENT 

BY: THE COMMISSION 

These cases arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (2012) (“Mine Act”). They involve complaints of discrimination and interference filed by 

the United Mine Workers of America (“UMWA”) on behalf of Mark A. Franks and Ronald M. 

Hoy pursuant to section 105(c)(3) of the Mine Act. 30 U.S.C. § 815(c)(3). After a hearing on the 

merits, an Administrative Law Judge concluded that Franks and Hoy demonstrated that they had 

38 FMSHRC Page 935
been discriminated against as a result of their participation in activities protected by the Mine 

Act and in violation of section 105(c). 35 FMSHRC 1696 (June 2013) (ALJ).1 

Emerald then petitioned the Commission for review of the Judge’s decision, which the 

Commission granted. On review, a majority of the Commission affirmed the Judge’s decision in 

result. 36 FMSHRC 2088 (Aug. 2014). Emerald then appealed the decision to the United States 

Court of Appeals for the Third Circuit. For the reasons articulated below, the Third Circuit 

vacated the Commission’s decision and remanded the cases to the Commission for further 

analysis.2 

The Commission’s decision to affirm the Judge’s decision, in result, was a split decision. 

Commissioners Young and Cohen voted to affirm on the grounds that substantial evidence 

supported the Judge’s conclusion that Emerald discriminated against Franks and Hoy in violation 

of section 105(c) of the Mine Act. Id. at 2089-2103. Chairman Jordan and Commissioner 

Nakamura voted to affirm the Judge’s decision in result after concluding that Emerald interfered

with the protected statutory rights of the miners in violation of section 105(c). Id. at 2104-2119. 

Commissioner Althen voted to vacate the decision of the Judge. Id. at 2120-2144. 

The Third Circuit concluded that the two opinions affirming the Judge’s decision 

presented “conflicting rationales” to support the finding that Emerald violated section 105(c) of 

the Mine Act, and therefore, the Commission failed to provide a majority rationale that was 

“amenable to review.” Emerald Coal Res. LP, v. Hoy, 620 Fed. Appx. 127, 129, 132 (3rd Cir. 

2015) (citation omitted). However, the Court further concluded that because “four of five 

[Commissioners] agreed that the Mine Act was violated and relief was appropriate, [it] 

believe[d] the agency should have a chance to explain its reasoning.” Id. at 133. Therefore, the 

Court vacated and remanded the Commission’s decision, noting that it was not expressing an 

“opinion as to how the Commission may decide the discrimination or interference issues or 

1

 The Judge ordered Emerald to take the following remedial actions: (1) provide backpay 

to Franks in the amount of $1,168.68 plus interest and backpay to Hoy in the amount of 

$1,963.93 plus interest; (2) post the decision at the mine site and provide notice to miners of their 

rights under section 105(c); (3) remove all reference to the reprimand from the personnel files of 

Franks and Hoy. 35 FMSHRC at 1707. 

2

 As a result of the Commission’s decision that Emerald violated the Mine Act, the 

Secretary of Labor subsequently filed petitions for assessment of civil penalty pursuant to 

sections 105 and 110 of the Mine Act. The proposed penalties were $20,000 each, for a total 

penalty of $40,000. The parties filed joint stipulations addressing the penalty criteria, and the 

Judge assessed the total penalty of $40,000. Unpublished Order (October 29, 2014) (Docket No. 

PENN 2013-305 et al.). 

Emerald petitioned the Commission for review of the Judge’s civil penalty decision. 

However, no two Commissioners voted to grant the petition. Emerald then appealed the Judge’s 

decision to the Third Circuit. The Third Circuit consolidated the civil penalty cases with the 

other captioned matters. 

38 FMSHRC Page 936
whether it should remand the case to the [Judge] to conduct the interference analysis in the first 

instance . . . .” Id. 

On remand to the Commission, a majority of the Commissioners voted to remand the 

proceedings to the Judge “to conduct the interference analysis in the first instance” consistent 

with the decision of the Third Circuit. 38 FMSHRC 226, 228 (Feb. 2016). 

On April 11, 2016, the Judge issued her decision on remand. She concluded that Emerald 

unlawfully interfered with the complainants’ rights under the Mine Act and assessed a total civil 

penalty of $40,000. She also reiterated the provisions of her previous order described in footnote 

1, supra. 38 FMSHRC __, slip op. at 11-13, No. PENN 2013-305 et al (Apr. 11, 2016). 

On April 29, 2016, the parties filed a joint petition for discretionary review. The parties 

also announced that they had reached a settlement, and requested approval of their settlement 

agreement. The Commission has granted the petition for discretionary review in a separate 

Direction for Review, and now disposes of the cases. 

The parties’ joint request for approval of settlement was filed in accordance with section 

110(k) of the Mine Act, 30 U.S.C. § 820(k), which provides, in relevant part, that “[n]o proposed 

penalty which has been contested before the Commission under section 105(a) shall be 

compromised, mitigated, or settled except with the approval of the Commission.” Commission 

Procedural Rule 31 provides that a “proposed penalty that has been contested before the 

Commission may be settled only with the approval of the Commission upon motion.” 29 C.F.R. 

§ 2700.31(a). The movant is required to provide “facts in support of the penalty agreed to by the

parties.” 29 C.F.R. §§ 2700.31(b)(1), (c)(1).

The parties represent that Emerald’s mine has ceased production of coal and is now 

closed. The parties further represent that Emerald and its parent company, Alpha Natural 

Resources, Inc., have filed for bankruptcy. Additionally, the parties represent that Emerald 

previously performed all the remedial actions ordered by the Judge: Emerald has provided 

backpay to the miners, posted the decision and notice at the mine, and removed the reprimands 

from the complainants’ personnel records. The parties now propose that Emerald pay a reduced 

civil penalty in the amount of $20,000 in satisfaction of the violations of the Mine Act. The 

parties represent that Emerald has assured the Secretary that the penalty agreed upon in 

settlement will be paid in the ordinary course of business, pursuant to an Order of the 

Bankruptcy Court. 

The Secretary represents that he has determined that a total penalty of $20,000, rather 

than the $40,000 ordered by the Judge, is appropriate in light of the facts that the Emerald Mine 

is now closed, that Emerald and its parent company are now in bankruptcy, and that all other 

remedies directed by the Judge, including backpay, have been fully performed. 

38 FMSHRC Page 937
The parties’ joint request for approval of settlement is granted. We determine that the 

parties have justified that a reduction of the penalty is appropriate given the change in the size of 

the operator’s business. See 30 U.S.C. § 820(i) (“In assessing civil monetary penalties, the 

Commission shall consider . . . the appropriateness of such penalty to the size of the business 

charged. . . .”). Emerald Coal is ordered to pay the civil penalty of $20,000 within 30 days of the 

issuance of this order. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 938
COMMISSION ORDERS

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May 19, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. WEVA 2014-685 

v. Mine ID: 46-09192 

 ACI TYGART VALLEY 

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura and Althen, 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. (2006) (“Mine Act”). On March 18, 2014, the Commission received from ACI

Tygart Valley (“ACI”) a motion seeking to reopen an imminent danger order that had become a

final order pursuant to section 107(e) of the Mine Act, 30 U.S.C. § 817(e).

Under section 107(e) of the Mine Act, an operator who wishes to contest the issuance of 

an imminent danger order under section 107(a) must notify the Secretary of Labor no later than 30 

days after being notified of such order. 

In evaluating requests to reopen final imminent danger orders, the Commission finds 

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 mistake, 

inadvertence, or excusable neglect. See 29 C.F.R. § 2700.1(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 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). 

Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the imminent danger order was delivered on January 13, 2014, and 

became a final order on February 12, 2014. ACI asserted that on February 24, 2014, it received 

the results of the bottle samples which were taken by MSHA to substantiate the 107(a) imminent 

danger order, and that based upon the results, it concluded that no imminent danger existed. 

Since the period for contesting the violation had already expired by the time ACI received the 

results of the bottle samples, ACI requested that the Commission reopen these proceedings. The 

Secretary opposed the request to reopen. The Secretary noted that the reasonableness of the 

imminent danger order did not depend on the results of the bottle samples, but on the information 

available to the inspector when the order was issued. Therefore, the Secretary contended that the 

operator did not have to wait until it received the results to contest the order.

38 FMSHRC Page 939
We note that the motion to reopen was filed only 34 days after the order became final, 

and that the 104(a) citation issued in conjunction with the imminent danger order, Citation No. 

8050878, was timely contested by the operator. Furthermore, we note that as the record has yet 

to be developed in this matter, it would be prudent to reopen and remand this proceeding to an 

Administrative Law Judge, so he or she may consider the Secretary’s argument in light of the 

record. 

Having reviewed ACI’s request and the Secretary’s response, in the interest of justice, we 

hereby reopen this matter and remand it to the Chief Administrative Law Judge for further 

proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 

2700. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 940
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2536 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

May 2, 2016 

SECRETARY OF LABOR, MSHA INTERFERENCE PROCEEDING 

on behalf of ERIC GREATHOUSE, 

Complainant, Docket No. WEVA 2015-904-D 

MORG-CD-2015-07 

v. 

MONONGALIA COUNTY COAL CO., Monongalia County Mine 

CONSOLIDATION COAL COMPANY, Mine ID: 46-01968 

MURRAY AMERICAN ENERGY, INC., and 

MURRAY ENERGY CORPORATION, 

Respondents. 

SECRETARY OF LABOR, MSHA, INTERFERENCE PROCEEDING 

on behalf of RICKY BAKER, 

Complainant, Docket No. WEVA 2015-905-D 

MORG-CD-2015-08 

v. 

OHIO COUNTY COAL CO., Ohio County Mine 

CONSOLIDATION COAL CO., Mine ID: 46-01436 

MURRAY AMERICAN ENERGY, INC., and 

MURRAY ENERGY CORPORATION, 

Respondents. 

SECRETARY OF LABOR, MSHA, INTERFERENCE PROCEEDING 

on behalf of LEVI ALLEN, 

Complainant, Docket No. WEVA 2015-906-D 

MORG-CD-2015-09 

v. 

THE MARSHALL COUNTY COAL, CO., Marshall County Mine 

MCELROY COAL COMPANY, Mine ID: 46-01437 

MURRAY AMERICAN ENERGY INC., and 

MURRAY ENERGY CORPORATION, 

Respondents. 

SECRETARY OF LABOR, MSHA, INTERFERENCE PROCEEDING 

on behalf of MICHAEL PAYTON, 

Complainant, Docket No. WEVA 2015-907-D 

MORG-CD-2015-10 

v. 

38 FMSHRC Page 941
MARION COUNTY COAL CO., Marion County Mine 

CONSOLIDATION COAL CO., Mine ID: 46-01433 

MURRAY AMERICAN ENERGY INC., and 

MURRAY ENERGY CORPORATION, 

Respondents. 

SECRETARY OF LABOR, MSHA, INTERFERENCE PROCEEDING 

on behalf of ANN MARTIN, 

Complainant, Docket No. WEVA 2015-908-D 

MORG-CD-2015-11 

v. 

HARRISON COUNTY COAL CO., Harrison County Mine 

CONSOLIDATION COAL CO., Mine ID:46-01318 

MURRAY AMERICAN ENERGY INC., and 

MURRAY ENERGY CORPORATION, 

Respondents. 

SECRETARY OF LABOR, MSHA, INTERFERENCE PROCEEDING 

on behalf of MARK RICHEY, 

Complainant, Docket No. LAKE 2015-616-D 

MORG-CD-2015-12 

v. 

THE OHIO VALLEY COAL CO., and Powhatan No. 6 Mine 

MURRAY ENERGY CORPORATION, Mine ID: 33-01159 

Respondents. 

DECISION AND ORDER 

Before: Judge Miller 

These cases are before me upon a complaint of interference filed by the Secretary of 

Labor (“the Secretary”) on behalf of six miner representatives pursuant to the interference 

provisions of Section 105(c) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 

30 U.S.C. § 815(c). On January 20, 2015, Complainants filed complaints with the Mine Safety 

and Health Administration (MSHA) alleging that bonus plans implemented at Respondents’ 

mines violated Section 105(c) of the Mine Act. On July 31, 2015, the Secretary filed this action 

on behalf of Complainants. The parties presented testimony and documentary evidence at a 

hearing on March 2, 2016, in Pittsburgh, Pennsylvania. For the reasons that follow, I conclude 

that Respondents interfered with the rights of Complainants under the Mine Act in violation of 

Section 105(c). 

At hearing, the parties presented a number of stipulations, as well as a number of 

stipulated exhibits. The stipulations are a part of the record as Exhibit A, and the stipulated 

exhibits are entered into the record as numbered. Based upon the stipulations, there is no issue as 

to the jurisdiction of MSHA at the six mines named, and no issues of jurisdiction as to the 

38 FMSHRC Page 942
Commission. Jt. Stips. ¶ 1. Complainants were all employed at the mines or serving as 

representatives of miners at the time the matters arose. Jt. Stips. ¶¶ 15-26. Because the bonus 

plans at issue at the six mines and the complaints regarding them are nearly identical, I have 

addressed them together. The Secretary has proposed a civil penalty of $20,000 as to each of the 

six mines. 

I. FINDINGS OF FACT

This case involves six mines located in West Virginia and Ohio: the Monongalia County 

Mine (previously known as Blacksville No. 2 Mine), the Ohio County Mine (previously known 

as Shoemaker Mine), the Marshall County Mine (previously known as McElroy Mine), the 

Marion County Mine (previously known as Loveridge Mine), the Harrison County Mine 

(previously known as Robinson Run No. 95 Mine), and the Powhatan No. 6 Mine. Jt. Stips. ¶¶ 5, 

6, 8-13. The mines are owned and operated by wholly-owned subsidiaries of Murray Energy 

Corporation (“Murray Energy”). Jt. Stips. ¶¶ 2-13. The subsidiaries as well as Murray Energy are 

named as respondents. The six complainants are members of the UMWA and representatives of 

miners at the mines who work or have worked as miners at the named mines. Jt. Stips. ¶¶ 15-26. 

In January 2015, Respondents implemented the “Safety and Production Bonus Plans” at 

issue at six underground coal mines under their control. Jt. Stips. ¶¶ 36, 39, 43, 46, 50, 54. 

Hourly employees were notified of the bonus plans in letters distributed in November 2014 and 

January 2015. Jt. Stips. ¶¶ 28, 30. The plans offer miners money bonuses if their assigned section 

produces a certain amount of coal during their shift. Jt. Exs. 20-25. The bonus amounts range 

from $50 to $250 per shift depending on how much coal is produced. Id. Miners who do not 

work in a coal production area (“outby employees”) are eligible for bonuses at a lower rate—ten 

percent of the bonuses earned by the production crews on their shift. Id. 

The bonus plans also provide that certain circumstances disqualify miners from receiving 

a bonus, notwithstanding sufficient coal production. First, to be eligible for a bonus, a section 

crew member must be “physically present the entire shift, including time spent switching at the 

face, during the shift the bonus share is earned.” Jt. Exs. 20-25. Employees who are not on 

production crews must also be present for the entire shift to share in the bonus. Id. Second, if a 

“lost time accident” occurs that incapacitates a crew member, the entire crew is disqualified from 

receiving the bonus for that shift. Id. Finally, a crew working on a section may be disqualified if 

an MSHA inspector issues a certain type of citation or order to that section. If an MSHA 

inspector issues a citation designated as significant and substantial (“S&S”), all crews that 

worked on the cited section are disqualified from earning a bonus for that day. Id. If a 

withdrawal order under Section 104(d) or 104(b) of the Mine Act is issued and is attributable to 

the crews working on the section, all the crews on that section are disqualified from receiving the 

bonus for seven consecutive days. Id. 

The bonus and safety plans at issue were designed by Senior Vice President of Murray 

Energy Corporation John Forelli. Jt. Stips. ¶ 31; Tr. at 265. Forelli based the plans in part on 

plans that were already in place for supervisors at the mine. Jt. Stips. ¶ 33; Tr. at 307-08, 310. 

Forelli testified that the company’s motivation in implementing the plans was to improve 

production and safety at the mines. Tr. at 265-66. The bonus amounts were intended to be high 

38 FMSHRC Page 943
enough to motivate workers but not so high that miners would risk their safety. Tr. at 277-79; 

315. Forelli also believed that awarding the bonus on a per-shift basis would minimize the

chance of miners taking safety risks: a miner faced with addressing an unsafe condition would

know that even if he lost the bonus that day, he would have an opportunity to earn it the next

day. Tr. at 277-78.

Before the plans were implemented, Forelli and other managers held meetings with 

members of the mine committee of the local union at each mine. Tr. at 147-50, 287. A number of 

alterations were made to the original plans as a result of these meetings. For example, in 

response to complaints from the union that the lost-time injury disqualification would discourage 

reporting of injuries, Forelli added the phrase “that incapacitates the crew member during the 

shift” to clarify that the disqualification would depend on when the injury was incurred rather 

than when it was reported. Tr. at 271, 288-89. To the provision disqualifying miners for 104(d) 

and 104(b) orders, Forelli added the phrase “attributable to the crews working on that section” so 

that crews would not be disqualified for violations that were beyond their control. Tr. at 270; Jt. 

Exs. 20-25. A term providing for an additional inspection by the union safety committee each 

month was added to the plans at the Ohio County and Powhatan No. 6 mines. Tr. at 268-69; Jt. 

Exs. 21, 25. 

Forelli testified that once the plans were implemented, he reviewed production data from 

the mines to see whether production had improved, but he did not reach a definite conclusion. Tr. 

at 297-301. Forelli also reviewed daily and quarterly safety reports from the mines and did not 

see a discernible difference in safety after the plans were implemented. Tr. at 293-96. 

The Secretary presented witnesses from the mines who testified about the effects the 

bonus plans had on conditions at the mines.1

 Several witnesses testified that they observed that 

miners were less willing to serve as walk-around representatives after the bonus plans were 

implemented. Tr. at 46-47, 117-18, 152. The witnesses agreed that a person who served as a 

walk-around representative on a shift would be counted as an outby employee for purposes of the 

bonus and so would earn ten percent of the bonuses earned by the production crews on his shift. 

1

 Respondents argue that the Secretary failed to present any witness testimony regarding 

the effects of the plans at three of the mines. Resp. Br. at 28-29. At hearing, I did not allow the 

Secretary to put on several witnesses whose testimony I believed would be cumulative. I find 

that, in view of the similarity of the plans, the testimony of the witnesses at hearing was 

probative as to the effects of the plans at all of the mines, and the testimony of additional 

witnesses was not necessary. This manner of accepting testimony of a representative number of 

employees has been approved for many years in other employment related actions. Courts 

overwhelmingly recognize the propriety of using representative testimony to establish a pattern 

of violations that include similarly situated employees who did not testify. See, e.g., Garcia v. 

Tyson Foods, Inc., 770 F.3d 1300, 1307 (10th Cir.2014), Reich v. S. New England Telecomm. 

Corp., 121 F.3d 58, 67 (2d Cir.1997) (“[I]t is well-established that the Secretary may present the 

testimony of a representative sample of employees as part of his proof of the prima facie case 

under the FLSA.”); Reich v. Gateway Press, Inc., 13 F.3d 685, 701 (3d Cir.1994) (“Courts 

commonly allow representative employees to prove violations with respect to all employees.”); 

Brock v. Tony & Susan Alamo Found., 842 F.2d 1018, 1019–20 (8th Cir.1988) 

38 FMSHRC Page 944
Tr. at 46, 178, 243, 283. Ann Martin, chairman of the Safety Committee at the Harrison County 

Mine, testified that a young miner who had frequently volunteered to be a walk-around 

representative declined after the bonus plan was implemented because he did not want to miss 

out on earning the bonus. Tr. at 152. Martin observed that miners became more willing to walk 

with inspectors when the bonus plan was discontinued at her mine. Tr. at 156, 166. Timothy 

McCoy, a member of a production crew at the Marshall County Coal Mine, testified that his 

coworkers discouraged him from serving as a walk-around representative because a less 

experienced person would be sent to replace him, affecting the crew’s ability to achieve a bonus. 

Tr. at 113-14. 

Witnesses for the Secretary also testified about the plan’s impact on miners’ willingness 

to report injuries. The miners understood the plans to disqualify everyone on the crew from 

receiving a bonus for the day if anyone on the crew was involved in a “lost time accident” during 

the shift. Tr. at 53, 159-60; Jt. Exs. 20-25. Several witnesses had observed or heard about 

instances of miners deciding not to report injuries they sustained on the job because they did not 

want to disqualify themselves and their coworkers from receiving the bonus. Tr. at 54-55, 112. 

Levi Allen, UMWA local president at the Marshall County Coal Mine, described an incident in 

which a miner sustained a shoulder injury during his shift but decided not to report it because he 

“didn’t want to take money off of everybody.” Tr. at 226. Allen testified that after the bonus plan 

was implemented at his mine, he got three times as many calls about miners leaving the mine 

without reporting an accident. Tr. at 229. At the Ohio County and Powhatan No. 6 mines, the 

plan included a term providing that the Mine Safety Committee and Mine Safety Director would 

jointly review any accident to ensure that it was correctly documented. Jt. Exs. 21, 25. However, 

the chairman of the safety committee at Powhatan No. 6 testified that he had never been asked to 

review any accident reports. Tr. at 327-28. Thus, I find that the extra provision did not lessen the 

effect of the bonus plans on injury reporting at those two mines. 

The witnesses also testified that they believed miners were less willing to report 

dangerous conditions in the mine while the bonus plans were in effect. Tr. at 48, 50, 112, 158, 

213. They attributed this in part to the provisions of the plan disqualifying miners from the

bonus for citations and orders received inby the tailpiece. Tr. at 48, 112, 162. The witnesses

explained that even if MSHA did not issue a disqualifying citation, reporting a dangerous

condition to management or requesting an inspection took time away from production and so

would lessen the crew’s chance of earning a bonus that day. Tr. at 50, 251. McCoy described an

incident in which a miner expressed that he was unwilling to report a safety hazard because

MSHA would come and the crew would lose the bonus the next day. Tr. at 141-42. Martin

testified that in her capacity as chairman of the local union safety committee, she received fewer

reports from miners about safety hazards while the plans were in effect. Tr. at 158, 166. As with

the injury disqualification provision, the witnesses believed that peer pressure exacerbated the

effect of the plans on safety reporting. Tr. at 50-51, 114, 163. Martin emphasized the importance

the miners placed on earning a good income, which meant that the bonuses had a substantial

effect on them. Tr. at 163.

At all of the mines except for Harrison County, the bonus plan contained a provision 

stating that all “production and safety standards, including roof control, ventilation, and rock 

dusting, shall be maintained on all shifts where the bonus thresholds are reached. Any major 

38 FMSHRC Page 945
deviation will disqualify a crew from receiving the bonus award.” Jt. Exs. 20-23, 25. 

Presumably, this provision was meant to encourage compliance with safety standards even where 

MSHA was not involved. Allen described an incident at the Marshall County Coal Mine in 

which a crew had failed to rock dust as required but had attained the level of production to 

qualify for a bonus. Tr. at 217-18. The next crew reported the rock dusting problem to 

management, and the first crew lost their bonus under the “standard deviation” provision. Id. 

However, the second crew also ended up not achieving a bonus because of the time it took them 

to report the problem to management and correct the problem. Tr. at 219-20. Allen thus 

explained that in most cases, a crew would not bother to report the deviation and so the provision 

would have little effect. Tr. at 220. 

Finally, the witnesses for the Secretary testified that the plans had resulted in miners 

taking shortcuts related to safety, particularly in the areas of rock dusting, roof bolting, 

equipment checks, and ventilation. Tr. at 51-52, 105-07, 153, 223. They explained that safetyrelated maintenance tasks and fixing hazards slowed down production and so could prevent the 

crew from receiving the biggest bonus. Tr. at 49, 107-08, 159, 218. Not only the bonus itself but 

also peer pressure motivated miners to move quickly and skip safety steps. Tr. at 50, 106-07. 

The local union membership at the Powhatan No. 6 and Harrison County mines voted 

against adopting the bonus plans, and as a result, the plans are no longer in effect at those mines. 

Jt. Stips. ¶¶ 52, 53, 56, 57. The plan was discontinued as a result of arbitration at the Marion 

County Mine. Jt. Stips. ¶¶ 48, 49. The plans remain in effect at the Monongalia, Ohio County, 

and Marshall County mines. Jt. Stips. ¶¶ 38, 42, 45. 

II. ANALYSIS

The prohibition against interference is established in Section 105(c)(1) of the Mine Act, 

which provides: 

No person shall discharge or in any manner discriminate against or 

cause to be discharged or cause discrimination against or otherwise 

interfere with the exercise of the statutory rights of any miner, 

representative of miners or applicant for employment in any coal 

or other mine subject to this Act because such miner, 

representative of miners or applicant for employment has filed or 

made a complaint under or related to this Act, including a 

complaint notifying the operator or the operator’s agent, or the 

representative of the miners at the coal or other mine of an alleged 

danger or safety or health violation in a coal or other mine ... or 

because of the exercise by such miner, representative of miners or 

applicant for employment on behalf of himself or others of any 

statutory right afforded by this Act. 

30 U.S.C. § 815(c)(1) (emphasis added). Section 105(c)(2) permits a miner or his representative 

to file a discrimination complaint with the Secretary if he believes “that he has been discharged, 

38 FMSHRC Page 946
interfered with, or otherwise discriminated against” in violation of the Mine Act. 30 U.S.C. § 

815(c)(2). 

A majority of the Commission has recognized that “the Mine Act establishes a cause of 

action for unjustified interference with the exercise of protected rights which is separate from the 

more usual intentional discrimination claims evaluated under the Pasula-Robinette framework.” 

UMWA on behalf of Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2103 n.22 (Aug. 

2014) (Young & Cohen, Comm’rs), vacated, 620 Fed. Appx. 127 (3d Cir. 2015); id. at 2105-07 

(Jordan & Nakamura, Comm’rs). To make out a claim of discrimination under the PasulaRobinette framework, an employee must prove that he engaged in protected activity and suffered 

an adverse employment action motivated at least in part by the protected activity. Turner v. Nat’l 

Cement Co. of Cal., 33 FMSHRC 1059, 1064 (May 2011); Sec’y of Labor on behalf of Pasula v. 

Consol. Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds sub nom. Consol. 

Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). In contrast, in interference cases, 

the Commission has accepted claims where the complainant did not actually engage in protected 

activity or where the conduct complained of was verbal harassment rather than a classic adverse 

employment action. See Sec’y of Labor on behalf of Gray v. N. Star Mining, Inc., 27 FMSHRC 1 

(Jan. 2005); Moses v. Whitley Dev. Corp., 4 FMSHRC 1475 (Aug. 1982), aff’d, 770 F.2d 168 

(6th Cir. 1985). In these cases, the Commission has focused not on the employer’s motive, but 

rather on whether the conduct would “chill the exercise of protected rights,” either by the directly 

affected miner or by others at the mine. Gray, 27 FMSHRC at 8; Moses, 4 FMSHRC at 1478-79. 

Although the Commission as a whole has not outlined a framework for analyzing 

interference claims, two Commissioners recently proposed a framework that has since been 

adopted by several of the Commission’s Administrative Law Judges. Franks, 36 FMSHRC at 

2108 (Jordan & Nakamura, Comm’rs); see Sec’y of Labor on behalf of McGary v. Marshall Cty. 

Coal Co., 37 FMSHRC 2597, 2603-04 (Nov. 2015) (ALJ); McGlothlin v. Dominion Coal Corp., 

37 FMSHRC 1256, 1264-65 (June 2015) (ALJ); Pendley v. Highland Mining Co., 37 FMSHRC 

301, 309-11 (Feb. 2015) (ALJ). Under the Franks test, an interference violation occurs if: 

(1) a person’s action can be reasonably viewed, from the

perspective of members of the protected class and under the

totality of the circumstances, as tending to interfere with the

exercise of protected rights, and

(2) the person fails to justify the action with a legitimate and

substantial reason whose importance outweighs the harm caused to

the exercise of protected rights.

Franks, 36 FMSHRC at 2108. This approach is consistent with Commission precedent 

addressing interference with employee rights, in which the Commission has focused on the effect 

of the employer’s conduct on employees’ exercise of protected rights rather than on the motive 

behind the employer’s conduct. See Gray, 27 FMSHRC at 9 (analyzing whether employer’s 

statements were coercive based on reasonable inferences of the miner); Moses, 4 FMSHRC at 

38 FMSHRC Page 947
1479 (holding that actions constituted interference because they “could logically result in a fear 

of reprisal and a reluctance to exercise the right in the future”). 

The framework proposed in Franks is similar to that used by the National Labor 

Relations Board (NLRB) in cases involving the interference provision of the National Labor 

Relations Act (NLRA). Section 8(a)(1) of the NLRA provides that “It shall be an unfair labor 

practice for an employer to interfere with, restrain, or coerce employees in the exercise of the 

rights guaranteed” in Section 7 of the Act. 29 U.S.C. § 158(a)(1). In evaluating Section 8(a)(1) 

claims, “the Board first examines whether the employer’s conduct reasonably tended to interfere 

with Section 7 rights. If so, the burden is on the employer to demonstrate a legitimate and 

substantial business justification for its conduct.” Cal. Newspapers P’ship, 343 N.L.R.B. 564, 

565 (2004). The analysis “does not turn on the employer’s motive or on whether the coercion 

succeeded or failed.” Am. Freightways Co., Inc., 124 N.L.R.B. 146, 147 (1959); see also Medeco 

Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 747 (4th Cir. 1998). Rather, the question is “whether the 

employer engaged in conduct which, it may reasonably be said, tends to interfere with the free 

exercise of employee rights under the [NLRA].” American Freightways, 124 N.L.R.B. at 147. If 

the employer produces a “legitimate and substantial business justification” for its action, the 

Board must then “strike the proper balance between the asserted business justifications and the 

invasion of employee rights in light of the [NLRA] and its policy.” NLRB v. Fleetwood Trailer 

Co., Inc., 389 U.S. 375, 378 (1967); Cal. Newspapers P’ship, 343 N.L.R.B. at 565. 

Respondents urge the Court to instead apply the test for interference used in a 2001 ALJ 

decision, Secretary of Labor on behalf of Feagins v. Decker Coal Co., 23 FMSHRC 47 (Jan. 

2001) (ALJ). Resp. Br. at 9. Under the Decker test, the complainant must prove either that “the 

challenged action was taken with the intent to damage or deny rights assured under the Act” or 

that there is a causal relationship—that is, “exercise of a protected right[] is the 

acknowledged cause of damage to the person attempting to exercise the protected right.” 23 

FMSHRC at 50. This test is rooted in the statutory language of Section 105(c), which prohibits 

“interfere[nce] with the exercise of the statutory rights of any miner ... because of the exercise 

by such miner ... of any statutory right afforded by” the Act. 30 U.S.C. § 815(c)(1) (emphasis 

added). However, the Commission in Gray rejected a “literal interpretation” of Section 

105(c)(1), which “might require the actual or attempted exercise of a right before the protection 

of [that section] comes into play.” 4 FMSHRC at 1480. Instead, the Commission has focused on 

the likely effect of an operator’s actions on the future exercise of rights by miners. See Gray, 27 

FMSHRC at 9; Moses, 4 FMSHRC at 1478-79. Additionally, the Commission suggested in Gray

that intent is not a necessary element of an interference claim, finding that the judge erred by 

focusing primarily on the intent behind a supervisor’s statements to a miner. 27 FMSHRC at 10. 

The Commission’s approach is consistent with NLRB cases involving interference, 

which do not require proof that the employee actually attempted to exercise a protected right. 

See, e.g., Medeco, 142 F.3d at 745 (“An employer’s coercive action affects protected rights 

whenever it can have a deterrent effect on protected activity. This is true even if an employee has 

yet to exercise a right protected by the Act.”); Jeannette Corp. v. NLRB, 532 F.2d 916, 918 (3d 

Cir. 1976) (holding work rule invalid under Section 8(a)(1) because of its “tendency to inhibit” 

protected activity without deciding whether protected activity in fact occurred). Further, it is well 

established under NLRA case law that unlawful motive is not a necessary element of an 

38 FMSHRC Page 948
interference claim. See NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 22-23 (1964); Am. 

Freightways Co., 124 N.L.R.B. 146, 147 (1959). I find that the test used in Decker Coal does not 

accurately reflect the Commission’s current approach to interference, and thus reject the 

Respondent’s argument to apply it here. 

a. Interference with Protected Rights

The Commission has recognized conduct as tending to interfere with the exercise of 

protected rights on a number of occasions. In Moses v. Whitley Development Corp., the 

Commission found that coercive interrogation and harassment of a miner after an accident report 

was made at the mine constituted interference because it could chill the exercise of protected 

rights by miners. 4 FMSHRC 1475, 1478-79 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985). 

Two Commissioners came to a similar conclusion in Franks, where two miners were 

interrogated and suspended after a safety complaint was made at the mine. UMWA on behalf of 

Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2104 (Aug. 2014) (Jordan & Nakamura, 

Comm’rs) (finding that the actions could have a chilling effect on miners’ willingness to make 

complaints in the future), vacated, 620 Fed. Appx. 127 (3d Cir. 2015). Finally, in Gray, the 

Commission determined that potentially threatening comments made by a supervisor about an 

employee’s participation in a grand jury proceeding could constitute interference if the judge 

found that the comments were coercive in light of the totality of circumstances. Sec’y of Labor 

on behalf of Gray v. N. Star Mining, Inc., 27 FMSHRC 1, 10-11 (Jan. 2005). 

A number of ALJ decisions have also addressed the issue of interference. These cases 

have primarily involved threatening or harassing behaviors towards miners in relation to safety 

complaints. See e.g. Pendley v. Highland Mining Co., 37 FMSHRC 301 (Feb. 2015) (ALJ) 

(finding that interference occurred when coworker verbally and physically harassed miners’ 

representative while he exercised his walk-around rights); Shemwell v. Armstrong Coal Co., 36 

FMSHRC 2352 (Aug. 2014) (ALJ) (finding that interference occurred where supervisor told 

miner it was futile to make safety complaints and encouraged other employees to build a record 

against the miner after he made a complaint); Sec’y of Labor on behalf of Clapp v. Cordero 

Mining, LLC, 33 FMSHRC 2977 (Dec. 2011) (ALJ), aff’d, 699 F.3d 1232 (10th Cir. 2012) 

(noting that threatening comments made to an employee after she made a safety complaint were 

interference, but resolving case under discrimination provision because she was actually 

discharged). The issue of a work rule or policy that interferes with employee rights was 

addressed in Secretary of Labor on behalf of McGary v. Marshall County Coal Co., 37 

FMSHRC 2597 (Nov. 2015) (ALJ). In that case, the ALJ found that a mine operator interfered 

with employee rights to make complaints to MSHA when the operator required employees to 

report all safety complaints to mine management and announced the policy in a speech by the 

CEO threatening closure of the mine. Id. at 2606-07. 

In addition to these cases, the Commission has recognized that “case law interpreting the 

National Labor Relations Act, upon which the Mine Act’s antidiscrimination provisions are 

modeled, provides guidance on resolution of discrimination issues.” Sec’y of Labor on behalf of 

Johnson v. Jim Walter Res., 18 FMSHRC 552, 558 n.11 (1996); Delisio v. Mathies Coal Co., 12 

FMSHRC 2535, 2542-43 (Dec. 1990); see also Gray, 27 FMSHRC at 9-10 (reviewing NLRB 

precedent in discussion of interference provision). Courts interpreting the NLRA have 

38 FMSHRC Page 949
determined that conferral of a benefit on employees can constitute interference under Section 

8(a)(1) if the benefit is withheld from employees who exercise a protected right. For instance, in 

NLRB v. Rubatex Corp., the Fourth Circuit determined that a company interfered with

employees’ right to strike when it paid a $100 bonus to employees who worked through a strike. 

601 F.2d 147, 150 (4th Cir. 1979). Similarly, in Lynn-Edwards Corp., the NLRB held that 

interference occurred when a company included a provision in its retirement plan suggesting that 

coverage would be withdrawn if employees unionized. 290 N.L.R.B. 202, 205 (1988); see also 

Torbitt & Castleman, Inc. v. NLRB, 123 F.3d 899, 907 (6th Cir. 1997) (holding that solicitation 

of grievances during union campaign violates Section 8(a)(1) if employer suggests that 

grievances will only be resolved if employees reject union representation). 

Respondents’ bonus plans promise bonuses ranging from $50 to $250 per shift (or less 

for outby employees) based on the amount of coal produced. Jt. Exs. 20-25. Testimony at 

hearing indicated that the effect of the bonuses is to create pressure on miners to maximize shortterm production at the expense of safety. Because the bonus is based on the amount of coal 

produced by the crew as a whole, each worker feels pressure to work as fast as possible so as not 

to take away from potential bonuses for the other workers. The result is that miners take 

shortcuts that affect safety and result in a denial of the plan benefits to miners who exercise their 

rights under the Mine Act. Several witnesses described seeing areas that were not adequately 

rock dusted because miners were in a hurry, or where additional roof bolts should have been 

installed but were not. Tr. at 51-52, 105-06, 153, 217-18. These safety-related tasks take 

additional time, and miners are therefore reluctant to do them under the bonus plans because they 

are less likely to achieve the production goals. Tr. at 119. 

In addition to creating a climate adverse to safety, the bonus plans affect miners’ 

willingness to exercise specific rights under the Act. The Commission has observed that in 

framing the Mine Act, Congress believed that the “participation [of miners] in the enforcement 

of the Act is essential to the achievement of safe and healthful mines.” Sec’y of Labor on behalf 

of Pasula v. Consol. Coal Co., 2 FMSHRC 2786, 2790 (Oct. 1980), rev’d on other grounds sub 

nom. Consol. Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981). Thus, the Act gives miners the 

right to notify MSHA officials or the operator of unsafe conditions or practices in the mine that 

require attention. See id.; 30 U.S.C. §§ 813(g)(1), 815(c)(1). The Commission has determined 

that miners also have the right to refuse to work in conditions that threaten their health or safety 

as well as to report injuries and accidents to the operator. Pasula, 2 FMSHRC at 2790-93; Swift 

v. Consol. Coal Co., 16 FMSHRC 201, 205 (Feb. 1994). Yet, under the bonus plan, a miner who

refuses to work, along with everyone else on his crew, will not receive the benefit of a bonus.

Finally, the Act provides that when MSHA conducts an inspection of the mine, a representative

of the miners at the mine “shall be given an opportunity to accompany the Secretary or his

authorized representative . . . .” 30 U.S.C. § 813(f). If the representative of miners is an

employee of the operator, the Act guarantees that he “shall suffer no loss of pay during the

period of his participation in the inspection . . . .” Id. The right to accompany an inspector is

frequently referred to as the “walk-around right.” The Secretary alleges that the bonus plans at

issue here interfere with all of these rights. First Amended Comp. at 16-19.

The Secretary’s witnesses at hearing explained that miners are reluctant to report safety 

issues to management or MSHA under the bonus plans because making the report and 

38 FMSHRC Page 950
undergoing an inspection take away from production time. 2 Tr. at 50, 251. Further, the bonus 

plans disqualify a crew working on a section from receiving the bonus if an MSHA inspector 

issues an S&S citation during any shift on that section that day. Jt. Exs. 20-25. If a withdrawal 

order under Section 104(d) or 104(b) is issued to a section and is attributable to the crews 

working on that section, all the crews on that section are disqualified from receiving the bonus 

for seven consecutive days. Id. The effect of these provisions is to penalize miners who make

safety complaints to MSHA, since a complaint to MSHA that results in a violation will prevent 

the miner from receiving the bonus. The provisions also create peer pressure against making 

complaints, since the entire crew loses the bonus if a violation is found. The witnesses described 

instances of miners being unwilling to report violations because of a desire to keep the bonus. Tr. 

at 112, 114, 141, 158. Representatives from the safety committees at the mines reported that 

miners were reporting fewer violations and were less likely to bring up safety concerns when 

asked. Tr. at 158, 166. 

Respondents argue that under the bonus plans, “there is no correlation between reporting 

rights under the Mine Act and the disqualification provisions.” Resp. Br. at 15. They contend 

that “there is absolutely no correlation between the act of reporting and the issuance of a citation 

or order resulting from a hazard in the mine.” Id. But in fact there is an obvious correlation: 

when a miner reports a hazard to MSHA, the hazard is substantially more likely to be discovered 

by an MSHA inspector and thus result in a citation than if the miner were to ignore the hazard 

and wait for someone else to address it. Thus, the miner who reports the violation, along with his 

co-workers, are more likely to be disqualified from the bonus that day. The provision 

disqualifying miners from bonuses for S&S violations is analogous to the situation in the NLRB 

case Rubatex Corp., in which a bonus was offered to employees who worked through a strike. 

601 F.2d at 150. Employees who exercise their statutory right are less likely to receive the bonus, 

and therefore are discouraged from exercising the right. This is interference with a protected 

right under Section 105(c). 

2

 Respondents argue that much of the Secretary’s evidence about the impact of the bonus 

plans on miners was in the form of inadmissible hearsay testimony. Resp. Br. at 18-20. 

Respondents also argue that they did not have the opportunity to cross-examine witnesses when 

information was provided through hearsay. Id. at 19. I reject these arguments for several reasons. 

First, pursuant to the Commission’s Rules of Procedure, hearsay testimony is admissible when 

relevant. 30 C.F.R. § 2700.63. Here, the testimony was based on first-hand conversations and 

observations, and with few exceptions was not only reliable but relevant. Next, much of the 

hearsay testimony to which Respondents objected went to the state of mind of miners with 

regard to the plan, which would in most cases be admissible even under the Federal Rules of 

Evidence. Fed. R. Evid. 803(3); see, e.g., Tr. at 141, 152. Finally, counsel for the respondents put 

on no evidence to refute the hearsay testimony, nor did they put forth a witness who was not 

adversely affected by the bonus plans. The Secretary argues persuasively that admitting hearsay 

testimony serves the Mine Act’s goal of protecting miner informants, which is necessary in an 

interference case where miners may feel intimidated. Sec’y Br. at 28 (citing Revelation Energy, 

LLC, 36 FMSHRC 1581, 1599 (June 2014) (ALJ)). I do not find that the Secretary’s use of 

hearsay evidence was problematic here. 

38 FMSHRC Page 951
The bonus plans provide for different levels of bonuses for miners working on production 

crews at the face and those working outby. Employees working outby receive only ten percent of 

what the production sections on their shift earned. Jt. Exs. 20-25. The miner witnesses testified 

that this provision has affected miners’ willingness to serve as walk-around representatives 

during inspections of the mine. See 30 U.S.C. § 813(f). The witnesses explained that under the 

bonus plan, miners who serve as walk-around representatives are treated as outby employees. Tr. 

at 46, 178, 243, 283. Union representatives from the mines testified that they had difficulty 

finding miners to walk with inspectors after the plans were implemented because the miners did 

not want to miss out on the larger bonus. Tr. at 46-47, 152. Although a miner who typically 

works outby would earn the same bonus if he walked with an inspector, a miner who typically 

works in the production area could see a substantial difference in pay. Section 103(f) specifically 

guarantees that a miner serving as a walk-around representative “shall suffer no loss of pay 

during the period of his participation in the inspection.” 30 U.S.C. § 813(f). Respondents argue 

that there would be no loss of pay if a production crew member served as a representative, since 

there is no guarantee that production crew members will earn a bonus every shift. Resp. Br. at 

16. In some circumstances, the bonus earned by a miner on walk-around could even be higher

than what he would have earned working on the production crew. Id. But I find that this would

make little if any difference to a miner considering whether or not to act as a walk-around

representative. There is no question that some miners are discouraged from serving as walkaround representatives because they would miss out on the chance to get a larger bonus.

Finally, the bonus plans provide that if a “lost time accident” occurs that incapacitates a 

crew member, the entire crew is disqualified from receiving the bonus for that shift. Jt. Exs. 20-

25. Several witnesses had observed or heard about miners deciding not to report injuries they

sustained on the job that they otherwise would have reported, instead choosing to “rough it out”

so they and their coworkers would not lose the bonus for the shift. Tr. at 54-55, 112. A miner’s

right to report injuries to the operator is essential to the “free flow of information” about the

conditions at a mine, and the bonus plans have undermined that arrangement at these mines. See

Swift, 16 FMSHRC at 205. A miner who incurs a “lost time” injury must choose between

exercising his right to report the injury and getting a bonus. This is an impermissible burden on

his right to report.

Respondents place much emphasis in their brief on the Commission’s decision in Swift v. 

Consolidation Coal Co., 16 FMSHRC 201 (1994). In that case, the Secretary argued that a 

program that penalized miners who sustained injuries on the job interfered with miners’ rights to 

report injuries. Id. at 202-03. The Commission found that the program did not on its face violate 

Section 105(c). Id. at 208. However, the Commission noted that the case did not involve any 

evidence of actual negative effects on miners’ exercise of their rights. Id. at 207 n.6. In this case, 

by contrast, the Secretary has presented ample evidence of actual interference. Additionally, 

Swift was decided as a 105(c) discrimination case rather than an interference case, and thus is 

distinguishable from the case at hand. See id. at 205-06. 

The evidence presented at hearing demonstrates that the bonus plans discourage miners 

from exercising their rights to make safety complaints, report injuries, and serve as walk-around 

representatives. However, Respondents argue that a miner who decides not to report an injury or 

safety violation or who otherwise disregards safety is not acting “reasonably,” and therefore any 

38 FMSHRC Page 952
effect the plans have on miners’ exercise of their rights should not be considered interference. 

Resp. Br. at 21-23. Rather, Respondents argue that the “reasonable miners” relevant to the case 

are the Secretary’s witnesses at hearing, who testified that they were not affected by the financial 

incentives in the bonus plans or by peer pressure to disregard their safety rights. Id. at 23. I do 

not find merit to this argument. First, the miners who testified gave a number of examples of 

how the plan interfered with miners, and even if some of those who testified were not swayed by 

the bonus, they observed and talked to others who were. The appropriate inquiry under the 

Franks test is whether the actions of the operator in instituting the plan could reasonably be 

viewed, from the perspective of members of the protected class and under the totality of the 

circumstances, as tending to interfere with the rights of the miners. The Secretary presented 

sufficient evidence to demonstrate that a reasonable miner would in fact be swayed by the 

promise of additional income to sidestep some safety precautions. The Commission has clearly 

expressed that “reasonable miners” can be dissuaded from exercising their rights in some 

instances of extreme pressure. See Gray, 27 FMSHRC at 9-10; Moses, 4 FMSHRC at 1478-79 

(“Such actions may not only chill the exercise of protected rights by the directly affected miners, 

but may also cause other miners, who wish to avoid similar treatment, to refrain from asserting 

their rights.”). 

While the Secretary has the burden of proof in this case, the Respondents had the 

opportunity to present evidence on any issue raised by the Secretary, including the effect the plan 

had on miners. Respondents raise issues about how reasonable miners reacted to the plan, yet 

Respondents called no witnesses and provided no other evidence to the contrary. The Secretary, 

on the other hand, has demonstrated the strong effect of the bonus plans on miners’ behavior. 

While the bonus amounts are not extraordinarily large, the amounts for production crewmembers 

are large enough to matter to most miners. Tr. at 163. The witnesses at hearing also emphasized 

the intensity of the peer pressure fostered by the plans. The bonus plans make it so that a miner 

must decide whether it is worth taking money out of his own pocket and those of his entire 

section every time he considers reporting an unsafe condition or an injury. This impact on a 

miner’s decision to exercise his rights constitutes a coercive pressure analogous to the 

interrogation and harassment discussed by the Commission in Moses and Gray. A reasonable 

miner would be dissuaded from exercising his rights in this situation. Therefore, the bonus plans 

interfere with the protected rights of miners. 

b. Legitimate and Substantial Reason

Under the Franks framework, if it is determined that a mine operator’s conduct interfered 

with the protected rights of miners, the inquiry proceeds to whether the operator had a 

“legitimate and substantial reason” for the action “whose importance outweighs the harm caused 

to the exercise of protected rights.” UMWA on behalf of Franks v. Emerald Coal Res., LP, 36 

FMSHRC 2088, 2108 (Aug. 2014) (Jordan & Nakamura, Comm’rs), vacated, 620 Fed. Appx. 

127 (3d Cir. 2015). Franks involved the coercive interrogation and ultimate suspension of two 

miners after a safety complaint was made at the mine. Id. at 2113-16. The operator justified its 

actions by arguing that it had a responsibility to investigate safety complaints at the mine. Id. at 

2116. While the Commissioners agreed that this was an “important interest,” they noted that the 

operator could have obtained the information it sought through other means, particularly through 

speaking with the union safety committeeman. Id. at 2117. The operator’s interest therefore did 

38 FMSHRC Page 953
not outweigh the potentially long-term negative consequence of discouraging miners from 

making safety complaints. Id. at 2117. 

In NLRB cases, courts typically take a similar approach of requiring that the employer’s 

conduct be calibrated so as to minimize the effect on employee rights. See, e.g., Hyundai Am. 

Shipping Agency, Inc. v. NLRB, 805 F.3d 309, 314 (D.C. Cir. 2015) (blanket confidentiality rule 

on all matters under investigation by employer was overbroad); Consol. Diesel Co. v. NLRB, 263 

F.3d 345, 353-54 (4th Cir. 2001) (investigation of employees for harassment after they discussed

union with coworkers not justified by interest in maintaining harmonious workplace because

effect on rights too great); Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 747 (4th Cir. 1998)

(confidentiality term in contract with employee that interfered with his right to discuss conditions

of employment with coworkers not justified by interest in preventing misinformation among

employees, since providing accurate information would have served the same purpose);

Jeannette Corp. v. NLRB, 532 F.2d 916, 919 (3d Cir. 1976) (rule prohibiting discussion of wages

not justified by desire to keep employees working during work hours, since it applied all the

time). Courts are more likely to find an employer’s substantial business justification to be

persuasive when the employer’s interest is important and the impact on employee rights is

minimal. See, e.g., Desert Palace, Inc., 336 N.L.R.B. 271, 272 (2011) (confidentiality policy

regarding an investigation of drug activity at workplace justified as means of protecting

witnesses and preserving evidence); Cal. Newspapers P’ship, 343 N.L.R.B. 564, 565-66 (2004)

(editors who informally reprimanded reporter for speaking to city council about union had

legitimate interest in protecting newspaper from appearance of conflict of interest, which

outweighed impact on employee). Tenuous or speculative benefits are insufficient to justify

interference. See, e.g., Nat’l Steel & Shipbuilding Co. v. NLRB, 156 F.3d 1268, 1271-72 (D.C.

Cir. 1998) (employer’s videotape surveillance not justified where it provided minimal additional

security and employer had little reason to suspect misconduct would occur); Cal. Acrylic Indus.,

Inc. v. NLRB, 150 F.3d 1095, 1100 (9th Cir. 1998) (anticipation of violence did not justify

surveillance where employer showed no basis for its concern).

Respondents argue that their reason for implementing the bonus plans was to improve 

production and safety at the mines. Resp. Br. at 24; Tr. at 266. Senior Vice President John Forelli 

testified that he gathered data on production at the mines after the plans were implemented to see 

if it had improved. Tr. at 297. He was unable to reach a definite conclusion as to whether the 

plans were effective, in part because he did not have data from before the plans were 

implemented. Tr. at 297-301. Murray also had a system for reviewing safety data that pre-dated 

the bonus plans. Tr. at 306. Forelli personally compared safety data from before and after the 

bonus plans were implemented to see if the plans had affected safety, but did not observe any 

clear patterns. Tr. at 294-95. 

A mine operator certainly has a right to implement programs to assure that miners are 

producing at the best rate possible. However, because I have found that the plans at issue 

interfere with safety and the rights of miners, they must be reviewed with a more careful eye. 

Respondents credibly assert that their motivation in implementing the plans was to increase 

production. Respondents also claim that the bonus plans were tailored so as not to interfere with 

any rights under the Mine Act. Resp. Br. at 23. The bonuses are of a moderate size and are 

renewed each shift, which Forelli believed would ensure that miners were not tempted to bypass 

safety measures. Forelli met with union representatives before implementing the bonus plans and 

38 FMSHRC Page 954
attempted to address some of their concerns about safety. Respondents also argue that the 

provisions disqualifying miners from earning the bonus for safety violations and injuries were 

intended to encourage safety. Resp. Br. at 26. However, the company is unable to show that the 

plans have actually been effective at improving or maintaining safety at the mines. Even more 

significantly, the company has been unable to establish that the plans actually resulted in 

increased production at any of the mines. In contrast, the harm to miners’ rights is evident. 

Miners at these mines are discouraged through peer pressure and personal financial incentives 

from making safety complaints, reporting injuries, and serving as walk-around representatives. 

These rights are essential to safety at the mines. For the Mine Act to function as Congress 

intended, miners must be able to freely participate in its enforcement scheme. See S. Rep. No. 

95-181, at 30 (1977). The uncertain benefits that Respondents put forth do not outweigh these

harms. Accordingly, I find that the bonus plans violate Section 105(c) of the Mine Act.

III. PENALTY AND REMEDIES

Section 105(c)(2) authorizes the Commission to require a person who has committed a 

violation of section 105(c)(1) “to take such affirmative action to abate the violation as the 

Commission deems appropriate.” 30 U.S.C. § 815(c)(2). The Secretary asks the Court to order 

the mines to rescind the bonus plans, post a notice at the mines for six months reflecting the 

court-ordered rescission, and mail such notice to the homes of all miners and all representatives 

of miners at the mines. In addition, the Secretary asks the Court to assess a civil penalty of 

$20,000 for each of the six violations. 

 The principles governing the authority of Commission Administrative Law Judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties 

provided in [the] Act.” 30 U.S.C. § 820(i). The duty of proposing penalties is delegated to the 

Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it 

intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 

C.F.R. § 2700.28. The Act requires that in assessing civil monetary penalties, the judge must

consider six statutory penalty criteria: the operator’s history of violations; its size; whether the

operator was negligent; the effect on the operator’s ability to continue in business; the gravity of

the violation; and whether the violation was abated in good faith. 30 U.S.C. § 820(i). In keeping

with this statutory requirement, the Commission has held that judges must make findings of fact

on the statutory penalty criteria. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd,

736 F.2d 1147, 1152 (7th Cir. 1984). Once these findings have been made, a judge’s penalty

assessment for a particular violation is an exercise of discretion “bounded by proper

consideration of the statutory criteria and the deterrent purposes underlying the Act’s penalty

scheme.” Id. at 294; see also Cantera Green, 22 FMSHRC 616, 620 (May 2000).

In this case, Murray is considered a large operator for penalty purposes. The gravity of 

the matters is serious, as the bonus plans could reasonably threaten safety for all employees at 

the mines. The mines have received numerous discrimination complaints in the past, including a 

recent interference complaint in which they were fined $30,000 per mine. The operator was 

moderately negligent in instituting the bonus plans. At three of the mines, the plan is no longer in 

effect as a result of arbitration initiated by the UMWA. Considering all of the factors, I find that 

a $25,000 penalty per mine is appropriate. 

38 FMSHRC Page 955
IV. ORDER

Based on my conclusion that the bonus plans interfered with the protected rights of 

miners under the Act, Respondents are ORDERED to rescind the bonus plans that remain in 

effect and cease and desist from implementing any other similar plans. Respondents are further 

ORDERED to post a notice at each of the six mines for a period of six months. The Notice shall 

be no smaller than 10” by 13”, on white paper with clear lettering in a font over 12-point, and 

shall indicate that miners have a right to file any claim of interference without fear of harassment 

or retaliation, that the bonus plans are rescinded effective immediately, that the mine has 

interfered with the rights of miners in putting the plans in place, and that all bonuses earned up 

until that date will be paid as promised. The notice shall be posted, within 30 days, in a 

conspicuous place in at least two locations at each mine where it is available to all miners on all 

shifts. 

Finally, within 40 days of the date of this decision, Respondents are ORDERED to pay a 

civil penalty of $150,000 to the Secretary of Labor. 

/s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

Distribution: (U.S. First Class Certified Mail) 

Anthony Jones, Jordana Greenwald, Philip Mayor, U.S. Department of Labor, Office of the 

Solicitor, 201 12th Street South, Suite 401, Arlington, VA 22202 

Philip K. Kontul, Thomas A. Smock, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., One PPG 

Place, Suite 1900, Pittsburgh, PA 15222 

Art Traynor, Laura Karr, United Mine Workers of America, 18354 Quantico Gateway Drive, 

Suite 200, Triangle, VA 22172 

38 FMSHRC Page 956
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

May 3, 2016 

DECISION 

Appearances: Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor, 

Nashville, Tennessee, on behalf of the Petitioner; 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania,

on behalf of the Respondent.

Before: Judge Feldman 

These consolidated civil penalty proceedings are before me based on petitions for 

assessment of civil penalty filed by the Secretary of Labor (“Secretary”) under section 105(d) of 

the Federal Mine Safety and Health Act of 1977, as amended (“the Mine Act”), 30 U.S.C. § 

815(d), against the Respondent, Oak Grove Resources, LLC (“Oak Grove”). A hearing was held 

on September 1 and September 2, 2015, in Birmingham, Alabama. 

I. Settled Violations

These consolidated dockets concern a total of 24 citations and orders. Prior to the 

hearing, the parties advised that 17 of the 18 citations at issue in Docket No. SE 2013-352, and 

two of the three 104(d)(2) orders at issue in Docket No. SE 2013-301, had settled. The record at 

the hearing was left open for the parties to submit their written settlement terms, which were 

filed on February 19, 2016. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

OAK GROVE RESOURCES, LLC, 

 Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 2013-301 

A.C. No. 01-00851-315187-01

Docket No. SE 2013-352 

A.C. No. 01-00851-317727-01

Docket No. SE 2013-368 

A.C. No. 01-00851-319550

Docket No. SE 2013-399 

A.C. No. 01-00851-320606-01

Mine: Oak Grove 

38 FMSHRC Page 957
a. Docket No. SE 2013-352

Regarding the 17 settled citations in Docket No. SE 2013-352, the parties’ settlement 

terms include reducing the total civil penalty from $23,559.00 to $15,713.00. Specifically, the 

settlement terms provide for reducing the degrees of negligence attributable to the cited violative 

conditions in Citation Nos. 8524989 and 8524999 to “low” and “moderate,” respectively, with 

corresponding penalty reductions. Regarding Citation No. 8526401, the parties agree to modify 

the number of people affected from eight to one, with a corresponding penalty reduction. 

Additionally, the parties agree to reduce the total civil penalty in Citation Nos. 8524490, 

8524979, 8524982, 8524987, 8524991, 8524993, 8524994, 8524995, 8524996, 7684600, 

8524499, and 8524500, from $17,108.00 to $11,019.00 based on the vagaries of litigation, and 

pay the Secretary’s proposed penalties in full for Citation Nos. 8524983 and 8524491. One 

citation, Citation No. 8520665, remains at issue in Docket No. SE 2013-352. 

b. Docket No. SE 2013-301

Regarding the two settled 104(d)(2) orders in Docket No. SE 2013-301, Order Nos. 

8524255 and 8524258, the parties’ settlement terms maintain the unwarrantable failure 

designations, but reduce the total civil penalty from $51,300.00 to $38,475.00. Order No. 

8520666 in Docket No. SE 2013-301 remains at issue in this proceeding. 

Consequently, the parties’ settlement agreement reducing the total civil penalty for the 

settled 19 citations and orders in Docket Nos. SE 2013-352 and SE 2013-301 from $74,859.00 to 

$54,188.00 shall be approved as consistent with the penalty provisions of section 110(i) of the 

Mine Act. 

II. Disposition of Violations at Issue

a. Summary of Violations at Issue

In addition to the two violations remaining at issue in Docket Nos. SE 2013-352 and SE 

2013-301, the two orders at issue in Docket No. SE 2013-399 and the single order at issue in 

Docket No. SE 2013-368 have also been adjudicated in this proceeding. Of these five contested 

citations and orders, two orders concern allegedly impermissible coal dust accumulations along 

each of two conveyor belt lines, and two orders concern associated allegedly insufficient preshift examinations. These alleged accumulations and pre-shift examination violations have been 

attributable to unwarrantable failures. The remaining citation concerns an allegedly hazardous 

conveyor belt that was reportedly observed rubbing against the mine roof at the site of an 

overcast. 

The Secretary initially proposed a total civil penalty of $259,848.00 in satisfaction of 

these four contested orders and one contested citation. The Secretary’s initial total proposed civil 

penalty included a proposed penalty of $146,400.00 for the alleged accumulations violation in 

Order No. 8520664 in Docket No. SE 2013-368 that was designated as a repeated flagrant 

violation. As discussed below, the flagrant designation was deleted prior to the hearing. See 

Order Deleting Flagrant Designation, 37 FMSHRC 1311 (June 2015) (ALJ). Consequently, the 

38 FMSHRC Page 958
Secretary reduced the proposed penalty for Order No. 8520664 to $70,000.00 — the maximum 

penalty provided for unwarrantable failure violations under 30 U.S.C § 820(a)(1). As a result, at 

the time of the hearing, the Secretary was proposing a total civil penalty of $183,448.00 in 

satisfaction of these four contested orders and one contested citation. The parties’ briefs have 

been considered in the disposition of this matter. 

b. Order No. 8520664 in Docket No. SE 2013-368 (Main North 3 Belt

Accumulations)

i. Pre-Hearing Deletion of Flagrant Designation

Order No. 8520664, issued on October 3, 2012, alleges a violation of section 30 C.F.R. § 

75.400.1

 Order No. 8520664 states: 

Combustible material in the form of float coal dust and dry hard packed coal fines 

were allowed to accumulate on the roof, ribs, footwall, and belt structure of the 

Main North 3 belt entry. The hard packed coal fines were in contact with moving 

rollers on the belt line in multiple locations along the belt entry. The float coal 

dust existed on the roof, ribs, footwall, and belt structure from the Main North 3 

Tail Piece extending outby to crosscut 27. This is an approximate distance of 

2100 feet. Due to the extensive amount of accumulations and that this belt is 

examined every shift this constitutes more than ordinary negligence and is an 

unwarrantable failure to comply with a mandatory health and safety standard. 

Standard 75.400 was cited 92 times in two years at mine 0100851 (91 to the 

operator, 1 to a contractor).2 This violation is an unwarrantable failure to comply 

with a mandatory standard. 

Gov. Ex. 5. As previously noted, the accumulation condition cited in Order No. 8520664 was 

initially designated by the Secretary as a “repeated flagrant” under section 110(b)(2) of the Mine 

Act, for which the Secretary sought a proposed enhanced civil penalty of $146,400.00. The 

flagrant designation was deleted by an interlocutory order on June 1, 2015. Order Deleting 

Flagrant Designation, 37 FMSHRC 1311 (June 2015) (ALJ). The interlocutory order is 

incorporated by reference. 

1

 30 C.F.R. § 75.400 provides: 

Coal 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 diesel-powered and electric equipment 

therein. 

2

 This notation of 92 section 75.400 violations in the two year period prior to the issuance 

Order No. 8520664 cannot be reconciled with the Assessed Violation History Report that reflects 

34 section 75.400 violations during the relevant time period. See Gov. Ex. 1

38 FMSHRC Page 959
As the criteria for a repeated flagrant violation essentially remains a matter of first 

impression, it is helpful to summarize the rationale for deleting the repeated flagrant designation 

in this matter. It is axiomatic that the Mine Act provides for the application of 

“increasingly severe sanctions for increasingly serious violations or [increasingly inexcusable] 

operator behavior.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 828 (1981). Consistent 

with this statutory scheme, section 110(b)(2) of the Mine Act, which increases the maximum 

civil penalty for extremely hazardous violations deemed “flagrant,” was promulgated by 

Congress in 2006 following the Sago and Darby Mine disasters. Section 110(b)(2) provides: 

Violations under this section that are deemed to be flagrant may be assessed a 

civil penalty of not more than $220,000. For purposes of the preceding sentence, 

the term “flagrant” with respect to a violation means a reckless or repeated failure 

to make reasonable efforts to eliminate a known violation of a mandatory health 

or safety standard that substantially and proximately caused, or reasonably could 

have been expected to cause, death or serious bodily injury. 

30 U.S.C. § 820(b)(2) (emphasis added). Thus, section 110(b)(2) applies only to the most 

hazardous and egregious violations. 

Section 75.400, the mandatory standard prohibiting coal dust accumulations cited in 

Order No. 8520664, is the most frequently cited mandatory standard in underground coal mines. 

For example, section 75.400 violations constituted eleven percent of all citations issued at 

underground coal mines in 2015. MSHA, Most Frequently Cited Standards, 

http://arlweb.msha.gov/stats/top20viols/top20viols.asp (last visited April 25, 2016). 

While the condition cited in Order No. 8520664 appeared to be a routine accumulations 

violation, in that it lacked the presence of an identifiable ignition source, the Secretary relied on a 

“predicate violation history” to support his designation of a repeated flagrant violation. However, 

if violative coal dust accumulations in proximity to a properly-functioning conveyor system can 

be elevated to a flagrant violation based on a “predicate history of violations,” the vast majority 

of section 75.400 violations can be deemed flagrant. 

Consequently, in an effort to narrow the issues, on March 14, 2014, the parties were 

ordered to address whether a section 75.400 violation can be elevated to a repeated flagrant 

violation based solely on a history of violations, if the cited condition can only contribute to a 

reasonably serious injury, rather than proximately cause serious bodily injury or death. 36 

FMSHRC 815 (Mar. 2014) (ALJ). 

In response, the Secretary conceded that “[b]oth reckless and repeated flagrant 

designations require violations that substantially and proximately caused, or reasonably could 

have been expected to cause, death or serious bodily injury.” Sec’y Resp. to Order Scheduling 

Briefing, at 6 (Apr. 22, 2014). In other words, the Secretary conceded that a violative condition 

that cannot reasonably be expected to be the proximate cause of serious injury or death cannot be 

elevated to a flagrant violation based simply on a history of violations. In this regard, at an oral 

38 FMSHRC Page 960
argument held on March 4, 2015, for the purpose of addressing the criteria for a repeated flagrant 

violation, the Secretary’s counsel stated: 

We absolutely agree that history alone cannot elevate a violation to a flagrant 

violation. There is no dispute about that from the Secretary’s perspective. 

And I think as [the Court] read yourself from the Secretary’s response to your 

briefing order, the Secretary has noted that both reckless and repeated flagrant 

designations require violations that substantially and proximately caused or 

reasonably could have been expected to cause, death or serious bodily injury. 

Order Deleting Flagrant Designation, 37 FMSHRC at 1313 (citing Oral Arg. Tr. 29-30). 

Following consideration of the Secretary’s April 22, 2014, response, the Secretary was 

ordered to file a prehearing brief addressing whether the cited violative condition in Order No. 

8520664 satisfies the requisite criteria for establishing a repeated flagrant violation under section 

110(b)(2) of the Mine Act. Specifically, the requisite criteria were identified as follows: 

1. A repeated flagrant violation is a flagrant violation that is demonstrated by

either:

a. A repeated failure to eliminate the violation properly designated as

flagrant, or

b. A relevant history of violations that also meet the requirements for

a flagrant violation with respect to knowledge, causation and

gravity, as enumerated below.3

2. A flagrant violation must be a known violation that is conspicuously

dangerous, in that it cannot reasonably escape notice.

3. A flagrant violation must be the substantial and proximate cause of death

or serious bodily injury that has occurred or can reasonably be expected to

occur.

a. A substantial and proximate cause is a dominant cause without

which death or serious bodily injury would not occur.

b. A serious bodily injury is a grave injury that results in significant

debilitating and/or permanent impairment.

c. Such injury is reasonably expected to occur if there is a significant

probability of its occurrence.

36 FMSHRC 1777, 1789-90 (June 2014) (ALJ). 

3

 This criterion that predicate violations must also meet the requirements for a flagrant 

violation was included at the suggestion of the Secretary. 36 FMSHRC at 1789 n.13. However, I 

believe a history of relevant violations can provide a basis for a “repeated” designation, for a 

violation otherwise properly designated as flagrant, regardless of whether the previous violations 

satisfy the statutory definition of flagrant. 

38 FMSHRC Page 961
In response to the above criteria, the Secretary asserted that:

In the present case, hard packed coal fines were in contact with moving rollers on 

the belt line in multiple locations along the belt entry. Given these ignition 

sources, it is reasonably expected that, as normal operations continued, serious 

and/or deadly injures from burns and smoke inhalation would result from a fire or 

explosion. These injuries would be the proximate and direct result of the fire or 

explosion because the accumulations would be the necessary fuel source that, 

when combined with oxygen and an ignition source, would cause the fire or 

explosion. 

Sec’y Pre-Hearing Statement, at 2 (Aug. 7, 2014) (emphasis added). The Secretary’s response 

relied upon a traditional significant and substantial (“S&S”) analysis. Specifically, the Secretary 

conflated the contribution of a condition to an event resulting in injury of a reasonably serious 

nature, based on the potential for future ignition sources that may arise during the course of 

continued mining operations, with the actual presence of ignition sources that have caused, or 

can be reasonably expected to proximately cause, death or serious bodily injury. 

Reduced to its core, while all flagrant violations are S&S, it is only the most hazardous of 

S&S violations that can properly be designated as flagrant. By way of illustration, an S&S 

violation is one that, in the context of continuing mining operations, is reasonably likely to 

contribute to a hazard that will result in an injury of a reasonably serious nature. In contrast, a 

flagrant violation is a violation that, itself, presents a present hazard that either has caused, or can 

be reasonably expected to proximately cause, death or serious bodily injury. 

On June 1, 2015, I issued an interlocutory order deleting the flagrant designation in Order 

No. 8520664, which stated, in pertinent part: 

While the cited accumulations may have been exposed to future ignition sources 

based on conveyor belt defects that may occur during the course of continued 

mining operations, the undisputed material facts demonstrate that the cited 

accumulations were not in proximity to any identifiable ignition source, such as a 

misaligned belt or defective roller on October 3, 2012, the date Order No. 

8520664 was issued. In this regard, the Secretary[’s counsel] forthrightly 

conceded during oral argument [in this matter]: 

COURT: Was there any evidence of any heat? . . . 

COUNSEL: And the simple answer I’d like to give you . . . is at the time 

the violation was issued, there is no evidence of heat 

sufficient to ignite coal at the time the violation was issued. 

[Oral Arg.] Tr. 129-130 (emphasis added). 

Moreover, the cited accumulations were remotely located where they could not be 

exposed to ignition sources at the mine face. In this regard, at oral argument, the 

38 FMSHRC Page 962
parties stipulated that the location of the cited accumulations was approximately 

.58 miles from the zero-gate continuous mining development area, .96 miles from 

an active working face, and 2.3 miles from an active long wall mining face. [Oral 

Arg.] Tr. 139-40; Oral Arg. Jt. Ex. 1. Rather, the Secretary repeatedly relies on 

speculation that there will be future sources of heat that will arise during the 

course continued mining operations, as a basis for asserting that the cited 

accumulations could reasonably be expected to cause death or serious bodily 

injury. Sec’y Resp., at 6-10. In his brief, the Secretary also repeatedly proposes

that the “the rationale for presuming ‘continued mining operations’ applies 

equally to ‘flagrant’ and [S&S] determinations.” Id. at 18-22. Consistent with this 

proposition, at oral argument the Secretary[’s counsel] stated: 

COUNSEL: If the Court doesn’t agree that the concept of continued 

normal mining operations applies in a flagrant violation, 

then the Court should rule that way, we would lose this 

case. 

[Oral Arg.] Tr. 151-52. Precisely. 

Fundamentally, the Secretary must not be permitted to use interchangeably the 

term “actual (present) ignition source” with the term “potential ignition source” 

that may occur as a consequence of a future defect in the conveyor belt system 

during continued mining operations. In the present case, in the absence of ignition 

sources, the cited accumulations themselves are not capable of combustion and, as 

such, cannot be the proximate cause of serious bodily injury or death, as 

contemplated by section 75.400. Consideration of potential exposure to a future 

ignition source based on continued mining operations in the context of a 

traditional S&S analysis goes beyond scope a flagrant analysis. 

Rather, whether the facts surrounding a violation support a flagrant designation is 

determined by the facts as they existed at the time the citation was issued. Coal 

dust accumulations not in the presence of ignition sources can be a contributing 

cause of injury if they propagate an explosion. However, such accumulations 

cannot be the proximate cause of injury.4

 To conclude otherwise, would be to 

render the vast majority of prohibited accumulations under section 75.400 flagrant 

violations. . . . Simply put — if everything is flagrant, nothing is flagrant. Nor 

does the Secretary have the prosecutorial discretion to arbitrarily and capriciously 

label violations as flagrant. 

Order Deleting Flagrant Designation, 37 FMSHRC at 1318-19. 

4

 There may be exceptional cases where the depth of prohibited coal dust accumulations 

and their contact with multiple turning rollers causes demonstrable suspension of coal dust that 

could be construed as reasonably expected to be the proximate cause of propagation and resultant 

serious bodily injury or death, thus satisfying the statutory definition of flagrant. 

38 FMSHRC Page 963
In the final analysis, it cannot be ignored that Congress elected not to provide for the 

imposition of flagrant designations based on a timeline when it promulgated section 110(b)(2) of 

the Mine Act, as it did for withdrawal orders under section 104(d)(1). Rather, Congress provided 

a definition that requires that a violation deemed flagrant must have proximately caused death or 

serious bodily injury, or could be reasonably expected to do so.

5

 The Mine Safety and Health 

Administration’s (“MSHA”) persistent attempts to elevate a violation to a repeated flagrant 

status under section 110(b)(2) primarily based on a history of violations, despite the statutory 

definition of a flagrant violation provided by Congress, is simply not supportable.6 See Order 

Deleting Flagrant Designation, 37 FMSHRC at 1321.

The Secretary did not request interlocutory review of the June 1, 2015, Order Deleting 

the Flagrant Designation in Order No. 8520664. Consequently, the Secretary was ordered to file 

an amended petition for civil penalty. In response, on August 21, 2015, the Secretary filed an 

Amended Petition for the Assessment of Civil Penalty in Docket No. SE 2013-368, replacing the 

enhanced $146,400.00 penalty sought for Order No. 8520664, with a proposed penalty of 

$70,000.00—the statutory maximum penalty for a violation attributable to an unwarrantable 

failure. While not necessarily binding, it is noteworthy that, at the hearing, counsel for the 

Secretary represented that the Secretary is no longer pursuing the repeated flagrant designation 

for the accumulation violation cited in Order No. 8520664. Tr. 16-17. 

ii. Post-Hearing Findings of Fact

The Oak Grove Mine is an underground coal mine in Jefferson County, Alabama. During 

the course of MSHA Inspector Alveriado Getter’s October 3, 2012, inspection, he traveled the 

Main North 3 belt entry, where he reportedly observed the accumulation conditions described in 

Order No. 8520664. Tr. 33-34. As previously noted, the area where the cited accumulations were 

located was approximately .58 miles from the Zero Gate continuous mining development area, 

.96 miles from an active working face, and 2.3 miles from an active longwall mining face. Order 

Deleting Flagrant Designation, 37 FMSHRC at 1318 (citing Oral Arg. Tr. 139-40 and Oral Arg. 

Jt. Ex. 1). 

5

 It is clear that the term “proximately” must be read into the statutory phrase “reasonably 

expected to cause” that refers to situations where serious death or bodily injury has not yet 

occurred. I recognize that the Secretary has been persistently vague on this point. To conclude 

otherwise — that violations that can reasonably be expected to contribute to, or are a secondary 

cause of, serious bodily injury or death, could be properly designated as flagrant — would blur 

the distinction between flagrant and routine S&S violations. 

6

 I am cognizant that the Commission has held that past violative conduct may be 

considered in determining whether to cite a condition as a repeated flagrant violation. Wolf Run 

Mining Co., 35 FMSHRC 536, 541 (Mar. 2013). Of course, a history of violations may be an 

aggravating factor that is always relevant in determining the amount of the enhanced civil 

penalty that should be assessed pursuant to section 110(b)(2). See also 30 U.S.C. § 820(i). 

However, the Commission has not determined that a history of violations can serve as a basis for 

elevating a violation, not otherwise flagrant, to a repeated flagrant status. See Order Deleting 

Flagrant Designation, 37 FMSHRC at 1313 n.4. 

38 FMSHRC Page 964
As stated in Order No. 8520664, Getter testified that he observed accumulations of float 

coal dust, coal fines, and hard packed coal beginning at the feeder and extending 2,100 feet 

outby along the beltline.7

 Tr. 44. However, Getter further testified that, while the identified 

accumulations were “not continuous” along the cited 2,100 feet of belt line, the accumulations 

were not so sporadic to justify breaking up the condition into multiple violations. Tr. 44. Order 

No. 8520664 states that “hard packed coal fines were in contact with moving rollers on the belt 

line in multiple locations along the belt entry.” Gov. Ex. 5 (emphasis added). When asked at the 

hearing to quantify “multiple locations,” Getter stated that there were “more than twenty” 

locations where hard packed coal fines were in contact with moving rollers. Tr. 70. However, 

Getter conceded that neither the order, nor his contemporaneous inspector notes, provide details 

regarding the depth and extensiveness of the cited accumulations, or their proximity to rollers. 

See Tr. 70; Gov Ex. 3. Consequently, Getter cannot rely on any past recollection recorded to 

refresh his memory with respect to the depth and extent of the accumulations he observed three 

years earlier. 

Getter believed that the cited accumulations were properly designated as S&S given the 

extensiveness he reportedly observed. Tr. 54-56. As relevant ignition sources, Getter relied on 

the purported frictional heat caused by the contact of accumulations with turning rollers, without 

alleging that any of the rollers were defective. Tr. 55-56. Getter conceded, however, that he did 

not take any heat readings, or see any signs of heat, i.e. smoke, or observe any defective rollers, 

to support his belief that the accumulations were in proximity to an ignition source. Tr. 56. 

Moreover, Getter did not express a concern that the cited accumulations could “propagate” an 

explosion occurring elsewhere in the mine. Tr. 59-60. Getter asserted that the cited 

accumulations could not have occurred during the present shift, but rather opined that the 

accumulations had been present over nine shifts (three days), during which time at least five 

examiners should have examined the belt entry. Tr. 46-48. 

As a result of his observations, Getter issued Order No. 8520664 for a violation of section 

75.400, characterizing the cited accumulations as S&S in nature, because of their potential to 

cause a fire that will result in smoke inhalation and burn-related injuries to 35 miners working 

the 14 East entry, the Zero Gate entry, and the longwall, “because the air on the [cited] belt line 

is utilized to ventilate [these inby] sections.” Tr. 56-59. Getter attributed the cited accumulations 

to a “high” degree of negligence, given his belief that it existed for at least nine shifts. Tr. 60-61. 

Thus, Getter characterized the cited accumulations as attributable to an unwarrantable failure. 

Oak Grove’s witnesses disputed the nature and extent of the accumulations characterized 

by Getter, arguing that the accumulations were minimal. Tr. 131, 144-45, 147, 168. For example, 

consistent with Getter’s testimony that the cited accumulations were “not continuous,” Oak 

Grove Safety Inspector Larry Taft, who accompanied Getter during his inspection, testified that 

7

 Order No. 8520664 also refers to nondescript float coal dust “on the roof, ribs, footwall, 

and belt structure.” The Secretary did not provide any testimony at the hearing regarding the 

nature and extent of accumulations on the roof, ribs, and footwall. 

38 FMSHRC Page 965
the accumulations along the Main North 3 belt were intermittent, characterizing the 

accumulations as barely notable relative to the visible rock dust. Taft testified: 

Counsel: And Main North 3 belt that day, how would you describe the float 

coal dust? 

Taft: Light gray. 

Counsel. Okay. Was it continuous? 

Taft: No, sir. You’d come to a crosscut that may be, like I said, might be 

light gray, you needed to sweep it. And then the next two or three 

crosscuts would be white, then a little light gray area, and a little 

darker gray area and then white again. It was not dark gray or 

heavy gray or black the entire length of the belt. No, sir. 

Tr. 131. Although neither Getter’s testimony, his citation, nor his contemporaneous notes 

quantified the depth of the cited accumulations, Taft further testified: 

Judge: The areas that it was dark gray almost black, would you say it was 

three inches, six inches, less than three inches; how would you

quantify [the amount of accumulations]? 

Taft: Oh, probably 16th to an 8th inch. So less than three inches. 

Judge: 16th to an 8th inch. So less than three inches? 

Taft: Oh, gosh, yes. 

Tr. 144-45; see also Tr. 173 (testimony of Oak Grove foreman Keith Miller that the 

accumulations present along the Main North 3 belt line were “about a quarter of an inch”). 

Given Getter’s failure to quantify the extent of the cited accumulations, it is noteworthy that the 

Secretary did not make an effort at the hearing to rebut the testimony of Taft and Miller that the 

cited accumulations were significantly less than alleged by the Secretary. 

Oak Grove’s witnesses do, however, admit that there were accumulations in proximity to 

the mini-washer, a filtering device used to separate coal and rock from water being pumped 

through the mine to prevent coal and rock deposits from clogging the water lines. Tr. 134-36. At 

the mini-washer, located a few feet outby from the intersection of the Main North 3 belt and the 

Zero Gate belt, coal and rock are filtered from the water lines and dumped onto the Main North 3 

belt. Tr. 131-32. Oak Grove’s witnesses acknowledged that accumulations are common where 

the mini-washer dumps the coal and rock extracted from the water lines onto the belt, as they 

were a normal byproduct of mini-washer operations. Tr. 134, 140, 219-20. On this point, Taft 

conceded that the accumulations at the mini-washer were significant enough to result in contact 

with a single belt roller located near the mini-washer site. Tr. 135. Taft quantified these 

accumulations as approximately four to six inches in depth, amounting to “about six shovels 

38 FMSHRC Page 966
full.” Tr. 139. However, Oak Grove’s witnesses also asserted that accumulations at the miniwasher are extremely wet by nature. Tr. 135-36; 170-71. Taft described the the cited 

accumulations at the mini-washer as so saturated that water would run out of them when 

squeezed. Tr. 136. 

Contrary to Getter’s testimony, Taft did not recall any locations where belt rollers were 

turning in accumulations of coal dust, other than at the mini-washer. Tr. 136. Taft believed that 

the “hard packed coal fines . . . in contact with moving rollers . . . in multiple locations,” 

described by Getter in the order, may have referred to clumps of caked mud that had stuck to the 

belt frame, rather than hard packed coal fines. Tr. 148-49. 

Oak Grove foreman Keith Miller testified that abatement of Order No. 8520664 began 

immediately. Tr. 178. Miller testified that the wet accumulations near the mini-washer were 

shoveled and that the belt entry was bulk rock dusted to take advantage of the de-energized belt. 

Tr. 178. Order No. 8520664 was officially abated at 3:05 p.m. on October 3, 2012, about five 

hours after its issuance. Tr. 51; Gov. Ex. 5. 

iii. Fact of the Violation

Section 75.400 requires that coal dust “shall be cleaned up and not be permitted to 

accumulate” where miners are usually required to work or travel. 30 C.F.R. § 75.400. Thus, 

consideration of whether a 75.400 violation has occurred requires an analysis of both the 

quantity and the duration of the cited conditions. Although Oak Grove disputes that there were 

sufficient coal fines in the belt entry to constitute a violation of section 75.400, Oak Grove 

concedes that the accumulations near the mini-washer were sufficient, alone, to support the cited 

violation. Resp. Br., at 9. With respect to the accumulations in the belt entry, although Getter 

neither documented, nor testified, regarding the depth or nature and extent of the cited 

accumulations, the Secretary will be afforded the benefit of the doubt that the accumulations 

along the belt line, although intermittent, were also sufficient to constitute a violation of section 

75.400. 

iv. S&S

Turning to whether the cited accumulations were properly characterized as S&S, a 

violation is properly designated as S&S in nature if, based on the particular facts surrounding 

that violation, there exists a reasonable likelihood that the hazard contributed to by the violation 

will result in an injury or an illness of a reasonably serious nature. Cement Div., Nat’l Gypsum, 3 

FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the 

Commission explained: 

In order to establish that a violation of a mandatory safety standard is [S&S] 

under National Gypsum, the Secretary of Labor must prove: 

38 FMSHRC Page 967
(1) the underlying violation of a mandatory safety standard; (2) a

discrete safety hazard—that is, a measure of danger to safety—

contributed to by the violation; (3) a reasonable likelihood that the

hazard contributed to [by the violation] will result in an injury; and (4)

a reasonable likelihood that the injury in question will be of a

reasonably serious nature.

Id. at 3-4; see also Austin Powder Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), 

aff’g 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). With respect to the third 

element of Mathies, an S&S finding requires a determination that the violation contributes 

significantly and substantially to the cause and effect of a hazard. U.S. Steel Mining Co., Inc., 6 

FMSHRC 1866, 1868 (Aug. 1984). Resolution of whether a particular violation of a mandatory 

standard is S&S in nature must be made assuming continued normal mining operations. U.S. 

Steel Mining Co., Inc., 1 FMSHRC 1125, 1130 (Aug. 1985). Thus, consideration must be given 

to both the time frame that a violative condition existed prior to the issuance of a citation, and the 

time that it would have existed if normal mining operations had continued. Bellefonte Lime Co., 

20 FMSHRC 1250 (Nov. 1998); Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986). In the final 

analysis, the essence of an S&S violation is whether it is reasonably likely that the hazard 

contributed to by the violation will result in an event in which there are serious or fatal injuries. 

Bellefonte, 20 FMSHRC at 1254-55. 

As a general proposition, the Secretary has the burden of proving each element of a 

citation or order by the preponderance of the evidence, based on direct evidence or adequate 

circumstantial evidence. See Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152-53 (Nov. 

1989) (citations omitted). The Commission has noted that the burden of showing something by a 

preponderance of the evidence standard requires the trier of fact to believe that the existence of a 

fact is more probable than its nonexistence. Rag Cumberland Res. Corp., 22 FMSHRC 1066, 

1070 (Sept. 2000) (citations omitted). 

Here, the Secretary has demonstrated that the first, second, and fourth elements of 

Mathies are satisfied in that the cited accumulations constituted a violation that posed a discrete 

safety hazard, i.e. a fire or explosion, that was capable of causing injury of a reasonably serious 

nature. However, as a general matter, accumulations prohibited by section 75.400 are not 

S&S per se. Rather, when reduced to its core, satisfying the remaining third element in Mathies

requires the Secretary to bear the burden of demonstrating that it is reasonably likely that the 

hazard contributed to by the cited accumulations will result in a fire or explosion, causing 

serious, if not fatal, burn-related or smoke inhalation injuries. See Bellefonte, 20 FMSHRC at 

1254-55. 

With respect to evaluating the likelihood of a fire, the Commission has noted that, in 

order for ignitions or explosions to occur, there must be a confluence of requisite factors. 

Texasgulf, 10 FMSHRC 498, 501 (Apr. 1988). Namely, these factors are the presence of oxygen 

and fuel in proximity to ignition sources. With respect to the question of whether violative 

accumulations are properly characterized as S&S, as oxygen is ever-present, the focus shifts to 

the extent of the accumulations and whether the cited accumulations are in proximity to potential 

ignition sources. Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997) (citing Utah Power & 

38 FMSHRC Page 968
Light Co., 2 FMSHRC 965, 970-71 (May 1990)); Texasgulf, 10 FMSHRC at 500-03. With 

regard to the necessity of the Secretary to identify potential ignition sources to justify an S&S 

designation, the Commission has stated: 

It was within the province of the Judge to require evidence of a heat source close 

enough to sufficient quantities of dust as a prerequisite to concluding that there 

was a likelihood of a fire from the accumulations. 

Twentymile Coal Co., 36 FMSHRC 1533, 1545 (June 2014). 

Giving the Secretary the benefit of the doubt that the cited accumulations were not 

properly rock dusted and thus constituted a combustible fuel source, the Secretary has failed to 

adequately demonstrate that the cited accumulations were in proximity to any identifiable 

ignition source. As an initial matter, the cited accumulations were far removed from any 

potential acute ignition source at the face, such as sudden friction-related sparking. Getter’s 

attempts to identify any local ignition sources in proximity to the cited accumulations were 

unpersuasive. Significantly, Getter failed to identify any potential beltline-related ignition 

sources, such as defective rollers or rubbing belts. 

Rather, Getter relied on contact between dry accumulations and the resultant frictional 

heat from the moving parts of a properly-functioning beltline to support his S&S designation. 

Getter opined: 

Judge: So your position is that any dry accumulations in the vicinity of a 

conveyor belt would constitute an S&S violation and a fire hazard. 

Getter: Yes, sir. Yes, Your Honor. 

Judge: Even if the belt is normally operating, if there are no defects in the 

belt; is that correct? 

Getter: If it’s operating, yes, Your Honor. 

Judge: That is dry accumulations in the vicinity of the belt. 

Getter: Yes, sir. In contact with the belt, Your Honor, or the moving parts 

of the belt. 

*** 

Judge: So do I understand you to say that that’s an ever-present fire 

hazard? 

Getter: Yes, Your Honor. 

38 FMSHRC Page 969
Judge: If the belt is operating normally without any hiccups? 

Getter: Yes, Your Honor. 

Tr. 68-69; 108-09. 

Getter’s approach to the S&S analysis would impermissibly render the vast majority of 

section 75.400 violations per se S&S. It is noteworthy that in the two year period preceding the

issuance of Order No. 8520664, Oak Grove was cited 34 times for violating section 75.400. Gov. 

Ex. 1. Of these violations, only eleven of the 34 were designated as S&S. Id. Consequently, the 

majority of the remaining violations were characterized as not reasonably likely to contribute to a 

serious injury. 

In noting Getter’s failure to identify the presence of ignition sources, I am cognizant that 

determining the likelihood of injury posed by the hazard, i.e. fire or explosion, caused by the 

violation must be viewed in the context of continued mining operations. U.S. Steel Mining Co., 

Inc., 1 FMSHRC at 1130. Thus, the probability of a future beltline defect is a proper 

consideration. However, even considering continued mining operations, the Secretary must 

demonstrate sufficient quantities of coal dust accumulations in contact with moving beltline parts 

to support an S&S finding. 

Here, Getter quantified the accumulations as “extensive” and in contact with “more than 

twenty” turning belt rollers, and “dry hard packed coal fines [that] were allowed to accumulate 

on the roof, ribs, footwall, and belt structure.” Gov. Ex. 5; Tr. 70. However, Getter was unable to 

articulate the extensiveness or depth of any of these accumulations that were allegedly touching 

rollers. It is noteworthy that Getter’s contemporaneous inspection notes also do not quantify the 

extent of the cited accumulations. See Gov. Ex. 3. Moreover, Getter’s testimony was devoid of 

any references to the float coal dust allegedly on the roof, ribs, and belt structure, cited in the 

order. As such, Getter’s testimony, given the Secretary’s burden of proof, can only be 

characterized as vague and unconvincing. Rather, I credit the testimony of Oak Grove witnesses 

Taft and Miller that the hard packed accumulations were no more than a quarter inch in depth, 

sporadic, and, at least, partially rock dusted.8

 

Furthermore, with respect to the cited accumulations at the mini-washer, Oak Grove 

conceded that the wet accumulations were in contact with a turning roller. Given the waterlogged nature of these accumulations, their contact with a moving roller is not reasonably likely 

to result in a fire or explosion. Thus, the soupy accumulations at the mini-washer do not, alone, 

rise to the level of an S&S violation. 

 8

 The lack of detail in Getter’s testimony regarding the accumulations he cited in Order 

No. 8520664 is in stark contrast to the detailed description provided by Inspector Womack 

regarding the accumulations he cited in Order No. 4694424, discussed hereinafter. 

38 FMSHRC Page 970
With regard to the likelihood of a propagation hazard, the Commission has noted that 

“[i]t has long been recognized that a large expanse of float coal dust accumulations . . . can lead 

to the dust being put into suspension from normal mining operations.” Twentymile, 36 FMSHRC 

at 1543. As an initial matter, the subject order characterizes a substantial, if not a majority of the 

cited accumulations, as “dry hard packed coal fines . . . on the roof, ribs, footwall, and belt 

structure.” Gov. Ex. 5. Such hard packed accumulations are not readily capable of propagation. 

Moreover, Getter’s testimony, given its lack of specificity, failed to demonstrate that the cited 

accumulations constituted a large expanse of coal dust capable of propagation. Finally, even 

Getter was admittedly not concerned that the cited accumulations had the potential to propagate 

an explosion caused by an ignition elsewhere in the mine, such as at the various working faces. 

Tr. 59-60. Rather, Getter testified that his primary concern was a fire caused by the local ignition 

of the cited accumulations in the belt entry. Tr. 59-60. 

In the final analysis, the Secretary has failed to meet his burden of proof to demonstrate 

that the cited accumulations in Order No. 8520664 were reasonably likely to result in a fire or 

contribute to an explosion. Consequently, the S&S designation in Order No. 8520664 is 

deleted. 

v. Unwarrantable Failure

As a general proposition, an unwarrantable failure is aggravated conduct constituting 

more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (1987). An 

unwarrantable failure is characterized by “indifference,” a “serious lack of reasonable care,” 

“reckless disregard,” or “intentional misconduct.” Id. at 2003-04; see also Buck Creek Coal, 52 

F.3d 133, 136 (7th Cir. 1995) (approving the Commission’s unwarrantable failure test). Whether

conduct is “aggravated” in the context of an unwarrantable failure is determined by looking at all

the facts and circumstances of a case to see if aggravating or mitigating factors exist. See IO

Coal Co., 31 FMSHRC 1346, 1350-51 (Dec. 2009). The Commission has identified several such

factors, including: the length of time a violation has existed, the extent of the violative condition,

whether the operator has been placed on notice that greater efforts are necessary for compliance,

the operator’s efforts in abating the violative condition, whether the violation was obvious,

whether the violation posed a high degree of danger, and the operator’s knowledge of the

existence of the violation. Id. These factors are viewed in the context of the factual

circumstances of each case. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). All

relevant facts and circumstances of each case must be examined to determine whether a miner

operator’s conduct is aggravated or if mitigating circumstances exist. Id.

The Secretary contends that the cited accumulations conditions in Order No. 8520664 

were attributable to a “high” degree of negligence sufficient enough to constitute an 

unwarrantable failure. In support of the unwarrantable failure designation, Inspector Getter 

submits that the reported extensiveness of the cited accumulations, as well as his belief that the 

accumulations existed for at least nine shifts, provide an adequate basis for an unwarrantable 

failure designation. Tr. 60-61. 

38 FMSHRC Page 971
However, the evidence does not support Getter’s assertion that the cited accumulations 

were extensive. Rather, the evidence reflects that there were wet accumulations near the miniwasher and sporadic accumulations of less than a quarter of an inch along the cited 2,100 feet of 

belt line. The accumulations near the mini-washer did not pose a high degree of danger given 

their extremely wet consistency. Getter’s claim that other accumulations were in contact with 

numerous rollers cannot be substantiated, given the lack of specificity of Getter’s testimony 

regarding the depth and extensiveness of the accumulations. 

Furthermore, as discussed below, the fact that the examination reports reflect that the 

Main North 3 belt line had been cleaned twice in the three days preceding the issuance of Order 

No. 8520664 undermines Getter’s belief that the cited accumulations went unaddressed over a 

period of nine shifts. In sum, there is insufficient evidence of aggravating factors, such as length 

of time, extensiveness and obviousness, and degree of danger. While the history of section 

75.400 violations is sufficient to have placed Oak Grove on notice that greater efforts were 

necessary in eliminating accumulation violations, given the non-S&S nature of the subject 

accumulations and Oak Grove’s efforts at good faith abatement, the history of violations, alone, 

is inadequate to support an unwarrantable failure designation. 

Consequently, the record, when viewed in its entirety, supports that the cited 

accumulations are attributable a “moderate” degree of negligence. Accordingly, Order No. 

8520664 shall be modified from a section 104(d)(2) order to a section 104(a) citation, to 

reflect that the cited accumulations were not attributable to an unwarrantable failure. 

vi. Civil Penalty

The Commission outlined the parameters of its responsibility for assessing civil penalties 

in Douglas R. Rushford Trucking, 22 FMSHRC 598 (May 2000). The Commission stated: 

The principles governing the Commission’s authority to assess civil penalties de 

novo for violations of the Mine Act are well established. Section 110(i) of the 

Mine Act delegates to the Commission “authority to assess all civil penalties 

provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of 

proposing penalties to the Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when 

an operator notifies the Secretary that it intends to challenge a penalty, the 

Secretary petitions the Commission to assess the penalty. 29 C.F.R. §§ 

2700.28 and 2700.44. The Act requires that, “[i]n assessing civil monetary 

penalties, the Commission [ALJ] shall consider” six statutory penalty criteria: 

[1] the operator’s history of previous violations, [2] the appropriateness of

such penalty to the size of the business of the operator charged, [3]

whether the operator was negligent, [4] the effect of the operator’s ability

to continue in business, [5] the gravity of the violations, and [6] the

38 FMSHRC Page 972
demonstrated good faith of the person charged in attempting to achieve 

rapid compliance after notification of a violation. 

22 FMSHRC at 600 (citing 30 U.S.C. § 820(i)). The Commission has noted that the de novo

consideration of the appropriate civil penalties to be assessed does not require “that equal weight 

must be assigned to each of the penalty assessment criteria.” Thunder Basin Coal Co., 19 

FMSHRC 1495, 1503 (Sept. 1997). 

In keeping with this statutory requirement, the Commission has held that “findings of fact 

on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co., 5 FMSHRC 

287, 292 (Mar. 1983). Once findings on the statutory criteria have been made, a judge’s penalty 

assessment for a particular violation is an exercise of discretion, which is bounded by proper 

consideration for the statutory criteria and the deterrent purposes of the Mine Act. Id. at 

294; Cantera Green, 22 FMSHRC 616, 620 (May 2000). 

Oak Grove is a large mine operator and it has neither been contended nor shown that the 

proposed penalty for this violation is disproportionate to the size of the business or that it would 

impede its ability to remain in business. The cited accumulations were abated in a timely 

manner. While the Secretary now proposes a penalty of $70,000.00—the maximum penalty for 

an unwarrantable non-flagrant violation—as discussed herein, the gravity of the subject violation 

and the degree of negligence attributable to Oak Grove is no more than moderate. However, the 

history of Oak Grove’s violations of section 75.400 is an aggravating factor. 

Given the deletion of the S&S and unwarrantable failure designations, a civil penalty of 

$5,200.00 shall be imposed for Citation No. 8520664. 

c. Order No. 8520666 in Docket No. SE 2013-301 (Main North 3 Belt 

Examinations) 

i. Findings of Fact

Inspector Getter believed that the cited accumulations in Citation No. 8520664 along the 

Main North 3 belt line should have been observed by five examiners over nine shifts prior to the 

issuance of the violation. Gov. Ex. 2; Tr. 60-61. After observing the accumulation conditions that 

gave rise to the issuance of Order No. 8520664, Getter returned to the surface of the Oak Grove 

Mine to inspect the mine’s pre-shift examination books for the operative nine preceding shifts 

from September 30 to October 3, 2012. Tr. 50-51. Getter testified that inspection of the books for 

that period confirmed his belief that accumulations in the Main North 3 belt had not been cleaned 

for nine shifts. Tr. 50-51. 

 

38 FMSHRC Page 973
After reviewing the pre-shift examination books, Getter issued 104(d)(2) Order No. 

8520666, which alleges an inadequate pre-shift examination in violation of 30 C.F.R. § 

75.360(a)(1).9

 Order No. 8520666 provides: 

The operator failed to make an adequate examination of the Main North 3 belt 

entry. Accumulations of float coal dust and hard packed coal was allowed to exist 

for an approximate distance of 2100 feet from the tail piece outby to Crosscut 27. 

This belt line is examined 3 times each day. 5 different examiners have traveled 

this belt line in the past 9 shifts. Due to the extensive amount of accumulations in 

the cited area it is obvious to the casual observer this condition has existed for an 

extended period of time. Due to 5 examiners traveling through the cited area and 

the extent of the accumulations this constitutes more than ordinary negligence and 

is a failure to comply with a mandatory health and safety standard. Standard 

75.360(a)(1) was cited 1 time in two years at mine 0100851 (1 to the operator, 0 

to a contractor). This violation is an unwarrantable failure to comply with a 

mandatory standard. 

Gov. Ex. 2. Getter characterized the cited violation as S&S and attributable to “high” negligence 

constituting an unwarrantable failure. The Secretary has proposed a $52,500.00 penalty for Order 

No. 8520666. Order No. 8520666 was timely abated on October 4, 2012. It is noteworthy that 

the Secretary did not proffer a copy of the relevant pre-shift examination notations in support of 

Order No. 8520666. 

Oak Grove management personnel Taft and Miller both opined that the extent of the 

accumulations in the Main North 3 belt entry, as they existed during Getter’s October 3 

inspection, could have been noted as remarks by pre-shift examiners, but they did not warrant 

notations as hazards. Tr. 142, 189-90, 208. Nevertheless, they testified that the mine’s pre-shift 

examination logs demonstrate that accumulations in the Main North 3 belt line had, in fact, been 

cleaned twice during the operative nine shifts from September 30 to October 3, 2012. Tr. 213-14. 

ii. Fact of Violation

Section 75.360(a)(1) requires a certified person to conduct a pre-shift examination, for 

the purpose of identifying any hazardous conditions, in the three hours preceding the start of a 

shift in areas where persons are scheduled to work or travel. See Cumberland Coal Res., LP, 32 

9

 Section 75.360(a)(1) states: 

Except as provided in paragraph (a)(2) of this section, a certified person 

designated by the operator must make a pre-shift examination within 3 hours 

preceding the beginning of any 8-hour interval during which any person is 

scheduled to work or travel underground. No person other than certified 

examiners may enter or remain in any underground area unless a pre-shift 

examination has been completed for the established 8-hour interval. The operator 

must establish 8-hour intervals of time subject to the required pre-shift 

examinations. 

38 FMSHRC Page 974
FMSHRC 442, 446 (May 2010); RAG Cumberland Res., LP, 26 FMSHRC 639, 651, 653 (Aug. 

2004); Enlow Fork Mining Co., 19 FMSHRC at 14. In determining whether a violation of section 

75.360(a)(1) has occurred, the proper inquiry is whether the subject pre-shift examination was 

adequately performed, as evidenced by appropriate notations and actions documented in the 

mine’s examination book. See, e.g., RAG Cumberland Resources LP, 26 FMSHRC at 647 

(holding that although mandatory standards may not explicitly require adequate or effective 

measures by mine operators, such a requirement is implicit in the standard’s underlying 

purpose), aff’d 171 Fed. Appx. 852 (D.C. Cir. 2005). It is noteworthy that the Secretary did not 

proffer the relevant examination book notations to support his assertion that inadequate pre-shift 

examinations had occurred. 

Obviously, pre-shift and on-shift examinations must be adequate, rather than perfunctory. 

However, not every violation detected during an MSHA mine inspection gives rise to a 

companion violation of section 75.360(a)(1) simply because the cited violation was not noted in 

a pre-shift examination book. In resolving the adequacy of examinations, it is helpful to apply 

the Commission’s reasonably prudent person test: namely, whether “a reasonably prudent 

person, familiar with the mining industry and the protective purposes of [section 75.360(a)(1)]” 

would have a reasonable basis to believe that the subject pre-shift examinations were sufficiently 

thorough. See Canon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987). 

Unlike the Secretary, Oak Grove proffered the relevant examination book notations. 

Turning to the relevant entries in the examination book, despite Getter’s testimony and belief 

that there were no relevant notations, there is documentation of several efforts to clean 

accumulations in the Main North 3 belt entry during the shifts proceeding Getter’s inspection. 

Specifically, the mine’s examination books demonstrate that accumulations along the Main 

North 3 belt line were flagged as hazards during the September 30 evening shift, the October 1 

day shift, and the October 2 evening shift. Resp. Ex. 1. These three identified accumulations 

hazards were noted in Oak Grove’s examination book as cleaned during the shifts following their 

notation. Id. 

As previously noted, the Secretary has the burden of proof with respect to the alleged preshift examination violation. Despite Getter’s testimony to the contrary, the above entries 

demonstrate that accumulations in the Main North 3 belt entry were not ignored in the shifts 

preceding the issuance of Order No. 8520664. 

Given the relevant examination notations, as well as Getter’s inability to specifically 

describe the nature and extent of the cited accumulations claimed to be overlooked by examiners, 

the record evidence fails to demonstrate that the subject pre-shift examinations were perfunctory 

or otherwise inadequate. Consequently, Order No. 8520666 shall be vacated. 

38 FMSHRC Page 975
d. Citation No. 8520665 in Docket No. SE 2013-352 (Main North 3 Belt

Maintenance)

i. Findings of Fact

An overcast is an enclosed airway structure that separates intake air from return air in the 

same entry, permitting intake and return air currents to pass by one another. As a general matter, 

overcasts in belt entries require belt lines to be elevated to pass over the overcast structure. 

During the course of Inspector Getter’s October 3, 2012, inspection of the Main North 3 belt 

line, he observed evidence of the elevated portion of the belt line rubbing the roof as it passed 

over the overcast. 

Although it was unclear whether the belt was rubbing the roof at the time of the 

inspection, Getter testified that the fact that the belt was rubbing the roof was evidenced by a 

“smooth finish” and a “sheen” on the metal roof channel straps, Decatur plates, and roof bolt 

heads, as if they were being polished by the belt. Tr. 77. Despite the rubbing, Getter did not 

observe any damage to the belt itself. Tr. 88; see Tr. 126. Getter explained that the contact 

between the belt line and the roof was intermittent. Specifically, Getter testified: 

The belt was contacting the roof sporadically as it was loaded or unloaded, so to 

speak . . . . So whenever the belt was loaded, it was not contacting the roof. But 

after the whatever was loaded into the belt line went through and the belt was 

clear, it would physically raise up and contact the roof. 

Tr. 72. 

Below where the belt was rubbing, Getter testified that the word “drop” had been written 

on the belt structure, along with an arrow pointing upward to the area of contact between the belt 

and the roof. Tr. 87. While Getter could not determine when this notation had been written, he 

concluded that someone had detected the need for a belt adjustment, but failed to ensure that the 

adjustment was made. Tr. 87, 91. 

As a result of his observations, Getter issued 104(a) Citation No. 8520665, which alleges 

a violation of 30 C.F.R. § 75.1725(a).10 Citation No. 8520665 states: 

The operator failed to maintain the Main North 3 belt line in safe operating 

condition. Approximately 50 feet outby the first over cast outby the tail piece the 

elevated belt was contacting the roof, roof bolt heads, decatur plates and roof 

channels. The belt had been contacting the roof for an extended period of time. 

This was evident due to the roof being worn and the roof bolt heads, decatur 

plates, and roof channels being worn and having a polished appearance. Standard 

10 30 C.F.R. § 75.1725(a) provides: “Mobile and stationary machinery and equipment 

shall be maintained in safe operating condition and machinery or equipment in unsafe condition 

shall be removed from service immediately.” 

38 FMSHRC Page 976
75.1725(a) was cited 17 times in two years at mine 0100851 (17 to the operator, 0 

to a contractor). 

Gov. Ex. 4. 

Getter testified that the rubbing belt, as well as the metal splices in the belt, created the 

potential for frictional heat and sparks when contacting the metal roof channel straps, Decatur 

plates, and roof bolt heads. Tr. 76-77. Getter opined that float coal dust on the floor, ribs, and 

belt structure could be ignited by the heat and potential sparks caused by this rubbing. Tr. 76-77. 

However, there was a significant separation between any frictional heat and sparks caused by the 

rubbing belt and the accumulations that concerned Getter. In this regard, the coal accumulations 

on the mine floor and any coal fines on the belt structure were located approximately 15 feet 

below, and two to three feet below, the area of rubbing, respectively.11 Tr. 82-83. Although 

Getter conceded at hearing that the belt was made of flame resistant materials, and that there was 

no float coal dust located on the roof itself, Getter believed that the heat and sparks caused by 

contact between the belt and the roof could ignite the accumulations on the floor and belt 

structure. Tr. 76-78, 88, 90. In such an event, a fire or explosion could result, causing 

“permanently disabling” injuries to the 35 miners working at the 14 East entry, the Zero Gate 

entry, and the longwall. Tr. 88-90. Consequently, Getter designated Citation No. 8520665 as 

S&S in nature. 

In view of the fact that the condition had not been corrected despite the “drop” notation at 

the site of the contact, Getter attributed the violative condition to “high” negligence. Tr. 87. 

Citation No. 8520665 was abated about five hours after its issuance, after the belt structure was 

lowered and a patch of non-abrasive fire retardant Teflon material was affixed to the roof. Gov. 

Ex. 4; Tr. 102. The Secretary has proposed a $12,248.00 civil penalty for Citation No. 8520665. 

Although Oak Grove Safety Director Taft, who accompanied Getter during the 

inspection, and foreman Miller testified that they did not observe the belt rubbing the roof at the 

time of the inspection, both Taft and Miller conceded that there was evidence of frictional 

contact between the belt and the roof. Tr. 127, 177. Despite its apparent relevance, Taft disputed 

the significance of the “drop” notation, asserting rather that notations, such as “lower,” were 

written elsewhere on the belt structure for various reasons. Tr. 129. With respect to the likelihood 

of ignition, Miller testified that he does not believe that methane accumulations in roof pockets 

presented a source of fuel for ignition. Tr. 176-77. 

11 It is noteworthy that I do not consider, nor has the Secretary argued, that the belt 

maintenance defect at issue in Citation No. 8520665 was a local ignition source for the purposes 

of the accumulations cited in Order No. 8520664. As discussed hereinafter, the hazard 

contributed to by this belt maintenance defect condition was not related to float coal dust 

accumulations, but rather methane pockets that may have accumulated near the roof. 

38 FMSHRC Page 977
ii. Fact of the Violation

Section 75.1725(a) requires that belt line systems must be maintained in safe operating 

condition. The Commission has held that the standard for determining whether machinery or 

equipment is in an unsafe operating condition is “whether a reasonably prudent person familiar 

with the factual circumstances surrounding the allegedly hazardous condition, including any 

facts peculiar to the mining industry, would recognize a hazard warranting corrective action 

within the purview of the applicable regulation.” Alabama By-Products Corp., 4 FMSHRC 2128, 

2129-30 (Dec. 1982). With respect to frictional heat, the Commission has held that 

a belt rubbing or cutting into the belt structure, along with combustible accumulations and 

possible ignition sources, constituted a hazard in violation of section 75.1725(a). Martinka Coal 

Co., 15 FMSHRC 2452, 2456 (Dec. 1993); Jim Walter Resources, 18 FMSHRC 804, 817 (May 

1996); Alabama By-Products, 4 FMSHRC at 2130-31. 

Consequently, it is well-settled that a source of ignition caused by frictional heat and 

sparking in the presence of oxygen and sources of fuel in an underground mine poses a 

significant hazard. Unlike at the mine face where there is also potential frictional heat and 

sparking, along belt lines there are no methane monitors to guard against pockets of methane that 

may accumulate in the irregularities of a mine roof. As such, a reasonably prudent person must 

conclude that a belt generating frictional heat and sparking at the mine roof, in proximity to 

potential pockets of methane, constitutes an impermissible unsafe operating condition. In view of 

the undisputed evidence of frictional contact between the belt and roof, the Secretary has 

demonstrated the fact of the violation of section 75.1725(a). 

iii. S&S

The Secretary has demonstrated that the first, second, and fourth elements of Mathies are 

satisfied in that the cited unsafe condition posed a discrete safety hazard, i.e. a fire or explosion, 

that was capable of causing injury of a reasonably serious nature. The focus of the S&S analysis 

now shifts to the third element of Mathies, which requires the Secretary to demonstrate that it is 

reasonably likely that the hazard contributed to by the cited belt malfunction will result in a fire 

or explosion, causing serious or fatal burn-related or smoke inhalation injuries. See Bellefonte, 20 

FMSHRC at 1254-55. Resolution of whether a violation of a mandatory standard is S&S in 

nature must be made assuming the cited condition remains unabated during the course of 

continued normal mining operations. U.S. Steel Mining Co., 1 FMSHRC at 1130. 

As an initial matter, I do not find the potential for frictional heat and sparking as a source 

of ignition reasonably likely to result in combustion of the cited coal fines and float coal dust 

accumulations that are located from two to 15 feet from the source of the friction. However, it is 

reasonably likely, given continued mining operations, that the subject frictional heat and 

sparking caused by the cited condition will ignite pockets of methane in the mine roof, resulting 

in reasonably serious fire or smoke-related injuries. Consequently, the S&S designation in 

Citation No. 8520665 shall be affirmed. 

38 FMSHRC Page 978
iv. Civil Penalty

As previously noted, the Secretary has proposed a $12,248.00 civil penalty for Citation 

No. 8520665. It is not contended that this penalty is disproportionate to the size of the business, 

or that it would impede its ability to remain in business. While the cited condition was abated in 

a timely manner, the evidence supports the Secretary’s contention that the condition was 

attributable to a “high” degree of negligence. The “high” negligence designation is justified by 

the location of the notation “drop” directly under the area where the belt was contacting the roof. 

This notation demonstrates that Oak Grove allowed the condition to exist despite its recognition 

of the ignition hazard. Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984). 

The dearth of mitigating factors does not warrant reducing the civil penalty proposed by 

the Secretary. Consequently, a civil penalty of $12,248.00 shall be imposed for Citation No.

8520665. 

e. Order No. 4694424 in Docket No. SE 2013-399 (Slope Belt Accumulations)

i. Findings of Fact

On September 25, 2012, while conducting a quarterly inspection of the Oak Grove Mine, 

MSHA Inspector Steve Womack inspected the mine’s slope belt, while accompanied by MSHA 

supervisor Brandon Russell and Oak Grove company representative William Wilson. Tr. 260-61. 

The slope belt is the last belt carrying coal out of the Oak Grove Mine. Tr. 263. It is located in a 

sloped 16 foot diameter tunnel that connects the surface to the underground coal seam. Tr. 263. 

The slope belt is suspended above the tunnel floor, as high as five or six feet off the ground, by 

roof chains. Tr. 399. The slope belt runs from the head drive unit on the surface to the tailpiece at 

the tunnel’s deepest point, 3,500 feet below. Tr. 263. The tunnel is angled at approximately 12-

16 degrees. Tr. 263. At the 3,500 foot mark there is an exit crossover that allows miners on the 

slope to cross over into an adjacent entry. Tr. 368-69. 

At the base of the slope belt is the dump bunker, a pit that collects all of the coal arriving 

on belts throughout the mine. Tr. 357-58. The miner assigned to work at the dump bunker 

controls vibrating feeders at the bottom of the pit that periodically releases quantities of coal into 

a chute that ultimately deposits the coal onto the slope belt to be carried to the mine surface. Tr. 

356-58. Personnel at the dump bunker can speed up or slow down the dumping process to

regulate the amount of coal being deposited onto the slope belt. Tr. 357-58. The slope belt is the

exclusive method of moving coal to the surface of the Oak Grove Mine. Tr. 263.

Womack, Russell, and Wilson began their inspection at the surface, descending down the 

slope tunnel on a walkway that runs along the right side of the slope belt when traveling in an 

inby direction. Tr. 264, 267. Womack testified that the first 200 feet of the belt line were 

unremarkable. Tr. 269. Beginning at the 200 foot mark, however, Womack testified to periodic 

38 FMSHRC Page 979
“deep” and “massive spillage” on the tunnel floor, and seven inches of “dried” and “anthill-type” 

accumulations on the metal belt structure. Tr. 270-73. Along this stretch, Womack observed “a 

couple feet of accumulation” on the tunnel floor beneath the belt. Tr. 272-73. These 

accumulations were spilling out from under the belt, causing accumulations of approximately 

nine inches of coal deposits alongside the adjacent walkway. Tr. 272-73. 

Wilson disputes Womack’s reported observation of accumulations of “a couple feet” 

located beneath the belt beginning at the 200 foot mark. Although Womack believed the 

accumulations were significant, Wilson characterized the accumulations beginning at the 200 

foot mark as “small accumulations.” Tr. 359. Wilson quantified these accumulations as varying 

from eight to 24 inches deep. Resp. Ex. 5. Wilson characterized the accumulations as “[not] 

continuous” and “staggered.” Tr. 385. Having disputed the depth of these accumulations 

reportedly observed by Womack, Wilson testified that none of these accumulations were in 

contact with turning rollers. Tr. 360-61. 

Sensitive to Womack’s concerns about the accumulations beginning at the 200 foot mark, 

Wilson used his radio to call for men to be assigned to the slope belt to start the cleanup process. 

Tr. 351, 377. Typically, the slope belt is initially cleaned by removing any accumulations in 

proximity to the dump bunker. Tr. 354. After accumulations are removed from the dump bunker, 

the accumulations along and under the slope belt are removed by washing the slope belt tunnel 

with a powerful water hose located at the surface. Tr. 355. Accumulations that are washed from 

the surface down to the 3,500 foot mark accumulate in a wash hole where they are collected to 

be re-deposited onto the belt. Tr. 367-68. 

As Womack, Russell, and Wilson descended the slope tunnel, at the 2,340 foot mark, 

Womack reportedly observed that the bottom belt was running in the accumulations and a 

bottom roller was turning in the coal fines. Tr. 290. At this location, there were two bottom 

rollers missing, causing the belt to sag and run in the accumulations below. Gov. Ex. 6; Tr. 290. 

Wilson’s testimony supports Womack’s contention that there were excessive 

accumulations around the 2,340 foot mark. However, Wilson opined that these accumulations 

were caused by a broken belt line support chain, which caused the belt line to sag. Tr. 359-60. 

Wilson asserts that it is possible that these accumulations built up instantaneously when the chain 

broke. Tr. 363. Wilson testified that he did not believe that Womack observed the broken chain 

during the course of the inspection, although it is difficult to comprehend how Wilson knew what 

Womack did or did not see. Tr. 380-81. Nevertheless, it is significant that on cross-examination 

Oak Grove did not seek an acknowledgment from Womack as to whether the belt line support 

chain was, in fact, broken. 

Wilson also testified that at the 2,340 foot mark there was a pipe lodged beneath the belt 

line, causing otherwise normal spillage to accumulate more quickly. Tr. 360-61. Wilson 

conceded that, here, one roller was turning in accumulations. Tr. 359; Resp. Ex. 5. While it is 

unclear when use of powerful hoses at the surface to clean the slope belt began, Wilson opined 

that the accumulations at the 2,340 foot mark were likely exacerbated by the washing process 

that he called for earlier in the inspection. Tr. 363. However, Wilson’s opinion is belied by his 

testimony that he saw no evidence of coal and water running down the slope until he was at the 

38 FMSHRC Page 980
2,600 foot mark. Tr. 366, 379. Thus, the evidence reflects that the accumulations at the 2,340 

foot mark were not the result of, or exacerbated by, the cleaning process. Wilson opined that the 

accumulations at the site of the alleged broken belt line support chain were quite extensive, 

estimating that they totaled approximated 20 tons. Tr. 370. 

Inby from the 3,200 foot mark to the 3,500 foot mark, Womack also observed 

accumulations as much as 24 inches in depth, and “up to 47 inches” near the tailpiece. Gov. Ex. 

6. Womack estimated that the extent of the cited accumulations along the entire slope belt line

totaled approximately 4,200 tons. Tr. 280.

From the 3,200 foot mark to the 3,500 foot mark, Wilson acknowledged that “7 inches to 

12 inches, even perhaps some places [as much as] 24 inches,” of accumulations were present. Tr. 

398-99. Wilson, however, asserts that the accumulations near the tailpiece were clearly the result

of the washing process that was initiated during the inspection. Tr. 371-72.

Furthermore, from the buildup at the 2,340 foot mark to the 3,400 foot mark, Wilson 

testified that he observed no accumulations in contact with rollers. Tr. 367. Thus, although the 

accumulations under the belt may have been as deep as 47 inches in places along the entirety of 

the belt line, both Womack and Wilson agree that, with the exception of the extensive 

accumulations at the 2,340 foot mark, there were no other accumulations touching rollers. 

Obviously, accumulations of 24 inches would ordinarily contact rollers. However, here, the cited 

accumulations were separated from the slope belt, which was suspended as high as five or six 

feet off the ground by roof chains. Tr. 399. 

As a result of his observations, Womack issued 104(d)(2) Order No. 4694424. Order No. 

4694424 alleges a violation of 30 C.F.R. § 75.400. Order No. 4694424 states: 

From the 200 ft. marker of the Slope Belt continuing to the 3000 ft. marker, and 

again from 3200 to the 3500 ft. marker, run of mine spillage has been allowed to 

accumulate beneath the bottom belt from the walkway to the offside rib. The 

depth ranges up to 24 inches and near the tailpiece up to 47 inches. The spillage is 

dry to damp with sporadic areas which are wet. Dried coal spillage averaging 7 

inches in height is present on nearly all top idlers metal framework. From 2340 to 

2440 the bottom belt is running in the spillage and a bottom roller is turning in the 

coal fines. 2 bottom rollers are missing at this location. This is an unwarrantable 

failure to comply with a mandatory health & safety standard constituting more 

than ordinary negligence. 

Gov. Ex. 6. Womack designated the cited conditions as S&S, asserting that they could 

“reasonably likely” result in a “lost workdays or restricted duty” injury to four miners. Womack 

attributed the conditions to a “high” degree of negligence and an unwarrantable failure to comply 

with section 75.400 of the Secretary’s mandatory standards. The Secretary has proposed a 

$32,800.00 civil penalty in satisfaction of Order No. 4694424. 

38 FMSHRC Page 981
Order No. 4694424, which was issued on September 24, 2012, was abated at 4:00 a.m. on 

September 27 after Oak Grove contacted MSHA to advise that it had finished cleaning the slope 

belt. Tr. 296. Womack opined that Oak Grove was working on cleaning these accumulations 

during the entire two day abatement period, as the order shutting down the slope belt effectively 

shut down the entire Oak Grove Mine. As Womack explained, “[t]he slope belt shuts down, 

nothing moves. You can’t mine coal on any of the sections because you have no way of 

transporting it.” Tr. 296-97. The abatement states: 

The combustible accumulations of loose coal have been removed from the slope 

belt. The loose coal has been washed to the sump at the bottom of the slope, 

loaded on the belt, and removed from the mine. 

Gov. Ex. 6. 

With respect to the S&S designation, Womack testified that the roller turning in 

accumulations, as well as the belt dragging in accumulations, caused frictional heat that created a 

potential ignition source for accumulations of coal fines and float coal dust. Tr. 282-85. The 

potential for smoke caused by smoldering or ignited coal in the slope tunnel is of particular 

concern because there are only two avenues of escape for personnel in proximity to the slope 

belt—traveling the slope tunnel to the surface or using a crossover located at the 3,500 foot 

mark. Tr. 285-86. In addition, the accumulations presented tripping hazards inherent in using the 

steep slope walkway as an escapeway. Tr. 285-86. 

Womack asserted that the subject smoke inhalation and tripping hazards will result in at 

least “lost workdays or restricted duty” injuries when viewed in the context of continued mining 

operations. Tr. 289. Womack further asserted that the cited hazard would “reasonably likely” 

affect four miners—the four miners he encountered working the slope during his inspection. Tr. 

293. Although Womack was concerned that the cited accumulations constituted a fire hazard,

Womack believed that the accumulations along the slope belt did not present a propagation

hazard as they are “a couple of miles” from any working faces. Tr. 300-01.

Womack attributed the cited conditions to a “high” degree of negligence evidencing an 

unwarrantable failure. Womack’s findings predominantly are based on the extensiveness of the 

accumulations and the protracted length of time the coal dust and coal fines were permitted to 

accumulate. Tr. 294-95. Womack believed that the cited accumulations existed for a 

considerable period of time, estimating that the dried anthill-type coal fines that accumulated on 

the belt structure existed for three days. Tr. 294. Womack testified that this type of coal fine 

accumulation can only occur over a period of time. Tr. 323-24. During that time, Womack 

believes that between 9 and 12 examinations had taken place. Tr. 325. Womack elaborated: 

The examiner[s] no way could not have seen the extensive amount of material. 

Even absent what was under the belt, the dried material on top, I mean, on every 

roller. You just don’t miss that. It’s just even an untrained miner is going to, you 

38 FMSHRC Page 982
know, going to question that. You know, how long it had been there, 

management, I mean, certainly they—they have to have knowledge of this. . . . 

Tr. 295. 

ii. Fact of the Violation

As previously noted, section 75.400 requires that coal dust “shall be cleaned up and not 

be permitted to accumulate” where miners are usually required to work or travel. Thus, 

consideration of whether a 75.400 violation has occurred requires an analysis of both the 

quantity and the duration of the cited conditions. As a threshold matter, it is noteworthy that Oak 

Grove does not contest the fact of the violation in Order No. 4694424 in its post hearing brief. 

Order No. 4694424 addresses two types of accumulations: the extensive accumulations at the 

2,340 foot mark that were in contact with the suspended belt line and its turning roller, 

characterized by Oak Grove witness Wilson as totaling as much as 20 tons of coal material; and 

extensive coal dust and coal fine accumulations on or under the slope belt throughout a 

significant portion of the 3,500 foot tunnel floor, which were not in contact with moving belt 

components. 

I am mindful that the use of a high-pressure hose to clean the slope entry from the 

surface, which began during Womack’s inspection, may have concentrated greater 

accumulations at the lower portions of the slope belt and at the tailpiece. However, 

notwithstanding Oak Grove’s apparent admission of the fact of the violation, it cannot be 

reasonably argued that the cited accumulations, either the 20 tons of accumulations at the 2,340 

foot mark alone, or along the entire belt slope in amounts totaling 4,200 tons, do not constitute 

impermissible accumulations of combustible material in violation of section 75.400. 

iii. S&S

In evaluating the propriety of an S&S designation, the Secretary has demonstrated that 

the first, second, and fourth elements of Mathies are satisfied in that the cited accumulations 

constituted a violation that posed a discrete safety hazard, i.e. a fire and resultant smoke, that was 

capable of causing injury of a reasonably serious nature. In this regard, I credit the Secretary’s 

assertion that smoke presents a significant hazard when present in the slope tunnel, as miners 

working in the vicinity of the slope may rely on the slope belt tunnel as a means of escape to the 

surface. 

 Thus, the S&S analysis shifts to the third dispositive element of Mathies that requires 

consideration of whether it is reasonably likely that the hazard contributed to by the cited 

accumulations will result in a fire or explosion, causing serious or fatal burn-related or smoke 

inhalation injuries. Bellefonte, 20 FMSHRC at 1254-55. The likelihood of such injury must be 

viewed in the context of continued exposure to the hazard posed by the violation assuming the 

violation continued unabated in the face of normal mining operations. Southern Oil Coal Co., 13 

FMSHRC 912, 916-17 (June 1991); Halfway, Inc., 8 FMSHRC at 12; U.S. Steel Mining Co., 

1 FMSHRC at 1130. 

38 FMSHRC Page 983
While it is true that a substantial portion of the cited accumulations were located on the 

tunnel floor, far removed from any source of frictional heat caused by the suspended turning belt 

or its rollers, the uncontroverted evidence reflects that the accumulations at the 2,340 foot mark 

were in contact with the moving suspended conveyor belt and a turning roller. It is clear that it is 

reasonably likely that combustible coal accumulations in contact with the potential frictional heat 

caused by this condition, if left unabated, will contribute to a fire that will result in injuries of a 

reasonably serious nature. Consequently, the Secretary has demonstrated, by a 

preponderance of the evidence, that the cited accumulations were properly designated as 

S&S. 

iv. Unwarrantable Failure

The cited accumulations in Order No. 4694424 were attributed to a “high” degree of 

negligence that evidences an unwarrantable failure to comply with section 75.400. As previously 

noted, an unwarrantable failure is aggravated conduct constituting more than ordinary 

negligence. Emery Mining Corp., 9 FMSHRC at 2001. The Commission has identified the 

indicia of an unwarrantable failure: the length of time a violation has existed, the extent of the 

violative condition, whether the operator has been placed on notice that greater efforts are 

necessary for compliance, the operator’s efforts in abating the violative condition, whether the 

violation was obvious, whether the violation posed a high degree of danger, and the operator’s 

knowledge of the existence of the violation. See IO Coal Co., 31 FMSHRC at 1350-51. 

The evidence reflects that the accumulations at the 2,340 foot mark, which were several 

feet in depth and encompassing the suspended belt and a turning roller, were extensive, obvious, 

and hazardous given the accumulation’s proximity to potential frictional heat. To counter its 

apparent failure to address these extensive accumulations, Oak Grove relies on its assertion that 

the significant accumulations at the 2,340 foot mark in the slope tunnel occurred immediately 

prior to Inspector Womack’s inspection, as a consequence of a recently-broken belt support 

chain and a pipe that had become lodged below the belt. Although Womack did not testify that 

he observed either the alleged broken chain or lodged pipe, Oak Grove shall be given the benefit 

of the doubt that the chain was in fact broken, and that the pipe was indeed lodged below the belt 

line. 

Not surprisingly, however, this is not the first time where I have encountered a mine 

operator’s claim that the subject violation occurred only moments before the inspector arrived at 

the working place. Of course, such unsubstantiated, self-serving claims should be given little 

weight. In fact, the defects relied upon by Oak Grove as justification for the accumulations at the 

2,340 foot mark are implicating, rather than exonerating, factors. The Commission has long 

recognized that “the substantial evidence standard may be met by reasonable inferences drawn 

from indirect evidence.” McCoy Elkhorn Coal Corp. 36 FMSHRC 1987, 1999 (Aug. 2014) 

(citing Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984)). Here, the inference 

sought by Oak Grove—namely, that the extensive accumulations were caused by a broken chain 

and lodged pipe that occurred immediately prior to Womack’s arrival at the slope tunnel — is 

speculative and self-serving, and cannot be drawn from any indirect evidence. Rather, the 

reasonable inference is that the cited conditions at the 2,340 foot mark existed for a significant 

38 FMSHRC Page 984
period of time during which coal accumulated in the slope tunnel despite the slope belt being 

manned by Oak Grove personnel. 

With respect to the totality of the accumulations cited in Order No. 4694424, the 

extensiveness of the accumulations provides the inescapable conclusion that they were allowed 

to accumulate over a significant period of time. In this regard, Wilson conceded that the 

accumulations removed from the 2,340 foot mark totaled approximately 20 tons. Additionally, 

Womack testified that a total of 4,200 tons of materials had accumulated along the length of the 

3,500 feet of slope belt tunnel. 

The extensiveness of the total cited accumulations is further evidenced by the fact that it 

took Oak Grove two days to abate the order. In this regard, the two-day abatement is significant 

in that shutting down the slope belt meant halting production across the entire Oak Grove Mine. 

Thus, the record amply supports that the accumulations existed for a significant period of time 

and that they were obvious due to their extensive nature. 

Oak Grove was also on notice that greater efforts were necessary for controlling coal 

accumulations at its Oak Grove Mine facility. In this regard, MSHA’s records reflect that Oak 

Grove was cited 34 times for violating section 75.400 during the two years preceding the 

issuance of Order No. 4694424. Gov. Ex. 1. Finally, as discussed above, the cited accumulations 

were hazardous in that they could contribute to serious burn or smoke inhalation-related injuries 

to personnel working in proximity to the slope belt. 

In sum, the Secretary has demonstrated that the subject accumulations were extensive, 

obvious, hazardous in nature, and existed for a significant period of time. Thus, the Secretary 

has demonstrated the necessary criteria to support the alleged high degree of negligence 

necessary for the unwarrantable failure designation in Order No. 4694424. 

v. Civil Penalty

The Secretary has proposed a penalty of $32,800.00 for Order No. 4694424. As 

previously noted, it has not been contended that the Secretary’s proposed penalty will adversely 

affect Oak Grove’s ability to remain in business. The subject accumulations are attributable to a 

high degree of negligence. The hazard contributed to by the violation is serious in gravity. 

Finally, Oak Grove’s history of section 75.400 is an aggravating, rather than mitigating, factor. 

Consequently, a civil penalty of $32,800.00, as proposed by the Secretary, shall be 

imposed for the cited coal accumulations in Order No. 4694424.

f. Order No. 4694426 in Docket No. SE 2013-399 (Slope Belt Examination)

i. Findings of Fact

After observing the conditions cited in Order No. 4694424, Inspector Womack returned 

to the surface to inspect Oak Grove’s examination books. The relevant examination records, 

which were proffered by Oak Grove rather than the Secretary, reflect that notations of 

38 FMSHRC Page 985
accumulations along the slope belt were made during the three shifts preceding Womack’s 

inspection. For example, the pre-shift examination for the September 24, 2012, evening shift 

includes a “remark” that the slope belt should be cleaned from the 2,360 foot mark to the wash 

hole. Resp. Ex. 6. Additionally, the pre-shift examination for the September 25, owl shift, the 

shift immediately preceding Womack’s inspection, notes two accumulation hazards along the 

slope: namely, from the 100 foot mark to the 400 foot mark; and from the 2,280 foot mark to the 

2,520 foot mark. Resp. Ex. 6. The former notation was acknowledged by Womack in Order No. 

4694426. However, Womack testified that he “missed” the latter notation when inspecting the 

examination book. Tr. 328. 

As a result of his review of the examination book, Womack issued 104(d)(1) Order No. 

4694426, alleging a violation of 30 C.F.R. § 75.363(b).12 Order No. 4694426 provides: 

Adequate examinations are not being conducted and recorded on the Slope Belt 

at this mine. Inspections of the Slope Belt revealed missing & defective rollers, 

plus coal spillage from 200 ft to the tailpiece, approx 3300 ft up to 47 inches in 

depth and dried accumulations of coal fines on belt structure averaging 7 inches in 

height throughout the 3300 feet of area. Pre-shift record for 09/24/2012 and owl 

shift and evening shift do not list these hazards. Day shift on 09/25/2012 only lists 

spillage from 100 ft to 400 ft mark. These conditions are obvious to even the most 

casual observer. This is an unwarrantable failure to comply with a mandatory 

health and safety standard, constituting more than ordinary negligence. 

Gov. Ex. 7 (emphasis added). Womack characterized the cited violation as S&S and attributable 

to “high” negligence constituting an unwarrantable failure. The Secretary has proposed a 

$15,900.00 penalty for Order No. 4694426. Order No. 4694426 was timely abated on September 

25, 2012. 

ii. Fact of the Violation

As a threshold matter, there is a substantive distinction between the cited mandatory 

section in 75.363(b), which requires that examination books shall be maintained for the purpose 

of recording hazardous conditions found by mine examiners, and the mandatory standard 

requiring adequate pre-shift examinations in section 75.360(a)(1). See supra, n.9. It is irrefutable 

12 30 C.F.R. § 75.363(b) states: 

A record shall be made of any hazardous condition and any violation of the nine 

mandatory health or safety standards found by the mine examiner. This record 

shall be kept in a book maintained for this purpose on the surface at the mine. The 

record shall be made by the completion of the shift on which the hazardous 

condition or violation of the nine mandatory health or safety standards is found 

and shall include the nature and location of the hazardous condition or violation 

and the corrective action taken. This record shall not be required for shifts when 

no hazardous conditions or violations of the nine mandatory health or safety 

standards are found. 

38 FMSHRC Page 986
that Oak Grove maintained a pre-shift examination record book, given the examination book 

entries noted above. Consequently, at the hearing, I expressed my concern that the Secretary was 

alleging a violation of section 75.363(b) that requires that pre-shift examination records be kept, 

rather than section 75.360(a)(1) that requires that pre-shift examinations be adequately 

performed. Specifically: 

Judge: Why did you issue this 75.363(b) versus 75.360(a)[(1)]? 

Womack: Well, [363(b)] is the record of that examination. I feel very 

strongly that, you know, a mine examiner is the first—it’s the 

utmost defense that the miners have before they go into the mine. 

That examiner looks at an area where people are going to work and 

travel. If he doesn’t do his job, then you’ve got miners that are 

going into this area unaware. So if he failed to put that record 

down and notify the people that we have a problem here, then 

he’s—he’s not only failed at his job, he’s putting people in a 

hazardous situation. 

Judge: No, I understand, but I don’t know that it makes any difference, 

but wouldn’t it have been more appropriate based on this citation 

for you to believe that he—that you could have cited an inadequate 

pre-shift? 

Womack: Yes, I think I could have. 

Judge: Is there a substantive distinction between this, the failure to record 

under section 75.363(b), versus an inadequate pre-shift 

examination under 75.360(a)(1)? 

Womack: No, sir. I— 

Judge: Basically the same thing? 

Womack: I could have went actually either way. 

Judge: They’re basically the same thing; there’s no reason why you chose 

one over the other, is what I’m saying. 

Womack: No, sir, not other than, you know, just this 363(b) mentions the 

records. 

Judge: Okay. 

38 FMSHRC Page 987
Womack: To me, the record is the important thing here. Getting those 

hazards listed in the record so that action can be taken. 

Tr. 302-03. 

Womack asserts, in essence, that the mandatory standards in sections 75.360(a)(1) and 

75.363(b) are duplicative and indistinguishable. However, these mandatory standards are not 

duplicative in that they impose distinctly different duties on mine operators. Sumpter v. Sec’y of 

Labor, 763 F.3d 1292, 1301 (11th Cir. 2014) (holding that “citations and orders are not 

duplicative as long as the standards impose separate and distinct duties”). Contrary to Womack’s 

opinion, which addresses a question of law, these mandatory standards impose different 

obligations—to maintain an examination record book, and to perform adequate examinations, as 

evidenced by notations in the examination record book. In this regard, the failure to effectively 

note a hazardous condition in an existing pre-shift examination book after an examination occurs 

is a reflection on the adequacy of the examination, not whether the examination record book is, 

in fact, being maintained. 

Despite my expression of concern that section 75.360(a)(1), rather than section 

75.363(b), is the appropriate mandatory standard in question, to date, the Secretary has not, at 

trial or in his post-hearing brief, sought to modify or otherwise argue in the alternative that a 

violation of section 75.360(a)(1) is in issue. Make no mistake, I would have unhesitatingly 

granted the Secretary’s motion to amend Order No. 4694426 to include an alleged violation of 

section 75.360(a)(1), as undoubtedly Oak Grove would not have been prejudiced thereby. 

However, it is not the role of a Commission judge to be an eraser on the Secretary’s pencil. 

Consequently, having failed to assert a violation of the relevant mandatory standard in 

section 75.360(a)(1), Order No. 4694426 must be vacated. 

ORDER 

 In view of the above, IT IS ORDERED that Citation No. 8520665 and Order No. 

4694424 ARE AFFIRMED. Accordingly, IT IS ORDERED that Oak Grove Resources, LLC 

shall pay a penalty of $12,248.00 in satisfaction of Citation No. 8520665 and $32,800.00 in 

satisfaction of Order No. 4694424. 

IT IS FURTHER ORDERED that Order No. 8520664 IS MODIFIED from a section 

104(d)(2) order to a section 104(a) citation, thus deleting the unwarrantable failure designation. 

IT IS FURTHER ORDERED that the 104(a) Citation No. 8520664 IS MODIFIED from an 

S&S to a non-S&S citation. Accordingly, IT IS ORDERED that Oak Grove Resources, LLC 

shall pay a civil penalty of $5,200.00 in satisfaction of Citation No. 8520664. 

IT IS FURTHER ORDERED that Order Nos. 8520666 and 4694426 ARE 

VACATED. 

IT IS FURTHER ORDERED that consistent with the parties’ settlement terms, Oak 

Grove Resources, LLC SHALL PAY a total civil penalty of $54,188.00 in satisfaction of 

Citation Nos. 8524989, 8524999, 8524490, 8524979, 8524982, 8524987, 8524991, 8524993, 

38 FMSHRC Page 988
8524994, 8524995, 8524996, 7684600, 8524499, 8524500, 8526401, 8524983 and 8524491 in 

Docket No. SE 2013-352, and Order Nos. 8524255 and 8524258 in Docket No. SE 2013-301. 

In view of the above, IT IS ORDERED that Oak Grove Resources, LLC pay, within 40 

days of the date of this Decision, a total civil penalty of $104,436.00, consisting of a total civil 

penalty of $50,248.00 for the five citations and orders adjudicated in this proceeding, in addition 

to $54,188.00 for the 19 settled citations and orders.13

IT IS FURTHER ORDERED that upon timely receipt of the total $104,436.00 

payment, the civil penalty proceedings in Docket Nos. SE 2013-301, SE 2013-352, SE 2013-368, 

and SE 2013-399 ARE DISMISSED. 

/s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

Distribution: (Electronic and Certified Mail) 

Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

Jennifer Booth Thomas, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church 

Street, Suite 230, Nashville, TN 37219 

R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401 Liberty

Avenue, Pittsburgh, PA 15222

/acp 

13 Payment should be sent to the Mine Safety and Health Administration, U.S. 

Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please 

include the Docket No. and A.C. No. noted in the above caption on the check. 

38 FMSHRC Page 989
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

May 3, 2016 

DECISION AND ORDER 

Appearances: Daniel Brechbuhl, Esq, U.S. Department of Labor, Denver, CO, for the 

Petitioner; 

Douglas Graham, Esq., Oil-Dri Corporation of America, Chicago, IL, for 

the Respondent. 

Before: Judge L. Zane Gill 

This proceeding, under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (1994), involves five section 104(a) citations, 30 U.S.C. § 814(a), issued by the 

Department of Labor’s Mine Safety and Health Administration (“MSHA”) to Oil Dri Production 

Company at its Ripley Mine and Mill. The Secretary and the Respondent settled seven citations 

prior to trial: 8731992, 8731994, 8731995, 8731999, 8730316, 8730317, and 8730318. The 

parties presented testimony regarding the remaining five citations in Nashville, Tennessee. In 

summary, I find that: 

 For Citation No. 8731981, the Secretary failed to prove by a preponderance of the

evidence that the accumulated waste material created a fire hazard. I vacate the citation;

 For Citation No. 8731989, Oil Dri violated Section 56.20003(a), there was moderate

negligence, and I assess a penalty of $100.00;

 For, Citation No. 8731997, Oil Dri violated Section 56.14201(b), there was high

negligence, the significant and substantial designation was warranted, and I assess a

penalty of $4,300.00;

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

OIL DRI PRODUCTION COMPANY, 

 Respondent. 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 2013-0507 M 

A.C. No. 22-00035-325870

Docket No. SE 2013-0558 M 

A.C. No. 22-00035-328667

Docket No. SE 2014-0104 M 

A.C. No. 22-00035-337763

Mine: Ripley Mine and Mill 

38 FMSHRC Page 990
 For Citation No. 8731998, Oil Dri violated Section 56.17001, there was high negligence,

the significant and substantial designation was warranted, and I assess a penalty of

$4,800.00;

 For Citation No. 8636886, Oil Dri violated Section 56.14132(b)(1), there was high

negligence, the significant and substantial designation was warranted, and I assess a

penalty of $6,000.00.

Basic Legal Principles 

Significant and Substantial 

The citation and orders in dispute and discussed below have been designated by the 

Secretary as significant and substantial (“S&S”). 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). 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 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 

2007 (Dec. 1987). S&S enhanced enforcement is applicable only to violations of mandatory 

health and safety standards. Cyprus Emerald Res. Corp. v. FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 

1999). The Secretary bears the burden of proving all elements of a citation by a preponderance 

of the evidence. In re: Contests of Respirable Dust Sample Alteration Citations: Keystone Coal 

Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d, 151 F.3d 1096 (D.C. Cir. 1998); Jim 

Walter Res., Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary’s burden 

is to prove the violations and related allegations, e.g., gravity and negligence, by a 

preponderance of the evidence.”) 

In Mathies Coal Co., the Commission established the standard for determining whether a 

violation was S&S: 

In order to establish that a violation of a mandatory safety standard 

is significant and substantial under National Gypsum, the Secretary 

of Labor must prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard – that is, a measure of 

danger to safety – contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury in question will be of 

a reasonably serious nature. 

6 FMSHRC 1, 3-4 (Jan. 1984). 

The third element of the Mathies test presents the most difficulty when determining 

whether a violation is S&S. In U.S. Steel Mining Co., the Commission provided additional 

guidance: “[T]he 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.’” 7 FMSHRC 1125, 1129 (Aug. 1985) (citing U.S. Steel Mining Co., 6 FMSHRC 1834, 

38 FMSHRC Page 991
1836 (Aug. 1984)). The Secretary, however, “need not prove a reasonable likelihood that the 

violation itself will cause injury.” Cumberland Coal Res., 33 FMSHRC 2357, 2365 (Oct. 2011) 

(citing Musser Eng’g, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010)), aff’d, 717 F.3d 1020 (D.C. 

Cir. 2013). Further, the Commission has found that “the absence of an injury-producing event 

when a cited practice has occurred does not preclude a determination of S&S.” Id. (citing Elk 

Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005) and Blue Bayou Sand & Gravel, Inc., 18 

FMSHRC 853, 857 (June 1996)). This evaluation is also 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., 27 FMSHRC at 905; U.S. Steel 

Mining Co., 6 FMSHRC 1573, 1574 (July 1984).1 

Negligence 

“Negligence” is not defined in the Mine Act. The Commission, has, however, 

recognized that “[e]ach mandatory standard ... carries with it an

accompanying duty of care to avoid violations of the standard, and 

an operator’s failure to meet the appropriate duty can lead to a 

finding of negligence if a violation of the standard occurs.” A.H. 

Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining 

whether an operator met its duty of care, we consider what actions 

would have been taken under the same circumstances by a 

reasonably prudent person familiar with the mining industry, the 

relevant facts, and the protective purpose of the regulation. See 

generally U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984). 

Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015); Jim Walter Res., Inc., 36 FMSHRC 

1972, 1975 (Aug. 2014); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008). “Thus in 

making a negligence determination, a Judge is not limited to an evaluation of allegedly 

‘mitigating’ circumstances. Instead, the Judge may consider the totality of the circumstances 

holistically.” Brody Mining, LLC, 37 FMSHRC at 1702. 

Indeed, Part 100 regulations “apply only to the proposal of penalties by MSHA and the 

Secretary of Labor; under both Commission and court precedent, the regulations do not extend to 

the independent Commission, and thus the MSHA regulations are not binding in any way in 

Commission proceedings.” Id. at 1701-02 (citing Jim Walter Res., Inc., 36 FMSHRC at 1975 

n.4; Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[N]either the

ALJ nor the Commission is bound by the Secretary's proposed penalties ... we find no basis

upon which to conclude that [MSHA’s Part 100 penalty regulations] also govern the

1

 It must be noted that the Fourth and the Seventh Circuits have changed the 

Commission’s precedent under Mathies by placing the emphasis and bulk of the analysis on the 

second element of the test. See Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148 (4th Cir. 

2016); Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014). This 

Respondent, however, is not located in either of those Circuits, and thus, my analysis uses the 

traditional Mathies test. 

38 FMSHRC Page 992
Commission.”), aff'g 5 FMSHRC 287 (Mar. 1983)). Although the Secretary’s part 100 

regulations are not binding on the Commission, the Secretary’s definitions of negligence in those 

provisions are illustrative. 

Mitigation is something the operator does affirmatively, with knowledge of the potential 

hazard being mitigated, that tends to reduce the likelihood of an injury to a miner. This includes 

actions taken by the operator to prevent or correct hazardous conditions. 

Gravity 

The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is 

often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 

1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (Mar. 1983), 

aff’d, 736 F.2d 1147 (7th Cir. 1984) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 

(Apr. 1987)). The seriousness of a violation can be examined by looking at the importance of 

the standard which was violated and the operator’s conduct with respect to that standard, in the 

context of the Mine Act’s purpose of limiting violations and protecting the safety and health of 

miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ Fauver). 

The gravity analysis focuses on factors such as the likelihood of an injury, the severity of an 

injury, and the number of miners potentially injured. The Commission has recognized that the 

likelihood of injury is to be made assuming continued normal mining operations without 

abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC at 1130. 

Penalty 

The principles governing the authority of Commission administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges the “authority to assess all civil 

penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing 

penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the 

Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess 

said penalty. 29 C.F.R. § 2700.28. 

Under section 110(i) of the Mine Act, the Commission is to consider the following when 

assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness 

of such penalty to the size of the business of the operator charged; (3) whether the operator was 

negligent; (4) the effect on the operator’s ability to continue in business; (5) the gravity of the 

violation; and (6) the demonstrated good faith in abatement of the violative condition. 30 U.S.C 

§ 820(i). Thus, the Commission alone is responsible for assessing final penalties. See

Sellersburg Stone Co. v. FMSHRC, 736 F.2d at 1151-52 (“[N]either the ALJ nor the Commission

is bound by the Secretary's proposed penalties ... we find no basis upon which to conclude that

[MSHA’s Part 100 penalty regulations] also govern the Commission.”); see American Coal Co.,

35 FMSHRC 1774, 1819 (June 2013) (ALJ Zielinski).

The Commission has repeatedly held that substantial deviations from the Secretary's 

proposed assessments must be adequately explained using the Section 110(i) criteria. E.g., 

38 FMSHRC Page 993
Sellersburg Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May 

2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000). A judge need not make 

exhaustive findings but must provide an adequate explanation of how the findings contributed to 

his or her penalty assessments. Cantera Green, 22 FMSHRC at 621. 

Stipulations

1. Oil Dri was at all times relevant to these proceedings engaged in mining activities at the

Ripley Mine and Mill in or near Ripley, Mississippi;

2. Oil Dri’s mining operations affect interstate commerce;

3. Oil Dri is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977,

30 U.S.C. § 801 et seq.;

4. Oil Dri is an “operator” as that word is defined in section 3(d) of the Mine Act, 30 U.S.C.

§ 803(d), at the Ripley Mine and Mill (Federal Mine I.D. No. 22-00035) where the

contested citations in these proceedings were issued;

5. The Administrative Law Judge has jurisdiction over these proceedings pursuant to

section 105 of the Act;

6. On or about May 20, 2013 through May 28, 2013, MSHA Supervisor Inspector Billy

Randolph was acting as a duly authorized representative of the United States Secretary of

Labor, assigned to MSHA, and was acting in his official capacity when conducting the

inspection and issuing the citations from dockets SE 2013-507-M, 2013-558-M, and

2014-104-M at issue in these proceedings;

7. The citations at issue in these proceedings were properly served upon Oil Dri as required

by the Act, and were properly contested by Oil Dri;

8. The citations at issue in these proceedings may be admitted into evidence by stipulation

for the purpose of establishing their issuance. The truthfulness or relevancy of any

statements asserted therein is not stipulated to by the parties;

9. Oil Dri demonstrated good faith in abating the violations;

10. Without Oil Dri admitting the propriety or reasonableness of the penalties proposed

herein, the penalties proposed by the Secretary in this case will not affect the ability of

Oil Dri to continue in business.

Joint Prehearing Report, pg. 1-2. 

38 FMSHRC Page 994
Citation No. 8731981 

Inspector Randolph2

 issued Citation No. 8731981, pursuant to Section 104(a) of the Mine 

Act, to Oil Dri at its Ripley mine May 20, 2013, alleging a violation of 30 C.F.R. § 56.4104(a). 

(Ex. S-3) Section 56.4104(a), a mandatory safety standard, states that “[w]aste materials, 

including liquids, shall not accumulate in quantities that could create a fire hazard.” 30 C.F.R. § 

56.4104(a). The citation alleges: 

Oil and other combustible material had accumulated around the 

new Ag hot kiln. 55 gallon drums and gallon buckets of lubricant 

were stored on the working platform. Miner[s] are exposed to this 

hazard daily during routine maintenance. Injuries to miners would 

result in smoke inhalation, burns, and other disabling injuries. 

(Ex. S-3) 

The citation alleged that an injury was unlikely but could be reasonably expected to be 

permanently disabling, one person could be affected, and the violation was a result of moderate 

negligence. Id. The Secretary argued that the accumulation of waste materials (excess oil from a 

kiln stored in open buckets) could create a fire hazard if exposed to heat because of its inherent 

combustibility. (Sec’y Br. at 6) The Respondent argued that there was no risk of ignition 

because the oil’s flashpoint exceeded the temperature in the area. (Resp. Br. at 7) The 

Respondent also argued a lack of fair notice because MSHA inspectors had never cited Oil Dri 

for this or identified it as a violation in the past. (Resp. Br. at 8) 

The Secretary bears the burden of proving all elements of a citation by a preponderance 

of the evidence. In re: Contests of Respirable Dust Sample Alteration Citations: Keystone Coal 

Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d, 151 F.3d 1096 (D.C. Cir. 1998); Jim 

Walter Res., Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary’s burden 

is to prove the violations and related allegations, e.g., gravity and negligence, by a 

preponderance of the evidence.”). Here, the Secretary must prove by a preponderance of 

evidence that waste material accumulated, and that the accumulation “create[d] a fire hazard.” 

30 C.F.R. § 57.4104(a). 

The regulation, however, is silent on the quantity of waste that is 

allowed to accumulate before a waste pile is considered to be a fire 

hazard. Therefore, the appropriate analysis is whether a 

“reasonably prudent person familiar with the mining industry and 

2

 At the time of the hearing, Randolph had been working for MSHA for approximately 15 

years, and had been a field office supervisor since 2005. (Tr. 21:5-22) He had approximately 40 

years’ experience in the mining industry before coming to MSHA. (Tr. 24:15-16) A trainee, Bill 

Hyde, was present during the inspections, shadowed Randolph, wrote the field notes, and 

assisted in drafting the citations. However, at the time of the inspection he was not an authorized 

representative, and did not sign his name on the citations. None of this decision is based on 

Hyde’s field notes. 

38 FMSHRC Page 995
the protective purposes of the standard would have recognized the 

specific prohibition or requirement of the standard.” Canon Coal 

Co., 9 FMSHRC 667, 668 (Apr. 1987); Rock of Ages Corp. v. 

Secretary of Labor, 170 F.3d 148, 156 (2d Cir. 1999); Walker 

Stone Co. v. Secretary of Labor, 170 F.3d 1080, 1083-1084 (10th 

Cir. 1998). This test is an “objective – not subjective – analysis of 

all the surrounding circumstances, factors, and considerations 

bearing on the inquiry in issue.” Canon Coal Co., 9 FMSHRC at 

668. In Essroc Cement Corp., 33 [F]MSHRC 459 (Feb. 2011)

(ALJ Manning), Administrative Law Judge Manning vacated a

citation that alleged a violation of § 56.4104(a) and found that:

“[T]he Secretary did not meet the burden of establishing that the

condition created a fire hazard. The flashpoint of hydraulic fluid is

quite high and there were no ignition sources in the area. A spark

or other similar event would be insufficient to ignite the fluid [...]

Without a realistic possibility of a fire hazard, there is no

violation.” 33 FMSHRC at 465.

Hecla Ltd., 36 FMSHRC 2600, 2604 (Sept. 2014) (ALJ Gill) (footnotes omitted). 

A trunnion is used to rotate the kiln at Oil Dri’s mine. High flashpoint oil is used to 

prevent steel-on-steel contact where the kiln drum contacts the trunnion. The oil must be 

changed frequently. (Tr. 238:25 – 239:17) The waste oil at issue here came from the trunnion’s 

oil-changes. Id. 

There is no dispute that high flashpoint waste oil was stored in buckets on a walkway 

near the kiln.3

 (Tr. 35:25 – 36:6; Tr. 40:18-23; Tr. 41:13-21; Tr. 241:25 – 242:3; Tr. 275:5-11) 

The Secretary argued that if the oil got hot enough, it would ignite. (Tr. 41:25 – 42:2) However, 

Inspector Randolph could not remember what the oil was called or what the label on the buckets 

said. (Tr. 119:1-11) He believed that the trunnion oil was a mixture of two oils, one with a 

flashpoint of 250 degrees Fahrenheit, and the other 700 degrees. (Tr. 44:11-17) Randolph did 

not say where he got this information. Respondent’s witness, Steve Gibens,4 testified that Oil 

Dri uses 460 oil, which has a flashpoint of 338 degrees Fahrenheit. (Tr. 243:9 – 243:16; Ex. R-7) 

I credit Gibens’ testimony regarding the type of oil, its flashpoint, and its use. 

3

 There is a dispute whether there were rags in the area as well. However, the only 

testimony from Randolph about rags in the area were “yes” answers to two leading questions 

from Secretary’s counsel. Rags were not mentioned in the citation. There is no testimony about 

how many rags there were, where the rags were located, or whether they were saturated with oil. 

There is also no evidence in the record to show whether or how the rags could ignite. I therefore 

disregard all testimony about the presence of rags in the area. It must be noted, however, that 

even if I found that there were rags in the area, there was no ignition source, and therefore, no 

fire hazard. 

4

 At the time of the hearing, Gibens was the plant superintendent. (Tr. 236:9-13) 

38 FMSHRC Page 996
Despite the fact that Randolph testified that it was hot in the area where the oil was kept 

(Tr. 40:25 – 41:6), he did not measure the temperature. (Tr. 118:19-21) Gibens, however, 

testified that at the cap of the trunnion, where the oil is applied, the temperature is approximately 

200 degrees Fahrenheit. (Tr. 245:2-4) Additionally, the temperature of the handrails and the 

catwalk in the area was approximately 150 degrees Fahrenheit. (Tr. 245:5-6) These temperatures 

are not high enough to ignite the oil. Randolph also testified that there were no open flames in 

the area and no other ignition source. (Tr. 32:23 – 33:3; Tr. 42:9-12; Tr. 122:1-4) There was no 

realistic fire hazard here. The Secretary failed to prove by a preponderance of the evidence that 

the accumulated waste material created a fire hazard. The citation is vacated. 

Citation No. 8731989 

Randolph issued Citation No. 8731989, pursuant to Section 104(a) of the Mine Act, to 

Oil Dri at its Ripley mine on May 20, 2013, alleging a violation of 30 C.F.R. § 56.20003(a). (Ex. 

S-4) Section 56.20003(a), a mandatory safety standard, states that “[w]orkplaces, passageways,

storerooms, and service rooms shall be kept clean and orderly.” 30 C.F.R. § 56.20003(a). The

citation alleges that:

The work walk way adjacent to the RVBM dryer had spillage 

running over the toe boards extending down approximately 8 feet 

in length[,] and also on the tail end of the walkway [there] was 

spillage on the steps extending up [the] belt line another 8 foot 

[sic] approximately. A slip and fall hazard existed. 

(Ex. S-4) 

Violation 

The citation alleged that an injury was unlikely, that an injury could reasonably be 

expected to be permanently disabling, one person could be affected, and the violation was a 

result of the Respondent’s moderate negligence. Id. The regulation has two elements: 1) the 

area cited must be a “workplace,” “passageway,” “storeroom,” or “service room”; and 2) the area 

shall be kept clean and orderly. 30 C.F.R. § 56.20003(a). The Respondent did not dispute that 

an accumulation existed, but it argued the area was not a “workplace” or a “passageway.” (Resp. 

Br. at 9) 

“Workplace” and “passageway” are not defined in the Mine Act or in the Part 56 

definitions section. The Commission “looks to the commonly understood definition of the 

term.” Taft Prod. Co., 36 FMSHRC 522, 526 (Feb. 2014) (ALJ Gilbert) (citing Nat’l Cement 

Co., 27 FMSHRC 721, 726 (Nov. 2005); Jim Walter Res., Inc., 28 FMSHRC 983, 987 (Dec. 

2006); Drillex, Inc., 16 FMSHRC 2391, 2395 (Dec. 1994) (stating that “[i]n general, absent 

express definitions, statutory terms should be defined according to their commonly understood 

definitions.”)). However, the ordinary meaning of the words used in a statute cannot be applied 

to produce absurd results. Jim Walter Res., Inc., 28 FMSHRC at 987; Nat’l Cement, 27 

FMSHRC at 728. In Taft, the ALJ defined workplace as “a place where work is done”; defined 

passageway as “a way that allows passage”; and defined passage as a “way of exit or entrance: a 

38 FMSHRC Page 997
road, path, channel, or course by which something passes.” Taft Prod. Co., 36 FMSHRC at 526 

(citing Merriam Webster’s Online Dictionary). When applied to the facts before me, these 

definitions do not produce absurd results. 

Randolph believed the area in question was a travelway, or passageway, because there 

were handrails, toe boards, and a ladder going up to a platform. (Tr. 47:2-8) Additionally, 

miners worked in the area. Miners did various types of maintenance on the machinery in the 

area, e.g., changing out motors, equipment, belt sheathing, or simply greasing or servicing 

equipment. (Tr. 47:12-23) No one was working in the area at the time the citation was written, 

and there were no footprints in the spillage. (Tr. 128:15-22) The Respondent admitted that 

miners would access the area from time to time to clean or perform maintenance. (Tr. 251:18-22) 

A reasonably prudent person familiar with the mining industry would recognize that the 

area in question was a workplace and a passageway. Accumulation of Oil Dri’s clay product in 

this area was thus prohibited under the standard. See U.S. Silica Co., 32 FMSHRC 1699, 1706-

08 (Nov. 2010) (ALJ Miller); USS, a Div. of USX Corp., 13 FMSHRC 145, 153 (Jan. 1991) (ALJ

Broderick); Brubaker-Mann, Inc., 8 FMSHRC 1482, 1483 (Sept. 1986) (ALJ Morris). I 

conclude that Oil Dri violated Section 56.20003(a). 

Gravity and Negligence 

The spillage in question was approximately four inches deep and eight feet long. (Tr. 

49:11 – 50:5) Randolph testified that a miner could not access the middle of the belt line without 

going through the spillage. (Tr. 131:12-14) Randolph envisioned slip, trip, and fall hazards, 

which could result in restricted duty injuries or worse. (Tr. 49:15 – 50:20) Randolph believed an 

injury was unlikely because miners were not in the area on a regular basis. Management would 

have to send a miner to the area for a specific reason. (Tr. 53:6-16) Randolph did not expect 

more than one person to fall at a time. (Tr. 51:14-20) I agree. 

Randolph characterized the negligence as moderate because Oil Dri did not have a 

history of the committing violation, and it cleaned the area daily. (Tr. 52:9-14) A reasonably 

prudent person familiar with the mining industry would not have allowed clay spillage to 

accumulate as it did in this area. The violative condition should have been found during a 

workplace examination. I agree that this violation arose from moderate negligence. 

Penalty 

The operator does not have a history of violating this standard. The mine operates 

128,832 mine hours per year. The operator was moderately negligent. An injury here could 

result in lost work days or restricted duty. Payment of a penalty will not the affect the operator's 

ability to continue in business. The operator demonstrated good faith in abating the violation. 

For these reasons, I assess a penalty of $100.00. 

38 FMSHRC Page 998
Citation No. 8731997 

Randolph issued Citation No. 8731997, pursuant to Section 104(a) of the Mine Act, to 

Oil Dri at its Ripley mine on May 21, 2013, alleging a violation of 30 C.F.R. § 56.14201(b). (Ex. 

S-5) Section 56.14201(b), a mandatory safety standard, states: “[w]hen the entire length of the

conveyor 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 given, the conveyor shall be started or a second warning shall be

given.” 30 C.F.R. § 56.14201(b). The citation alleges that:

Five open conveyors were noted as not having an audible or start 

up warning system installed. A system to alert person who could 

be exposed of [sic] the hazard of the equipment starting was not 

provided. Other exposed belt conveyors were also not provided 

with a warning system. Crushing fatal injuries are likely to result 

if normal mining operation continues to exist with this hazard. 

(Ex. S-5) 

Violation 

The citation alleged that an injury was reasonably likely, could reasonably be expected to 

be fatal, the violation was significant and substantial, there was moderate negligence, and one 

person could be affected. (Ex. S-5) There is no dispute that the entire length of the conveyor was 

not visible from the start switch. (Tr. 58:8-13; Tr. 234:2-8) There were approximately five 

conveyors of different lengths located throughout the mine. (Tr. 58:18-24) The Respondent put 

on evidence that a manual start-up alarm5

 was in place and all operators were trained to use it.6

(Sec’y Br. at 15; Resp. Br. at 10) Respondent argued that the citation should be vacated. (Resp. 

Br. at 10) 

It was very noisy in the area where the conveyors were located. (Tr. 59:3-5) Inspector 

Randolph felt that a permanently installed start-up alarm of some sort was needed to warn miners 

working near conveyors to stand clear when the conveyors were about to start. (Tr. 61:15-23; 

Tr.139:19-23) During the inspection, Randolph asked the plant operator and the miners’ 

representative if there was a start-up alarm for the conveyor belts. Both admitted that there was 

none. (Tr. 55:23 – 56:18; Tr. 61:1-6; Tr. 136:14-20) Both also admitted that start-up alarm 

systems had existed in the past, but none was in place at the time of the inspection. (Tr. 136:14-

20) 

The day after the inspection, the Respondent claimed that a manual alarm system was, in 

fact, in place. (Tr. 64:14-20; Tr. 228:25 – 229:14; Tr. 256:8-11) The Respondent’s witnesses 

testified that miners were trained to activate the alarm before the conveyor belt was turned on. 

5

 This case did not deal with whether a visible warning device was in place. 

6

 There had been no training for a start-up alarm system since August 2011. (Ex. R-6)

38 FMSHRC Page 999
But, the miners present during the inspection, including the plant operator, did not know an 

alarm system existed. (Tr. 228:18-21; Tr. 279:4-7) 

Respondent’s post-hearing argument focused on the language of the regulation. 

Respondent argued that all the regulation required was that a start-up alarm system, which could 

be a manual alarm, be installed. (Resp. Reply Br. 18-19) It is true that having a manual alarm 

installed can satisfy the standard. See Tilcon Conn., Inc., 18 FMSHRC 90, 95-96 (Jan. 1996) 

(ALJ Hodgdon); MSHA, U.S. Dep’t of Labor, Program Policy Manual, Vol. IV, Part 56/57, at 

54 (Feb. 2003: Release IV-21) (stating the standard “has been uniformly interpreted by MSHA, 

and its predecessor organizations, to include both automatic and manual conveyor alarm 

systems”). However, merely installing a manual alarm defeats the fundamental purpose of the 

Mine Act, which is to protect the health and safety of miners. To satisfy the standard, an alarm 

must be installed and actually used before the conveyor starts. Anything else “would thwart the 

underlying purpose of the standard and must be avoided.” RAG Cumberland Res., 26 FMSHRC 

639, 648 (Aug. 2004) (citing Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993)). 

Indeed, the purpose of the Part 56 regulations is “the protection of life, the promotion of health 

and safety, and the prevention of accidents.” 30 C.F.R. § 56.1. The mere installation of a startup alarm does not satisfy the purpose of the standard. I conclude that Oil Dri violated Section 

56.14201(b). 

Negligence 

Randolph testified that there was an alarm mechanism for shut-down, but not for start-up. 

To him, this proved that the Respondent had to know that there was no start-up alarm. (Tr. 

66:16-19) Randolph justified the moderate negligence determination because the violating 

condition had existed for years, which he felt constituted a form of mitigation based on “fair 

notice.” (Tr. 67:21 – 68:2) It is unclear from the record what Randolph’s reference to “fair 

notice” meant or how it related to mitigation. In general, fair notice is not considered a 

mitigating circumstance. Mitigation is something the operator does affirmatively, with 

knowledge of the potential hazard being mitigated, that tends to reduce the likelihood of an 

injury to a miner. Nonetheless, Oil Dri was not performing required workplace exams, which, if 

it had, would have alerted miners to the existence or lack of a start-up alarm. (Tr. 62:22 – 63:2; 

Tr. 64:5-13; Tr. 135:20-24) 

I find that the mine had not used a start-up alarm system for years, had not been 

performing workplace examinations, and the miners, including the plant operator, did not know 

anything about a start-up alarm. It is clear that the Respondent failed to train its employees 

properly and failed to perform adequate workplace examinations. A reasonably prudent person 

familiar with the mining industry would have known of the need for and lack of a start-up alarm 

system, would have installed such a system, and would have trained miners to use the start-up 

alarm before starting the conveyor. I conclude that this violation arose from high negligence. 

Gravity 

Randolph believed this violation was reasonably likely to cause a fatal injury because he 

was aware of fatalities resulting from this type of violation in the past. (Tr. 62:4-12) He testified 

38 FMSHRC Page 1000
to the danger inherent in a conveyor starting up when miners are not aware of it. (Tr. 62:4-12) 

Randolph believed that only one miner would be involved if the conveyor started without an 

alarm. (Tr. 65:17-21) I agree with the inspector’s assessment. 

Significant and Substantial 

The first and fourth prongs of the Mathies test have been satisfied. Respondent’s failure 

to have and use a start-up alarm created a discrete safety hazard which could have resulted in 

serious injuries to a miner. The remaining question is whether there was a reasonable likelihood 

that the hazard contributed to would result in an injury. 

Randolph designated the gravity as reasonably likely to occur because there were 

multiple conveyors in the plant, and because the workspace next to the conveyors was confined. 

(Tr. 62:13-21) A miner could be seriously injured by a conveyor starting up without his 

knowing about it. (Tr. 73:16-20) It is reasonably likely that an unsuspecting miner working on a 

belt could get pulled into the conveyors. 

I conclude that the Secretary proved by a preponderance of the evidence that the 

significant and substantial designation was warranted here. 

Penalty

The operator does not have a history of violations for this standard. The mine operates 

128,832 mine hours annually. The operator was highly negligent, and the violation was S&S. A 

fatal injury could have resulted. Payment of a penalty will not affect the operator’s ability to 

continue in business. The operator demonstrated good faith in the abatement of the violative 

condition. I assess a penalty of $4,300.00. 

Citation No. 8731998 

Randolph issued Citation No. 8731998, pursuant to Section 104(a) of the Mine Act, to 

Oil Dri at its Ripley mine on May 21, 2013, alleging a violation of 30 C.F.R. § 56.17001. (Ex. S6) Section 56.17001, a mandatory safety standard, states that “[i]llumination sufficient to

provide safe working conditions shall be provided in and on all surface structures, paths,

walkways, stairways, switch panels, loading and dumping sites, and work areas.” 30 C.F.R. §

56.17001. The citation alleges that:

The truck warehouse loading dock employee is stated [sic] to 

average 4 to 6 trucks at night being loaded. The illumination 

where the trucks back up into the locking system was not adequate. 

The light directly above the loading surface perimeter would not 

come on. Also four other lights surrounding the dock area was 

[sic] not working. Miners climb down the dock and manually 

38 FMSHRC Page 1001
chock the truck wheels at times. A hazard to one of these miners 

exist [sic] of being crushed by a truck due to poor illumination. 

(Ex. S-6) 

Violation 

The citation alleged that an injury was reasonably likely, could reasonably be expected to 

be fatal, the violation was significant and substantial, there was a high degree of negligence, and 

one person could be affected. (Ex. S-6) The parties disputed whether there was sufficient 

illumination at the loading dock. 

The Commission has found that the judge must make a factual determination based on 

the working conditions in the cited area and the nature of the illumination provided to determine 

whether there was “illumination sufficient to provide safe working conditions.” Capitol 

Aggregates, Inc., 3 FMSHRC 1388, 1388 (June 1981), aff’d, 671 F.2d 1377 (5th Cir. 1982) 

(unpublished table decision). Randolph admitted that MSHA’s standards do not speak of a 

minimum number of lights. It is up to the inspector to determine whether there was sufficient 

illumination. (Tr. 148:21 – 149:15) 

Randolph testified that when he inspected the loading dock it was dark. Five out of the 

seven lights installed at the loading dock were not working. (Tr. 75:15-19; Tr. 78:20 – 79:1; Tr. 

145:9-17; Ex. S-6) He asked workers at the dock if the lights could be turned on. The lights 

were burnt out, not turned off. (Tr. 79:4-11) Respondent admitted that at least one of the loading 

dock’s main lights was not functioning on the day of the inspection. (Tr. 255:25 – 266:15) 

Randolph testified that when a truck backed into the loading dock, there was an area 

approximately 150 feet in back of it with no light at all. (Tr. 145:9-17) He did not think there 

was sufficient lighting at the loading dock, particularly in the area where the trucks maneuvered 

to back into the dock. He believed the lack of illumination violated the intent of the standard, 

which is to prevent a truck driver from running over a miner while backing up. (Tr. 156:20-23) 

Respondent argued that the lights in the loading dock area were sufficient to illuminate 

the dock itself and several feet beyond it. (Tr. 196:18 – 197:7; Tr. 219:14-20; Tr. 222:24 – 223:2; 

Tr. 226:16-18) 

Respondent’s photo exhibits R-12 and R-13 were not taken the day of the inspection. 

They were taken at a later date and showed more working lights than existed at the time of the 

inspection. The photos show a shed with lights which had not been built at the time of the 

inspection. All four lights on the loading dock are on in the photos, even though the Respondent 

admitted at least one of them was out at the time of the inspection. (Tr. 180:15-18; Tr. 284:16-

23; Tr. 285:10-16; Ex. R-11) 

Based on Randolph’s testimony and the photo exhibits R-11, R-12, and R-13, I find that 

the illumination at the loading dock was insufficient. Respondent violated Section 56.17001. 

38 FMSHRC Page 1002
 Negligence 

 Randolph chose to classify this violation as involving high negligence because there had 

been a fatality at a sister plant under similar circumstances, and the miners present during this 

inspection knew about it. (Tr. 81:15-17; Tr. 83:2-9; Tr. 92:3-10; Ex. S-10) Additionally, 

Randolph testified that to ameliorate the lack of lighting, the Respondent should have used a 

spotter to help drivers back their trucks into the loading dock. (Tr. 91:11-16) Respondent used a 

spotter at another dock at the same mine site. (Tr. 80:22 – 81:6) Randolph asked the miners 

present during the inspection if the Respondent performed workplace exams, to which they 

responded that they did not. (Tr. 75:20-23) This was an aggravating circumstance for Randolph. 

 A reasonably prudent person familiar with the mining industry would have made sure 

that the loading dock was adequately illuminated at night, especially when trucks back into the 

dock. Further, if the Respondent had been performing workplace exams, the poor illumination 

issue would have been corrected. I concur with Inspector Randolph that this violation involved 

high negligence. 

Gravity 

It was reasonably likely that a pedestrian walking in the poorly lit loading dock parking 

area could be hit and possibly killed by a truck. (Tr. 81:10-12; Tr. 90:20-22) If this were to 

occur, it is likely that only one person would be injured. (Tr. 90:24-25) 

Significant and Substantial 

The first and fourth prongs of the Mathies test have been satisfied. The lack of adequate 

illumination created a discrete safety hazard which could have resulted in serious injury. The 

remaining issue is whether there was a reasonable likelihood that the hazard would occur. 

Miners loaded five to seven trucks at this dock every night. (Tr. 81:22-23) Randolph 

observed truck drivers getting out of their trucks and walking around the loading area. (Tr. 89:2-

13) There was poor visibility due to insufficient illumination. The truck Randolph saw backing 

into the dock area had no back-up alarm (discussed below), and pedestrians were in the area. (Tr. 

92:11-20) It was reasonably likely that this situation could result in serious injury to a miner. 

The Secretary proved by a preponderance of evidence that the significant and substantial 

designation was warranted. 

Penalty

The operator had no history of violating this standard. The mine operated 128,832 mine 

hours per year. The operator was highly negligent and the violation was S&S. It was reasonably 

likely that a fatality could result from this violation. Payment of a penalty will not affect the 

operator’s ability to continue in business. The operator the demonstrated good faith in abating 

the violation. A penalty of $4,800.00 is justified and reasonable. 

 

38 FMSHRC Page 1003
Citation No. 8636886 

Randolph issued Citation No. 8636886, pursuant to Section 104(a) of the Mine Act, to 

Oil Dri at its Ripley mine on May 28, 2013, alleging a violation of 30 C.F.R. § 56.14132(b)(1). 

(Ex. S-7) Section 56.14132(b)(1), a mandatory safety standard, states that: 

[w]hen the operator has an obstructed view to the rear, selfpropelled mobile equipment shall have -- (i) An automatic reverseactivated signal alarm; (ii) A wheel-mounted bell alarm which

sounds at least once for each three feet of reverse movement;

(iii) A discriminating backup alarm that covers the area of

obstructed view; or (iv) An observer to signal when it is safe to

back up.

30 C.F.R. § 56.14132(b)(1) (emphasis added). The citation alleges that: 

The 18 wheel over the road customer truck Freightliner #104 vin# 

211J44788 had backed into the loading dock without an automatic

alarm. The fork lift operator stated he was in the area on the 

ground at this time [and] stated that he had spotted the truck. The 

driver had no idea of a spotter program and [the] plant supervisor 

stated they [did not have] a spotter program. Crushing fatal 

accident had occurred at another Oil Dry [sic] plant on Oct. 20th

2010[.] [T]he company has exhibited aggravated conduct by not 

controlling this violation at this operation. 

(Ex. S-7) 

Violation

The citation alleged that injury was reasonably likely and could reasonably be expected 

to be fatal, the violation was significant and substantial, it involved high negligence, and one 

person would be affected. (Ex. S-7) This citation was issued a week after the first set of citations 

described above, when Randolph went back to the mine for abatement purposes. He observed a 

truck at the same loading dock as the previous week (Tr. 94:10-18) backing up without a back-up 

alarm or spotter.7

 (Tr. 79:24 – 20:2; Tr. 94:20-22; Tr. 94:24 – 95:2; Tr. 95:25 – 96:6; Tr. 97:18-

24) 

The Respondent argued that it had an observer program in place to signal trucks while 

backing up into the loading dock. (Resp. Br. at 16) It argued that as soon as a truck came on site, 

the driver was directed by signage to go to the drivers’ lounge to sign in, receive instructions 

7

 The Respondent argued that there is a difference between a “spotter,” as Randolph 

testified, and an “observer,” as the regulation signifies. It is clear from the record that “spotter” 

and “observer” mean the same thing for purposes of this regulation. (Resp. Br. at 15) As such, I 

find the Respondent’s argument unconvincing. 

38 FMSHRC Page 1004
and a loading slip, and for the Respondent to tell the driver which loading dock to use. (Tr. 

182:11 – 183:6; Tr. 198:23 – 199:2) After that, the miner working the loading dock (the same 

miner who checked the truck in) was to observe the truck back into the loading dock and lock the 

truck into place. (Tr. 183:19 – 184:3; Tr. 199:19-25) The Respondent claimed that if the 

observer saw a pedestrian miner in the path of a truck backing up, the observer could stop the 

truck. (Tr. 222:10-17) 

Despite this argument and the testimony of Respondent’s witnesses, Randolph testified 

that he saw no spotter or observer and concluded that no such program was in place, and if it was 

in place, it was ineffective. (Tr. 100:13 – 101:25; Tr. 173:2-5) Indeed, when Randolph asked a 

driver if there was a spotter program in place at the loading dock, the driver denied knowing 

about it. (Tr. 89:25 – 90:9) Randolph also asked Diego Mejia8

 if the Respondent had a spotter 

program, and Mejia answered in the negative. (Tr. 179:15-20) Even if the Respondent intended 

for there to be an observer in place, there was no communication between the miner claiming to 

be the observer and the driver backing into the loading dock. (Tr. 90:13-15) This defeats the 

purpose of the standard, which is to protect pedestrian miners from being hit by a truck backing 

up. 

I find that there was no observer program in place, and if Respondent intended for there 

to be one in place, it was ineffective. A reasonably prudent person familiar with the mining 

industry would have had an observer program in place, and would have communicated this to the 

truck drivers. Oil Dri violated Section 56.14132(b)(1). 

Negligence

Randolph believed this citation arose from high negligence because there had been a fatal 

truck accident at a related company, the Respondent knew about it, and Randolph considered it 

Respondent’s responsibility to ensure that a similar accident did not happen again. (Tr. 107:10-

14; Tr. 108:2-7) This was the only testimony regarding the negligence determination. 

This is sufficient evidence to support the conclusion that a reasonably prudent person 

familiar with the mining industry would have assured there was an adequate observation 

program in place and properly implemented. The inspector had been at the mine the previous 

week discussing the fatality at the sister plant and the lighting issues at the loading dock, which 

implicated a claim by the Respondent that it had an observer program in place. This violation 

involved high negligence. 

Gravity

It is likely that a miner would be killed if hit by a truck backing into the loading dock 

area. (Tr. 105:15-19) Randolph believed that one person would be affected per incident. (Tr. 

105:21-23) I agree. 

8

 At the time of the inspection, Mejia was the night shift plant supervisor. (Tr. 177:18) 

38 FMSHRC Page 1005
Significant and Substantial

The first and fourth prongs of the Mathies test have been met. The failure to have an 

observer in place to monitor a truck without an alarm while backing up creates a discrete safety 

hazard. This hazard could have resulted in serious injuries. The remaining question is whether 

there was a reasonable likelihood that the hazard would result in an injury. 

Randolph thought it reasonably likely that an accident would happen because truck 

drivers get out of their trucks and walk around in the loading dock area for various reasons, 

including chocking their wheels (Tr. 105:25 – 107:1; Tr. 219:23-220:3) or going into the break 

room or bathroom. This increases the chance that one of them might get hit by another driver’s 

truck, particularly at night. (Tr. 102:14 – 103:6; Tr. 1047:6-11; Ex. S-8) Randolph felt that the 

lack of a functioning observer system was unsafe, even if the lighting issue were resolved. (Tr. 

96:10-16) 

The Secretary proved by a preponderance of evidence that the significant and substantial 

designation was warranted. 

Penalty

The operator does not have a history of violating this standard. The mine operates 

128,832 mine hours per year. The operator was highly negligent and the violation was S&S. A 

fatal injury could have resulted. Payment of a penalty will not affect the operator's ability to 

continue in business. The operator demonstrated good faith in abating the violating condition. 

The Secretary specially assessed this penalty at $9,300.00. I find that because Randolph had 

been at the mine the previous week discussing the loading dock and the issues that were present, 

Oil Dri should have been on notice that greater efforts to comply with the Mine Act were 

warranted. I therefore assess the penalty at $6,000.00. 

WHEREFORE, it is ORDERED that Oil Dri pay a penalty of $15,200.00 within thirty 

(30) days of the filing of this decision.

It is further ORDERED that Citation No. 8731981 be VACATED.

/s/ L. Zane Gill 

L. Zane Gill

Administrative Law Judge

38 FMSHRC Page 1006
Distribution: 

Daniel Brechbuhl, Esq., U.S. Department of Labor, Office of the Solicitor, Cesar E. Chavez 

Memorial Building, 1244 Speer Blvd., Suite 216, Denver, CO 80204 

Douglas Graham, Esq., Oil-Dri Corporation of America, 410 N. Michigan Avenue, Suite 400, 

Chicago, IL 60611 

38 FMSHRC Page 1007
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9950 / FAX: 202-434-9949 

May 3, 2016 

DECISION AND ORDER

Appearances: Daniel R. McIntyre, Esq., Office of the Solicitor, U.S. Department of 

Labor, Denver, Colorado, for Petitioner 

W. Ben Hart, CMSP, W. Ben Hart & Associates, Tallahassee, Florida, for

Respondent

Before: Judge McCarthy 

I. STATEMENT OF THE CASE

This case is before me upon a Petition for Assessment of Civil Penalty filed by the 

Secretary of Labor (“the Secretary”) against Sims Crane (“Sims” or “Respondent”), pursuant to 

section 105 of the Federal Mine Safety and Health Act of 1977 (“the Mine Act”), 30 U.S.C. § 

815(a). This docket was designated for Simplified Proceedings and contains one section 104(a) 

citation alleging a violation of a mandatory health and safety standard. 

A hearing was held in Miami, Florida on March 31, 2016. During the hearing, the parties 

offered testimony and documentary evidence.1

 Witnesses were sequestered. Thereafter, the 

parties presented closing arguments in lieu of submitting post-hearing briefs, pursuant to 

Commission Procedural Rule 108(e), 30 C.F.R. § 2700.108(e). 

For the reasons set forth below, I affirm Citation No. 8819088, but increase the level of 

negligence from “moderate” to “high.” I assess a civil penalty of $300.

1

 In this decision, “Tr.” refers to the hearing transcript; “Ex. ALJ-#” refers to the ALJ’s 

exhibits; “Ex. S-#” refers to the Secretary’s exhibits; and “Ex. R-#” refers to the Respondent’s 

exhibits. Exs. ALJ-1, ALJ-2, S-1, S-2, S-3, S-4, R-1, R-3, R-7, R-8, R-9, R-10, and R-11 were 

received into evidence at the hearing. Tr. 9-11, 60, 75, 104-108, 122-123. Exs. R-2, R-4, and R5 were marked for identification at hearing, but were not offered into evidence. Tr. 63, 75-76. 

Finally, I found Ex. R-6 irrelevant and excluded it from record evidence. Tr. 78-79, 101. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

SIMS CRANE, 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 2015-315 

A.C. No. 08-01336-381845 (B1758)

Mine: S.D.I. Quarry 

38 FMSHRC Page 1008
Based on the entire record, including my observation of the demeanor of the witnesses,2

and after considering the parties’ closing statements, I make the following findings: 

II. STIPULATIONS AND GENERAL FACTUAL BACKGROUND

A. Stipulations of Fact and Law

At hearing, the parties agreed to the following stipulations: 

1. Jurisdiction exists because Respondent was an operator of a mine as defined in

section 3(b) of the Mine Act, 30 C.F.R. § 803(b), and the products of the subject mine

entered into the stream of commerce or the operations or products thereof affected

commerce within the meaning and scope of section 4 of the Act, 30 U.S.C. § 803.

2. Sims is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977,

30 U.S.C. § 801 et seq.

3. The Administrative Law Judge has jurisdiction over these proceedings pursuant to

§ 105 of the Mine Act.

4. The MSHA citation at issue in this proceeding was properly served upon Sims as

required by the Mine Act.

5. The citation at issue in this proceeding may be admitted into evidence by stipulation

for the purpose of establishing its issuance.

6. The penalties proposed by the Secretary in this case will not affect the ability of Sims

to continue in business.

7. Sims was at all times relevant to these proceedings engaged in mining activities at the

S.D.I. Quarry located in or near Florida City, Florida.

8. Sims’ mining operations affect interstate commerce.

9. Sims in an “operator” as that word is defined in § 3(d) of the Mine Act, 30

U.S.C. § 803(d), at the S.D.I. Quarry (Mine ID No. 08-01336) where the contested

citation in this proceeding was issued.

2

 In resolving conflicts in the testimony, I have taken into consideration the demeanor of 

the witnesses, their interest in this matter, their experience and credentials, the inherent 

probability of their testimony in light of other events, the corroboration or lack of corroboration 

for the testimony given, and the consistency, or lack thereof, within and between the testimony 

of witnesses. 

38 FMSHRC Page 1009
10. On the date the citation in this docket was issued, the issuing MSHA metal/non-metal

mine inspector was acting as a duly authorized representative of the Secretary,

assigned to MSHA, and was acting in his official capacity when conducting the

inspection and issuing the MSHA citation.

11. Sims demonstrated good faith in abating the alleged violation.

Exs. ALJ-1, ALJ-2; Tr. 9-11. 

B. General Factual Background

MSHA Inspector Robert Peters3 issued the disputed citation at S.D.I. Quarry in Florida 

City, FL on April 7, 2015. Exs. S-2; ALJ-1; Tr. 36-37. During the inspection, the mine had 

contractors on-site to complete modifications to its plant. Tr. 24. As part of these modifications, 

the mine employed Sims to perform crane operations that day. Tr. 24, 101-104. Contractors 

performing services at mines must comply with MSHA health and safety standards. Tr. 38. The 

citation at issue alleges that Sims’ crane operator and helper did not stay clear of a suspended 

load, violating MSHA standard 30 C.F.R. § 56.16009. Ex. S-2. The independent facts and 

circumstances surrounding the citation are discussed in greater detail below. 

III. PRINCIPLES OF LAW

A. Establishing a Violation

To prevail on a penalty petition, the Secretary bears the burden of proving by a 

preponderance of the evidence that a violation of the Mine Act occurred. RAG Cumberland Res. 

Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), aff’d, 272 F.3d 590 (D.C. Cir. 2001). A mine 

operator is held strictly liable for violations that occur at its mine. Spartan Mining Co., 30 

FMSHRC 699, 706 (Aug. 2008). An operator may avoid liability only by showing that it was 

not properly on notice of the violative nature of its conduct. Even in the absence of actual notice, 

the Secretary may properly charge an operator with a violation when a reasonably prudent person 

familiar with the protective purposes of the cited standard and the factual circumstances 

surrounding the allegedly hazardous condition, including any facts peculiar to the mining 

industry, would have recognized a hazard warranting corrective action within the purview of the 

applicable regulation. LaFarge North America, 35 FMSHRC 3497, 3500-01 (Dec. 2013); Ideal 

Cement Co., 12 FMSHRC 2409, 2415-16 (Nov. 1990); Alabama By-Products Corp., 4 

FMSHRC 2128, 2129 (Dec. 1982). 

3

 Peters is a mine safety and health inspector at MSHA’s Bartow, Florida field office. Tr. 

21. Peters has been working at MSHA for the past 19 years, and prior to working at MSHA, he

spent 26 years working in underground coal mining. Id. To be an MSHA inspector, Peters

completed a 26-week long training course. He also attends refresher training every two to three

years. Tr. 22- 23. His formal education includes three years in college studying electrical

engineering. Tr. 21.

38 FMSHRC Page 1010
B. Gravity

The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is 

often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 

1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983), 

aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 

(Apr. 1987)). The seriousness of a violation can be examined by looking at the importance of 

the standard violated and the operator’s conduct with respect to that standard, in the context of 

the Mine Act’s purpose of limiting violations and protecting the safety and health of miners. 

See, e.g., Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ). 

The gravity analysis focuses on factors such as the likelihood of an injury, the severity of 

an injury, and the number of miners potentially injured. The Commission has recognized that an 

assessment of the likelihood of injury is to be made assuming continued normal mining 

operations, without abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 

(Aug. 1985).

C. Negligence

Negligence is not defined in the Mine Act. The Commission has found “[e]ach 

mandatory standard thus carries with it an accompanying duty of care to avoid violations of the 

standard, and an operator’s failure to satisfy the appropriate duty can lead to a finding of 

negligence if a violation of the standard occurred.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 

(Jan. 1983) (citations omitted). In determining whether an operator meets its duty of care under 

the cited standard, the Commission considers what actions would have been taken under the 

same or similar circumstances by a reasonably prudent person familiar with the mining industry, 

the relevant facts, and the protective purpose of the regulation. See generally U.S. Steel Corp., 6 

FMSHRC 1908, 1910 (Aug. 1984). See also Jim Walter Res., Inc., 36 FMSHRC 1972, 1975, 

1976-77 (Aug. 2014) (requiring Secretary to show that operator failed to take specific action 

required by standard violated); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008) 

(negligence inquiry circumscribed by scope of duties imposed by regulation violated). 

Although MSHA’s regulations regarding negligence are not binding on the Commission, 

see Wade Sand & Gravel Co., 37 FMSHRC 1874, 1878 n.5 (Sept. 2015), MSHA defines 

negligence by regulation in the civil penalty context as follows: 

Negligence is conduct, either by commission or omission, which 

falls below a standard of care established under the Mine Act to 

protect miners against the risks of harm. Under the Mine Act, an 

operator is held to a high standard of care. A mine operator is 

required to be on the alert for conditions and practices in the mine 

that affect the safety or health of miners and to take steps necessary 

to correct or prevent hazardous conditions or practices. The failure 

to exercise a high standard of care constitutes negligence. The 

negligence criterion assigns penalty points based on the degree to 

which the operator failed to exercise a high standard of care. 

When applying this criterion, MSHA considers mitigating 

38 FMSHRC Page 1011
circumstances which may include, but are not limited to, actions 

taken by the operator to prevent or correct hazardous conditions or 

practices . . . . 

30 C.F.R. § 100.3(d). 

MSHA regulations further provide that mitigation is something the operator does 

affirmatively, with knowledge of the potential hazard being mitigated, and that tends to reduce 

the likelihood of an injury to a miner. This includes actions taken by the operator to prevent or 

correct hazardous conditions. 30 C.F.R. § 100.3(d). According to MSHA, the level of 

negligence is properly designated as high when “[t]he operator knew or should have known of 

the violative condition or practice, and there are no mitigating circumstances.” 30 C.F.R. § 

100.3, Table X. The level of negligence is properly designated as moderate when “[t]he operator 

knew or should have known of the violative condition or practice, but there are mitigating 

circumstances.” Id. The level of negligence is properly designated as low when there are 

considerable mitigating circumstances surrounding the violation. Id. 

Recently, the Commission held that Commission judges are not required to apply the 

level-of-negligence definitions in Part 100 and may evaluate negligence from the starting point 

of a traditional negligence analysis rather than from the Part 100 definitions. Brody Mining, 

LLC, 37 FMSHRC 1687, 1701 (Aug. 2015); accord Mach Mining, LLC v. Sec’y of Labor, 809 

F.3d 1259, 1263-64 (D.C. Cir. 2016). Moreover, because Commission judges are not bound by

the definitions in Part 100 when considering an operator’s negligence, they are not limited to a

specific evaluation of potential mitigating circumstances, and may find “high negligence,” in

spite of mitigating circumstances, or moderate negligence, without identifying mitigating

circumstances. Brody, 37 FMSHRC at 1701; Mach Mining, 809 F.3d at 1263-64. In this regard,

the gravamen of high negligence is “an aggravated lack of care that is more than ordinary

negligence.” Brody, 37 FMSHRC at 1701, (citing Topper Coal Co., 20 FMSHRC 344, 350)

(Apr. 1998). Thus, in making a negligence determination, a Commission judge is not limited to

an evaluation of allegedly mitigating circumstances and may consider the totality of the

circumstances holistically. Under such an analysis, an operator is negligent if it fails to meet the

requisite high standard of care under the Mine Act. Id.

D. Penalty Assessment

The Act requires that the Commission consider the following statutory criteria when 

assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness 

of the penalty to the size of the business; (3) the operator’s negligence; (4) the operator’s ability 

to stay in business; (5) the gravity of the violation; and (6) any good-faith compliance after 

notice of the violation. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000); 30 

U.S.C. § 820(i). The Commission is not required to give equal weight to each of the criteria, but 

must provide an explanation for any substantial divergence from the proposed penalty based on 

such criteria. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). 

As I discussed in my final Big Ridge decision, in an effort to avoid the appearance of 

arbitrariness, I look to the Secretary’s penalty regulations and assessment formula as a reference 

38 FMSHRC Page 1012
point that provides useful guidance when assessing a civil penalty. Big Ridge Inc., 36 FMSHRC 

1677, 1681-82 (July 2014) (ALJ); see also Wade Sand & Gravel, supra, at 1880 n.1 (Chairman 

Jordan and Commissioner Nakamura, concurring). See also Bowles v. Seminole Rock & Sand 

Co., 325 U.S. 410, 414 (1945) (holding that an agency’s interpretation of its own regulation 

should be given controlling weight unless it is plainly erroneous or inconsistent with the 

regulation). This formula is not binding, but operates as a lodestar, since factors involved in a 

violation, such as the level of negligence, may fall on a continuum rather than fit neatly into one 

of five gradations. Unique aggravating or mitigating circumstances will be taken into account 

and may call for higher or lower penalties that diverge from this paradigm. My independent 

penalty assessment analysis applies to the citation at issue in this case. 

IV. FURTHER FINDINGS OF FACT, ANALYSIS,

AND CONCLUSIONS OF LAW 

A. Citation No. 8819088: Failure to Stay Clear of Suspended Load

1. Further Findings of Fact

Inspector Peters began his inspection of S.D.I. Quarry at about 7:00 a.m. on April 7,

2015. Tr. 24. During the inspection, a mine supervisor informed Peters that the mine had 

contractors on-site to perform modifications to the mine’s plant. Id. While inspecting the plant, 

Peters saw a crane operating approximately 50 feet away. Tr. 24-25. The crane had a spreader 

bar attached to its hoist hook. Tr. 24, 29-30. 

A spreader bar is a rigging device used to aid crane operators in picking up heavier loads 

by distributing the load of the lift across multiple connection points. Tr. 29. The spreader bar 

that was attached to the crane that Peters observed consisted of a steel cylinder measuring 

approximately 14 feet long and 8 inches in diameter.4

 Tr. 118; Exs. S-4, R-10. The spreader bar 

was hung from the crane’s hoist hook by cables, which looped through to U-shaped shackles at 

each end of the spreader bar. Tr. 30, 93; Ex. S-4. Steel pins inserted through the shackles 

secured the shackles and cables to the spreader bar. Tr. 30-31, 94; Ex. S-4. The steel pins could 

be removed to detach the spreader bar from the cables and crane. Tr. 31. The spreader bar 

4

 Inspector Peters initially estimated that the spreader bar measured 10 feet long and 6 

inches in diameter. Ex. S-2. However, crane helper, William Assad, subsequently testified that 

the spreader bar measured 14 feet long and 8 inches in diameter. Tr. 119-11. Assad is a certified 

rigger and oiler at Sims and has been working there for two years. Tr. 116; Ex. R-11. He has 

nine years of experience working in the crane industry. Tr. 117. His training includes both onthe-job training and an apprenticeship program provided by a local union. Id. Based on Assad’s 

first-hand experience with the assigned task, I credit Assad’s testimony and find that the spreader 

bar measured 14 feet by 8 inches. 

38 FMSHRC Page 1013
weighed approximately 625 pounds.5

 Tr. 118; Ex. R-10. When rigged up, the spreader bar is 

typically suspended at around chest to head height. Tr. 125. 

The spreader bar was rigged to the crane and suspended approximately 25- to 35-feet in 

the air when Peters observed it. Tr. 25, 29, 111; Ex. S-3. At that point in time, the spreader bar 

had been lifted in order for crane operator Milton Minchener6 (“Minchener”) to scope out the 

crane. Tr. 111-12, 127. Minchener testified that he had finished scoping and began swinging 

and cabling the spreader bar down into the area where he and Assad would finish attaching the 

load they were assigned to move. Tr. 111-12. Meanwhile, Peters saw crane helper William 

Assad standing directly underneath the suspended spreader bar. Tr. 24; Ex. S-2. Peters 

immediately went over toward the crane to tell Assad to move out from underneath the spreader 

bar. Tr. 25. 

Peters informed Assad that he was issuing a verbal imminent danger order for standing 

underneath a suspended load in violation of MSHA standards.7 Tr. 25-26. During this 

conversation, Minchener got out of the crane cab and walked over to Peters and Assad, passing 

underneath the spreader bar to get to their location. Tr. 34-35. When Minchener arrived, 

Inspector Peters informed him that he could not walk underneath a suspended load. Id. 

Minchener disagreed with the inspector and walked back toward the crane cab, passing 

underneath the spreader bar once more. Tr. 36. 

Upon examining the situation further, Peters issued Citation No. 8819088, alleging a 

violation of 30 C.F.R. § 56.16009. Ex. S-2. Inspector Peters determined that this alleged failure 

to stay clear of a suspended load was unlikely to cause injury or illness to any workers, but that 

any injury could reasonably be expected to be fatal if the spreader bar fell and struck a miner. 

Tr. 37; Ex. S-2. Peters designated the operator’s negligence as moderate. Ex. S-2. Sims abated 

the violation by removing miners from the area underneath the spreader bar and lowering the 

spreader bar onto a truck. Tr. 38; Ex. S-2. 

5

 Sims Safety Director, Robert Berry, testified that a 10-foot by 6-inch spreader bar 

weighed 163 pounds. Tr. 88. However, the spreader bar actually measured 14 feet by 8 inches. 

According to Assad, a 14-foot by 8-inch spreader bar would weigh about 625 pounds. Tr. 118; 

Ex. R-10. Again, I credit Assad’s testimony based on his experience with the assignment and 

find that the spreader bar weighed about 625 pounds. 

6

 Minchener is a certified crane operator at Sims Crane. Tr. 101; Ex. R-7. He has been 

employed at Sims Crane for five years and has worked in the crane industry for nine years. Id. 

His training in crane rigging procedures includes on-the-job training and a four-year 

apprenticeship program, which covered OSHA and industry standards. Tr. 102. 

7

 Peters later determined that the violation did not meet the criteria for an imminent 

danger order and instead issued the instant citation. Tr. 26; Ex. S-2. 

38 FMSHRC Page 1014
At the hearing, Sims called safety director Berry to discuss crane operation and industry 

standards.8

 Tr. 55. Berry was not involved in the incident that led to the disputed citation, but 

offered testimony based on his knowledge and professional experience training crane operators 

and riggers. Tr. 55-58. According to Berry, the spreader bar did not constitute a load under 

OSHA standards. Tr. 60-65; Exs. R-2, R-3. OSHA defines “load” as the objects or weight of 

objects being hoisted, referring to both the objects and any load-attaching equipment. Id. Berry 

opined that a spreader bar does not constitute a load under OSHA’s definition until it is attached 

to the object being lifted. Tr. 76. Berry also explained that OSHA standards allow workers to 

stand within the “fall zone” of suspended loads in certain situations, which include rigging up a 

load. Tr. 65-69; Ex. R-3. OSHA defines “fall zone” as the area in which it is reasonably 

foreseeable that suspended materials could fall in the event of an accident. Ex. R-3. Berry 

additionally testified that if the spreader bar were to fall, it would have not caused any major 

injuries. Tr. 91-92. 

2. Analysis and Conclusions of Law

i. Violation of 30 C.F.R. § 56.16009

30 C.F.R. § 56.16009 provides that “[p]ersons shall stay clear of suspended loads.” The 

standard aims to prevent individuals from being hit and injured by such loads should they fall or 

swing. The Secretary contends that Respondent’s crane operator and helper violated the standard 

by walking directly underneath the suspended spreader bar. Tr. 131-133. Respondent, on the 

other hand, relies on OSHA standards to assert that the spreader bar did not constitute a “load” 

and that its workers were allowed to be within the spreader bar’s fall zone. Tr. 18, 145-146. 

It is undisputed that both Assad and Minchener walked directly beneath the suspended 

spreader bar. The issue here is whether the spreader bar constituted a “load.” MSHA regulations 

do not define the term “load,” nor has the Commission provided a clear definition of the term. In 

the absence of a statutory or regulatory definition, the Commission applies the ordinary meaning 

of a term. Twentymile Coal Co., 30 FMSHRC 736, 750 (Aug. 2008). Commission judges have 

relied on the dictionary definition of the term “load” in their interpretations of 30 C.F.R. § 

56.16009.9 See e.g., CCC Group, Inc., 34 FMSHRC 1192, 1196 (May 2012) (ALJ); Haines & 

Kibblehouse, Inc., 30 FMSHRC 504, 516 (Jun. 2008) (ALJ). 

The dictionary defines a “load” as a “weight or mass that is supported.” The American 

Heritage Dictionary of the English Language 1025 (4th ed. 2009). In this case, the spreader bar 

weighed approximately 625 pounds. Tr. 118; Ex. R-10. It was supported by cables, which hung 

8

 Berry is the corporate safety director at Sims Crane. Tr. 55; Ex. R-1. He has been 

employed at Sims Crane for the past seven years and has over 40 years of experience in the crane 

industry, 26 of which dealt with crane safety. Tr. 55. He is a certified crane operator and 

practical examiner. Id.; Ex. R-1. He has also taught crane operating and rigging for the past 20 

years. Tr. 56; Ex. R-1. 

9

 Although my colleagues decisions are not binding on me, they provide guidance to the 

extent their reasoning is persuasive. 

38 FMSHRC Page 1015
from the crane’s hoist hook and attached to the spreader bar by removable pins and shackles. Tr. 

30, 93; Ex. S-4. Although the spreader bar was secured by cables and pins, those equipment 

pieces could fail and cause the spreader bar to fall. Tr. 92-95. Under the ordinary meaning of 

the term, therefore, I conclude that the spreader bar constituted a “load” for purposes of 30 

C.F.R. § 56.16009.

Furthermore, OSHA standards are not legally binding on MSHA. Respondent has 

stipulated that it is subject to the jurisdiction of the Mine Act, was engaged in mining activities at 

the times relevant to this proceeding, and is an operator as defined by the Mine Act. Ex. ALJ-1. 

Therefore, I find that the OSHA regulations and definitions that Respondent’s relies upon are not 

dispositive for purposes of determining whether Respondent violated the MSHA standard.10 

Accordingly, I find that Respondent violated 30 C.F.R. § 56.16009. 

ii. Gravity

Inspector Peters designated the violation’s gravity as unlikely to result in injury or illness. 

Ex. S-2. He also found that if any injury or illness did occur, it would be fatal and affect one 

person. Id. The Secretary requests that I uphold the inspector’s gravity findings. Tr. 143-144. 

Respondent agrees with the inspector’s “unlikely” designation and does not make any arguments 

as to the number of persons affected. Tr. 145. However, Respondent disagrees that any injury 

resulting from the violation would be fatal. Tr. 47-48, 92. 

I affirm the inspector’s gravity designations. Inspector Peters determined that the 

spreader bar was securely attached to the crane. Tr. 45-46. For this reason, the inspector 

appropriately designated the probability of injury as unlikely. Also, I discount Berry’s testimony 

that the spreader bar would cause only a minor injury if it fell on a worker, particularly since he 

was mistaken when he testified that the spreader bar was only 163 pounds. Tr. 92. Subsequent 

credited testimony from Respondent’s witness Assad revealed that the spreader bar actually 

weighed over 3.5 times more. Tr. 118; Ex. R-10. In the event of an accident, a 625-pound steel 

10 I note, however, that the cited OSHA regulations are not inconsistent with my finding 

that the spreader bar constituted a “load” under 30 C.F.R. § 56.16009. First, 29 C.F.R. 

§ 1926.1417(e) provides conditions that must be met in order for an operator to leave crane

controls unattended. Although the standard provides an exception for working gear, such as a

spreader bar, it does not explicitly permit standing beneath working gear. Second, 29 C.F.R. §

1926.1425(b) allows employees to be directly beneath a load in certain limited situations,

including hooking or attaching loads. However, the spreader bar in this case was already

attached to the crane. Tr. 24, 29-30. Minchener testified that he was in the process of moving

the spreader bar to an area for additional rigging. Tr. 111-112. Assad testified that rigging

generally occurred when the spreader bar was suspended at chest to head height. Tr. 125. This

testimony and the fact the spreader bar was suspended over 25 feet establishes that neither

employee was attaching any objects to the crane at the time relevant to the citation’s issuance.

Tr. 25, 29, 111. Lastly, 29 C.F.R. § 1926.1401 provides a definition for the term “load,” which

explicitly includes the weight of any load-attaching equipment, such as a spreader bar, as part of

a load.

38 FMSHRC Page 1016
spreader bar could potentially crush and fatally injure any worker caught beneath it. 

Accordingly, I find that this violation created an unlikely, but fatal risk of injury to one worker. 

iii. Negligence

Inspector Peters charged Respondent with moderate negligence in connection with this 

violation. Ex. S-2. The Secretary requests that the undersigned at least uphold the inspector’s 

negligence designation, but notes that the record could support a finding of high negligence. Tr. 

137. Respondent made no specific arguments with respect to negligence in its closing statement,

but requested that I vacate the citation as a whole. Tr. 147.

I find that this violation resulted from Respondent’s high negligence. Inspector Peters 

testified that he designated the violation’s negligence as moderate because Assad and Minchener 

were unfamiliar with MSHA regulations and had not performed work at a mine before. Tr. 38. 

However, Inspector Peters explicitly informed Minchener that walking underneath the suspended 

spreader bar violated an MSHA standard. Tr. 36. At that point, I find that the operator should 

have known of the violative practice. Yet, Minchener blatantly dismissed the inspector’s 

instruction and violated the standard by walking underneath the spreader bar a second time. Id. 

Respondent offers no other mitigating circumstances for its crane operator’s brazen behavior in 

disregarding the inspector’s instruction concerning the MSHA standard. Based on a totality of 

the circumstances, therefore, a finding of high negligence is appropriate. 

iv. Penalty Assessment

As previously discussed, the Mine Act requires the Commission to consider the six 

criteria set forth in section 110(i), 30 U.S.C. § 820(i), when assessing a civil penalty. I look to 

the Secretary’s penalty regulations and proposed assessment as a helpful starting point when 

independently assessing the statutory penalty criteria to avoid the appearance of arbitrariness. 

The Secretary proposed that Sims pay a penalty of $100, the minimum penalty amount 

under the Secretary’s criteria set forth in 30 C.F.R. Part 100. Sec’y Pet. The parties have 

stipulated that Sims abated this violation in good faith and that the proposed penalty will not 

affect Sims’ ability to remain in business. Ex. ALJ-1. The Secretary’s penalty petition 

demonstrates that he adequately accounted for Sims’ size, violation history, and good-faith 

abatement efforts in reaching his proposed penalty. See Ex. S-1; Sec’y Pet. I affirmed the 

Secretary’s gravity findings, but have increased the negligence from moderate to high. Because I 

find that the violation resulted from Respondent’s high negligence, I determine that a penalty 

higher than the Secretary’s proposed assessment is warranted. 

Based on the legal principles outlined above and my consideration of the six statutory 

penalty factors, I find that an assessment of $300 is appropriate. Accordingly, I assess a civil 

penalty of $300 against Respondent for the instant violation. 

38 FMSHRC Page 1017
V. ORDER

For the reasons discussed above, Citation 8819088 is hereby AFFIRMED, but 

MODIFIED to increase the level of negligence to from “moderate” to “high.” In addition, Sims 

Crane is ORDERED to pay the penalty amount of $300.00 for this violation within thirty (30) 

days of the date of this Decision and Order.11 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

Distribution: 

Daniel R. McIntyre, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer 

Boulevard, Suite 216, Denver, CO 80204 

W. Ben Hart, CMSP, W. Ben Hart & Associates, 2916 East Park Avenue, Tallahassee, FL

32301

11 Payment should be sent to: Mine Safety and Health Administration, U.S. Department 

of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

38 FMSHRC Page 1018
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May 3, 2016 

DECISION AND ORDER

Appearances: Michele A. Horn, Esq., U.S. Department of Labor, Office of the Solicitor, 

Denver, Colorado, for Petitioner 

Michael M. Miller, pro se, Alleghany, California, for Respondent 

Before: Judge Moran 

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

ORIGINAL SIXTEEN TO ONE 

 MINE, INC., 

 Respondent.

CIVIL PENALTY PROCEEDINGS

Docket No. WEST 2014-527-M 

A.C. No. 04-01299-345516

Docket No. WEST 2015-158-M 

A.C. No. 04-01299-366336

Docket No. WEST 2015-251-M 

A.C. No. 04-01299-368842

Mine: Sixteen to One Mine 

Docket No. WEST 2015-77-M 

A.C. No. 04-03065-363861

Docket No. WEST 2015-78-M 

A.C. No. 04-03065-363861

Docket No. WEST 2015-240-M 

A.C. No. 04-03065-368847

Docket No. WEST 2015-381-M 

A.C. No. 04-03065-372727

Mine: Plumbago Mine

38 FMSHRC Page 1019
The Original Sixteen to One Mine and the Plumbago Mine are underground gold mines 

of historical significance within California’s Alleghany Mining District. Tr. 17-18.1 A hearing 

regarding the citations associated with the dockets listed above was held in Nevada City, 

California from November 17-19, 2015. Seven citations were settled or vacated at the hearing.2

Before turning to the particular contested matters, the Court believes it is important to 

make the following comments. For several of the citations in these various dockets the Court 

reduced the civil penalty from the amount proposed initially and, in some instances, from revised 

amounts sought by the Secretary at the hearing. The Court wishes to advise Respondent that it 

should not take the reductions as signaling that, by going to hearing, penalties may be reduced. 

Respondent is not new to mining, nor to MSHA, and as such, it may be that in future litigation 

penalty amounts may be adopted as originally proposed or as revised by the Secretary during a 

hearing. It is also possible that penalties may be increased by the Court beyond the amounts 

sought by the government. Of course, the penalty for established violations is dependent upon 

the particular facts adduced at each hearing. 

A Preliminary Matter Pertaining to All of the Contested Matters in This Litigation 

A running controversy during the hearing involving discovery was whether Respondent 

requested copies of the inspectors’ field notes associated with the various citations. See, e.g., Tr. 

123, 302-04. The Court ultimately resolved this dispute by requiring counsel for the Secretary to 

determine if Mr. Miller made a request for the field notes of the inspectors who testified in this 

proceeding. If no request was made, that would end the matter, in terms of Respondent making 

objections about their absence. If the request was made, then the Secretary’s Counsel was to 

advise as to the date such documents were delivered to Respondent, assuming such delivery was 

made. If, despite such a request, the field notes were not delivered, then the Court instructed that 

1

 The Court will use the designations “Tr.” to refer to the hearing transcript, “GX” to 

refer to the Secretary’s exhibits, and “RX” to refer to Respondent’s exhibits. 

2

 At the outset of the hearing Respondent withdrew its contests related to Citation Nos. 

8698193 (WEST 2014-527-M), 8783100 (WEST 2014-527-M), and 8793807 (WEST 2015-251-

M), agreeing to pay the associated penalties as proposed. Tr. 10-11. The Secretary’s post-hearing 

brief includes Citation No. 8793615 as among those in which Respondent withdrew its contest, 

but that Citation was among the contested matters during the hearing. See discussion infra for 

GX 33, which is the exhibit associated with Citation No. 8793615. For Citation No. 8793616 

(WEST 2015-78-M), the Secretary agreed to modify the citation to reflect lost workdays or 

restricted duty from the original designation as fatal, with the penalty remaining as proposed. Tr. 

11. During the hearing, the Secretary agreed to modify Citation No. 8698194 (WEST 2014-527-

M) to No Likelihood, No Lost Workdays and Low Negligence and to reduce the penalty to

$50.00. The Secretary vacated Citation No. 8793619 (WEST 2015-158-M) at hearing. Citation

No. 8698227 (WEST 2015-78-M) was accepted by the operator with the Secretary agreeing to

remove from Section 8 of the citation the sentence, which reads, “This mine has been in

operation in the past during times of favorable commodities prices, and the mine is having

rehabilitation activity been [sic] performed.” Sec’y’s Post-hearing Br. 4, 35 (quoting the

citation) (“Sec’y Br.”).

38 FMSHRC Page 1020
Counsel was to deliver all such field notes to Respondent, and Respondent would then have 2 

weeks to review those notes and, if applicable, to identify in what manner the absence of those 

notes disadvantaged Respondent. Tr. 304-05. 

Following the Court’s instructions at the hearing, Attorney Horn responded on November 

21, 2015, as follows: 

Cc: Michael Miller (mmeistermiller@gmail.com) 

Subject: Original Sixteen to One discovery 

Your Honor, 

In response to directions given by you at the hearing last week, I have inquired as 

to whether or not the General Field Notes associated with the seven dockets 

discussed at hearing were sent to Mr. Miller prior to hearing. 

Per my records I received only one discovery request from the operator. It was 

sent on September 30, 2015, via e-mail and the discovery portion of the message 

from Mr. Miller read, “Please send me the citations MSHA has issued for the next 

hearing.” 

In response to this request, I sent the citations, citation notes and photographs for 

each citation which was discussed at the hearing last week. Contrary to my stated 

belief last week, I did not send the General Field Notes. 

However, as the Mr. Miller’s discovery request was limited to “citations” it is my 

understanding that this ends any issue regarding the non-production of the 

General Field Notes. 

Thank you. 

Michele Horn 

The Court responded to Attorney Horn’s email as follows: 

Saturday, November 21, 2015 

Dear Attorney Horn (and Mr. Miller): 

Thank you, Attorney Horn, for your prompt attention to this issue. On the basis 

of your message below, you are correct that, per my order during the hearing, and 

your message, below, which relates that “as the Mr. Miller’s discovery request 

was limited to “citations” it is [the Secretary’s] understanding that this ends any 

issue regarding the non-production of the General Field Notes.” Thus, absent Mr. 

Miller being able to show that he sent you or a representative for the Secretary a 

specific request seeking the General Field Notes related to the dockets in issue 

during our hearing this past week, the matter is ended. 

38 FMSHRC Page 1021
I want to reiterate that I appreciate the professionalism displayed by all during the 

hearing. 

Sincerely, Judge William Moran 

No such showing was thereafter provided by Mr. Miller, thereby resolving the issue in the 

Secretary’s favor. 

Respondent’s Post-hearing Brief 

The Court read and considered Respondent’s post-hearing brief and makes the following 

observations and comments about it. Not every point raised in the brief is discussed, but the 

entire brief was considered. Part of that consideration involves the Court’s discretion as to the 

need to comment upon specific parts of the brief. The same principle was applied to the 

Secretary’s post-hearing brief — not every contention is addressed. Among the contentions 

made in Respondent’s Brief were the claims that some of the inspectors hired by MSHA are not 

qualified; that the Plumbago Mine, while a mining operation, is not conducting mining activities; 

and that the activities at that mine do not affect interstate commerce. Mr. Miller’s position is that 

only Inspector Rogers was qualified and competent to conduct the inspections and issue the 

citations/orders which resulted from those events. The Court rejects each of these contentions, as 

they are without any merit. 

The Court notes that even if one were to accept Respondent’s claim that nearly all of the 

MSHA inspectors involved here were unqualified, a claim with which the Court does not agree 

at all, nearly all of the various citations in this litigation were established apart from one’s 

mining knowledge. A few examples clearly show this. Citation No. 8783098 involved a 

violation of 30 C.F.R. § 57.15031(a) for failing to have a self-rescuer within 25 feet of a 

worker’s location. If a self-rescuer is more than 25 feet away, there is a violation, and no 

previous mining experience is needed to make such a determination. Another example, among 

many such instances in this litigation, is Citation No. 8793805, which involved finding 

combustible materials, such as grass, brush, wood, and rubbish within 25 feet of a powder 

magazine. No mining expertise is required to make such a determination, though in fact the 

issuing inspector had 18 years of such experience. While more examples are not needed, a few 

more are here included. It is noted that Citation No. 8785247 involved a vehicle with no 

functioning brake or tail lights, a violation which Respondent acknowledged to exist. As a last 

illustration, Citation No. 8793806 involved a magazine that was not bullet resistant, as it had a 

steel exterior of about 1/8 inch with an interior lining of about 1/2 inch of plywood, instead of 

the required 1/4 inch of steel and 2 inches of hardwood. 

Respondent also maintains that citations/orders must be the result of “specific conditions 

at the mine.” Resp’t’s Post-hearing Br. 4. The Court was attentive to this claim, both at the 

hearing and during the Court’s close review of the transcript, as reflected in this fifty-plus page 

decision, and finds that, for each alleged violation (other than the one that was dismissed), the 

violations were both established and based upon the specific conditions at the mine. To the 

extent that prior history was referenced during the course of the testimony, a mine’s history of 

38 FMSHRC Page 1022
violations and extensive mining experience are factors which may be taken into account, per the 

statutory penalty criteria, where violations have been established. 

Of great concern to the Court, Respondent asserts that its “miners are ragingly mad with 

the administrative agency legislated to protect them. Mr. Boylan and his supervisors put them 

out of work.” Resp’t’s Post-hearing Br. 7. Except for the instances where inspectors found 

employees working at Respondent’s mine, despite a live withdrawal order in place, no one with 

MSHA put any employee out of work. The larger problem, and it must be faced directly, is that 

Respondent objects to MSHA’s lawful presence and the carrying out of its Mine Act obligations 

through the statutorily-mandated inspections under that Act. The sadly contentious nature of the 

relationship between MSHA and Respondent will not improve until Respondent comes to accept 

that MSHA’s presence and its inspections are legitimate. While it may be potentially useful for 

the MSHA district office to have discussions with Respondent, nothing positive can come of 

such discussions until Respondent first accepts the legitimacy of MSHA, its authorized 

representatives, the inspectors, and their statutory inspection obligations and duties. The Court 

calls upon Mr. Miller to discard the combative and non-productive approach, as reflected 

vividly in his post-hearing brief, and to have a change of heart and attitude, as he 

approaches the last years of working experience in the mining industry. 

The Court also fully considered Mr. Miller’s Reply Brief. That submission largely 

continues with the themes raised in Respondent’s post-hearing brief, and the Court will not 

revisit those contentions. One distinction is that, for the Reply Brief, Respondent raises specific 

objections for a few of the citations. Having reviewed those contentions, not all merit a response 

from the Court. Where the Court considers that a response is warranted, those will be addressed 

infra. 

Respondent’s Challenge to MSHA’s Jurisdiction 

Throughout this litigation, Respondent has also taken the position that MSHA lacks 

jurisdiction to inspect its mines. The Court read all of the contentions made by Respondent and 

rejects them without qualification. Nothing sums up Respondent’s position better than the 

concluding line from its post-hearing reply brief which asserts that not a one of “[t]he citations 

and orders issued should not be affirmed by the court.” Resp’t’s Reply Br. 9. 

At the hearing, the Court explained to Mr. Miller that the federal courts have long ago 

affirmed the jurisdiction and breadth of the Mine Act. Nevertheless, a few cases, among a 

plethora of such holdings, are noted. In Cyprus Industrial Minerals Co. v. FMSHRC, 664 F.2d 

1116 (9th Cir. 1981), it was held that digging a tunnel into a hill for the purpose of assessing the 

value of talc deposits constitutes mining, even if minerals were not being extracted. In D.A.S. 

Sand & Gravel, Inc. v. Chao, 386 F.3d 460 (2d Cir. 2004), it was held that the Commerce Clause 

permits Congress to regulate mines whose products are sold entirely intrastate. Finally, in 

38 FMSHRC Page 1023
Donovan v. Carolina Stalite Co., 734 F.2d 1547 (D.C. Cir. 1984), it was held that Congress 

intended the definition of a mine under the Act to be given the broadest possible interpretation.3

Legal Standards

Significant and Substantial 

The Significant and Substantial (“S&S”) terminology is taken from section 104(d) of the 

Mine Act, 30 U.S.C. § 814(d), and refers to “significant and substantial,” i.e., more serious, 

violations. A violation is S&S if, based on the particular facts surrounding the violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature. Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission further explained: 

In order to establish that a violation of a mandatory safety standard is significant and 

substantial under National Gypsum, the Secretary of Labor must prove: (1) the 

underlying violation of a mandatory safety standard; (2) a discrete safety hazard – that is, 

a measure of danger to safety – contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; and (4) a reasonable 

likelihood that the injury in question will be of a reasonably serious nature. 

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 

1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving 

Mathies criteria). The S&S determination “must be made at the time the citation is issued 

‘without any assumptions as to abatement’ and in the context of ‘continued normal mining 

operations.’” Paramont Coal Co., 37 FMSHRC 981, 985 (May 2015) (quoting U.S. Steel 

Mining Co., 6 FMSHRC 1573, 1574 (July 1984)). 

Negligence 

As the Commission recently clarified, “judges are not required to apply the definitions of 

Part 100.” Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015). Rather, 

judges may evaluate negligence from the starting point of a traditional negligence 

analysis rather than based upon the Part 100 definitions. Under such an analysis, 

an operator is negligent if it fails to meet the requisite standard of care - a standard 

of care that is high under the Mine Act[.]

Id. Accordingly, “a Commission Judge may find ‘high negligence’ in spite of mitigating 

circumstances or may find “moderate” negligence without identifying mitigating circumstances.” 

Id. at 1703. The Commission has stated that “the gravamen of high negligence is that it 

3

 As the D.C. Circuit noted its Carolina Stalite decision, “Cases decided by the Third, 

Ninth, and Fourth Circuits accord with [its] interpretation of the Act, and uniformly recognize 

section 3(h)’s ‘sweeping definition’ of a mine.” 734 F.2d at 1554 (emphasis added). 

38 FMSHRC Page 1024
‘suggests an aggravated lack of care that is more than ordinary negligence.’” Id. (quoting 

Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998)). 

Unwarrantable Failure 

The Commission has stated that an “unwarrantable failure is aggravated conduct 

constituting more than ordinary negligence.” Manalapan Mining Co., 35 FMSHRC 289, 293 

(Feb. 2013). Unwarrantable failures are characterized by such conduct as “‘reckless disregard,’ 

‘intentional misconduct,’ ‘indifference,’ or a ‘serious lack of reasonable care.’” IO Coal Co., 

Inc., 31 FMSHRC 1346, 1350 (Dec. 2009) (quoting Emery Mining Corp., 9 FMSHRC 1997, 

2003-04 (Dec. 1987)). 

Whether conduct is “aggravated” in the context of unwarrantable failure is 

determined by looking at all the facts and circumstances of each case to see if any 

aggravating factors exist, including (1) the extent of the violative condition, (2) 

the length of time that the violative condition existed, (3) whether the violation 

posed a high degree of danger, (4) whether the violation was obvious, (5) the 

operator’s knowledge of the existence of the violation, (6) the operator’s efforts in 

abating the violative condition, and (7) whether the operator had been placed on 

notice that greater efforts were necessary for compliance. 

Manalapan Mining Co., 35 FMSHRC at 293. When determining whether a violation was due to 

an unwarrantable failure, the Court must consider all relevant factors and the relevant facts and 

circumstances of the case to determine whether the actor’s conduct was aggravated and whether 

mitigating circumstances exist. IO Coal, 31 FMSHRC at 1351. 

Penalty Determinations 

“The Mine Act sets forth a bifurcated penalty scheme under which the ‘Secretary 

proposes penalties before a hearing based on information then available to him and, if the 

proposed penalty is contested, the Commission affords the opportunity for a hearing and assesses 

[the] penalty.’” Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3101 (Dec. 2014) (quoting 

Sellersburg Stone Co., 5 FMSHRC 287, 291 (Mar. 1983), aff’d, 736 F.2d 1147, 1151-52 (7th 

Cir. 1984)). Under this bifurcated scheme, “[t]he Secretary's regulations at 30 C.F.R. Part 100 

apply only to the Secretary's penalty proposals, while the Commission exercises independent 

‘authority to assess all civil penalties provided [under the Act]’ by applying the six criteria set 

forth in section 110(i) [of the Mine Act].” Id. (quoting 30 U.S.C. § 820(i)). The six section 

110(i) factors are: 

the operator's history of previous violations, the appropriateness of such penalty 

to the size of the business of the operator charged, whether the operator was 

negligent, the effect on the operator's ability to continue in business, the gravity of 

38 FMSHRC Page 1025
the violation, and the demonstrated good faith of the person charged in attempting 

to achieve rapid compliance after notification of a violation. 

30 U.S.C. § 820(i). 

Findings of Fact and Conclusions of Law for the Citations and Orders in These Dockets

Docket No. WEST 2014-527-M (Sixteen to One Mine)

Citation No. 87830984 

Proposed Penalty: $100.00. Penalty Assessed: $50.00. 

The Secretary called MSHA Inspector Miles Frandsen, regarding Citation No. 8783098,

GX 2(a).5 The inspector issued the citation to the Sixteen to One Mine on January 23, 2015, for 

an alleged violation of 30 CFR § 57.15031(a).6 Sec’y Br. 5. Frandsen found a worker, a 

contractor employee, without his self-rescuer device within the specified footage of his work 

area. The type of self-rescuer used for this type of mine, a metal-nonmetal mine, scrubs carbon 

monoxide from the air. Tr. 20-21. The cited standard requires that the device be within 25 feet 

of the worker’s location. The worker in this instance was about 50 feet away from the device. 

Tr. 22. The inspector listed the likelihood of injury as “unlikely.” His concern was that if a wall 

of smoke were to enter the mine and the worker couldn’t get to and find the self-rescuer, the 

worker could perish from the smoke exposure. Tr. 23. However, the inspector did not find 

anything that would be likely to cause a fire, noting, for example, that the mine’s timbers were 

moist. Id. Frandsen’s view was impacted by a personal experience where a miner couldn’t get 

to his self-rescuer, even though it was on the other side of the shuttle car. In that instance, the 

self-rescuer was a mere 5 to 6 feet away from the miner. Tr. 24. The inspector considered the 

negligence to be moderate, as the owner, Mr. Miller, did not challenge the distance from the 

worker to the self-rescuer, and had advised the worker to keep it “in the area.” Tr. 25. The 

inspector stated that a self-rescuer is as important in a gold mine as it is in a coal mine. Tr. 33. 

4

 The R-17 reports are GX 17 for the Sixteen to One Mine and GX 40 for the Plumbago 

Mine. Tr. 660. The reports detail the mines’ respective histories of violations. 

5

 By stipulation, Respondent agreed to the admission of the government’s exhibits, 

designated GX 1 through GX 40. Tr. 26. 

6

 Standard 30 C.F.R. § 57.15031, titled “Location of self-rescue devices,” provides: 

(a) Except as provided in paragraph (b) and (c) of this section, self-rescue devices

meeting the requirements of standard 57.15030 shall be worn or carried by all

persons underground.

(b) Where the wearing or carrying of self-rescue devices meeting the

requirements of standard 57.15030 is hazardous to a person, such self-rescue

devices shall be located at a distance no greater than 25 feet from such person.

(c) Where a person works on or around mobile equipment, self-rescue devices

may be placed in a readily accessible location on such equipment.

38 FMSHRC Page 1026
Frandsen affirmed that he marked that a fatality could occur, a conclusion based on one not 

being able to breathe due to smoke from a fire. Tr. 34. However, he also marked that it was an 

unlikely to occur event. Thus, he expressed that “[i]t’s not the likelihood of the fire, it’s the 

result of not having [a self-rescuer] when [one is] in a fire.”7

 Tr. 35. 

Jonathan Farrell, a long-term employee of Respondent, testified with regard to the selfrescuer citation. Farrell was not present when the citation was issued but he believed that, 

because the mine has a reversible fan, ventilation can be controlled. It was also his view that the 

individual was within a safe distance of the self-rescue device. Tr. 66. 

Mr. Miller also testified, asserting that the person cited was not a miner, nor an employee, 

but instead was an outside contractor’s employee who was doing exploratory work. Tr. 49. The 

operator also defended this citation by attesting that at the time the citation was written there 

were no hazards in the mine that would lead to the self-rescuer being needed and that a selfrescuer is only needed in an emergency situation. As such, the contractor’s failure to wear the 

device should be evaluated as if conditions existed such that a self-rescuer was needed. Tr. 50. 

The Court rejects this viewpoint and incorporates the Secretary’s arguments addressing this issue 

in its post-hearing brief but, for the other articulated reasons, including those in footnote seven, 

supra, does not adhere to the claim that the violation was S&S. 

As the Secretary has noted, the standard requires, generally, that self-rescue devices be 

worn or carried “by all persons underground.” 30 C.F.R. § 57.15031(a). However, where doing 

so would be hazardous, the 25 foot rule applies, and the citation in this instance involved that 

exception. The Secretary correctly observes that there “is no requirement of any legal 

7

 Respondent stated that the cited area was a main adit and that there was no hazard 

present, as the rock there is very competent. Tr. 50. Respondent also expressed that there was 

no risk of a fatality because a person would only need to walk a short distance to safety, the mine 

is naturally ventilated, and the distance to the portal was less than 2,500 feet. Regarding the 

mine’s natural ventilation, the ventilation direction is determined by factors such as the 

barometric pressure and temperature. Tr. 52-53. Respondent’s argument in this regard, beyond 

air movement, is the amount of air in the mine. Respondent asserted that with “35 miles of 

tunnels” in the mine, there are millions of cubic feet of open space and many ways to exit the 

mine. In Respondent’s view, that makes the notion that one might not have sufficient air to 

breath farfetched. Tr. 53-54. Respondent also opined that there was not sufficient fuel to create 

a fire. Tr. 50. For those reasons, Respondent believed that the citation should have been marked 

as “no likelihood” and the mine’s negligence was none. Tr. 51. Under those conditions, 

Respondent urges, with the device not more than 50 feet away, the citation should not have been 

issued. Tr. 51. Respondent admitted that the cited worker was there at the invitation of 

Respondent and had been given the 40-hour site-specific mine training. Tr. 55. Respondent 

could not recall whether he informed the workers that the self-rescue device had to be within 25 

of where they were working. Tr. 56. Respondent continued to assert that the worker was not a 

contractor, but did not commit as to whether he contended that the worker was not covered under 

the Mine Act. Id. 

38 FMSHRC Page 1027
relationship between the person underground and the mine operator nor is there any requirement 

that the person be employed as a miner.” Sec’y Br. 6. 

This violation was conceded in that Respondent admitted that the device was not within 

25 feet of the miner. The citation was issued as unlikely, non-S&S, fatal, moderate negligence, 

and one person affected, with a proposed penalty of $100.00. The Secretary’s Part 100 

procedures for proposed assessment of civil penalties does not allow for a penalty of less than 

$100.00.8

 The Court is not so restricted as it looks to the statutory criteria, not Part 100. Given 

the conditions at this small mine, and the other evidence adduced, a fatal accident was not likely 

to be the result but rather lost workdays or restricted duty. Accordingly, the Court declines to 

modify the citation to reasonably likely and S&S. A penalty of $50.00 is imposed for this 

violation. 

Citation No. 8783099 

Proposed Penalty: $100.00. Penalty Assessed: Dismissed. 

Citation No. 8783099, GX 3, citing 30 C.F.R. § 57.12010,9

 was addressed by Inspector 

Frandsen. Issued on January 23, 2014, the inspector alleged finding the mine’s phone line 

touching a 480-volt power cable in several places underground. Tr. 37. The hazard was not 

what one might anticipate, however, as it did not involve any shock hazard. Instead, it pertained 

to the electrical field around the power cable. Where that cable touches the phone line, the 

electrical field from the cable has the potential to cause the phone line to malfunction, but only 

during equipment start-up. Photos showed the phone line touching the cable. GX 3c (the phone 

line is white). The inspector stated that it was unlikely that the power cable would short out the 

phone line. Tr. 40. This was because the mine did not then have any electrical equipment 

underground that would cause a surge when such equipment was started. Id. The inspector 

defended his designating the injury as “fatal” on the basis that if one couldn’t use the phone for 

help one could perish. The negligence was marked as moderate because a part-time electrician 

was designated to do the electrical work and this problem was obvious. Id. 

The Court asked the inspector about this citation and the standard cited, which is titled 

“Isolation or Insulation of Communication Conductors.” 30 C.F.R. § 57.12010 (emphasis 

added). The inspector stated that the standard requires that such telephone lines have to be 

protected either by isolation or by suitable insulation and in this instance there was neither 

protection. Tr. 42. Abatement was achieved by separating the lines. Id. 

Upon questioning by Respondent, the inspector admitted that he had no idea how long 

the condition had existed. Tr. 43. He did not know precisely what type of phone line was being 

8

 Part 100 actually provides for a minimum penalty of $112.00, but a 10% “good faith” 

allowance may be factored in “where the operator abates the violation within the time frame set 

by the inspector.” 30 C.F.R. § 100.3(f). 

9

 The cited standard, § 57.12010, “Isolation or insulation of communication conductors,” 

provides: “Telephone and low-potential signal wire shall be protected, by isolation or suitable 

insulation, or both, from contacting energized power conductors or any other power source.” 

38 FMSHRC Page 1028
used. Respondent also inquired about SO wire10 and its use for phone lines. Tr. 43-44. 

Respondent’s non-attorney representative Mr. Michael Miller testified about this citation. He 

stated that the insulation on the phone line was approved for underground use when it was 

purchased, that the wire is “well-insulated,” and that it works. Thus, Miller contended that the 

wire had suitable insulation. Tr. 67. Miller also asserted that the inspector’s designating the 

violation as potentially involving a fatality was too speculative. Tr. 68. Still, Miller did concede 

that the phone lines did touch the 480 volt power cable in several locations. Miller stated that the 

power cable had been there for some 15 or 20 years and the phone line was there and subject to 

numerous MSHA inspections without any citations being issued for this issue. Miller believed 

that the issuing inspector cited the condition because his background was mostly associated with 

coal mines and Miller considered the comparison inapt because the differences between the 

Sixteen to One Mine and a coal mine are so profound. Tr. 70. Miller continued, stating that the 

phone line insulation, as shown by GX 3c, was intact. As to the electrical lines, he stated that, 

being SO wires, they were already double insulated, and such electrical wires are MSHA 

approved. Tr. 71. Thus, Miller maintained that the phone wires are unlike house phone wires 

and would not be subject to the concerns expressed by the inspector. Tr. 72. Miller then 

reaffirmed his stance that the phone wires were adequately insulated. Id. This view was based 

upon his knowledge of the phone wires when they were purchased. Tr. 73. 

The Secretary recalled the inspector, who stated that the power line has insulation in that 

the individual conductors are insulated and the jacketing around those conductors serves as 

protection, as opposed to insulation. Tr. 74. The same, he stated, is true of the phone line as it 

too has insulation on the inside wires and, like the power line, there is an outer covering, which 

he again distinguished as “protection” as opposed to “insulation.” Id. Still, the inspector stated 

that the phone line’s insulation was not sufficient to meet the cited standard, 30 C.F.R. § 

57.12010, asserting that the standard requires additional insulation for the phone line. Tr. 75. 

However, the Court observed that the standard does not express that there must be additional 

insulation. Id. The Court pressed the inspector to explain his basis for asserting that the 

insulation on the phone line was not suitable. Tr. 77. The inspector maintained that his MSHA 

training was that when such wires touch, they are to cite the standard as being violated. Id. The 

Court then asked the inspector if there was any telephone wire that would meet the standard’s 

requirement for adequate insulation and was advised there is no such wire. Id. 

While isolating the phone line from the power cable is an option, the phone line can be 

wrapped with simple electrical tape to provide the insulation sufficient to protect the signal. Tr. 

79. The inspector repeated that he evaluated the violation as unlikely, noting that there was “no

underground equipment that would probably generate [the electrical field that concerned him].”

Tr. 79. Despite that concession, he believed that it was possible, in the future, that such

equipment could be added at some time. Tr. 79. Based on the inspector’s later response, the

Court asked why he did not mark the citation as “no likelihood” as opposed to “unlikely.” Tr.

80. In response, apparently not understanding the question, he stated that he did not remember

what was in the mine. Id. Respondent was successful in bringing out the lack of prior MSHA

enforcement of this standard for the phone lines. Tr. 81.

10 SO refers to cable that is suitable for severe duty. Tr. 78. 

38 FMSHRC Page 1029
Upon consideration, this citation, No. 8783099, is DISMISSED. The Secretary was 

unable to authoritatively respond to the Respondent’s contention that the SO cable meets the 

standard. Further, the inspector’s admission that there was no underground equipment that 

would probably generate the electrical field that concerned him suggests that the violation was 

not present with the equipment then in the mine. 

Docket No. WEST 2015-77-M (Plumbago Mine) 

Citation No. 8698235 

Proposed Penalty: $5,000.00. Penalty Assessed: $500.00 (five hundred). 

Citation No. 8698235, GX 19, dated May 12, 2014, and citing 30 C.F.R. § 50.10(a),11

was issued because there was a death on the mine property which was not reported to MSHA. 

Tr. 512. The deceased was Mr. Buck Barker, who was present at the mine site strictly as a 

caretaker, not as a miner. Tr. 513. He died on May 2, 2014. 

The standard cited requires that MSHA be notified within 15 minutes when anyone dies 

on a mine site. In this instance, notification did not occur until after the citation was issued. Tr. 

513. The inspector stated that the standard exists because MSHA has jurisdiction at mines and

when someone dies it is part of their responsibility to determine the cause of death. Tr. 514. He

acknowledged that some deaths at a mine are unrelated to mining activity. For example, one

could simply have a heart attack. Nevertheless, the circumstances do not change the duty to

report. Tr. 514. Mr. Barker’s living quarters at the mine were near a historical building at the

mine. Tr. 515; GX 19c, photo 1.

The citation was listed as non-S&S, no lost workdays, and no likelihood because it was a 

notification, that is, a reporting, standard. Tr. 516. However it was marked as high negligence 

because the operator has been in the mining industry for a long time and knew of the requirement 

when a person dies at a mine site. In fact, the inspector asserted that Mr. Miller had dealt with a 

mine site fatality previous to this one. Id. The inspector, speaking to the issue of the operator’s 

knowledge of the mine site death, stated that workers at the mine informed him that the mine 

operator called the local authorities about the death. Tr. 518. The individual had died a couple 

of days before the inspector’s arrival. Tr. 518. Mr. Miller did not ask any questions of the 

inspector about GX 19. 

Mr. Miller testified about GX 19, stating that, far from Mr. Barker being a “caretaker,” 

the mine was a caretaker for him. Tr. 532. Miller believed that the cited standard’s reference to 

whether an operator knew or should have known of an accident occurring was inapplicable 

because no accident was involved; instead, the 80-year-old man simply died of natural causes. 

Tr. 533. Miller added that he believed he spoke with someone in the MSHA district office for 

clarification on this matter but never received any response. The Court then took note that the 

11 30 C.F.R. § 50.10, titled, “Immediate notification,” provides: “The operator shall 

immediately contact MSHA at once without delay and within 15 minutes at the toll-free number, 

1-800-746-1553, once the operator knows or should know that an accident has occurred

involving: (a) A death of an individual at the mine.”

38 FMSHRC Page 1030
definition of “accident” under § 50.2(h), means the death of an individual at a mine. Tr. 536. 

Mr. Miller responded to the Court’s observation, effectively acknowledging that he was in 

violation of the standard. Tr. 536. 

Taking into account the undisputed role of the deceased, who was not in any manner a 

miner, nor one who provided service to the mine in the way, for example, that an independent 

contractor might aid in the mine’s operation, and that this individual, who acted solely as a 

caretaker, essentially by his presence to deter trespassers, and also considering that the mine did 

contact other authorities, albeit not MSHA, the Court imposes a significantly reduced penalty of 

$500.00. This penalty is consistent with the “no likelihood,” “no lost workdays,” non-S&S 

findings on the citation. In context, the negligence is found to be “low,” not the “high” 

designation made by the inspector. 

Citation No. 8698236 

Proposed Penalty: $112.00. Penalty Assessed: $75.00. 

Citation No. 8698236, GX 20a, a section 104(a) citation, was issued on May 13, 2014, at 

the Plumbago Mine. This citation was issued because of an earlier-issued section 104(g)(1) 

order issued May 6, 2014, requiring the miners to be withdrawn from the mine until they 

received training. When the inspector returned to the mine for a compliance follow-up visit on 

May 13th, the miners were still working at the site, despite not having received the training. Tr. 

519. At the time of the return visit, miners “Britt [McDaniel] and Joseph [Sauer]” were present

and they were working in the shop at the mine site. Tr. 521, 525. They informed that they had

received some training, that is, a “safety talk,” from Mr. Miller, but did not know it if was in

compliance with the earlier-issued order. Tr. 521-22. Also, Mr. Miller told them it was okay for

them to be working at the site. Tr. 525. The inspector noted that if the required Part 48 training

had been done, there would be a record of that. Id.

At the time of his follow-up visit on May 13, 2014, no training plan had been submitted 

to MSHA for the Plumbago Mine. No records were produced for the inspector, nor had the 

section 104(g) withdrawal order been terminated. Tr. 523-24. The citation was marked as no 

likelihood and non-S&S, since it was a violation of a section of the Act but not a violation of a 

safety or health standard. Though the inspector initially marked it as “reckless disregard,” he 

ultimately marked the violation as high negligence, feeling that it met that lesser criteria better. 

Tr. 525. Mr. Miller did not ask any questions of the inspector about Citation No. 8698236. 

Mr. Miller testified about the charge of working in the face of a withdrawal order. He 

began by stating that after the inspector raised the matter, he went back to the training records for 

the Sixteen to One Mine and determined that the only difference between that mine and the 

Plumbago was the communications. Tr. 537. However, this testimony related to the training 

plan, and not to the training itself. Tr. 538. Miller then conceded that there was a “paper 

problem” but adamantly asserted that no one was in any danger, and he believed they were not in 

violation based on his understanding of the law. Miller believed that everyone was trained and 

also had years of experience with his operations. Id. Miller reiterated that his men were trained 

but that, as a small operation, the paperwork lags behind. Tr. 539. Small mining operations such 

as these mines, Miller stated, are overwhelmed with paperwork. Id. Though he conceded that he 

38 FMSHRC Page 1031
allowed the miners to go back to work, he probably told them to work on the surface only, not 

underground. Tr. 540. 

Miller then asserted that he had certificates of training for Britt McDaniel, Skyler Noble, 

Joseph Sauer and Kevin George, dated July 22, 2014, to support his contention that those miners 

were not “newly hired experienced miners.” Tr. 541-42; RX 6. He stated that all the miners did 

was move over to a different mine, from the Sixteen to One Mine to the Plumbago. Tr. 542. An 

objection was made by the Secretary as the document related to the Sixteen to One Mine and it 

involved annual refresher training, not newly hired experienced miner training. Id. Besides, the 

training applied to the wrong mine, and there was the additional issue of it not being newly hired 

experienced miner training. Instead the proposed exhibit related to annual refresher training. 

Mr. Miller countered that the miners were not “newly hired,” as that would mean, in Miller’s 

view, that the miners were coming to the property for the very first time. Tr. 544. At most, he 

contended, they had made a paperwork error. The Court observed that, if it can be shown that 

the miners met the qualifications at the Sixteen to One Mine, such a fact could impact the penalty 

assessment. The Court allowed the exhibit, RX 6, a two page document, to be admitted. Tr. 

545. 

On cross-examination of Mr. Miller, he admitted that RX 6 reflects training records 

pertaining to the Sixteen to One Mine. Tr. 548. Miller stated that he completed the training for 

Britt McDaniel, Skyler Noble, and Joseph Sauer. Though he did not make out the forms, per RX 

6, he did sign them. Tr. 549. Miller agreed that he is a certified MSHA trainer and that, as such, 

he is aware that annual refresher training is not the same as newly hired experienced miner 

training. Tr. 550. However, he stated he did not know that such training has to be site specific. 

Id. Mr. Miller expressed that he could not answer the question of whether every mine requires 

its own training plan, stating “there’s too many unknowns” in the question posed. As an 

example of an “unknown,” Miller stated that he did not know the definition of a mine as used in 

the question. Tr. 551. Significantly, Miller did concede that there was no training plan in 

existence for the Plumbago Mine at the time that the miners signed the training plans reflected in 

RX 6. Id. Miller agreed that the training record for Kevin George, per RX 6, was for newly 

employed experienced miner training on May 20, 2014. Tr. 552. 

Continuing with regard to GX 20, relating to the first working in the face of an order 

received by Miller regarding this litigation, when Mr. Miller was asked if he was upset upon 

receiving the first 104(g)(1) withdrawal order on May 13th, he responded that he knew from his 

employees that the order had been issued and that he “probably got on the phone right away.” 

Tr. 554. He believed that the only issue was the training, not the paperwork. Id. He admitted 

that when inspector Dan Boylan returned to the mine on May 13th, MSHA considered the miners 

at the Plumbago mine to not be properly trained. Tr. 555. However, Miller denied that he sent 

the miners back to work without the required training being received. Id. His support for that 

view is that those miners had the training, albeit for the Sixteen to One Mine, but that there was 

no difference in the training for those two mines, except, as noted, for a different 

communication system at the Plumbago. Id. He then suggested, imprecisely, that the next 

morning they got the “procedure” (possibly referring to the communication system or perhaps 

the whole paperwork for the Sixteen to One Mine) in writing and took it over to the Plumbago 

38 FMSHRC Page 1032
Mine. Id. However, he admitted that he had not submitted a plan to MSHA, but added that he 

didn’t know he needed to do that. Tr. 556. 

On further cross-examination, Miller agreed that following Inspector Boylan’s issuance 

of a withdrawal order at the Plumbago Mine on May 17, 2014, the miners then came to the 

Sixteen to One Mine and met with him, informing him of the withdrawal order. Tr. 560. Miller 

then telephoned MSHA about the issue. However, he denied asking Boylan “what the hell” he 

was doing at the Sixteen to One Mine office. He could not recall if Boylan told him he had 

issued a 104(g) withdrawal order, or whether the inspector asked to see the mine’s training 

records. Tr. 561. Miller agreed that he knew the issue was the training of his miners. Tr. 562. 

On May 13, 2014, Boylan issued the working in the face of an order violation (GX 20a), 

but he had not delivered the 104(g)(1) order in person prior to that date. Tr. 570. Boylan saw 

what would become RX 6 on the first day he arrived at Plumbago in connection with the hazard 

complaint on May 6, 2014, but determined that it was insufficient because it related to the 

Sixteen to One Mine, not the Plumbago Mine. Tr. 572. Training is site specific. Tr. 572-73. 

This is because a training plan must address the geology, hazards, and conditions relevant to the 

particular mine site and these mines are at different sites. Tr. 573. 

Mr. Miller attempted to show that the geology for the two mines was essentially the 

same, and by that, he was suggesting that one could have a single plan which applied 

simultaneously to both mines. Tr. 574. The inspector conceded that the geology was not 

different; rather the violation was based on the lack of a plan for the Plumbago Mine. Tr. 574-

75. The Court then interjected that even if Mr. Miller could establish that in every regard the

Sixteen to One and the Plumbago mines were identical, it still wouldn’t affect the requirement to

have a separate plan for each mine. Tr. 576. As noted, such a consideration could be considered

in assessing a penalty. Mr. Miller noted that he had previously conceded that there was no

separate plan for the Plumbago. Id.

Upon consideration of the evidence adduced, the Court imposes a civil penalty of $75.00. 

This takes into account the slight differences between the plans but still holds Respondent 

responsible for the compliance obligation. 

Docket No. WEST 2015-78-M (Plumbago Mine)

Order No. 8698224 

Proposed Penalty: $112.00. Penalty Assessed: $112.00. 

Inspector Boylan testified regarding the section 104(g)(1) order, Order No. 8698224.12 

This matter arose in connection with a verbal hazard complaint received by MSHA on May 5, 

2014. Tr. 386. The complaint was anonymous and made by telephone. Thereafter, it was 

assigned to Boylan. The allegation was that the Plumbago Mine had no telephone and no permit 

for explosives storage and use, and that there was drug and alcohol storage, production, and/or 

12 As they are related, Order No. 8698224, Citation No. 8698225, and Citation No. 

8698226 are discussed together. 

38 FMSHRC Page 1033
use at the mine. In addition, the complaint asserted that workers were concerned over news that 

a caretaker at the property had died. 

Finding the Plumbago Mine took some research on the inspector’s part, but three IDs 

came up using MSHA’s data retrieval system. Those ID numbers are reflected in GX 18. Tr. 

386-88. The IDs, however, do not provide GPS locations, so the inspector had to drive to the

vicinity and then try to find the mine. Tr. 389. Since the information MSHA had listed the

mines as “abandoned,” there were no directions to the mine, nor to a mine office location. Tr.

390. Eventually, the inspector found the location, coming upon a gated entrance with an old mill

and rail dumps. At that time he also saw yellow caution tape on the gate leading to the mine. He

then walked past the gate, arriving at the portal, some 1,700 feet from that point. Along the way

to the portal he saw signs that mining activity had been taking place, observing relatively new

PVC pipe, a box for power lines, with the box in the “on” position, and an electric locomotive of

the type used for underground mining. The tracks were also shiny, an indicator of use. New

timber and tools were also present outside of a shop and tools were in front of the portal. Tr.

395. These observations led him to conclude that there was mining activity.

No one was presently at the site but he then came into contact with someone who lived

on a hill near the mine site, who informed him that people were coming and going from the site 

location. He told the inspector that the Miller boys were going in there. Tr. 396. Soon after that 

exchange, the inspector related that people started to show up at the site; they were Britt 

McDaniel, Joseph Sauer, and Skyler Noble. Tr. 397. Those individuals informed him that they 

were rehabilitating the mine and had been working there for about six months and were presently 

about 1,000 feet into it. They also confirmed to the inspector that this was the Plumbago Mine. 

Tr. 398. Interviewing the men, they spoke of their activities at the site, such as removing poor 

timber and replacing it with new wood, and checking ground and roof control for safety. Tr. 

399. 

All of the information led the inspector to conclude that it was an active mine site. 

Checking with his MSHA office, the inspector received confirmation that no one had reported 

the mine as being active. Further, he confirmed that no training plan had been submitted for the 

mine. Tr. 400. The individuals he interviewed advised that they had some training a few months 

earlier, but as there was no training plan for the mine, such training was for a different mine. Tr. 

401. He later learned that the training the men mentioned was annual refresher training, but for

the Sixteen to One Mine. Id. Original Sixteen to One Mine, Inc., owns the Plumbago Mine. Tr.

402.

38 FMSHRC Page 1034
Based upon his investigation, as described above, Boylan issued Order No. 8698224, a 

section 104(g)(1) order, GX 21(a), invoking 30 C.F.R. § 48.6.13 The order alleged that miners 

had not received the newly hired, but experienced, miner training. Tr. 402. The order withdrew 

the miners from the mine site, as untrained miners are deemed to be a hazard to themselves. A 

safety meeting was held the day after he issued the citation. Tr. 403. The order was marked as 

“reasonably likely” and “S&S.” The inspector’s issue was the miners not being trained under a 

training plan associated with the mine where they were working. Those miners had exposure for 

about six months, working in the formerly abandoned mine, as they made their efforts at the 

mine’s rehabilitation. Training plans must take into account the specific hazards at the specific 

mine. Tr. 404-05. The inspector also marked the Order as “fatal” because the history of mine 

fatalities correlates with untrained miners. Tr. 405. Also, the inspector considered that the mine 

did not have a ventilation plan or a mine rescue plan. Tr. 406. The negligence was marked as 

“high” because training is “101” for mining (i.e., a basic requirement) and the operator, being a 

“blue card holder” is able to give the training. This means that the operator, Mr. Miller, as a blue 

card holder, was well aware of the training requirements. Id. Subsequently, changes were made 

to some of the order’s designations, lowering them. Tr. 408. 

In later testimony regarding this order, Inspector Boylan stated that he discussed the order 

with Mr. Miller in person. Tr. 566. This happened on the same date that Boylan came to the 

Sixteen to One Mine office after informing the miners of the withdrawal order. Boylan affirmed 

that, through his conversation, it was clear that Miller knew that he had issued a withdrawal 

order for failure to train the miners. Tr. 567. Boylan stated that in response Miller was upset and 

believed that the mine had been shut down. The mine was not shut down, but the miners had 

been withdrawn. Id. Because of the heated atmosphere, Boylan decided not to issue the order 

that day. Instead he returned to the MSHA office, typed out the order and delivered it via email, 

confirming by the software program that the order had been delivered. Tr. 569. 

13 30 C.F.R. § 48.6, titled “Experienced miner training,” provides: 

(a) Except as provided in paragraph (e), this section applies to experienced miners

who are —

(1) Newly employed by the operator;

(2) Transferred to the mine;

(3) Experienced underground miners transferred from surface to

underground; or

(4) Returning to the mine after an absence of more than 12 months.

(b) Experienced miners must complete the training prescribed in this section

before beginning work duties. Each experienced miner returning to mining

following an absence of 5 years or more, must receive at least 8 hours of training.

The training must include the following instruction . . . [the standard then details

the course of instruction in subsections (b)(1) through (b)(12) and (c) through (e)].

38 FMSHRC Page 1035
Respondent’s post-hearing reply brief asserts that 

[t]he opening quote of the citation implies that the miners lacked the required

training to act as trained miners. This is patently false. These miners have long

standing employment with Respondent. At most this is paper dumbness. There

could not be an allegation of fatal. Negligence was zero. The proof is in our

history.

Resp’t’s Reply Br. 4. Respondent misses the point. The order alleged that miners had not 

received the newly hired, but experienced, miner training. This was established. Respondent’s 

contention only serves to show that it could have easily complied with the requirement. 

Training, for experienced and new miners, is a recognized safety fundamental. Characterizing it 

as “paper dumbness” is a misguided view. 

Order No. 8698224 is upheld and the findings of the inspector are affirmed. The Court 

imposes a penalty of $112.00. 

Citation No. 8698225 

Proposed Penalty: $100.00. Penalty Assessed: $100.00. 

Citation No. 8698225, GX 22, citing 30 C.F.R. § 48.3(a)(3), was also written on the same 

day as GX 21. It was based on the lack of an approved Part 48 training plan prior to the 

reopening and reactivation of the Plumbago Mine. Tr. 408. For this citation, the inspector 

marked it as no likelihood, no lost workdays, and non-S&S. He so marked it because he 

regarded it as a recordkeeping violation. However, because Mr. Miller was well aware of the 

requirements, he designated it as “high negligence.” Tr. 409. 

The Court upholds the violation and agrees that “high negligence” is the appropriate 

characterization. This finding is also appropriate when the violation is viewed in the context of 

Order No. 8698224, GX 21, and Citation No. 8698226, GX 23, as they are related. A penalty of 

$100.00 is assessed. 

Citation No. 8698226 

Proposed Penalty: $100.00. Penalty Assessed: $100.00. 

Inspector Boylan’s testimony also addressed Citation No. 8698226, GX 23, for failing to 

notify MSHA before starting operations, per 30 C.F.R. § 57.1000. Tr. 409. Prior to the 

inspector’s arrival at the mine, MSHA had not been notified of the mine’s rehabilitation status. 

Tr. 410. For this violation too, the inspector marked it as no likelihood, no lost work days and 

non-S&S, because he viewed it as a paperwork violation. Id. The reasons for the notification 

requirement are obvious. With awareness of mining activity: MSHA can arrive for help if the 

situation calls for it; it can make sure there are training plans; and, more fundamentally, it 

enables the agency to perform within its jurisdiction to inspect mines. Id. In the six months of 

failing to notify MSHA of the activity, at least one inspection would have otherwise occurred. 

Tr. 411. As before, the negligence was listed as “high” because the operator has a long history 

of mining and was well aware of these requirements. Id. In addition, the inspector learned that 

38 FMSHRC Page 1036
other agencies had been notified of the mine’s new activity. Tr. 413. Employee Rae Bell 

allegedly told the inspector that OSHA had been notified, but that Mr. Miller deliberately did not 

notify MSHA. Id. Later the same day, the inspector was at the Sixteen to One Mine and he met 

Miller there. Miller stated MSHA had no jurisdiction at the Plumbago Mine and was upset that it 

had been shut down. Tr. 415-16. As noted, while the mine had not been shut down, effectively 

it had been, as its employees could not work there until their training had been completed.

Mr. Miller’s cross-examination of the inspector began with inquiring about the basis for 

the inspector being on the Plumbago Mine property, which he characterized as “private.” Tr. 

418. Miller asserted that MSHA did not have jurisdiction over the mine. This, he stated, was

based on Section 4 of the Mine Act, the text of which was read into the record. That section,

titled “Mines Subject to Act,” provides: “SEC. 4. Each coal or other mine, the products of which

enter commerce, or the operations or products of which affect commerce, and each operator of

such mine, and every miner in such mine shall be subject to the provisions of this Act.” Tr. 421.

From this, Miller asserted that no products entered into production from the operation, and

therefore there was no impact on interstate commerce. Id. In addition, there was not any

equipment there that would affect interstate commerce. Tr. 422. Mr. Miller then asked the

inspector to distinguish between mining activity and tunneling. The inspector stated that mining

is “producing, exploration and development and rehabilitation.”14 Tr. 425. This claim by

Respondent, that jurisdiction was lacking, completely lacking in merit, has been discussed

earlier.

Mr. Miller then testified about the foregoing, grouped matters, beginning with offering 

RX 3 for identification. The Secretary objected to the exhibit as not relevant, as it reflects an 

approved training plan for the Sixteen to One Mine. These matters all relate to the Plumbago 

Mine, and therefore the training plan for another mine was not material. However, the Court 

utilized its discretion and admitted the exhibit, while noting that the weight afforded the exhibit 

was a distinct matter. Tr. 432. Miller then moved for the admission of RX 4, the Plumbago 

Mine’s MSHA-approved Part 48 underground mining plan, dated June 26, 2014. The Court 

noted and Miller affirmed that his point in offering the exhibit was to show that it is virtually 

identical to the plan for the Sixteen to One mine. Tr. 433. The Court noted that the exhibit also 

can be viewed from a different perspective, as it shows how easy it would have been for the mine 

to have been in compliance, in large measure by just changing the name of the mine on the title 

page. Id. 

14 Although Mr. Miller was then challenging the inspector’s experience, the citations in 

issue at this point in the proceeding were Order No. 8698224 (GX 21), Citation No. 8698225 

(GX 22), and Citation No. 8698226 (GX 23), involving, respectively, newly hired experienced 

miner training, no training plan, and no notification before starting operations. Tr. 429. The 

inspector stated that he has never worked in an underground mine. Id. The Court finds that 

Inspector Boylan was a well-qualified and knowledgeable inspector, who spoke with detail, both 

credibly and convincingly, regarding each of the citations/orders about which he testified. 

38 FMSHRC Page 1037
The Court upholds the violation and agrees that “high negligence” is the appropriate 

characterization. This finding is also appropriate when the violation is viewed in the context of 

Order No. 8698224, GX 21, and Citation No. 8698225, GX 22, as they are related. A penalty of 

$100.00 is assessed. 

Citation No. 8698228 

Proposed Penalty: $243.00. Penalty Assessed: $243.00. 

Inspector Boylan also testified regarding Citation No. 8698228, GX 25a, issued May 7, 

2014, and citing 30 C.F.R. § 49.215 for the Plumbago Mine’s failure to “have at least two mine 

rescue teams available onsite, nor an alternative compliance under the small and remote mine 

rescue capabilities.” Tr. 437. Such an alternative plan has to be applied for and sent to the 

MSHA district office. That MSHA office had no such record on file. Tr. 438. Small mines are 

required to have their own mine rescue team or to have an agreement with another mine to 

provide mine rescue. The Plumbago mine had neither arrangement. Tr. 438-39. The inspector 

looked for documentation at the mine and the MSHA district office, but none was at either 

location. Tr. 439. 

The inspector marked the citation as S&S and reasonably likely because, in context, there 

was no mine rescue, no ventilation plans, and no escape and evacuation plan, but there was 

exposure of miners. Miners had been working, untrained, and underground for six months in this 

formerly abandoned and now rehabilitated mine. Tr. 439. He added that the standard he cited is 

considered an “emergency standard.” This didn’t mean that there was an emergency underway, 

but rather that mine rescue comes into play when the event of a disaster has occurred to address 

15 Section 49.2, titled “Availability of mine rescue teams,” provides: 

(a) Except where alternative compliance is permitted for small and remote mines

(§ 49.3) or those mines operating under special mining conditions (§ 49.4), every

operator of an underground mine shall:

(1) Establish at least two mine rescue teams which are available at all

times when miners are underground; or

(2) Enter into an arrangement for mine rescue services which assures that

at least two mine rescue teams are available at all times when miners are

underground.

(b) Each mine rescue team shall consist of five members and one alternate, who

are fully qualified, trained, and equipped for providing emergency mine rescue

service.

(c) To be considered for membership on a mine rescue team, each person must

have been employed in an underground mine for a minimum of one year within

the past five years. For the purpose of mine rescue work only, miners who are

employed on the surface but work regularly underground shall meet the

experience requirement. The underground experience requirement is waived for

those miners on a mine rescue team on the effective date of this rule.

(d) Each operator shall arrange, in advance, ground transportation for rescue

teams and equipment to the mine or mines served.

38 FMSHRC Page 1038
the need of rescuing miners who are in danger underground or trapped. Tr. 439-40. For those 

reasons, he also marked the citation as fatal. The citation was issued under section 104(d)(1) 

because of his determination that elevated negligence was involved, that the mine operator knew 

of the requirement, and that the requirement for a mine rescue team is basic and fundamental, not 

to mention that mine operator Miller used to be involved with mine rescue teams. Tr. 440. 

In his cross examination regarding the mine rescue citation, Mr. Miller began with 

proposed exhibit RX 5, a letter from “Barrick Goldstrike Mines” to Mr. Miller as the manager of 

the Sixteen to One Mine, dated April 1, 2014. The inspector acknowledged he had seen the letter 

before. Tr. 451. Mr. Miller asked no other questions of the inspector about the letter. Mr. 

Miller attempted to use the letter to show that Barrick Mines would help in the event of a mine 

emergency. Tr. 452. The problem with it is that it references only the Sixteen to One Mine, not 

the Plumbago Mine. Tr. 452. Miller agreed that the letter makes no reference to the Plumbago 

Mine. Tr. 453. The Court ruled that the letter was not material to the issue of whether there 

were two mine rescue teams available and committed to respond to an emergency at the 

Plumbago Mine and therefore proposed exhibit RX 5 was not admitted. Tr. 454. 

Upon consideration of the evidence for this citation, the proposed penalty of $243.00 is 

adopted and imposed. 

Citation No. 8698229 

Proposed Penalty: $308.00. Penalty Assessed: $154.00. 

For Citation No. 8698229, GX 26a, issued May 7, 2014, to the Plumbago Mine, and 

citing 30 C.F.R. § 57.11053, the inspector cited the lack of an escape and evacuation plan. A 

plan was not available for posting at the mine and therefore, in the event of a mine disaster, there 

were incomplete, non-existent, or inaccurate emergency plans. Tr. 441. Such a plan, obviously, 

is to address an emergency for miners as well as for rescue personnel or even mine visitors. Tr. 

442. Mr. Miller stipulated that the mine did not have such a plan. Tr. 443, 458. Taking into

account that the miners told him they had radios to call out in such an event, the inspector

initially marked the citation as non-S&S and unlikely. However, after considering other

deficiencies, involving the absence of a ventilation plan and mine rescue training, he then

considered it to be reasonably likely. Tr. 444. He also marked the gravity as ‘fatal’ and high

negligence. Id. Without such a plan, if an emergency arose, one would not have a specific

escape and evacuation plan, which plan would facilitate rescues, too. With a plan, people would

know the way in and out and where miners were working. It was also designated as high

negligence because the operator was well aware of the standard. Id. With the inspector’s

reassessment, he then revised the citation to a section 104(d)(1) violation. Tr. 445.

Subsequently, however, as reflected on the fourth continuation page and Exhibit A to the penalty

petition, the inspector later re-evaluated the paper and reduced the violation to a section 104(a)

moderate negligence citation.

Mr. Miller’s cross-examination for GX 26 began by characterizing the citation as relating 

to a tunnel. The inspector stated that he did not go underground for this citation, as it involved 

the failure to have an escape and evacuation plan in the event of an emergency. Tr. 457. Apart 

from the claim that the mine was a tunnel, Respondent presented no defense to this citation. 

38 FMSHRC Page 1039
The plan is obviously important, but given the small size of the mine, in terms of 

employees, and given the inspector’s initial assessment that the gravity was unlikely, and that the 

miners had radios, a lesser penalty is appropriate. The Court imposes a civil penalty of $154.00 

for this violation. 

Citation No. 8698230 

Proposed Penalty: $308.00. Penalty Assessed: $154.00. 

Citation No. 8698230, GX 27, citing 30 C.F.R. § 57.8520,16 was addressed. As originally 

issued, the violation was written as a section 104(a) citation. This involved the Plumbago 

Mine’s failure to have a ventilation plan. Such a plan must be filed with the MSHA district 

office, but the inspector found none. Further, no plan was at the mine office and the miners did 

not know of such a plan either. Tr. 447. The inspector did know that the ventilation was natural, 

i.e. not accomplished through mechanical means. However, the miners didn’t know where the

ventilation was coming from. Id. As with Citation No. 8698229, GX 26a, the inspector revised

his initial citation upward to S&S, likely, high negligence, and fatal, and converted it to a

104(d)(1) order after considering the other related violations for lack of mine rescue and escape

plans. In the event of a fire, a ventilation plan is used to control it, by having knowledge of the

airflow in the mine. The reasoning for those designations followed that cited by the inspector for

Citation No. 8698229. Tr. 448. Just as with Citation No. 8698229, however, the inspector later

reduced the negligence from high to moderate and re-evaluated the 104(d)(1) order to a 104(a)

citation, as evidenced by the fourth continuation page of the citation. For GX 27, Mr. Miller

stipulated that no plan of the mine ventilation system was set out by the mine operator in written

form. Tr. 460. Mr. Miller’s defense for Citation Nos. 8698228, 8698229, and 8698230 began by

questioning his witness, Mr. Farrell, about mining law in 1872. Tr. 462.

The violation is upheld. Applying the same reasoning used for Citation No. 8698229, 

GX 26, the Court imposes a civil penalty of $154.00. 

16 Section 57.8520, titled “Ventilation plan,” provides: 

A plan of the mine ventilation system shall be set out by the operator in written 

form. Revisions of the system shall be noted and updated at least annually. The 

ventilation plan or revisions thereto shall be submitted to the District Manager for 

review and comments upon his written request. 

The standard goes on to provide a detailed list of such plan’s requirements, “where applicable.” 

See § 57.8520(a)-(e). 

38 FMSHRC Page 1040
Citation No. 8698231 

Proposed Penalty: $100.00. Penalty Assessed: $100.00 

Inspector Boylan testified about Citation No. 8698231, GX 28, issued to the Plumbago 

Mine on May 5, 2014, and citing standard 30 C.F.R. § 57.18009. 17 Tr. 465. The standard 

requires that a person be designated as the one in charge at a mine in the event of an emergency. 

When the inspector asked about who was so designated, no one was identified. Tr. 467. This 

was another violation for which the inspector changed his original designations upward to S&S 

and reasonably likely, high negligence and fatal. Here again, his more serious assessment was 

based upon the other violations he found during his inspection, such as the lack of a mine rescue 

team, and no escape and evacuation plan. Tr. 467-68. He later reduced the designations back to 

unlikely, no lost workdays, moderate negligence, and non-S&S, according to the second 

continuation sheet provided with the citation and the penalty petition. 

Mr. Miller testified regarding Citation No. 8698231. Speaking to the competent person 

issue, Miller asserted that Britt McDaniels “has been a competent person working for our 

company . . . [and] Joseph Sauers is a competent person also.” Tr. 484. He added that the mine 

had radio communications. Id. The Court noted that the standard requires a competent person, 

designated by the mine operator, is to be in attendance but the inspector testified that no such 

person was present. Tr. 485. Miller then stated that Britt McDaniels, Joseph Sauer, and Skyler 

Noble were all at the mine that day and that all were competent persons. Tr. 486. Miller then 

reiterated that he designated McDaniels as the competent person at the Plumbago Mine and if 

that person was not there at a given time, Sauers was there. Tr. 487. Miller stated that he so 

designated those people as competent persons at the mine, “[p]robably well before May.” Id. 

While he could not give a precise date, Miller stated that it was approximately in January 2013. 

Tr. 488. Miller’s position was that the miners there at the time of the citation’s issuance simply 

didn’t speak up, viewing the inspector as a “stranger.” Tr. 491. 

The Court noted that Miller’s testimony about the date he designated those individuals 

had implications about his claim concerning when the Plumbago Mine became active. Tr. 489. 

In light of the testimony from Respondent, Attorney Horn recalled Inspector Boylan. 

Boylan stated that when he was at the mine he identified himself as an MSHA Inspector to the 

miners at that site. Tr. 505-06. Boylan reaffirmed that when he spoke with Britt McDaniels, 

asking if he knew who the designated person in charge in case of an emergency was, he 

responded there was none. Tr. 506. On re-cross, Boylan was asked how he identified himself to 

“Britt [McDaniel] and Joseph [Sauer].” Tr. 510. The inspector stated he responded: “My name 

is Dan, I’m with the Mine Safety and Health Administration, and I’m here on [a] hazard 

complaint.” Id. Mr. Miller had no questions of the inspector about the citation reflected in GX 

28. Tr. 483.

The Court finds that this violation was established and imposes the penalty as proposed. 

17 Section 57.18009, titled “Designation of person in charge,” provides: “When persons 

are working at the mine, a competent person designated by the mine operator shall be in 

attendance to take charge in case of an emergency.” 

38 FMSHRC Page 1041
Citation No. 8698232 

Proposed Penalty: $112.00 Penalty Assessed: $112.00 

Citation No. 8698232, GX 29, citing 30 C.F.R. § 57.4533(a),18 issued May 7, 2014, 

pertained to the mine shop, which was located right outside the portal, and asserts that the shop 

was not constructed of non-combustible materials. Mr. Miller then stipulated to the fact of 

violation. Tr. 469. However, Respondent did challenge the fatal and moderate negligence 

designations. The inspector stated that GX 29c accurately represented what he observed: the 

shop’s proximity to the mine portal. A concern is that, with such combustible construction, 

smoke could enter the mine if the shop caught fire. Tr. 472. A fire, and smoke from it, could 

impede the ability to exit the mine. Id. At the time of the citation’s issuance, there was only one 

portal, also as depicted in GX 29c. Moderate negligence was marked, on the basis that the 

inspector had no facts as to how often the mine operator had been on site and evaluated the mine 

property. Tr. 473. 

Regarding Citation No. 8698232, Miller stated that his remarks applied to that citation 

and “the other one,” apparently referring to Citation No. 8698233. He asserted there are two 

portals and that the second portal in fact is more than 100 feet from the building. He described 

the two portals as “like a Y.” Tr. 492. Miller asserted that if the building did catch fire no 

danger would be presented. He based this on the statement that air was coming out of the portal, 

not going into it. Despite that assertion, the violation was abated by installing a sprinkler system, 

a fix Miller described as “very expensive.” Tr. 493. 

Mr. Miller had no questions of the inspector about the citation reflected in GX 29. Tr. 

483. Upon consideration of the record evidence, the Court adopts the findings and proposed

penalty derived therefrom. Therefore, the $112.00 penalty is imposed.

Citation No. 8698233 

Proposed Penalty: $100.00. Penalty Assessed: $75.00. 

Citation No. 8698233, GX 30, citing 30 C.F.R. § 57.9300(a)19 and issued May 7, 2014, 

involved the lack of a berm on the roadway leading up to the mine. The roadway was elevated 

and miners used the road to travel to and from the mine. Tr. 473. Photos designated GX 30c 

were offered to show the cited road condition. Though he did not measure the elevation, the 

18 Section 57.4533, titled “Mine opening vicinity,” provides: “Surface buildings or other 

similar structures within 100 feet of mine openings used for intake air or within 100 feet of mine 

openings that are designated escapeways in exhaust air shall be — (a) Constructed of 

noncombustible materials.” 

19 Section 57.9300, titled “Berms or guardrails,” provides at subsection (a): “Berms or 

guardrails shall be provided and maintained on the banks of roadways where a drop-off exists of 

sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment.” As 

mid-axle height was mentioned in the testimony, subsection (b) of the standard is here noted. It 

states that such “[b]erms or guardrails shall be at least mid-axle height of the largest selfpropelled mobile equipment which usually travels the roadway.” 

38 FMSHRC Page 1042
inspector estimated it to be about 38 feet in height. GX 30c, photo two, shows the edge of the 

elevated roadway. Also, clarifying the photo’s depiction, the inspector affirmed that, in photo 

one of GX 30c, the roadway cited is to the left of the private property sign. Tr. 477. The 

inspector agreed that, per that photo, he believed a berm was needed from the private property 

sign up to the gate. Id. No berm was present along the cited part of the roadway. The road itself 

was 18 feet wide. The inspector designated the citation as non-S&S and unlikely because it was 

not a haulage road, but instead was used to enter or exit the mine. However, he did mark it as 

“fatal” because, if a vehicle did go over the roadway edge, one would receive fatal crush and 

impact injuries. Once again, the negligence was marked as moderate because the inspector had 

no evidence that the mine operator was aware of the condition. Tr. 476. Thus, quite favorably to 

the mine operator in the Court’s view, the inspector viewed the absence of evidence that the 

operator knew of the issue as a mitigating factor. Id. 

Miller agreed that photo one of GX 30c was a fair representation, but asserted that photo 

two was not. He maintained that the depth of the rock cannot be seen and that there was a berm 

that came up to the mid-axle of the pickup truck. Tr. 494. He contended that repeated grading of 

the road over the years had created a sufficient berm. Later, the berm height was increased when 

they brought in a loader. Miller’s position was that the citation should be vacated. Tr. 496. 

On redirect for GX 30c, photo 3, Boylan was asked if he saw a berm in that photo, and he 

responded that he did not and that the photo reflected the condition of the roadway on May 6, 

2014. Tr. 507. Directed to the right side of the photo where PVC pipe is shown, the Inspector 

stated that he did not consider that area of the roadway to have a berm. While he agreed that 

there appeared to be a “bump” or a “little material raised up” there, it was not a berm, as it was 

not mid-axle height of the vehicle that used that road, which was a pickup truck. Tr. 507-08. He 

did not measure the mid-axle height of the truck because it was so obvious that the berm was not 

mid-axle height. Tr. 508. The inspector stated that he did consider the density of forest in that 

location but added that the majority of the trees were not up to the roadway’s edge. It was his 

view that one who over-traveled the road would overturn before going into the trees. Tr. 509. 

Mr. Miller had no questions of the inspector about the Citation reflected in GX 30. Tr. 

483. 

The violation was established. However, given the small size of this mine and the 

minimal traffic along the cited berm-less road, a penalty of $75.00 is imposed.

38 FMSHRC Page 1043
Citation No. 8698234 

Proposed Penalty: $100.00. Penalty Assessed: $100.00. 

Citation No. 8698234, GX 31, citing standard 30 C.F.R. § 57.4131(a), 20 was issued May 

8, 2014. For this matter, at issue was timber being stored about ten feet from the portal. As 

mentioned earlier, the standard requires that no more than one day’s supply of combustible 

material may be stored within 100 feet of the mine opening. Tr. 478-79. The condition was 

photographed. GX 31c, photo 2. The wood, the pieces of timber, which the inspector cited, 

were not related to the building shown in the bottom center of the photo. Tr. 479. Mr. Miller 

stipulated that the material cited was less than 25 feet from the portal. Tr. 480. The citation was 

marked as non-S&S and unlikely as the inspector did not see any ignition sources or other 

sources of combustion such as liquids or gases. Tr. 481. He concluded that there was more than 

a one-day supply of wood by speaking with the miners at the site and learning how long the 

wood had been there and upon being informed that the mining progress had been slow going. 

Tr. 481. He never learned how long the wood had been there, other than being told it was more 

than a day. Id. He marked the violation as fatal because of the combustible materials’ closeness 

to the mine entrance and because of the adverse impact it would have with mine rescue and 

escape and evacuation if a fire were to occur. Id. For the same reasons he gave earlier, no 

information as to the operator’s knowledge of the condition, he marked the negligence as 

moderate. Tr. 482. Mr. Miller had no questions of the inspector about the citation reflected in 

GX 31. Tr. 483. 

Regarding the one-day supply of lumber issue, Miller repeated that there are two adits, 

forming a Y shape, with the second adit of the Y being 100 feet from the other. Miller also 

asserted that, as any experienced miner would know, the wood cited was less than a one day’s 

supply, especially when one is renovating a tunnel. Tr. 497. Miller added that because the air 

exits from that portal, even if the material did catch on fire, no smoke could enter it. Tr. 498. He 

added that there were no sources of fire. Miller concluded by stating that his only defense 

regarding that citation is that there was not more than a day’s supply of lumber. Tr. 499. 

Attorney Horn then asked Miller, regarding GX 31c, photo 2, whether one of more of the lines 

depicted in that photo were electrical. Tr. 501. Miller admitted that to be the case, but 

responded that the electrical line or lines had no bearing on the citation regarding the wood. Tr. 

502. Miller then agreed that there was a compressor at the mine and that it was powered by

electricity. Tr. 504.

20 The cited standard, § 57.4131, titled, “Surface fan installations and mine openings,” 

provides: 

(a) On the surface, no more than one day's supply of combustible materials shall

be stored within 100 feet of mine openings or within 100 feet of fan installations

used for underground ventilation.

(b) the one-day supply shall be kept at least 25 feet away from any mine opening

except during transit into the mine.

(c) Dry vegetation shall not be permitted within 25 feet of mine openings.

38 FMSHRC Page 1044
On redirect for Citation No. 8698234, Attorney Horn asked Inspector Boylan how he 

determined that there was more than a one day’s supply of lumber. The inspector advised that it 

was based on his interviewing the miners. Further, nothing else he learned contradicted that 

view. Tr. 509. 

Upon consideration of the record evidence, the Court adopts the findings in the citation 

and the proposed penalty derived therefrom. Therefore, the modest $100.00 penalty is imposed. 

Citation No. 8785247 

Proposed Penalty: $100.00. Penalty Assessed: $75.00. 

Inspector Nicholas Basich testified regarding Citation No. 8785247, which pertained to 

an alleged violation of a vehicle with no functioning brake or tail lights at the Plumbago Mine. 

The cited standard was 30 C.F.R. § 57.14100(b).21 Respondent agreed to the conditions and 

practices section of the citation, conceding the vehicle did not have functioning brake and tail 

lights, per item 8. Tr. 204. That the lights were non-functioning does not fully describe the 

condition, because the vehicle had no such lights present at all. Tr. 205. Miller did challenge the 

claim that the condition had been that way for about two months. A photo of the vehicle appears 

in GX 32c. The inspector did acknowledge the presence of a bar with a red rectangle on the back 

of the cab, but he did not know if it was a functioning brake or warning light. However, he did 

not consider it to be a brake or warning light. Tr. 207. The hazard is, with non-functioning 

lights, persons might be unaware of the vehicle stopping. Tr. 208. In addition, miners were in 

the truck’s seats. However, the inspector listed the violation as non-S&S and unlikely. Tr. 209. 

He believed the condition had existed for two months. The inspector acknowledged learning that 

the needed lights had been purchased but not yet installed. Tr. 210. The inspector listed the 

negligence as “high” because the condition had existed for some time and the operator was 

aware of it. Id. As such lights are warning devices, the inspector stated that their absence is 

plainly a safety defect. Id. 

Mr. Miller objected only to the high negligence designation for Citation No. 8785247. 

To begin, he stated that the light on the top of the cab was a brake light. Tr. 213. Further, the 

truck was never used at night, and in Miller’s view, it did not need tail lights. In addition, he 

took issue with the inspector’s claim that people would not be able to see the truck stop without 

the presence of such lights. Though he ordered his workers to install the lights, they failed to do 

so. Tr. 214. Miller felt the negligence should be low or at least moderate. 

The truck was used to transport miners to various mines. At that time he employed five 

miners. Tr. 216. The truck transported men over a seven mile stretch of county road. Tr. 217. 

Miller continued to object to calling the site a mining operation. Rather he called it a 

“rehabilitation of an abandoned piece of property.” Id. As noted, Respondent’s claims that 

Plumbago is not a mine have been rejected. 

21 30 C.F.R. § 57.14100(b) requires that “[d]efects on any equipment, machinery, and 

tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to 

persons.” 

38 FMSHRC Page 1045
Considering Mr. Miller’s credible testimony on this matter, the Court agrees that high 

negligence is inappropriate and that moderate negligence is more accurate. Accepting the other 

designations made by the inspector, including that the violation was properly determined to be 

non-S&S, the Court imposes a penalty of $75.00 for this violation. 

Citation No. 8793615 

Proposed Penalty: $100.00. Penalty Assessed: $100.00. 

Citation No. 8793615, GX 33, citing 30 C.F.R. § 57.12028,22 was issued on September 4, 

2014, for the Plumbago Mine. Tr. 579. That citation related to testing for continuity and 

resistance for electrical components, a requirement to be performed annually as well as after 

installation and changes to such electrical components. Tr. 580. The inspector could find no 

record of the test having been performed and he also learned, through interviewing the miners, 

that it had not been done. Id. The standard is important as a failsafe and to ensure that the 

electrical equipment is operating correctly and safely. Id. Such testing must be recorded. The 

inspector inquired at the Sixteen to One Mine office and at the Plumbago Mine site as to such 

records, but none were presented. Tr. 581. The inspector also inquired, apart from the lack of 

records, whether the testing had been done, and learned from mine employee Britt McDaniel that 

it had not and that he would have been the person to do that. Tr. 582. Mr. Miller then stated 

that, assuming the inspector was accurately testifying about Mr. McDaniel’s conversation, the 

citation was “deserved.” Tr. 583. Miller then stipulated that the gravity and negligence 

markings for the citation were as written (unlikely for gravity, restricted duty or lost workdays, 

non-S&S, and moderate negligence). Id. 

Accordingly, based on the foregoing, the Court imposes the same $100.00 penalty as 

proposed by the Secretary. 

Citation No. 8793617 

Proposed Penalty: $100.00. Penalty Assessed: $50.00. 

Citation No. 8793617, GX 35, issued September 4, 2014, involves standard 57.15030,23

and the requirement for a weight test for self-rescuer devices. Those devices must be maintained 

in good condition and there is a requirement that they be inspected, with a weight test, within 90 

days. Tr. 585. The weight test is not explicitly required in the standard. Rather, a program 

policy manual provides for such test. Mr. Miller then stipulated to the fact of violation for this 

citation as well. Tr. 586. He also agreed to each of the designations on the citation, save the 

22 30 C.F.R. § 57.12028, titled “Testing grounding systems,” provides: “Continuity and 

resistance of grounding systems shall be tested immediately after installation, repair, and 

modification; and annually thereafter. A record of the resistance measured during the most recent 

test shall be made available on a request by the Secretary or his duly authorized representative.” 

23 30 C.F.R. § 57.15030, titled, “Provision and maintenance of self-rescue devices,” 

provides: “A 1-hour self-rescue device approved by MSHA and NIOSH under 42 CFR part 84 

shall be made available by the operator to all personnel underground. Each operator shall 

maintain self-rescue devices in good condition.” 

38 FMSHRC Page 1046
marking that it would be fatal. Tr. 587. With that designation, the last item in dispute for that 

citation, the inspector explained that he marked it as fatal because it is a life-saving device, called 

into use in an emergency and that, if it did not work when needed for an escape, the 

consequences would be fatal. Tr. 588. 

Mr. Miller, objecting to the fatal designation, stated that there were two or three devices 

out of compliance with the 90 day requirement and essentially asserted that his son, an employee 

at the mine, was behind in the paperwork, and at that, he was late by only two to four days. Tr. 

589. As to the fatality designation, Mr. Miller stated that air rapidly exits from the mine and the

tunnel itself is very short. Tr. 590.

The inspector was then recalled. He acknowledged that the weight tests were not many 

days overdue but that he still believed the fatal designation was appropriate. Though unlikely 

that the devices were in a non-maintained condition, he still asserted that if they did not function, 

the expected injury would be fatal. Tr. 591. 

Given that not all the devices were out of compliance and that the period of noncompliance was only a few days, the Court assesses a civil penalty of $50.00 for this conceded 

violation. 

Docket No. WEST 2015-158-M (Sixteen to One Mine) 

Citation No. 8785248 

Proposed Penalty: $100.00. Penalty Assessed: $25.00. 

Inspector Nicholas Basich testified regarding this citation, which alleged a violation of 30 

C.F.R. § 57.14207.24 Miller stipulated to the “Condition or Practice” section of the citation —

that the truck was parked without its parking brake being set — but he asserted that it was on

level ground. He took issue with the moderate negligence designation. Tr. 220. Miller also

disputed that the condition exposed miners to the hazard of contact by a slow moving vehicle.

Inspector Basich stated that if the vehicle were bumped and it jumped out of park, it could have

begun a slow roll, exposing miners to bumps or bruises. Tr. 221. However, the inspector

conceded it was very unlikely that, if bumped, the truck would jump out of park. Tr. 223. The

truck was not being used at the time he cited it. He marked it as moderate negligence because

the standard is one within the “Rules to Live By,” meaning many accidents have been associated

with it. Tr. 222. MSHA wants mine operations to set the parking brake in all instances, not

simply when a vehicle is on a grade. On cross-examination, referring to the photograph in GX

10c, the inspector agreed that there was a bank and a tree on the other side of the truck and it was

his understanding that the truck had recently been brought to the location where he observed it.

Tr. 226. There was no indication that the truck had been tagged out, nor did the miner

accompanying him assert that. Id.

24 Section 57.14207 requires that “[m]obile equipment shall not be left unattended unless 

the controls are placed in the park position and the parking brake, if provided, is set. When 

parked on a grade, the wheels or tracks of mobile equipment shall be either chocked or turned 

into a bank or rib.” 

38 FMSHRC Page 1047
Mr. Miller then testified about the citation, stating that there was no way another vehicle 

could bump the truck in that location. Tr. 228. Further, he stated that the truck, a used vehicle, 

had been recently purchased and had not yet been put in service. Tr. 229. Miller also disputed 

that two people worked at that location. Tr. 230. Miller couldn’t speak to whether it had been 

tagged out, but he maintained it was at that location and not to be used until it had been checked 

out. Id. Therefore, he believed the citation should be vacated. Tr. 231. On cross-examination, 

he did acknowledge there was another vehicle near the cited one but contended that it was also 

there for repair work to be done. Tr. 233. 

Upon consideration of the testimony, including the small size of the mine, the Court finds 

that the negligence was low and imposes a penalty of $25.00.

Citation No. 8785249 

Proposed Penalty: $100.00. Penalty Assessed: $ 50.00. 

Inspector Basich testified regarding Citation No. 8785249, GX 11a, citing 30 C.F.R. § 

57.6132(a)(6)25 and issued September 9, 2014, at the Sixteen to One Mine. While inspecting the 

area around a magazine, the inspector noticed there was no sign informing that explosives were 

present. Tr. 236. The standard requires posting signs so that one shooting at the signs would not 

accidentally hit the magazine. Tr. 237. Shooting at signs is apparently a common practice in 

rural areas. Tr. 250. GX 11c consists of photographs of the cited condition and its abatement, 

and the white box depicted in the center of photo one is the magazine. Tr. 237-38; GX 11c. 

Detonators were stored in the magazine. The posting requirement applies to all approaches. Tr. 

239. There was one sign on an A frame but it had fallen and therefore was not readily visible

upon approaching the magazine. Id. From two approaches to the magazine, signs were not

readily visible. Photos six and seven of GX 11c show the abatement of the condition. Tr. 241-

42. The citation was marked as non-S&S and unlikely. This was based on the fact that those

who worked at the mine site knew of the magazines. Tr. 242. However, the inspector deemed

the negligence as moderate because these standards are well known in the mining industry. Tr.

243. Also relevant to the negligence determination was that it was obvious that the signs were

not present. Tr. 244. He marked the injury as “fatal” because an explosion at the magazine

could produce such a result. Id. Two magazines were cited for the one violation; one was the

detonator magazine and the other was the high explosive/blasting agent magazine. Their relative

locations were about 100 to 150 feet apart. Tr. 245.

On cross-examination, the inspector stated that simply seeing the magazines and no 

readily visible signs prompted the citation’s issuance. Tr. 246. For the other magazine, the 

“powder” magazine, a sign was visible, but only from one direction. Tr. 247. Thus, the 

inspector agreed that there was a sign at both magazines but they were not readily visible. Id. 

25 30 C.F.R. § 57.6132(a)(6), titled “Magazine requirements,” provides, in relevant part, 

“Magazines shall be . . . [p]osted with the appropriate United States Department of 

Transportation placards or other appropriate warning signs that indicate the contents and are 

visible from each approach, so located that a bullet passing through any of the signs will not 

strike the magazine.” 

38 FMSHRC Page 1048
He also agreed that the miners knew of the magazines’ locations.26 Tr. 248. The inspector did 

sum up the issue with regard to both magazines. For photo one in GX 11c, depicting the 

detonator magazine, there were two approaches to it. Tr. 253. For that magazine, he saw only 

one sign and it had become loose so that it was not readily visible. However, two signs were 

needed. For the high explosives/blasting agent magazine, shown in GX 11c, photo 4, there were 

also two approaches. Tr. 256. Here, too, there was only one sign. Tr. 257. 

Mr. Miller then testified about this citation involving the warning signs. He did not 

believe that any citation should have been issued. Other than the miners, anyone else on the 

property would be trespassers. However, he then volunteered that a creek passes through his 

property and that people are permitted to walk along it; they are not trespassing. Tr. 259. Miller 

viewed adding more signs as an invitation encouraging people to shoot at them. Tr. 260. 

Therefore, he wanted the signs to be in the least conspicuous location. Tr. 262. Miller also was 

of the opinion that there was only one approach, not two, to the magazines. Tr. 261. In addition, 

Miller did not think that a bullet would ignite the magazines, because the contents are nondetonating. Tr. 263. 

This violation was established, but the Court takes into consideration that, while they 

were insufficient, there were signs present. Upon further factoring in the small nature of this 

mine and Mr. Miller’s testimony (though his views were misplaced about whether more signs 

were ill-advised, as the standard requires appropriate warning signs from each approach), the 

Court views the negligence as less than moderate. A civil penalty of $50.00 is imposed.

26 As a side note, relating to an earlier citation, and referring to GX 11c, photo 1, the 

inspector agreed green vegetation is depicted in that photo and that he did not write a citation 

regarding that, because the vegetation was green. Tr. 250. 

38 FMSHRC Page 1049
Citation No. 8785250 

Proposed Penalty: $100.00. Penalty Assessed: $75.00. 

Inspector Basich also testified regarding Citation No. 8785250, GX 12, issued on 

September 10, 2014, and alleging a violation of 30 C.F.R. § 57.8520.27 Tr. 265. This dealt with 

alleged deficiencies in the mine’s ventilation plan. Such plans, while not needing MSHA’s 

approval, still must be submitted to the agency. The inspector asserted that the deficiencies 

27 A detailed standard, § 57.8520, titled “Ventilation plan,” provides: 

A plan of the mine ventilation system shall be set out by the operator in written 

form. Revisions of the system shall be noted and updated at least annually. The 

ventilation plan or revisions thereto shall be submitted to the District Manager for 

review and comments upon his written request. The plan shall, where applicable, 

contain the following: 

(a) The mine name.

(b) The current mine map or schematic or series of mine maps or schematics of an

appropriate scale, not greater than five hundred feet to the inch, showing:

(1) Direction and quantity of principal air flows;

(2) Locations of seals used to isolate abandoned workings;

(3) Locations of areas withdrawn from the ventilation system;

(4) Locations of all main, booster and auxiliary fans not shown in

paragraph (d) of this standard.

(5) Locations of air regulators and stoppings and ventilation doors not

shown in paragraph (d) of this standard;

(6) Locations of overcasts, undercasts and other airway crossover devices

not shown in paragraph (d) of this standard;

(7) Locations of known oil or gas wells;

(8) Locations of known underground mine openings adjacent to the mine;

(9) Locations of permanent underground shops, diesel fuel storage depots,

oil fuel storage depots, hoist rooms, compressors, battery charging stations

and explosive storage facilities. Permanent facilities are those intended to

exist for one year or more; and

(10) Significant changes in the ventilation system projected for one year.

(c) Mine fan data for all active main and booster fans including manufacturer's

name, type, size, fan speed, blade setting, approximate pressure at present

operating point, and motor brake horsepower rating.

(d) Diagrams, descriptions or sketches showing how ventilation is accomplished

in each typical type of working place including the approximate quantity of air

provided, and typical size and type of auxiliary fans used.

(e) The number and type of internal combustion engine units used underground,

including make and model of unit, type of engine, make and model of engine,

brake horsepower rating of engine, and approval number.

30 C.F.R. § 57.8520. 

38 FMSHRC Page 1050
included a failure to indicate air flow direction on the plan. Tr. 267. Also, the plan did not 

indicate seals for a vent, though there was a vent and sealed workings. The plan needs to indicate 

abandoned workings and seals. Tr. 268. Areas withdrawn from the ventilation system need to 

be on the plan, too. For such areas, the plan has to inform if air is flowing through withdrawn 

areas. Also, locations of known underground openings adjacent to the mine must be indicated on 

the plan. Diagrams, descriptions, or sketches showing how ventilation is achieved in each 

typical working place and the approximate quantity of air and the size and type of auxiliary fans, 

as well as the ventilation quantity and direction of airflow for current working places at the time 

of an inspection, must be provided. Still, despite the deficiencies alleged, the citation was 

marked as unlikely and non-S&S because the inspector found that the air was good. Tr. 270. 

However, because of the importance of the information in a mine emergency, the citation was 

marked as fatal, in terms of expected injury. Id. The lack of such information would hinder a 

mine rescue operation. Negligence was deemed “moderate” because the mine had submitted a 

plan, and the inspector’s review of the mine’s records reflected that some of the deficiencies had 

been raised to the mine at a prior time. 

During cross-examination, the inspector stated that he did not believe that the plan’s 

deficiencies were made knowingly. The inspector confirmed that he had been told by a mine 

employee that there were abandoned areas that had been sealed off. However, the inspector did 

not dispute that if it were asserted there were no seals at the mine, he could not contradict such a 

claim, except for the one employee who told him there were seals. Tr. 276. The inspector 

agreed that he did find a drawing in the records about the seven existing openings. Id. Asked if 

such a drawing would aid a mine rescue effort, the inspector’s response was that this information 

would need to be part of the ventilation plan, not merely among the mine’s records. Tr. 276-77. 

As noted, the inspector agreed that if the mine had no seals, the ventilation plan need not reflect 

the absence of seals. 

In the course of cross-examination, the Secretary’s Counsel stipulated that the ventilation 

plan does not reference mine rescue operations. Tr. 279. Respondent offered for identification 

an escape and evacuation plan, proposed exhibit RX 2, and the Secretary raised an issue about its 

materiality to the alleged violation. Tr. 280. Mr. Miller described it as “an Exploration and 

Operation Nonspecific Escape and Evacuation Plan.” Tr. 278. Some confusion developed about 

the nature of the exhibit and its materiality to the citation. The inspector could not recall if the 

proposed exhibit was among the papers presented to him when he asked to see the ventilation 

plan. Tr. 281. He viewed the proposed exhibit RX 2 as an escape and evacuation plan. Tr. 282. 

He acknowledged that RX 2 shows some information about air flow and quantity and direction 

but he could not recall if the mine’s ventilation plan was more specific or not. The inspector 

could not identify whether the plan reflected in RX 2 was the plan submitted to MSHA. Tr. 283. 

Despite the momentary confusion, the inspector confirmed that whatever ventilation plan was 

presented to him on the day of his inspection, it had the deficiencies he described. Tr. 284. RX 

2 was later admitted into evidence. Tr. 359. 

The inspector considered the citation to be a recordkeeping violation. Tr. 300. Inspector 

Basich expressed the view that the accuracy of a mine’s ventilation plan would be critical to 

mine rescue and recovery efforts, and it could impact how quickly such operations could proceed 

and such delays could create a fatal condition at the mine. He elaborated, using the example of a 

38 FMSHRC Page 1051
mine fire and knowing how oxygen would be supplied to that fire, that knowing the direction 

smoke moves in such an event would be important. Tr. 309. 

Mr. Miller then spoke to Exhibit GX 12. He stated that his mine does not use seals. He 

asserted that the employee who referred to seals meant barricades, diversions, or tarps to direct 

air, but they are not seals. Tr. 314. He acknowledged that, based on what he learned from the 

inspector’s testimony, the map had deficiencies. Tr. 315. He also admitted that, in order to 

terminate the citation, the map had to be updated. Id. RX 2 is the map that the mine had at the 

time of the citation. Tr. 315. It was Miller’s testimony that the mine made good faith efforts to 

have the plan contain all the required information and this included working with an MSHA 

inspector some three or four years ago, all in an attempt to have the mine’s paperwork be 

compliant. On that basis, Miller believed that no negligence should be assigned to the violation. 

Tr. 316. Low or moderate negligence would be unfair because the mine has worked hard with 

MSHA to be in compliance on its paperwork. Miller also believed that no lost workdays should 

have been marked because there was no likelihood for such an event to occur. This is because of 

the site specifics, because of ways to get out of the mine, and because of the lack of fuel for a 

fire, among other reasons. Tr. 318-21. 

The violation is upheld. Miller essentially conceded the fact of violation. Upon 

consideration, taking into account testimony regarding Miller’s prior efforts and that the record 

was not clear as to the presence, or the lack of, seals, the Court deems the negligence to be 

slightly less than moderate. As noted earlier, for each of the contested citations, at both mines, 

these are very small mining operations, with size being a penalty factor to consider. Given these 

factors a civil penalty of $75.00 is imposed. 

Citation No. 8793618 

Proposed Penalty: $100.00. Penalty Assessed: $50.00. 

Testimony was received with regard to Citation No. 8793618, GX 6a, issued on 

September 9, 2014. For this matter, citing 30 C.F.R. § 57.14100(b),28 which was in the upper 

shop, the inspector observed a hook for a two-ton hoist with its safety clip incorrectly installed, 

as it was on the outside of the hook. Tr. 333-34. The hoist was not being used when the 

inspector observed the condition of the hook, but it was ready and available for use. Tr. 333. 

The clip, when on the inside of the hook, prevents material from sliding out of it. He considered 

the clip, in the condition observed, to be a safety defect. Tr. 334-35. GX 6c, a photo, displays 

the clip when correctly installed. Tr. 335. The inspector marked the violation as non-S&S and 

unlikely because the hook was rarely used. He determined that any injury would be lost 

workdays or restricted duty because the hook was being used within its capacity. It would be 

when positioning something that had been lifted when the risk of the item coming off the hook 

would be greater. Tr. 336. The negligence was marked as moderate because it had not been 

reported to management and the person who incorrectly installed the clip didn’t recognize that it 

was incorrect. Tr. 337. 

28 Section 57.14100, titled “Safety defects; examination, correction and records,” 

provides, for the cited subsection: “(b) Defects on any equipment, machinery, and tools that 

affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.” 

38 FMSHRC Page 1052
On cross-examination by Mr. Miller, he began by focusing on the words “in a timely 

manner” from the cited standard, § 57.14100(b). However, those words were not important to 

the violation in this instance. The standard is directed at safety defects, and when such defects 

are present, the standard directs that such defects be corrected in a timely manner. Tr. 338-39. 

Jonathan Farrell testified for Respondent regarding the hoist citation and GX 6c, stating 

that he had used that hoist. He agreed that the purpose of the clip is to keep a chain or strap from 

sliding off the hook. However, he contended that, if one uses a chain or strap that uses the hook 

fully, the clip needs to be bypassed for such circumstances and then returned to its normal 

position. Clarifying his remarks, Farrell contended that the clip would then be repositioned so 

that it once again acts as a safety device. Tr. 364. While he conceded that the clip is meant to be 

moved back and forth, but not sideways (i.e., left or right), Farrell maintained that as a practical 

matter it was so moved to accommodate such larger chains or straps. Tr. 365. Farrell contended 

that the clip itself was fine; it was not replaced. Abatement was achieved by simply 

repositioning it on the hook. Id. However, Farrell agreed that if the clip for the hook had been 

used as depicted in GX 6c, its purpose would’ve been defeated. Tr. 366. 

Mr. Miller then added his own testimony about the hook and clip citation, stating that his 

experience using the clip was the same as Farrell’s. Id. 

As the Secretary noted in the post-hearing brief: 

Farrell [the mine’s surface superintendent] agreed that the safety hook is intended 

to keep chains or straps from sliding off the hook when the hoist is in use. (Tr. 

362-363). Farrell also testified that when the chains or ropes that are too large to

fit through the hook opening with the safety clip attached, that the clip is bypassed

by placing the clip outside the hook, as it was found by the inspector, and then

replacing the clip inside the hook for [subsequent] use. (Tr. 363). On crossexamination, Mr. Farrell admitted that this is not how the safety clip is designed

to be used; generally the clip moves frontwards and backwards within the bounds

of the hook and [that it] is not designed to move around the tip of the hook to the

outside. (Tr. 365). Farrell also admitted that if the hook were used in the

condition in which it was found by the inspector, that the intended safety

protections provided by the safety clip would have been defeated. (Tr. 365-366).

That the safety latch “could” have been replaced prior to use does not mean that

the latch “would” have been replaced prior to [its next] use. Respondent

admit[ted] that had the hoist been used in the condition in which it was found by

the inspector, it would have been a safety hazard. (Id.).

Sec’y Br. 16. 

The violation was established. Given the small size of the mine, the infrequent use of the 

hoist, and the “unlikely” gravity designation, the Court assesses a civil penalty of $50.00 for this 

violation. 

38 FMSHRC Page 1053
Citation No. 8793620 

Proposed Penalty: $100.00. Penalty Assessed: $75.00. 

Regarding Citation No. 8793620, GX 8, issued September 10, 2014, to the Sixteen to 

One Mine and citing 30 C.F.R. § 57.4131(a),29 the issuing inspector observed combustible 

material stored about 15 feet from the mine opening at the 800 portal. Tr. 342. GX 8c is a photo 

of the condition observed by the inspector. His concern was with the wooden rails and the pallet, 

per that photo. Id. As the wood appeared to be weathered, the inspector believed that condition 

increased the chance of it being combustible. He concluded that the wood was more than a one 

day’s supply because it was being stored there. In addition, he saw the same material there the 

day before he issued the citation. Tr. 345. The hazards associated with such storage, if it were to 

catch fire, are the risk of smoke entering the mine and impeding the ability to leave the mine 

portal. Tr. 345. He stated that the mine “probably [had] quite a few [portals]” but the 800 portal, 

which is in the photo GX 8c, is the main one. Tr. 346. Miners did work underground that day. 

As noted, the mine uses natural ventilation. Though he could not recall the weather on the day 

the inspector issued the citations, he remembered it “being fairly dry.” Tr. 347. The citation was 

marked as unlikely and non-S&S, because he did not see any immediate ignition sources around. 

In addition, while it was more than a one day’s supply, the amount was not very large. Id. Lost 

workdays and restricted duty was marked because he believed that could be the effect of smoke 

inhalation. Id. Negligence was marked as moderate because it had not been reported to 

management. 

On cross-examination, the inspector repeated that he considered the material to be more 

than a one day supply, because he observed it the previous day. Tr. 349. Mr. Miller asked if the 

standard’s concern was over the quantity of timber, not the time it remained at the location. The 

inspector expressed that the intent was to permit such material near the portal when it is intended 

to bring it into the mine, as opposed to storing it outside the portal. Tr. 350. 

Regarding Citation No. 8793620, Mr. Miller stated that the amount of wood was very 

small. It was used as track ties to fix rails. He agreed with the inspector’s designation of 

unlikely, as there was no possibility of smoke going into the mine at that location, as the air exits 

there. Tr. 370. Miller maintained that the wood the inspector saw was in transit to the mine and 

that it was impractical to store it elsewhere. Tr. 368-70. He also asserted that the amount of 

wood did not impede the entrance to or exit from the mine. Tr. 371. Mr. Farrell also testified 

about this citation. It was his position that the standard speaks to the quantity of wood, not the 

length of time it is so located. Tr. 373. He contended that the amount of wood depicted in the 

photo was less than a one day’s supply, and as such he believed it could remain there 

indefinitely. Id.

In the Secretary’s cross-examination of Miller, regarding the combustible material 

citation, Miller did not deny that the combustible material had been as depicted in GX 8c for 

more than one day. Tr. 381. He also agreed that a day’s supply of lumber will vary from day to 

day, depending on the mine’s particular needs. Id.

29 This text of this standard, § 57.4131, appears above. See supra note 20.

38 FMSHRC Page 1054
The citation, issued at unlikely, non-S&S, lost workdays or restricted duty, moderate 

negligence, and affecting one person, was assessed at $100.00. Given the inspector’s remarks 

about the attendant circumstances,30 and the small size of the mine, a civil penalty of $75.00 is 

imposed for this demonstrated violation. 

Citation No. 8793621 

Proposed Penalty: $100.00. Penalty Assessed: $100.00. 

Inspector Boylan testified about Citation No. 8793621, GX 9, issued September 10, 2014, 

at the Sixteen to One Mine for an alleged violation of 30 C.F.R. § 57.11053,31 pertaining to 

30 In determining the civil penalty the Court also took into account the points and 

contentions referenced in the Secretary’s post-hearing brief where it was noted: 

The operator claims that the amount of wood the inspector found was minimal 

and far less than a days’ supply of wood [and that] [t]he operator also claims that 

air was exiting the 800 portal on the day of the citation and, accordingly, there 

was no danger to miners from the accumulated combustible material. (Tr. 370). 

However, even if, on that date of the citation, air was exiting the 800 portal, the 

mine utilizes natural ventilation, and the direction of mine air changes with 

temperature and barometric pressure would likely expose miners on a later date. 

(Tr. 187). See, U.S. Steel Mining, 7 FMSHRC 1125, 1130 (1985). (Courts should 

consider alleged violations in terms of continued mining operations.). 

Sec’y Br. 18. Having considered those points and contentions, along with the factors noted 

above, the Court determines that $75.00 is the appropriate civil penalty. 

31 The cited standard, § 57.11053, titled “Escape and evacuation plans,” provides: 

A specific escape and evacuation plan and revisions thereof suitable to the 

conditions and mining system of the mine and showing assigned responsibilities 

of all key personnel in the event of an emergency shall be developed by the 

operator and set out in written form. Within 45 calendar days after promulgation 

of this standard a copy of the plan and revisions thereof shall be available to the 

Secretary or his authorized representative. Also, copies of the plan and revisions 

thereof shall be posted at locations convenient to all persons on the surface and 

underground. Such a plan shall be updated as necessary and shall be reviewed 

jointly by the operator and the Secretary or his authorized representative at least 

once every six months from the date of the last review. The plan shall include: 

(a) Mine maps or diagrams showing directions of principal air flow,

location of escape routes and locations of existing telephones, primary

fans, primary fan controls, fire doors, ventilation doors, and refuge

chambers. Appropriate portions of such maps or diagrams shall be posted

38 FMSHRC Page 1055

(continued...)
shortcomings with the mine’s escape and evacuation plan. The plan did not illustrate escape 

routes available from the working area which was then at the end of the 800 level. Tr. 351-52. 

Thus, this violation was based on the escape routes not being indicated on the map. Tr. 352. 

The escape and evacuation plan was posted, albeit with the cited deficiency, throughout the 

mine. While at that location, the inspector asked the miners how they could get out if they 

needed to escape. The miners explained how they would escape but none of it was explained on 

the map. Tr. 353-54. In addition, the importance of the information is that such escape routes 

need to be inspected at regular intervals. Tr. 354. However, as the miner the inspector spoke 

with, Reed Miller, Mr. Miller’s son, indicated that he knew how to get out, the inspector marked 

the violation as “unlikely.” Tr. 354, 357. 

Still, the inspector marked the injury, if the event were to occur, as fatal. Tr. 355. 

Negligence was deemed as moderate because there were postings of the plan, but there was no 

update for the working area. Id. The inspector believed that RX 2 was the map he saw 

underground, and about which he believed was deficient, as noted in his citation. To be 

sufficient, the map needed to illustrate the paths for escape from the mine. Only the main travel 

way, marked in yellow, was indicated, but two evacuation routes also needed to be listed. Tr. 

359; RX 2. A single escape route is permitted only at the very beginning of a mine’s excavation, 

but in such circumstances there must be a rescue chamber. Tr. 360. 

On cross-examination by Mr. Miller, the inspector was shown RX 2, which was still not 

an exhibit at that point in the hearing, and the inspector acknowledged seeing a pick and shovel 

depiction on it. Tr. 356. However, that concession did not undercut that the violation was 

clearly established. As the Secretary observed in the post-hearing brief: 

At the time of the inspection, there were miners working at the end of the 800 

level who, when questioned by the inspector, could not indicate a designated 

escape route. . . . While there were escape routes available from the area where 

the miners were working, those routes were not clear to the miners nor were they 

reflected on the mine Escape and Evacuation Plan that was posted throughout the 

31 (...continued) 

at all shaft stations and in underground shops, lunchrooms, and elsewhere 

in working areas where persons congregate; 

(b) Procedures to show how the miners will be notified of emergency;

(c) An escape plan for each working area in the mine to include

instructions showing how each working area should be evacuated. Each

such plan shall be posted at appropriate shaft stations and elsewhere in

working areas where persons congregate;

(d) A fire fighting plan;

(e) Surface procedure to follow in an emergency, including the

notification of proper authorities, preparing rescue equipment, and other

equipment which may be used in rescue and recovery operations; and

(f) A statement of the availability of emergency communication and

transportation facilities, emergency power and ventilation and location of

rescue personnel and equipment.

38 FMSHRC Page 1056
mine and which was given upon request by mine personnel to the inspector. (Tr. 

352-354). . . . [B]ecause in the event of an emergency, there needs to be

established escape routes so that mine rescue and emergency personnel know

where to find miners, the inspector found that the failure to designate escape

routes and mark them on the Escape and Evacuation Plan to reasonably be

expected to cause fatal injuries. (Tr. 355). And, because there was an Escape and

Evacuation Plan, but that plan had not been updated, the inspector found that the

operator had engaged in moderate negligence. (Id.).

Sec’y Br. 19. 

Mr. Miller testified about the escape and evacuation citation. He contended that one 

entry and exit is allowed at a mine in the “steering phases of exploration.” He asserted that the 

mine was in such a phase, that is, this was an “exploration project.” Tr. 374-75. They were not 

in production. He believed that RX 2 meets the standard’s requirements. Tr. 376. He added that 

the location was less than 2,500 feet from the portal to the workplace. He also asserted that there 

are other ways to get out of the mine, but if the mine were to designate them, MSHA would then 

inspect them. Tr. 375. The government then cross-examined Mr. Miller. Referring to GX 9, 

Miller stated he was referring only to his son, Reed. Tr. 376. As for the other individuals Miller 

mentioned, he asserted they were not miners, but were task trained. Tr. 377. He asserted 

however that those individuals were very familiar with the mine and that they knew “all the ins 

and outs of it.” Id. Again, Miller asserted that no secondary escapeway is required at the mine. 

The Court asked questions pertaining to GX 9 and the escape and evaluation plan. Miller 

agreed that the plan did not illustrate the escape routes for the working area of the mine. He also 

agreed that, per RX 2, the map of the escape and evaluation plan is depicted by the yellow line. 

Tr. 382. He agreed that only a single route is shown, but maintained that only one route was 

required. Id. 

Further, addressing Respondent’s contentions in defense, the Secretary accurately 

observes that RX 2 was a deficient Escape and Evacuation plan, noting that the 

only escape route indicated on the map is the main travelway; the travelway is not 

especially designated as an escape route but is a generally accepted escape route. 

(Tr. 358-359). And, even though each mine is required to have two escape routes 

at all times, only one is reflected on the map. (Tr. 359, 382). 

Sec’y Br. 19-20.32

32 Though the Secretary of necessity addressed Respondent’s contention that the mine 

was in exploration mode and therefore only one escapeway was necessary, it challenged that 

assertion, noting: 

The Metal/Non-Metal Program Policy Manual, §57.11050, states that the phrase 

“’exploration or development’ should be used in its narrowest sense, i.e., while 

38 FMSHRC Page 1057

(continued...)
The violation was established. Upon consideration, given the importance of escape and 

evacuation plans for all mines, the Court imposes the same, modest penalty amount proposed by 

the Secretary in the amount of $100.00. 

Docket No. WEST 2015-240-M (Plumbago Mine) 

Citation No. 8793801 

Proposed Penalty: $100.00. Penalty Assessed: $50.00. 

Inspector Rogers spoke about Citation No. 8793801, citing 30 C.F.R. § 57.11012,33

which the Court described as the “bulkhead violation.” Tr. 127, 178; GX 36a. This occurred at 

Respondent’s Plumbago Mine. Tr. 129. The citation stated: 

There was no bulkhead or any other form of protection, installed at the #1 raise to 

prevent material from sliding down the approx. 55 degree dip angle and 

contacting miners as they travel this area. This raise had been mined-out 

previously and an ore chute, ladderway and some stalls were installed. The old 

32 (...continued) 

ore body is being initially developed, or development or exploration work is being 

conducted as an extension of a currently producing mine.” (emphasis added). In 

addition, §57.11050(b) requires that a mine without two escapeways have, 

instead, a refuge chamber; the operator admits that it does not have a refuge 

chamber. (Tr. 380). See also, Small Mine Development, 37 FMSHRC 1892, 

1898 (2015) (“Given the importance the standard places upon providing 

duplicative means of survival in an emergency, it makes sense that the same 

protections be extended to miners who are engaged in exploration or development 

work, which carries with it many of the same dangers as production mining.”). 

[The] Original Sixteen to One Mine does not satisfy the definition of “exploration 

or development” as defined in the Program Policy Manual. This is an old mine 

with over 35 miles of tunnels. (Tr. 53). The individuals underground . . . were 

not in a newly developed portion of the mine or in an area of the mine that was 

being extended. (Tr. 375-376). They were working in worked-out area of the 

mine within 2500 feet of the portal (Tr. 374). The mine operator cannot, by 

improperly claiming exploration, deny these workers, and other miners entering 

the mine, two safe means of escape. 

Sec’y Br. 20-21. The Court agrees with the Secretary’s observations about the standard’s 

requirements. 

33 30 C.F.R. § 57.11012, titled “Protection for openings around travelways” provides: 

“Openings above, below, or near travelways through which persons or materials 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.” 

38 FMSHRC Page 1058
dilapidated timber and material build-up, posed a fall of material hazard to miners 

traveling the main haulage. 

For this matter, Respondent agreed with the condition and practice cited, including 

sections 10 and 11, listing the gravity as unlikely and the negligence as moderate, except where 

the citation asserted that “[t]he old dilapidated timber material buildup posed a fall of material 

hazard to miners.” Tr. 127. The area cited involved a chute and a ladder. Tr. 136. The inspector 

cited a mined out area where he found either a slick or a slide or a hanging wall that was on the 

primary travel way. That travelway was for ore cars or personnel on foot. There were no 

bulkheads34 and therefore any materials, if they came out, would come at the hip or mid-torso 

level of a miner. Also the drift (i.e., tunnel) was not very wide, only about 8 feet or less, 

therefore there would be exposure every time one passed that area. Tr. 129. 

Describing the area of the cited condition, the inspector stated that the travelway had a 55 

degree angle and there was a ladder that went up that raise. See GX 36C. He asserted that 

“[t]here appeared to be some loose material that was on the right rib.” Tr. 131. He conceded 

that the material he was concerned about wasn’t probably all that loose, but if any did come 

down it would come into the drift. Tr. 132. Because the materials were not “all that loose,” he 

marked the violation as unlikely and non-S&S. Id. Negligence was marked as moderate, 

because in his estimation there did not appear to be a high degree of hazard. Id. It was the 

failure to install a bulkhead that drove his conclusion that the negligence was moderate. 

Similarly, he marked the injury as lost workdays or restricted duty because the angle any 

material would take was not severe. This led him to conclude that no fatality would result. Tr. 

132-33. Respondent was permitted to install a nine-wire type (i.e., material similar to a chain

link fence) bulkhead to remedy the problem, as that means would also allow one to visualize the

area above. This abatement satisfied the inspector because, again, his concern was that smaller

materials could strike a miner. If larger items had been his concern that remedy would not have

been acceptable. Tr. 134.

On cross-examination, the inspector stated that he saw other areas that had a raise, where 

bulkheads had been installed for support. He reaffirmed that he did not climb the ladder at that 

location. Tr. 135. He agreed the ladder was not recently installed and he found no troubling35

amount of rock fall below or around it. The inspector did not know what the angle of repose was 

of the rock left in the chute or raise. Tr. 136. 

The inspector believed that the Plumbago Mine had two to three employees. Tr. 137. In 

his opinion, they were decent hands, that is, fairly knowledgeable individuals. Id. 

34 A bulkhead, typically, is used to barricade and block an area off for ventilation or to 

address some other potential hazard. Tr. 130. In this instance, its function would be to stop 

materials from going into the drift. Tr. 131. 

35 Respondent employed the word “troubling” in his question to the inspector. Tr. 136. 

38 FMSHRC Page 1059
The Court had a few questions, beginning with GX 36c, the photograph associated with 

the citation. The inspector agreed that it was taken from the bottom, and directed upwards. His 

concern was material falling down, from the top area of the photo. Tr. 138. The bulkhead’s 

function, being placed at the bottom, where the inspector was standing when taking the photo, 

would be to act as a barrier for anything which might fall down. Tr. 139. This area, within 

which things could fall down, was about 17 and a half feet wide. The opening from where he 

was standing was from left to right, and he was about in the centerline of that. Id. The raise in 

the photo goes up at an angle. Although the area cited had been mined out, it was along a 

primary travelway. Tr. 140. Without the bulkhead, material falling from above could potentially 

strike miners traveling by that area. Tr. 141. Again, abatement was achieved by installing a wire 

mesh bulkhead, not a wood bulkhead. The bulkhead would span the approximate 17 feet 

comprising the bottom length of the travel area. Tr. 142. 

In his defense to the bulkhead citation, Respondent Miller testified that he believed 

Plumbago is not a mine, but rather an abandoned piece of property, that once was a mine.36 Tr. 

178. It was his view that no bulkhead was needed because there is no evidence of debris below.

Tr. 179. Thus, he asserted that nothing could fall down from above. Respondent contended that

the ground above was very competent and therefore nothing could fall out from above. As

noted, Respondent took issue with calling Plumbago a mine. Rather, he asserted that it is a

tunnel. There was no intention of mining. Tr. 180. Respondent asserted that there was only one

stull present. It appears to the left side of the ladder. A stull is a single vertical pole. It is used

instead of having caps or sets or rock bolts. Id. Respondent Miller, while admitting that he has

not gone up the ladder, stated that someone else had done so. He also asserted that the scene

captured in the photo exhibit has probably been that way for more than 30 years. Tr. 181. Thus,

having assessed the situation, Respondent maintained that it would be frivolous to install a

barricade. Tr. 182. Respondent asserted that generalities about other mines simply did not apply

to this situation, noting that the inspector admitted that not every raise needs a bulkhead and that

he saw no loose material. Id. Accordingly, he compromised with the inspector by installing the

chain link fence, though that too, in his view, was completely unnecessary. Tr. 183.

On cross-examination, Mr. Miller again took issue with a question which included 

describing the cited area as part of a mine. The Court interjected that the inspector agreed that 

the cited location was not an active mine, but that miners traveled along the area to get to the 

mine. Miller agreed with that description. Tr. 184. The problem with that claim is that such 

locations are indisputably part of the mine and Respondent’s contention is not worthy of 

additional comment. Miller, agreeing that the angle of the dip was 55 degrees and that the angle 

of repose was 35 to 37 degrees, still did not agree that anything that came loose from the rise 

would fall down it. However, his answer was not helpful to his position, as he asserted that 

“[t]here’s a big 17 feet. We don’t know what else is up [there] . . . [but he then agreed that] if 

you throw a ball up, it’s going to come down.” Tr. 185. Counsel for the Secretary then asked, 

“[I]f a rock would come loose or piece of wood would come loose or anything else that happens 

to be up in this old mined out section would come loose . . . there’s nothing to stop it from 

36 All claims made by the Respondent that the Plumbago or the Original Sixteen to One 

Mine are not mines are without any merit. The acknowledged use and purpose of these is to 

mine gold ore. 

38 FMSHRC Page 1060
coming out of the rise, correct?” Tr. 186. Critically, Miller acknowledged that it was 

“absolutely true. That is true.” Id.

Upon consideration, the violation was clearly established, but given the small size of the 

mine, that the condition had been that way, and uncited, for a very long period of time, and in 

consideration of the inspector’s evaluations of gravity and negligence, including that it was, 

properly, deemed non-S&S, a penalty of $50.00 is imposed. 

Citation No. 8793802 

Proposed Penalty: $100.00. Penalty Assessed: $50.00. 

Citation No. 8793802, GX 37, was issued on October 22, 2014, also at the Plumbago 

Mine. Cited was standard 30 C.F.R. § 57.8527,37 for a failure to conduct oxygen testing. Tr. 

145. Upon speaking with the miners, including Ms. Rae Bell, Respondent’s office manager, the

inspector determined none of them were aware of any such testing being done. Id. The

inspector stated that he would not enter any mine without an oxygen detector. Tr. 146. This

mine utilizes “natural ventilation,” meaning that its ventilation is non-mechanical. Tr. 147.

Oxygen testing is done to make sure miners have a minimum of 19.5% oxygen. Using his

oxygen detector, the inspector found the oxygen level to be 20.6%. While the frequency of

testing depends upon the particular metal/nonmetal mine, he believed that, at a minimum, such

testing should occur weekly. Natural ventilation, he stated, only increases the importance of

such testing because old workings, such as in this instance, can produce gasses. Tr. 149. Here,

he found no evidence that any such testing had been done. This included, as noted, asking about

the issue. Id.

Upon cross-exam, Respondent asked about the types of devices that would satisfy the 

standard, and the inspector (Rogers) gave some examples of such devices, some of which were 

multi-gas detectors. A flame safety lamp would also suffice. Tr. 150. The Court pointed out 

that the standard commands that such devices shall be used. The Inspector agreed that the 

Plumbago Mine is a non-gassy mine. Tr. 152. 

In his defense, Miller stated that the mine is non-gassy, that no blasting takes place, that 

there was only a very small crew (2 or 3 persons) working, and that the climate is “consistent and 

predictable.” There are only occasional changes in the barometric pressures. For short periods 

there can be stagnant air. During winter, air is entering the mine, while in the summer it is 

coming out. Further, Miller stated that he has a flame safety gas lamp, which he has used often 

enough to inform himself that there is no oxygen problem at this site. In addition, some of those 

working in the mine, including Miller’s son, wear a device that is set to alarm at 19.6% and that 

device has never been triggered. Tr. 187-88. Miller’s overarching point was that, as there are 

millions of cubic feet of open space and the oxygen levels are always at 20.6%, testing the air is 

pointless. Tr. 188. On cross-examination by the Secretary, Miller affirmed that he has tested for 

oxygen at the Plumbago Mine. He stated that he usually tested once a week and that he had an 

oxygen tester until he purchased the small detector device he referred to during his direct 

37 Section 57.8527, “Oxygen-deficiency testing,” provides: “Flame safety lamps or other 

suitable devices shall be used to test for acute oxygen deficiency.” 

38 FMSHRC Page 1061
testimony in defense. In response to further questions, Miller stated that he used a flame safety 

lamp to test for oxygen around May 2014, but now he relies upon the other, new, device.38 Tr. 

192. However, at the time of the citation’s issuance, he only had the flame safety lamp to detect

for oxygen. Tr. 193.

Asked about his practice of testing for oxygen when opening up new areas of the tunnels, 

Miller stated that they did not test for oxygen because there was no need to do such tests, as the 

mine has open stopes throughout, with raises going up every hundred feet or so. Tr. 194. In what 

may fairly be described as an afterthought, Mr. Miller brought up that the miners usually carry a 

BIC-type lighter, as may used by those who smoke cigarettes, and his belief that such lighters are 

“suitable” as detectors for bad air. Tr. 196-97. 

Inspector Rogers was then recalled and asked about the use of BIC-type cigarette lighters 

as a suitable oxygen testing device. While such lighters can be indicators of oxygen, he stated 

that the flame on them will not illuminate when oxygen levels are around 16%, but the MSHA 

standard requires oxygen to be at 19.5%. Therefore, the device’s use would not be sufficiently 

protective. In candor, the inspector admitted that back in the 1970s he used such cigarette 

lighters to check for oxygen. Tr. 200-01. The BIC lighter issue aside, the inspector stated that 

when he issued his citation, the miners told him they were unaware of such testing for oxygen 

being done, and neither the lead miner nor Mr. Miller later asserted to him that they were using 

suitable devices to test for oxygen. Tr. 201. 

The violation was established but given the mine’s small size, that the gravity was 

marked as unlikely, that it was non-S&S, and that the Court, based on Mr. Miller’s testimony, 

considered the negligence to be low for this matter, a civil penalty of $50.00 is imposed. 

38 Miller did not precisely identify the detection device, being uncertain about its name. 

Instead, he described it as a “little yellow device” that he bought in 2015 that tests for oxygen 

and cost about $200.00. Tr. 192-93. 

38 FMSHRC Page 1062
Docket No. WEST 2015-251-M (Sixteen to One Mine) 

Citation No. 8793805 

Proposed Penalty: $243.00. Penalty Assessed: $150.00. 

MSHA Inspector Stephen P. Rogers also testified for the Secretary. Rodgers has 18 years 

of employment with MSHA and significant mining experience apart from his years with MSHA. 

Tr. 85-89. Directed to Citation No. 8793805, issued November 4, 2014, Rodgers, citing 30 

C.F.R. § 57.6101(a),39 issued it upon finding combustible materials — grass, brush, wood, and

rubbish — within 25 feet of a powder magazine. GX 13c; Tr. 89. The concern is that a fire

could propagate to that area and create an explosive hazard to the magazine, which was a

blasting cap magazine. The inspector took measurements of the proximity of the combustible

materials to the magazine, and Respondent stipulated that the material was within 25 feet of the

magazine. Tr. 92. Still, the inspector found the gravity to be unlikely and also non-S&S. This

was due to the lack of an ignition source for the cited material, such as a forest fire or vehicles in

the area. Further, he noted that a lot of the brush had been cut back, so he concluded that it was

not reasonably likely. Tr. 93. As the matter involved explosives, he did not feel that he could

legitimately rate it any lower, as the “no lost workdays” category is primarily reserved for

paperwork type violations. If a fire were to occur around a magazine, the practice is to simply

get away from the area. One does not try to fight such a fire when explosives are involved. Tr.

94. The inspector did mark the negligence as “high,” explaining that a powderman, that is, one

who is handling explosives, has great responsibility in such matters, which includes making sure

that the magazine area is clean and clear. Id. On cross-examination, the inspector stated that the

most likely source of a problem developing would be in connection with a forest fire occurring.

While the inspector acknowledged that some work at cleaning up the area had been done, he did

not view it as a “work in progress.” Tr. 98. The inspector’s notes also reflect that the condition

was visible from the main road and therefore easily apparent to the mine operator. Tr. 101. The

inspector did agree that his notes reflect that the mine operator had been making some efforts to

clean up the area, but that the work had not been completed. Tr. 103.

Respondent, in its defense to this citation, called Mr. Miller. Miller testified that this was 

“a work in progress.” Tr. 154. He stated that the mine was aware of the issue. However, he 

stated that something must have interrupted the effort, and that something else took precedence. 

Also, he stated that the wooden spool was not within 25 feet, that the 55 gallon drum had some 

trash in it and was to be removed later, and that the 2x4’s, in his opinion, could not have 

presented a significant fuel source. Tr. 155. He also stated that non-els (non-electric blasting 

39 Section 57.6101, titled “Areas around explosive material storage facilities,” provides: 

(a) Areas surrounding storage facilities for explosive material shall be clear of

rubbish, brush, dry grass, and trees for 25 feet in all directions, except that live

trees 10 feet or taller need not be removed.

(b) Other combustibles shall not be stored or allowed to accumulate within 50 feet

of explosive material. Combustible liquids shall be stored in a manner that

ensures drainage will occur away from the explosive material storage facility in

case of tank rupture.

38 FMSHRC Page 1063
caps) are not self-detonating and that his recollection was that the inspector expressed his main 

concern as a forest fire. He believed that there was “no possibility” that a fire could ignite this. 

Id. In fact, he added that a disposal method for old explosives is to burn them. Tr. 156. 

However, he acknowledged the importance of clearing brush from around a magazine. Id. He 

also stated that there was very little fuel near the magazine and that the photo exhibit, GX 13, 

does not accurately represent the conditions that were present. Tr. 157. Thus, as the miners are 

there every day and are therefore more familiar with the situation, he viewed the condition as 

very remote and highly unlikely to occur. In the Secretary’s cross-examination of Mr. Miller, 

Miller acknowledged that the condition was visible every day from the road. Tr. 160. He 

reaffirmed his view that there was not sufficient brush to justify the citation’s issuance. In his 

view, the only real trash was the 2x4’s he mentioned earlier. As to the Secretary’s claim of brush 

close to the magazine, Miller described it as “green” and added that, if it’s green, it’s not brush, 

and it need not be removed. Tr. 161. Thus, he believed that the issue was minimal, stating that 

the grass didn’t appear as in the photo and that it was clipped very low with a Weedeater. Tr. 

162. However, he admitted that CAL-OSHA had been out and told him that the area needed to

be trimmed. Tr. 163. Again, he stated that the area had been considerably cleaned up since then

and that CAL-OSHA did not issue a citation. He conceded that there had been a drought in the

area for a long time. Id.

Following that, the Secretary recalled Inspector Rogers. Tr. 164. Redirected to GX 13c, 

he was asked about whether there was vegetation that he considered to be brush and therefore 

needed to be cleaned. He referred to his notes, and they reflected that he tested some of the 

brush to make sure that it was dry and crumply, not wet-type material. Tr. 165. Speaking to the 

material in the photo, GX 13c, to the right of the magazine, he concluded that none of that was 

acceptable. It had to be removed as in his view it could start a fire. Tr. 166. 

Because this small mining operation was making some efforts at cleaning up the brush, 

coupled with the inspector’s admission that there were no immediate ignition sources observed, 

the Court views the negligence to be moderate, not high. Considering that view of the 

negligence and the small size of the mine, the Court imposes a penalty of $150.00 for this 

violation. 

38 FMSHRC Page 1064
Citation No. 8793806 

Proposed Penalty: $100.00. Penalty Assessed: $75.00. 

Inspector Rogers testified regarding Citation No. 8793806, issued November 4, 2014, and 

citing 30 C.F.R. § 57.6132(a)(3).40 GX 14. The particular cited subsection requires that 

magazines are to be bullet resistant. The cited magazine is the same one cited in Citation No. 

8793805, which contained blasting caps. Tr. 104-05. The inspector stated that the magazine was 

not bullet resistant as it had a steel exterior of about 1/8 of an inch with an interior lining of about 

1/2 an inch of plywood. Tr. 105. In contrast, the ATF standard requires magazines to have a 1/4 

of an inch of steel and 2 inches of hardwood. Tr. 106. Respondent stipulated that the cited 

magazine’s exterior was 1/8 inch thick steel and it was lined with plywood. Tr. 121-22. The 

hazard is that if one were to shoot at the magazine, a bullet could penetrate it and detonate the 

explosives inside. The inspector acknowledged the scenario was unlikely as the mine’s gate is 

locked and no hunting is permitted on the privately-owned land. Tr. 107. Negligence was also 

40 30 C.F.R. § 57.6132, titled “Magazine requirements,” provides: 

(a) Magazines shall be—

(1) Structurally sound;

(2) Noncombustible or the exterior covered with fire-resistant material;

(3) Bullet resistant;

(4) Made of nonsparking material on the inside;

(5) Ventilated to control dampness and excessive heating within the

magazine;

(6) Posted with the appropriate United States Department of

Transportation placards or other appropriate warning signs that indicate

the contents and are visible from each approach, so located that a bullet

passing through any of the signs will not strike the magazine;

(7) Kept clean and dry inside;

(8) Unlighted or lighted by devices that are specifically designed for use in

magazines and which do not create a fire or explosion hazard;

(9) Unheated or heated only with devices that do not create a fire or

explosion hazard;

(10) Locked when unattended; and

(11) Used exclusively for the storage of explosive material except for

essential nonsparking equipment used for the operation of the magazine.

(b) Metal magazines shall be equipped with electrical bonding connections

between all conductive portions so the entire structure is at the same electrical

potential. Suitable electrical bonding methods include welding, riveting, or the

use of securely tightened bolts where individual metal portions are joined.

Conductive portions of nonmetal magazines shall be grounded.

(c) Electrical switches and outlets shall be located on the outside of the magazine.

30 C.F.R. § 57.6132 (emphasis added).

38 FMSHRC Page 1065
evaluated as low as the magazine had been there for years, yet was not cited in previous 

inspections. 

On cross-examination, the inspector stated that the cited magazine was a Class 2, which 

refers to a surface portable. Tr. 109, 111. There was another Class 2 magazine on the property, 

but it met the ATF standard. Tr. 110. The Respondent apparently filed paperwork with the fire 

marshall which listed the magazine as a Class 3 or 4 magazine. Tr. 112. Although the 

Respondent attempted to show that blasting agents need only be stored in a Class 4 magazine, 

the MSHA standard requires that the magazine must be bullet resistant. Tr. 114. MSHA accepts 

only Class 1 and 2 magazines. The inspector opined that, because the detonators were stored 

only in Ziploc bags, they would mass detonate. Tr. 117. In determining that the cited magazine 

did not meet the MSHA standard for bullet resistance, the Inspector relied upon the ATF and 

IME (Institute of Makers of Explosives) standards. Tr. 106, 121. Asked about the inspector’s 

view that the magazine provided less protection to mine personnel than a bullet resistant one 

would, the inspector stated that the bullet resistant magazine would reduce the likelihood of a 

projectile penetrating the magazine. Therefore, the inspector’s concern was focused on the 

construction of the magazine, not its particular location. Tr. 125. 

In his testimony related to this citation, involving the thickness of the metal and the 

wood, and referring to Ex. 14, Mr. Miller stated that these were non-el detonating caps, and it 

was his view that they were “legal” as ATF inspected this, that is the thickness, the type of lock, 

etc. Tr.168. Miller’s perspective was that ATF’s view overrides MSHA’s requirements. Id. 

Miller then proposed to enter as an exhibit a three page email between Respondent’s employee, 

Rae Bell Abrogast, and Inspector Rogers. This was admitted as RX 1. Tr. 173.41 This was 

offered as mitigating evidence, with the purpose of showing that detonators that will not mass 

detonate may be stored in a Class 4 magazine. Miller maintained that this magazine had passed 

inspection for “years and years and years.” Tr. 171-72. To abate the citation, Respondent had all 

of the explosives removed from it. Tr. 172. 

This citation was assessed at $100.00. Upon consideration of the statutory criteria, the 

mine’s small size, and Mr. Miller’s testimony on this matter, including that the magazine had not 

been cited in previous inspections, the Court imposes a civil penalty in the amount of $75.00. 

41 The Court raised an issue about the proposed exhibit, because the email is dated June 

15, 2015, but the citation was issued November 14, 2014. Therefore it was unclear if the email 

related to Citation No. 8793806. Tr. 174. However, ultimately, the Court decided to admit the 

exhibit. That said, the Court expressed that it could be given little weight because OSHA’s and 

ATF’s views do not control. The Court did not decide then the impact of such information in 

evaluating gravity or negligence. Tr. 176. 

38 FMSHRC Page 1066
Docket No. WEST 2015-381-M (Plumbago Mine) 

Citation No. 8698267 

Proposed Penalty: $2,000.00. Penalty Assessed: $2,000.00. 

Inspector Daniel Boylan spoke to Citation No. 8698267, GX 38a, issued June 25, 2014, 

citing section 103(a) of the Mine Act.42 This was issued because of the alleged denial of entry to 

conduct an inspection. The inspector was at the Plumbago Mine with Inspector Jason Jeno for a 

compliance follow-up visit. That related to miner training and the training plan and to make sure 

that the miners had been withdrawn per the previous order. Tr. 600. When they arrived, they 

found that miners were working at the mine. Tr. 601. Mr. Miller then arrived at the site. The 

inspectors talked with the miners to determine why they were present, and they also examined 

some documents to determine if there were records of training. Mr. Miller asked to speak with 

the inspectors. 

According to Inspector Boylan’s testimony, while Miller was initially cordial, the 

inspector stated that Miller’s attitude changed after the inspectors asked if a miners’ rep was 

available to be present for such conversation. Miller, the inspector stated, informed that he 

would do the talking, not the inspectors. Tr. 603. The ensuing conversation became heated and 

Mr. Miller was angry, again, according to the inspector. The inspector stated that Miller asserted 

that there was no jurisdiction for their presence, Tr. 604, a perpetual assertion of Miller, which, 

as noted, was reasserted in Respondent’s post-hearing briefs. 

The inspectors informed Miller that he should direct his jurisdiction contentions to the 

MSHA District Office, not to them. Id. Miller then walked away and told his employees not to 

talk with the inspectors and for them to go home. Miller told the inspectors he was not talking 

with them anymore. With everyone leaving the mine site, the inspectors then left, too. Tr. 606. 

As all the employees had departed, the inspectors could not continue the inspection. The citation, 

reflected in GX 38, was issued as a violation of the Mine Act, and as such no safety standard was 

invoked. It was marked as non-S&S, no likelihood, and no lost workdays. However, it was also 

marked as high negligence, because Miller was well aware of MSHA’s right to inspect. Tr. 607. 

Citation Nos. 8698267 and 8698268 were each issued on June 25th, and for both, the 

inspector recommended a special assessment. This was because the inspector viewed the 

negligence involved for these two as “elevated.” Elaborating, the inspector stated that Citation 

No. 8698268, involving the second instance of miners working in the face of an order, was 

associated with the need for withdrawal for the training to be conducted. The negligence for 

Citation No. 8698267 was elevated, the inspector maintained, because it is common knowledge 

that one may not impede MSHA inspections. Tr. 609. 

The Court noted that, in making penalty determinations, it does not make “special 

assessments,” but instead looks to the statutory penalty criteria only. In that regard it asked the 

inspector to further explain the basis of his “high negligence” designation. The inspector stated 

42 Citation Nos. 8698267 and 8698268 were discussed together at the hearing and are so 

presented here. 

38 FMSHRC Page 1067
that he found no mitigating factors and that Miller knew of MSHA’s right to inspect. Tr. 610-11. 

On further cross-examination, the inspector stated that he had to leave the mine site to get the 

approval for the “impeding” citation. This required traveling some distance away from the mine, 

as the cell phone coverage was poor at the mine site.43 Tr. 613. 

Denial of entry to conduct an inspection, as occurred here, is a very serious violation. 

Upon consideration of the record evidence for this matter, the Court finds that the proposed 

penalty of $2,000.00 remains appropriate and is so imposed. 

Citation No. 8698268 

Proposed Penalty: $2,000.00. Penalty Assessed: $2,000.00. 

Citation No. 8698268, GX 39, was issued June 25, 2014, at the Plumbago Mine. Tr. 526-

27. Four miners were at the mine at that time, moving a locomotive and working in the shop.

For this matter, too, the earlier mentioned 104(g)(1) order, see discussion supra pp. 16-17, was

still in effect, and because of that no miners should have been working. The citation, issued as a

violation of the Mine Act itself, as opposed to a specific safety standard, was marked as no lost

workdays, no likelihood, and non-S&S. However it was also marked as “reckless disregard.”

That last designation was used because it was the second instance of the mine working in the

face of an order. Tr. 528. The inspector viewed it as demonstrating no apparent care in terms of

abating the original order. Id. Again, the Plumbago Mine had not submitted a training plan to

MSHA. Upon inquiring about any training they may have received, the inspector found some

documents, but no “5000” training forms. Instead there was only something “scribbled off” with

“Plumbago” written on the top of the form. Tr. 529. The form that was presented to him did not

indicate that the required training had been completed, nor did it demonstrate that newly hired

experienced miner training had been done. A proper form needs to show various numbers of

training categories and certification that they had been done. The form that was presented to him

had none of those items. Tr. 530.

Mr. Miller did not ask any questions of the inspector about Citation No. 8698268. As 

noted, this citation involved the assertion of working in the face of an order. Tr. 546. Mr. Miller 

again asserted that the required training was in fact given. 

In cross-examination about Citation No. 8698268, again, the second citation involving 

working in the face of a withdrawal order, Miller acknowledged that he had knowledge that his 

men were told to leave the mine and that they needed to be trained, but he added that they had 

been working for him for years. When pressed about whether at that time he knew of the 

withdrawal order, Miller stated he did not know, and that he did not know “when [he] was 

delivered these final orders.” Tr. 563. The Court did not find this claim to be credible. When 

asked to acknowledge the state of his awareness about the order’s issuance versus receipt of the 

order itself, he stated there was a “huge difference” between “having something written and 

something orally given.” Tr. 564. He did admit that he knew MSHA had issues with the 

43 Initially, Mr. Miller expressed concern about the time when the citation was issued, but 

the day it was issued, June 25th, was not in dispute. Tr. 615. 

38 FMSHRC Page 1068
training of miners at the Plumbago Mine. Id. However, he stated that he did not know that he 

had received the first citation for working in the face of a withdrawal order. Id. 

Mr. Miller then testified again about these matters. Tr. 620. He stated that he is well 

aware of MSHA’s right to inspect but contended that he did not impede or deny their inspection. 

Tr. 624. He also stated that he is the president and director of the Sixteen to One Mine, and a 

shareholder, but not the owner. Tr. 621. When asked about his role at the Plumbago Mine, he 

stated that he is responsible for all operations, and the one who oversees, but that he is not the 

“day-to-day person” at the mine. Tr. 622. The latter tasks are done by competent, qualified, and 

lead miners under him. Id. He reiterated that he did not and has not ever told employees to leave 

mine property due to the presence of a mine inspector. Tr. 624. He also denied that he told the 

miners to leave and lock the mine entrance gate. Tr. 624-25. Instead, Miller stated that his 

miners told him that they did not want to stay at the mine with the inspectors present. Tr. 626. 

He told them they could stay or leave, as they preferred, because that is the mine’s policy on 

such matters. Tr. 627. Elaborating, Miller stated that the mine’s policy is that miners can leave 

“[f]or any reason that personally upsets them.” Tr. 627. Yet, the miners were still paid for the 

day, even though they left the mine. Tr. 631. The policy, Miller contended, applies for any 

reason and is not just about mine inspectors. Tr. 627. Miller did not deny that he told the 

inspector that he was not going to talk about the issue any longer and that he then left in his 

truck. Tr. 628-29. 

As noted, these events occurred at the Plumbago Mine. Tr. 631. Miller stated that he then 

drove back to the Sixteen to One mine office. Miller maintained that he could not recall if he 

was given the citation on June 25th. Tr. 632. Miller stated that, when he concluded that the 

conversation with the inspector would not “go anywhere,” he decided that he would leave the 

mine, and left it to the miners as to whether they wished to remain or leave. Tr. 633. Miller 

admitted that he may have acted “a little bit excited,” but he was not confrontational or 

threatening to the inspector. Tr. 635. Miller denied that he arrived at the mine on that day in 

order to challenge the jurisdiction of the inspectors. Tr. 638. However, once there, he admitted 

that he told the inspectors, politely, that they had no jurisdiction over the property. Tr. 638-39. 

He also admitted that, once they started talking, he knew the inspectors were there for the 

purpose of conducting an inspection. Tr. 639-40. It was Miller’s statement that he chose to 

leave the mine property, but he agreed that he could have stayed and allowed the MSHA 

inspectors to finish their inspection. Tr. 643. 

In light of Mr. Miller’s testimony, Inspector Boylan was then recalled. He contradicted 

Miller’s testimony, stating that the miners were instructed to leave the mine by Mr. Miller. Tr. 

645. Further, he never heard Miller tell the miners they could stay or leave as they wished, nor

did he hear any miners state that they didn’t want to remain at the site. The inspector also took

note that the Mine Act provides for miners to still receive their pay when a withdrawal order is

issued and he so advised the miners of that. Thus, the inspector was firm that Miller told the

miners to leave the site and to lock the gate behind them. Tr. 646.

The impeding order was subsequently lifted, upon the mine operator allowing the 

inspection to proceed. Tr. 647. Upon handing the citation for impeding to Miller, he relented, 

the inspection began, and the order was lifted. Tr. 648. On subsequent re-cross-examination, the 

38 FMSHRC Page 1069
inspector agreed that he knew that all the paperwork for Plumbago was at the Sixteen to One 

office, so there was no need to return to the Plumbago Mine for that issue. Thus, the inspector 

admitted that the Plumbago Mine records were kept at the Sixteen to One Mine and that, as it 

was a matter of paperwork, he could obtain the records for the Plumbago there. 

However, the inspector stated that he still elected to go to the Plumbago mine site first. 

Tr. 651. When asked why he chose to go to the Plumbago, the inspector stated that, while that 

mine tends to keep its records at the Sixteen to One mine office, he had a second reason for 

going to the Plumbago site, namely to determine if miners were working in defiance of the order 

issued at the Plumbago. Tr. 653. Thus, he had a valid, independent, reason to return to the site. 

The Court notes that this was certainly his legitimate prerogative. The inspector added that when 

they went to the Plumbago, he and the other inspector were presented with some documents but, 

as noted earlier, that those documents were “nowhere near [the] training documents required.” 

Tr. 654. 

After considering the credibility of the inspector and that of Mr. Miller, at least as to 

these two matters, Citation Nos. 8698267 and 8698268, the Court finds that the Inspector’s 

version of the events is more credible. As noted in the discussion for Citation No. 8698267, 

denial of entry to conduct an inspection, as occurred here, is a very serious violation. Upon 

consideration of the record evidence for this matter and the statutory criteria, the Court finds that 

a civil penalty of $2,000.00 remains fully appropriate for Citation No. 8698268.

Settled and Vacated Citations 

At the hearing, seven citations were settled or vacated. Respondent withdrew its contest 

of the following citations and agreed to pay the originally proposed penalty: Citation Nos. 

8698193 (WEST 2014-527-M), 8783100 (WEST 2014-527-M), and 8793807 (WEST 2015-251-

M). 

For Citation No. 8793616 (WEST 2015-78-M), the Secretary agreed to modify the 

citation to reflect lost workdays or restricted duty from the original designation as fatal, with the 

penalty remaining as proposed. The Secretary also agreed to modify Citation No. 8698194 

(WEST 2014-527-M) to no likelihood, no lost workdays, and low negligence and to reduce the 

penalty to $50.00.44

Citation No. 8698227 (WEST 2015-78-M) was accepted by Respondent, and the 

Secretary agreed to remove the following sentence from Section 8 of the citation: “This mine has 

been in operation in the past during times of favorable commodities prices, and the mine is 

having rehabilitation activity been [sic] performed.” 

44 For the record, this matter involved 30 C.F.R. § 57.16001, titled “Stacking and storage 

of materials,” which provides that supplies shall not be stacked or stored in a manner which 

creates tripping or fall-of-material hazards. The inspector found, at the second level of the upper 

shop, an above-ground location, materials were stacked in front of shelves which he believed 

created a tripping hazard for those accessing the shelves. Tr. 328. It was appropriate to settle 

this matter. 

38 FMSHRC Page 1070
Finally, in an exercise of his prosecutorial discretion as recognized in RBK Construction, 

Inc., 15 FMSHRC 2099 (Oct. 1993), the Secretary vacated Citation No. 8793619 (WEST 2015-

158-M) at hearing. Having been vacated by the Secretary, Citation No. 8793619 is hereby

DISMISSED WITH PREJUDICE.

The Court has considered the representations submitted in these cases and concludes that 

the proffered settled citations are appropriate under the criteria set forth in section 110(i) of the 

Act. 

Summary of Violations and Penalties Imposed by the Court 

Docket No. WEST 2014-527-M 

Citation/Order No. Assessment Settlement Amount 

8698193 $100.00 $100.00 

8783098 $100.00 $50.00 

8783099 $100.00 DISMISSED 

8783100 $100.00 $100.00 

8698194 $100.00 $50.00 

TOTAL: $500.00 $300.00 

Docket No. WEST 2015-77-M 

Citation/Order No. Assessment Settlement Amount 

8698235 $5,000.00 $500.00 

8698236 $112.00 $75.00 

TOTAL: $5,112.00 $575.00 

Docket No. WEST 2015-78-M 

Citation/Order No. Assessment Settlement Amount 

8698224 $112.00 $112.00 

8698225 $100.00 $100.00 

8698226 $100.00 $100.00 

8698227 $100.00 $100.00 

8698228 $243.00 $243.00 

8698229 $308.00 $154.00 

8698230 $308.00 $154.00 

8698231 $100.00 $100.00 

8698232 $112.00 $112.00 

8698233 $100.00 $75.00 

8698234 $100.00 $100.00 

8785247 $100.00 $75.00 

8793615 $100.00 $100.00 

38 FMSHRC Page 1071
8793616 $100.00 $100.00 

8793617 $100.00 $50.00 

TOTAL: $2,083.00 $1,675.00 

Docket No. WEST 2015-158-M 

Citation/Order No. Assessment Settlement Amount 

8785248 $100.00 $25.00 

8793618 $100.00 $50.00 

8793619 $100.00 VACATED 

8785249 $100.00 $50.00 

8793620 $100.00 $75.00 

8785250 $100.00 $75.00 

8793621 $100.00 $100.00 

TOTAL: $700.00 $375.00 

Docket No. WEST 2015-240-M 

Citation/Order No. Assessment Settlement Amount 

8793801 $100.00 $50.00 

8793802 $100.00 $50.00 

TOTAL: $200.00 $100.00 

Docket No. WEST 2015-251-M 

Citation/Order No. Assessment Settlement Amount 

8793805 $243.00 $150.00 

8793806 $100.00 $75.00 

8793807 $100.00 $100.00 

TOTAL: $443.00 $325.00 

Docket No. WEST 2015-381-M 

Citation/Order No. Assessment Settlement Amount 

8698267 $2,000.00 $2,000.00 

8698268 $2,000.00 $2,000.00 

TOTAL: $4,000.00 $4,000.00 

TOTAL PENALTY ASSESSED BY THE COURT: $7,350.00 

38 FMSHRC Page 1072
ORDER

It is ORDERED that Citation No. 8793616 be MODIFIED to reduce the reasonably 

expected injury from fatal to lost workdays or restricted duty. 

It is ORDERED that Citation No. 8698194 be MODIFIED to reduce the likelihood of 

injury or illness to no likelihood, to reduce the reasonably expected injury to no lost workdays, 

and to reduce the level of negligence to low negligence. 

It is ORDERED that Citation No. 8698227 be MODIFIED to remove the following 

sentence from Section 8 of the citation: “This mine has been in operation in the past during times 

of favorable commodities prices, and the mine is having rehabilitation activity been [sic] 

performed.” 

Respondent Original Sixteen to One Mine, Inc., is ORDERED to pay a total civil penalty 

of $7,350.00 within 30 days of the date of this decision.45 Upon receipt of payment, this case is 

DISMISSED. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

Michele A. Horn, Esq., U.S. Department of Labor, Office of the Solicitor, 1224 Speer 

Boulevard, Suite 216, Denver, CO 80204-3518 

Michael M. Miller, Original Sixteen to One Mine, Inc., 527 Miners Street, P.O. Box 909, 

Alleghany, CA 95910 

45 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO 

63179-0390 

38 FMSHRC Page 1073
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May 3, 2016 

DECISION 

Appearances: Hanah Harris-Yager, Esq., U.S. Department of Labor, Office of the 

Solicitor, Denver, Colorado for Petitioner 

Denis J. Holcomb, D. Holcomb & Company, LLC, Port Angeles, 

Washington for Respondent 

Before: Judge David Barbour 

This proceeding arises under the Federal Mine Safety and Health Act of 1977, as 

amended, 30 U.S.C. § 801 et seq. It involves one alleged violation of the Secretary of Labor’s 

mandatory safety standards for metal/non-metal mines found at 30 C.F.R. Part 56. The violation 

allegedly occurred on June 25, 2014, at the scale house trailer of the Black Diamond Quarry, a 

construction sand, gravel and rock quarry owned and operated by D. Holcomb & Company, 

LLC. According to the Secretary, on that date an inspector from the Secretary’s Mine Safety and 

Health Administration (“MSHA”) entered the trailer and observed a generator running inside the 

building near a company supervisor and a customer (a truck driver). According to the inspector, 

exhaust from the generator was not being vented directly outside, and the supervisor was not 

monitoring the exhaust to determine the carbon monoxide (“CO”) levels inside the trailer. 

The inspector checked the level and found it was in excess of 180 parts per million four feet 

inside the trailer’s only functioning door. The inspector cited the company for a violation of 30 

C.F.R. § 56.5002, a mandatory safety standard requiring in part that “gas . . . surveys . . . be

conducted as frequently as necessary to determine the adequacy of control measures.” The

inspector found that the violation was highly likely to result in the deaths of the supervisor and

the customer and that the violation was a significant and substantial contribution to a mine safety

hazard. The inspector further found the alleged violation was the result of the company’s “high”

negligence.1

1

 Compounding the company’s negligence was the fact the company was cited previously 

for operating a generator inside the scale house trailer and for not monitoring the gas levels while 

doing so. 

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

D. HOLCOMB & COMPANY, LLC,

 Respondent.

CIVIL PENALTY PROCEEDING:

Docket No. WEST 2015-382-M 

A.C. No. 45-03570-371757

Mine: Black Diamond Quarry 

38 FMSHRC Page 1074
After issuance of the citation, MSHA applied its special assessment procedures and 

proposed a civil penalty of $52,000 for the alleged violation. The company contested the 

proposal, and the Secretary petitioned the Commission to assess the penalty. The company 

answered the Secretary’s assertions by stating the inspector who cited the company for the prior 

violation told the company if the windows in the scale house were kept open the generator could 

be used inside. The company asserted all of the windows and the trailer’s only door were open 

when the generator was running. The company also asserted that exposure of persons inside the 

scale house was limited to two minutes. 

After the answer was received, the Chief Judge assigned the case to the court which 

issued a prehearing order requiring the parties to confer to determine if they could settle the 

matter. The court also required the parties to exchange information, and the court set out the 

rules for discovery. Subsequently, the parties reported they were unable to agree on a settlement. 

Upon receiving the report, the court asked counsel for the Secretary and the representative of the 

operator if they would agree to the appointment of a settlement counsel to work independently of 

the court to resolve the case short of a hearing. The parties agreed, and the court appointed an 

independent settlement counsel. However, to preclude open-ended discussions, the court also set 

the case for hearing on March 29, 2016, in Port Angeles, Washington. The court made clear to 

the parties that if the efforts of the settlement counsel failed, the case would be heard on March 

29. 

In mid-March, 2016, the settlement counsel advised the court that his efforts were not 

successful. The case then proceeded to hearing and the parties appeared with documentary 

evidence and witnesses on the appointed day at the appointed hour in Port Angeles.2

The trial was scheduled to begin at 8:30 a.m., but due to a previously scheduled jury call, 

the clerk of the court advised all present that the room in which the case would be heard would 

not be available until approximately 9:30 a.m. The delay proved fortuitous. The court asked 

counsel and the representative of the company to use the time to make a final attempt to settle the 

case, and after a face-to-face discussion and a telephonic conference with the Solicitor’s Office, 

counsel and the representative agreed to a compromise settlement. When the clerk then 

announced that the hearing room was available, the court convened the hearing so that counsel 

for the Secretary could describe the settlement and move for its approval. Upon hearing the 

explanation, the court granted counsel’s motion for approval. Tr. 12. The court incorporates the 

explanation and the court’s approval into the decision by reference.3 Tr. 9-12. 

2

 Shortly before March 29, 2016, counsel for the Secretary withdrew and a substitute 

counsel entered her appearance on the government’s behalf. 

3

 The court again thanks counsel and the representative for their persistence and their 

patience with one another and reiterates its view that the settlement is in the best interest of all 

involved. See TR. 7-12. 

38 FMSHRC Page 1075
THE SETTLEMENT 

CITATION NO. DATE 30 C.F.R. § PROPOSED PENALTY SETTLEMENT 

8780364 6/25/14 56.5002 $52,500 $30,000 

Under the agreement, the compromise penalty will be paid in the amount of $2,500 per 

month for a period of 12 consecutive months. Tr. 11. 

ORDER 

On June 1, 2016, the company SHALL PAY the Secretary of Labor the first of 12 

consecutive payments each in the amount of $2,500. The other eleven payments of $2,500 

SHALL BE PAID on the first business day of each succeeding month (to wit: July 1, August 1, 

September 1, October 3, November 1 and December 1, 2016 and January 2, February 1, March 

1, April 3 and May 1, 2017).4 Upon the completion of full payment, this case IS DISMISSED. 

/s/ David F. Barbour 

David F. Barbour 

Administrative Law Judge 

Distribution: (Certified Mail) 

Hanah Harris-Yager, Esq., U.S. Department of Labor, Office of the Solicitor, MSHA Backlog 

Project, 1244 Speer Boulevard, Suite 216, Denver, Colorado 80204 

Denis J. Holcomb, Owner, D. Holcomb & Co., LLC, 112 Klahanie View Drive, Port Angeles, 

Washington 98363 

/db 

4

 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO. 

63179-0390. 

38 FMSHRC Page 1076
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May 11, 2016 

DECISION AND ORDER 

Before: Judge Lewis 

This case is before me upon an Application for Fees and Other Expenses filed by 

Productos de Agregados de Gurabo (“P.A.G.,” or “Operator,” or “Petitioner,”) pursuant to the 

Equal Access to Justice Act, 5 U.S.C. § 504 (the “Act”) and the Federal Mine Safety and Health 

Review Commission’s (the “Commission”) implementing regulations at 29 C.F.R. § 2704.100 et 

seq. 

PROCEDURAL HISTORY 

On April 12, 2013, MSHA Inspector Isaac Villahermosa conducted an inspection of the 

Petitioner’s Productos de Agregados de Gurabo surface mine. The inspector issued Citation No. 

8723601 for violation of 30 C.F.R. § 56.11001, “Safe Access,” on the same date. Productos de 

Agregados de Gurabo, 37 FMSHRC 2441 (Oct. 2015). 

After extensive prehearing discovery and numerous prehearing motions, a hearing was 

held on April 29 and 30, 2015 in Carolina, Puerto Rico. 

On October 28, 2015, I issued a decision and order, vacating Citation No. 8723601, 

essentially holding that the Secretary had failed to present sufficiently reliable evidence to 

support a finding of a § 56.11001 violation. Productos de Agregados de Gurabo, 37 FMSHRC 

2441 (Oct. 2015). 

PRODUCTOS DE AGREGADOS DE 

GURABO, 

 Petitioner, 

v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent. 

EQUAL ACCESS TO JUSTICE 

PROCEEDING 

Docket No. EAJA 2016-0003 

Formerly SE-2013-0449-M 

Mine ID No.: 54-00316 

Mine: Productos de Agregados de Gurabo 

38 FMSHRC Page 1077
Neither party filed a petition for discretionary review with the Commission following the 

issuance of said October 28, 2015 decision nor did any party seek review by the Circuit Court.1

On February 22, 2016, the Petitioner filed the subject application for fees and expenses.2

5 U.S.C. § 504. 

1 The Commission also did not direct the case for review on its own motion, pursuant to 

29 C.F.R. § 2700.71. 

2

 The operator’s February 22, 2016 motion for fees explicitly stated that it was “under 

the inherent power of the court.” Resp’t Productos de Agregados de Gurabo’s Petition for 

Attorneys’ Fees and Litigation Expenses, at 1 (emphasis in the original).

Notwithstanding the Petitioner’s failure to title its claim as an application for EAJA fees, 

this Decision and Order treats P.A.G.’s February 22, 2016 filing as a petition for EAJA fees. 

Despite the operator’s insistence that the filing was made under the Court’s inherent 

powers to award fees, the remainder of the filing uses language inseparable from its EAJA 

context, including terms like “prevailing party,” and “adversary proceeding,” in addition to 

arguing that “the position of the agency was not substantially justified.” Id., at 2-3. These are all 

terms specifically associated with EAJA proceedings and indeed, despite the Petitioner’s 

protestations to the contrary, the filing otherwise follows a standard EAJA petition format. 

Furthermore, it is unclear as to what “inherent powers,” the Petitioner refers to. Id., at 1. 

The Commission is not a court of general equity, and has no apparent “inherent powers,” at least 

none this Court is comfortable exercising absent controlling Commission precedent. See Jim 

Walter Resources, 15 FMSHRC 782, at 790 (May 1993) (holding that the Commission is not a 

court of general equity, and that it is a fundamental premise that equity aids only those who have 

vigilantly pursued their rights). Moreover, as the Commission reasoned in Kaiser Coal 

Corporation, “[w]e begin with the fundamental principle that, as an administrative agency 

created by statute, we cannot exceed the jurisdictional authority granted to us by Congress.” 

Kaiser Coal Corporation, 10 FMSHRC 1165, at 1169 (Sept. 1988). And, “[i]t also is a longstanding rule of law that the consent of the United States to be sued will not be extended beyond 

its literal terms and will not be implied.” Nibali v. United States, 634 F.2d 494, 497 (Ct. Cl. 

1980), citations omitted. 

The Court declines to endorse Petitioner’s view, and will not extend the United States’ 

consent to be sued beyond the four corners of the statutes at issue. 

In an attempt to have its cake and eat it too, the Petitioner contends in its March 31, 2016 

filing that “the Commission will be furthering Congress’s policy choice when Congress enacted 

the EAJA” by awarding P.A.G. attorneys’ fees. Resp’t’s Reply to the Secretary of Labor’s 

Response and Objections, at 8. Similarly, the Petitioner attempts to evade the 30-day requirement 

under EAJA by arguing that these time limits do not apply to the Court’s inherent equity powers. 

(continued...) 

38 FMSHRC Page 1078
On March 24, 2016, the Secretary of Labor filed a response and objection to the 

Petitioner’s application, contending, inter alia, that Petitioner’s application was time-barred. 

On April 4, 2016, the Secretary filed its sur-reply. 

LAW AND REGULATIONS 

29 C.F.R. § 2704.100 sets forth the purpose of Commission rules as to applications for 

Equal Access to Justice Act fees under 5 U.S.C. § 504: 

The Equal Access to Justice Act, 5 U.S.C. § 504, provides for the award of 

attorney fees and other expenses to eligible individuals and entities who are 

parties to certain administrative proceedings (called “adversary adjudications”) 

before this Commission. An eligible party may receive an award when it prevails 

over the U.S. Department of Labor, Mine Safety and Health Administration 

(“MSHA”), unless the Secretary of Labor's position in the proceeding was 

substantially justified or special circumstances make an award unjust. In addition 

to the foregoing ground of recovery, a non-prevailing eligible party may receive 

an award if the demand of the Secretary is substantially in excess of the decision 

of the Commission and unreasonable, unless the applicant party has committed a 

willful violation of law or otherwise acted in bad faith, or special circumstances 

make an award unjust. The rules in this part describe the parties eligible for each 

type of award. They also explain how to apply for awards, and the procedures and 

standards that this Commission will use to make the awards. In addition to the 

rules in this part, the Commission's general rules of procedure, part 2700 of this 

chapter, apply where appropriate. 

29 C.F.R. § 2704.100. 

2

 (...continued) 

Id., at 10. The Petitioner attempts to argue “in the alternative” that the filing should be treated as 

a properly filed EAJA petition. Id., at 11. 

Given that this Court has no inherent powers to render the relief sought, given the 

Petitioner’s failure to cite a single FMSHRC decision for the proposition supporting the 

Commission’s “inherent power,” to award attorneys’ fees, and given the Petitioner’s initial 

decision to submit a filing that conformed almost totally to a standard EAJA format, this matter 

was properly docketed EAJA 2016-0003, and will be treated as such. The Petitioner’s arguments 

to the contrary lack any grounding in Commission precedent, betray a troubling 

misunderstanding of the separation of powers, and fail to persuade. 

38 FMSHRC Page 1079
29 C.F.R. § 2704.206 sets forth when an application may be filed: 

(a) An application may be filed whenever the applicant has prevailed in the 

underlying proceeding or in a significant and discrete substantive portion of 

that proceeding. An application may also be filed by a non-prevailing party 

when a demand by the Secretary is substantially in excess of the decision of 

the Commission and is unreasonable when compared with such decision. In 

no case may an application be filed later than 30 days after the Commission's 

final disposition of the underlying proceeding, or 30 days after issuance of a 

court judgment that is final and nonappealable in any Commission 

adjudication that has been appealed pursuant to section 106 of the Mine 

Act, 30 U.S.C. § 816. 

(b) If review or reconsideration is sought or taken of a decision on the merits as to 

which an applicant has prevailed or has been subjected to a demand from the 

Secretary substantially in excess of the decision of the Commission and 

unreasonable when compared to that decision, proceedings for the award of 

fees shall be stayed pending final disposition of the underlying controversy. 

(c) For purposes of this part, final disposition before the Commission means the 

date on which a decision or order disposing of the merits of the proceeding or 

any other complete resolution of the proceeding, such as a settlement or 

voluntary dismissal, becomes final (pursuant to sections 105(d) and 113(d) of 

the Mine Act (30 U.S.C. §§ 815(d) and 823(d))) and unappealable, both 

within the Commission and to the courts (pursuant to section 106(a) of the 

Mine Act (30 U.S.C. § 816(a)). 

29 C.F.R. § 2704.206. 

ISSUE 

Given the above procedural history and applicable law and regulations, must Petitioner’s 

application for EAJA fees be denied on the basis of untimely filing? 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

In my original, underlying decision I noted that the Petitioner’s extensive prehearing 

challenges to Mine Act jurisdiction were clearly without merit. See, inter alia, Productos de 

Agregados de Gurabo, 37 FMSHRC 2441, at 2441-3 (Oct. 2015).3

 Further, my decision in favor 

of the Petitioner essentially turned upon the Secretary’s evidentiary failure to present sufficiently 

reliable evidence to support a finding of violation (see, inter alia, 37 FMSHRC 2441, at 2450-

2460.) 

3 In her application for EAJA fees, the Petitioner’s counsel indicated that she was not 

seeking fees and costs related to previous jurisdictional challenges. Resp’t Productos de 

Agregados de Gurabo’s Petition for Attorneys’ Fees and Litigation Expenses, at 2. 

38 FMSHRC Page 1080
I am inclined to agree with the Secretary that the Petitioner’s application for EAJA fees 

should also be rejected on substantive grounds.4 However, given the within procedural posture, I 

need not address the substantive merits of Petitioner’s claim in that its application is clearly timebarred.

5 U.S.C. §504(a)(2) plainly provides that a party seeking EAJA fees shall submit “within 

thirty days of a final disposition in the adversary adjudication” its application. 5 U.S.C. § 

504(a)(2). 

29 C.F.R. § 2704.206 also clearly and unambiguously provides that “in no case may an 

application be filed more than 30 days after the Commission’s final disposition of the underlying 

proceeding, or 30 days after the issuance of a court judgment that is final and unappealable in 

any Commission adjudication that has been appealed pursuant to section 106 of the Mine Act, 30 

U.S.C. § 816.” 29 C.F.R. § 2704.206. 

Petitioner’s February 22, 2016 EAJA fee application was inarguably far beyond the 

mandated 30 day deadline. 

Circuit Court case law holds that courts may not, by local rule, shorten or extend the time 

for filing in EAJA petition. Al-Harbi v. I.N.S., 284 F.3d 1080, 1082 (9th Cir. 2002). 

My decision issued on October 28, 2015 became final and unappealable on or around 

November 30, 2015.5

 The Petitioner failed to file its application until February 22, 2016 – almost 

two months after the statutory deadline of December 30, 2015. 

4 See the Solicitor’s response and objections to the Petitioner’s application for fees, 

wherein, inter alia, the Solicitor avers that its offer to reclassify the citation from S&S to nonS&S with a penalty reduction from $873.00 to $131.00 had been rejected by the Petitioner prior 

to hearing. See also the Solicitor’s arguments that Petitioner’s EAJA application should be 

denied on the merits. Sec’y’s Response and Objections to Pet’r’s Application for Fees and 

Expenses Pursuant to the Equal Access to Justice Act, at 4. 

The Undersigned is reminded of the Supreme Court’s reasoning in Ardestani v. I.N.S., 

502 U.S. 129: “[t]he clearly stated objective of the EAJA is to eliminate financial disincentives 

for those who would defend against unjustified governmental action and thereby to deter the 

unreasonable exercise of Government authority.” Ardestani v. I.N.S., 502 U.S. 129, at 138 

(1991), emphasis added. 

5

 29 C.F.R. § 2700.70 provides that a party adversely affected or aggrieved by a judge’s 

decision may file with the Commission a petition for discretionary review within 30 days after 

issuance of the decision. 

38 FMSHRC Page 1081
The Commission has consistently held that untimely applications under EAJA must be 

rejected.6 See Signature Mining Services v. Secretary of Labor, 18 FMSHRC 3261, n. 1 (Dec. 

2014) (wherein ALJ McCarthy found that Signature was ineligible to be award EAJA fees due to 

its failure to apply for such within 30 days of the Commission’s final disposition of the 

underlying proceeding); See also James M. Ray v. Secretary of Labor, 18 FMSHRC 2037 (Nov. 

1996) (wherein ALJ Fauver acknowledged that an application for EAJA fees could be rejected 

for untimely filing, but rejected Secretary’s motion to dismiss because the 30 day period, after 

excluding the day of decision’s issuance and a Sunday, had not, in fact, elapsed.) 

6 The Petitioner has not presented any Commission precedent to the contrary. Likewise, 

the Petitioner has cited no Commission case law supporting the application of equitable tolling to 

the EAJA context (instead, citing an irrelevant 10th Circuit opinion regarding equitable tolling 

and miners’ rights to file discrimination complaints under § 815(c)(2) of the Mine Act). Resp’t’s

Reply to the Secretary of Labor’s Response and Objections, at 13, citing Olson v. Fed. Mine 

Safety & Health Review Comm'n, 381 F.3d 1007 (10th Cir. 2004). 

Even if equitable tolling were a possibility in EAJA matters, the length of delay in filing 

and the problematic nature of the Petitioner’s EAJA claim on-the-merits, would not qualify this 

for such tolling. As the Supreme Court noted in Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 

equitable tolling is extended only in exceptional cases: 

“Federal courts have typically extended equitable relief only sparingly. We have allowed 

equitable tolling in situations the claimant has actively pursued his judicial remedies by filing a 

defective pleading during the statutory period, or where the complainant has been induced or 

tricked by his adversary's misconduct into allowing the filing deadline to pass. We have 

generally been much less forgiving in receiving late filings where the claimant failed to exercise 

due diligence in preserving his legal rights.” Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 

(1990). 

The Petitioner has alleged nothing resembling the circumstances described in Irwin to 

merit the relief asked for. 

38 FMSHRC Page 1082
Therefore I am constrained to find that the Petitioner’s application must be denied 

because it was filed beyond the statutory deadline. 

ORDER 

It is the decision of the undersigned that Petitioner’s application for fees and expenses 

under the Equal Access to Justice Act was untimely filed and Petitioner’s application is hereby 

DENIED. 

/s/ John K. Lewis 

John K. Lewis 

Administrative Law Judge 

Distribution: 

Damaris Delgado-Vega, Esq., Ortiz & Ortiz Law Office, P.S.C., 470 Avenida Cesar L. 

Gonzalez, San Juan, PR 00918 

Terrence Duncan, Esq., Office of the Solicitor, U.S. Department of Labor, 201 Varick Street, 

Room, 983, New York, NY 10014 

38 FMSHRC Page 1083
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May 11, 2016 

DECISION AND ORDER 

Appearances: Helga Spencer, Esq. and Christina Haviland, U.S. Department of Labor, 

Office of the Solicitor, Philadelphia, PA, for the Secretary 

Jason W. Hardin, Esq. and Jason Steiert, Fabian VanCott, Salt Lake City, 

UT, for the Respondent 

Before: Judge Lewis 

I. Statement of the Case

These cases are before me upon two petitions for assessment of civil penalties under §

104(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Following an 

inspection of Respondent’s mine, an MSHA inspector issued Order No. 8061123 for coal dust 

accumulations along the South Mains belt line in violation of 30 C.F.R. § 75.400. Additionally, 

the inspector issued Order No. 8061124 to the Respondent for failing to record the 

accumulations in its examination books in violation of 30 C.F.R. § 75.363(b). A hearing was 

held in Pittsburgh, PA on December 16, 2015. At hearing the Respondent contested the high 

negligence and unwarrantable failure designations for both violations. Respondent also argued 

Order No. 8061124 should be vacated because the cited accumulations did not exist at the time 

of the on-shift examinations. 

This Court now issues findings of fact and conclusions of law affirming Order No. 

8061124 and affirming the high negligence and unwarrantable failure designations for both 

Order No. 8061123 and Order No. 8061124. This Court also affirms the penalties totaling 

$14,536.00 for those two orders.

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

THE OHIO VALLEY COAL COMPANY, 

 Respondent. 

CIVIL PENALTY PROCEEDINGS

Docket No. LAKE 2015-251 

A.C. No. 33-01159-371484

Docket No. LAKE 2015-309 

A.C. No. 33-01159-373906

Mine: Powhatan No. 6 Mine 

38 FMSHRC Page 1084
II. Procedural History

On September 9, 2014, two 104(d)(2) orders were issued at Ohio Valley Coal Company

(“Respondent” or “Ohio Valley Coal”), Powhatan No. 6 Mine. Respondent contested these 

orders on February 18, 2015. On November 23, 2015, the Secretary filed a motion to preclude 

expert testimony in response to Respondent’s Prehearing Report of November 13, 2015. On 

December 1, 2015, the Respondent filed a motion in opposition, and the Secretary filed a reply 

on December 2, 2015. This Court denied the Secretary’s request for exclusion of Respondent’s 

proposed testimony and exhibits, and withheld determination as to the admissibility or weight to 

be given to the Respondent’s proposed witness testimony and exhibits. On December 16, 2015, a 

hearing was held in Pittsburgh, PA. After the hearing, the parties submitted Post Hearing Briefs 

and Reply Briefs, which have been fully considered. 

III. Stipulations1

1. Respondent was an “operator” as defined in §3(d) of the Federal Mine Safety and Health

Act, 30 U.S.C. § 802(d), at the Mine at which the Orders in this matter were issued.

2. The operations of Respondent at the Mine at which the Orders in this matter were issued

are subject to the jurisdiction of the Act.

3. The above-captioned proceeding is subject to the jurisdiction of the Federal Mine Safety

and Health Review Commission and its assigned Administrative Law Judges pursuant to

Sections 105 and 113 of the Act.

4. The Orders in the matter were properly issued and served by a duly authorized agent of

the Secretary of Labor upon an agent of the Respondent at the date, time, and place stated

therein as required by the Act.

5. Exhibit “A” to the complaint accurately sets forth the Respondent’s Mine size points,

Controller size points, VPID points, and RPID points used by the Secretary in setting the

penalty for Orders 8061123 and 8061124.

6. An E01 inspection of the Powhatan No. 6 Mine was conducted by MSHA on or about

September 9, 2014.

7. Representatives from MSHA and the Respondent were present at the underground site

visit on September 9, 2014.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1

 The parties’ joint stipulations were read into the record at Transcript pages 10-14. (Tr. 

10-14). A paper copy was said to be attached to the record as Joint Exhibit 1, however; the

exhibit attached was a Mine Citation/Order Continuation modifying Citation No. 8057495.

(Joint Ex. 1). The ALJ also incorporates the recitation of the stipulations set forth in the

Secretary’s Post Hearing Brief that was not objected to by Respondent (except for the clerical

error of using Order Nos. 802113 and 8062114 instead of the correct Order Nos. 8061123 and

8061124) as though fully recited herein. (Sec’y Post Hearing Br. at 3-4). Hereinafter, joint

stipulations will be cited to as J.S. followed by the stipulation number. Exhibits will hereinafter

be cited to as JX followed by a number for joint exhibits; GX followed by a number for the

Secretary’s exhibits; and RX followed by a number for the Respondent’s exhibits.

38 FMSHRC Page 1085
8. On September 9, 2014, MSHA Inspector Terrence A. Saho (AR No. 25193) issued

Orders 8061123 and 8061124 during an inspection of the Mine.

9. Respondent does not contest that the conditions cited in Orders 8061123 and 8061124

could be expected to cause injuries resulting in lost workdays affecting two miners.

10. The imposition of the proposed penalties will not affect Respondent’s ability to remain in

business.

11. The exhibits offered by the Parties are stipulated to be authentic, but no stipulation is

made as to their relevance or the truth of the matters asserted therein.

12. The R-17 Assessed Violation History Report is an authentic copy and may be admitted as

a business record of the Mine Safety and Health Administration.

13. Pursuant to Section 103(i) of the Mine Act, Powhatan No. 6 Mine is subject to 5 day spot

inspections for methane as this liberates more than 1 million cubic feet of methane during

a 24 hour period.

IV. Factual Background

On September 9, 2014, Inspector Terrance Saho arrived at Powhatan No. 6 mine at 7:30

a.m.2

 (Tr. 28). He went to Powhatan No. 6 mine for an E0-1 inspection.3 (Tr. 27). Prior to

conducting his inspection, Inspector Saho reviewed the exam books for the mine. (Tr. 28). After

reviewing such, he began his inspection of the South Mains belt and South Mains return. (Tr.

29). Inspector Saho traveled with Bill Hagedorn, Inspector Saho’s supervisor, Jeremi Hossman, a

safety representative, and Nathan Carlton, the union representative. (Tr. 29).

During the inspection, Inspector Saho entered the belt line at one crosscut and proceeded 

inby along the South Mains belt, between crosscuts 35 and 36. (Tr. 30-31). There was a wall 

isolating two separate parts of the belt line. (Tr. 30-31). When Inspector Saho arrived at the wall, 

he went through the man door, on the walking side of the belt, from a fairly well rock dusted 

entry into an area with black coal dust covering the roof ribs, floor, and belt. (Tr. 32). He 

continued walking down to the end of the belt line where he found the tail roller was turning in 

compacted coal and coal fines. (Tr. 32-33). At approximately 10:00 a.m., Inspector Saho issued 

Order No. 8061123 for accumulations between crosscuts 36 and 39 in violation of § 75.400. 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2

 Inspector Terrance Saho is an inspector for MSHA. (Tr. 20-21). In June 2014 he was 

authorized as a coal mine inspector. (Tr. 21). Prior to becoming a mine inspector, he received 

21 weeks of training at Beckley, West Virginia at the Mine Academy. (Tr. 22). Before working 

for MSHA, Inspector Saho worked in the mining industry for approximately two and a half 

years. (Tr. 24-25). He worked two years with Consol Energy and approximately five months 

with GMS. (Tr. 25). He was a union coal miner at Consol, working as a bolter on the 

continuous miner, and various sections jobs, belt work, and general inside labor. (Tr. 25). At 

GMS, Inspector Saho worked on belts. (Tr. 25). 

3 An E0-1 inspection is a general inspection. (Tr. 27). At this time, Powhatan No. 6 mine 

was subject to a five day spot inspection where inspectors would take bottle samples to test for 

methane liberated from the mine. (Tr. 27). 

38 FMSHRC Page 1086
(GX-1). He measured the accumulations at the tail roller; the accumulations were six feet across 

and two feet in depth. (Tr. 33). The accumulations were black, which showed that there was no 

mixing of rock dust. (Tr. 36-37). Inspector Saho listed float coal and loose coal accumulations 

for the violation. (Tr. 37). There was also no evidence that anyone had cleaned up the site of the 

accumulations when the orders had been issued. (Tr. 38). The operator subsequently shut the belt 

down to abate the condition. (Tr. 34). 

Inspector Saho proceeded around the tight side of the belt to the return regulator. (Tr. 34). 

There he saw float dust being sucked through the return regulator and sent down the return. (Tr. 

34). This indicated to him that the float dust had been in this area for an extended period of time 

and that no one had been in the area past the wall to maintain the coal dust accumulations. (Tr. 

34). He also believed that no one had been in this area that day because there were considerable 

coal dust accumulations and no sign of rock dusting. (Tr. 34). 

The gravity of the violation was assessed as reasonably likely and Significant and 

Substantial (“S&S”) because the float coal dust and accumulations with the tail roller turning in 

the coal accumulations could have created a “fire triangle.”4

 (Tr. 51-52). Inspector Saho testified 

that coal was impacted by the roller, which created friction that could have caused a fire. (Tr. 

52). The coal was damp near the belt, and there was no other ignitable source other than 

accumulations around the tail roller. (Tr. 72, 76-77). 

Inspector Saho determined that the injury or illness expected for the violation would be 

lost workdays or restricted duty because a potential fire on the belt could have led to smoke 

inhalation. (Tr. 52). He determined that two persons would be affected because there would have 

been two examiners present at any given time on a shift and a belt cleaner could have been in the 

area. (Tr. 52-53). Inspector Saho further found the violation was the result of an unwarrantable 

failure to comply with a mandatory health and safety standard. (Tr. 53). 

Inspector Saho testified that the 2 South Section and West Mains Section had dumped 

coal directly on the South Mains belt at the 25 crosscut. (Tr. 50). The 1 South Section was not in 

production on September 9, 2014. (Tr. 50). Thus, there was no coal dumping on the South Mains 

belt that day near crosscuts 36-39. (Tr. 56). Therefore, Inspector Saho testified that the coal 

accumulations had to be there for longer than the on-shift exams at least. (Tr. 56). 

Inspector Saho also issued Order No 8061124 for the examiner failing to report the 

accumulation conditions in the examination books, in violation of § 75.363(b). (Tr. 58). 

Inspector Saho reviewed the examination books and did not find any note of the accumulations 

from crosscuts 36-39. (Tr. 60). The exams were conducted between 2:00 and 2:28 a.m. and 6:00 

and 6:26 a.m. (Tr. 60-61). The order was issued because the examiner failed to record all of the 

nine mandatory standard violations he observed. (Tr. 62). This order was designated S&S and 

indicated that two persons would be affected: the examiner and belt cleaner. (Tr. 61-62). 

After the orders were issued, Jeremi Hossman, the safety representative, instructed 

miners to clean and rock dust crosscuts 36-39. (Tr. 51). The condition was abated in 

approximately two hours. (Tr. 51; RX 1). 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4

 Inspector Saho uses the term fire triangle, comprising of fuel, an ignition source, and 

oxygen, to indicate the conditions in a coal mine that can create a fire hazard. (Tr. 70). 

38 FMSHRC Page 1087
Matthew Skolnick, the section foreman for Ohio Valley Coal, conducted the on-shift 

examination of the South Mains belt on September 9, 2014, before the midnight shift.5 (Tr. 150-

51). He testified that he had inspected the whole belt line all the way to the end and had only 

noted a bad roller during the exam. (Tr. 152). He further testified that he did not see any 

accumulations along the belt. (Tr. 154). 

On the evening of September 9, 2014, Skolnick found out about the orders involving 

accumulations. (Tr. 157). The following morning, at the end of the midnight shift, Skolnick was 

told a tear was found in the South Mains belt. (Tr. 157). 

Skolnick reviewed the Production and Labor reports for September 9, 2014, to determine 

which sections had been loaded onto the South Mains belt that day. (Tr. 162). Skolnick testified 

that during the midnight shift, the 2 South Section and West Mains Section were mined, and the 

coal was dumped onto the belt at crosscut 25. (Tr. 162). 9,000 tons were mined from the 2 South 

Section, and 34 feet were mined from the West Mains Section. (Tr. 163). The first car from the 2 

South Section was dumped on the South Mains belt at 1:50 a.m., and the last car was dumped at 

8:05 a.m. (Tr. 164-65). The West Mains Section was dumped on the belt between 3:00 a.m. and 

8:30 a.m. (Tr. 168). Skolnick testified that during this period, before the orders were issued, the 

coal could have fallen through the tear in the belt and rolled back to the tail, creating the cited 

accumulations. (Tr. 167-68). 

However, Inspector Saho did not believe coal would have traveled along the bottom belt 

all the way to the tail roller. (Tr. 93-95). He testified that the coal would have fallen or been 

flung off the belt before it reached that far. (Tr. 94-95). Both Skolnick, the section foreman, and 

Hossman, the safety representative, also acknowledged that coal would have likely fallen off 

before reaching the tail roller on the belt if the coal did fall through the tear on the belt. (Tr. 174, 

222). 

Jeremi Hossman, the safety representative, accompanied the inspectors along the South 

Mains belt on September 9, 2014.6

 (Tr. 202). He saw the accumulations that were cited along 

crosscuts 36-39. After Inspector Saho issued Order No. 8061123 at 10:00 a.m. and Order No. 

8061124 at 10:01 a.m., the miners spent approximately two hours cleaning up the accumulations, 

finishing by 12:30 p.m. (Tr.243; RX 1). Hossman testified that during the inspection he had not 

heard Inspector Saho talk about footprints in the accumulations, and Inspector Saho testified that 

his notes and photographs did not indicate he found any footprints. (Tr. 89, 119-20, 240-41; RX 

5,6). 

In the afternoon, Hossman found out that there was a tear in the South Mains belt, which 

he photographed. (Tr. 207; RX 14). He said he believed this tear was in the middle of the belt. 

(Tr. 215). As a result of this tear in the belt, Hossman testified that the coal dumped on the belt 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 5

 Matthew Skolnick has been the section foreman for Ohio Valley Coal for three years. 

(Tr. 146). He has worked for Ohio Valley Coal for a total of 6 years. (Tr. 146). He has been 

certified in both West Virginia and Ohio. (Tr. 146). 

6

 Hossman was the safety representative at Ohio Valley Coal for almost six years. (Tr. 

203). He also worked as a surveyor and in the warehouse at the mine. (Tr. 203). He has worked 

ten years in coal mining. (Tr. 203). 

38 FMSHRC Page 1088
could have fallen through to the bottom and been carried back to the tailpiece and ground up, 

thus causing the cited accumulations. (Tr. 215-17). Additionally, Hossman testified that the 

accumulations were primarily on the edges, underneath the bottom of the belt, and behind the tail 

roller. (Tr. 216-17). 

V. Contentions of the Parties

The Secretary contends that the coal dust accumulations by the tail roller of the Powhatan

No. 6 Mine, South Mains belt, violated 30 C.F.R. § 75.400, as stated in Order No. 8061123. 

(Sec’y Post Hearing Br. at 11-12). The Secretary also contends this violation was S&S and 

reasonably likely to result in lost workdays or restricted duty affecting two miners. (Id. at 11). 

Further, the Secretary contends this violation was the result of an unwarrantable failure and high 

negligence, and the penalty of $8,421.00 should be affirmed. (Id. at 22-23). 

Respondent contends that the ALJ should give no deference to the inspector because he 

had less than the five years of experience recommended by the Mine Act. (Resp. Post Hearing 

Br. at 2-5). In response, the Secretary contends that the Mine Act does not require five years of 

experience and that Inspector Saho had the requisite MSHA Inspector training and two and a half 

years of mining experience. (Sec’y Reply Br. at 1-4). Respondent concedes that § 75.400 was 

violated, as stated in Order No. 8061123, and that the violation was S&S, with it being 

reasonably likely to result in lost workdays or restricted duty affecting two miners. (Tr. 248). 

However, the Respondent contends that violative conduct should not be assessed with high 

negligence or an unwarrantable failure designation, and the penalty should be lowered. (Resp. 

Post Hearing Br. at 5-26). 

Additionally, the Secretary contends that the Respondent failed to record the 

accumulations by the tail roller on the South Mains belt line during the on-shift examinations in 

violation of § 75.363(b), as stated in Order No. 8061124. (Sec’y Post Hearing Br. at 23-26). The 

Secretary also contends the violation was S&S, and reasonably likely to result in lost workdays 

or restricted duty affecting two miners. (Id. at 26). Moreover, the Secretary contends this 

violation demonstrated high negligence, it was an unwarrantable failure, and that the penalty of 

$6,115.00 should be affirmed. (Id. at 26-30). 

The Respondent counters that Order No. 8061124 should be vacated because the 

accumulations did not occur until after the on-shift examinations. (Resp. Post Hearing Br. at 27-

28). The Respondent contends that if a violation is found, the negligence level should be 

lowered, the unwarrantable failure designation should be removed, and the penalty should be 

lowered. (Id. at 28-29). 

VI. Analysis

A. Burden of Proof and Standard of Proof

The Secretary bears the burden of proof of by a preponderance of the evidence for 

violations. Jim Walter Res., Inc., 28 FMSHRC 983, 992 (Dec. 2006); RAG Cumberland 

Resources, Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Jim Walter Res., Inc., 9 FMSHRC 903, 

907 (May 1987). Each element in a violation must be proven by the Secretary. In re: Contests of 

38 FMSHRC Page 1089
Respirable Dust Sample Alteration Citations: Keystone Mining Corp., 17 FMSHRC 872, 878 

(Aug. 2008). 

The Commission has held that “[t]he burden of showing something by a ‘preponderance 

of the evidence’ the most common standard in the civil law, simply requires the trier of fact ‘to 

believe that the existence of a fact is more probable than its nonexistence.’” RAG Cumberland 

Resources Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), quoting Concrete Pipe & Products of 

California, Inc. v. Constr. Laborers Pension Trust for S. California, 508 U.S. 602, 622 (1993). 

Further, the United States Supreme Court has found that “[b]efore any such burden can 

be satisfied in the first instance, the factfinder must evaluate the raw evidence, finding it to be 

sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition 

with the requisite degree of certainty.” Concrete Pipe & Products of California, Inc. v. Constr. 

Laborers Pension Trust for S. California, 508 U.S. 602, 622 (1993). 

B. Order No. 8061123

At hearing, Respondent conceded that the coal dust accumulations cited between 

crosscuts 36 and 39 violated 30 C.F.R. § 75.400 as stated in Order No. 8061123. (Tr. 248). 30 

C.F.R. § 75.400 requires that:

Coal 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 diesel-powered and electric equipment therein. 

 Respondent also conceded that the violation was likely to result in lost workdays or 

restricted duty injuries affecting two miners. (J.S. 9). During hearing, Respondent conceded that 

Order No. 8061123 constituted a S&S violation. (Tr. 248). However, the Respondent contested 

the high negligence and unwarrantable failure assessments. 

1. Negligence

Negligence is not defined in the Mine Act. MSHA regulations provide that violative 

conduct is properly designated as “high negligence” when “the operator knew or should have 

known of a violative condition or practice, and there are no mitigating circumstances.” 30 C.F.R. 

§100.3(d), Table X. The Commission has held that Commission Judges are not required to apply

the level-of-negligence definitions in Part 100 and may evaluate negligence from the perspective

of a traditional negligence analysis rather than the Part 100 definitions. Brody Mining, LLC, 37

FMSHRC 1687, 1703 (Aug. 2015); accord Mach Mining, LLC, 809 F.3d 1259, 1263-64 (D.C.

Cir. 2016). “Moreover, because Commission judges are not bound by the definitions in Part 100

when considering an operator’s negligence, they are not limited to a specific evaluation of

potential mitigating circumstances, and... may find ‘high negligence’ in spite of mitigating

circumstances, or moderate negligence, without identifying mitigating circumstances.” Brody, 37

FMSHRC at 1702-03; Mach Mining, 809 F.3d at 1263-64. In this regard, the gravamen of high

negligence is “‘...an aggravated lack of care that is more than ordinary negligence.’” Brody, 37

FMSHRC at 1703, citing Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998). “Thus, in

making a negligence determination, a Commission judge is not limited to an evaluation of

allegedly ‘mitigating’ circumstances...[and]may consider the totality of the circumstances

38 FMSHRC Page 1090
holistically.” Brody, 37 FMSHRC at 1702 (emphasis added). Under such an analysis, an operator 

is negligent if it fails to meet the requisite high standard of care under the Mine Act. Id. 

In the instant case, the cited accumulations were up to two feet deep in some areas. (Tr. 

33). The operator should have detected such an obvious violation. (See Tr. 33). Accumulations 

this extensive likely existed for several hours, if not days. The failure by the Respondent to abate 

these conditions, which posed such a fire hazard, displayed an aggravated lack of care. 

Respondent alleges that there was a tear in the belt that was unknown to the operator. (Tr. 

207). This created accumulations at crosscuts 36-39, which Respondent argues should constitute 

a mitigating circumstance. (Resp. Post Hearing Br. at 24-25). The tear in the belt was not found 

until the afternoon after the orders were issued. (Tr. 207). No one from the mine checked the belt 

and had found a tear at the time the order was issued. This would indicate that the tear may not 

have existed until after the order was issued. (Tr. 219-20). The inspector also did not find a tear 

in the belt at the time the accumulations were found. (Tr. 97-100). Further, Inspector Saho, 

Skolnick, and Hossman testified that—even if there was a tear in the belt—the coal would have 

fallen off the belt all along crosscuts 25 to 39. 7 (Tr. 94-95, 174, 222). No evidence has been 

brought forward by the Respondent showing that coal had fallen off anywhere other than at 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 7

 The Respondent essentially argues that Inspector Saho’s testimony should be accorded 

little weight because he lacks the five years of mining experience recommended by the Act. (See 

Also 20 U.S.C. §954, which states in pertinent part that “to the maximum extent feasible, in the 

selction of persons for appointment as mine inspectors, no person shall be so selected unless he 

has the basic qualification of at least five years practical mining experience.”) 

The Act accepts that the length of prior mining experience is a relevant factor in 

determining the weight to be given an inspector’s opinion. However to the extent that 

Respondent implies that Saho’s lack of five years past mining experience, standing alone, would 

render his opinions uncredible, the ALJ expressly rejects such. 

The ALJ notes that Saho did possess approximately two and a half years of prior mining 

experience at the time he inspected the subject mine. Additionally, the Act explicitly uses the 

disjunctive “or” in listing the qualifications for an authorized representative, stating that such 

persons “shall be qualified by practical experience in mining or by experience as a practical 

mining engineer or by education.” (Id.)(emphasis added). In addition to his mining experience, 

Inspector Saho received 21 weeks of training at the Mine Academy in Beckley, West Virginia. 

Moreover, when Inspector Saho issued Order Nos. 8061123 and 8061124 on September 

9, 2014, he had been accompanied by his supervisor, Bill Hagedorn, who did not disagree with 

any of Saho’s findings. (Tr. 29). 

Finally, the ALJ notes that Saho’s testimony of his observations of the cited area and 

inspections of Respondent’s examination books were essentially uncontradicted by Respondent. 

Considering in toto the inspector’s past experience and training, the additional presence 

of his supervisor and his uncontested observations, the ALJ found Saho to be both credible and 

persuasive in his expressed opinions. 

38 FMSHRC Page 1091
crosscuts 36-39. (Tr. 222). Finally, there was no evidence that further accumulations had 

occurred after the order was issued near the tail roller. (224-28). It is unlikely that a tear, which 

caused accumulations in the morning, would not continue to cause accumulations until repaired 

later that afternoon. As a result, this Court finds that the Respondent’s arguments concerning the 

tear are not persuasive. Therefore, this court finds that the violation was the result of high 

negligence. 

2. Unwarrantable Failure

The Commission has determined that an “unwarrantable failure is aggravated conduct 

constituting more than ordinary negligence.” Manalapan Mining Co., 35 FMSHRC 289, 293 

(Feb. 2013). Such a failure may be characterized by the following types of conduct: reckless 

disregard, intentional misconduct, indifference, or a serious lack of reasonable care. Emery 

Mining Corp., 9 FMSHRC 1997, 2003-04 (Dec. 1987). 

Whether conduct is “aggravated” in the context of unwarrantable failure is 

determined by looking at all the facts and circumstances of each case to see if any 

aggravating factors exist, including (1) the extent of the violative condition, (2) 

the length of time that the violative condition existed, (3) whether the violation 

posed a high degree of danger, (4) whether the violation was obvious, (5) the 

operator’s knowledge of the existence of the violation, (6) the operator’s efforts in 

abating the violative condition, and (7) whether the operator had been placed on 

notice that greater efforts were necessary for compliance. 

Manalapan Mining Co., 35 FMSHRC at 293. The Court must consider all relevant factors, the 

facts and circumstances of the case, and whether mitigating circumstances exist. IO Coal Co., 

Inc., 31 FMSHRC 1346, 1351 (Dec. 2009). 

As discussed infra, the Respondent has essentially offered the following “defenses” or 

mitigating circumstances to vitiate findings of “high” negligence and unwarrantable failure: there 

was an unseen tear in the upper belt; coal fell through the undetected tear onto the lower belt; the 

fallen coal was then transported along the beltway and deposited into unsafe accumulations in 

the cited areas; all of which occured after the on-shift examinations. 

This Court will discuss the Manalapan factors below seriatim. However, this Court feels 

constrained to observe there is no need for a sophisticated Pascalian risk analysis to discern the 

extremely problematic nature of Respondent’s contentions. Why was the fallen coal not strewn 

along the entire length of the belt-way area in question rather than only in the cited areas? What 

are the odds that the accumulations would be so deposited and distributed in such a short period 

of time? Why did the inspector never observe the unsafe tear? 

Much more probable and likely explanations for the unsafe accumulations and failure to 

report are the ones advanced by the Secretary throughout these proceedings: the operator’s high 

negligence and unwarrantable failure in allowing the accumulations to build up and its highly 

negligent and unwarrantable failure to record and report such. 

38 FMSHRC Page 1092
The Secretary has easily carried its burden regarding the operator’s violative conduct and 

the unwarrantable nature of such by the preponderance of the evidence. 

a. The length of time and extent of the condition

The accumulations that Inspector Saho found at crosscuts 36-39 were six feet wide and 

two feet deep under the belt tail roller. (Tr. 33). The accumulations covered the floor, roof ribs, 

and belt. (Tr. 17). The belt tail roller was turned in compacted accumulations. (Tr. 33). Inspector 

Saho testified that he did not believe accumulations so extensive could have accumulated after 

the on-shift examination. (Tr. 42). Conversely, the Respondent argues that a tear in the belt had 

caused coal to accumulate after the on-shift examination; thus arguing the accumulations existed 

for several hours instead of several days.8 Nonetheless, the extensiveness of the accumulations 

and the fact that no coal was loaded onto the belt from 1 South contradict Respondent’s 

contentions and support the Secretary’s contentions that these accumulations most likely had 

existed for more than one shift. 

b. Whether the violation posed a high degree of danger

There was a high degree of danger created by the instant violation. Coal accumulations 

were packed around the tail end roller, and the belt was also running in contact with coal 

accumulations. (Tr. 33, 36, 45-47, 180; GX 7, 8). These conditions created a fire hazard that 

could have resulted in miners suffering smoke inhalation or burns. (Tr. 52, 122). Although the 

Respondent argued that the accumulations were damp, the Commission has held that “[t]he fact 

that there was some dampness in the coal did not render it incombustible and...wet coal can dry 

out in a mine fire and ignite.” Utah Power & Light Co, 12 FMSHRC 965,969 (May 1990), Aff’d, 

951 F.2d 292 (10th Cir. 1991)(citing Black Diamond, 7 FMSHRC 1117,1120-221 (Aug. 1985)). 

Moreover, the Commission has found that “even absent a fire, accumulations of damp or wet 

coal, if not cleaned up, can eventually dry out and ignite.” Black Diamond, 7 FMSHRC at 1121. 

Consequently, even though the accumulations were damp, they were a dangerous condition that 

could result in a fire and smoke inhalation hazard. 

c. Whether the violation was obvious

The unsafe accumulations were readily apparent to Saho. He found widespread 

combustible float coal dust, loose coal, and compact coal. (Tr. 33, 36-37, 71). The accumulations 

were black and were not rendered inert by rock dust. (Tr. 37, 108). Considering the testimony 

and photographic evidence presented at trial, this Court finds the violative condition had been 

clearly obvious. (Tr. 33, 36-37, 71; GX 4-8). 

d. Whether the operator had knowledge of the condition

The Commission has held that an operator's knowledge of a violation may be established 

where the operator “reasonably should have known of the violative condition.” IO Coal Co., 31 

FMSHRC 1346, 1357 (Dec. 2009). As discussed within, there is some question as to how long 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 8

 At hearing, the Secretary introduced a photograph showing an examiner’s initials with 

the date of 8/24/14. (Tr.40-41; GX 5). However, as that examiner did not testify, this Court 

does not find that the initials indicate the accumulations existed since that date. 

38 FMSHRC Page 1093
the operator actually knew of the accumulations’ existence. However, with the two examinations 

that occurred on September 9, 2014, and given the extent of the accumulations shown by the 

photographic evidence, the operator and examiner reasonably should have known of the violative 

condition. (Tr. 33, 36-37, 71; GX-4-8). Thus, this factor weighs in favor of an unwarrantable 

failure finding testified to by the Secretary’s witness. 

e. The operator’s efforts in abating the condition

The Commission has explained that the abatement efforts relevant to the unwarrantable 

failure analysis are those that were made prior to the issuance of the citation or order. 

Consolidation Coal Co., 35 FMSHRC 2326, 2342 (Aug. 2013). Prior to the order being issued, 

there did not appear to be any efforts by the Respondent to abate the condition. Therefore, this 

factor also favors an unwarrantable failure finding. 

f. Whether the operator had been placed on notice that greater

efforts were necessary for compliance

Repeated similar violations may be relevant to an unwarrantable failure determination to 

the extent that they serve to put an operator on notice that greater efforts are necessary for 

compliance with a standard. San Juan Coal, 29 FMSHRC 125, 131 (2007) citing Amax Coal Co., 

19 FMSHRC 846, 851 (May 1997). Additionally, “[t]he Commission has recognized that past 

discussions with MSHA about an accumulation problem serve to put an operator on heightened 

scrutiny that it must increase its efforts to comply with the standard.” Consolidation Coal Co., 23 

FMSHRC 588, 595 (2001)(finding unwarrantable failure where operator was cited 88 times in a 

two year period for § 75.400 violations). Respondent had been issued 107 § 75.400 violations in 

the two years prior for impermissible accumulations of combustible material at Powhatan No. 6 

Mine. (GX 1; Sec’y Post Hearing Br. at 24). In light of these previous § 75.400 violations, it is 

clear that the operator had been placed on notice that greater efforts were required for 

compliance with accumulation violations. 

3. Conclusion

After considering the above Manalapan factors, individually and holistically, this Court 

finds the record clearly supports a finding of unwarrantable failure. 

C. Order No. 8061124

During Inspector Saho’s inspection of the South Mains belt, he issued Order No. 

8061124 for the Respondent’s failure to record in the on-shift examiner’s report the 

accumulations cited in Order No. 8061123. 30 C.F.R. § 75.363(b) requires that: 

A record shall be made of any hazardous condition and any violation of the nine 

mandatory health or safety standards found by the mine examiner. This record shall be 

kept in a book maintained for this purpose on the surface at the mine. The record shall be 

made by the completion of the shift on which the hazardous condition or violation of the 

nine mandatory health or safety standards is found and shall include the nature and 

location of the hazardous condition or violation and the corrective action taken. This 

record shall not be required for shifts when no hazardous conditions or violations of the 

nine mandatory health or safety standards are found. 

38 FMSHRC Page 1094
The on-shift examination report for the South Mains belt noted “N/O” or “none 

observed” under the dangerous/hazardous conditions section. (GX 11). The Respondent agreed 

that the accumulations existed during the MSHA inspection, but not that they were visible during 

the examination.9

 (Tr. 57-58, 185). At approximately 2:28 a.m., Foreman Skolnick was in the 

area of the belt tail, and he was at the belt drive again at 6:26 a.m. (during this second exam, 

Skolnick was not near crosscuts 36-39). (Tr. 61, 151, 160, 183, 186). Inspector Saho observed 

the accumulations at approximately 10 a.m. (Tr. 84). 

Inspector Saho’s testimony that the accumulations were up to two feet deep and that no 

coal was coming onto the belt from the 1 South transfer indicate that the accumulations likely 

existed since at least the last time coal came from the 1 South transfer. (Tr. 33, 50). As discussed, 

it was much more likely that coal came along the belt from left to right (starting at the 1 South 

transfer) than that the coal accumulations dropped through a tear exactly as the belt intersected 

with the West Mains transfer, dropping to the bottom of the belt and travelling all the way back 

to the tail of the belt, without leaving accumulations along the way. Consequently, the Secretary 

has shown by a preponderance of the evidence that the accumulations between crosscuts 36 and 

39 existed during the on-shift examinations and that they were not properly recorded. Therefore, 

Order No. 8061124 is affirmed. 

Order No. 8061124 was issued as S&S, and reasonably likely to result in lost workdays 

or restricted duty affecting two people. Respondent does not argue the potential S&S or lost 

workdays or restricted duty affecting two people. (Tr. 11-12, 248-49). However, the Respondent 

does contest the high negligence and unwarrantable failure assessments. 

1. High Negligence

The Secretary has met the burden of proving high negligence. As discussed above, it is 

more probable that the accumulations between crosscuts 36 and 39 had existed during the onshift examinations and that there was a failure to report such. The two feet deep accumulations 

and 1 South transfer not being used on September 9, 2014, indicate the § 75.400 violation had 

existed prior to the on-shift exams. (Tr. 33, 50). 

The Respondent had a duty to record any of the nine mandatory health or safety standards 

and to take corrective action. 30 C.F.R. § 75.363(b). Between 2:00 and 2:28 a.m. and 6:00 and 

6:26 a.m., on-shift examinations were made by Foreman Skolnick. (Tr. 60-61). At approximately 

2:00 a.m., Skolnick alleges he examined the South Mains belt to the tail roller, where 

accumulations were later cited by Inspector Saho. (Tr. 61, 151, 160, 183, 186). However, he did 

not report any accumulations and did not undertake to have the coal dust eliminated or the area 

rock dusted. This failure to record the cited accumulations could have caused a fire and smoke 

hazard. Thus, this negligent act by the Respondent put the health and safety of at least two 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 9

 Respondent emphasizes that there were no reported footprints in the accumulations as 

evidence that the accumulations did not exist until after the on-shift examination. (Tr. 89, 119-

20, 240-41). Specifically, the Respondent believes the absence of footprints defeats the 

Secretary’s argument that Foreman Skolnick saw, but failed to report the accumulations during 

his on-shift examination. (Sec’y Post Hearing Br. at 19-20). However, even though footprints 

were not documented by Inspector Saho, this does not prove said footprints did not exist or that 

the accumulations were not present prior to the onshift exam at approximately 2:00 a.m. 

38 FMSHRC Page 1095
miners, an examiner and a belt cleaner, in serious danger. (Tr. 52-53). Such violative conduct 

was more than just ordinary negligence and shows an aggravated lack of care without any clear 

mitigating circumstances. As a result, this Court finds the Respondent’s conduct was properly 

designated as “high negligence” in Order No. 8061124. 

2. Unwarrantable Failure

Given that Order No. 8061124 involves essentially the same facts and unwarrantable 

failure factors/analysis as Order 8061123, this violation also constituted an unwarrantable failure 

on the part of the Respondent. See supra Section B.2. 

For this violation, there was the same obvious condition of accumulations covering 

crosscuts 36-39 that were up to two feet deep. (Tr. 33). Given the depth of accumulations and the 

lack of coal being loaded onto the South Mains belt from the 1 South transfer, this condition 

likely existed longer than one shift. (Tr. 33, 50). The accumulations of two feet of compacted 

coal dust by the tail roller created a fire hazard and posed a high risk of danger, which the 

examiner failed to report. (Tr. 33). The probability of the accumulations lasting longer than one 

shift also indicate that Foreman Skolnick was likely on notice of the condition and still did not 

abate the condition or report it. Finally, the Respondent was on notice that greater efforts were 

necessary for compliance with § 75.363(b) given the 107 § 75.400 accumulation violations the 

Respondent received in the previous two years. (GX 1). 

In considering all of the Manalapan factors, this Court finds the unwarrantable failure 

assessment to be appropriate. Cf. Manalapan Mining Co., 35 FMSHRC at 293. The Respondent 

had a duty to accurately report the accumulations in crosscuts 36-39 and it failed to do so, 

creating the possibility of a fire and smoke hazard for miners. Accordingly, the Secretary has 

shown by a preponderance of the evidence that the violative conduct cited in Order No. 8061124 

constituted an unwarrantable failure and that the Respondent was highly negligent in failing to 

report the § 75.400 violation. 

D. Penalty

In determining the appropriate civil penalty, the Commission applies the statutory criteria 

in § 110(i) of the Mine Act. This section provides: 

In assessing civil monetary penalties, the Commission shall consider the operator's 

history of previous violations, the appropriateness of such penalty to the size of the 

business of the operator charged, whether the operator was negligent, the effect on the 

operator's ability to continue in business, the gravity of the violation, and the 

demonstrated good faith of the person charged in attempting to achieve rapid compliance 

after notification of a violation. In proposing civil penalties under this chapter, the 

Secretary may rely upon a summary review of the information available to him and shall 

not be required to make findings of fact concerning the above factors. 

30 U.S.C. § 802(i). 

The Respondent is a large operator, with an annual coal tonnage of 5,550,146 produced at 

Powhatan No. 6 Mine. (GX 1, 9). The parties have stipulated that payment of the civil penalty 

proposed by the Secretary will not affect the Respondent’s ability to remain in business. J.S. 10. 

38 FMSHRC Page 1096
Order No. 8061123 was assessed as S&S with lost workdays or restricted duty. (GX 1). This 

court has affirmed the high negligence assessment and the unwarrantable failure designation. 

The gravity of injury was high due to the fire and smoke inhalation dangers posed by the 

accumulations. While there was compliance with the order in the two hours after the order was 

issued, the other statutory criteria weigh heavily against the Respondent. (GX 1). Thus, the 

originally proposed penalty for this violation was appropriate. Accordingly, Respondent is 

assessed a civil penalty of $8,421.00. 

Given that the violative conduct in Order No. 8061124 has been assessed as S&S with 

lost workdays or restricted duty, and given the high negligence and unwarrantable failure 

findings, and having considered all of the statutory criteria in § 110(i), this Court finds the 

Secretary’s originally assessed penalty to be appropriate. (GX-9). Additionally, as the same 

circumstances involving the mine size, ability to remain in business, gravity, and compliance 

apply to this order, the proposed civil penalty of $6,115.00 is affirmed. 

VII. Conclusion

This court AFFIRMS Order No. 8061123 and Order No. 8061124. Consequently, it is

ORDERED that Respondent pay the Secretary of Labor the sum of $14,536.00 within 30 days 

of the date of this Decision.10 Upon receipt of payment, this case is hereby DISMISSED. 

/s/ John Kent Lewis 

John Kent Lewis 

Administrative Law Judge 

Distribution: 

Helga Spencer, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630E, The Curtis 

Center, 170 S. Independence Mall West, Philadelphia, PA 19106 

Jason W. Hardin, Esq., Fabian VanCott, 215 South State Street, Suite 1200, Salt Lake City, UT 

84111 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 10 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 

63179-0390 

38 FMSHRC Page 1097
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May 16, 2016 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

BLUE DIAMOND COAL COMPANY, 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 2014-0620 

A.C. No. 15-17497-354134

Mine: Mine No. 68 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY

Before: Judge McCarthy 

This case is before me upon a Petition for the Assessment of Civil Penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). 

The Respondent has filed a Notice of Withdrawal of Contest, which I will construe as a 

motion to approve settlement. The Respondent has agreed to pay the $139,100.00 penalty 

proposed by the Secretary. 

Blue Diamond Coal Company’s parent company, James River Coal Company, filed for 

Chapter 11 Bankruptcy Protection on April 7, 2014 in the United State Bankruptcy Court for the 

Eastern District of Virginia, In Re James River Coal Co. Et al., Case No. 31848-KRH (E.D. 

Va.). Section 362(a) of the Bankruptcy Code provides for an automatic stay of the 

commencement or continuation of any administrative or judicial proceedings against a Chapter 

11 Bankruptcy petitioner. 11 U.S.C. § 362(a). An exception to this stay, however, is granted by 

§362(b)(4), which exempts from the automatic stay any proceeding by a governmental unit to

enforce its police or regulatory power. 11 U.S.C. §362(b)(4). This exception has been applied

to cases seeking equitable relief and cases concerning monetary damages or penalties. See In re

Commerce Oil Co., 847 F.2d 291, 297 (6th Cir. 1988); United States v. Nicolet, Inc., 857 F.2d

202, 208-10 (3d Cir. 1988); U.S. v. Oil Transport Co., Inc., 172 B.R. 834 (Bankr. E.D. La.

1994); U.S. v. Energy Intern,, Inc., 19 B.R. 1020 (Bankr. S.D. Ohio 1981)(holding that action by

the United States to collect a civil penalty assessed by the Department of the Interior, Office of

Surface Mining, against debtor, for numerous violations of Surface Mining Control and

Reclamation Act of 1977, was one to enforce its regulatory power and thus not stayed by the

debtor's filing of a bankruptcy petition)). The Commission has held that the Secretary of Labor,

38 FMSHRC Page 1098
Department of Labor, and MSHA are “government units” within the meaning of 362(b)(4), as 

the Secretary of Labor brings civil penalty proceedings in an effort to effectuate and enforce the 

mandatory safety standards of the Mine Act. Big Laurel Mining Corp., 37 FMSHRC 1997, 

1997-99 (Sept. 2015); Hidden Splendor Res., Inc., 35 FMSHRC 1548, 1549-50 (June 2013); 

Hoist Excavating, Inc. ̧17 FMSHRC 101, 102 (Feb. 1995); Jim Walter Res., Inc., 12 FMSHRC 

1521, 1530 (Aug. 1990). 

Although the entry of a money judgment by a governmental unit, if related to its police or 

regulatory powers, is not affected by the automatic stay, actual enforcement of such judgment 

must take place through the bankruptcy court. In re Weller, 189 B.R. 467, 471 (Bankr. E.D. Wis. 

1995); NLRB v. Continental Hagen Corp., 932 F.2d 828, 834 (9th Cir.1991); NLRB v. P.I.E. 

Nationwide, Inc., 923 F.2d 506 (7th Cir.1991); Eddleman v. U.S. Dept. of Labor, 923 F.2d 782 

(10th Cir.1991); In re Tauscher, 7 B.R. 918 (Bankr. E.D. Wis. 1981).

Pursuant to 29 C.F.R. 2700.1(b) and Federal Rule of Civil Procedure 12(f), I strike 

paragraph four from the Secretary’s Motion as immaterial and impertinent to the issues 

legitimately before the Commission. This paragraph incorrectly cites and interprets the case law 

and misrepresents the statute, regulations, and Congressional intent regarding settlements under 

the Mine Act. Instead, I have evaluated the proposed settlement in accordance with sections 

110(i) and 110(k) of the Act. 

38 FMSHRC Page 1099
I have considered the representations and documentation submitted in this case, and I 

conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) 

of the Act. The settlement amounts are as follows: 

Citation No. Assessment Settlement

8386785 $3,700.00 $3,700.00 

8386786 $47,200.00 $47,200.00 

8386793 $52,500.00 $52,500.00 

8386794 $35,700.00 $35,700.00 

$139,100.00 $139,100.00 

WHEREFORE, the motion for approval of settlement is GRANTED. 

It is further ORDERED that the operator pay a total penalty of $139,100.00 within thirty 

(30) days of this order.1

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

Distribution: 

Eric Johnson, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue North, 

Suite 420, Nashville, TN 37219 

John Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Circle, 

Suite 375, Lexington, KY 40513 

/med 

1

 Payment should be sent to: Mine Safety & Health Administration, U.S. Department of 

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

38 FMSHRC Page 1100
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May 16, 2016 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

TRIAD UNDERGROUND MINING, 

LLC, 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2014-0610 

A.C. No. 12-02323-354949

Mine: Freelandville West 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY

Before: Judge McCarthy 

This case is before me upon a Petition for Assessment of Civil Penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). 

The Respondent has filed a Notice of Withdrawal of Contest, which I construe as a 

motion to approve settlement. The Respondent has agreed to the $52,500.00 penalty proposed by 

the Secretary. 

Triad Underground Mining’s parent company, James River Coal Company, filed for 

Chapter 11 Bankruptcy Protection on April 7, 2014 in the United State Bankruptcy Court for the 

Eastern District of Virginia, In Re James River Coal Co. Et al., Case No. 31848-KRH (E.D. 

Va.). Section 362(a) of the Bankruptcy Code provides for an automatic stay of the 

commencement or continuation of any administrative or judicial proceedings against a Chapter 

11 Bankruptcy petitioner. 11 U.S.C. § 362(a). An exception to this stay, however, is granted by 

§362(b)(4), which exempts from the automatic stay any proceeding by a governmental unit to

enforce its police or regulatory power. 11 U.S.C. §362(b)(4). This exception has been applied to

cases seeking equitable relief and cases concerning monetary damages or penalties. See In re

Commerce Oil Co., 847 F.2d 291, 297 (6th Cir. 1988); United States v. Nicolet, Inc., 857 F.2d

202, 208-10 (3d Cir. 1988); U.S. v. Oil Transport Co., Inc., 172 B.R. 834 (Bankr. E.D. La.

1994); U.S. v. Energy Intern,, Inc., 19 B.R. 1020 (Bankr. S.D. Ohio 1981)(holding that action by

the United States to collect a civil penalty assessed by the Department of the Interior, Office of

Surface Mining, against debtor, for numerous violations of Surface Mining Control and

Reclamation Act of 1977, was one to enforce its regulatory power and thus not stayed by the

debtor's filing of a bankruptcy petition)). The Commission has held that the Secretary of Labor,

Department of Labor, and MSHA are “government units” within the meaning of 362(b)(4), as

38 FMSHRC Page 1101
the Secretary of Labor brings civil penalty proceedings in an effort to effectuate and enforce the 

mandatory safety standards of the Mine Act. Big Laurel Mining Corp., 37 FMSHRC 1997, 

1997-99 (Sept. 2015); Hidden Splendor Res., Inc., 35 FMSHRC 1548, 1549-50 (June 2013); 

Hoist Excavating, Inc. ̧17 FMSHRC 101, 102 (Feb. 1995); Jim Walter Res., Inc., 12 FMSHRC 

1521, 1530 (Aug. 1990). 

Although the entry of a money judgment by a governmental unit, if related to its police or 

regulatory powers, is not affected by the automatic stay, actual enforcement of such judgment 

must take place through the bankruptcy court. In re Weller, 189 B.R. 467, 471 (Bankr. E.D. Wis. 

1995); NLRB v. Continental Hagen Corp., 932 F.2d 828, 834 (9th Cir.1991); NLRB v. P.I.E. 

Nationwide, Inc., 923 F.2d 506 (7th Cir.1991); Eddleman v. U.S. Dept. of Labor, 923 F.2d 782 

(10th Cir.1991); In re Tauscher, 7 B.R. 918 (Bankr. E.D. Wis. 1981).

Pursuant to 29 C.F.R. 2700.1(b) and Federal Rule of Civil Procedure 12(f), I strike 

paragraph four from the Secretary’s Motion as immaterial and impertinent to the issues 

legitimately before the Commission. This paragraph incorrectly cites and interprets the case law 

and misrepresents the statute, regulations, and Congressional intent regarding settlements under 

the Mine Act. Instead, I have evaluated the proposed settlement in accordance with sections 

110(i) and 110(k) of the Act. 

I have considered the representations and documentation submitted in this case, and I 

conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) 

of the Act. The settlement amount is as follows: 

Citation No. Assessment Settlement

8450217 $52,500.00 $52,500.00 

$52,500.00 $52,500.00 

WHEREFORE, the motion for approval of settlement is GRANTED. 

It is further ORDERED that the operator pay a total penalty of $52,500.00 within thirty 

(30) days of this order.2

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

2

 Payment should be sent to: Mine Safety & Health Administration, U.S. Department of 

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

38 FMSHRC Page 1102
Distribution: 

Edward Hartman, Esq., U.S. Department of Labor, Office of the Solicitor, 230 S. Dearborn St., 

8th Floor, Chicago, IL 60604 

John Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Circle, 

Suite 375, Lexington, KY 40513 

/med 

38 FMSHRC Page 1103
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May 16, 2016 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

EAGLE CREEK MINING, LLC, 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2013-1149 

A.C. No. 46-06750-326262

Mine: Eagle Creek No. 5 Mine

DECISION AND ORDER 

Appearances: Paige Bernick, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for Petitioner 

Mark A. Heath, Esq., Spilman Thomas & Battle, PLLC, Charleston, West 

Virginia, for Respondent 

Before: Judge McCarthy 

I. INTRODUCTION 

“[I]n this world, with great power there must also come -- great responsibility.” Kimble v. 

Marvel Entertainment, LLC, 135 S. Ct. 2401, 2415 (2015) (quoting S. Lee and S. Ditko, 

Amazing Fantasy No. 15: “Spider-Man,” p. 13 (1962)). MSHA inspectors are entrusted with 

great power to ensure a safe working environment for miners in an inherently dangerous 

industry. An MSHA inspector’s testimony is given great weight by the Commission, but abuse of 

position can undermine confidence in the inspection process. 

The credible testimony in the instant case indicates that MSHA inspector Curtiss (Bud) 

Vance III overtly displayed animus toward foreman Jay Curry for prior discipline that Vance 

received pursuant to Curry’s recommendation when both worked at the Old Hickory Mine years 

earlier. Further, inspector Vance prevaricated and cursorily checked the abatement measures for 

some allegations in the citations at issue in this matter. This irresponsible conduct by an MSHA 

inspector does a large disservice by undermining public faith in the agency’s critical inspection 

process. 

38 FMSHRC Page 1104
II. STATEMENT OF THE CASE 

This case is before me upon a Petition for the Assessment of Civil Penalty filed by the 

Secretary of Labor (Secretary) under section 105(d) of the Federal Mine Safety and Health Act 

of 1977 (the Mine Act), 30 U.S.C. §814(d). The parties filed a Joint Motion to Approve 

Settlement of eight of the thirteen citations in Docket No. WEVA 2013-1149. Specifically, the 

parties agreed to settle Citation Nos. 7162341, 7162347, 7162348, 7162349, 7162350, 7162353, 

7162354, and 7162356. I issued a Decision Approving Partial Settlement on September 29, 

2014. Five citations, Citation Nos. 7162340, 7162343, 7162344, 7162346, and 7162351, were 

litigated and remain at issue. 

Four of the five remaining citations involve various alleged violations concerning two 

Caterpillar 777D and two Caterpillar 777F rock haulage trucks cited during Vance’s inspection 

of Eagle Creek Mine #5, a surface bituminous coal mine in Logan County, West Virginia, on 

April 30, 2013. The fifth citation involves a water truck cited on May 2, 2013. The Respondent 

argues that Citations Nos. 7162346 and 7162351 involving the Caterpillar 777F trucks should be 

vacated. Further, Respondent disputes the significant and substantial (S&S) designations for all 

five citations, and the fatality designation as the injury or illness that could reasonably be 

expected to occur for four of the citations. Respondent also disputes the appropriateness of the 

civil penalties proposed by the Secretary. R. Br. 1. Respondent argues that inspector Vance’s 

alleged bias against foreman Curry greatly affected the paper that was written, its classification, 

and the Secretary’s case. R. Br. 1. 

A hearing was held in Charleston, West Virginia. The parties introduced testimony and 

documentary evidence,1

 and witnesses were sequestered.2 The parties filed post-hearing briefs. 

On July 21, 2014, the Secretary filed a Motion to Reopen the Record to admit certified 

data for April and May 2013 from the National Climatic Data Center for Logan, West Virginia. 

ALJ Ex. 1. Thereafter, Respondent filed an Opposition, or in the alternative, a Motion to Permit 

Rebuttal Evidence and to Take Judicial Recognition of Related Evidence. ALJ Ex. 2. The 

undersigned grants both motions and receives all proffered evidence from each party. 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1

 There are two volumes of transcripts. Volume I contains pages 1 to 352, and volume II 

contains pages 1 to 199. Citations to transcript volume I are indicated by “Tr.” followed by the 

page cite. Citations to transcript volume II are indicated by “Tr. II,” followed by the page cite. 

Jt. Exs. 1-6 were received into the record. Petitioner Exhibits (P. Exs.) 1-13 and Respondent’s 

Exhibits (R. Exs.) 1-4 were received into evidence. The Secretary’s post-hearing motion to 

reopen the record, and memorandum of law in support, with attached exhibit A, is received as 

ALJ Ex. 1. Respondent’s opposition and alternative motion to permit rebuttal evidence and take 

judicial notice of related evidence is received as ALJ Ex. 2. 

2

 In resolving conflicts in testimony, I have taken into consideration the demeanor of the 

witnesses, their interests in this matter, the inherent probability of their testimony in light of 

other events, corroboration or lack of corroboration for testimony given, experience and 

credentials, and consistency, or lack thereof, within the testimony of witnesses and between the 

testimony of witnesses. 

38 FMSHRC Page 1105
On the entire record, and after considering the post-hearing briefs and motions, I make 

and rely on the following findings of fact and conclusions of law: 

III. CONTROLLING PRINCIPLES OF LAW 

A. Establishing a Violation

To prevail on a penalty petition, the Secretary bears the burden of proving by a 

preponderance of the credible evidence that a violation of the Mine Act occurred. RAG 

Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), aff’d, 272 F.3d 590 (D.C. Cir. 

2001). A mine operator is held strictly liable for violations that occur at its mine. Spartan Mining 

Co., 30 FMSHRC 699, 706 (Aug. 2008). The operator may avoid liability by showing that it was 

not properly on notice of the violative nature of its conduct. LaFarge North America, 35 

FMSHRC 3497, 3500-01 (Dec. 2013). Even in the absence of actual notice, the Secretary may 

properly charge the operator with a violation when a reasonably prudent person familiar with the 

protective purposes of the cited standard and the factual circumstances surrounding the allegedly 

hazardous condition, including any facts peculiar to the mining industry, would have recognized 

a hazard warranting corrective action within the purview of the applicable regulation. Id.; Ideal 

Cement Co., 12 FMSHRC 2409, 2415-16 (Nov. 1990); Alabama By-Products Corp., 4 

FMSHRC 2128, 2129 (Dec. 1982). 

B. Gravity

The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is 

often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 

1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983), 

aff'd, 736 F.2d 1147 (7th Cir. 1984)); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 

(Apr. 1987)). The seriousness of a violation can be examined by looking at the importance of the 

standard violated and the operator’s conduct with respect to that standard in the context of the 

Mine Act’s purpose of limiting violations and protecting the safety and health of miners. See,

e.g., Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ).

The gravity analysis focuses on factors such as the likelihood of an injury, the severity of 

an injury, and the number of miners potentially injured. The Commission has recognized that an 

assessment of the likelihood of injury is to be made assuming continued normal mining 

operations, without abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 

(Aug. 1985). 

C. Significant and Substantial (S&S)

The Mine Act describes an S&S violation as one “of such nature as could significantly 

and substantially contribute to the cause and effect of a coal or other mine safety or health 

hazard.” 30 U.S.C. § 814(d)(1).3

 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 3

 See also Id. § 814(e), the Mine Act’s pattern-of-violations provision, which is the only 

other provision that mentions S&S, and which defines the term the same way as § 814(d)(1). 

38 FMSHRC Page 1106
In a seminal early decision interpreting this statutory provision, the Commission held that 

a violation is S&S “if, based on the particular facts surrounding the violation, there exists a 

reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

In so holding, the Commission rejected the Secretary’s argument that all violations are S&S 

except technical violations or violations that pose only a remote or speculative risk of injury or 

illness. Id. The Commission found that the Secretary’s interpretation would result in almost all 

violations being categorized as S&S, which would be inconsistent with the statutory language 

and the role the S&S provision is intended to play in the Mine Act’s graduated enforcement 

scheme. Id. at 825, 828. The Commission also found that the Secretary’s interpretation would 

leave little room for inspectors to exercise their independent judgment. Id. at 825-26.4 In 

addition, the Commission found that the Secretary’s interpretation would render the Act’s S&S 

language almost superfluous, and would render the Act’s pattern-of-violation provisions wholly 

punitive by making it almost impossible for a mine to be relieved of withdrawal order liability 

once placed on notice of a pattern of violations. Id. at 826-27. Although the Commission did not 

develop a test to determine whether violations are S&S, it enunciated several guiding principles. 

Specifically, it stated that the term “hazard” denotes “a measure of danger to safety or health” 

and that a violation is S&S if it “could be a major cause” of such a danger. Id. at 827. 

In its subsequent Mathies decision, the Commission set forth a four-prong test for 

determining whether a violation is S&S under National Gypsum. Mathies Coal Co., 6 FMSHRC 

1 (Jan. 1984). To establish an S&S violation, the Secretary must prove: (1) the underlying 

violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of 

danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. Id. at 3-4. The Secretary, mine operators, and the federal 

appellate courts have accepted the Mathies test as authoritative. See Knox Creek Coal Corp. v. 

Sec’y of Labor, 811 F.3d 148, 160 (4th Cir. 2016) (noting federal appellate courts’ uniform 

adoption of Mathies test and parties’ recognition of authority of test); Mach Mining, LLC v. 

Sec’y of Labor, 809 F.3d 1259, 1267 (D.C. Cir. 2016) (applying Mathies criteria); Buck Creek 

Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135 (7th Cir. 1995) (recognizing 

wide acceptance of Mathies criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th 

Cir. 1988) (approving use of Mathies criteria). 

Ensuing case law has solidly established several general principles regarding the proper 

application of the Mathies test. The Commission has held that the S&S determination should be 

made assuming “continued normal mining operations.” McCoy Elkhorn Coal Corp., 36 

FMSHRC 1987, 1990-91 (Aug. 2014) (citing U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4

 The Commission has consistently reiterated that the inspector’s judgment is an 

important element of the S&S determination. However, the concept has generally been raised in 

the context of deferring to the inspector’s opinion that a violation was S&S, rather than in the 

context of examining whether the inspector exercised independent judgment in forming this 

opinion as opposed to merely following the “mechanical approach” advanced by the Secretary 

and rejected by the Commission in National Gypsum, 3 FMSHRC at 825. See, e.g., Wolf Run 

Mining Co., 36 FMSHRC 1951, 1959 (Aug. 2014); Maple Creek Mining, Inc., 27 FMSHRC 555, 

563 n.6 (Aug. 2005); Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998). 

38 FMSHRC Page 1107
(Aug. 1985)). The assumption of continued normal mining operations considers “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,” without any assumptions as to abatement. Black 

Beauty Coal Co., 34 FMSHRC 1733, 1740 (Aug. 2012), aff’d sub nom. Peabody Midwest 

Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014); Rushton Mining Co., 11 FMSHRC 

1432, 1435 (Aug. 1989); see also Knox Creek, 811 F.3d at 165-66 (upholding Commission’s 

rejection of “snapshot” approach to evaluating S&S for accumulations violation); Mach Mining, 

809 F.3d at 1267-68 (citing with approval McCoy Elkhorn’s discussion of operative timeframe 

for S&S). The Commission has repeatedly stated that the S&S determination must be based on 

the particular facts surrounding the violation. See, e.g., Wolf Run Mining Co., 36 FMSHRC 1951, 

1957-59 (Aug. 2014) (remanding S&S finding for further consideration of relevant 

circumstances); Black Beauty, 34 FMSHRC at 1740; Peabody Coal Co., 17 FMSHRC 508, 511-

12 (Apr. 1995); Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988). 

A line of cases beginning with the Seventh Circuit’s decision in Buck Creek, supra, has 

established that an operator cannot rely on redundant safety measures to mitigate the likelihood 

of injury for S&S purposes. See, e.g., Brody Mining, LLC, 37 FMSHRC 1687, 1691 (Aug. 

2015).5

 Finally, Commission precedent indicates that the likelihood of injury is the key 

consideration in determining whether a violation is S&S. Consolidation Coal Co., 18 FMSHRC 

1541, 1550 (Sept. 1996) (comparing S&S inquiry, which focuses on “the reasonable likelihood 

of serious injury,” with gravity inquiry, which focuses on “the effect of the hazard if it occurs”).

The evolving case law, however, has presented conflicting guidance as to how some of 

these principles should be applied. In particular, there is some confusion about how to evaluate 

the facts surrounding the violation and the likelihood of injury under the second and third prongs 

of the Mathies analysis. The Fourth Circuit’s recent decision in Knox Creek, supra, and the 

Seventh Circuit’s decision in Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 

2014), have cast doubt on whether the traditional application of the literal language of the second 

and third prongs of the Mathies test is still valid. 

Traditional Application of Mathies Test

Under the traditional approach, Commission Administrative Law Judges (ALJs) have 

conducted the fact-intensive component of the analysis and evaluated the reasonable likelihood 

of injury at the third prong. In one of its earliest decisions applying the Mathies test, the 

Commission explained that “the reference to ‘hazard’ in the second element [of the test] is 

simply a recognition that the violation must be more than a mere technical violation – i.e., that 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 5

 It is not completely clear whether redundant safety measures are precluded from 

consideration such that it is error to take them into account, which could make it difficult for 

judges at the trial level to discharge their duty of considering all the particular facts surrounding 

the violation, or whether arguments that rely on redundant safety measures are simply disfavored 

as a defense to S&S. Compare Brody Mining, 37 FMSHRC at 1691 (stating that evidence 

regarding redundant safety measures has been “consistently rejected as irrelevant”) with Black 

Beauty Coal Co., 36 FMSHRC 1121, 1125 n.5 (May 2014) (stating only that such measures “do 

not prevent a finding of S&S”) and Buck Creek, 52 F.3d at 136 (“The fact that Buck Creek has 

safety measures in place to deal with a fire does not mean that fires do not pose a serious safety 

risk to miners.”). 

38 FMSHRC Page 1108
the violation present a measure of danger.” U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 

1984). “There is no requirement of ‘reasonable likelihood’” encompassed in this element. 

Musser Engineering, Inc., 32 FMSHRC 1257, 1280 (Sept. 2010). Rather, longstanding 

Commission precedent indicates that the likelihood of harm should be accounted for in the third 

Mathies element, which “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, 6 FMSHRC 

at 1836 (quoted by the Commission on numerous occasions over the next two decades, including 

in Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); Bellefonte Lime Co., 20 FMSHRC 

1250, 1254-55 (Nov. 1998); Zeigler Coal Co., 15 FMSHRC 949, 953 (June 1993); and 

Texasgulf, 10 FMSHRC at 500). As the Commission explained in another early decision, “The 

third element embraces a showing of a reasonable likelihood that the hazard will occur, because, 

of course, there can be no injury if it does not.” Consolidation Coal Co., 6 FMSHRC 189, 193 

(Feb. 1984). 

Following this guidance, ALJs have traditionally applied Mathies by identifying the 

potential hazard at the second prong, and then at the third prong, assessing whether there is a 

reasonable likelihood that the hazard will result in injury under the particular facts of the case at 

hand, with the caveat that normal mining operations are assumed to continue without abatement 

of the violation. The crux of this traditional Mathies analysis is the third and fourth prongs of the 

test, which effectuate National Gypsum’s definition of S&S (reasonable likelihood of a 

reasonably serious injury) and are often combined into a single showing (reasonable likelihood 

that a particular serious injury will occur under the facts of the case). Consistent with this 

approach, MSHA inspectors determine whether a violation meets the criteria for S&S by the 

likelihood of injury and the expected severity of injury, which correspond to the third and fourth 

Mathies elements.6

 

Over the years, it appears that the Commission, with court approval, has developed 

special rules for applying the Mathies test in two situations. First, for violations that contribute to 

the hazard of an ignition, fire, or explosion, the Commission has held that the third Mathies 

element is satisfied only when a “confluence of factors” is present that could have triggered an 

ignition, fire, or explosion, under continued normal mining operations. Zeigler Coal Co., 15 

FMSHRC at 953; Texasgulf, 10 FMSHRC at 501; see, e.g., Paramont Coal Co. Va., LLC, 37 

FMSHRC 981, 984 (May 2015). Second, for violations of emergency safety standards, the 

Commission assumes the emergency when making the S&S evaluation. See, e.g., Cumberland 

Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1027-28 (D.C. Cir. 2013); Mill Branch Coal Corp., 

37 FMSHRC 1383, 1394 (July 2015). 

Effect of Recent Fourth & Seventh Circuit Decisions

The Fourth Circuit’s recent Knox Creek decision issued in January 2016 appears to shift 

the focus of the S&S analysis from the third to the second Mathies prong and to restrict 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 6

 The Secretary’s citation/order form contains boxes for inspectors to check the likelihood 

of injury and the expected severity of injury immediately above the line where they designate the 

violation S&S or non-S&S. Inspectors are trained not to designate a violation as S&S, unless 

item 10.A on the form is marked “reasonably likely,” “highly likely,” or “occurred,” and item 

10.B is marked “lost workdays or restricted duty,” “permanently disabling,” or “fatal.” See

MSHA, PROGRAM POLICY MANUAL, Vol. I, § 104 (2003).

38 FMSHRC Page 1109
consideration of the facts bearing on the reasonable likelihood of injury under the third prong. 

The Fourth Circuit interpreted the second Mathies prong to entail an inquiry into the likelihood 

of harm, stating: 

In our view, the second prong of the test ... primarily accounts for 

the Commission’s concern with the likelihood that a given 

violation may cause harm. This follows because, for a violation to 

contribute to a discrete safety hazard, it must be at least somewhat 

likely to result in harm. 

Knox Creek, 811 F.3d at 162. Significantly, the Fourth Circuit further held that the occurrence of 

the hazard must be assumed under the third prong of the Mathies test. Id. at 161-65. Evidence of 

the likelihood that the hazard will occur is not considered at this prong, according to the Fourth 

Circuit. Rather, the inquiry is whether the hazard, assuming it occurred, would result in serious 

injury. Id. at 162. The particular hazard confronted by the Fourth Circuit was the escape of 

ignited gas into the mine atmosphere through impermissible enclosures. Id. at 164. The parties 

had stipulated that the mine was a “gassy” mine that liberated more than 500,000 cubic feet of 

methane or other explosive gases per day. Id. at 164. Consequently, the ALJ had found that 

methane was reasonably likely to accumulate to explosive concentrations. Id. The ALJ had also 

found that a resulting explosion was reasonably likely to cause serious injuries, but he had 

ultimately declined to find that the violation was S&S because the Secretary had failed to prove 

the likelihood of an ignition. Id. at 154, 164-65. Without discussing the likelihood of ignition, the 

Fourth Circuit deemed the ALJ’s other findings sufficient to satisfy the third Mathies prong. Id.

Previously, in Peabody Midwest Mining, the Seventh Circuit had similarly suggested that 

the S&S analysis assumes the occurrence of the hazard. The violation at issue in that case was 

the mine operator’s failure to erect berms on an elevated roadway. The Seventh Circuit defined 

the hazard as the risk that a vehicle would veer off the roadway and go over the edge. Peabody 

Midwest, 762 F.3d at 616. The operator had argued that a vehicle was not reasonably likely to 

veer off the road. Id. However, the Seventh Circuit stated that the question “is not whether it is 

likely that the hazard (a vehicle plummeting over the edge) would have occurred” but “whether, 

if the hazard occurred (regardless of likelihood), it was reasonably likely that a reasonably 

serious injury would result.” Id.

Peabody Midwest does not discuss the proper role of deference in the S&S context, but 

the Fourth Circuit reached its holding in Knox Creek by deferring to the Secretary’s 

interpretation that the third Mathies element requires proof that the hazard, not the violation 

itself, is likely to cause injury. 811 F.3d at 161. The Fourth Circuit further asserted that this 

interpretation is consistent with a number of prior cases, including the Seventh Circuit’s 

decisions in Peabody Midwest and in Buck Creek, supra, 52 F.3d at 135 (assuming occurrence of 

fire at third Mathies prong when ALJ had engaged in “confluence of factors” analysis at second 

prong); the Fifth Circuit’s decision in Austin Power, supra, 861 F.2d at 103-04 (declining to 

require evidence that the hazard was likely to occur); and the Commission’s decision in Musser 

Engineering, supra, 32 FMSHRC at 1280-81 (stating that third Mathies prong requires showing 

38 FMSHRC Page 1110
that the hazard, not the violation itself, will cause injury). 811 F.3d at 161-62.7

 The Fourth 

Circuit rejected the operator’s argument that under Zeigler Coal Company, supra, the Secretary 

must show that an ignition is reasonably likely under the third Mathies prong. 811 F.3d at 164. 

The Court found this position to be “flatly contradicted” by Musser Engineering and by 

decisions of other federal appellate courts. Id.

The Fourth Circuit emphasized, however, that the Mathies approach that it has adopted 

“still allows plenty of room for a fact-intensive S & S analysis, both under prong two, where the 

Secretary must establish that the violation contributes to a discrete safety hazard, and within 

prongs three and four, where evidence is still necessary to establish that the hazard is reasonably 

likely to result in a serious injury.” Id. Realistically, however, it will likely require very little 

fact-specific analysis to conclude that any given non-technical violation contributes to a discrete 

safety hazard, because the Secretary generally does not promulgate a mandatory health and 

safety regulation (except technical regulations), unless the Secretary has already found that 

violating the standard would contribute to a hazard. Under the third Mathies prong, judges must 

consider all of the facts surrounding the violation, but must assume continued normal mining 

operations without abatement of the violation, and may not rely on redundant safety measures to 

mitigate the likelihood of injury. Now, under Knox Creek and Peabody Midwest Mining, judges 

must also assume that the hazard will actually occur. At some point, so many circumstances are 

either assumed or precluded from consideration that judges will find themselves evaluating the 

likelihood of injury in the abstract. If this is the case, the Commission will have turned its back 

on the principles set forth in National Gypsum because the Mathies test will have become a 

longhand expression for “non-technical violations.” S&S will apply to almost all violations and 

therefore will no longer serve as a statutory tool by which the Secretary can single out the 

violations that he believes the Commission should consider significant and substantial when 

assessing a penalty. 

As noted above, the Fourth Circuit reached its result in Knox Creek by deferring to the 

Secretary’s interpretation of the Mine Act, and the Seventh Circuit reached a similar result. It is 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 7

 It is debatable to what extent Austin Power and Buck Creek truly stand for the 

proposition the Fourth Circuit seems to be embracing, which is that the actual likelihood of 

injury is irrelevant except to the extent necessary to establish a “discrete” hazard at the second 

Mathies prong. In Austin Power, the Fifth Circuit upheld an S&S finding for a fall protection 

violation, reasoning that “[a] danger of falling is a necessary element of this violation, so by the 

very nature of a violation there was a discrete safety hazard.” 861 F.2d at 103. However, the 

hazard had actually occurred and had resulted in a fatality, which may have influenced the 

Court’s failure to require additional evidence of likelihood at the third Mathies prong. 861 F.2d 

at 100. In Buck Creek, the Seventh Circuit did not expressly discuss the proper application of the 

Mathies test, but simply rejected the mine operator’s argument that the ALJ had not put enough 

emphasis on the third and fourth Mathies factors when evaluating S&S for an accumulations 

violation. 52 F.3d at 135. The ALJ had made a finding at the second Mathies prong (rather than 

the third) that there existed a confluence of factors, including fuel sources and ignition sources, 

that could trigger a fire. Id. By contrast, in Knox Creek, the Fourth Circuit did not require a 

“confluence of factors” analysis or a showing that an ignition source existed at any prong of the 

Mathies test. 

38 FMSHRC Page 1111
not surprising that the Circuit Courts have departed somewhat from the traditional Mathies 

analysis because the Secretary’s attorneys, and not the Commission’s, are the ones who argue for 

enforcement of the Commission’s decisions in the Circuit Courts of Appeals. That is strange. It 

should be obvious that since the Secretary is one of the litigating parties before the Commission 

at the trial level, the Commission’s and the Secretary’s views on interpretation of the Act may 

differ. See e.g., The American Coal Co., 36 FMSHRC 1311 (May 2014)(ALJ), petition for 

interlocutory review granted, Unpublished Order dated July 11, 2014. In my view, the 

Commission’s interpretations of Mine Act provisions that turn on adjudication and not 

enforcement should be accorded at least some form of “Skidmore” deference based on the power 

to persuade, as evidenced by the fact that courts and litigants have uniformly followed the 

Commission-derived Mathies test.8 It is within the Commission’s authority to specify how the 

second and third factors of the Mathies test should be applied – particularly, whether the hazard 

must now be assumed at the third factor, and if so, what steps of the test account for the facts 

surrounding the violation – and whether the Mathies test is still intended to effectuate National 

Gypsum’s interpretation of the S&S provisions of the Mine Act or whether the Commission now 

interprets S&S differently. 

Because I am bound by the Mathies test, I will evaluate S&S under this test after taking 

into consideration the more recent approach set forth in Knox Creek and Peabody Midwest 

Mining.

D. Negligence

Negligence is not defined in the Mine Act. The Commission has found “[e]ach 

mandatory standard thus carries with it an accompanying duty of care to avoid violations of the 

standard, and an operator’s failure to satisfy the appropriate duty can lead to a finding of 

negligence if a violation of the standard occurred.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 

(Jan. 1983) (citations omitted). In determining whether an operator meets its duty of care under 

the cited standard, the Commission considers what actions would have been taken under the 

same or similar circumstances by a reasonably prudent person familiar with the mining industry, 

the relevant facts, and the protective purpose of the regulation. See generally U.S. Steel Corp., 6 

FMSHRC 1908, 1910 (Aug. 1984). See also Jim Walter Res., Inc., 36 FMSHRC 1972, 1975, 

1976-77 (Aug. 2014) (requiring Secretary to show that operator failed to take specific action 

required by standard violated); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008) 

(negligence inquiry circumscribed by scope of duties imposed by regulation violated). 

The Mine Act imposes a high standard of care on foremen and supervisors. Midwest 

Material Co., 19 FMSHRC 30, 35 (Jan. 1997) (holding that “a foreman ... is held to a high 

standard of care”); see also Capitol Cement Corp., 21 FMSHRC 883, 892-93 (Aug. 1999) 

(“Managers and supervisors in high positions must set an example for all supervisory and 

nonsupervisory miners working under their direction,” quoting Wilmot Mining Co., 9 FMSHRC 

684, 688 (Apr. 1987)); S&H Mining, Inc., 17 FMSHRC 1918, 1923 (Nov. 1995) (heightened 

standard of care required of section foreman and mine superintendent). 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 8 But see Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1027 (D.C. Cir. 2013) 

(expressly declining to address validity of Mathies test). 

38 FMSHRC Page 1112
Although MSHA’s regulations regarding negligence are not binding on the Commission, 

see Wade Sand & Gravel Co., 37 FMSHRC 1874, 1878 n.5 (Sept. 2015), MSHA defines 

negligence by regulation in the civil penalty context as follows: 

Negligence is conduct, either by commission or omission, which 

falls below a standard of care established under the Mine Act to 

protect miners against the risks of harm. Under the Mine Act, an 

operator is held to a high standard of care. A mine operator is 

required to be on the alert for conditions and practices in the mine 

that affect the safety or health of miners and to take steps necessary 

to correct or prevent hazardous conditions or practices. The failure 

to exercise a high standard of care constitutes negligence. The 

negligence criterion assigns penalty points based on the degree to 

which the operator failed to exercise a high standard of care. 

When applying this criterion, MSHA considers mitigating 

circumstances which may include, but are not limited to, actions 

taken by the operator to prevent or correct hazardous conditions or 

practices . . . . 

30 C.F.R. § 100.3(d). 

MSHA regulations further provide that mitigation is something the operator does 

affirmatively, with knowledge of the potential hazard being mitigated, and that tends to reduce 

the likelihood of an injury to a miner. This includes actions taken by the operator to prevent or 

correct hazardous conditions. 30 C.F.R. § 100.3(d). According to MSHA, the level of 

negligence is properly designated as high when “[t]he operator knew or should have known of 

the violative condition or practice, and there are no mitigating circumstances.” 30 C.F.R. § 

100.3, Table X. The level of negligence is properly designated as moderate when “[t]he operator 

knew or should have known of the violative condition or practice, but there are mitigating 

circumstances.” Id. The level of negligence is properly designated as low when there are 

considerable mitigating circumstances surrounding the violation. Id. 

Recently, the Commission held that Commission judges are not required to apply the 

level-of-negligence definitions in Part 100 and may evaluate negligence from the starting point 

of a traditional negligence analysis rather than from the Part 100 definitions. Brody Mining, LLC, 

37 FMSHRC 1687, 1701 (Aug. 2015); accord Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 

1259, 1263-64 (D.C. Cir. 2016). Moreover, because Commission judges are not bound by the 

definitions in Part 100 when considering an operator’s negligence, they are not limited to a 

specific evaluation of potential mitigating circumstances, and may find “high negligence,” in 

spite of mitigating circumstances, or moderate negligence, without identifying mitigating 

circumstances. Brody, 37 FMSHRC at 1701; Mach Mining, 809 F.3d at 1263-64. In this regard, 

the gravamen of high negligence is “an aggravated lack of care that is more than ordinary 

negligence.” Brody, 37 FMSHRC at 1701 (citing Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 

1998)). Thus, in making a negligence determination, a Commission judge is not limited to an 

evaluation of allegedly mitigating circumstances and may consider the totality of the 

circumstances holistically. Under such an analysis, an operator is negligent if it fails to meet the 

requisite high standard of care under the Mine Act. Id.

38 FMSHRC Page 1113
E. Penalty Assessment

The Act requires that the Commission consider the following statutory criteria when 

assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness 

of the penalty to the size of the business; (3) the operator’s negligence; (4) the operator’s ability 

to stay in business; (5) the gravity of the violation; and (6) any good-faith compliance after 

notice of the violation. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000); 30 

U.S.C. § 820(i). The Commission is not required to give equal weight to each of the criteria, but 

must provide an explanation for any substantial divergence from the proposed penalty based on 

such criteria. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). 

As I discussed in my final Big Ridge decision, in an effort to avoid the appearance of 

arbitrariness, I look to the Secretary’s penalty regulations and assessment formula as a reference 

point that provides useful guidance when assessing a civil penalty. Big Ridge Inc., 36 FMSHRC 

1677, 1681-82 (July 2014) (ALJ); see also Wade Sand & Gravel, supra, at 1880 n.1 (Chairman 

Jordan and Commissioner Nakamura, concurring). See also Bowles v. Seminole Rock & Sand 

Co., 325 U.S. 410, 414 (1945) (holding that an agency’s interpretation of its own regulation 

should be given controlling weight unless it is plainly erroneous or inconsistent with the 

regulation). This formula is not binding, but operates as a lodestar, since factors involved in a 

violation, such as the level of negligence, may fall on a continuum rather than fit neatly into one 

of five gradations.9

 Unique aggravating or mitigating circumstances will be taken into account 

and may call for higher or lower penalties that diverge from this paradigm. I will also account for 

the fact that, although the violations at issue in this case were written under broad, general safety 

standards, each citation contains a myriad of specific allegations with respect to which the 

Respondent’s history of repeat violations is unavailable. This means that the Secretary’s 

proposed penalty assessment for each citation is based on a violation history that may 

disadvantage the Respondent by capturing prior dissimilar violations that were written under the 

same broad standard, but did not involve the same allegations. See 30 C.F.R. § 100.3(c) 

(indicating that the Secretary’s violation history formula considers, along with the total number 

of prior violations, “the number of repeat violations of the same citable provision of a standard”). 

My independent penalty assessment analysis applies to each of the citations at issue in this case. 

IV. STIPULATED FACTS 

At hearing, the parties agreed to the following stipulations: 

1. Eagle Creek Mining, LLC is subject to the Federal Mine Safety and Health Act of 

1977 and to the jurisdiction of the Federal Mine Safety and Health Review 

Commission. 

2. The presiding Administrative Law Judge has the authority to hear this case and 

issue a decision. 

3. Eagle Creek Mining, LLC has an effect upon commerce within the meaning of 

Section 4 of the Federal Mine Safety and Health Act of 1977. 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 9

 See, for example, my discussion of the negligence penalty criterion for Citation Number 

7162340, infra. 

38 FMSHRC Page 1114
4. Eagle Creek Mining, LLC operates the Eagle Creek No. 5 Mine, Mine 

Identification Number 4606750. 

5. The Eagle Creek No. 5 Mine produced 312,391 tons of coal in 2013, and had 

54,626 hours worked in 2013. 

6. The proposed penalties will not affect Eagle Creek Mining LLC’s ability to 

remain in business. 

7. Respondent, Eagle Creek Mining LLC, abated the citations involved herein in a 

timely manner and in good faith. 

8. P. Exs.1-10 and P. Exs. 12-13 are authentic and admissible. 

9. R. Exs. 1-3 are admissible and R. Ex. 3 is admissible and authentic. 

Jt. Ex. 1. 

V. FURTHER FINDINGS OF FACT, ANALYSIS AND CONCLUSIONS OF LAW

A. Inspector Vance’s Animosity Toward or Bias Against Foreman Curry 

1. Background at the Old Hickory Mine

When Inspector Curtiss (Bud) Vance III10 initially took the stand, he confined his 

testimony to the events of April 30 and May 2, 2013, the days on which he wrote the four 

citations at issue in this case. However, the Respondent subsequently presented evidence 

revealing that Vance and foreman Jay Curry11 have a tangled history. Curry credibly testified 

that Vance and Curry worked together at the unionized Old Hickory Mine in Sharples, West 

Virginia about 1996 or 1997. Tr. II, 55-57. There was some animosity between groups of miners 

at Old Hickory after a merger resulted in changed job responsibilities under the seniority 

provisions of the collective-bargaining contract. Tr. II, 57-59. Curry was a shift superintendent. 

Tr. II, 57. 

Vance was one of four miners suspected of willful damage to equipment by Old Hickory 

foreman Art Hale, who reported to Curry. Tr. II, 60. Curry investigated the sabotage incident and 

Curry and Hale recommended that Vance and the other miners be suspended with intent to 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 10 Curtiss Vance is a surface coal mine inspector at MSHA’s Logan, West Virginia field 

office in District 12. Tr. 21-22. Vance worked for Old Hickory Coal from 1994 until he was laid 

off in 1999. Tr. 23. Vance then worked at various Massey Energy mines from 1999-2006. Tr. 23-

24. Vance operated rock trucks during his mining career, but never performed mechanical repairs

on them. Tr. 160-61. After serving as a surface mine inspector for West Virginia for one year,

Vance joined MSHA in 2007 as an inspector/accident investigator. Tr. 25-26.

11 Jay Curry is the foreman at the Eagle Creek No. 5 Mine. Tr. II, 51. He has over 40 

years of mining industry experience, with 30 years of experience as a foreman. Tr. II, 50-51. 

38 FMSHRC Page 1115
discharge. Tr. II, 60, 63-64. Curry credibly testified that Vance knew of Curry’s recommendation 

because Curry told Vance that they would have to suspend him pursuant to company policy. Tr. 

II, 61, 64. Vance was formally suspended without pay and lost work for about a month. Tr. II, 

61. 

Vance and the other miners filed a grievance under the National Bituminous Coal Wage 

Agreement and the grievance proceeded to arbitration. Tr. II, 62. The arbitrator reinstated Vance 

and two of the other miners with backpay, and expunged the discipline from their personnel files. 

Tr. II, 60-62. One miner’s discharge was upheld. Tr. II, 60-61. 

The Secretary attempted to impeach Curry on cross examination because the alleged 

events occurred almost 20 years ago and Respondent proffered no notes or other documents to 

confirm what actually happened. Tr. II, 113-14. However, Curry testified that company records 

were expunged after the arbitration, and Curry specifically recalled, on questioning from the 

undersigned, that he was present at the arbitration at which foreman Hale was called as a witness, 

but Curry was not. Id. 

During cross examination, Vance denied that he was ever recommended for discipline, 

took any grievance to arbitration, or lost any work while working at Old Hickory. Tr. 161. 

2. Inspector Vance’s April 30, 2013 Statements to Curry and Curry’s 

Follow Up with MSHA District 12 

On April 30, 2013, inspector Vance arrived at Eagle Creek Mine No. 5 to conduct a 

regular EO1 inspection. Tr. 30. Vance met with foreman Curry to tour work areas and to obtain 

an equipment list. Tr. II, 54. Vance then informed Curry that he was going to start checking 

equipment. Id. Curry credibly testified that he asked Vance, “do you need me to go with you?” 

Vance replied, “No, I don’t really want you near me” during the inspection. Tr. II, 54, 65. 

“We’ll just do it the normal way.” Tr. II, 54. 

According to Curry, the normal way meant that Respondent’s chief mechanic, Tony 

Lusk, would accompany Vance. Id. Curry radioed Lusk and told him to proceed to the area 

where Vance was going to start inspecting equipment. Id. In these circumstances, I find no 

violation of Respondent’s section 103(f) walkaround rights, particularly since Respondent does 

not pursue the issue. 

After his conversation with foreman Curry, Inspector Vance inspected four rock trucks 

and shut all four of them down due to alleged safety-related defects. Vance initially denied and 

then could not recall whether he told Curry that he did not want Curry anywhere near him during 

the inspection. Compare Tr. 163 with 203. 

Shortly after the April 30, 2013 inspection, Curry signed an undated letter that was sent 

by Respondent’s corporate safety director to MSHA District 12 manager, Timothy Watkins. Tr. 

II, 65-69; R. Ex. 1. In this letter, Curry mentioned Vance’s statement that Vance did not want 

Curry near him during the inspection and complained that Vance had unfairly documented the 

severity of citations during the April 30, 2013 inspection and other inspections because Vance 

had been discharged from Old Hickory while under Curry’s supervision. R. Ex. 1. In his letter, 

Curry concluded, “I have been a foreman on Eagle Creek #5 for Eagle Creek Mining, LLC for 

five years with a very good citation and incident rate. I feel that my reputation and integrity as a 

38 FMSHRC Page 1116
foreman has been targeted by this particular inspector unfairly. I have had no issues with prior 

inspections or inspectors and wish for a fair inspection by a MSHA inspector other than Mr. 

Vance.” R. Ex. 1. 

The Secretary attempts to impeach Curry’s credibility by emphasizing that Curry’s letter 

(R. Ex. 1) informed Watkins that Curry was Vance’s “direct supervisor” at Old Hickory, while 

Curry testified that he was not his direct supervisor. Tr. II, 113. Curry credibly explained, 

however, that he wrote “direct supervisor” in the letter to Watkins because Curry was charged 

with investigating the sabotage charge against Vance. Tr. II, 113. I find the discrepancy 

immaterial as to whether Vance told Curry on April 30, 2013 that Vance did not want to be near 

Curry during the inspection. I credit Curry’s specific recollection over Vance’s denial, 

particularly since other witnesses for Respondent credibly testified about Vance’s animus toward 

Curry, as explained below. 

3. Other Miners’ Corroborating Testimony Regarding Vance’s Animus 

Toward or Bias Against Curry 

Several witnesses from Respondent’s camp provided testimony that lends credence to 

Respondent’s argument that Vance held a personal vendetta against Curry for the Old Hickory 

incident. According to these Eagle Creek miners, various statements were made by Vance, which 

demonstrated his disdain for Curry.12 The Secretary had the opportunity to cross examine 

Respondent’s witnesses regarding these statements, but elected not to do so. Nor did the 

Secretary elicit any rebuttal concerning these statements after Vance was recalled to the stand. 

Tr. II, 179-182. 

Ballard Smith13 operated rock truck 4058, a 777F model, during Vance’s inspection on 

April 30, 2013. Tr. II, 6-9. Smith had met Vance several years earlier when Vance dated Smith’s 

niece. Tr. II, 33. Smith credibly testified that the first time Vance ever inspected his truck at the 

Eagle Creek No. 5 Mine was about two years prior to the April 30, 2013 inspection. On that 

occasion, Vance asked Smith what he thought about Curry. Tr. II, 33. Smith said, “He’s all 

right.” Id. Vance then allegedly told Smith, “Well, I used to work for him, and I can’t stand 

him.” Id. On questioning from the undersigned, Smith recalled that the conversation took place 

at the Eagle Creek Mine while Vance was “stooped down on my walk rail on the side of my cab 

in my truck.” Tr. II, 46-47. Smith did not recall any other conversation in which Vance indicated 

any type of dislike for Curry. Id. When asked by the undersigned whether Vance indicated why 

he did not like Curry, Smith candidly testified that, “[H]e didn’t go into detail. He just said that 

he used to work for him and he could not stand him.” Tr. II, 47. 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 12 I have carefully considered the alleged out-of-court statements made by Vance to 

Respondent’s miners as they relate to Vance’s bias against Curry. Material and relevant hearsay 

evidence is admissible in Commission proceedings. Ideal Cement Co., 13 FMSHRC 1346, 1350 

n.1 (Sept. 1991) (citing Mid-Continent Res., Inc., 6 FMSHRC 1132, 1135 (May 1984)). In fact,

the Commission’s procedural rules expressly state that “[r]elevant evidence, including hearsay

evidence” is admissible. 29 C.F.R. § 2700.63(a).

13 Smith has 25 years of mining experience, and seven years at Eagle Creek. Tr. II, 7. 

Smith has driven rock trucks for almost 20 years. Tr. II, 7. 

38 FMSHRC Page 1117
Steven Newsome14 operated rock truck 4013, a 777D model, during Vance’s inspection 

on April 30, 2013. Tr. 314-15. The dozer that Newsome normally operated was not operating 

that day. Tr. 348. As more fully explained below, Vance “downed” truck 4013 during his April 

30 inspection after citing Respondent for excessive ball stud and steering linkage slack, leaking 

steering hoses, an excessive audible air leak during brake application, a broken bracket that 

mounted the driver-side mirror, and a broken handrail behind the driver-side door. P. Ex. 3. 

Newsome testified that Vance took “just a couple of minutes” to check for slack in the ball studs. 

Newsome did not know the exact time, but knew that Vance “wasn’t under there long.” Tr. 318-

19. Newsome testified that when Vance signaled for Newsome to move the steering wheel,

Vance “went under the truck a minute or two and then back out.” Id. Newsome testified that

Vance checked the ball studs one time. Tr. 321-22. Newsome further testified that he would have

seen a dial indicator if Vance had been carrying one. Tr. 322.

Newsome testified that after downing Newsome’s truck that day, Vance laughed and said 

“I love it.” Tr. 320. Although Newsome candidly could not testify that the remark pertained to 

Curry because Vance “didn’t specify,” in the absence of rebuttal from Vance, I infer that the 

remark indicated the pleasure that Vance derived from shutting down another one of foreman 

Curry’s trucks on April 30, 2013. Id. 

Newsome also recalled a few prior occasions on the job and one occasion at a Subway 

shop in Logan, West Virginia during which Vance indicated to Newsome that Vance did not like 

Curry. Tr. 328, 348-50. For example, Newsome recalled a prior inspection when Vance was in 

the cab of Newsome’s dozer and asked Newsome what he thought about Curry and then told 

Newsome that Vance did not like him. Tr. 349-350. Newsome also recalled being with a buddy 

and running into Vance at a Subway in Logan, West Virginia. Id. During the conversation, 

Vance indicated that he would make it rough on Curry because Vance did not like him and that 

Vance could make Curry fix whatever Vance wanted Curry to fix, such as air conditioners. Tr. 

350. As noted below, Vance wrote an S&S citation in an effort to make Curry fix an air

conditioner on the first haulage truck inspected on April 30, 2013.

Finally, Respondent’s chief mechanic Tony Lusk testified that on April 30, 2013, when 

Lusk was working on the trucks that Vance had downed, Vance asked Lusk, “You think I got 

him smothered yet? If not, I’ll be back with a few more.” Tr. II, 164-165. Lusk conceded that 

Vance did not mention Curry by name, but Lusk assumed that Vance was referring to Curry. Tr. 

II, 165. As explained below, Vance did come back on May 2, 2013 to cite a water truck for 

additional violations. Based on the totality of this record, I infer that Vance was talking about 

smothering Curry with paper. 

A few weeks after the April 30, 2013 inspection, Lusk signed an undated letter that was 

sent by Respondent’s corporate safety director to MSHA District 12 manager, Timothy Watkins. 

Tr. II, 167; R. Ex. 2. In this letter, Lusk wrote: 

On 4/30/2013 at approximately 8-9:00am Bud approached me after 

he had downed 4013, 4058, and 4045. At that time he told me what 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 14 Newsome has over 14 years of experience in mining and holds a West Virginia surface 

and underground certification. Tr. 314. He has driven rock trucks and dozers for over eight years. 

Tr. 314. 

38 FMSHRC Page 1118
needed to be fixed on those three trucks, he said that he would be 

back with another list in a minute. We went to check the 992G and 

he walked over to me laughing and said “Do you think I have him 

smothered out yet? If not I can get a few more.” He told me that I 

had twenty-four hours to fix the equipment and I explained to him 

that I would not be able to get all the parts in that amount of time. I 

made the repairs to 4058 and 4045 and explained to him how to 

examine the emergency steering on the trucks because they were 

working fine when I checked them. I ordered the rest of the parts 

for the trucks and he told me that if I didn’t have 4013 fixed by the 

end of the day that he would write a “D-order” on it. A few days 

later, he came back to check the equipment and he came to me and 

asked me if we had made the repairs, I said yes and he left without 

checking. He has done this on previously [sic] inspections as well. 

/s/ Tony Lusk 

R. Ex. 2.

4. Vance’s Incredible Denials on Cross Examination 

On cross examination, in addition to denying the Old Hickory suspension, which was 

eventually expunged, and denying that he told Curry that he did not want to be near him during 

the inspection, Vance further denied that he ever told any miners at the Eagle Creek Mine that he 

did not like Curry. Tr. 162. Vance also denied that he ever asked an Eagle Creek miner about his 

impression of Curry. Id. Further, Vance said he did not recall talking to chief mechanic Lusk 

during the April 30, 2013 inspection, unless it was documented in Vance’s inspection notes. Tr. 

163-64. Vance did concede that Lusk was in the same work area as Vance, making repairs to

conditions that Vance cited. Tr. 164-65. Vance did not recall telling Lusk words to the effect,

“Do you think I’ve got him [Curry] smothered out yet? ... If not, I can go get a few more.” Tr.

164. Vance also did not recall or document that Lusk allegedly told Vance that Vance was not

correctly testing the secondary steering on the 777F model haul trucks. Tr. 164-65.

5. Conclusions 

After considering all the evidence before me, I credit the evidence presented by the 

Respondent regarding Vance’s history at the Old Hickory mine and his animosity toward or bias 

against foreman Curry. I credit Curry’s specific recollection of the disciplinary incident at the 

Old Hickory mine over Vance’s general denials that he was ever disciplined or lost any work at 

Old Hickory. I find it difficult to believe that Curry would spin such an elaborate tale in an effort 

to avoid liability for the instant citations. I further credit Curry’s testimony that Vance told him 

“I don’t really want you near me” during the April 30, 2013 inspection. Tr. II, 54, 65. Overall, 

Curry’s testimony struck me as forthright and unembellished. Tr. II, 114. He was persuasively 

conveying facts as he recalled them. His recall was detailed and specific, in contrast to Vance’s 

general, unconvincing denials. Tr. 163, 203. 

I also credit the testimony of Smith, Newsome, and Lusk over Vance’s blanket, selfserving denial of and failure to recall anything that would cast doubt on his good faith, including 

38 FMSHRC Page 1119
his denial that he told any miners at the Eagle Creek Mine that he did not like Curry, his denial 

that he asked any Eagle Creek miners about their impressions of Curry, and his denial that he 

mentioned “smothering” Curry during the inspection. The testimony from Smith, Newsome, and 

Lusk corroborates foreman Curry’s belief, first expressed in his letter to the MSHA District 12 

manager, that he was being targeted by inspector Vance. 

Based largely on the above findings, I conclude that Vance did not exercise good faith in 

dealing with Curry. I find that Vance was biased against and out to get Curry because of his 

discipline years earlier at the Old Hickory Mine. In my view, this is a fundamental infringement 

of fair and impartial due process of law. It is against the foregoing backdrop of Vance’s animus 

toward Curry that I assess the validity of the four citations that Vance wrote on April 30, 2013, 

and the additional citation that Vance wrote on the water truck when he returned to the Eagle 

Creek No. 5 Mine on May 2, 2013. 

B. The April 30, 2013 Inspection of Rock Trucks and Inspector Vance’s Typical 

Inspection Procedures 

Upon arriving for his April 30, 2013 EO1 inspection at the Eagle Creek No. 5 Mine, 

Vance had a brief conference with Curry about the inspection, checked the on-shift examination 

book to find no violations recorded, and arranged to inspect mobile equipment (haul trucks) at 

the pump house pit area after performing an imminent danger run. Tr. 30, 32-33, 35. Four rock 

trucks were then driven to the flat and level pit area for inspection. Tr. 35. Two of the large 

haulage trucks were Caterpillar 777D models and two were Caterpillar 777F models. Tr. 173. 

Vance proceeded to check the brakes, steering, secondary steering, gauges, and other various 

parts of the trucks for safety hazards or defects. Tr. 39-41; P. Exs. 1, 3, 5, and 7. 

Vance testified about his typical vehicle inspection process. Initially, Vance discusses the 

inspection process with the driver in the operator’s cab and checks to see if pre-operational 

inspections have been performed and recorded for each vehicle. Tr. 37, 40-41. Vance inspects 

the seats, seat belts, gauges, warning alarms, and brakes, while in the operator’s cab. Tr. 41. 

Vance utilizes a “pull-through” brake test in which the driver releases the parking brake so that 

Vance can check whether the service brake and secondary brakes will hold and not pull through 

at certain revolutions per minute (rpms). Tr. 41-42. 

After exiting the cab, Vance checks the lights, signals, horns, and wipers via hand-signal 

communication with the operator. Tr. 43. Vance walks around the vehicle to check tires, rims, 

and fuel tanks and to check for any hydraulic oil or fuel leaks. Tr. 43. At the back of the vehicle, 

Vance checks the backup lights, brake lights, turn signals and stabilizing bar. Tr. 44. 

Vance also directs the driver through several steering movements to check the steering 

linkage system under the truck and determine if any leak or excessive movement is present. Tr. 

45, 47. As the operator turns the steering wheel left or right, Vance crouches under the truck to 

check the steering components and look for any slack or horizontal movement in the ball stud of 

the steering jack. Tr. 46-47. In response to questioning from the undersigned, Vance testified that 

he never has to get down on a knee or lie on the ground to check for slack in the steering linkage 

ball joints. Tr. 46. 

38 FMSHRC Page 1120
Vance testified that if any slack or movement is observed, Vance measures the slack 

using a dial indicator, before citing the play in the ball joint. Tr. 46-47, 183. Vance testified that 

he sets up his dial indicator on the steering linkage under the vehicle and then directs the driver 

to steer back and forth while Vance measures the slack between the ball stud and steering jack. 

Tr. 186. 

At hearing, Respondent proffered into evidence portions of Caterpillar’s maintenance 

manuals for the 777F and 777D models. See R. Exs. 3 and 4, respectively. The record was left 

open for the Secretary to proffer additional pages from the 777D manual (R. Ex. 4), and the 

Secretary did so after the hearing with pages that covered inspection of brakes and inspection of 

steering linkage assemblies. P. Ex. 11; see Tr. 171. 

The Operation and Maintenance Manual for the 777D models provides that the steering 

linkage inspection should take place on a level surface, with the parking brake engaged. The 

magnetic base of the dial indicator should be placed on the steering rod link to check for 

horizontal wear on the ball studs. The dial indicator should then be placed on the side of the 

steering arm and set to zero. The front wheels should be turned left and right. The amount of 

horizontal play should be recorded by placing the dial indicator on the side of the center arm, 

repeating the wheel movement, and then recording the measurement on the dial indicator. The 

indicator is then reset to zero. See P. Ex. 11, p. 194. 

When asked how long it takes to set up a dial indicator to measure ball stud slack on a 

steering jack assembly, foreman Curry testified as follows: 

By the time you got it out of the case and put it on the 

mount and set it up, it would probably take you -- if you was real 

good with it and the truck was real clean, it would probably take 

you 15, 20 minutes to get everything together and get set and have 

the proper work done. 

If you have to clean mud and material off so the magnet 

will stick, you know, it could take longer. 

Q. And typically, when you’re under a rock truck on a

surface mine is everything clean to be able to – 

A. No. Because -- the old saying on a surface mine, if it’s

not raining and muddy, we water the roads to make it muddy. 

Q. All right. Have you ever seen Mr. Vance use a dial

indicator on your job? 

A. No sir.

38 FMSHRC Page 1121
Q. Has any of your –Mr. Lusk or anybody else ever

reported seeing him use a dial indicator? 

A. No.

Tr. II, 82-83. 

At hearing, Curry was shown his own dial indicator as a demonstrative exhibit, and he 

briefly described the components and how calibrated measurements were taken. Tr. II, 82-90. 

Curry explained that dial indicators are mounted by a magnet and must be attached to a clean 

stationary area that is free of dirt and mud to record the measurement. Tr. II, 82, 86-87. Curry 

further testified that the dial indicator must be calibrated regularly, and the measurement should 

be taken two to three times to ensure that it is accurate. Tr. II, 85, 91.15 

Inspector Vance testified that although there is no regulatory standard regarding play in 

ball joints, MSHA generally adheres to the manufacturer’s recommendations. Tr. 192. 

Caterpillar’s Operation and Maintenance Manual for the 777D model provides that “[t]he 

maximum amount of horizontal wear is 1.02 mm (.040 inch [40,000ths]). If any of the 

measurements exceed this limit, replace the worn ball studs and the outer bearing races.” R. Ex. 

4, p. 194, para. or step 9. 

As part of his standard vehicle inspection, Vance also checks the secondary steering. Tr. 

47-48. Secondary steering is an emergency or backup steering mechanism designed to allow a

driver some limited steering to control and stop the vehicle if the engine loses power or the

vehicle runs out of fuel. Tr. 63-64, 197. Vance testified that during the secondary steering test,

the driver remains in the cab to operate the steering. Tr. 48, 53. Vance then checks the secondary

steering by hitting the “kill switch” on the front bumper to simulate a power loss, with the

steering set in the automatic position, and then he listens for the electric motor to come on

automatically. Tr. 49, 53. Vance further testified that the driver can check the secondary steering

himself by shutting the vehicle off and pushing the steering from automatic to manual and then

manually checking the steering. Tr. 53.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 15 Curry testified that a typical dial indicator has a 2! inch gauge. Tr. II, 84. 

Measurements circle the gauge in 10,000ths-of-an-inch increments or smaller increments of 

1,000ths. Id. The gauge measures up to 1 inch (in thousandths). Tr. II, 84-85. These indicators 

are incredibly precise and must be calibrated regularly. Tr. II, 85. To use the indicator, a 

measuring stem on the indicator is placed onto a piece of equipment. Tr. II, 86. When a ball stud 

or tie rod is moved, a needle on the dial indicator will move to measure the slack. Id. The needle 

moves because the indicator has a magnetic bracket or brace that is placed on metal equipment 

for measurement. Tr. II, 88. The position of the indicator can be adjusted by vertical and 

horizontal rods. Tr. II, 88-89. To measure the play in a ball stud, the indicator is mounted to a rod 

and once the ball stud hits a component on the indicator, the needle on the gauge moves 

accordingly. Tr. II, 89. 

38 FMSHRC Page 1122
The Caterpillar Operation and Maintenance Manual for the 777F model lists the 

following steps for testing the secondary steering: 

1. Stop the machine on a level surface. Place the transmission control in

the PARK position and stop the engine.

2. Push the top half of brake release and secondary steering switch and

hold the switch in order to manually activate the brake release and

secondary steering pump. The switch is located on the overhead switch

panel.

3. Turn the steering wheel completely to the right. Then turn the steering

wheel completely to the left.

4. Release the switch in order to return the switch to the AUTO position.

R. Ex. 3, at 2-3.

The Caterpillar Operation and Maintenance Manual for the 777D lists the following steps 

for testing the secondary steering: 

1. After you stop the engine, push the top half of the brake release and

secondary steering switch in order to select the MANUAL position.

2. Turn the steering wheel completely to the right. Then, turn the steering

wheel completely to the left.

3. Return the switch to the AUTO position.

R. Ex. 4, p. 193.

Thus, as Vance acknowledged on cross examination, testing the secondary steering for 

777D model is different from testing the secondary steering for the 777F model. Tr. 173. To test 

the steering for the 777D, the manual indicates that the operator must "stop the engine, push the 

top half of the brake release and secondary steering switch in order to select the manual 

position." R. Ex. 4; Tr. 179-180. By contrast, when testing secondary steering in the 777F model, 

the switch has to be held in while the test is performed. Tr. 180; Tr. II, 11. Once the button is 

depressed, a light comes on to indicate that the secondary steering is on. Tr. II, 13. Vance 

acknowledged that the 777D secondary steering test would not work on a 777F model because 

the operator must manually hold the switch in on the 777F model for the secondary steering to 

engage. Tr. 180-81, 250-51. 

1. Citation No. 7162343 – Caterpillar 777D, Truck No. 4016

The first truck that Vance inspected on April 30, 2013 was a Caterpillar 777D (No. 4016) 

used to haul overburden from the pit area to the dumpsite during the mining process. Tr. 38-40, 

55. The truck weighed approximately 100 tons. Tr. 39. The cab was about ten to twelve feet off

the ground. Id. Chief mechanic Lusk was present when Vance began the inspection of the

777Ds. Tr. II, 136-38, 177-78.

38 FMSHRC Page 1123
Upon checking inside the cab, Vance discovered that the air conditioning was not 

working. Tr. 55. When engaged, the system would not blow cold air. Id. Lusk testified that he 

told Vance even before he inspected the truck, that the air conditioning was down and the parts 

were on order, but would not arrive until morning. Tr. II, 153. 

After the cab inspection, Vance inspected outside of the vehicle. Tr. 42. Vance testified 

that he observed excessive slack in the inside ball stud on the left-side steering jack when the 

driver steered from left to right. Tr. 55-56. Vance testified that he used a dial indicator that 

measured horizontal movement of 70,000ths of an inch between the ball stud and steering jack. 

Tr. 57-59. Vance’s inspection notes indicate side-to-side movement or slack between the ball 

stud and the steering jack, which measured 70,000ths of an inch with a dial indicator. P. Ex. 2, p. 

3. Vance relied on the manufacturer’s aforementioned out-of-service criteria of 40,000ths of an

inch to determine that the truck should be taken out of service and repaired. Tr. 53, 59, 62; P. Ex.

2, p. 3.

Vance also testified that the nut, which holds the ball stud in place, was moving. Tr. 60. 

Upon questioning from the undersigned, Vance testified that he did not determine whether the 

nut was physically loose because it was too big to check. Tr. 60-61. Vance acknowledged that 

the cotter pin was still in place. Tr. 61. Vance’s notes include a diagram of the steering jack and 

nut. P. Ex. 2, p. 3. Vance concluded that a ball stud, with play of more than 40,000ths of an inch, 

was reasonably likely to compromise steering, particularly since the slack exceeded Caterpillar’s 

out-of-service criteria. Tr. 62; P. Ex. 2, p.3. 

Lusk testified that he was present right beside Vance when Vance began his examination 

for slack in the ball studs and that Vance did not use a dial indicator. Tr. II, 179. In fact, Lusk 

testified that Vance did not use a dial indicator when inspecting any of the haul trucks that day. 

Id. 

On rebuttal, the Secretary recalled Vance, who brought his own dial indicator to the 

witness stand. Tr. II, 181. In response to leading questions, Vance testified that this was the dial 

indicator that he used on April 30 and May 2, 2013. Tr. II, 182. I note that aside from this 

questioning, however, there is no indication that Vance ever used a dial indicator on May 2, 

2013, as he did not, in fact, write any violations that would have required the use of a dial 

indicator on that day, but only cited a water truck for non-functioning brakes and a broken water 

bed bracket mount. See P. Ex. 9. Contrary to Curry’s testimony that it generally takes 15-20 

minutes to set up the dial indicator, Vance testified that it would only take him about 5 minutes 

or less to set up the dial indicator. Tr. II, 183. 

On extensive cross-examination following rebuttal, Vance testified that he has never 

calibrated his dial indicator. Tr. II, 184. Vance testified that “you calibrate it each time by going 

back to zero.” Id. Vance testified that he leaves the dial indicator assembled in its padded pelican 

case in his truck, and retrieves it each time he is going to write a violation for slack in a ball 

joint. Id. Specifically, Vance testified that “[w]hen I’m going to write a violation, I use this for 

my notes. To get my measurement. Only when I’m going to write a violation.” Id. Although 

Vance took numerous pictures during his inspection, he did not take any pictures of the 

measurement(s) that he claims to have observed with his dial indicator. Tr. II, 185. 

38 FMSHRC Page 1124
Vance then testified that when he sets up the dial indicator, he tells the operator that he is 

going to set it up. “Stay still. Don’t move the steering wheel.” Tr. II, 186. Then, in response to 

questioning from the undersigned as to whether Vance tells the operator whether he is going to 

use a dial indicator, Vance testified, “No. I just signal for him not to move. I go get it out of the 

pickup, and then go back under the truck.” Tr. II, 186. 

On further cross examination, Vance acknowledged that the operator should see him 

walking to his truck and carrying back the dial indicator, “if he’s watching.” Tr. II, 187. Vance 

testified that after he retrieves the dial indicator, he tells the operator what side he is going to 

check. Tr. II, 187. Vance testified that he usually takes just one measurement, unless he has a 

problem with the dial indicator. Tr. II, 188. 

When asked whether he needed a clean spot to set up the dial indicator, Vance testified 

that it depends on whether the truck is kept clean or not. Tr. II, 191. Vance was then asked, 

“Well in a mine that’s a surface mine, running over dirt and mud, don’t you generally have mud 

you got to clean and get it ready before you can attach that magnet?” Tr. II, 191. Vance testified, 

“Not normally, no. It’s according to how often the mine operator steam cleans his equipment.” 

Id. When shown P. Ex. 4, p. 1, a picture of the left-side steering jack cited for excessive slack on 

the 777D Caterpillar Truck No. 4013 written up in Citation No. 7162344 (P. Ex. 3), discussed 

below, Vance was asked what he used to clean mud and dirt from the area to mount the dial 

indicator. Tr. II, 193-95. Vance testified, “I usually just wipe it off with my hand. If I need to, my 

shirt,” or a “rag in my pocket.” Id. 

Vance testified that he next checked the secondary steering on Truck No. 4016. Tr. 62. 

Vance testified that he shut off the kill switch and did not hear the electric motor for the 

secondary steering turn on. Tr. 62-63. Vance testified, “I shut it off and the driver never could 

get it to function.” When asked whether he gave the driver an opportunity to try to have it turn 

on, Vance testified, “Yes. And he [the driver] seemed to have good working knowledge of it, so I 

assumed that he was trained and knew how to operate it.” Tr. 63. Vance’s notes indicate that the 

secondary steering was not functioning, so if the truck lost power, the driver would have no other 

steering during daily, off-road, haulage of overburden. P. Ex. 2, p. 3. 

Based on this inspection, Vance issued Citation No. 7162343 and served Curry. P. Ex. 1. 

The Citation alleged a significant and substantial (S&S) violation of 30 C.F.R. § 77.404(a), 

which requires that "[m]obile and stationary machinery and equipment shall be maintained in 

safe operating condition and machinery or equipment in unsafe condition shall be removed from 

service immediately.” The Condition or Practice narrative alleges: 

1. Excessive slack existed on the inside ball stud located on the left side

steering jack. Excessive slack existed when the truck was steered in either

direction. Also, slack existed where the nut was located on the ball stud.

2. The secondary steering was not functioning when tested.

3. The AC was not functioning when tested.

38 FMSHRC Page 1125
This Truck is being operated in the Pump House Pit area. It is reasonably 

likely if these conditions continue to exist an accident will occur. . . . 

P. Ex. 1.

The citation was designated as significant and substantial because the alleged violative 

conditions contributed to a hazard that was reasonably likely to result in a fatal injury, with 1 

person affected, as a result of Respondent’s moderate negligence. P. Ex. 1. The proposed penalty 

was $12,248. Vance testified and documented that the following measures were taken to abate 

the conditions cited: (1) a new ball stud was installed; (2) a new solenoid was installed; (3) and a 

new compressor was installed and the AC charged up. Tr. 75-76; P. Ex. 1. 

Lusk performed the repairs on the truck. When asked by the undersigned whether the 

secondary steering was functioning on Truck No. 4016, Lusk testified, “I would say that it was. 

Oh yes.” Tr. II, 153. When asked by Respondent, what was wrong here, Lusk testified, “we had a 

wire broke.” Id. Lusk was then asked, “[W]ere you able to find out what the condition of the 

secondary steering was at the start of the shift, when the pre-operational examinations would 

have been done?” Id. Lusk testified, “Yeah. They’re not allowed to move it. If the secondary 

steering doesn’t come on, they’re not allowed to pull out. But you get a lot of dirt and mud under 

them and it pulls wires. And, you know, it’s hard to keep up with them.” Tr. II, 154. 

Contrary to abatement measures listed in Vance’s citation, Lusk testified that no solenoid 

was installed on the secondary steering. Rather, Lusk testified the he simply repaired the wiring. 

Tr. II, 154. Lusk confirmed that a ball stud and a compressor were installed. Id.. Although Lusk 

replaced the ball stud on Truck 4016 in order to abate the citation, Lusk did not confirm Vance’s 

allegations of excessive slack on the inside ball stud located on the left side steering jack. 

With regard to his S&S designation, Vance testified that if the ball stud is moving, the 

steering jack can pop off causing the driver to lose control and the truck to wreck. Tr. 61-62. 

Vance essentially supported his reasonably likely and fatal designations with regard to the 

excessive slack by testifying that the truck regularly hauled 50 to 100 loads of overburden a day 

on steep grades and elevated roadways and dumpsites. Tr. 72. Therefore, if the steering jack 

popped off the ball stud, a driver could be killed if he lost control of the vehicle or the truck 

collided with another truck that operated in close proximity in the pit area. Tr. 61-62, 67-68.16 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 16 Vance testified that while working at Massey Energy sometime between 1999 and 

2006, he witnessed two incidents where a truck driver ran into a spoil bank. Tr. 66-67, 195. 

Vance was operating a dozer during both incidents. Vance testified that when he went to check 

on the driver, he noticed that the steering jack had popped off the ball stud. In both instances, the 

driver was not injured. Tr. 66-67. On cross examination, Vance conceded that he played no role 

in the investigation of the accidents and did not have any personal knowledge about what caused 

the steering jacks to pop off the ball studs. Tr. 195-96. I find that Vance’s vague and general 

anecdotal testimony is not particularly probative as to whether the alleged excessive slack on the 

steering assembly of Truck No. 4016 contributed to a hazard that was reasonably likely to result 

in a fatal injury. 

38 FMSHRC Page 1126
On cross examination, Vance conceded that the steering jack would have to pop off the 

ball stud for the driver to lose control of the truck and be injured. Tr. 205. Vance further testified 

that the 70,000ths of alleged slack satisfied the out-of-service criteria, but Vance could not 

confirm that it would cause the steering jack to pop off the ball stud. Id. 

With regard to the secondary steering, Vance testified that in an emergency, with loss of 

power, a functioning secondary steering mechanism would permit limited control of the truck to 

avoid an accident until it could be stopped safely. Tr. 68. Vance’s notes indicate that if the 

steering fails and the truck wrecks, the driver would receive fatal injuries. P. Ex. 2, p. 3. 

With regard to the broken air conditioner, Vance testified that the cab of the trucks 

become extremely hot and it is hard to just roll down the window like in a pickup because the 

driver does not wear a respirator and would be exposed to dust. Tr. 69. Vance recalled an 

incident in which a driver purportedly blacked out because heat in the cab triggered the driver’s 

high blood pressure. Tr. 69-70. I give little weight to this non-specific, general testimony.17 

 Vance designated Respondent’s negligence as moderate. He determined that the amount 

of slack in the ball stud developed from excessive wear over a period of time greater than one 

shift, that the slack was obvious, that no defects were noted on the pre-operational examination, 

and that Respondent presented no evidence that it was performing two-man “buddy” checks. Tr. 

74; P. Ex. 2, p.3.18 

Newsome, the driver of truck 4013 (discussed below), testified that he could not check 

steering joints by himself and “sometimes once a week, once every two weeks, we buddy up. 

One gets in the truck and you check the ball studs and all that. Alone, you can’t check them.” Tr. 

316. Newsome testified that on April 30, Vance did not ask Newsome how he conducted his preoperational examinations or whether Respondent ever used buddy checks. Id.

Smith, the driver of truck 4058, testified on cross examination that buddy checks were 

performed more or less weekly. Smith testified that the greaser/fueler, who was a “decent 

mechanic,” would pull the drivers over about once a week to check for movement in the ball 

studs. Tr. II, 38. 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 17 Curry recalled that the air temperature that morning was below freezing at 25°F. Tr. II, 

73-74. He testified that the outside temperature that time of year is damp, with a little freeze

during the morning that will thaw out during the day. Id. The Secretary argues in his motion to

reopen the record that the certified weather data for Logan, West Virginia shows that on April

30, 2013, the maximum temperature was 71°F with a minimum temperature of 53°F, and a trace

of rain. ALJ Ex. 1 at 6, citing Ex. A, p. 4. Contrary to the Secretary, I do not find this source

“especially reliable and probative” since the elevation of the Eagle Creek Mine is over 1,000 feet

higher than Logan, West Virginia, where the data was collected. ALJ Ex. 2, Affidavit of Richard

R. Stacey Jr.; see also n. 19, below. I find that the Secretary’s certified weather data does not

materially contradict Curry’s recollection and testimony. Curry generally struck me as a truthful

and forthright witness.

18 It is undisputed that two men are needed to inspect the ball joints in the steering 

linkage assembly. One miner must be in the cab to manipulate the steering, while another must 

be under the vehicle checking for movement or play in the ball joints. Tr. 316; Tr. II, 38, 100. 

38 FMSHRC Page 1127
Foreman Curry testified that Caterpillar recommends checking for slack in the ball studs 

every 1000 hours, which equates to about every 100 mining days for Respondent’s rock trucks, 

which operate about 10 hours per day. Tr. II, 100. Curry further testified that Respondent 

checked the ball studs every week or week and one-half. Tr. II, 100-01. Curry testified that the 

777D models that Vance cited for excessive slack had been parked for about three months and 

there were intentions of removing them from the job, but higher management apparently decided 

to put them back in service about a week prior to Vance’s April 30 inspection. Tr. 101-02. 

a. Legal Analysis Concerning Citation 7162343

i. The Alleged 77.404(a) Violation

Section 77.404(a) imposes two duties upon an operator: (1) to maintain machinery and 

mobile equipment in safe operating condition, and (2) to remove unsafe equipment from service. 

Derogation of either duty violates the standard. Peabody Coal Co., 1 FMSHRC 1494, 1495 (Oct. 

1979). 

777D Caterpillar Truck No. 4016 cited by inspector Vance was mobile equipment. Such 

mobile equipment was in service when cited. The primary issue is whether the truck was 

maintained in safe operating condition. Equipment is in unsafe operating condition under section 

77.404(a) when a reasonably prudent person familiar with the factual circumstances surrounding 

the alleged hazardous condition, including any facts peculiar to the mining industry, would 

recognize a hazard warranting corrective action within the purview of the applicable regulation. 

Ambrosia Coal & Constr. Company, 18 FMSHRC 1552, 1557 (Sept. 1996) (citing Alabama ByProducts Corp., 4 FMSHRC 2128, 2129 (Dec. 1982) (applying identical standard in 

underground coal mines)). 

Applying this test, I find that the Secretary has failed to establish by a preponderance of 

credible evidence that Respondent violated Section 77.404(a) by failing to maintain the steering 

linkage assembly and secondary steering on the haul truck in safe operating condition. I find a 

non-S&S violation with regard to Respondent’s failure to maintain the air conditioner in safe 

operating condition. 

The Allegation of Slack in the Ball Joint 

I credit Lusk that Vance did not use a dial indicator to take any measurements of slack in 

ball joint movement on April 30, 2013. Vance testified that the slack was obvious, which 

undercuts the need for measurements. Vance never showed Lusk his measurements. Although 

Vance took many pictures of cited conditions during his inspection, Vance never took a picture 

of the measurements. In addition, I find it difficult to believe that Vance never had to get down 

on a knee or on the ground to check for slack in the steering linkage ball joints, particularly when 

setting up a dial indicator. Tr. 46. Further, the excessive slack allegations concerning the first 

two rock trucks inspected in the instant citation and Citation 7162344 were verbatim and 

Vance’s purported dial indicator measurements were exactly the same, 70,000ths of an inch. The 

identical wording and measurements cast further doubt on Vance’s claim that he independently 

measured and evaluated each ball joint. 

Most importantly, I observed Vance as a witness and do not believe his testimony or his 

notes indicating that he observed excessive slack that was obvious and used a dial indicator to 

38 FMSHRC Page 1128
measure it. Vance struck me as an unreliable witness, who was out to get Curry and was not 

beyond creating false documentation of dial indicator measurements in an effort to do so. For 

example, Vance wrote that a new solenoid had been installed as an abatement measure to correct 

the secondary steering problem cited on this truck. P. Ex. 1, p. 2. Lusk credibly testified that no 

solenoid was installed. Rather, Lusk just repaired a broken wire. Tr. II, 153-54. I credit Lusk, as 

explained below. Vance did not rebut Lusk’s testimony, even though Citation No. 7162343 

indicates that a new solenoid was installed for abatement purposes. P. Ex. 1. Vance had poor 

recollection of events and abatement measures without reading from or consulting his notes and 

the citations. Tr. 32, 261. Moreover, Lusk’s testimony is supported by R. Ex. 2, in which Lusk 

wrote MSHA District 12 Manager Watkins that when Vance returned to check on abatement 

efforts, Vance asked Lusk if he had made the repairs and then left without checking. 

Similarly, regarding Citation No. 7162346, discussed below, I have credited Lusk’s 

testimony that contrary to abatement measures listed on the citation by Vance, no sensor was 

installed for the brake oil temperature gauge, no sensor was installed for the brake action 

warning light, and no sensor was installed for the fuel gauge. Rather, I have found below that 

Vance prevaricated certain abatement measures listed on the citation and cursorily checked 

abatement measures consistent with Lusk’s letter to District Manager Watkins. See R. Ex. 2. In 

addition, regarding Citation 7162351, discussed below, I have credited Smith’s testimony, as 

corroborated by Lusk and Curry, concerning Vance’s apparently fabricated abatement measures. 

I also emphasize that Curry credibly testified that he has never seen Vance use a dial 

indicator, and no one from Respondent, including Lusk, has ever reported seeing Vance use a 

dial indicator. Tr. II, 82-83. Newsome essentially corroborated Curry and Lusk when testifying 

that that he would have seen a dial indicator if Vance had used one. Further, Newsome 

confirmed that Vance was only under his truck about a minute or two when he was checking the 

ball studs. Based on Curry’s credited testimony, this was not enough time to set up the dial 

indicator and take a proper measurement after cleaning off mud and debris from the trucks. 

Accordingly, despite his notes, I find that Vance’s measurements were unreliable and the 

Secretary failed to prove by credible, probative evidence that any ball joint movement met 

Caterpillar’s out-of-service criteria. Further, although Vance’s citation indicated that slack 

existed where the nut was located on the ball stud (P. Ex. 1), Vance did not check to see if the 

nut was loose, and the ball stud still had the cotter pin in place. Tr. 60-61. In these circumstances, 

I find that the Secretary failed to prove that excessive slack existed on the inside ball stud located 

on the left side steering jack such that movement in the steering linkage ball joints was sufficient 

to establish that the truck was not maintained in safe operating condition. Cf. Extra Energy, 36 

FMSHRC 2733, 2744 (Oct. 2014) (ALJ) (crediting inspector’s testimony which established that 

tape-measured inch of vertical play in the ball joint constitutes a hazard making continued 

operation of the haul truck unsafe and requiring its removal from service pursuant to Commercial 

Vehicle Safety Alliance, North American Standard Out-of-Service Criteria, particularly given 

credited testimony that the nut at the bottom of the ball joint was loose and ready to fall off, had 

sheared the cotter pin keeper, and was removed with bare hands). 

The Allegation that the Secondary Steering Was Defective 

With regard to testing the secondary steering on the 777D Caterpillar Truck No. 4016, the 

Secretary failed to establish that Vance applied the proper test. As noted, the Caterpillar 

38 FMSHRC Page 1129
Operation and Maintenance Manual for the 777D indicates that the operator must stop the engine 

and push the top half of the brake release and secondary steering switch to select the manual 

position. Then the steering wheel should be turned completely to the right and then left. Then the 

switch should be returned to the automatic position. R. Ex. 4, p. 193; Tr. 179-180. Vance did not 

have the operator do this. Rather, Vance shut off the kill switch from outside the vehicle and did 

not hear the electric motor turn on for the secondary steering. Tr. 62-63. Vance testified, “I shut 

it off and the driver never could get it to function.” Id. When asked whether he gave the driver an 

opportunity to try to have it turn on, Vance testified, “Yes. And he [the driver] seemed to have 

good working knowledge of it, so I assumed that he was trained and knew how to operate it.” Tr. 

63. Vance did not cite the Respondent for a training violation regarding operation of the

secondary steering. Since Vance did not testify that he applied a proper secondary steering test, I

find that the Secretary has failed to establish that the secondary steering was not functioning.

Further, I have discredited Vance’s allegation that a solenoid was installed to abate the secondary

steering allegation. Although Lusk credibly testified that he repaired a broken wire, the Secretary

failed to establish that repair of such wire equated to Respondent’s failure to maintain the truck is

safe operating condition. I dismiss the secondary steering allegation.

The Allegation that the Air Conditioning Was Defective 

Finally, with regard to the air conditioner, I find that the system would not blow cold air. 

Tr. 55. In fact, Lusk told Vance even before Vance inspected the truck, that the air conditioner 

was down and the parts were on order, but would not arrive until morning. Tr. II, 153. Vance did 

not rebut this testimony. I find that the failure to maintain the air conditioning system rendered 

the cab of the truck unsafe during extremely hot weather because the driver could overheat or 

pass out. In fact, Vance recalled an incident in which a driver blacked out because heat in the 

cab triggered the driver’s high blood pressure. Tr. 69-70. Although Vance testified that a driver 

who rolled down the window would be exposed to dust because he would not be wearing a 

respirator, Vance did not write the citation as a health violation. Tr. 69; P. Ex. 1. 

ii. S&S, Gravity, and Negligence

I find that the safety violation was non-S&S under the second prong of the Mathies test. 

The second prong requires the showing of a “discrete safety hazard -- that is, a measure of 

danger to safety – contributed to by the violation.” Mathies, 6 FMSHRC at 3. As the Fourth 

Circuit recently recognized, this prong “primarily accounts for the Commission’s concern with 

the likelihood that a given violation may cause harm. This follows because, for a violation to 

contribute to a discrete safety hazard, it must be at least somewhat likely to result in harm.” See 

Knox Creek, 811 F.3d at 160. In this regard, I find it unlikely that the non-functioning air 

conditioner would result in harm, much less a fatal accident, under continued normal mining 

operations because the Secretary’s evidence (ALJ Ex. 1) and Respondent’s rebuttal evidence 

(ALJ Ex. 2, p. 4 and Aff. of Richard R. Stacey Jr.) suggest that mine temperatures in late April 

2013 were generally mild at the mine’s higher elevation. Moreover, although an S&S 

determination is made at the time the citation is issued without any assumptions as to abatement 

(Knox Creek, 811 F.3d at 165), Lusk’s credited testimony establishes that the air-conditioning 

parts (compressor) had already been ordered for the summer season prior to issuance of the 

citation. Tr. II, 153. In these circumstances, the Secretary failed to demonstrate that the violation 

was at least somewhat likely to result in harm. 

38 FMSHRC Page 1130
As discussed above, the Commission has traditionally framed the second Mathies 

element slightly differently than the Fourth Circuit’s interpretation, in that the Commission has 

not traditionally required a showing at this step that the violation was “at least somewhat likely 

to result in harm.” See U.S. Steel Mining Co., 6 FMSHRC at 1836 (indicating that the requisite 

showing is simply “that the violation must be more than a mere technical violation – i.e., that the 

violation present a measure of danger”). However, even if I reframe the inquiry to correspond to 

the U.S. Steel formulation rather than the wording of Knox Creek, the Secretary’s evidence still 

fails to establish that the air conditioning violation satisfies the second Mathies prong. This was 

essentially a technical violation under the unique circumstances of this case. Due to the mild 

temperatures at the mine, the violation did not present any measure of danger to miners’ safety. 

Nor has the Secretary established that the violation would have endangered anyone’s safety with 

continued normal mining operations, because even before the citation was issued, the operator 

had already taken the steps necessary to timely prevent any danger from developing (namely, 

ordering the parts needed to repair the unit before the summer weather arrived). No hazard 

existed. Accordingly, I need not reach Mathies’ often-combined third and fourth prongs, which 

require evidence that the hazard contributed to by the violation is reasonably likely to result in a 

serious, injury-producing event. See Knox Creek, 811 F.3d at 162-63. 

I find that the gravity of this violation was not serious because there is no evidence that 

the lack of a functioning air conditioner was at all dangerous under the circumstances. 

The fact that Lusk’s credited and unrebutted testimony establishes that Respondent had 

already ordered a new compressor and apprised inspector Vance about the order prior to issuance 

of the citation, supports a reduction in negligence from moderate to low. 

iii. Penalty

Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find 

that Respondent, Eagle Creek Mining, LLC, operates the Eagle Creek No. 5 Mine, which 

produced 312,391 tons of coal in 2013, and had 54,626 hours worked in 2013. Jt. Ex. 1. The 

parties stipulated that the originally proposed penalty will not affect Respondent’s ability to 

remain in business. Id. MSHA recognized Respondent’s good-faith compliance in abating the 

citation. I have modified MSHA’s gravity and S&S determinations from reasonably likely and 

S&S to unlikely and non-S&S. I have modified MSHA’s negligence determination from 

moderate to low. As discussed above in the legal principles subsection of this opinion, I have 

also considered that the history of repeat violations relied upon by the Secretary may have been 

overbroad. After consideration of the penalty assessment criteria set forth in section 110(i) of the 

Act, I assess a $200 civil penalty against the Respondent. 

2. Citation No. 7162344 – Caterpillar 777D, Truck No. 4013 

Vance next inspected Caterpillar 777D, Truck No. 4013. Tr. 77. Newsome drove this 

truck on April 30, 2013. Tr. 314-15. Vance checked the pre-operational examination record for 

the truck. Tr. 99. Vance then apparently began in the cab by checking the brakes, seats, seat 

belts, gauges, steering and mirrors. Tr. 77-78. 

When testifying about the citation’s allegations, Vance read from the citation (P. Ex. 3); 

“5. Where the mirror mounts to the driver’s side door is broke,” “And No. 6, the handrail located 

38 FMSHRC Page 1131
behind the driver’s side door is broke.” Tr. 78; see P. Ex. 3. Vance testified that the mirror was 

there, “but where it mounts to the door was broke, causing the mirror to vibrate real bad under 

operation.” Tr. 79. In response to questioning from the undersigned, Vance testified that he did 

not operate the truck, but after counsel answered affirmatively for him, Vance testified that he 

learned through a conversation with a miner informant “[t]hat the mirror was shaking. Can I read 

my notes? It’s in my notes.” Tr. 79-80. 

When pressed by the undersigned to divulge the substance of what he learned from the 

informant, Vance testified as follows: 

Through my experience as a truck driver, if the mirror bracket is 

broke, it shakes. Extremely. And it’s hard to visually see as you 

back up. And like I said, you’re really high up in this cab, and the 

depth – I mean, you depend solely on these mirrors when backing 

up. 

Tr. 80. Vance was then essentially led by counsel to testify that he learned from the informant 

that the mirror was shaking during operation. 

Q. Did you learn through these conversations that – that the

mirrors were shaking?

A. Yes.

Q. During operation?

A. Yes.

Judge McCarthy: Did you learn whether the shaking of the mirrors 

had any effect on the driver’s ability to see? 

The Witness: Yes. 

Judge McCarthy: What did you learn? 

The Witness: That he was having difficulty seeing backing up with 

the shaking mirror. 

Tr. 80-81. Vance’s notes state, “Driver said it was hard to see out mirror from vibrating because 

it was broke at door & mount.” P. Ex. 2, p.34. 

The abatement measure as set forth on the citation for the cited mirror states, “5. A new 

door has been installed and the mirror bracket installed in place to the door securely.” P. Ex. 3, p. 

5. 

Contrary to Vance’s notes, Newsome, the driver, testified that he did not have any 

problems seeing out of his mirror, and he would not have been driving if he could not use the 

mirror. Tr. 327. I credit Newsome over the hearsay testimony from Vance, even as corroborated 

by Vance’s notes. In fact, Vance essentially recanted his testimony and testified that the operator 

just told him that there was a problem with the mirror. Tr. 267-68. 

38 FMSHRC Page 1132
Vance also testified that the handrail behind the driver’s side door was broken. Tr. 78, 81. 

Vance testified that the handrail is used to maintain three-point contact when the driver is 

walking on the two-foot wide “cat walk” area to enter and exit the cab, and clean mirrors and 

windows. Tr. 81, 83. 

On cross examination, Vance was shown P. Ex. 8 and he indicated where there was a 

break in the bottom of the handrail. P. Ex. 8; Tr. 252-53. The upper and lower parts of the 

handrail, however, were intact, and Vance conceded that the handrail would prevent one from 

falling through “as long as it don’t break.” P. Ex. 8; Tr. 253. Vance also conceded that the steel 

handrail would have to break at the top and bottom for one to fall through the handrail. Tr. 253. 

Vance testified that the cited handrail itself would not establish an S&S violation. Tr. 253-54. 

Upon checking the parking brake, Vance testified that he heard an “excessive audible air 

leak” in a hose when the brakes were applied while Vance was still on the ground. Tr. 95-98. 

Vance testified that he told the operator to release the parking brake because the wheels were 

scotched, leave the truck off, and pull the brake, either the hand spike (retarder), or the foot brake 

(service brake) so that Vance could listen for air leaks while on the ground. Id. Vance testified 

that he told the operator to release the park brake and hold the retarder and Vance heard an 

excessive audible air leak from the general area underneath the truck, towards the center “where 

you get up under to check the tire rods and ball studs.” Tr. 95. Vance heard an air leak from a 

hose when the brakes were applied. Tr. 96-97. Vance did not measure the decibels of the air leak 

or use any other device to measure the alleged air leak. Tr. 96. 

Vance testified that after hearing the air leak from a hose while on the ground, Vance 

climbed back up into the cab, asked the driver to start the truck to build the air pressure back up, 

and then asked the driver to apply the brakes again. Tr. 97. Vance testified that when this 

happened, Vance observed the air pressure gauge start dropping, but Vance did not take any 

measurement as to how far it dropped or what the difference was in pounds per square inch (psi). 

Tr. 96-99. Vance was confident that that there was a brake leak because “it would only leak 

once he applied the brakes.” Tr. 96. 

On cross-examination, Vance acknowledged that when you apply the brakes, the air 

gauge drops. Tr. 222. He testified that if the air pressure leaks off, the service brake and the park 

brake set up, if functioning properly. Tr. 222-23. Vance did not cite any brake problems on the 

truck. Tr. 224. When asked by Respondent’s counsel how the air leak was reasonably likely to 

cause a serious injury, Vance testified that “... if the truck is traveling with a load and a line 

blows and the brakes set up, you could lose control of the truck by the wheel locking up if the 

roads were wet.” Tr. 224. 

As noted, Vance could not determine precisely where the air leak was other than from 

some alleged hose somewhere underneath the center of the truck where one checks the tire rods 

and ball studs. Tr. 95-97, 222. Vance did not visually observe any leaking line or hose and could 

present no evidence that the truck was reasonably likely to blow a line. Tr. 225. 

As Vance continued to inspect outside and underneath the vehicle, Vance noticed that 

there was oil leaking from both steering hoses onto the metal fittings where the hoses enter the 

right and left steering jacks. Tr. 83-84, 86. At trial, the Secretary entered pictures of the oil leaks 

into evidence and Vance identified the conditions that he observed. Tr. 84-90; P. Ex. 2, pp. 5-6; 

38 FMSHRC Page 1133
P. Ex. 4, pp. 1-2. Vance testified that the steering hoses supply oil to the steering cylinders in the

steering jack so that the truck can be steered. Tr. 94. Vance further testified that the leaking hoses

could cause a catastrophic failure because when the steering hose blows, you can lose oil

pressure to the steering jacks, which would cause loss of steering control during operation of the

vehicle. Id.

Lusk admitted that the steering hoses were leaking, but he testified that the leak(s) did not 

affect operation of the steering. Tr. II, 155. As explained below, I discount this testimony from 

Lusk. 

Vance further observed that the center pin, which goes through the center arm in the 

steering linkage, had excessive slack where the pin mounts inside the center arm. Tr. 90-92. 

Vance testified that the center arm is where all the steerage linkage comes together. Tr. 91. The 

center pin pivots or moves as the center arm rotates. Tr. 93. The Secretary entered a picture of 

the outside bottom end of the pin into evidence. P. Ex. 4, p. 3. 

When asked by the Secretary whether he noticed any other slack on the steering jack, 

Vance essentially read from the citation and testified that it was the same situation as the first 

truck he cited that day meaning that “[e]xcessive slack existed on the inside ball stud located on 

the left side steering jack” and “[a]lso slack existed where the nut was located on the ball stud.” 

Tr. 93; compare P. Ex. 3 with P. Ex. 1. Vance testified that he again used a dial indicator to take 

a measurement. Tr. 93. According to Vance’s testimony and his notes, this ball stud was also 

70,000ths of an inch out of adjustment. Tr. 94; P. Ex. 2, p. 4. For the same reasons discussed in 

connection with the previous citation, for which the pertinent facts were the same, I do not credit 

this evidence and find it unreliable. 

At 9:58 a.m., Vance issued Citation No. 7162344 to Curry for an alleged violation of 30 

C.F.R. § 77.404(a) because Truck No. 4013 was not being maintained in safe operating

condition. Specifically, the Citation alleged that:

1. Excessive slack existed on the inside ball stud located on the left

side steering jack. Excessive slack existed when the truck was

steered in either direction. Also slack existed where the nut was

located on the ball stud.

2. The steering hoses were leaking to the right and left side

steering jacks.

3. Excessive slack existed in the center arm pin located on the

steering linkage.

4. Excessive audible air leak existed.

5. Where the mirror mounts to the drivers [sic] side door is broke.

6. The handrail located behind the drivers [sic] side door is broke.

P. Ex. 3.

38 FMSHRC Page 1134
Citation No. 7162344 was designated as a significant and substantial violation that 

contributed to a hazard that was reasonably likely to result in a fatal injury, with 1 person 

affected, as a result of Respondent’s moderate negligence. Id. The Citation indicated that the 

truck was operated in the Pump House Pit Area and “[i]t was reasonably likely that if these 

conditions continued to exist an accident will occur.” The truck was removed from service 

immediately. Id. The proposed penalty was $12,248. 

Vance’s initial testimony regarding the significant and substantial designation was 

general and vague. 

Q. Okay. Why did you mark this reasonably likely?

A. Based on the conditions of the truck and the conditions

in which the truck operates under on a regular basis. Daily

basis.

Q. What injury of illness did you mark?

A. Fatal.

Q. Why?

A. It is the injury most likely to occur in an incident based

on the conditions in which his truck operates on a regular

basis. Daily.

Tr. 100-01. 

Upon questioning from the undersigned about the nature of the hazard(s), Vance testified 

that the excessive slack on the inside ball stud would cause the steering jack to pop off the ball 

stud while the truck was in operation causing the driver to lose control of the truck. Tr. 102. He 

testified that “[i]f the steering hose blows, it loses pressure to the steering, unable to steer, 

causing the driver to lose control of the truck and wrecking.” Id. Vance further testified that 

“[E]xcessive audible air leak on the pressure to the brake system, 

brake failure, causing the . . . driver to lose control and wreck. The 

handrail, this is where he enters and exits the cab. It’s a very 

narrow area. The driver without the proper handrail and handling, 

could fall off the truck causing fatal injuries from his elevated 

height of approximately 10 to 12 foot.” 

Tr. 102-03. Vance testified that he designated Respondent’s negligence as moderate because the 

leak on the steering hoses, the audible air leak, and the condition of the handrail and mirror were 

all obvious, the excessive slack in the ball stud occurred over time, and Respondent could not 

provide any records showing that the ball studs were checked by two people. Tr. 104. 

As noted, Newsome operated Truck No. 4013 during the April 30, 2013 inspection. Tr. 

315. Newsome testified that he found no problems during a pre-operational inspection of Truck

No. 4013 on the morning of April 30. Id. Newsome testified that buddy checks are done on the

38 FMSHRC Page 1135
ball studs about once a week or once every two weeks, and Vance never asked Newsome about 

buddy checks or how he performed his pre-operational checks. Tr. 316. 

Newsome testified that Vance began his inspection on the ground first and not in the cab. 

Tr. 317. As noted previously, Newsome testified that Vance was only under the truck for a 

couple of minutes when he checked the ball studs and that Newsome did not see Vance with a 

dial indicator. Tr. 316--19. Although he could not see under the truck, Newsome testified that if 

Vance had been carrying a dial indicator, Newsome would have seen it. Tr. 322. 

Newsome testified that after Vance came out from under the truck, Vance hit the kill 

switch on the bumper of the truck and then climbed up into the cab. Tr. 317. Newsome testified 

that Vance asked Newsome to turn the key on and when he did so “there was a small leak. 

Nothing to affect anything. It was like a hose or something leaking. And he heard that, and he 

said, “You’re down.’” Tr. 320; see also Tr. 322 (“[H]e heard the small air leak and said, ‘You’re 

down.’”). Newsome testified, “Then he [Vance] laughed and said he loved it.” Tr. 320. 

Newsome testified that, “[t]hen he -- well, he checked, I think the mirror and something -- not 

the mirror, but the casing or something was broke on the door.” Tr. 320, 322 (“[T]he door casing 

was busted or something. I mean it wasn’t nothing pertaining to safety, but he -- he mentioned 

something about it.”). 

Newsome was shown P. Ex. 4, p. 4, a picture of the cited handrail on the outside of his 

cab on Truck No. 4013. Tr. 323. Newsome testified that when the door to the cab was opened, 

the handrail area was not accessible because of the way the door swung open. Tr. 323-24. When 

asked whether there was any problem with the stability of the handrail, Newsome testified, “No. 

It’s used for nothing really.” Tr. 324. Newsome further testified that there was no window or 

anything that one needed to clean, which would require use of the handrail. Tr. 324-26. In 

essence, Newsome testified that the cited handrail was not used because it was located behind a 

door hinge, and was not needed to clean the window in the door. Id. 

As noted, Newsome testified that he never saw Vance with a dial indicator during the 

inspection. Tr. 317. Furthermore, Newsome testified that Vance was only under the truck for a 

minute or two when Newsome was manipulating the steering wheel to the left and right to check 

the steering linkage system, and that Vance only checked under the truck once after directing 

Newsome to turn the steering wheel. Tr. 316, 322. I credit Newsome’s testimony, particularly 

because he was forthcoming with regards to conditions that did exist and candidly admitted when 

he was unfamiliar with a particular system or did not have the requisite knowledge to answer a 

question. Tr. 333, 336, 343, 346. 

a. Legal Analysis Concerning Citation 7162344

i. The Alleged 77.404(a) Violation

Under Section 77.404(a), 777D Caterpillar Truck No. 4013 cited by inspector Vance on 

April 30, 2013 was mobile equipment that must be maintained in safe operating condition and 

removed from service, if unsafe. Peabody Coal, supra, 1 FMSHRC at 1495. It is undisputed that 

such mobile equipment was in service when cited. The primary issue is whether the truck was 

maintained in safe operating condition. Applying the reasonably prudent operator test set forth 

above, I find that the Secretary has established that Respondent violated Section 77.404(a) by 

38 FMSHRC Page 1136
failing to maintain the steering hoses in safe operating condition and that the violation was 

significant and substantial. I find a non-S&S violation with regard to Respondent’s failure to 

maintain the truck in safe operating condition free from a small air leak, since the Secretary 

failed to establish through Vance’s testimony that the air leak contributed to a discrete brakefailure hazard which was likely to result in an injury during continued mining operations. I 

dismiss the remaining allegations in the citation. 

The Allegation of Slack in Steering Linkage Components

For the reasons previously set forth with regard to Citation 7162343, I discredit Vance’s 

testimony that he used a dial indicator on Truck 4013 and found 70,000ths of excessive slack 

(i.e., the same amount of slack attributed to Truck 4016 in Citation 7162343) on the inside ball 

stud located on the left side steering jack, and slack where the nut was located on the ball stud. 

Rather, I have credited Respondent’s witnesses, particularly Lusk and Newsome, that Vance did 

not use a dial indicator to take any measurements of slack in ball joint movement on any truck 

inspected on April 30, 2013. Further, Citation 7162344, like its predecessor Citation 7162343, 

indicated that slack existed where the nut was located on the ball stud, but Vance did not testify 

about any such slack on Truck No. 4013. 

With regard to the allegation that excessive slack existed in the center arm pin located on 

the steering linkage, Vance identified a picture of the bottom of the center pin (P. Ex. 4, p. 3) and 

testified that he observed excessive slack in the center arm pin where the pin mounts inside the 

center arm. Tr. 91. Vance confirmed that the pin is inside the center arm and the picture just 

shows the outside of the pin. Tr. 91-92. Vance did not testify what amount of slack was 

excessive slack in the center arm pin and he did not take any measurements. 

I find Vance’s testimony and notes about excessive slack in steering linkage components 

to be unreliable and motivated by his bias against Curry. I find that the Secretary failed to prove 

by credible, probative evidence that any ball joint movement or excessive slack in the center arm 

pin met Caterpillar’s out-of-service criteria such that truck 4013 was not maintained in safe 

operating condition. 

The Allegation of a Broken Mirror 

With regard to the allegation that the mount for the mirror on the driver-side door was 

broken, I find that the Secretary failed to establish that the cited mirror interfered with visibility 

and safe operation of the vehicle. See, e.g., Walker Stone Co., 17 FMSHRC 1389, 1394 (Aug. 

1995) (ALJ). I rely on the credible testimony of Newsome that he did not have any problems 

seeing out of his mirror (Tr. 327), the fact that the Secretary failed to establish that Vance sat in 

the driver’s seat of the truck to check for vision impairment, the fact that P. Ex. 8 shows the cited 

mirror and an additional mirror above it to be intact, and the fact that Vance demonstrated clear 

bias against Curry. Accordingly, this allegation in the citation fails of proof and will be 

dismissed. 

The Allegation of a Broken Handrail 

With regard to the allegation that the handrail located behind the drive-side door was 

broken, I find that the broken bottom portion of the handrail did not render the truck in unsafe 

operating condition under the cited standard. On cross examination, Vance was shown P. Ex. 8 

38 FMSHRC Page 1137
and pointed out where there was a break in the bottom portion of the handrail. P. Ex. 8; Tr. 252-

53. The photograph and Vance’s testimony establish that the upper and middle portions of the

handrail were intact and Vance conceded that the handrail would have to break through steel at

the top and bottom for one to fall through. P. Ex. 8; Tr. 253. Vance further opined that the cited

handrail itself would not establish an S&S violation. Tr. 253-54. In addition, the Secretary failed

to establish that the existing handrail was insufficient to grasp onto as a miner walked up or

down the adjacent steps. In these circumstances, I find that the Secretary failed to establish that

the Respondent failed to maintain the truck in safe operating condition because of the missing

portion of the otherwise intact handrail. Accordingly, this allegation fails of proof and will be

dismissed.

The Allegation of an Air Leak 

With regard to the allegedly “excessive audible air leak” that Vance heard emanating from 

underneath the center of the cab when the operator released the parking brake and held the 

retarder, I find that there was an audible air leak when the brakes were applied. Tr. 98. Newsome 

confirmed that after Vance hit the kill switch, climbed up into the cab, and asked Newsome to 

turn the key, one could hear “a hose or something leaking.” Tr. 320. Vance did not determine 

where the leak was coming from or measure the amount of air or air pressure that was leaking. I 

credit Newsome that the leak was small. Tr. 320. 19 I further credit Newsome that when Vance 

heard the small air leak, he said “You’re down,” laughed, and said he “loved it.” 

I find that a reasonably prudent operator should recognize that an air leak, although small, 

amounts to a failure to maintain the leaking component of the truck in safe operating condition in 

violation of section 77.404(a). 

The Allegation that the Steering Hoses Were Leaking

 With regard to the leaking steering hoses, I credit Vance’s testimony, as corroborated by 

photographs (P. Ex. 2, pp. 5-6; P. Ex. 4, pp. 1-2), that there was oil leaking from both steering 

hoses onto the metal fittings where the hoses enter the right and left steering jacks. Tr. 83-84, 86; 

P. Ex. 2, pp. 5-6; P. Ex. 4, pp. 1-2. As noted, the steering hoses supply oil to the steering

cylinders in the steering jack so the truck can be steered. I credit Vance’s testimony that the

leaking hoses could cause a catastrophic failure because when the steering hose blows, you can

lose oil pressure to the steering jacks, which would cause loss of steering control during

operation of the vehicle. Tr. 94. Lusk admitted that the steering hoses were leaking, but he

testified that the leak(s) did not affect operation of the steering. Tr. II, 155.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 19 Vance provided no frame of reference for his allegation that the leak was “excessive.” 

He did not measure the decibels or use any other device to measure the air leak. Tr. 96. Although 

Vance observed the air pressure gauge start dropping after he climbed back up in the cab, he did 

not take any measurement as to how far it dropped or what the difference was in pounds per 

square inch (psi). Tr. 96-99. Further, Vance acknowledged on cross examination that applying 

the brakes can cause the air gauge to drop. Tr. 222. Given Vance’s animus and bias toward 

Curry, as set forth herein, I find that his use of the term “excessive” to describe the air leak was 

overstated. Moreover, it was unnecessary, because an air leak constitutes a defect regardless of 

its magnitude. 

38 FMSHRC Page 1138
Contrary to Lusk’s cryptic attempt to downplay this safety issue, I find that a reasonably 

prudent operator should recognize that the failure to maintain the steering hoses free from oil 

leaks amounted to a failure to maintain the truck in safe operating condition in violation of the 

section 77.404(a). 

ii. S&S, Gravity, and Negligence

Although the air leak constituted a violation of a mandatory safety standard, satisfying 

the first Mathies prong, I find that the Secretary has failed to meet his burden of proof under the 

second prong with regard to this particular condition. As noted, the second prong of the Mathies

test requires showing a “discrete safety hazard – that is, a measure of danger to safety – 

contributed to by the violation.” Mathies, 6 FMSHRC at 3. The Fourth Circuit recently held that 

the second prong of the test contemplates a showing that the violation was at least somewhat 

likely to result in harm. Knox Creek, 811 F.3d at 162. Vance alleged that the air leak violation 

contributed to the hazard of the brakes failing due to loss of pressure in the brake system. 

However, the Secretary has failed to substantiate this speculative allegation. Vance conceded that 

if the air pressure leaks off, the service brake and park brake set up, if functioning properly. Tr. 

222-23. Vance did not cite any brake problems on the truck. Tr. 224. Moreover, Vance could not

determine precisely where the air leak was other than somewhere underneath the center of the

truck where one checks the tire rods and ball studs. Tr. 95, 222. Thus, it is not clear whether the

leak was coming from the brake system, as he suggested, or whether it actually originated in

some other part of the vehicle. I further note that Vance did not visually observe any leaking line

or measure the pressure that was allegedly leaking off and could present no evidence that the

truck was at all likely to blow a brake line. Tr. 225. Rather, Vance’s testimony focused on a

speculative loss-of-control hazard at Mathies prong three assuming that a line blew and the

wheels locked up on a wet road. When asked by Respondent’s counsel how the air leak was

reasonably likely to cause a serious injury, Vance merely testified that “... if the truck is

traveling with a load and a line blows and the brakes set up, you could lose control of the truck

by the wheels locking up if the roads were wet.” Tr. 224. Vance’s testimony lacked any

explanation as to how the air leak contributed to this hazard. In these factual circumstances, I

find that the Secretary failed to establish that the air leak violation, as litigated, contributed to a

discrete brake-failure hazard that was likely to result in harm.

Turning the leaking steering hoses, I have already found that this condition violated a 

mandatory safety standard, satisfying the first prong of the Mathies test. I further find that the 

other three elements of the Mathies test were satisfied and that the violation of the mandatory 

safety standard was significant and substantial. 

 With regard to the second Mathies element, the Secretary established that the leaking 

steering hoses contributed to a discrete safety hazard or measure of danger to safety and were “at 

least somewhat likely to result in harm,” satisfying both the traditional formulation and the Knox 

Creek Court’s formulation of Mathies prong two. The steering hoses supply oil to the steering 

cylinders in the steering jack so the truck can be steered. Tr. 94. Vance testified that the leaks in 

the hoses could cause the hoses to fail catastrophically, resulting in loss of pressure to the 

steering jacks and loss of steering control during operation of the vehicle. Tr. 94, 102. Lusk 

denied that the leaks affected the steering, but did not consider what would happen if the leaks 

were to continue unabated. Tr. 155. I find that the leaking fluid, if left unabated during the course 

of continued normal mining operations with normal use of the truck, would be reasonably likely 

38 FMSHRC Page 1139
to cause the steering hoses to blow and pressure to be lost to the steering jacks, resulting in loss 

of steering control. The cited truck is a large haul truck driven over uneven, curved, and graded 

mine roads. It is used regularly and carries heavy loads. Under the circumstances, loss of steering 

control would be reasonably likely to result in injury to the driver due to the vehicle overturning 

or wrecking, injury to another driver during collision with another vehicle, or injury to another 

miner traveling on foot in the vicinity of haul truck operations. Accordingly, I find that the 

violation was more than “somewhat likely to result in harm” due to its contribution to a discrete 

safety hazard that was reasonably likely to occur and to cause injury during continued normal 

mining operations. 

Regarding the third Mathies element, the Secretary demonstrated a reasonable likelihood 

that the hazard contributed to by the violation, i.e., loss of control of the large haul truck on mine 

roads, was reasonably likely to result in an injury during continued mining operations, for the 

reasons described above. 

Concerning the fourth Mathies element, I find a reasonable likelihood that any such 

injury would be of a reasonably serious nature given the nature of the hazard, the size of the 

truck, and the impact from any collision. The loss-of-control hazard contributed to by the failure 

to maintain the large haul truck in safe operating condition was reasonably likely to result in a 

collision and concomitant serious or fatal injury to the truck driver, miners in a colliding vehicle, 

or miners struck on foot. The Caterpillar 777D is a very large haul truck capable of carrying 

loads weighing hundreds of thousands of pounds. A collision with another vehicle or miner 

likely would be serious or fatal. Accordingly, the Secretary has shown a reasonable likelihood 

that an injury resulting from the hazard contributed to by the violation was reasonably likely to 

be serious or fatal. 

The gravity of this violation was serious, although not as serious as indicated by the 

inspector. I have dismissed four of the six defects that Inspector Vance allegedly observed (slack 

in the steering ball joint, slack in the center arm pin, and the alleged defects in the mirror and 

handrail), and I have found the Secretary’s evidence to be lacking with regard to the hazard 

presented by the fifth defect (the air leak). However, the sixth defect (the leaks in the steering 

hoses) was serious in light of its contribution to a discrete risk of serious injury. 

I further find that Respondent’s level of negligence was properly designated as moderate. 

Respondent knew or should have known of the leaking steering hoses, although it is unclear how 

long the oil was leaking. 

iii. Penalty

As noted, Respondent is a large operator. The parties stipulated that the originally 

proposed penalty of $12,248 will not affect Respondent’s ability to remain in business. MSHA 

recognized Respondent’s good-faith compliance in abating the citation. I have dismissed four 

specific allegations in the citation. I have modified the S&S determination concerning the air 

leak in the braking system from reasonably likely to unlikely and non-S&S. I have affirmed the 

allegation concerning the leaking steering hoses as S&S, as written. I have affirmed MSHA’s 

moderate negligence determination. After consideration of the penalty assessment criteria 

discussed earlier and set forth in section 110(i) of the Act, I assess a $3,050 civil penalty against 

the Respondent. 

38 FMSHRC Page 1140
3. Citation No. 7162346 – Caterpillar 777F, Truck No. 4045

Vance inspected a third truck on April 30 at 11 a.m. -- Caterpillar 777F, Truck No. 4045. 

Tr. 106. Vance testified that the 777F is the “same type of truck” as the 777D, with some 

upgrades, and that he followed the same inspection protocol. Id. Vance began in the cab and 

observed that the brake action warning light was on, and that the brake oil temperature gauge 

was not working properly. Id. Vance testified that the brake action light remained on, regardless 

of whether the brakes were engaged. Tr. 107. Vance testified that a driver would not know about 

a problem with the braking system if the warning light was continuously engaged. Tr. 114. 

Vance explained that the brake oil temperature gauge is important because it allows the 

driver to monitor the temperature of the brakes, especially on a downhill slope or steep grade, 

and to determine when to switch gears or to change braking technique. Tr. 107. Vance testified 

that the brake action warning light comes on when the brake oil temperature gauge reaches a 

certain temperature and gives warning that the driver needs to change gears, lighten the load, or 

try different braking options. Id. Vance speculated that the light was stuck on and stayed on 

continuously, but Vance never tested his assumption during operation of the truck. Id. 

Vance took a picture of the brake warning light. P. Ex. 6. Tr. 236-37. On cross 

examination, Vance testified that the truck would move when the warning light was on based on 

his experience. Tr. 237. On further cross, however, it became clear that Vance’s experience was 

based on a warning light that was engaged during operation of a different truck, and the cited 

truck was parked and not operating. Tr. 237-38. Vance continued to maintain that the cited truck 

could be driven while the brake warning light was on. Tr. 238. Vance conceded that he had never 

driven a 777F, only a 777D or a lesser model. Tr. 238. 

When asked by the undersigned how he knew that the truck could move with the light on, 

Vance replied, “[b]ecause the brake is not set up. Now with the park brake light on, the park 

brake is set up ... But this light will come when you start getting some indication that there’s a 

problem with the braking system.” Tr. 238-39. Vance could not identify the illuminated light 

with the gear and exclamation point next to the illuminated brake warning light and above the 

illuminated parking brake. Tr. 239. Vance never checked the manual to see if the truck could be 

driven with the brake warning light on. Tr. 239. 

Contrary to Vance, Lusk testified that a truck can be started, but cannot move with the 

brake action warning light on. Tr. II 158, 160. I credit Lusk over Vance since he has driven the 

777F model and Vance has not. 

Both Vance and Lusk testified that a warning buzzer will go off if there is a problem with 

the brakes. Tr. 244; Tr. II 159. In fact, on cross examination, Vance acknowledged that the 

buzzer was an audible three alarm that was working and would go off before there was problem 

with the brake system or any brake failure. Tr. 244. Vance then attempted to retract his 

admission, but Respondent’s counsel would not let him do so. 

Q. So the brake light and the oil temperature light would not

cause an injury, because if we’re getting into a problem with the

brake system, the buzzer is going to go off, correct?

A. The buzzer will go off.

38 FMSHRC Page 1141
Q. And that tells an operator he’s got a problem with his brake

system; right?

A. It could be another thing, too. I mean, it doesn’t

necessarily -- it could go off for the steering, it could go off for oil

pressure loss. It works off all the alarms.

Q. It would tell him he has a problem with the system; right?

A. Yes.

Q. Okay. And that tells him to stop; right?

A. Yes.

Id. 

When asked on cross examination how the allegedly defective brake oil temperature 

gauge was reasonably likely to cause a serious injury, Vance testified, “[b]ecause the driver does 

not have no warning that if he’s overheating the brakes or not. Because the light is on and the 

temperature gauge is pegged out.” Tr. 240. When pressed further about how ignorance of the 

brake oil temperature is reasonably likely to cause a serious injury, Vance testified, “[b]ecause 

the hotter the brakes get, you’re pretty much, more or less, cook them. So the less brake friction 

you’re going to have as far as stopping capability.” Id. Vance further testified that the brake oil 

would have to heat up to a sufficient degree that the driver would lose the capability to stop the 

truck, and you will probably see smoke coming from the brake drum. Tr. 241. 

Although the citation indicated that the fuel gauge was not working properly (P. Ex. 5), 

Vance did not testify how the fuel gauge was malfunctioning. Rather, Vance testified that it was 

“good practice to know if you’ve got fuel” and testified that once while driving a large rock truck 

out of a pit, the truck ran out of fuel and rolled back until the brakes set up. Tr. 108. On cross 

examination, counsel asked Vance how it was reasonably likely to have a serious injury from a 

fuel gauge not working. Vance replied, “[b]ecause the truck could run out of fuel while traveling 

uphill or downhill, and the truck is going to roll a certain distance until the brakes actually stop 

the truck.” Tr. 233-34. Vance testified that the truck could be dumping in a valley field down a 

grade about a quarter mile to a mile from the pit. Tr. 235-36. 

When counsel asked how far the truck had rolled during the incident that Vance 

described, Vance replied, “[p]robably 50 feet or better.” Vance testified that he was driving on a 

steep grade under the heavy load of a much larger 793 model rock truck, capable of carrying 2.5 

times the tonnage of the 777D or 777F models cited. Tr. 233-34. 

 At the time of the inspection, Curry credibly testified that the rock trucks were refueled 

at the end of every shift, and could run for two days, or 20 hours, on one tank of fuel. Tr. II, 102-

03. At the time of hearing, Curry testified that Respondent was refueling midday. Tr. II, 103.

Vance conceded on cross examination that for an injury to occur, Respondent would have to

deviate from its practice of refueling at shift’s end. Tr. 234.

38 FMSHRC Page 1142
With regard to the alleged slack in steering linkage components, Vance read from the 

citation and testified as follows: “The first item, ‘Excessive slack existed on the inside ball stud 

located on the right side steering jack. Excessive slack existed when the truck is steered in either 

direction. Also, slack existed where the nut was located on the ball stud.’” Tr. 108. Vance 

testified that he observed the slack and measured 80,000ths of slack with a dial indicator. Tr. 

108-09. 

Q. Can you tell us about that? 

A. Measurement with a dial indicator, 80,000ths. 

Q. You use the same -- 

A. Horizontal movement, yes. Steering jack and the ball stud. 

Q. Were they making the same movement as the stuff you 

observed before? 

A. Yes. 

Judge McCarthy: Did you measure both the right side of the 

steering jack and where the nut was located? 

The Witness: Just the top part where the -- where the -- top of the 

ball stud and the steering jack itself. Not the nut. 

Judge McCarthy: Is that true for all the measurements? 

The Witness: Yes. It’s the same as -- just this one had a little bit 

more slack. 

By Ms. Bernick: 

Q. Did anybody else take any measurements of this? 

A. Not at the time when I was there. 

Id. Vance’s notes for the citation indicate “Pic’s taken, no pics taken by company.” P. Ex. 2, p. 

15. As noted, however, no pictures of dial indicator measurements were proffered by the 

Secretary. 

Vance testified that the slack in the ball joint, combined with the braking issues could 

cause a driver to lose control of the truck and wreck. Tr. 110. Vance testified generally that he 

had investigated numerous truck accidents that were caused by brake system defects. Tr. 111. 

Vance testified that in each instance, brake defects caused the driver to lose control and wreck 

the truck. Tr. 111. According to Vance, none of these incidents resulted in a fatality, but did 

result in permanent disability. Tr. 111-12. Vance did not present any accident or investigation 

reports, nor provide specific information about any of the accident investigations in which he 

was involved. Tr. 112-13. 

38 FMSHRC Page 1143
Following his inspection, Vance issued Citation No. 7162346 for an alleged violation of 

30 C.F.R. § 77.404(a). The citation alleged that: 

1. Excessive slack existed on the inside ball stud located on the

right side steering jack. Excessive slack existed when the truck is

steered in either direction. Also slack existed where the nut was

located on the ball stud.

2. The brake oil temperature gauge was not working properly.

3. The brake action warning light was on.

4. The fuel gauge was not working properly.

P. Ex. 5. The citation was designated as S&S and reasonably likely to result in a fatal injury, with

one person affected, as a result of Respondent’s moderate negligence. The proposed penalty was

$12,248. The citation described abatement steps as follows:

1. A new ball stud has been installed. 

2. A new sensor has been installed. 

3. A new sensor has been installed. 

4. A new sensor has been installed. 

P. Ex. 5.

These abatement steps were largely disputed by Lusk, who repaired the truck. Tr. II, 161. 

Although Lusk testified that an inside ball stud on the right side steering jack was replaced, no 

sensor was installed for the brake oil temperature gauge. Rather, Lusk repaired some wiring. Tr. 

II, 160-61. Lusk testified that nothing was wrong with the brake action warning light and no 

sensor was installed. Tr. II, 162. Similarly, Lusk testified that no sensor was installed for the fuel 

gauge. Id. Rather, Lusk testified that the sensor was plugged back up because dirt had pulled it 

apart. Id. I credit Lusk regarding these abatement steps that he personally undertook. I find that 

Vance prevaricated certain abatement steps and cursorily checked abatement measures consistent 

with Lusk’s letter to District Manager Watkins. See R. Ex. 2. 

a. Legal Analysis Concerning Citation 7162346

i. The Alleged 77.404(a) Violation

Under section 77.404(a), the primary issue is whether the 777F Caterpillar Truck No. 

4045, cited by inspector Vance on April 30, 2013, was maintained in safe operating condition 

and removed from service, if unsafe. Peabody Coal, 1 FMSHRC at 1495. It is undisputed that 

such mobile equipment was in service when cited. The primary issue is whether the truck was 

maintained in safe operating condition. Applying the reasonably prudent operator test set forth 

above, I find that the Secretary established that Respondent violated 30 C.F.R. §77.404(a) by 

failing to maintain the brake oil temperature gauge in safe operating condition, but failed to 

establish that the violation was significant and substantial. I find that the Respondent further 

38 FMSHRC Page 1144
violated the standard by failing to maintain the fuel gauge in safe operating condition and that 

this violation was significant and substantial. I dismiss the remaining allegations in the citation. 

The Allegation of Slack in the Ball Joint

For essentially the reasons previously set forth herein, except for Vance’s slight 

modification of the amount of slack purportedly measured, I discredit Vance’s testimony that he 

used a dial indicator on Truck 4045, and that he found 80,000ths of an inch of excessive slack on 

the inside ball stud located on the right side steering jack, excessive slack when the truck was 

steered in either direction, and slack where the nut was located on the ball stud. Rather, I have 

credited Respondent’s witnesses, particularly Lusk and Newsome, that Vance did not use a dial 

indicator to take any measurements of slack in ball joint movement on any truck inspected on 

April 30, 2013. Further, Citation 7162346, like predecessor Citations 7162343 and 7162344, all 

indicated that slack existed where the nut was located on the ball stud, but as with Citation 

7162344, Vance did not testify about the alleged slack where the nut was located on Truck 4045. 

As with the prior citations, I find Vance’s testimony and notes about excessive slack or slack in 

steering linkage components to be totally unreliable and motivated by his bias against Curry. I 

find that the Secretary failed to prove by credible, probative evidence that excessive slack existed 

on the inside ball stud located on the right side steering jack or that slack existed where the nut 

was located on the ball stud. Accordingly, the Secretary failed to establish that any such slack 

met Caterpillar’s out-of-service criteria such that truck 4045 was not maintained in safe 

operating condition. 

The Allegation that the Brake Action Warning Light Was Defective 

With regard to the allegation that the brake action warning light was on, I have credited 

Lusk’s testimony that nothing was wrong with the brake action warning light and no sensor was 

installed to abate the violation. Tr. II, 162. Lusk testified that the light comes on when the truck 

starts, and it remains on, preventing the truck from moving, until pressure builds up for the 

brakes. Tr. II, 158-60. Vance indicated that the warning light is linked to the brake oil 

temperature gauge, which was not functioning properly. Considering this information, I reject 

Vance’s allegation that the light was “stuck.” Tr. 107. It is likely that the light had turned on 

because the truck had just been started, or else it had been automatically activated by the 

problem with the brake oil temperature gauge in order to alert the driver to the need to check the 

brake oil, which is exactly the way the light is supposed to work. Further, I have credited Lusk’s 

testimony that the truck cannot be driven while the brake action warning light is on. I discredit 

Vance’s testimony to the contrary and find that the Secretary failed to establish that the brake 

action warning light was not functioning properly while the truck was operating. Accordingly, 

this allegation in the citation fails of proof and will be dismissed. 

The Allegation that the Brake Oil Temperature Gauge Was Defective 

With regard to the allegation that the brake oil temperature gauge was not working 

properly, Lusk conceded that he repaired the wiring leading to the gauge. Tr. II, 161. Further, 

Vance testified that the brake oil temperature gauge allows the driver to monitor the temperature 

of the brakes, especially on a downhill slope or steep grade, and determine when to switch gears 

or change braking technique. 

38 FMSHRC Page 1145
I find that the gauge was not working properly due to faulty wiring and thus Respondent 

violated 30 C.F.R. § 77.404(a) by failing to maintain the truck in safe operating condition. 

The Allegation that the Fuel Gauge Was Defective

With regard to the allegation that the fuel gauge was not working properly, Vance did not 

explain how the fuel gauge was malfunctioning. I have credited Lusk’s testimony that the 

operator did not need to install a new sensor to repair the fuel gauge, as the sole problem was that 

a component of the sensor had come unplugged. Tr. II, 162. 

As previously stated, § 77.404(a) requires operators to maintain vehicles in safe condition 

and remove them from service if unsafe. Thus, the question before me is whether the unplugged 

fuel gauge rendered the truck unsafe. The fuel gauge serves to alert the driver when fuel is 

running low. A nonfunctional fuel gauge creates a risk that the driver will not realize the vehicle 

needs to be refueled, and as a result, the vehicle may run out of gas unexpectedly. As Judge Gill 

recently noted in a case involving a runaway truck, running out of gas causes a truck’s engine to 

die, which can affect the operability of the steering and brakes, leading to a loss-of-control 

hazard on steep, winding mine roads. Clintwood Elkhorn Coal Co., 37 FMSHRC _, Docket No. 

KENT 2011-42R et al., slip op. at 7 (Mar. 22, 2016). Similarly, Vance recalled a prior incident 

when he had been driving a truck that ran out of fuel and rolled along an incline until the brakes 

kicked in. Tr. 108. I conclude that the unplugged fuel gauge rendered the truck unsafe, and 

therefore the condition violated § 77.404(a). 

ii. S&S, Gravity, and Negligence

As discussed above, I have found that the brake oil temperature gauge and the fuel gauge 

were defective, in violation of the mandatory safety standard at § 77.404(a). These findings 

satisfy the first Mathies element. 

Turning to the second Mathies element, with regard to the brake oil temperature gauge, 

the Secretary established that the defective gauge created a hazard in that the driver could no 

longer determine whether the brakes were overheating, which could contribute to an accident if 

the brakes were to overheat. Tr. 240-41. However, I find that the second Mathies element is not 

satisfied because the hazard did not constitute a genuine measure of danger to safety under the 

particular circumstances surrounding this violation and because the evidence does not establish 

that the violation was at least somewhat likely to result in harm. When asked on cross 

examination how the brake oil temperature gauge that was not working properly was reasonably 

likely to cause a serious injury, Vance testified, “[b]ecause the driver does not have no warning 

that if he’s overheating the brakes or not. Because the light is on and the temperature gauge is 

pegged out.” Tr. 240. However, I have credited the operator’s testimony that the vehicle could 

not be moved because the brake action warning light was on. Because the truck could not be 

moved, there was no measure of danger to safety. Even if it could be moved, there was no 

evidence of any problems with the brakes. Moreover, both Vance and Lusk testified that a 

warning buzzer will go off if a problem with the brakes were to arise. Tr. 244; Tr. II 159. In fact, 

on cross examination, Vance acknowledged that the audible three alarm buzzer was working and 

would go off before there was problem with the brake system or any brake failure. Tr. 244. In 

these circumstances, I find that the Secretary failed to establish a likelihood that the brake oil 

would heat up without warning to a sufficient degree that the driver would lose the capability to 

38 FMSHRC Page 1146
stop the truck. Accordingly, I need not address the remaining Mathies elements, and I find that 

the defective brake oil temperature gauge was not a significant and substantial violation. 

However, I uphold the S&S designation with regard to the defective fuel gauge. Curry 

credibly testified that at the time of the inspection, the rock trucks were refueled at the end of 

every shift and could run for two days, or twenty hours, on one tank of fuel. Tr. II, 102-03. 

Vance conceded on cross examination that for an injury to occur, Respondent would have to 

deviate from its practice of refueling at shift’s end. Tr. 234. Nonetheless, I find that the Secretary 

has overcome the very low burden imposed by the second prong of the Mathies test by 

establishing that the defective fuel gauge presented a discrete hazard – that is, a measure of 

danger to safety – that was at least somewhat likely to result in harm. As discussed above, the 

defective fuel gauge created a loss-of-control hazard if the truck were to unexpectedly run out of 

gas. Given the vagaries of human conduct and assuming continued normal mining operations, it 

was at least somewhat likely that the truck would not be refueled despite the operator’s refueling 

policy and would run out of gas, which would occur without warning due to the inoperable fuel 

gauge. See Peabody Coal Co., 19 FMSHRC 1381, 1385 (Aug. 1997) (finding that operator’s 

safety practices do not preclude S&S finding because such an approach would rely on miners’ 

skill and attentiveness to prevent injury, which impermissibly “ignores the inherent vagaries of 

human behavior”) (citing U.S. Steel, supra, 6 FMSHRC at 1838 n.4). Because the truck was 

regularly driven on steep, curving mine roads, any loss of control occasioned by the truck 

unexpectedly running out of gas would be reasonably expected to cause a vehicular accident 

such as a collision, a fall from a precipitous height, or a rollover accident. See, e.g., Clintwood 

Elkhorn, supra (discussing accident wherein an out-of-control truck ran out of gas, accelerated 

down a mountain road, crashed through a berm, struck a utility pole at the base of the hill, and 

rolled over). Any such accident would be reasonably likely to result in harm to a driver, a 

passenger, or anyone in the path of the out-of-control vehicle. Accordingly, I find that the 

defective fuel gauge contributed to a discrete safety hazard that was at least somewhat likely to 

cause harm, satisfying the second Mathies element. 

The third and fourth Mathies elements are also satisfied. Assuming the loss-of-control 

hazard were to occur, the hazard would be reasonably likely to cause an accident resulting in 

serious or fatal injuries to the driver, a passenger, or anyone in the truck’s path, as this is a heavy 

rock truck that is operated in mountainous terrain. 

Because the four Mathies elements are met, the operator’s failure to maintain the fuel 

gauge in safe condition was S&S. 

Having rejected two of the four allegations at issue in this citation and determined that 

one of the two remaining safety defects (the defective brake oil temperature gauge) did not 

present a genuine measure of danger to the safety of miners, I find that the gravity of this 

violation was not as serious as suggested by Inspector Vance. 

I further find that Respondent’s level of negligence was properly designated as moderate. 

Respondent knew or should have known that the brake oil temperature gauge needed rewiring 

and that the fuel gauge needed to be repaired, although it is unclear how long the conditions 

existed. 

38 FMSHRC Page 1147
iii. Penalty

 Respondent is a large operator. The parties stipulated that the originally proposed penalty 

of $12,248 will not affect Respondent’s ability to remain in business. MSHA recognized 

Respondent’s good-faith compliance in abating the citation. I have dismissed two specific 

allegations in the citation. I have modified the S&S determination concerning the brake oil 

temperature gauge from reasonably likely to unlikely and non-S&S, but have upheld the S&S 

determination concerning the fuel gauge. I have affirmed MSHA’s moderate negligence 

determination. After consideration of the penalty assessment criteria discussed earlier and set 

forth in section 110(i) of the Act, I assess a $3,050 civil penalty against the Respondent. 

4. Citation No. 7162351- Caterpillar 777F, Truck No. 4058

Vance inspected Caterpillar 777F Truck No. 4058 at about 1:20 p.m. on April 30, 2013.

Tr. 115. Vance testified that the handrail on the offside was broken and needed repair, and the 

mirror bracket was bent and needed adjustment. Tr. 116. 

Vance checked the secondary steering by standing at ground level, hitting the “kill 

switch,” and listening for the electric motor to engage. Tr. 118. Vance testified that the driver of 

the truck (Ballard Smith) manually held the switch in once Vance climbed up in the cab. Tr. 

181.20 Vance did not indicate, however, whether the secondary steering worked at that point. As 

set forth below, Smith, Lusk and Curry all testified for Respondent that the secondary steering 

did work. I credit Respondent’s witnesses, as explained below. 

When asked whether the electric motor came on, Vance testified: 

A. No. And he did not -- wasn’t able to do it from the cab neither

by releasing the -- the brake in the -- the transmit -- or the steering

in the manual position.

Q. Well, can you tell us about what the safety conditions here are

on the secondary steering?

A. Power loss engine failure, the driver wouldn’t have no

secondary steering, no back up to get the truck stopped, under

control, safely while in operation without secondary steering in the

case of a power failure, as far as loss of engine, loss of fuel.

Tr. 119. 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 20 Ballard Smith was the driver of the truck on the day the citation was issued. Tr. II, 12-

13.

38 FMSHRC Page 1148
Vance issued Citation No. 7162351 for an alleged violation of 30 C.F.R. § 77.1606(c). 

The condition or practice narrative alleged: 

1. Secondary steering was not functioning when tested. 

2. The handrail located on the offside of the truck was broke. 

3. The offside mirror bracket needed repaired (sic). 

P. Ex. 7. The citation was designated as a significant and substantial violation because

reasonably likely to result in a lost-workdays or restricted-duty injury, with 1 person affected, as

a result of low negligence. P. Ex. 7. The proposed penalty was $1,530. The citation described

abatement steps as follows:

1. The wiring has been repaired to the secondary steering. 

2. The handrail has been welded back up in place. 

3. The mirror bracket has been adjusted up properly. 

P. Ex. 7.

Vance testified that he cited 30 C.F.R. § 77.1606(c) rather than 30 C.F.R. § 77.404(a) 

because he “didn’t feel this truck was not being maintained. Just that these conditions existed 

that affected it. These safety defects. So that’s why I went with this instead of the 404(a).” Tr. 

121. Vance did not describe how the handrail was broken, but testified that if a driver or greaser

used it they could lose contact with the vehicle and fall. Tr. 117. Vance testified that the bent

offside mirror bracket that was out of adjustment is used each time the driver backs up, and he

could “back into something. Back over a rock. Back into another piece of equipment.” Tr. 116.

Vance testified that he designated the citation as reasonably likely to result in a lost-time 

injury because the truck was operated in reverse about 50 percent of the time and the bent offside 

mirror bracket “makes it difficult for the driver to see” during operation of the truck around other 

equipment and in close proximity to confined areas. Tr. 121. Basically, Vance opined that the 

citation was significant and substantial because the bent mirror bracket prevented a driver from 

seeing while backing up, which could cause a collision. Tr. 123. Vance further supported his 

reasonably likely designation because the secondary steering would not function if there was a 

power failure of the truck, which operated ten hours per day for five days per week. Tr. 122. 

Vance testified that he only relied on the secondary steering and bent offside mirror bracket for 

his S&S designation, and not on the defective handrail. Tr. 265-66. 

Vance testified that “lost workdays or restricted duty” was the appropriate injury 

designation because the operator could back up and hit another object or piece of equipment. 

Further, Vance distinguished this injury designation from the fatal designation in prior citations 

because only secondary steering was cited, and not primary steering linkages or brakes. Tr. 122-

23.

38 FMSHRC Page 1149
On cross examination, consistent with P. Ex. 8, a photograph of the cited mirror and 

handrail, Vance testified that there were two mirrors on the driver side and he circled the cited 

bottom mirror. Tr. 254-56; P. Ex. 8. Vance testified that the bottom mirror bracket was bent, but 

the top mirror bracket was not bent and the top mirror was fully functioning. Tr. 254. Vance did 

not know whether another operator, who drove the truck, had requested that the bottom mirror 

bracket be bent. Tr. 244-45. 

To abate the alleged violation, Vance testified that “[t]he mirror bracket has been 

adjusted up properly.” Tr. 256. When asked how they adjusted it, Vance testified, “Probably 

loosened it up and adjusted the mirror. It’s got – it’s mounted from the top to the bottom and you 

can adjust either side to side or - -.” Id. The following exchange then occurred with Respondent’s 

counsel: 

Q. Okay. So what’s the problem here? Is it the bracket or is it the

way the mirror is lined up? What’s your issue?

A. Well, if the bracket is bent and you haven’t adjusted it to make

up the difference, you won’t be able to see completely what you

need to see when operating the truck.

Q. What about the mirror above it?

A. Well, as a truck driver, the bottom mirror is usually towards the

bottom of the truck and the top mirrors are used for the upper

section of the truck when you’re loading on the offside of the truck

to see your loader. When you stage up.

Q. So you went and sat in the operator seat?

A. No. This is from prior experience.

Q. Okay. So you don’t know on this truck how the operator had

these two mirrors lined up for his use?

A. No.

Q. And you didn’t take any pictures of it?

A. Just the picture that you see.

Q. Right. And that doesn’t really tell us what either one of these

mirrors are showing. We’re seeing the back of the mirrors, aren’t

we?

A. Yes.

38 FMSHRC Page 1150
Q. It doesn’t show us what the view of the operator sitting in the

operator’s cab would see?

A. The depth of it would be hard with the picture.

Q. All right. And -- are you aware that they made no changes to

this mirror after your citation?

A. They told me the mirror bracket had been adjusted, and the

driver was okay with it.

Q. Who told you that?

A. Whoever I spoke to. Jay Curry.

Tr. 256-58. 

In short, on cross examination, Vance admitted that the driver had another higher 

mounted mirror that was fully functional, that Vance did not sit in the operator’s seat to check 

visibility from the higher mounted mirror, that the bent mirror bracket could have been adjusted 

for operator use, and that Vance did not know what the operator saw, rather Vance was “[j]ust 

going by experience.” Tr. 254, 257, 267. Subsequently, the following colloquy occurred between 

the undersigned and Vance: 

Judge McCarthy: Well, did you – did the operator tell you what he 

saw or didn’t see on the day you wrote the citation? 

The Witness: It’s been took out of the notes. 

Judge McCarthy: Well – 

The Witness: What was exactly said, I don’t remember. I mean,

exactly what was said. Did he – 

Judge McCarthy: Well, what do you remember the operator telling 

you? 

The Witness: The day the citation was issued? 

Judge McCarthy: Right. About the mirror. 

The Witness: Evidently, there was a problem with the mirror.

Without me sitting in the seat and him not telling me, I would not 

know. 

38 FMSHRC Page 1151
Judge McCarthy: Okay. You have a problem, don’t you? I mean, 

you have the steering. Okay? It’s like a crack in the windshield. I 

have had cases where the inspector didn’t get up – well, you can 

read them or you can find them. But – so we don’t know what the 

operator told you. He just said there was a problem? 

The Witness: Yes 

Tr. 267-68. 

Vance designated Respondent’s negligence as low. The Secretary’s counsel conceded 

that she was not seeking to modify that designation. Tr. 128. 

As noted, Ballard Smith operated Truck No. 4058 during the inspection. Tr. II, 7-8. Smith 

testified that buddy checks were performed more or less on a weekly basis at Eagle Creek. Tr. II, 

38. Smith acknowledged that there was a crack in the weld on the truck’s handrail. Tr. II, 15. In 

addition, Lusk admitted that the handrail had broken from its weld at one point and Lusk 

repaired it to abate the citation. Lusk noted, however, that the handrail had several other points of 

contact with the truck. Tr. II, 144. 

Smith did not remember any problem with the mirror bracket and did not have any 

trouble using the mirrors while driving the truck. Tr. II, 28. When asked on direct whether the 

mirrors angled to the appropriate areas to allow Smith to see behind him, Smith testified, “I 

didn’t have any problem with it. I wouldn’t pull out if I had a problem seeing.” Tr. II, 29. Smith 

confirmed that he did a pre-operational check on the truck that morning and did not have any 

problems with the mirror that he could remember. Id. Smith did not recall having any 

conversation with Vance about the mirrors. Id. Smith did recall that the offside mirror bracket 

had been bent a little bit during shipping, but one could adjust the mirror. Tr. II, 29-30. When 

asked whether the mirror had been adjusted to be in the proper location, Smith testified, “I didn’t 

have any problem with it.” Tr. II, 30. Smith testified that he could adjust the bottom mirror from 

the steering wheel to see behind him on the offside when backing up to judge the distance of 

objects behind him. Smith could also adjust the mirror to look at the side of the truck or the 

wheel area. Id. Smith testified that Vance probably noticed that the bracket was bent a little bit, 

but Smith did not recall Vance questioning Smith about the mirror and it was not a problem. Tr. 

II, 31. The Secretary redacted any alleged conversation that Vance may have had with Smith 

about the mirror. Id.; P. Ex. 2, p. 30. 

Smith further testified that Vance could not check the secondary steering on the 777F 

model from the ground by hitting the kill switch. Tr. II, 12. As noted, on questioning from the 

undersigned, Vance testified that Smith manually held the switch in once Vance climbed up in 

the cab. Tr. 181. Tr. II, 12-13. Vance did not indicate whether the secondary steering worked at 

that point. As explained below, I credit Smith, Lusk and Curry, who all testified that the 

secondary steering did work. 

Smith testified that he had never been inspected in a 777F model, and that after Vance 

“downed” and left Smith’s vehicle, Tony Wallace, the driver in the truck next to Smith, radioed 

38 FMSHRC Page 1152
Smith to inform him how to check the secondary steering. Tr. II, 13, 22-24. Smith testified that 

he turned the key without starting the engine, held the switch in, and the secondary steering light 

came on with a little hum. Tr. II, 13, 23. Smith further testified that there was nothing wrong 

with the emergency steering and that Smith showed Vance that the secondary steering worked 

after Vance had downed the truck and came back about an hour later to check on abatement 

efforts. Tr. II, 13, 24-25. Smith did not know whether Vance had already written up the citation 

after Smith showed Vance that the secondary steering was working. Tr. II, 26. Smith assumed 

that Vance also did not know that when you hit the kill switch on the 777F model, the secondary 

or emergency steering would not engage. Tr. II, 27. 

Smith further testified that two of the three abatement measures listed by Vance on the 

citation were inaccurate. Specifically, Smith testified that there was no repair to the wiring on the 

secondary steering because Smith was with the truck and nobody notified him that they were 

going under the vehicle to repair the wiring. Tr. II, 41-42. Smith also noted that nothing was 

done to the mirror bracket that day. Tr. II, 48. 

I credit Smith’s testimony concerning abatement measures and his testimony that he had 

no problem seeing out of the offside bottom mirror when driving the truck. I further credit Smith 

that the secondary steering was working and that Vance’s test was executed incorrectly. 

Smith’s testimony was essentially corroborated by Lusk. Lusk testified that when Vance 

climbed up the ladder into Smith’s cab, Vance told Smith that the emergency steering was not 

working. Tr. II, 140. Lusk then asked Smith in Vance’s presence whether Smith had held in the 

button, and Smith said, “No, I thought you just had to push it.” Tr. II, 140-41. Lusk then hollered 

over to foreman Curry that Vance was not testing the 777F model correctly, as Vance started to 

walk away to another truck. Tr. II, 142. As Vance passed Lusk, Vance told him to weld the 

handrail, which Lusk began doing. Id. Lusk conceded that the handrail had broken loose from the 

weld and needed to be re-welded. Tr. II, 144. Lusk testified that when Vance returned to check 

on the handrail, Lusk told him that there was nothing wrong with the emergency steering. Tr. II, 

142, 144. Lusk testified that Vance said, “Okay. Fine. Let’s test it,” and the test was fine. Tr. II, 

143. Lusk further corroborated Smith that nothing was done to adjust the mirrors that day. Tr. II,

142.

Finally, I note that Curry testified that Lusk informed Curry on April 30, 2013 that Vance 

was not testing the emergency steering on the 777F models properly. Tr. II, 69. Accordingly, 

Curry directed Lusk to walk Vance through the proper test for the secondary steering system on 

the 777F model. Tr. II, 70. Curry further testified that he was present in the area when Lusk and 

Vance rechecked the secondary steering and there was no problem with it. Tr. II, 72. 

a. Legal Analysis Concerning Citation 7162351

i. The Alleged § 77.1606(c) Violation; S&S; Gravity; Negligence 

Section 77.1606 pertains to loading and haulage equipment. The cited portion of the 

mandatory safety standard states: “Equipment defects affecting safety shall be corrected before 

the equipment is used.” 30 C.F.R. § 77.1606(c). 

38 FMSHRC Page 1153
I have credited Smith’s testimony concerning Vance’s apparently fabricated abatement 

measures and Smith’s testimony that he had no problem seeing out of the offside bottom mirror 

when driving the truck. I further have credited testimony from Smith, Lusk, and Curry that the 

secondary steering was working and that Vance’s emergency steering test was executed 

incorrectly on the 777F model. Accordingly, I find that the Secretary failed to establish that the 

bent offside mirror bracket and the secondary steering system were equipment defects that 

affected safety and that needed to be corrected before the equipment was used under the cited 

standard. 

Respondent’s witnesses conceded that a weld on the handrail was missing and needed to 

be re-welded. Inspector Vance testified that he only relied on the secondary steering and bent 

offside mirror bracket allegations for his S&S designation, and not on the defective handrail. Tr. 

265-266. Contrary to Respondent’s efforts to vacate the handrail allegation completely (Tr. II,

145), I find that the missing weld was an equipment defect that affected safety if one tripped or

fell since it was located in close proximity to the steps and could be latched onto as one was

falling down, but consistent with the Secretary’s litigating position, it was not S&S, and the

gravity of the violation was not serious.

I affirm the low negligence determination since the reminder of the handrail was intact. 

ii. Penalty

After consideration of the penalty assessment criteria discussed earlier and set forth in 

section 110(i) of the Act, my findings on gravity and negligence set forth above, and the fact that 

the violation was abated immediately in good faith, I assess a $310 civil penalty against the 

Respondent for the defective handrail. 

5. Citation No. 7162340 – Water Truck No. 8147

On May 2, 2013, Vance returned to the Mine to terminate the citations issued on April 30 

and to continue his E01 inspection. Tr. 200. At about 12:35 p.m., Vance inspected the White 

Sterling Water Truck, No. 8147. Tr. 135. The water truck is used to water down roads for dust 

control. Tr. 152. 

Vance testified that the walk-around inspection protocol for the water truck was similar 

to a haul truck, but the out-of-service criteria was different because haul trucks are confined to 

off road, and water trucks can be operated on and off road. Tr. 136, 138. Vance used the 

Commercial Vehicle System Alliance’s North American Standard Out-of-Service Criteria for 

inspecting the water truck. Tr. 136. This criteria is not written into any MSHA standard, it is only 

used as a guideline. Tr. 283. 

Vance testified that to check the brakes, he crawled under the water truck and checked 

the amount of slack or overstroke to determine whether the brakes should be taken out of service. 

Tr. 143. Vance testified that when the brakes are engaged on the water truck, a pushrod extends 

from the brake canister near the slack adjustor and applies pressure to the S-Cam, and the brakes 

expand against the drum. Tr. 146-147. Depending on the size of the canister, the length of rod 

38 FMSHRC Page 1154
that extends from the canister is then measured in inches. Tr. 147. Vance testified that he 

measured the overstroke with a wooden, folding tape measure. Tr. 145. 

Vance testified that the type-30 canisters used for the back brakes on the water truck had 

a 2-inch limitation under the North American Standard Out-of-Service Criteria. Tr. 146-47. 

Vance testified that he measured 2 and ! inches of overstroke for the left-side rear axle, which 

exceeded out-of-service criteria. Tr. 148. Curry testified, however, that a brake with a 2 and !

inch overstroke would still stop the water truck. Tr. II, 81. As explained below, I discount 

Curry’s testimony. 

Vance also testified that the brakes on the left and right side of the front-drive axle did 

not function when tested. Tr. 146. He testified that there was no movement in the pushrod when 

the brakes were engaged. Id. On cross examination, Vance could not determine why the brakes 

did not move on the left and right side of the front-drive axle (Tr. 283), but he testified earlier on 

direct examination that caps were missing from the brake canisters, which would allow dust to 

fill the canisters and prevent the brakes from moving. Tr. 150-51. 

Vance also observed that the brake pads did not contact the brake drum as they were 

supposed to do when the brakes were fully applied on the right side of the rear-drive axle. Tr. 

148. Vance testified that a filler gauge is used to check space between the pads and the drum, but

Vance never testified specifically that he used a filler gauge. Id.

In addition, Vance observed that the water bed bracket that mounts the water bed to the 

frame on the right side of the truck was broken. Tr. 149. 

At about 12:35 p.m., Vance served Curry with Citation No. 7162340 alleging that the 

water truck was not being maintained in safe operating condition in violation of 30 C.F.R. § 

77.404(a) because of the following conditions: 

1. The brakes located on left and right side of front drive axle were

not functioning when tested.

2. The service brake chamber pushrod stroke for the left side

chamber on the rear drive axle measured to be 2 !” inches (over

stroked).

3. The brakes located on the right side of the rear drive axle [were]

not working properly when tested. With the brakes fully applied

the brake pads would not contact the brake drum.

4. The water bed bracket mount located on the right side of the

truck was [broken] off from the water bed.

These conditions expose the miner to hazards while operating the 

truck. This truck is being operated throughout mine property to 

water the roadways. It is reasonably likely if these conditions 

38 FMSHRC Page 1155
continue an accident will occur. Management removed the truck 

from service immediately. 

P. Ex. 9.

The S&S citation was designated as reasonably likely to result in a fatal injury, with one 

person affected, as a result of Respondent’s moderate negligence. Id. The proposed penalty was 

$10,437. The citation listed the following abatement steps to correct the conditions: 

1. The air lines have been plumbed up properly and the brakes are 

now functioning properly when tested. 

2. The brake was readjusted back up properly. 

3. The air lines have been plumbed up properly and the brakes are 

now functioning properly when tested. 

4. The bracket was welded back into place on the water bed. 

Id. 

Essentially, Vance supported his S&S designation by testifying that four of the six sets of 

brakes on the water truck were either out of alignment or not working, and since the brakes were 

not functioning properly, a driver could lose control of the water truck on the mine’s steeply 

graded roadways and suffer a fatal injury after traveling through a berm or colliding with another 

oncoming truck. Tr. 151-156. Further, with regard to the broken water bed bracket mount, Vance 

testified that the water bed is mounted to the frame by brackets on each of the four corners of the 

bed. Tr. 149, 274. When asked on direct, what happens if you don’t have brackets, Vance 

testified that “. . . the water bed on the truck could come off under normal operation, causing the 

truck to overturn, wreck, driver loses control of the truck.” Tr. 149. Vance testified on cross 

examination that under continued normal mining operations, the water truck would be driven on 

steep grades and curvy roads and under heavy loads, which conditions would put stress on the 

remaining brackets, causing them to fail and the truck to become unbalanced and overturn. Tr. 

274, 276. Vance opined that any injury from such accident was reasonably likely to be fatal 

because the water truck is driven in and out of the pit area and on steeper grades than the haul 

trucks. Tr. 155. 

Vance determined the violation to be the result of moderate negligence because the 

Respondent could not provide any evidence that a two-man or buddy check had been conducted 

on the brakes, although the operator had performed a pre-operational examination on the vehicle. 

Tr. 156-57. 

On cross examination, Vance did not have any independent recollection of where he 

inspected the water truck, although he testified, after consulting his notes, that he probably 

inspected the water truck in the pump house area. Tr. 268-69; P. Ex. 10. Vance then testified that 

he saw the water truck in operation in the pump house area on the main pump house haul road 

38 FMSHRC Page 1156
which extends from the pit to the dump. Tr. 270. Vance testified that the water truck was in 

operation and not parked because Vance would have reflected the fact that it was parked in his 

notes. Tr. 269, 271. Vance’s notes just indicate that the water truck was checked. P. Ex. 10, p. 3. 

Curry testified that the water truck was idle on May 2, 2013 because it had just rained the 

night before, and the air temperature that morning was below freezing, making it too cold to 

water the roads and create ice. Tr. II, 73.21 Curry testified that a brake adjustment was scheduled 

for the water truck that day because the operator had informed him on April 30 that the brakes 

needed adjustment. Tr. II, 75. Curry testified that he told the operator to park the truck in the 

maintenance area at the top hill on the No. 8 curve and that is where the truck was inspected 

when out of service. Tr. II, 75, 77. Lusk confirmed that the truck was in the maintenance yard 

and scheduled for brake adjustment when Vance inspected it on May 2, 2013. Tr. II, 163. Curry 

acknowledged, however, that the water truck was not locked and tagged out. Tr. II, 77. 

I credit the mutually corroborative and specific testimony of Curry and Lusk that the 

water truck was idled in the maintenance yard and scheduled for brake adjustment when 

inspected by Vance on May 2. Vance’s recollection of the location of the inspection was hazy 

and poor and I have found that Vance was not a forthright and reliable witness. 

a. Legal Analysis Concerning Citation 7162340

i. The 77.404(a) Violation 

Under section 77.404(a), the water truck cited by inspector Vance on May 2, 2103 was 

mobile equipment that must be maintained in safe operating condition and removed from service, 

if unsafe. Peabody Coal, 1 FMSHRC at 1495. Although I have found that the water truck was 

idle on May 2, 2013 and awaiting maintenance in a makeshift lot, I find that the truck was still in 

service because the vehicle was not locked and tagged out. The Commission has held that a 

vehicle that is not locked and tagged out is still considered in service. Wake Stone Corporation, 

36 FMSHRC 825, 828 (Apr. 2014) (citing Alan Lee Good, 23 FMSHRC 995, 997 (Sept. 2001) 

(reinforcing the rule that equipment not tagged out of operation and parked for repairs must be 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 21 As noted, after the hearing, the Secretary moved to reopen the record to submit 

certified weather data from April 30 and May 2, 2013 showing that the temperature ranges for 

Logan, West Virginia those days were well above freezing and there was no rain in Logan, West 

Virginia on May 1 or 2, 2013. ALJ Ex. 1, Ex. A. I have admitted the evidence, but accord it no 

weight as it relates to Curry’s credibility or the water truck citation. Any discrepancies between 

Curry’s testimony about the temperature and precipitation and the weather data submitted by the 

Secretary may be attributed to the elevation of the Eagle Creek Mine, which is over 1,000 feet 

higher than Logan, West Virginia where the data was collected. ALJ Ex. 2, p. 4 and Affidavit of 

Richard R. Stacey Jr. I also note that the certified weather data submitted by the Secretary shows 

that that was some rain in the Logan area on April 30, 2013, the day Curry testified that the truck 

was parked for a brake adjustment. Tr. II, 75. Moreover, as explained below, the water truck was 

not locked and tagged out, and was not being maintained in safe operating condition. Further, for 

the reasons explained below, I have found that the violation was significant and substantial. 

38 FMSHRC Page 1157
maintained in functional condition “whether or not the equipment is to be used during the shift)). 

The Respondent concedes that the brakes needed to be adjusted, which is why the truck was 

idled, and Respondent did not challenge the allegation that a water bed bracket mount was 

broken. I find that both the defects in the brakes and the broken bracket violated 77.404(a). 

ii. S&S, Gravity, and Negligence

I further find that the Secretary has proven an S&S violation of 77.404(a) because the 

water truck’s brakes and a mount on the water bed bracket were not being maintained in safe 

operating condition and these conditions contributed to loss-of-control safety hazards that were 

reasonably likely to result in serious or fatal injury. 

I credit Vance’s testimony that four of the six sets of brakes on the water truck were 

either out of alignment or not working. He testified that the brakes were over stroked on the rear 

drive axle, and that the brake pads on the left and right side of the rear drive axle were not 

working properly. There was no conflicting testimony regarding these conditions. In fact, Lusk 

and Curry confirmed that the truck was in the maintenance yard and scheduled for brake 

adjustment when Vance inspected it on May 2, 2013. Although the water truck was idled, it was 

not properly locked and tagged out of service. Given the vagaries of human behavior and 

assuming normal mining operations were to continue, I find it reasonably likely that a driver 

would use the water truck with the defective brakes and lose control of the truck on the mine’s 

steeply graded roadways, and suffer a fatal injury after traveling through a berm or colliding with 

another oncoming truck. Tr. 151-156. 

The broken water bed bracket mount also contributed to a loss-of-control safety hazard 

that was reasonably likely to result in serious or fatal injury. The Respondent’s witness 

contended that the hazard was mitigated by the presence of other brackets to hold the water tank 

in place. Tr. II, 79-81. But Vance persuasively testified on cross examination that under 

continued normal mining operations, the water truck would be driven on steep grades and curvy 

roads and under heavy loads, which conditions would put stress on the remaining brackets, 

causing them to fail and the truck to become unbalanced and overturn. Tr. 274, 276. I agree. 

Consistent with Vance’s testimony, I find that any injury from such accident was reasonably 

likely to be fatal because the large water truck is driven in and out of the pit area and on steeper 

grades than the haul trucks, and if the water bed was not properly secured, the driver would lose 

control of the truck and collide into surrounding equipment, overturn, or run through a berm. Tr. 

155. Accordingly, I find that the citation was properly designated S&S.

I further find that the gravity of this violation was serious because the two cited defects 

contributed to a discrete loss-of-control hazard that was reasonably likely to result in serious 

injury to miners. 

With regard to negligence, I have credited the testimony of Curry and Lusk that the water 

truck was idled in the maintenance yard and scheduled for brake adjustment when inspected by 

Vance on May 2, 2013. The Respondent’s efforts to address the brake problems might support a 

reduction to low negligence in other circumstances. However, the Respondent did not properly 

38 FMSHRC Page 1158
lock and tag the truck out of service, meaning that miners were not prevented from using the 

vehicle prior to adjustment of the brakes, and the Respondent further failed to address the broken 

bracket mount at all. Under these circumstances, I find that although the Respondent’s conduct 

falls somewhere along the continuum between low and moderate negligence, it is more properly 

described as closer to moderate negligence. 

iii. Penalty

As noted, Respondent is a large operator. The parties stipulated that the originally 

proposed penalty of $10,437 will not affect Respondent’s ability to remain in business. MSHA 

recognized Respondent’s good-faith compliance in abating the citation. I find that Respondent is 

entitled to additional credit for good faith compliance because the water truck was already idled 

and slated for brake maintenance at the time the citation was written. I have affirmed the S&S 

determination concerning the water truck’s defective brakes and the broken water bed bracket 

mount. Although I have affirmed the Secretary’s moderate negligence designation, I have 

further found that the level of negligence is actually somewhere along the continuum between 

low and moderate, but closer to moderate. After consideration of the penalty assessment criteria 

discussed earlier and set forth in section 110(i) of the Act, I assess a $6,550 civil penalty against 

the Respondent for Citation No. 7162340. 

VI. ORDER

It is ORDERED that Citation Nos. 7162343 and 7162351 be MODIFIED to reduce the 

likelihood of injury or illness from “reasonably likely” to “unlikely,” and to delete the 

“significant and substantial” designation. 

It is ORDERED that Citation No. 7162343 be MODIFIED to reduce the level of 

negligence from “moderate” to “low.” 

It is ORDERED that the operator pay a civil penalty of $13,160 for the five citations 

litigated within 30 days of this decision.22 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 22 As noted herein, I assess a penalty of $200 for Citation No. 7162343, $3,050 for 

Citation No. 7162344, $3,050 for Citation No. 7162346, $310 for Citation 7162351, and $6,550 

for Citation No. 7162340. 

38 FMSHRC Page 1159
Distribution: 

Paige Bernick, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Ave. North, Suite 

420, Nashville, TN 37219 

Mark Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East, P.O. Box 273, 

Charleston, WV 25321 

38 FMSHRC Page 1160
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May 18, 2016 

MICHAEL WILSON, DISCRIMINATION PROCEEDING 

Complainant, 

Docket No. KENT 2016-0095-D 

MADI-CD 2015-16 

v. 

JIM BROWNING, Parkway Mine 

Respondent. Mine ID: 15-19358 

DECISION AND ORDER 

Before: Judge Miller 

This matter is before me on the parties’ cross motions for summary decision. After 

careful consideration of the parties’ motions, the attached exhibits, the relevant case law, and the 

entire record in the case, I deny Complainant’s motion for summary decision and grant 

Respondent’s motion for summary decision. 

I. BACKGROUND

Michael Wilson is a former employee of the Parkway Mine, an underground coal mine 

operated by Armstrong Coal Company in Muhlenberg County, Kentucky. Comp. Ex. B 

(Affidavit of Michael Wilson) at 1. He was employed at the mine as a continuous miner operator 

and loader operator from August 2009 until he retired on May 6, 2015. Id. He also served as a 

representative of miners beginning in February 2014, and continued in this capacity after his 

retirement. Id. at 1-2. Jim Browning was at all relevant times a miner at the Parkway Mine. Resp. 

Mot. at 2. 

On Saturday, June 13, 2015, Wilson visited the mine in his capacity as a representative of 

miners. Comp. Ex. B at 2. He sat at a table in the bathhouse to review the mine’s examination 

books. Id. Jim Browning was also at the mine to work the day shift. Resp. Ex. A (Affidavit of 

Jim Browning) at 1. Several other miners were in the bathhouse at the time. Comp. Ex. C 

(Affidavit of Justin Greenwell) at 1; Comp. Ex. D (Respondent’s Answers to Complainant’s First 

Set of Interrogatories) at 1. Wilson alleges that Browning walked up behind him, leaned over 

him, and asked what he was doing. Comp. Ex. B at 2. Although the two disagree over who was 

the first to become aggressive, they agree that they became involved in a verbal altercation over 

Wilson’s activities at the mine. Id.; Resp. Ex. A at 1-2. Wilson alleges that Browning accused 

him of looking at the books to find a violation so that inspectors could issue a citation to the 

company. Comp. Ex. B at 2. According to Wilson, Browning angrily told him to put the book 

down and leave because Wilson didn’t work at the mine anymore and there were other miners’ 

38 FMSHRC Page 1161
representatives at the mine. Id.; Comp. Ex. C at 1. Wilson also claims Browning told him Wilson 

was taking money out of his pocket by serving as a miners’ representative. Comp. Ex. B at 2-3; 

Comp. Ex. C. at 1. Wilson says he refused to leave because he had a right to look at the books. 

Comp. Ex. B at 3. Browning claims he initially spoke with Wilson to see whether there was a 

safety problem at the mine he needed to be concerned about. Resp. Ex. A at 1. Browning claims 

he asked Wilson twice what he was doing, to which Wilson replied, “Nothing,” shut the book, 

and turned and stood up in an agitated manner. Id. Browning claims he wanted to speak to 

Wilson about reporting safety violations to mine officials prior to reporting them to inspectors, 

but that he never got the chance because of Wilson’s aggressive response. Id. at 2. 

The parties agree that the mine superintendent, Danny Thorpe, intervened in the 

conversation after a few moments, telling Browning to leave and escorting him out of the 

bathhouse. Comp. Ex. D at 1-2. Thorpe suspended Browning for the rest of the day without pay 

and told him not to question Michael Wilson in the future. Id. at 2. 

Wilson continued to work as a miners’ representative that day and on future occasions. 

Comp. Ex. B at 3. 

Wilson filed a discrimination complaint regarding the incident with the Mine Safety and 

Health Administration (MSHA) on June 18, 2015. MSHA notified him on October 21, 2015, that 

it did not believe there was enough evidence to establish a violation of the Mine Act. On 

November 17, 2015, Wilson filed the instant complaint of discrimination with the Commission 

pursuant to Section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

815(c)(3) (“Mine Act”). 

II. SUMMARY JUDGMENT STANDARD

Commission Rule 67 provides: 

A motion for summary decision shall be granted only if the entire 

record, including the pleadings, depositions, answers to 

interrogatories, admissions, and affidavits, shows: 

(1) That there is no genuine issue as to any material facts; and 

(2) That the moving party is entitled to summary decision as a 

matter of law. 

29 C.F.R. § 2700.67(b). 

The Commission has explained that summary decision is an extraordinary procedure. 

Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994). In reviewing the record on 

summary decision, the judge must consider the record “in the light most favorable to ... the party 

opposing the motion.” Hanson Aggregates N.Y., Inc., 29 FMSHRC 4, 9 (Jan. 2007) (citing Poller 

v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473 (1962)). Inferences drawn from the facts in the

record must also be viewed in the light most favorable to the party opposing the motion. Id.

(citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

38 FMSHRC Page 1162
III. DISCUSSION

Wilson claims that Browning violated Section 105(c) of the Mine Act by interfering with 

Wilson’s exercise of his rights as a miners’ representative. Section 105(c)(1) provides: 

No person shall discharge or in any manner discriminate against ... 

or otherwise interfere with the exercise of the statutory rights of 

any miner, representative of miners or applicant for employment in 

any coal or other mine subject to this chapter because such miner, 

representative of miners or applicant for employment has filed or 

made a complaint under or related to this chapter, including a 

complaint notifying the operator or the operator's agent, or the 

representative of the miners at the coal or other mine of an alleged 

danger or safety or health violation in a coal or other mine, ... or 

because of the exercise by such miner, representative of miners or 

applicant for employment on behalf of himself or others of any 

statutory right afforded by this chapter. 

30 U.S.C.§ 815(c)(1) (emphasis added). Section 105(c)(3) permits a miner or his representative, 

after making an unsuccessful complaint to the Secretary, to file an action before the Commission 

on his own behalf “charging discrimination or interference in violation of paragraph (1).” 30 

U.S.C. § 815(c)(3). 

While the framework for evaluating interference claims has not been clearly established 

by the Commission, a framework proposed by the Secretary of Labor has been adopted by two 

Commissioners and a number of Commission Administrative Law Judges. See UMWA on behalf 

of Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2108 (Aug. 2014) (Jordan & Nakamura, 

Comm’rs), vacated, 620 Fed. Appx. 127 (3d Cir. 2015); id. at 2105-07; Sec’y of Labor on behalf 

of Greathouse v. Monongalia Cty. Coal Co., 38 FMSHRC __, slip op. at 7, No. WEVA 2015-

904-D (May 2, 2016) (ALJ); Pendley v. Highland Mining Co., 37 FMSHRC 301, 311 (Feb.

2015) (ALJ). Under the Franks test, an interference violation occurs if:

(1) a person’s action can be reasonably viewed, from the

perspective of members of the protected class and under the

totality of the circumstances, as tending to interfere with the

exercise of protected rights, and

(2) the person fails to justify the action with a legitimate and

substantial reason whose importance outweighs the harm caused to

the exercise of protected rights.

Franks, 36 FMSHRC at 2108. A claim of interference is “separate from the more usual 

intentional discrimination claims evaluated under the Pasula-Robinette framework,” which 

requires that a complainant prove he engaged in protected activity and suffered an adverse 

employment action motivated at least in part by the protected activity. Franks, 36 FMSHRC at 

2103 n.22 (Aug. 2014) (Young & Cohen, Comm’rs); Turner v. Nat’l Cement Co. of Cal., 33 

FMSHRC 1059, 1064 (May 2011); Sec’y of Labor on behalf of Pasula v. Consol. Coal Co., 2 

38 FMSHRC Page 1163
FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds sub nom. Consol. Coal Co. v. 

Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle 

Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). 

The Commission has recognized conduct as tending to interfere with the exercise of 

protected rights on a number of occasions. In Moses v. Whitley Development Corp., the 

Commission found that interference occurred when a miner’s supervisor questioned him about 

an accident report made to MSHA and repeatedly accused him in front of his coworkers of 

making the report. 4 FMSHRC 1475, 1477-79 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985). 

The Commission noted that “The persistence with which the subject of his supposed reporting of 

the bulldozer accident was raised and the accusatory manner in which it was done could logically 

result in a fear of reprisal and a reluctance to exercise the right in the future.” Id. at 1479. Two 

Commissioners reached a similar conclusion in Franks, which involved two miners who were 

repeatedly interrogated by a panel of managers, MSHA, and union officials, and ultimately 

suspended after a safety complaint was made at the mine. UMWA on behalf of Franks v. Emerald 

Coal Res., LP, 36 FMSHRC 2088, 2104 (Aug. 2014) (Jordan & Nakamura, Comm’rs)

(emphasizing persistence of the mine’s questioning of the miners), vacated, 620 Fed. Appx. 127 

(3d Cir. 2015). Finally, Gray v. N. Star Mining involved potentially threatening statements made 

by an assistant mine superintendent to a miner after the miner was subpoenaed to testify in a 

grand jury investigation. Sec’y of Labor on behalf of Gray v. N. Star Mining, Inc., 27 FMSHRC 

1, 2-3 (Jan. 2005). The Commission remanded the case for the judge to determine whether the 

comments were coercive in light of the totality of the circumstances. Id. at 10-11. The 

Commission directed the judge to consider factors including: 

the nature of Brummett’s [the speaker’s] and Gray’s relationship 

(the two were friends and Brummett helped him secure a job at 

North Star, and Brummett was a supervisor at North Star); the fact 

that the statements were made along with inquiries about Gray’s 

and Young’s testimony in a confidential grand jury investigation

into alleged criminal actions at the mine; and the fact that, on each 

occasion when Brummett spoke to Gray, he apparently sought to 

isolate him and talk to him one-on-one.

Id. at 11. 

A number of decisions by Commission Administrative Law Judges have also addressed 

interference complaints based on threatening or harassing conduct towards miners. In Shemwell 

v. Armstrong Coal Co., the judge found that a miner had pled a valid interference claim where a

supervisor encouraged other employees to build a disciplinary record against the miner when he

returned to work after a previous discrimination proceeding. 36 FMSHRC 2352, 2357 (Aug.

2014) (ALJ). The supervisor also made comments suggesting that future safety complaints by the

miner would not be taken seriously, and the mine’s safety director told the miner he should

“think about another career,” which the judge deemed threatening. Id. at 2358. In Pendley v.

Highland Mining Co., the judge found that interference occurred where managers took

examination books away from Pendley, a miners’ representative, when he tried to view them;

and a miner with whom Pendley had a long-standing feud approached and shouted at him in a

threatening manner on two occasions while he was accompanying inspectors. 37 FMSHRC 301,

303-05, 313-15 (Feb. 2015) (ALJ); see also Sec’y of Labor on behalf of Clapp v. Cordero

38 FMSHRC Page 1164
Mining, LLC, 33 FMSHRC 2977 (Dec. 2011) (ALJ) (noting that threatening comments made by 

a supervisor to an employee after she made a safety complaint were interference, but resolving 

case under discrimination provision because she was actually discharged), aff’d, 699 F.3d 1232 

(10th Cir. 2012). 

Finally, the Commission has expressed that it is appropriate for Commission judges to 

refer to cases interpreting the National Labor Relations Act (NLRA) when construing analogous 

provisions of the Mine Act. See Franks, 36 FMSHRC at 2107 n.2; Gray, 27 FMSHRC at 9 n.8. 

The Seventh Circuit has enumerated factors relevant to whether interrogation of an employee 

constitutes interference under Section 8(a)(1) of the NLRA. Multi-Ad Servs., Inc. v. NLRB, 255 

F.3d 363, 372 (7th Cir. 2001). While the case at hand does not involve interrogation, the factors

are nevertheless instructive:

Factors that ought to be considered in deciding whether a particular 

inquiry is coercive include the tone, duration, and purpose of the 

questioning, whether it is repeated, how many workers are 

involved, the setting, the authority of the person asking the 

question, and whether the company otherwise had shown hostility 

to the union. We also consider whether questions about protected 

activity are accompanied by assurances against reprisal and 

whether the interrogated worker feels constrained to lie or give 

noncommittal answers rather than answering truthfully. 

Id. (citation omitted). 

Wilson argues that Browning’s conduct on June 13, 2015, interfered with his exercise of 

his rights as a miners’ representative under the Act. Comp. of Discrim. at 3. Viewing the facts in 

the light most favorable to Wilson, on the day in question, Wilson was seated in the bathhouse 

reviewing the mine’s examination books in his capacity as a miners’ representative. At least one 

other miner was present. Browning walked up behind Wilson, leaned over him, and asked what 

he was doing. Browning accused Wilson of looking at the books to find a violation he could 

report to MSHA. He angrily said that Wilson was trying to hurt the company and was costing 

him money, and repeatedly told him to go home. After a few minutes, the mine superintendent 

entered the bathhouse, observed the scene, and told Browning to leave, escorting him out. The 

superintendent suspended Browning for the remainder of the day without pay and told him not to 

question Wilson in the future. Wilson continued to work as a miners’ representative that day and 

on future occasions. 

The altercation between Wilson and Browning seems to have arisen out of Browning’s 

concern that Wilson’s activities as a miners’ representative would cause financial harm to the 

company and therefore threaten Browning’s job. He ultimately expressed that opinion in an 

agitated manner that Wilson may have perceived as threatening. However, applying the factors 

from Multi-Ad and Commission interference cases, I do not find that the record supports an 

interference claim against Browning. 

38 FMSHRC Page 1165
First, the Seventh Circuit and the Commission have stated that the position of the person 

whose conduct is at issue is an important factor in analyzing interference claims. Multi-Ad 

Servs., 255 F.3d at 372; Gray, 27 FMSHRC at 11. In all of the cases discussed above except for 

Pendley, the actions found to constitute interference were done by a supervisor or other 

management official. In Gray, the Commission noted that speech between an employee and his 

employer has special significance because of “the economic dependence of the employees on 

their employers, and the necessary tendency of the former, because of that relationship, to pick 

up intended implications of the latter that might be more readily dismissed by a more 

disinterested ear.” 27 FMSHRC at 10 (quoting NLRB v. Gissel Packing Co., 395 U.S. 575, 617 

(1969)). In an employment relationship, in other words, there is heightened potential for 

communications to have a coercive effect. In this case, however, the person accused of 

interference was not a manager, but rather a miner. Wilson was not an employee at the mine, and 

Browning had no authority over him. Accordingly, Browning’s actions should be understood as 

having less coercive effect than in comparable cases like Gray where the actions were done by a 

supervisor. 

The Seventh Circuit and the Commission have also instructed judges to consider the tone 

and setting of the encounter. Multi-Ad Servs., 255 F.3d at 372; Gray, 27 FMSHRC at 11. In 

several of the Commission cases, the complainant faced intimidating situations such as 

questioning by a panel of managers, Franks, 36 FMSHRC at 2112, or a one-on-one encounter 

with a supervisor outside of work, Gray, 27 FMSHRC at 11. Here, Browning took an aggressive 

tone with Wilson that could have been interpreted as intimidating. The effect was mitigated 

slightly by the fact that the encounter took place in the bathhouse in front of several witnesses. 

Finally, the Commission and Seventh Circuit have looked at the duration of the conduct 

and whether the subject was brought up repeatedly. Multi-Ad Servs., 255 F.3d at 372; Moses, 4 

FMSHRC at 1479. In Franks, the Commissioners noted that “The persistence of the managers’ 

questioning, in the face of the miners’ repeated refusal to provide the names of the firebosses, 

also added to the coercive quality of the questioning.” 36 FMSHRC at 2114. The Commission in 

Moses similarly emphasized “the persistence with which the subject” of the miner’s protected 

activity was raised. 4 FMSHRC at 1479. In this case, however, the encounter between Wilson 

and Browning was an isolated incident. Browning was suspended as a result of his conduct, and 

so was unlikely to disturb Wilson again. Wilson has not alleged that any similar incidents 

involving Browning have occurred subsequently. Thus, it is unlikely that Wilson views 

Browning as an ongoing threat that would dissuade him from working as a miners’ 

representative. 

In addition to these factors, it is worth noting that the incident does not appear to have 

had an actual effect on Wilson’s exercise of his rights as a miners’ representative. Wilson 

continued working as a representative that day and in the future, and has not alleged that he 

altered his conduct as a result of the incident. Browning argues that Wilson’s failure to plead an 

adverse action compels dismissal of the case. Resp. Mot. at 7. However, the Commission has not 

established that a demonstrable adverse impact is a necessary element of an interference claim. 

See Gray, 27 FMSHRC at 9 (“[I]nterference, restraint, and coercion under Section 8(a)(1) of the 

[NLRA] does not turn on the employer’s motive or on whether the coercion succeeded or failed.” 

(second alteration original) (quoting Am. Freightways Co., 124 N.L.R.B. 146, 147 (1959))); see 

38 FMSHRC Page 1166
also Nat’l Steel & Shipbuilding Co. v. NLRB, 156 F.3d 1268, 1271 (D.C. Cir. 1998) (“An 

employer violates § 8(a)(1) if its actions have merely a tendency to coerce, regardless of their 

actual impact in a particular case.” (internal quotation omitted)). I therefore decline to dismiss 

the case on that basis alone. Nevertheless, I find the fact that Wilson continued to serve as a 

representative to be persuasive evidence that a reasonable miner would not have been dissuaded 

from exercising his rights in this situation. 

Considering all of these factors together, I conclude that Browning’s actions did not 

constitute interference with Wilson’s exercise of his rights as a miners’ representative. A single 

altercation between a miner and a representative with no discernible effect on protected activity 

at the mine does not rise to the level of interference recognized as actionable in past Commission 

cases. It is simply beyond the scope of Section 105(c). Because I base my decision on this 

rationale, I do not find it necessary to discuss the First Amendment defense raised by Browning 

in his motion for summary decision. Finally, I find no basis to award attorney’s fees in this case. 

IV. ORDER

Based on my review of the record and the applicable law, I find that there is no dispute of 

material fact and that Respondent is entitled to summary decision as a matter of law. 

Accordingly, Respondent’s motion for summary decision is GRANTED and Complainant’s 

cross motion for summary decision is DENIED. The complaint of discrimination filed by 

Michael Wilson is hereby DISMISSED. 

/s/ Margaret A. Miller

Margaret A. Miller 

Administrative Law Judge 

Distribution: (U.S. First Class Certified Mail) 

Tony Oppegard, P.O. Box 22446, Lexington, KY 40522 

Wes Addington, Appalachian Citizens’ Law Center, 317 Main Street, Whitesburg, KY 41858 

Thresa Hinton, Hinton & Hinton, 236 South Franklin Street, P.O. Box 895, Madisonville, KY 

42431 

38 FMSHRC Page 1167
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May 25, 2016 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

MACH MINING, INC., 

 Respondent

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2014-77 

A.C. No. 11-03141-334561

Docket No. LAKE 2014-132 

A.C. No. 11-03141-337701

Mine: Mach Mining No. 1 Underground 

Mine

DECISION AND ORDER 

Appearances: Thomas J. Motzny, Esq., Office of the Solicitor, U.S. Dept. of Labor,

Nashville, Tennessee for Petitioner 

Christopher D. Pence, Esq., Hardy Pence, PLLC, Charleston, West 

Virginia for Respondent 

Before: Judge McCarthy 

I. Statement of the Case

These cases are before me are upon two Petitions for Assessment of Civil Penalty under 

section 105(d) of the Federal Mine Safety and Health Act of 1977, as amended, (“the Mine 

Act”), 30 U.S.C. § 815(d). The two dockets at issue contain 16 citations alleging violations of 

mandatory health and safety standards. Prior to hearing, one citation was vacated and the parties 

settled nine others. At hearing, Respondent moved for a directed verdict on Citation Nos. 

8443200 and 8443901 in Docket No. LAKE 2014-132. The undersigned granted the motion 

38 FMSHRC Page 1168
because the Secretary’s evidence did not support a violation of section 75.821(a). Tr. 242-62.1

Citations No. 8451651 in Docket No. LAKE 2014-132, and Citation Nos. 8439446, 8432319, 

8439454, and 8452203 in Docket No. LAKE 2014-77, remain to be adjudicated after hearing. 

1

 Both citations alleged that Respondent violated Section 75.821(a) because chip alerts 

were not working on longwall equipment. A mule train is comprised of several pieces of 

equipment that distribute power to the longwall. Tr. 53. Power enters the unit through a 

disconnect box, which can be switched on or off, and then travels to the power centers within the 

mule train. Tr. 55. Chirp alerts indicate that the equipment is energized by making a chirping 

noise and emitting a flashing light. Tr. 32-33. On the cited disconnect box in Citation No. 

8443200, the chirp alert failed to make the chirping sound. Tr. 37. On the cited power center in 

Citation 8443901, the chirp alert failed to make the chirping sound and the flashing light failed. 

Id. MSHA inspector John Butcher testified that without notification from the chirp alerts that a 

piece of equipment is energized, the miners are at risk of fatal injuries from electrocution. Tr. 65-

66, 74-75. Essentially, the Secretary argues that since the equipment was not being maintained, 

there was a violation of Section 75.821(a). Section 75.821(a) requires that every seven days, a 

person qualified to perform electrical work must test and examine longwall equipment to 

determine that such equipment is being properly maintained. 30 U.S.C. §75.821(a). 

The Secretary failed to establish that Respondent did not assign a qualified person to test 

and examine the chirp alerts within the last seven days to ensure that the equipment was being 

properly maintained. Inspector Butcher conceded on cross examination that as far as he knew, 

the required testing was actually performed and that he was not alleging that the mine was not 

conducting the appropriate testing and examination, but merely alleging that the chip alerts on 

the inspected equipment were not working properly. Tr. 109. 

Q: ...As far as you know, the test that was required every seven days was 

actually performed, correct? 

A: As far as I know, yes. 

Q: Okay. And that’s not your allegation, is it, that the test— 

A: No. 

Q: —wasn’t performed? 

A: No. 

Q: Okay. So your—your allegation is — is not that the mine wasn’t 

conducting examinations? Your allegation is — is, When I inspected this 

equipment, the chirp alert wasn’t working, right? 

A: Yes. 

Q: So there’s no dispute in your mind that the tests that are required by 

[Section] 75.821(a) were actually performed at the times required, correct? 

A: Correct. 

Tr. 109. In these circumstances, I found that Respondent complied with the requirements of § 

75.821(a), and granted Respondent’s motion for directed verdict. Tr. 242-62. 

38 FMSHRC Page 1169
A hearing was held on in Carbondale, Illinois. During the hearing, the parties introduced 

testimony and documentary evidence.2 Witnesses were sequestered. Thereafter, the parties 

submitted post-hearing briefs. 

For the reasons set forth below, I modify Citation No. 8451651 to reduce the level of 

negligence from “high” to “moderate.” I modify Order No. 8452203 to raise the level of 

negligence from “moderate” to “high.” I find that Citation Nos. 8439446, 8432319, 8439454 

were properly issued, as written. I assess a total civil penalty of $32,636 for the five citations 

adjudicated herein. 

Based on a careful review of the entire record, including the parties’ post-hearing briefs 

and my observation of the demeanor of the witnesses,3 I make the following findings of fact and 

conclusions of law: 

II. PRINCIPLES OF LAW 

A. Establishing a Violation 

To prevail on a penalty petition, the Secretary bears the burden of proving by a 

preponderance of the evidence that a violation of the Mine Act occurred. RAG Cumberland Res. 

Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), aff’d, 272 F.3d 590 (D.C. Cir. 2001). A mine 

operator is held strictly liable for violations that occur at its mine. Spartan Mining Co., 30 

FMSHRC 699, 706 (Aug. 2008). The operator may avoid liability only by showing that it was 

not properly on notice of the violative nature of its conduct. Even in the absence of actual notice, 

the Secretary may properly charge the operator with a violation when a reasonably prudent 

person familiar with the protective purposes of the cited standard and the factual circumstances 

surrounding the allegedly hazardous condition, including any facts peculiar to the mining 

industry, would have recognized a hazard warranting corrective action within the purview of the 

applicable regulation. LaFarge North America, 35 FMSHRC 3497, 3500-01 (Dec. 2013); Ideal 

Cement Co., 12 FMSHRC 2409, 2415-16 (Nov. 1990); Alabama By-Products Corp., 4 

FMSHRC 2128, 2129 (Dec. 1982). 

B. Gravity

The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is 

often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 

2

 ALJ Exhibits (ALJ Exs.) 1-8, Petitioner Exhibits (P. Exs.) 100-115, Respondent 

Exhibits (R. Exs.)1-8 and 11, and Joint Exhibit (J. Ex.) 1 were received into evidence. Tr. 10, 19-

20, 304. R. Exs. 9 and 10 were not offered into evidence. Tr. 757. 

3

 In resolving conflicts in testimony, I have taken into consideration the demeanor of the 

witnesses, their interests in this matter, the inherent probability of their testimony in light of 

other events, corroboration or lack of corroboration for testimony given, experience and 

credentials, and consistency, or lack thereof, within the testimony of witnesses and between the 

testimony of witnesses. 

38 FMSHRC Page 1170
1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983), 

aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 

(Apr. 1987)). The seriousness of a violation can be examined by looking at the importance of the 

standard violated and the operator’s conduct with respect to that standard, in the context of the 

Mine Act’s purpose of limiting violations and protecting the safety and health of miners. See,

e.g., Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ).

The gravity analysis focuses on factors such as the likelihood of an injury, the severity of 

an injury, and the number of miners potentially injured. The Commission has recognized that an 

assessment of the likelihood of injury is to be made assuming continued normal mining 

operations, without abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 

(Aug. 1985). 

C. Significant and Substantial (S&S)

The Mine Act describes an S&S violation as one “of such nature as could significantly 

and substantially contribute to the cause and effect of a coal or other mine safety or health 

hazard.” 30 U.S.C. § 814(d)(1).4

 

In a seminal early decision interpreting this statutory provision, the Commission held that 

a violation is S&S “if, based on the particular facts surrounding the violation, there exists a 

reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

In so holding, the Commission rejected the Secretary’s argument that all violations are S&S 

except technical violations or violations that pose only a remote or speculative risk of injury or 

illness. The Commission found that the Secretary’s interpretation would result in almost all 

violations being categorized as S&S, which would be inconsistent with the statutory language 

and the role the S&S provision is intended to play in the Mine Act’s graduated enforcement 

scheme. 3 FMSHRC at 825, 828. The Commission also found that the Secretary’s interpretation 

would leave little room for inspectors to exercise their independent judgment. Id. at 825-26.5 In 

addition, the Commission found that the Secretary’s interpretation would render the Act’s S&S 

language almost superfluous, and would render the Act’s pattern-of-violation provisions wholly 

punitive by making it almost impossible for a mine to be relieved of withdrawal order liability 

once placed on notice of a pattern of violations. Id. at 826-27. Although the Commission did not 

4

 See also id. § 814(e), the Mine Act’s pattern-of-violations provision, which is the only 

other provision that mentions S&S, and which defines the term the same way as § 814(d)(1). 

5

 The Commission has consistently reiterated that the inspector’s judgment is an 

important element of the S&S determination. However, the concept has generally been raised in 

the context of deferring to the inspector’s opinion that a violation was S&S, rather than in the 

context of examining whether the inspector exercised independent judgment in forming this 

opinion as opposed to merely following the “mechanical approach” advanced by the Secretary 

and rejected by the Commission in National Gypsum, 3 FMSHRC at 825. See, e.g., Wolf Run 

Mining Co., 36 FMSHRC 1951, 1959 (Aug. 2014); Maple Creek Mining, Inc., 27 FMSHRC 555, 

563 n.6 (Aug. 2005); Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998). 

38 FMSHRC Page 1171
develop a test to determine whether violations are S&S, it enunciated several guiding principles. 

Specifically, it stated that the term “hazard” denotes “a measure of danger to safety or health” 

and that a violation is S&S if it “could be a major cause” of such a danger. Id. at 827. 

In its subsequent Mathies decision, the Commission set forth a four-prong test for 

determining whether a violation is S&S under National Gypsum. Mathies Coal Co., 6 FMSHRC 

1 (Jan. 1984). To establish an S&S violation, the Secretary must prove: (1) the underlying 

violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of 

danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. Id. at 3-4. The Secretary, mine operators, and the federal 

appellate courts have accepted the Mathies test as authoritative. See Knox Creek Coal Corp. v. 

Sec’y of Labor, 811 F.3d 148, 160 (4th Cir. 2016) (noting federal appellate courts’ uniform 

adoption of Mathies test and parties’ recognition of authority of test); Mach Mining, LLC v. 

Sec’y of Labor, 809 F.3d 1259, 1267 (D.C. Cir. 2016) (applying Mathies criteria); Buck Creek 

Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135 (7th Cir. 1995) (recognizing 

wide acceptance of Mathies criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th 

Cir. 1988) (approving use of Mathies criteria). 

Ensuing case law has solidly established several general principles regarding the proper 

application of the Mathies test. The Commission has held that the S&S determination should be 

made assuming “continued normal mining operations.” McCoy Elkhorn Coal Corp., 36 

FMSHRC 1987, 1990-91 (Aug. 2014) (citing U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 

(Aug. 1985)). The assumption of continued normal mining operations considers “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,” without any assumptions as to abatement. Black 

Beauty Coal Co., 34 FMSHRC 1733, 1740 (Aug. 2012), aff’d sub nom. Peabody Midwest 

Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014); Rushton Mining Co., 11 FMSHRC 

1432, 1435 (Aug. 1989); see also Knox Creek, 811 F.3d at 165-66 (upholding Commission’s 

rejection of “snapshot” approach to evaluating S&S for accumulations violation); Mach Mining, 

809 F.3d at 1267-68 (citing with approval McCoy Elkhorn’s discussion of operative timeframe 

for S&S). The Commission has repeatedly stated that the S&S determination must be based on 

the particular facts surrounding the violation. See, e.g., Wolf Run Mining Co., 36 FMSHRC 1951, 

1957-59 (Aug. 2014) (remanding S&S finding for further consideration of relevant 

circumstances); Black Beauty, 34 FMSHRC at 1740; Peabody Coal Co., 17 FMSHRC 508, 511-

12 (Apr. 1995); Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988). 

A line of cases beginning with the Seventh Circuit’s decision in Buck Creek, supra, has 

established that an operator cannot rely on redundant safety measures to mitigate the likelihood 

of injury for S&S purposes. See, e.g., Brody Mining, LLC, 37 FMSHRC 1687, 1691 (Aug. 

38 FMSHRC Page 1172
2015).6

 Finally, Commission precedent indicates that the likelihood of injury is the key 

consideration in determining whether a violation is S&S. Consolidation Coal Co., 18 FMSHRC 

1541, 1550 (Sept. 1996) (comparing S&S inquiry, which focuses on “the reasonable likelihood 

of serious injury,” with gravity inquiry, which focuses on “the effect of the hazard if it occurs”).

The evolving case law, however, has presented conflicting guidance as to how some of 

these principles should be applied. In particular, there is some confusion about how to evaluate 

the facts surrounding the violation and the likelihood of injury under the second and third prongs 

of the Mathies analysis. The Fourth Circuit’s recent decision in Knox Creek, supra, and the 

Seventh Circuit’s decision in Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 

2014), have cast doubt on whether the traditional application of the literal language of the second 

and third prongs of the Mathies test is still valid. 

Traditional Application of Mathies Test 

Under the traditional approach, Commission Administrative Law Judges (ALJs) have 

conducted the fact-intensive component of the analysis and evaluated the reasonable likelihood 

of injury at the third prong. In one of its earliest decisions applying the Mathies test, the 

Commission explained that “the reference to ‘hazard’ in the second element [of the test] is 

simply a recognition that the violation must be more than a mere technical violation – i.e., that 

the violation present a measure of danger.” U.S. Steel Mining Co., 6 FMSHRC 1834, 1836. 

“There is no requirement of ‘reasonable likelihood’” encompassed in this element. Musser 

Engineering, Inc., 32 FMSHRC 1257, 1280 (Sept. 2010). Rather, longstanding Commission 

precedent indicates that the likelihood of harm should be accounted for in the third Mathies 

element, which “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, 6 FMSHRC at 1836 

(quoted by the Commission on numerous occasions over the next two decades, including in Elk 

Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); Bellefonte Lime Co., 20 FMSHRC 1250, 

1254-55 (Nov. 1998); Zeigler Coal Co., 15 FMSHRC 949, 953 (June 1993); and Texasgulf, 10 

FMSHRC at 500). As the Commission explained in another early decision, “The third element 

embraces a showing of a reasonable likelihood that the hazard will occur, because, of course, 

there can be no injury if it does not.” Consolidation Coal Co., 6 FMSHRC 189, 193 (Feb. 1984). 

Following this guidance, ALJs have traditionally applied Mathies by identifying the 

potential hazard at the second prong, and then at the third prong, assessing whether there is a 

6

 It is not completely clear whether redundant safety measures are precluded from 

consideration such that it is error to take them into account, which could make it difficult for 

judges at the trial level to discharge their duty of considering all the particular facts surrounding 

the violation, or whether arguments that rely on redundant safety measures are simply disfavored 

as a defense to S&S. Compare Brody Mining, 37 FMSHRC at 1691 (stating that evidence 

regarding redundant safety measures has been “consistently rejected as irrelevant”) with Black 

Beauty, 36 FMSHRC 1121, 1125 n.5 (May 2014) (stating only that such measures “do not 

prevent a finding of S&S”) and Buck Creek, 52 F.3d at 136 (“The fact that Buck Creek has safety 

measures in place to deal with a fire does not mean that fires do not pose a serious safety risk to 

miners.”). 

38 FMSHRC Page 1173
reasonable likelihood that the hazard will result in injury under the particular facts of the case at 

hand, with the caveat that normal mining operations are assumed to continue without abatement 

of the violation. The crux of this traditional Mathies analysis is the third and fourth prongs of the 

test, which effectuate National Gypsum’s definition of S&S (reasonable likelihood of a 

reasonably serious injury) and are often combined into a single showing (reasonable likelihood 

that a particular serious injury will occur under the facts of the case). Consistent with this 

approach, MSHA inspectors determine whether a violation meets the criteria for S&S by the 

likelihood of injury and the expected severity of injury, which correspond to the third and fourth 

Mathies elements.7

 

Over the years, it appears that the Commission, with court approval, has developed 

special rules for applying the Mathies test in two situations. First, for violations that contribute to 

the hazard of an ignition, fire, or explosion, the Commission has held that the third Mathies 

element is satisfied only when a “confluence of factors” is present that could have triggered an 

ignition, fire, or explosion, under continued normal mining operations. Zeigler Coal Co., 15 

FMSHRC at 953; Texasgulf, 10 FMSHRC at 501; see, e.g., Paramont Coal Co. Va., LLC, 37 

FMSHRC 981, 984 (May 2015). Second, for violations of emergency safety standards, the 

Commission assumes the emergency when making the S&S evaluation. See, e.g., Cumberland 

Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1027-28 (D.C. Cir. 2013); Mill Branch Coal Corp., 

37 FMSHRC 1383, 1394 (July 2015). 

Effect of Recent Fourth & Seventh Circuit Decisions 

The Fourth Circuit’s recent Knox Creek decision issued in January 2016 appears to shift 

the focus of the S&S analysis from the third to the second Mathies prong and to restrict 

consideration of the facts bearing on the reasonable likelihood of injury under the third prong. 

The Fourth Circuit interpreted the second Mathies prong to entail an inquiry into the likelihood 

of harm, stating: 

In our view, the second prong of the test ... primarily accounts for 

the Commission’s concern with the likelihood that a given 

violation may cause harm. This follows because, for a violation to 

contribute to a discrete safety hazard, it must be at least somewhat 

likely to result in harm. 

Knox Creek, 811 F.3d at 162. Significantly, the Fourth Circuit further held that the occurrence of 

the hazard must be assumed under the third prong of the Mathies test. Id. at 161-65. Evidence of 

the likelihood that the hazard will occur is not considered at this prong, according to the Fourth 

7

 The Secretary’s citation/order form contains boxes for inspectors to check the likelihood 

of injury and the expected severity of injury immediately above the line where they designate the 

violation S&S or non-S&S. Inspectors are trained not to designate a violation as S&S, unless 

item 10.A on the form is marked “reasonably likely,” “highly likely,” or “occurred,” and item 

10.B is marked “lost workdays or restricted duty,” “permanently disabling,” or “fatal.” See

MSHA, PROGRAM POLICY MANUAL, Vol. I, § 104 (2003).

38 FMSHRC Page 1174
Circuit. Rather, the inquiry is whether the hazard, assuming it occurred, would result in serious 

injury. Id. at 162. 

The particular hazard confronted by the Fourth Circuit in Knox Creek was the escape of 

ignited gas into the mine atmosphere through impermissible enclosures. Id. at 164. The parties 

had stipulated that the mine was a “gassy” mine that liberated more than 500,000 cubic feet of 

methane or other explosive gases per day. Id. at 164. Consequently, the ALJ had found that 

methane was reasonably likely to accumulate to explosive concentrations. Id. The ALJ had also 

found that a resulting explosion was reasonably likely to cause serious injuries, but he had 

ultimately declined to find that the violation was S&S because the Secretary had failed to prove 

the likelihood of an ignition. Id. at 154, 164-65. Without discussing the likelihood of ignition, the 

Fourth Circuit deemed the ALJ’s other findings sufficient to satisfy the third Mathies prong. Id. 

Previously, in Peabody Midwest Mining, the Seventh Circuit had similarly suggested that 

the S&S analysis assumes the occurrence of the hazard. The violation at issue in that case was 

the mine operator’s failure to erect berms on an elevated roadway. The Seventh Circuit defined 

the hazard as the risk that a vehicle would veer off the roadway and go over the edge. Peabody 

Midwest, 762 F.3d at 616. The operator had argued that a vehicle was not reasonably likely to 

veer off the road. Id. However, the Seventh Circuit stated that the question “is not whether it is 

likely that the hazard (a vehicle plummeting over the edge) would have occurred” but “whether, 

if the hazard occurred (regardless of likelihood), it was reasonably likely that a reasonably 

serious injury would result.” Id. 

Peabody Midwest does not discuss the proper role of deference in the S&S context, but 

the Fourth Circuit reached its holding in Knox Creek by deferring to the Secretary’s 

interpretation that the third Mathies element requires proof that the hazard, not the violation 

itself, is likely to cause injury. 811 F.3d at 161 (declining to afford deference under Chevron, 

USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), but finding the Secretary’s 

interpretation persuasive and therefore entitled to deference under Skidmore v. Swift & Co., 323 

U.S. 134 (1944)). The Fourth Circuit further asserted that this interpretation is consistent with a 

number of prior cases, including the Seventh Circuit’s decisions in Peabody Midwest and in 

Buck Creek, supra, 52 F.3d at 135 (assuming occurrence of fire at third Mathies prong when ALJ 

had engaged in “confluence of factors” analysis at second prong); the Fifth Circuit’s decision in 

Austin Power, supra, 861 F.2d at 103-04 (declining to require evidence that the hazard was likely 

to occur); and the Commission’s decision in Musser Engineering, supra, 32 FMSHRC at 1280-

81 (stating that the third Mathies prong requires a showing that the hazard, not the violation 

itself, will cause injury). 811 F.3d at 161-62.8

 The Fourth Circuit rejected the operator’s 

8

 It is debatable to what extent Austin Power and Buck Creek truly stand for the 

proposition the Fourth Circuit seems to be embracing, which is that the actual likelihood of 

injury is irrelevant, except to the extent necessary to establish a “discrete” hazard at the second 

Mathies prong. In Austin Power, the Fifth Circuit upheld an S&S finding for a fall protection 

violation, reasoning that “[a] danger of falling is a necessary element of this violation, so by the 

very nature of a violation there was a discrete safety hazard.” 861 F.2d at 103. However, the 

hazard had actually occurred and had resulted in a fatality, which may have influenced the 

(continued...) 

38 FMSHRC Page 1175
argument that under Zeigler Coal Company, supra, the Secretary must show that an ignition is 

reasonably likely under the third Mathies prong. 811 F.3d at 164. The Court found this position 

to be “flatly contradicted” by Musser Engineering and by decisions of other federal appellate 

courts. Id. 

The Fourth Circuit emphasized, however, that the Mathies approach that it has adopted 

“still allows plenty of room for a fact-intensive S & S analysis, both under prong two, where the 

Secretary must establish that the violation contributes to a discrete safety hazard, and within 

prongs three and four, where evidence is still necessary to establish that the hazard is reasonably 

likely to result in a serious injury.” Id. Realistically, however, it will likely require very little 

fact-specific analysis to conclude that any given non-technical violation contributes to a discrete 

safety hazard, because the Secretary generally does not promulgate a mandatory health and 

safety regulation (except technical regulations), unless the Secretary has already found that 

violating the standard would contribute to a hazard. Under the third Mathies prong, judges must 

consider all of the facts surrounding the violation, but must assume continued normal mining 

operations without abatement of the violation, and may not rely on redundant safety measures to 

mitigate the likelihood of injury. Now, under Knox Creek and Peabody Midwest Mining, judges 

must also assume that the hazard will actually occur. At some point, so many circumstances are 

either assumed or precluded from consideration that judges will find themselves evaluating the 

likelihood of injury in the abstract. If this is the case, the Commission will have turned its back 

on the principles set forth in National Gypsum because the Mathies test will have become a 

longhand expression for “non-technical violations.” S&S will apply to almost all violations and 

therefore will no longer serve as a statutory tool by which the Secretary can single out the 

violations that he believes the Commission should consider significant and substantial when 

assessing a penalty. 

As noted above, the Fourth Circuit reached its result in Knox Creek by deferring to the 

Secretary’s interpretation of the Mine Act, and the Seventh Circuit reached a similar result. At 

the outset of its analysis, the Fourth Circuit indicated that it would review the Commission’s 

legal conclusions de novo but would afford deference to the Secretary’s, not the Commission’s, 

legal interpretations. Id. at 157 (citing Sec’y of Labor ex rel. Wamsley v. Mut. Mining, Inc., 80 

F.3d 110, 113-15 (4th Cir. 1996), in which the Fourth Circuit discussed the Mine Act’s splitenforcement scheme and concluded that an informal rule created and implemented by the

Secretary was entitled to deference over a contrary Commission decision).

8

 (...continued) 

Court’s failure to require additional evidence of likelihood at the third Mathies prong. 861 F.2d 

at 100. In Buck Creek, the Seventh Circuit did not expressly discuss the proper application of the 

Mathies test, but simply rejected the mine operator’s argument that the ALJ had not put enough 

emphasis on the third and fourth Mathies factors when evaluating S&S for an accumulations 

violation. 52 F.3d at 135. The ALJ had made a finding at the second Mathies prong (rather than 

the third) that there existed a confluence of factors, including fuel sources and ignition sources, 

that could trigger a fire. Id. By contrast, in Knox Creek, the Fourth Circuit did not require a 

“confluence of factors” analysis or a showing that an ignition source existed at any prong of the 

Mathies test.

38 FMSHRC Page 1176
It is not surprising that the Circuit Courts have departed somewhat from the traditional 

Mathies analysis in favor of the Secretary’s legal interpretation, given the rule of deference 

mentioned above, and given the fact that the Secretary’s attorneys, and not the Commission’s, 

are the ones who argue for enforcement of the Commission’s decisions in the Circuit Courts of 

Appeals. That latter protocol is strange. Notwithstanding the propriety of the rule of deference 

applied by the Fourth Circuit, which raises concerns that I previously discussed in Knife River 

Corporation Northwest, 34 FMSHRC 1109, 1125-27 (May 2012) (ALJ), it does not make sense 

that although Congress conferred independent adjudicatory authority upon the Commission to 

serve as an impartial forum for Mine Act litigation, and although the Commission itself laid out 

the test that parties have followed for more than thirty years to litigate S&S in this forum, the 

Secretary is permitted to challenge the Commission’s interpretation of this long-standing test in 

the Circuit Courts of Appeals and litigate his own interpretation on behalf of the Commission. It 

should be obvious that since the Secretary is one of the litigating parties before the Commission 

at the trial level, the Commission’s and the Secretary’s views on interpretation of the Act may 

differ. See e.g., The American Coal Co., 36 FMSHRC 1311 (May 2014) (ALJ), petition for 

interlocutory review granted, Unpublished Order dated July 11, 2014. In my view, the 

Commission’s interpretations of Mine Act provisions that turn on adjudication and not 

enforcement should be accorded at least some form of deference based on the power to persuade, 

as evidenced by the fact that courts and litigants have uniformly followed the Commissionderived Mathies test.9 Compare Chevron, supra (according full deference to agency’s reasonable 

interpretation of ambiguous statutory provision) with United States v. Mead Corp., 533 U.S. 218 

(2001) (according deference based on “power to persuade” under Skidmore, supra, and finding 

that Chevron applies only where the agency was authorized by Congress to make rules carrying 

the force of law and did in fact promulgate the proffered interpretation in the exercise of that 

authority). It is within the Commission’s authority to specify how the second and third factors of 

the Mathies test should be applied – particularly, whether the hazard must now be assumed at the 

third factor, and if so, what steps of the test account for the facts surrounding the violation – and 

whether the Mathies test is still intended to effectuate National Gypsum’s interpretation of the 

S&S provisions of the Mine Act or whether the Commission now interprets S&S differently. 

Because I am bound by the Mathies test, I will evaluate S&S under this test after taking 

into consideration the more recent approach set forth in Knox Creek and Peabody Midwest 

Mining. 

D. Negligence

Negligence is not defined in the Mine Act. The Commission has found “[e]ach 

mandatory standard thus carries with it an accompanying duty of care to avoid violations of the 

standard, and an operator’s failure to satisfy the appropriate duty can lead to a finding of 

negligence if a violation of the standard occurred.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 

(Jan. 1983) (citations omitted). In determining whether an operator meets its duty of care under 

the cited standard, the Commission considers what actions would have been taken under the 

same or similar circumstances by a reasonably prudent person familiar with the mining industry, 

9 But see Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1027 (D.C. Cir. 2013) 

(expressly declining to address validity of Mathies test). 

38 FMSHRC Page 1177
the relevant facts, and the protective purpose of the regulation. See generally U.S. Steel Corp., 6 

FMSHRC 1908, 1910 (Aug. 1984). See also Jim Walter Res., Inc., 36 FMSHRC 1972, 1975, 

1976-77 (Aug. 2014) (requiring Secretary to show that operator failed to take specific action 

required by standard violated); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008) 

(negligence inquiry circumscribed by scope of duties imposed by regulation violated). 

The Mine Act imposes a high standard of care on foremen and supervisors. Midwest 

Material Co., 19 FMSHRC 30, 35 (Jan. 1997) (holding that “a foreman ... is held to a high 

standard of care”); see also Capitol Cement Corp., 21 FMSHRC 883, 892-93 (Aug. 1999) 

(“Managers and supervisors in high positions must set an example for all supervisory and 

nonsupervisory miners working under their direction,” (quoting Wilmot Mining Co., 9 FMSHRC 

684, 688 (Apr. 1987)); S&H Mining, Inc., 17 FMSHRC 1918, 1923 (Nov. 1995) (heightened 

standard of care required of section foreman and mine superintendent). 

Although MSHA’s regulations regarding negligence are not binding on the Commission, 

see Wade Sand & Gravel Co., 37 FMSHRC 1874, 1878 n.5 (Sept. 2015), MSHA defines 

negligence by regulation in the civil penalty context as follows: 

Negligence is conduct, either by commission or omission, which 

falls below a standard of care established under the Mine Act to 

protect miners against the risks of harm. Under the Mine Act, an 

operator is held to a high standard of care. A mine operator is 

required to be on the alert for conditions and practices in the mine 

that affect the safety or health of miners and to take steps necessary 

to correct or prevent hazardous conditions or practices. The failure 

to exercise a high standard of care constitutes negligence. The 

negligence criterion assigns penalty points based on the degree to 

which the operator failed to exercise a high standard of care. 

When applying this criterion, MSHA considers mitigating 

circumstances which may include, but are not limited to, actions 

taken by the operator to prevent or correct hazardous conditions or 

practices . . . . 

30 C.F.R. § 100.3(d). 

MSHA regulations further provide that mitigation is something the operator does 

affirmatively, with knowledge of the potential hazard being mitigated, and that tends to reduce 

the likelihood of an injury to a miner. This includes actions taken by the operator to prevent or 

correct hazardous conditions. 30 C.F.R. § 100.3(d). According to MSHA, the level of 

negligence is properly designated as high when “[t]he operator knew or should have known of 

the violative condition or practice, and there are no mitigating circumstances.” 30 C.F.R. § 

100.3, Table X. The level of negligence is properly designated as moderate when “[t]he operator 

knew or should have known of the violative condition or practice, but there are mitigating 

circumstances.” Id. The level of negligence is properly designated as low when there are 

considerable mitigating circumstances surrounding the violation. Id. 

38 FMSHRC Page 1178
Recently, the Commission held that Commission judges are not required to apply the 

level-of-negligence definitions in Part 100 and may evaluate negligence from the starting point 

of a traditional negligence analysis rather than from the Part 100 definitions. Brody Mining, LLC, 

37 FMSHRC 1687, 1701 (Aug. 2015); accord Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 

1259, 1263-64 (D.C. Cir. 2016). Moreover, because Commission judges are not bound by the 

definitions in Part 100 when considering an operator’s negligence, they are not limited to a 

specific evaluation of potential mitigating circumstances, and may find “high negligence,” in 

spite of mitigating circumstances, or moderate negligence, without identifying mitigating 

circumstances. Brody, 37 FMSHRC at 1701; Mach Mining, 809 F.3d at 1263-64. In this regard, 

the gravamen of high negligence is “an aggravated lack of care that is more than ordinary 

negligence.” Brody, 37 FMSHRC at 1701 (citing Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 

1998)0. Thus, in making a negligence determination, a Commission judge is not limited to an 

evaluation of allegedly mitigating circumstances and may consider the totality of the 

circumstances holistically. Under such an analysis, an operator is negligent if it fails to meet the 

requisite high standard of care under the Mine Act. Id. 

E. Penalty Assessment

The Act requires that the Commission consider the following statutory criteria when 

assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness 

of the penalty to the size of the business; (3) the operator’s negligence; (4) the operator’s ability 

to stay in business; (5) the gravity of the violation; and (6) any good-faith compliance after 

notice of the violation. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000); 30 

U.S.C. § 820(i). The Commission is not required to give equal weight to each of the criteria, but 

must provide an explanation for any substantial divergence from the proposed penalty based on 

such criteria. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). 

As I discussed in my final Big Ridge decision, in an effort to avoid the appearance of 

arbitrariness, I look to the Secretary’s penalty regulations and assessment formula as a reference 

point that provides useful guidance when assessing a civil penalty. Big Ridge Inc., 36 FMSHRC 

1677, 1681-82 (July 2014) (ALJ); see also Wade Sand & Gravel, supra, at 1880 n.1 (Chairman 

Jordan and Commissioner Nakamura, concurring). See also Bowles v. Seminole Rock & Sand 

Co., 325 U.S. 410, 414 (1945) (holding that an agency’s interpretation of its own regulation 

should be given controlling weight unless it is plainly erroneous or inconsistent with the 

regulation). This formula is not binding, but operates as a lodestar, since factors involved in a 

violation, such as the level of negligence, may fall on a continuum rather than fit neatly into one 

of five gradations. Unique aggravating or mitigating circumstances will be taken into account 

and may call for higher or lower penalties that diverge from this paradigm. My independent 

penalty assessment analysis applies to each of the citations at issue in this case. 

38 FMSHRC Page 1179
III. Stipulated Facts

A. Stipulations of Fact

At hearing, the parties agreed to the following stipulations: 

1. Respondent is subject to the Federal Mine Safety and Health Act of 1977 and to the 

jurisdiction of the Federal Mine Safety and Health Review Commission. 

2. The presiding Administrative Law Judge has the authority to hear this case and issue a

decision.

3. Respondent has an effect upon commerce within the meaning of Section 4 of the

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 803.

4. At all relevant times, Respondent operated Mach No. 1 Mine, Mine ID 11-03141.

5. The violations in this docket are complete, authentic and admissible, but the

Respondent does not stipulate to the allegations asserted therein.

6. Respondent mined 7,528,061 tons of bituminous coal in 2012 at Mach No. 1 Mine.

7. The violations in this docket were properly served on Respondent by a duly authorized

representative of the Secretary on the dates stated therein.

8. The penalties proposed in this docket would not affect Respondent’s ability to remain

in business.

9. Respondent abated the citations involved herein in a timely manner and in good faith.

8. Tom Crum, Jr. is an agent of the operator Mach Mining. Tr. 272.

J. Ex. 1.

IV. Background Information

Mach Mining’s No. 1 Mine is an underground coal mine located in Marion, Illinois. The 

height of the mine is generally nine to ten feet. Tr. 619. The mine is subject to five-day spot 

inspections by the Department of Labor’s Mine Safety and Health Administration (MSHA), 

pursuant to § 103(i) of the Mine Act because the mine liberates more than one million cubic feet 

of methane or other explosive gases during a 24-hour period. 30 U.S.C. § 813(i); see Tr. 35, 211-

10. At the time of the October 14, 2014 inspection, the mine liberated approximately two million

cubic foot of methane in a 24-hour period. Tr. 158, 211-10.

38 FMSHRC Page 1180
V. Citation No. 8451651

A. Findings of Fact

1. The Inspection

On October 15, 2014, MSHA inspector Chad Lampley10 issued Citation No. 8451651 

during an E16 inspection of Mach Mine’s No. 1 mine.11 Tr. 140-42. Mark Schilke, the mine 

safety manager, accompanied Lampley during the inspection.12 Tr. 143, 152, 159-160. The 

inspection was conducted during a production shift. Tr. 155. At the time of Lampley’s 

inspection, however, mining had halted due to a problem with a conveyer belt. Tr. 153-54, 214-

15. 

2. The Location of the Truck 

During the inspection, Lampley noticed a Dodge Ram pickup truck parked facing inby in 

the #3 tailgate entry at the no. 109 crosscut, two crosscuts from the longwall face. Tr. 144-45, 

152; see P. Ex. 113.13 Lampley used a 25-foot tape measure and determined that the dieselpowered truck was approximately 144 feet from the face, rather than the required 150 feet. Tr. 

146-47.14 Shilke observed Lampley measure the distance between the face and the truck. Tr. 302,

316. Neither Shilke nor Lampley reported any other measurements of the truck’s location. Tr.

147, 301-02. Respondent does not dispute that the truck was closer than 150 feet from the

longwall face. R. Post Hr’g Br. 4.

10 At hearing, Lampley had been a certified mine inspector with MSHA for seven years. 

He received a degree in Applied Science from Southern Illinois University (SIU). Upon 

graduation, Lampley worked in the automotive field and taught classes at SIU in automotive 

base, and electrical theory and operation. Prior to his employment at MSHA, Lampley worked at 

American Coal performing general mining tasks and maintenance. Tr. 140-41. 

11 MSHA ceased its regular EO1 quarterly inspections and normal 103(i) spot inspections 

during the 2014 government shutdown. Tr. 142. Nonetheless, Lampley still conducted E16 spot 

inspections of the working areas of the mine. Id. 

12 Schilke was a certified mine manager, examiner, instructor, and mine rescuer. 299-300. 

He worked for Respondent since 2010 in a variety of roles. Tr. 299. He had a bachelor’s degree 

in mining engineering from SIU. Tr. 299-300. 

13 There is some confusion about the correct crosscut numbers. The crosscut referenced in 

the text above as no. 109 is referred to in Lampley’s testimony as no. 108 and in Schilke’s 

testimony as no. 109. Similarly the crosscut referred to herein as no. 110 is referred to in 

Lampley’s testimony as no. 109 and in Schilke’s testimony as no. 110. In the interest of clarity, I 

use Schilke’s numbers as he was more certain about this issue at hearing. 

14 Electric face equipment must be permissible within 150 feet from pillar workings or 

longwall faces or in return air outby the last open crosscut. 30 C.F.R. §§75.1002 and 75.507-1. 

38 FMSHRC Page 1181
Lampley learned that Tom Allen Crum, Jr. (Crum), the longwall maintenance supervisor, 

drove the truck. Tr. 152-53, 162, 213. Lampley did not speak to Crum. Tr. 215. 

Crum testified that he drove his truck into the #3 tailgate entry to repair a conveyor belt. 

Tr. 265-67, 287.15 Schilke testified that the truck was parked “slightly” inby the outby corner of 

crosscut 109. Tr. 305-06. Crum, however, testified that the truck was even with the outby corner. 

Tr. 268-69. I credit Schilke, particularly since his testimony is consistent with Respondent’s map 

of the area where Crum parked. See R. Ex. 8. 

There were no footage markers to indicate the distance from the face. Tr. 316. Crum 

estimated that he parked over 150 feet from the face because the crosscut centers were 120 feet 

and the face appeared 50 feet further than the last crosscut center. Tr. 268-71, 284. Because that 

crosscut was open, Crum knew that he was not permitted to drive further into the return air. Tr. 

282-83. There were no obstructions blocking Crum from driving the truck all the way to the face.

Tr. 216. Crum testified that had he intended to breach the 150-feet limit, he could have easily

parked by the face. Tr. 271-72, 280. Crum opined that his actions demonstrated his intent to

comply with the permissibility requirements, and that they negate any classification of high

negligence. Tr. 279-80.

Crum further testified that he would have moved his truck before production resumed. Tr. 

286-87. He further admitted that he would have started the truck’s ignition to do so, because he

had assumed that it was not parked in return air. Tr. 287.

3. The Presence of Methane 

a. The Temperature of the Air 

Inspector Lampley was concerned that the non-permissible diesel truck was parked in 

return air, which presented a methane ignition hazard. Tr. 148-49. Lampley testified that return 

air is warm and moist due to heat emitted from the longwall mining unit. Tr. 144, 146, 150. Near 

the truck, Lampley observed that the air approaching him from the face was warmer than the 

intake air at his back, indicating the presence of return air. Tr. 144, 146, 199. 

Respondent’s witnesses disagree. Schilke testified that the vehicle was in intake air 

because he felt cool air at his back and warm return air was not present until the middle of the 

intersection. Tr. 305-08. Crum testified that when he exited his truck, he felt cool intake air at his 

back. Tr. 273-76. Crum testified that there was little to no air movement where he parked the 

vehicle. Tr. 273. Crum further testified that he did not feel return air until midway through the 

crosscut. Tr. 283. 

15 Crum had 13-14 years of mining experience and had worked at several companies in a 

variety of roles. Tr. 263-64. Crum was a certified mine electrician, with face and examiner 

papers. Tr. 264. He was a member of mine management and a stipulated agent of Respondent. 

Tr. 272. 

38 FMSHRC Page 1182
Longwall coordinator Parker Phipps drove an Electric Mine Utility vehicle (EMU) to the 

longwall tailgate that day. Tr. 324.16 Phipps was aware of the requirement to park in intake air at 

least 150 feet from the face. Tr. 339. He parked approximately 150 feet from the face near open 

crosscut no. 109. Tr. 324, 340; see P. Ex. 110 and R. Ex. 8. After learning about the citation, 

Phipps observed Crum’s truck underground. Tr. 330. Phipps testified that Crum’s truck was 

parked even with the outby rib, approximately two feet from the solid coal wall. Tr. 330-331, 

333. Phipps testified that the front of Crum’s truck was within ten feet of the front of his own

vehicle. Tr. 343. Facing inby, Phipps walked into the area between Crum’s truck and the solid

right-hand rib. Tr. 333. Phipps testified that the air was cool and moved inby. Id. Because return

air from the longwall was warmer and more humid, Phipps opined that the truck was in intake

air. Tr. 325, 328.

By the feel of the air, Phipps opined that the return air began in the center of the crosscut. 

Tr. 329, 358-359. Phipps referred to the crosscut center as a mixing zone for return and intake 

air. Tr. 329. Mixing zones are classified as return air. Tr. 363. Phipps believed that the mixing 

zone was inby Crum’s truck, which left the truck entirely within intake air. Tr. 329-331, 335, 

363. Phipps later testified, however, that the truck was near a “dead spot” with little air

movement, where both the outby and inby air courses met. Tr. 353-54.

b. Inspector Lampley’s Smoke Test 

After noting the temperature differentials, Lampley performed a smoke test to determine 

the direction of return air. Tr. 150-51. A smoke test reveals the path of air along the mine’s 

ventilation pattern. Id. With respect to ventilation in this area, Respondent sent 90,000-100,000 

cubic feet of air per minute (cfm) from the headgate, which was well over the required 60,000 

cfm. Tr. 181-82. Phipps testified that a great velocity of air would dilute gases. Tr. 355. In fact, 

Phipps opined that as little as 50 cfm of air would render flammable or noxious gases harmless, 

although Phipps did not know if the air around the truck reached that velocity. Tr. 361-62. 

Lampley released smoke at the mining face and observed it travel down the entry. Tr. 

145-46, 150-51, 207-08. The heavy airflow displaced the smoke, so Lampley released smoke

into the atmosphere several times as he neared the truck. Tr. 208-10.

The smoke test revealed that the air traveled down the longwall face to the T-split, where 

it either seeped into the gob or branched off towards the #2 and #3 tailgate entries. Tr. 145, 176, 

182-84.17 Because the #2 entry had lower air pressure than the #3 entry, the majority of the air

moved from the #3 entry into the #2 entry through the open no. 110 crosscut. The remaining air

in the #3 entry reached the open no. 109 crosscut where the truck was located. Tr. 145, 184, 205-

07. Stoppings were legally removed at the nos. 109 and 110 crosscuts (the first two crosscuts

after the T-split) to allow this air movement. Tr. 187.

16 Phipps was a licensed, professional engineer and was a certified mine examiner, 

manager, and fire boss. Tr. 323. His duties included running the longwall on a day-to-day basis, 

planning production, and dealing with MSHA inspectors. Tr. 323-324. 

17 A “gob” is an area of the mine where coal has been removed and the roof and strata 

have been allowed to cave in. Tr. 177. 

38 FMSHRC Page 1183
Because the return air that reached the no. 109 crosscut was also drawn into the #2 entry, 

it moved faster at the corner near the crosscut than it did in the middle or other side of the entry 

near Crum’s truck. Tr. 186, 194-95. Lampley noticed that while a large portion of the return air 

hugged the inby corner near the crosscut, some smoke traveled directly over the hood, 

windshield, and cab of the truck. Tr. 151, 185-87, 194, 200. Rather than continue over the back 

of the truck, the air turned and exited into the #2 entry through the crosscut upon meeting the 

intake air in a “mixing zone.” Tr. 147, 161, 198. Lampley testified that the front of the truck up 

to the cab area was in return air, and that the cab to the tailgate bumper at the back of the truck 

was in the intake air. Tr. 146, 198-99. 

During the inspection, Schilke watched Lampley conduct the smoke test. Tr. 303, 308. 

Schilke testified that Lampley had to stand “almost over the hood of the truck” before the smoke 

sample traveled over the hood. Tr. 308. No smoke test was conducted at the tailgate of the truck. 

Tr. 313-14. 

Schilke testified that when Lampley tested further inby from the truck, the sample 

traveled towards the no. 109 crosscut, rather than over the hood of the truck. Tr. 309-311. 

Further, Schilke testified that when Lampley tested directly over the hood of the truck, the smoke 

rose and spread out, indicating to Schilke that the truck was in a dead spot. Tr. 307-309, 315. 

Schilke determined that this dead spot was caused by a “mixing zone” where return and intake 

air met. Tr. 307. On cross examination, however, Schilke conceded that if the truck was in the 

intake air, that air would push the smoke inby above the truck, which did not occur, rather than 

allow the smoke to rise and spread, which did occur. Tr. 315-16. 

Lampley testified that the exact location of the truck within the return air was not 

important. Tr. 158-59. Rather, any place inby the intake air at crosscut no. 109 posed an equal 

hazard because it had the same, undiluted gas concentration where no additional air was added. 

Tr. 158-59, 194, 196-97, 221-22.Because of this, Lampley chose not to test the air volume. Tr. 

166, 195-96, 198, 219. Lampley conceded, however, that the concentration of gas would 

diminish in a mixing zone. Tr. 198. Most of the mixing occurred near the corner where the air 

velocity was greatest, not above the truck. Tr. 200-201, 222. Lampley did not see any swirling 

smoke over the truck to indicate the mixing of intake and return air. Tr. 222-23. Lampley 

agreed, however, that there was no way to easily distinguish between return air and intake air. Tr. 

201-02.

c. Other Considerations 

Schilke testified that the cited area usually had 20.9 % oxygen and up to 0.1 % methane 

during production. Tr. 318. By contrast, Phipps testified that methane concentrations typically 

reached 0.6 % to 0.8 % during production. Tr. 332. While Phipps was in the cited area, his 

methane spotter reported 20.8 % oxygen, no methane, and no carbon monoxide. Tr. 331. He 

testified that historically no methane was produced in the area when the longwall was down. Tr. 

331-332.

38 FMSHRC Page 1184
Crum also carried a methane detector, which produces audio and visual warnings when 

methane concentrations reach one percent. Tr. 276-77. Crum watched his detector closely and 

observed no methane in the cited area. Tr. 277. 

During the repair work near the longwall face, the miners were required to take air 

readings every fifteen minutes with individual methane spotters. Tr. 289-90. The readings 

detected no methane. Id. Crum reported that all the checks were properly conducted. Tr. 290. 

Schilke testified that no methane or carbon monoxide was present because the longwall 

had been down for several hours before Crum’s truck arrived. Tr. 312-13. Lampley did not know 

how long the longwall had been down before Crum parked his truck, but Lampley noted that the 

hood of Crum’s truck was still warm at the time of the inspection. Tr. 155, 213-14. 

Schilke testified that the inspection began at approximately 6:00 a.m. Tr. 301. Phipps 

testified that the longwall had been down for several hours when Phipps arrived between 5:00 

and 6:00 a.m. Phipps further testified that Crum’s truck had not yet arrived. Tr. 332, 338, 341-42. 

Crum, however, testified that after working the day shift, he returned to the mine between 2:00 

and 3:00 a.m. because the longwall was down. Tr. 265. 

4. Issuance of Citation No. 8451651 

After observing that Crum’s non-permissible, diesel-powered pick-up truck was being 

used where permissible electrical equipment was required, Lampley issued Citation No. 8451651 

for a violation of 30 C.F.R. § 75.1907(a), which requires that all diesel-powered equipment used 

where permissible electrical equipment is required must be approved under part 36. Tr. 147-48. 

Lampley determined that the violation was S&S and contributed to a methane ignition hazard 

that was reasonably likely to result in fatal injuries affecting four miners, as a result of 

Respondent’s high negligence. Tr. 156, 162-63. The Secretary proposed a penalty of $16,867. 

Lampley determined that the cited diesel truck was not permissible because it lacked 

properly enclosed electrical components necessary to prevent a methane ignition in the mine 

atmosphere. Tr. 147-49. Engine enclosures prevent flame paths from reaching the atmosphere. 

Tr. 149. 

Lampley determined that the truck would likely ignite methane for several reasons. The 

truck had numerous ignition sources including a starter motor and a combustion engine, which 

produced thousands of combustions per minute. The electrical components of the truck were not 

sufficiently enclosed to contain any sparks from the engine. The diesel-powered truck did not 

have countermeasures, such as flame arresters, that were required in permissible equipment. Tr. 

156-7. Most of the ignition sources were in the front of the truck and exposed to return air. Tr.

224. The cited truck was in the tailgate (rather than a headgate), which increased the likelihood

of a methane ignition because the air in that area had ventilated the face. Tr. 175-176. Further,

Lampley opined that since Crum was apparently unaware that he parked the truck in return air, it

was likely to remain there until the longwall resumed production. Tr. 156. Further, during

production, the face would move 2 and ! feet closer to the truck with each pass of the longwall

drum. Tr. 177.

38 FMSHRC Page 1185
Lampley was not aware of any reserves of methane at the mine, nor was he aware of the 

average concentration of methane in the mine atmosphere. Tr. 211-12. Lampley testified, 

however, that methane would be present in return air coming off an active longwall face in a 

gassy mine, which has gob, and would most likely be found at the tailgate or at a bleeder system 

at the wall. Tr. 158. Lampley found no methane present when he took readings at the T-split of 

air, when production was down. Tr. 189-91, 197. Lampley testified that regardless of air quality, 

or the fact that when the citation was written, the air from the T-split of the longwall outby 

Crum’s truck was sufficient to dilute or render harmless any methane, MSHA regulations do not 

allow shorter permissibility distances when the longwall is not in production. Tr. 173-74, 227-29. 

Apart from the likelihood of ignition during production, Lampley explained that an 

ignition hazard could be realized spontaneously from a rock fall. Tr. 155, 189-92. He noted that 

rock falls were not unusual and major gob falls were fairly common in longwall mining and that 

the methane concentration “at the gob line where the T-split occurs, that could change at any 

given moment whenever a roof fall occurs back there, and it’s going to fall, it’s just when it’s 

going to fall.” Tr. 190-92, 230. If a major rock or gob fall prevented the absorption of methane 

by sealing the gob, the resulting change in air pressure would pull methane from the gob area and 

allow methane to accumulate in the active working area. Tr. 227-30. Such a rock fall in the gob 

is fairly common given mining conditions in that area, although pressure changes in this mine 

were somewhat less likely because of the blowing and exhausting fans. Tr. 230-33. 

Lampley testified that a methane ignition in a gassy mine could result in a “massive” 

explosion. Tr. 162. A massive methane explosion would be fatal to some or all of the miners on 

the face. Tr. 162-63. Lampley ascertained that at least two shearer operators, a shieldman, and a 

stage loader operator would be affected by an explosion. Tr. 162-64. Lampley referenced the 

Upper Big Branch explosion as one caused by the ignition of methane on a tailgate. Tr. 158.18 

With respect to the negligence designation, Lampley found no mitigating circumstances 

and determined that Respondent’s agent Crum should have been aware of the presence of return 

air when parking his truck. Tr. 163-64, 167. Given the change in air temperature and humidity 

and the lack of a visible stopping, Lampley opined that Crum knew or should have known that 

the truck’s location created a permissibility violation. Tr. 163-64. Crum was a member of 

management who should have been aware of the methane ignition hazard created once Crum 

drove into the return air and broke the plane of the intersection. Tr. 171-73. According to 

Lampley, once Crum broke the plane and entered return air, it was too late to correct the 

condition. Tr. 173. Rather, Lampley testified that Crum should have stopped 300 feet from the 

face to ensure compliance. Tr. 174-175. Further, Lampley opined that Respondent also could 

have placed signs 150 feet from the face or blocked off the area to prevent the entrance of diesel 

equipment. Tr. 178. Lampley emphasized that the hazard remained whether the truck was parked 

six feet within the 150-foot limit or directly next to the face. Tr. 166-167. Rather, the dispositive 

issue was that the truck was in return air. Tr. 166-67. 

18 Lampley did not personally investigate the explosion and could not testify whether the 

majority of the air samples taken at Upper Big Branch contained methane rather than natural gas, 

or whether the gas originated from the face, or from another location, such as a crack in the floor. 

Tr. 210-11. 

38 FMSHRC Page 1186
To abate the alleged violation, the truck was pulled by chain by another piece of 

equipment from intake air, and moved to an outby location outside the 150-foot limit where no 

return air was coursing over the pickup. Thereafter, the truck was disconnected and driven an 

additional 150 feet away from the face. Tr. 179; S. Ex. 114. 

B. Analysis and Disposition

1. The Violation of §75.1907(a)

30 C.F.R. §75.1907(a) provides that diesel-powered equipment must meet permissibility 

standards where permissible electrical equipment is required. 30 C.F.R. §75.1907(a). Electric 

face equipment must be permissible within 150 feet from pillar workings or longwall faces or in 

return air outby the last open crosscut. 30 C.F.R. §§75.1002 and 75.507-1. The truck cited by 

inspector Lampley was diesel-powered equipment that did not meet permissibility requirements. 

Tr. 148. It is undisputed that the equipment was closer than 150 feet from the longwall face. R. 

Post Hr’g Br. 4. Accordingly, I find that the Respondent violated the cited standard. 

2. The Violation was Significant and Substantial 

a. There was a Violation of a Mandatory Safety Standard

For the reasons explained above, I have found the underlying violation of mandatory 

safety standard § 75.1907(a). 

b. The Violation Contributed to a Discrete Measure of Danger to Safety 

With regard to the second Mathies factor, the Secretary must show that the violation 

contributed to a discrete safety hazard. For the reasons set forth below, I find that the violation 

of parking an impermissible diesel-powered truck in return air where permissible equipment was 

required contributed to a discrete safety hazard or measure of danger to safety, that is, a methane 

ignition or explosion. 

Whether the violation in question contributes to a discrete safety hazard implicitly 

assumes that a danger to safety is at least somewhat likely to result from the violation. Knox 

Creek, 811 F.3d at 163 (finding that “the second prong of Mathies . . . implicitly requires a 

showing that the violation is at least somewhat likely to result in harm,” citing Black Beauty, 34 

FMSHRC at 1741, n.12 (“[I]f the roadway here had lacked berms for only a short distance 

[thereby making the hazard of a vehicle falling off the edge less likely], or if the violation had 

been otherwise insignificant, the trier-of-fact could have found that the violation did not 

contribute to a discrete safety hazard, and hence that the Secretary had failed in her proof under 

the second element of Mathies.”), aff’d sub nom. Peabody Midwest, 762 F.3d 611; Cumberland 

Coal Res., LP, 33 FMSHRC 2357, 2368 (2011) (the violation, under the particular 

circumstances, was likely to contribute to the relevant hazard under Mathies’ second prong), 

aff’d sub nom. Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013); E. 

Associated Coal Corp., 13 FMSHRC 178, 183 (1991) (same); Utah Power & Light Co., 12 

FMSHRC 965, 970 (1990) (same). 

38 FMSHRC Page 1187
Permissibility requirements like the one at issue here ensure that ignitions occurring 

within enclosures on mining equipment with electrical circuits will not escape into the mine 

atmosphere. Knox Creek, 811 F.3d at 153-54; Consolidation Coal Co., 35 FMSHRC 2326, 2336 

(Aug. 2013) (permissibility requirement is designed to prevent hot gases from escaping from an 

enclosure containing electrical connections, thus causing an ignition outside the enclosure.”). 

Thus, the permissibility requirements are intended to prevent the ignition of explosive airmethane mixtures surrounding mine equipment. Consequently, I must determine whether it was 

somewhat likely that the violation contributed to the hazard or danger of allowing an ignition 

source to be available in this gassy mine. Cf., Consolidation Coal, 35 FMSHRC at 2335-36 

(Commission affirmed judge’s description of relevant hazard contributed to by the violation and 

her determination that second prong of Mathies was satisfied because the violation contributed to 

the hazard of “the danger of allowing an ignition source to be available in this gassy mine.”). 

When examining the likelihood of a permissibility violation to contribute to the hazard of 

a methane ignition or explosion, the Commission has traditionally examined whether a 

“confluence of factors” is present based on the particular facts surrounding the violation. 

Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988). The Commission has held that the 

confluence-of-factors analysis requires consideration of the particular circumstances in the mine, 

including the possible ignition sources, the presence of methane, and the type of equipment in 

the area. Excel Mining, LLC, 37 FMSHRC 459, 465 (Mar. 2015); Utah Power & Light Co., 12 

FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 501-03. For example, the mine in Texasgulf

contained only miniscule amounts of methane and had never had a methane ignition or 

explosion. See 10 FMSHRC at 501. Given detailed testimony establishing the mine's history of 

low methane emissions, the absence of previous ignitions or explosions, and testimony 

establishing a reasonable expectation of low methane emissions in the future, the Commission 

concluded that that substantial evidence supported the judge's findings that there was not a 

reasonable likelihood that the hazard contributed to would result in a mine ignition or explosion. 

On the other hand, numerous other Commission cases have upheld an S&S determination 

where the particular facts surrounding a violation established that a methane ignition was 

reasonably likely in a gassy mine. See e.g., U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1867–

69 (Aug. 1984) (upholding significant and substantial finding where coal mine liberated over one 

million cubic feet of methane in 24-hour period, had a history of methane ignitions, and there 

was an excessive accumulation of coal nearby); United States Steel Mining Co., Inc., 7 FMSHRC 

1125, 1128–30 (Aug. 1985) (upholding significant and substantial finding where coal mine 

liberated over one million cubic feet of methane in a 24-hour period, had a history of past 

methane ignitions, could liberate dangerous levels of methane in a relatively short period, and 

ventilation was substandard); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 677–678 

(upholding significant and substantial finding where coal mine was subject to inspection 

pursuant to section 103(i) and sudden outburst of methane had occurred recently); Consolidation 

Coal Co., 35 FMSHRC at 2337 (upholding a significant and substantial finding for a roof bolter 

that violated permissibility standards where methane was emitted during roof bolting, the bolter 

was located near the gob and far from the bleeder fans, and the mine was gassy). 

Applying the confluence-of-factors analysis to the instant facts, I find that supervisor 

Crum’s truck was a non-permissible ignition source that was parked in return air and would 

38 FMSHRC Page 1188
therefore likely be exposed to an explosive concentration of methane released from the longwall 

face during continued normal mining operations. Parking impermissible, diesel-powered 

equipment within 150 feet of the face in return air contributed to the discrete safety hazard that 

restarting the truck could ignite any explosive concentration of methane present in return air 

during continuous mining operations. Accordingly, I find that the violation contributed to the 

hazard of a methane explosion caused by the location of impermissible equipment in return air. 

Although the testimony of Crum, Schilke and Phipps suggested that the return air was 

inby the location where Crum parked his non-permissible, diesel-powered Dodge truck (Tr. 275, 

283-84, 308, 330-31), I find that the hood of the truck extended into the mixing zone intersection

and into return air and was not in intake air as Phipps, Crum and Schilke suggested. I credit

Lampley’s testimony and measurements that the truck was parked within 150 feet of the face,

and the hood of the vehicle, including the combustion engine, was actually parked within the

plane of the intersection or crosscut. Tr. 146-147, 158, 171, 198-99, 217. Crum’s testimony and

Respondent’s own map indicate this. Tr. 269; R. Ex. 8. Lampley and Phipps both described the

intersection at crosscut 109 as a mixing zone, where return air met intake air. Tr. 107, 329.

Lampley and Phipps both noticed that warmer and more humid air that was characteristic of

return air was present in the intersection or crosscut itself, where such air mixed with fresh intake

air. Tr. 150, 328. Phipps conceded that areas containing return air, including mixing zones, are

properly classified as return air. Tr. 363. Further, I have credited Schilke’s testimony that the

truck was parked slightly inby the outby corner of crosscut 109 (Tr. 305-06), over Crum’s

testimony that the truck was parked even with the outby corner. Tr. 268-69.

Although Schilke testified that Lampley had to stand directly at the Dodge truck and 

almost over the hood of the truck to get the smoke to travel over the hood of the truck, Schilke 

thereafter acknowledged that the smoke was in a dead spot and automatically spread out over the 

hood of the Dodge truck. Tr. 309. I credit Lampley’s testimony that the results of his smoke test, 

which recreated the movement of air from the longwall face to the truck, established that return 

air wafted over the hood of the truck where the engine was located, and then out across crosscut 

109. Tr. 151. Based on Lampley’s credited testimony, as supported by the results of the smoke

test, I find that return air, which would be carrying methane during continuous mining operations

in a gassy mine, reached the hood and windshield of the truck, which extended into the

intersection and mixing zone. Tr. 151, 194, 202.

 I further credit the testimony of Lampley that the truck was an ignition source. Tr. 156-

57. Lampley identified several sources of ignition within the truck that Respondent did not

contest. Id. Most notably, the engine produced thousands of combustions per minute. Id. It is

undisputed that the truck was not permissible equipment. Tr. 156-57, 275, 319. Consequently,

the truck did not prevent sparks released by the combustions from encountering potentially

explosive methane concentrations in the air. Tr. 147-49. Due to the numerous ignition sources

within the truck, the number of ignitions per minute, and the lack of countermeasures to arrest a

methane ignition, I find that the truck was a likely source of methane ignition because it was

parked in return air in a gassy mine on five-day spot protocol where methane would be coming

off an active face and heading outby past gob and over the truck, during continuous mining

operations. Tr. 157-59.

38 FMSHRC Page 1189
It is important to emphasize that the Mach #1 Mine was subject to section 103(i) spot 

inspections every five days because of its excessive liberation of methane. Although the 

Secretary put on no evidence of any prior ignition at the Mach #1 Mine, and there is no mention 

of a prior methane ignition on MSHA’s data retrieval, there is some evidence of the presence of 

high dust concentration, including float coal dust, which might propagate a methane ignition. For 

example, inspector Robert Bretzman specifically testified that the mine normally had high dust 

concentration. In this regard, with respect to Citation 8432319, alleging that on September 12, 

2013, almost a year before Citation No. 8451651 was written, the longwall shearer on the 

headgate six unit did not have a visible warning device to adequately alert the shearer operator 

when the methane concentration reached 1.0 percent, inspector Bretzman testified as follows: 

I determined that if—in the event that we did have a high degree of 

methane, excessive methane, and the operators were not aware of 

the methane and we was in a high dust concentration, like we 

normally are, we could have an ignition . . . . 

Tr. 411 (italics added). As further explained below, these facts coupled with Lampley’s 

testimony that methane would travel off the active face in return air and past gob to the truck (Tr. 

157-59) are sufficient to make an accumulation of methane at explosive concentrations

reasonably likely during continued normal mining operations. Cf., Knox Creek, 811 F.3d at 164;

Consolidation Coal Co., 35 FMSHRC at 2336.

Respondent argues that the truck was not exposed to methane, much less any explosive 

concentration of methane. This argument is unconvincing in the context of continued normal 

mining operations. Although no methane was found in the readings taken at the time of the 

citation, I credit Lampley’s testimony that the truck was exposed to numerous sources of 

methane. The most likely source of methane was from the gas released from the face during coal 

production, under continued normal mining operations. Tr. 158. Additionally, Lampley 

convincingly testified that bursts of methane released from rock falls within the gob could 

spontaneously increase methane concentrations to explosive levels quickly. Tr. 189-92. Finally, 

as noted above, the Commission has consistently found permissibility violations to be S&S 

where mines are characterized as gassy. See e.g., Consolidated Coal Co., 35 FMSHRC at 2336 

(affirming judge’s finding that of reasonable likelihood of injury from an explosion despite no 

methane detected at time of violation because methane was emitted as bolter drilled into the roof, 

the bolter was close to the gob and far from the bleeder fans, and the mine was a gassy mine). 

As emphasized, this mine was on a five-day spot and liberated approximately two million 

cubic foot of methane in a 24-hour period. Tr. 158. The risks of dangerous concentrations of 

methane quickly rising to an explosive level from the above sources are increased where the 

mine liberates such high quantities of methane. Although Respondent offered its ventilation 

scheme as a sufficient countermeasure against methane accumulation, the Commission has 

consistently found that adequate ventilation within a mine is not sufficient to remove the danger 

of explosive levels of methane. U.S. Steel, 6 FMSHRC at 1869; Excel Mining, LLC, 37 

FMSHRC at 466. Based on the entire record, I find it reasonably likely that under continued 

normal mining operations, Crum’s non-permissible truck would be exposed to an explosive 

concentration of methane in the return air where it was parked. 

38 FMSHRC Page 1190
Respondent argues that the truck would have been removed before production restarted, 

thus eliminating the presence of the ignition source. Tr. 286. I reject this argument. As the 

Fourth Circuit recently recognized, the Commission has long “held that an S&S determination 

ought to be ‘made at the time the citation is issued (without any assumptions as to abatement).’ 

Sec’y of Labor v. U.S. Steel Mining Co., 6 FMSHRC 1573,1574 (1984) (emphasis added); see 

also Sec’y of Labor v. McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1991 (2014) (rejecting 

the argument that an S&S finding was erroneous ‘because [the mine operator] was in the process 

of cleaning the accumulations when the inspector arrived’); Sec’y of Labor v.Gatliff Coal Co., 14 

FMSHRC 1982, 1986 (1992) (finding that the ALJ erred in ‘inferring that the violative condition 

would cease’ in the course of normal mining operations).” Knox Creek, 811 F.3d at 165. In 

addition, Crum’s testimony that the truck would have been removed before production restarted 

is speculative and unsupported by any evidence. Apart from Crum’s interest as a longwall 

maintenance supervisor in remaining by the longwall to ensure that the belt and longwall 

operated properly before he returned to his truck and the surface, Crum likely would have been 

delayed in any number of ways as longwall maintenance supervisor. Furthermore, because 

Crum was ignorant of the violative condition (see e.g., Tr. 284), I find it likely that he would 

have started the truck while it was in return air after production restarted, thus increasing the 

likelihood of a methane ignition. 

In sum, I find that the presence of an ignition source, the location of that ignition source 

within return air reserved only for permissible equipment, the likelihood of a methane build up to 

an explosive level during continued normal mining operations in this gassy mine, and the 

testimony that the mine normally had high dust concentrations make it likely that the violation 

contributed to a discrete methane ignition or explosion hazard. As such, I find that the second 

prong of Mathies test was satisfied. 

c. The Violation Contributed to a Hazard That was Reasonably Likely to 

Result in Injury 

As the Fourth Circuit has recognized, the third and fourth prongs of Mathies, which are 

often combined in a single showing, are primarily concerned with gravity or the seriousness of 

the expected harm. To the extent that the third and fourth prongs are concerned with likelihood at 

all, they are concerned with the likelihood that the relevant hazard will result in serious injury 

because requiring a showing at prong three that the violation itself is likely to result in harm 

would make prong two superfluous. Knox Creek, 811 F.3d at 162, citing Mathies, 3 FMSHRC at 

3-4.

Regarding the third Mathies factor, the Secretary demonstrated a reasonable likelihood 

that the hazard contributed to by the violation, i.e., a methane explosion contributed to by 

parking an impermissible ignition source in return air, was reasonably likely to result in an injury 

to the four miners working near the face. As noted, for this element to be satisfied “[t]he 

Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” 

Cumberland, 33 FMSHRC 2357, 2365 (Oct. 2011) (quoting Musser Engineering, Inc. & PBS 

Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010). Nor is the Secretary required to prove that 

the hazard contributed to will actually result in an injury-causing event. Youghioghemy & Ohio 

Coal Co., 9 FMSHRC 673, 678 (April 1987). 

38 FMSHRC Page 1191
Rather, the test under the third prong of Mathies is whether there is a reasonable 

likelihood that the hazard contributed to by the violation . . . will cause injury. Knox Creek, 811 

F.3d at 161, citing Musser Engineering, 32 FMSHRC at 1281, where the Commission assumed

the existence of the relevant hazard and considered only “evidence regarding the likelihood of

injury as a result of the hazard.” Although the Commission’s decision in Ziegler Coal Co., 15

FMSHRC 949, 953 (1993), supports the argument that evidence of the likelihood of the hazard is

relevant at prong three, as the Fourth Circuit noted, that position is flatly contradicted by more

recent Commission precedent in Musser, 32 FMSHRC at 1281, and by the unanimous voice of

the Fourth, Fifth and Seventh Circuits. See Knox Creek, 811 at 164; see also Peabody Midwest

762 F.3d at 616 (holding that the question is not whether it is likely that the hazard would have

occurred, but only if the hazard occurred, regardless of likelihood, it was reasonably likely that a

reasonably serious injury would result); Knox Creek, 811 F.3d at 161 (Skidmore deference

applied to Secretary’s litigating positions 1) that third prong of Mathies focuses on the likelihood

that the hazard to which the violation contributes will cause injury, not on the likelihood of the

hazard occurring, and 2) the existence of the relevant hazard should be assumed); Buck Creek, 52

F.3d at 135 (the third prong of Mathies is satisfied where the ALJ determined that in the event of

the hazard, a reasonably serious injury would result); Austin Power, 861 F.2d at 103-04 (finding

third prong of Mathies satisfied where the hazard “would almost certainly result in serious

injury,” without requiring evidence that the hazard itself was likely); cf. Cumberland Coal, 71

F.3d at 1027-28 (Secretary’s interpretation that decision maker should assume the existence of an

emergency when evaluating whether the violation of an emergency safety standard is S&S is not

inconsistent with Mathies or Commission precedent).

I credit inspector Lampley’s testimony that the violation, parking the impermissible 

truck with unapproved electrical components in return air, contributed to a methane ignition or 

explosion hazard that was reasonably likely to result in an injury to the four miners working at 

the face. Tr. 156-63. The Commission has long recognized that a methane ignition or explosion 

is likely to result in a fatal injury to exposed miners. See Consolidation Coal, 35 FMSHRC at 

2337 (affirming judge’s determination that the lack of a permissible light on a roof bolter would 

contribute to the hazard of a methane gas ignition or explosion, which is reasonably likely to 

cause a permanently disabling or fatal injury); Black Diamond Coal Mining, 7 FMSHRC 117, 

1120 (1985)(“We have previously noted Congress’ recognition that ignitions and explosions are 

major causes of death and injury to miners”); Jim Walter Res., Inc., 37 FMSHRC 1968, 1976 

(Sept. 2015)(“horrific mine explosion[s took] the lives of 12 miners at Sago Mine”); Sec’y of 

Labor v. Performance Coal Co., 34 FMSHRC 587, 588 (2012) (ALJ) (explosion at longwall 

section due to an ignition of methane propagated by coal dust resulted in deadliest U.S. mine 

disaster in 40 years, killing 29 miners); cf. Knox Creek, 811 F.3d at 163 (permissibility violations 

where a mine’s atmosphere contains explosive concentrations of methane contribute to a 

methane ignition or explosion hazard that is reasonably likely to result in an injury-producing 

event). Accordingly, I find that the third prong of Mathies was satisfied. 

d. There was a Reasonable Likelihood That the Injury in Question Will Be of a 

Reasonably Serious Nature 

With regard to the fourth Mathies factor, I find a reasonable likelihood that any injury 

from a methane explosion would be of a reasonably serious nature. A methane-related explosion 

38 FMSHRC Page 1192
contributed to by the violation was reasonably likely to result in fatal injuries to the four miners 

working at the face. Consolidation Coal Co., 35 FMSHRC at 2337; Black Diamond Coal 

Mining, 7 FMSHRC at 1120; Jim Walter Res., Inc., 37 FMSHRC at 1976; Sec’y of Labor v. 

Performance Coal Co., 34 FMSHRC at 588. Fatal injuries are necessarily serious in nature. 

Thus, I find the fourth Mathies factor satisfied. 

In sum, considering all relevant factors, I find the violation was S&S. 

3. Respondent’s Negligence is Reduced from High to Moderate 

I find that Respondent’s negligence should be reduced from “high” to “moderate.” It was 

not unreasonable for Crum, an agent of the operator, who was visually estimating distances, to 

mistake 144 feet for 150 feet and to park the hood of his truck slightly in return air. I find this 

honest mistake to be a mitigating circumstance that supports a reduction in Respondent’s 

negligence from high to moderate. 

4. Civil Penalty for Citation No. 8451651 

Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find 

that Respondent, Mach Mining, Inc., operates the Mach Mining No. 1 Underground Mine, which 

mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the originally 

proposed penalty of $16,867 will not affect Respondent’s ability to remain in business. MSHA 

recognized Respondent’s good-faith compliance in abating the citation. I have affirmed MSHA’s 

gravity and S&S determinations. I have modified MSHA’s negligence determination from high 

to moderate. After consideration of the penalty assessment criteria set forth in section 110(i) of 

the Act, I assess a $5,081 civil penalty against the Respondent for Citation No. 8451651. 

VI. Citation No. 8439446

A. Findings of Fact

1. Inspector Stanley’s Testimony

After determining that Respondent’s methane monitor attached to a roof bolting machine 

failed to register explosive concentrations of methane, Inspector Phillip Wayne Stanley19 issued 

Citation No. 845394446 for a violation of 30 C.F.R. § 75.342(a)(4). Tr. 465-66. The cited 

standard requires that methane monitors be maintained in proper operating condition. Tr. 465. 

Properly operating monitors de-energize electrical equipment when methane concentrations 

reach 2.0 percent or when the monitor is not operating properly. 30 C.F.R. § 75.342(c); Tr. 465. 

Stanley determined that the violation was S&S and contributed to a methane ignition hazard that 

19 At the time of the hearing, Stanley had been a coal mine inspector for MSHA for four 

years and eight months. Tr. 461. Starting in December 1990, Stanley worked in potash mining 

for sixteen to seventeen years. Id. Thereafter, he worked in coal mining for approximately eight 

years. Id. Stanley graduated from high school in 1980, worked in the military for four years, and 

completed his training at the National Mine Safety and Health Academy. Tr. 461-62. 

38 FMSHRC Page 1193
was reasonably likely to result in flash burns affecting two miners, as a result of Respondent’s 

moderate negligence. Tr. 156, 162-63. The Secretary proposed a penalty of $1,412. 

On August 6, 2013, Stanley conducted a regular inspection at Mach Mining. Tr. 461-62. 

As part of that inspection, Stanley tested the methane monitor attached to roof bolter #4 on the 

eighth headgate panel. Tr. 462, 464. Stanley conducted the inspection with a calibrator that 

displayed a digital readout, which listed the methane level. Tr. 464-65. When Stanley applied 

2.5% methane to the monitor, it only read as high as 1.6 % methane. Id. The roof bolter is 

programmed to automatically de-energize at 2.0 %. Tr. 465. With an inaccurate methane 

monitor, the machine would likely fail to de-energize in explosive levels of methane. Tr. 468. 

Under MSHA regulation, methane readings must be taken every twenty minutes during 

the process of roof bolting. Tr. 466, 496; 30 C.F.R. §75.362(d)(2). If a roof bolter lacks a 

methane monitor, readings must be taken with a probe at the deepest point of the cut 

approximately a foot from the roof or face. Tr. 467, 493-94. If the roof bolter has a methane 

monitor, readings can be taken within sixteen feet of the front of the machine. Tr. 466-67, 494-

95. Stanley opined, but was not positive, that the methane monitor on the bolter did not run all

day and was only used when a reading was taken. Tr. 495.

Stanley issued Citation No. 8451651 for a violation of 30 C.F.R. § 75.342(a)(4). Tr. 465-

66. The cited standard requires that methane monitors be maintained in proper operating

condition. Tr. 465. Properly operating monitors de-energize electrical equipment when methane

concentrations reach 2.0 percent or when the monitor is not operating properly. 30 C.F.R. §

75.342(c); Tr. 465.

Stanley marked the citation as “reasonably likely” to result in an injury because the 

machine would not de-energize when encountering an explosive concentration of methane. Tr. 

468. The mine liberated two million cfm of methane in a 24-hour period, and the eighth headgate

panel itself released 25,000 cfm of methane in a 24-hour period. Id. Although more methane is

released during extraction, some methane is released during roof bolting. Tr. 496. Because

methane is lighter than oxygen, it accumulates in the top third of the entry where bolting occurs.

Tr. 472-73. The methane monitor was placed on the automated temporary roof support system

(ATRS) to gather readings in this accumulation zone. Tr. 468-69, 492. Additionally, the area

near the roof of the mine was susceptible to sparking because the carbide tips of the bolter’s drill

bits encountered materials such as sandstone, limestone, and shale. Tr. 469. The roof bolter also

created sparks when its wrench and bolt rotated against a steel-bearing plate. Id. Stanley referred

to a 2012 ignition at Prosperity Mine to demonstrate the hazard resulting from a malfunctioning

methane monitor on a roof bolter. Tr. 470.

Given the malfunctioning methane monitor, the likelihood and location of methane 

accumulation, and the potential for sparking, Stanley expected resulting injuries from an ignition 

to manifest as flash burns. Id. Stanley determined that these injuries would result in lost 

workdays or restricted duty and would affect the two machine operators. Tr. 470-71. 

At the time of the citation, Respondent’s ventilation system met regulatory standards. Tr. 

490-92. Looking inby, the system ventilated the roof bolter with air traveling from right to left,

38 FMSHRC Page 1194
and included a line curtain to assist with ventilation. Id. This air acted to render harmless or 

remove noxious and hazardous gases and dust. Id., Tr. 505. However, ventilation systems may be 

inadequate where methane bleeders are encountered. Tr. 505-06. Bleeders are pockets of 

methane pressured under the strata. Id. They may continually replace explosive concentrations of 

methane faster than the ventilation can sweep the air. Id. 

In deference to Respondent’s implementation of seven-day checks on its methane 

monitors rather than the thirty-one day intervals required by the regulations, Stanley determined 

that Respondent’s negligence was moderate. Tr. 471. 

2. The Testimony from Respondent’s Witnesses 

a. Mark Schilke’s Testimony 

Schilke accompanied Stanley during his inspection of the roof bolter. Tr. 552. At the time 

of inspection, the bolter was pulled back approximately eighty feet from the face and outby the 

feeder break or last open crosscut. Tr. 555-56. The roof bolter is typically pulled in to secure 

unsupported roof after the continuous miner takes a fresh cut at the face. Tr. 557-58. 

Schilke testified that prior to positioning the roof bolter, the roof bolt operators would 

take a methane reading. Tr. 553. A separate handheld methane monitor was attached to the probe 

and extended at least fifteen feet beyond the bolter. Tr. 553, 629-630, 635. The bolter operators 

repeated these readings every twenty minutes with a probe. Tr. 553, 624, 644. Schilke testified 

that having a methane monitor attached to the bolter did not affect the nature of the twentyminute gas checks in any way. Tr. 629-632. There was no evidence to suggest errors in the 

equipment or data derived from these regular methane checks. Tr. 554. 

Both Stanley and Schilke wore methane spotters and neither reported methane near the 

face. Tr. 559. Schilke testified that although the cited methane monitor failed to deenergize the 

machine, it did emit a warning during the methane test. Tr. 552, 628-29. Schilke also emphasized 

that methane monitors were an optional safety precaution. Tr. 552-53. 

During roof bolting, Respondent ran a curtain to the tail of the bolter, to facilitate the 

flow of approximately 3000 cfm of intake air. Tr. 556-57. This ventilation system directed the air 

towards the face and across the bolter to remove gas and dust from the bolter. Tr. 556-58. 

Schilke admitted that the amount of ventilation would not diminish the necessity of twentyminute gas checks. Tr. 633. 

38 FMSHRC Page 1195
b. Johnny Robertson’s Testimony 

General Manager Johnny Robertson20 testified that methane was only liberated when the 

continuous miners or the longwall shearers cut coal. Tr. 710-11, 742. Robertson testified that 

methane is less likely encountered during roof bolting than mining, and is usually only present 

when roof bolting into a coal seam. Tr. 716. Robinson testified that during his four years of 

tenure with Respondent, there were no reports of methane released from the roof or during 

bolting. Tr. 718-19. 

According to Robertson, the regularity of spot inspections is determined by the amounts 

of methane and intake air in the mine. Tr. 743. Higher volumes of intake air reduce the methane 

content within the mine. Tr. 743-44. Robertson explained that Respondent’s ventilation plan 

required a minimum of 3000 cfm of intake air blowing against a line curtain and across the back 

of the roof bolters. Tr. 711. Although Respondent met the ventilation requirements, its methane 

levels nonetheless required five-day spot inspections. Tr. 709-10, 743-44. Robertson conducted 

weekly methane readings where methane accumulated at the bleeder system behind the longwall. 

Tr. 710. He testified that during his time as general manager, neither his readings, nor any 

readings reported to him, were above 0.7 % methane. Tr. 711. 

Robinson confirmed that Respondent used a continuous miner to carve out entryways. Tr. 

717. After it cut forty feet of coal and withdrew, the roof bolter moved in to support the roof.

Id., Tr. 742-43. Robertson testified that the light on the monitor was generally visible to the

operator when the continuous miner cut and loaded coal. Tr. 723-24. He testified that the

operator stood in front of the methane monitor. Tr. 745. He acknowledged, however, that the

operator might turn away from the monitor while the cutter drum cut coal, whenever the shuttle

car approached and loaded coal. Tr. 723-25, 745. Under such circumstances, the methane

monitor was not visible for a few seconds. Tr. 723-25, 746. The continuous miner was not

programed to automatically de-energize in concentrations of one-percent methane. Tr. 746-47.

Instead, it was de-energized manually. Id.

Robertson also confirmed that when the roof bolter had a methane monitor attached to the 

ATRS, the operators probe sixteen feet in front of the bolter. Tr. 719. These methane checks 

were repeated every twenty minutes during roof bolting. Id. If the bolter did not have an attached 

methane monitor on the ATRS, these checks would occur with a different handheld monitor at 

the deepest point of penetration about twelve inches from the face and roof. Tr. 720. 

20 Robertson had thirty-two years of experience in mining. For six years before 

commencement of employment with Mach Mining, Robertson was employed at Foresight 

Energy, which owns Mach Mining. Tr. 706. Before that, he worked for Massey Energy for 

twenty-six years, and held positions in engineering, safety, and operations. Id. He supervised 

multiple mine sites and was president of one of Massey Energy’s large resource groups. Tr. 706-

07. He was certified in Ohio, New Mexico, and Illinois as a foreman or mine manager. Tr. 707.

Robertson was a MSHA instructor with certifications in dust and noise. Tr. 707. He has a

Bachelor’s Degree from Marshall University in West Virginia. Id. Robertson served in the Army

Special Forces. Id.

38 FMSHRC Page 1196
B. Analysis and Disposition

1. The Violation of § 75.342(a)(4)

Section 75.342(a)(4) requires that operators maintain methane monitors in permissible 

and proper operating condition and calibrate them with a known air-methane mixture at least 

once every 31 days. A methane monitor in permissible and proper operating condition shall 

automatically de-energize electric equipment or shut down diesel equipment on which it is 

mounted when the methane concentration reaches 2.0 percent or when the monitor is not 

operating properly. 30 C.F.R. § 75.342(c). 

Respondent admitted the violation. Tr. 552. See R. Br. 12. The methane monitor failed to 

de-energize the machine when methane concentrations reached 2% and failed to provide 

readings higher than 1.6 %. Tr. 464-65. Respondent argues that the violation was not S&S, that 

its negligence was less than moderate, and that the proposed penalty calculation is inappropriate. 

2. The Violation was Significant and Substantial

a. There was a Violation of a Mandatory Safety Standard

For the reasons explained above, I have found and Respondent admits the underlying 

violation of a mandatory safety standard, i.e., § 75.342(a)(4). 

b. The Violation Contributed to a Discrete Measure of Danger to Safety 

As stated previously, the second Mathies factor requires a showing that the violation 

created a discrete safety hazard, “which implicitly requires a showing that the violation is at least 

somewhat likely to result in harm.” Knox Creek, 811 F.3d at 16, citing Black Beauty Coal Co., 34 

FMSHRC at 1741, n. 12, aff’d sub nom. Peabody Midwest, 762 F.3d 611 (7th Cir. 2014); 

Cumberland, 33 FMSHRC at 2368, aff’d sub nom. Cumberland, 717 F.3d 1020; E. Associated Coal 

Corp., 13 FMSHRC at 183; Utah Power & Light Co., 12 FMSHRC at 970. Where a violation poses 

a risk of fire or explosion, this likelihood is demonstrated by the presence of a “confluence of 

factors,” such as possible ignition sources, the presence of methane, and the type of equipment in 

the area. Excel Mining, LLC, 37 FMSHRC at 465, slip op. at 7, (Mar. 2015); Utah Power & 

Light Co., 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 501-03. For example, in 

Consolidation Coal, the Commission found that a methane ignition was reasonably likely 

because methane was emitted during roof bolting, the bolter was located near the gob and far 

from the bleeder fans, and the mine was gassy. Consolidation Coal Co., 35 FMSHRC at 2337. 

A properly functioning methane monitor is expected to automatically de-energize 

electrical equipment in two percent methane to avoid the potential ignition of explosive levels of 

methane at the 5-15% range. The monitor at issue in the present citation did not detect two 

percent methane when tested, and would not automatically de-energize the roof bolter in rising 

concentrations of methane, thus contributing to the likelihood of a methane ignition should 

methane accumulate to an explosive level during continued normal mining operations. 

Consequentially, I find that the hazard contributed to by the violation was a methane-related 

ignition caused by undetected explosive levels of methane where ignition sources were present. 

38 FMSHRC Page 1197
The risk of excessive methane in Respondent’s mine nearly parallels the risk cited in 

Consolidation Coal. Methane was liberated during roof bolting. Tr. 469. Due to its weight, the 

methane accumulated near the top third of the entry where bolting occurred. Tr. 468-69. The 

potential for bleeders increased the possibility of dangerous methane concentrations. Tr. 505-06. 

Furthermore, the Commission has held that if a mine liberates high levels of methane 

there may be an even greater potential for a methane ignition to occur and that this may be 

considered in a confluence-of-factors analysis. Excel Mining, LLC, 37 FMSHRC 465, slip op. at 

7, (Mar. 2015); Knox Creek Coal Corp., 36 FMSHRC at 1134. As stated previously, the Mach 

Mining No. 1 Underground Mine is a gassy mine that is on a five-day spot inspection schedule. 

Tr. 35. The mine liberates over two million cfm methane in a 24-hour period and approximately 

35,000 cfm methane at the eighth head-gate panel. Tr. 468. I find that the confluence-of-factors 

test is satisfied here and that the violation created a discrete safety hazard, which was at least 

somewhat likely to result in harm. 

Citing facts discussed in the Consolidation Coal ALJ decision, Respondent argues in its 

response to the Secretary’s Post-Hearing brief that the risk of excessive methane in the present 

case is substantially different from the risk of excess methane in Consolidation Coal. R. Resp. 

Br. 6-7. According to Respondent, respondent Consolidation Coal had higher levels of methane 

because the roof bolters and continuous miners shut down four to five times in a cycle, and a 

curtain was removed by a foreman, thus raising methane levels to 7.7%. Id. However, the facts 

that Respondent relies on were not determinative in Consolidation Coal. Instead, the 

Commission cited only three factors when establishing a sufficiently dangerous risk for a 

methane ignition. Consolidation Coal Co., 35 FMSHRC at 2337 (emphasis added). The 

Commission cited the emission of methane while roof bolting, the location of the roof bolter near 

the gob and further from the bleeder fans, and the fact that the mine was gassy. Id. (“[T]he 

Robinsons Run mine liberates more than a million cfm of methane during a 24-hour period and 

is subject to five-day methane spot inspections”). Given the cited conditions, the Commission 

quoted the inspector’s testimony that “it would only take a roof-fall for the gob air to ... create 

an explosive amount of methane.” Id. at 2336. With the additional danger of encountering 

pockets of methane bleeders, the present risk factors are nearly identical to those enumerated by 

the Commission in Consolidation Coal. Accordingly, I do not find Respondent’s argument 

persuasive. 

Respondent also cites Judge Zielinski’s decision in Ohio County Coal for the proposition 

that a malfunctioning methane monitor is not S&S where the mine has low levels of methane 

concentrations. Ohio County Coal Co., 32 FMSHRC 220 (Feb. 2010)(ALJ). Ohio County Coal

is distinguishable from the present case in at least one major way. The mine in Ohio County Coal 

did not liberate excessive quantities of methane, as noted by Judge Zielinski in his analysis. 32 

FMSHRC at 224 (comparing Freedom mine to mines that liberate greater quantities of methane 

and are subject to spot inspections). Instead, the mine in that case emitted a mere 12,000 to 

13,000 cfm methane in a 24-hour period, in comparison to Respondent’s liberation of one 

million cfm methane in a 24-hour period. Id. 

In short, Respondent roof bolted with a malfunctioning methane monitor in an area of 

methane emission and accumulation within a gassy mine. The inspector credibly testified that 

38 FMSHRC Page 1198
sparks released from roof bolting in excess methane concentrations will cause an ignition. I find 

that this combination of risk factors satisfies the confluence-of-factors test for a methane ignition 

hazard and supports a finding that the hazard is at least somewhat likely to occur. Accordingly, I 

find that the second Mathies factor is satisfied. 

c. The Violation Contributed to a Hazard That was Reasonably Likely to 

Result in Injury 

As stated previously, federal appellate law and Commission precedent have sufficiently 

established that a methane explosion is reasonably likely to result in injures. See Buck Creek, 52 

F.3d at 135; Consolidation Coal Co., 35 FMSHRC at 2337; Black Diamond Coal Mining, 7

FMSHRC at 1120; Jim Walter Res., Inc., 37 FMSHRC at 1976; cf. Knox Creek, 811 F.3d at 164-

65. Accordingly, I find that the third Mathies factor is met.

d. There was a Reasonable Likelihood That the Injury in Question Will Be of a 

Reasonably Serious Nature 

With regard to the fourth Mathies factor, I find a reasonable likelihood that any injury 

from a methane explosion would be of a reasonably serious nature. The record establishes that a 

methane-related ignition contributed to by the violation was reasonably likely to result in a 

serious injury or illness to at least two miners working with the bolter, who would suffer flash 

burns from a methane ignition. I find that the designation of “lost workdays or restricted duty” 

was appropriate for this violation. 

In sum, considering all the relevant factors, I find that the violation was properly 

designated as S&S. 

3. Respondent’s Negligence was Appropriately Designated as Moderate 

Based on the testimony and briefs, I do not find considerable mitigating circumstances 

that would justify reducing the negligence designation from moderate to low. Respondent knew 

or should have known of the violation. Respondent’s ventilation and weekly methane monitor 

calibrations are mitigating circumstances that support a moderate negligence designation. 

However, Respondent highlighted no action that considerably mitigated the likelihood or 

severity of a methane ignition during roof bolting without a properly functioning methane 

monitor. In these circumstances, I conclude that the Secretary properly designated Respondent’s 

negligence as moderate. 

4. Civil Penalty for Citation No. 8439446 

 Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find 

that Respondent mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the 

originally proposed penalty of $1,412 will not affect Respondent’s ability to remain in business. 

MSHA recognized Respondent’s good-faith compliance in abating the citation. I have affirmed 

MSHA’s gravity, negligence, and S&S determinations. After consideration of the penalty 

38 FMSHRC Page 1199
assessment criteria set forth in section 110(i) of the Act, I assess a $1,412 civil penalty against 

the Respondent for Citation No. 8439446. 

V. Citation No. 8432319

A. Findings of Fact

1. Inspector Bretzman’s Testimony

After observing the absence of an auxiliary methane alarm light on a longwall shearer, 

MSHA inspector Robert L. Bretzman21 issued Citation No. 8432319 for a violation of 30 C.F.R. 

§ 75.342(b)(2), which requires that “[t]he warning signal device of the methane monitor shall be

visible to a person who can de-energize electric equipment or shut down diesel-powered

equipment on which the monitor is mounted.” Tr. 409. Bretzman determined that the violation

was unlikely to contribute to a methane ignition hazard, but that any injuries that did result from

the hazard would result in lost work days or restricted duty affecting three miners, as a result of

Respondent’s low negligence. Tr. 409-411. The Secretary proposed a penalty of $117.

On September 11, 2013, Bretzman was among several inspectors who conducted a 

quarterly inspection of Respondent’s longwall. Tr. 396-97. Bretzman testified that the longwall 

was probably producing coal when he arrived, but he could not say for sure. Tr. 418. During the 

inspection, Bretzman noticed that there was no auxiliary alarm light on the longwall shearer. Tr. 

398. In Bretzman’s experience, longwall shearers always have auxiliary alarm lights. Tr. 407,

410. The shearer at issue has an electric panel with a four to six-inch LED screen, which

constantly displays the current concentration of methane. Tr. 439-440. This methane reading

flashes when methane levels reach a certain percentage. Tr. 440-441. When methane

concentrations reach one percent, an alarm light turns on to alert the shearer operator of

excessive methane. Tr. 441. This alarm light is located in the bottom right-hand corner of the

panel and is approximately the size of a quarter. Tr. 411-412, 441; S. Ex. 102.

Respondent usually has two longwall shearer operators, a headgate operator and a tailgate 

operator, and each has a remote control box that can de-energize the shearer. Tr. 404-05, 433. 

The shearer also has an emergency stop button that can be operated by anyone in the area, 

including the stage loader operator. Tr. 434-36. Bretzman testified that the stage loader operator 

works in a stationary position at the headgate of the longwall. Tr. 435-36. Bretzman testified 

that the only way to see the alarm on the shearer is to stand directly in front of the monitor. Tr. 

21 Inspector Bretzman was employed by MSHA as a special investigator for two and a 

half years, and as an electrical specialist for five years. Tr. 394. Bretzman worked in mining 

since 1977. Tr. 395. He held positions as a belt maintenance worker, a shieldman, a mechanic, 

and a maintenance foreman. Id. Additionally, Bretzman worked for a short time in the electrical 

department for Joy Technologies, a mine manufacturing company. Id. Bretzman holds an 

Associate’s degree and received his Bachelor’s degree from Southern Illinois University in work 

force education and training. Tr. 396. He was a certified mine examiner, who possessed a federal 

electrical card. Tr. 398. 

38 FMSHRC Page 1200
402, 413. Respondent failed to present any testimony that the stage loader operator could see the 

auxiliary light on the longwall shearer. 

Bretzman did not observe the longwall in operation and did not know for certain where 

the operators stood that particular day. Tr. 437-438, 442. However, Bretzman testified that it was 

highly unlikely that a miner would stand where he could see the monitor because from that 

location he would be unable to see the cutting drums. Tr. 402-403. At any given time, an 

operator may stand anywhere along the shearer, up to twenty-five feet from the monitor. Tr. 412-

15, 438-439, 447. Upon questioning headgate operator Mike Skelton, Bretzman learned that he 

was positioned outby the headgate drum when it traveled towards the headgate. Tr. 446; see S. 

Ex. 100, p. 3. This location confirmed Bretzman’s suspicion that the shearer operator would not 

see the warning light. Tr. 446. Bretzman’s notes from the day of the inspection do not indicate 

the tailgate operator’s usual location, although Bretzman opined that Skelton would have 

volunteered that information if it was exculpatory. Tr. 456-57. 

Bretzman returned to MSHA and verified that alarm lights were required on the shearer. 

Tr. 405, 408, 443. Bretzman decided, and the MSHA field office supervisor agreed, that a 

citation was appropriate. Tr. 444. Bretzman returned to the mine the next day and issued the 

citation. Tr. 408. The cited standard requires that “[t]he warning signal device of the methane 

monitor shall be visible to a person who can de-energize electric equipment or shut down dieselpowered equipment on which it is mounted.” 30 C.F.R. § 75.342(b)(2); see also Tr. 409.

Bretzman determined that the operator could not see the monitor during normal mining 

operations unless he was in the direct line of sight of the readout. Tr. 409, 412, 441. As a result, 

the operator would not have accurate methane readings during mining. Tr. 409. However, 

Bretzman conceded that the standard does not specifically say that the monitor must be visible to 

the headgate or tailgate operator. Tr. 436-37. Any person assigned to watch the monitor would be 

sufficient. Tr. 437, 439. To Bretzman’s knowledge, no one stood at the center of the shearer. Tr. 

447. Furthermore, Bretzman could not recall anyone from Respondent telling him that the

indicator light could be seen by a person who could de-energize the machine. Tr. 446.

Respondent argues that the lack of previous citations from past inspections suggests that 

the condition was not a violation. Tr. 725-27. Since 2006, Respondent developed longwall panels 

for three miles and was subject to many inspections, including E01 inspections, spot inspections, 

and permissibility certifications for 2G longwall equipment. Tr. 422-442. Bretzman testified that 

the 2G approvals were irrelevant because they only certified diagrams and plans of the mine, and 

not the ways in which equipment was actually used. Tr. 451-452. For instance, Bretzman 

recalled a similar citation at the same mine requiring an auxiliary alarm light on a stage loader. 

Tr. 406. In that case, the stage loader satisfied 2G permissibility requirements if one assumed 

that the operator was in view of the methane alarm. Tr. 451-52. In practice, however, MSHA 

inspectors observed that the operators were not always in position to view the alarm and 

therefore issued a citation. Id. Bretzman could not recall if he had spoken with Respondent 

previously about the failure to place a light on the shearer, although he believed he had. Tr. 422, 

431. Bretzman testified that every longwall shearer that Bretzman worked with at Consol, and

most of the ones at Joy Technologies had auxiliary alarm lights. Tr. 407.

38 FMSHRC Page 1201
 Bretzman determined that the unlikely injury that would result from the alleged violation 

was lost work days or restricted duty for three miners. Tr. 410-11. He testified that there was 

normally a high concentration of coal dust at the site. Tr. 411. Excessive methane in an 

environment with coal dust creates an ignition hazard. Id. As a result, Bretzman determined that 

the shearer operators and shieldman were at risk for burns. Id. Bretzman wrote the citation as 

unlikely because mining had stopped and he had no evidence to suggest that methane was 

present. Tr. 410, 420. Furthermore, Respondent’s ventilation pushed over 100,000 cfm of intake 

air over the headgate, and the shearers were designed to automatically de-energize at 2.5 % 

methane. Tr. at 417-21. The monitors designed to shut off the shearers worked properly at the 

time of the citation. Tr. 421. 

 To abate the alleged violation, Respondent ordered the equipment necessary to install an 

auxiliary alarm light on the shearer. Tr. 412. Respondent installed a new, two-inch flashing light 

that was visible to the shearer operators. Tr. 448. The citation was terminated by another 

inspector. Tr. 457-58. 

2. The Testimony from Respondent’s Witnesses 

a. James Key’s Testimony 

James Key was a shearer operator for the Respondent.22 Key explained that a longwall 

shearer is a piece of equipment with two drums, one at the head and one at the tail end. Tr. 649-

650. As the shearer passes from the headgate to the tailgate, the tail drum cuts the top, and the

head drum cuts the bottom. Id. The headgate operator runs the head drum with a remote control

as cuts are made, while the tailgate operator does the same with the tail drum. Tr. 650-52. The

remotes have stop buttons that can turn off, but not de-energize, the machine. Tr. 651. Instead,

the shearer has an emergency stop that de-energizes the machine. Tr. 652.

When the shearer moves from the headgate to the tailgate, the tailgate operator typically 

stands approximately six to seven feet to the right of the alarm light in the direction of the 

tailgate. Tr. 653, 664. Key further testified that the alarm light was visible to the tailgate 

operator, if he turned his head. Tr. 664. According to Key, the headgate operator was usually in a 

variety of locations, including anywhere from right behind the tailgate operator to the back of the 

head drum. Tr. 653-54, 664-65, 668. Key testified that the headgate operator could also see the 

light, if he turned his head. Tr. 664. 

Key testified that when the shearer moved in the opposite direction, the tailgate operator 

typically stood on the head side of the drum. Tr. 655, 666-68. The headgate operator was usually 

located closer to the alarm light, although neither operator remained in a certain location. Tr. 

666-68. Although the light was usually visible, the operators might not have been in position to

22 Key had been employed by Mach Mining since January 2007. Tr. 647. At the time of 

the citation, Key was certified as a mine examiner and mine manager. Tr. 648. Prior to that, Key 

worked as a shearer operator on the longwall at American Coal’s Galatia Mine for 20 months. 

Tr. 646-48. Key had twenty years of mining experience. Tr. 647. 

38 FMSHRC Page 1202
see the light at any given moment. Tr. 666. Key admitted that there was not always someone 

standing in front of the light during mining. Tr. 674. 

Key was familiar with the methane monitor and the lights on the display. Tr. 661. Key 

had worked for a different coal company with a similar longwall system, which had the monitor 

in the same location. Tr. 669. According to Key, the light, which turned on when methane levels 

reached one percent, was “pretty bright.” Tr. 662-63, 665. The light was approximately an inch 

in circumference. Tr. 663. It was located within an enclosure that jutted out around the edges. Tr. 

673. The raised edges limited the light’s visibility at certain angles from the monitor. Tr. 673-74.

b. Johnny Robertson’s Testimony 

General Manager Robertson was familiar with the methane monitor on the longwall 

shearer. Tr. 720-21. Robertson testified that in one percent methane, a yellow light turned on. Tr. 

722, 746. Further, given adequate ventilation, the operator merely had to stop mining to halt 

methane liberation. Tr. 722. Once methane levels dropped below one percent, the operators 

could resume mining. Id. 

Robertson testified that Respondent had never received a citation for the location of the 

auxiliary alarm light on the shearer during the prior six years when Respondent used the 

longwall. Tr. 725-27. Additionally, Robertson testified that Massey Energy used the same 

methane display and never received a citation during his four years as a general manager there. 

Tr. 725-28. Until the instant inspection, Robertson had never heard of a citation for this issue. Tr. 

729. Robertson testified that, apart from the issuance of the citation, Respondent suffered no

reported negative consequences from the location of the alarm light. Tr. 751-53. Respondent

abated the citation by ordering an alarm light and installing it on a Saturday, when the longwall

was down. Tr. 756.

Robertson testified that approximately five years before the date of the hearing, MSHA 

inspector, Dean Cripps, issued a similar citation for lack of visibility on a monorail methane 

monitor.23 Tr. 728-30, 749-50. Robertson testified that Cripps’ concern about the location of the 

alarm light was limited to the monorail because Cripps did not issue a citation for the alarm light 

on the longwall shearer. Tr. 730. According to Robertson, Cripps informed Robertson’s 

supervisor, Anthony Webb, that any change in policy for the shearer methane monitors would be 

accompanied by written verification from MSHA. Tr. 730, 738. Robertson testified that 

Respondent never received verification in writing on this issue until the issuance of the citation. 

Tr. 738-41. 

Robertson further testified that two years ago, Webb and Robertson determined that 

installing the light required partially dismantling the shearer, and therefore, any necessary 

alterations to the alarm light would occur when the shearer was rebuilt for another mining panel. 

23 Both Robertson and Bretzman referred to a prior similar citation. Tr. 728-30, 749-50. 

Bretzman testified that the alarm light in the prior instance was on a stage loader, and Robertson 

testified that the citation was for a monorail alarm light. Id. The particular equipment is not 

determinative in the present case. 

38 FMSHRC Page 1203
Tr. 730-32, 749-50. Robertson, however, admitted that Respondent did not have to rebuild the 

shearer to install the light for abatement purposes. Tr. 752. 

Robertson relayed his conversations with Cripps and Webb to Bretzman. Tr. 733, 739-40. 

B. Analysis and Disposition

1. Respondent had Adequate Notice of the Requirements for § 75.342(b)(2)

Respondent argues that it did not have fair notice of the standard before receiving the 

citation. R. Br. 25-27. Respondent asserts that a previous MSHA inspector (Cripps) assured 

Respondent that a change in policy on the methane monitors would be accompanied by written 

notification. Tr. 730, 738. Respondent contends that Cripps’ assurance, coupled with a lack of 

previous citations on the longwall shearer’s methane monitor, establish that Respondent did not 

receive fair notice of the standard. 

Due process considerations prevent the adoption of an agency’s interpretation of a 

regulation that “fails to give fair warning of the conduct it prohibits or requires.” LaFarge North 

America, 35 FMSHRC 3497, 3500-01 (Dec. 2013)(citing Gates & Fox Co. v. OSHRC, 790 F.2d 

154, 156 (D.C. Cir. 1986)). The Commission has held that adequate notice is provided where a 

regulation has clear meaning and is not inconsistent with MSHA’s Program Policy Manual 

(PPM). Jim Walter Res., Inc., 28 FMSHRC 579, 594-95 (Aug. 2006). Where a regulation is not 

expressly defined, the Commission has found adequate notice where clarification is found in 

MSHA policy publications. See e.g., Dolese Brothers Co., 16 FMSRHC 689, 693-94 (Apr. 

1994)(where MSHA’s PPM and a policy letter clarified the applicable standard). 

Here, the language of the regulation is clear when it states that the “[t]he warning signal 

device of the methane monitor shall be visible to a person who can deenergize electric equipment 

or shut down diesel-powered equipment on which the monitor is mounted.” § 75.342(b)(2). This 

standard is further explained in MSHA’s Program Policy Manual (PPM) for machines operated 

by remote controls. Thus, even assuming some ambiguity in the regulatory language, the PPM 

was sufficiently clear regarding the requirements of the standard. See Coal Employment Project 

v. Dole, 889 F. 2d 1127, 1130 n. 5 (D.C. Cir. 1989)(PPM, although not binding, is an accurate

guide to current MSHA policies and practices); accord Mettiki Coal Corp., 13 FMSHRC 760,

766-67 & nn. 6 & & (May 1991). For such machines, the PPM requires that methane warning

devices be installed “in such a location that [it] can be readily seen or heard by...the machine

operator...at all locations from which the machine is operated.” V MSHA, U.S. Dep’t of Labor,

Program Policy Manual, Part 75.342 at 41(2015) (emphasis added). I find that the plain

language of the regulation, coupled with the accompanying explanation in the PPM, provided

clear and fair notice to Respondent regarding the interpretation of the cited standard. That is,

MSHA requires that methane warning devices for remote-controlled machinery be visible from

all locations from which the operator is located. 30 C.F.R. 75.342(b)(2).

Respondent’s argument that it detrimentally relied on inspector Cripps’ assurances that a 

change in policy on the methane monitors would be accompanied by written notification is not 

persuasive. Essentially, Respondent argues that MSHA should be estopped from issuing a 

38 FMSHRC Page 1204
citation on the methane warning light on the longwall shearer because of Cripps’ assurances and 

lack of previous enforcement. The Commission has declined to apply equitable estoppel against 

the government, or in this case, its agents. King Knob Coal Co., 3 FMSHRC 1417, 1421 (June 

1981). Generally, “those who deal with the Government are expected to know the law and may 

not rely on the conduct of government agents contrary to law.” Heckler v. Community Health 

Services, 467 U.S. 51, 63 (1981). The Commission has held that “an inconsistent enforcement 

pattern by MSHA inspectors does not prevent MSHA from proceeding under an application of 

the standard that it concludes is correct.” Mach Mining, 34 FMSHRC 1769, 1774 (Aug. 2012) 

(citing Austin Powder Co., 29 FMSHRC 909, 920 (Nov. 2007)). 

I have credited Bretzman’s testimony that MSHA requires visible alarm warnings on 

methane monitors on longwall shearers. Bretzman recognized an alleged violation and verified 

the applicability of the regulation with his supervisor at MSHA. Tr. 444. I have found that the 

plain language of the regulation, coupled with the accompanying explanation in the PPM, 

provided clear and fair notice to Respondent regarding the interpretation of the cited standard. 

Accordingly, I conclude that Respondent had adequate notice of the requirements of 30 C.F.R. § 

75.342(b)(2). 

2. The Violation of § 75.342(b)(2)

Section 75.342(b) provides that the warning signal device of the methane monitor must 

be visible to a person who can de-energize the equipment on which the monitor is mounted. 30 

C.F.R. § 75.342(b)(2). The regulations require the monitor to give this alarm signal when

methane concentrations reach one percent. 30 C.F.R. § 75.342(b)(1). At that point, the miner

must de-energize or shut down the equipment. 30 C.F.R. § 75.342(b)(2).

The Commission and the D.C. Circuit have previously examined the application of this 

regulation to longwall methane monitors. Consolidation Coal Co., 136 F.3d 819 (D.C. Cir. 1998) 

affirming Consolidation Coal Co., 18 FMSHRC 1903 (Nov. 1996). The D.C. Circuit determined 

that a visible alarm is essential because it alerts miners of dangerous concentrations of methane 

should other safety measures fail. Id. at 822. The warning functions as a fail-safe to ensure that 

miners respond to potentially hazardous situations. Id. at 823. The D.C. Circuit Court concluded 

that the Secretary’s interpretation of § 75.342(b) which requires that a warning signal be visible 

at all times to a miner who can “react to increasing methane levels and, if necessary, de-energize 

mining equipment,” was appropriate. Id. at 822. 

Respondent attempts to distinguish the present case from Consolidation Coal on the basis 

of notice. R. Resp. Br. 25-26. In that case, the Commission found actual notice where MSHA 

reiterated the requirement in seven meetings over the course of one year. Consolidation Coal, 

Co., 18 FMSHRC at 1907. Those facts do not prevent a finding of fair notice in the present case, 

for the reasons explained above. 

I credit Bretzman’s testimony that the longwall shearer operators would not be able to see 

the alarm light from various positions. Tr. 446. Although Key described the warning light as 

bright, both he and Bretzman testified that it was quite small, only up to an inch in 

circumference. Tr. 412, 661. Furthermore, the control panel in which the alarm light was 

38 FMSHRC Page 1205
contained had raised edges, which further limited its visibility at certain angels. Tr. 673-74. 

Finally, Bretzman credibly testified that the operators worked up to twenty-five feet from the 

warning light. Tr. 415. 

Respondent argues that because Bretzman did not observe an operator working thirty feet 

from the monitor, the citation was inappropriate. R. Resp. Br. 26. However, Key corroborated 

Bretzman’s testimony that the operators were not stationary during mining. Tr. 664-668. 

Further, Key acknowledged that the alarm was not in the line of sight of the operators at certain 

locations or angles. Tr. 666. Bretzman determined that the operator could not see the monitor 

during normal mining operations unless he was in the direct line of sight of the readout. Tr. 409, 

412, 441. Therefore, I find that the Secretary proved by a preponderance of the evidence that the 

small methane alarm light on the longwall shearer was not visible from all locations where the 

machine was operated, to a person, especially a machine operator working up to twenty-five feet 

from the control panel, who could de-energize the equipment. Indeed, a light the size of a quarter 

and located within the enclosure described, would not be visible at much shorter distances. 

Respondent failed to rebut the Secretary’s case by establishing that a person could see the alarm 

light from all locations from which the machine was operated remotely. Further, Bretzman could 

not recall anyone from Respondent telling him that the indicator light could be seen by a person 

who could de-energize the machine. Tr. 446. Accordingly, I find a violation of § 75.342(b)(2). 

Bretzman determined that because production had halted and because he had no evidence 

of methane present at the time of the citation, the violation was unlikely to result in an injury. Tr. 

410, 420. Under extant Commission precedent, I lack authority to modify the non-S&S 

designation and make it S&S.24 

3. Respondent’s Negligence was Appropriately Designated as Low 

The Secretary argues that Respondent’s negligence was low, citing the lack of previous 

enforcement as a mitigating factor in the inspector’s analysis. P. Post Hr’g Br. 3-4 (quoting Mach 

Mining, LLC, 34 FMSHRC 1769, 1744 (Aug. 2012), citing Austin Powder Co., 29 FMSHRC 

909, 920 (Nov. 2007)). In determining the weight to be given the lack of enforcement, I note that 

Commission judges are not bound to apply the levels of negligence definitions that are 

designated by potential mitigating circumstances in the Secrtary’s regulations. Brody, 37 

FMSHRC at 1701; Mach Mining, 809 F.3d at 1263-64. While the Commission has held that 

inconsistent enforcement is not a defense to liability, it is relevant to the determination of 

negligence, and may be cited as a mitigating factor in reducing said negligence. Mach Mining, 34 

FMSHRC at 1744 (citing King Knob Coal Co., 3 FMSRHC 1317, 1422 (June 1981), aff’d sub 

nom Mach Mining, LLC v. FMSRHC, 809 F.3d 1259 1259 (D.C. Cir. 2016) (inconsistent 

enforcement of a regulation may reduce the level of negligence and detrimental reliance on 

MSHA’s incorrect interpretation of a regulation is properly considered in mitigation of penalty). 

Both this citation and the previous citation involve violations of the same standard. While 

the similarity between the citations might result in comparable negligence determinations, the 

24 Mechanicsville Concrete, Inc. t/a Materials Delivery, 18 FMSHRC 877, 880 (June 

1996). 

38 FMSHRC Page 1206
precedent cited above permits consideration of inconsistent prior enforcement at this juncture to 

determine the appropriate level of negligence. I credit Robinson’s testimony that MSHA 

overlooked the violation of §75.342(b)(2) on the instant shearer for years before issuing a 

citation on the date of the inspection. Tr. 725-27. Given the lack of previous enforcement, I find 

that the Secretary properly designated Respondent’s level of negligence as low. 

4. Civil Penalty for Citation No. 8432319 

Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find 

that Respondent mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the 

originally proposed penalty of $117 will not affect Respondent’s ability to remain in business. 

MSHA recognized Respondent’s good-faith compliance in abating the citation. I have affirmed 

MSHA’s gravity and negligence determinations. After consideration of the penalty assessment 

criteria set forth in section 110(i) of the Act, I assess a $117 civil penalty against the Respondent 

for Citation No. 8432319. 

VII. Citation No. 8439454

A. Findings of Fact

1. Inspector Stanley’s Testimony

On August 15, 2013, Stanley returned to the mine to conduct a regular inspection of the 

surface of the property, including any underground equipment found on the surface. Tr. 472. 

Stanley inspected a Kubota 10, a two-seater diesel Road Taxed Vehicle (RTV), used to transport 

men or material underground. Tr. 473. Stanley did not know who operated the Kubota, but 

thought that it was Schilke. Tr. 499. Stanley examined the steering components of the vehicle as 

the operator turned the steering wheel. Tr. 474, 482. Stanley inspected the Kubota again in the 

repair shop. Tr. 486. Stanley testified that both times, he observed impermissible play in the 

lower left ball joint. Id. 

Stanley observed and concluded that there was excessive wear and play in the lower left 

ball joint for three reasons. Tr. 474-75, 482. First, the tires did not simultaneously turn with the 

steering wheel. Tr. 474-75, 508. Stanley described this as hesitation or delay in the steering. Tr. 

474-75. Second, there were areas of shine on the ball joint. Tr. 474, 508. Stanley observed that

the shiny area was more than an eighth of an inch. Tr. 483. He testified that this shine occurs

when the tie-rod end wears on the ball. Tr. 474. Finally, Stanley observed that there was in

excess of an eighth of an inch of play on the joint. Tr. 474, 480.

Stanley did not use a dial indicator or any other tool to assist his measurements during 

either inspection. Tr. 483, 487, 507. Instead, he examined for separate movement in steering 

components. Tr. 474-75, 487, 498. Stanley testified that an excess of an eighth of an inch of play 

contravenes MSHA out-of-service criteria. Tr. 507-08. Stanley was unable to verify where the 

standard for an eighth of an inch of play could be found in writing. Tr. 511-12. Stanley further 

testified that the day before the hearing, he learned from Kubota’s service personnel that a 

steering linkage component with any play must be replaced immediately. Tr. 475, 507, 510. 

38 FMSHRC Page 1207
After observing excessive wear on the ball joint of a Kubota vehicle, inspector Stanley 

issued Citation No. 8439454 for a violation of 30 C.F.R. § 75.1914(a), which requires that all 

diesel equipment be maintained in proper operating condition. Tr. 465, 476. Stanley determined 

that the violation was S&S and contributed to a loss of steering hazard that was reasonably likely 

to result in a lost workdays or restricted duty injury for one miner as a result of Respondent’s 

moderate negligence. P. Ex. 107; Tr. 476-77. The Secretary proposed a penalty of $1,026. 

The Kubota was driven at speeds up to approximately 21 miles per hour (mph) in the 

mine. Tr. 500, 503. When underground, the Kubota was driven on a rough, concrete travel road, 

with potholes and a steep decline of approximately 3000 feet. Tr. 477, 501-02. Stanley described 

the slope as having at least an eight-percent grade. Tr. 478. He testified that an excessively worn 

and unrepaired ball joint will cause “the steer tire [to] most likely fold over and lay down... 

[resulting in a] complete loss of steering on the vehicle.” Tr. 477. Stanley determined that such a 

hazard was likely to cause injury to the Kubota operator or one of the pedestrian miners clearing 

coal near the conveyor belt along the travelway. Tr. 477-79. The latter type of injury would 

result from the Kubota either striking a miner or pinching a miner against other structures. Tr. 

478. Stanley testified that the brakes on the Kubota were in good working condition, and that

operators generally drove at speeds consistent with road conditions. Tr. 499-500.

Stanley opined that the condition needed more than one day to develop. Tr. 479. He 

further testified that the wear would not likely be discovered during weekly inspections. Id. 

Stanley did not recall whether Respondent’s miners made any statements about mitigating 

factors when he issued the citation. Tr. 488. Without evidence indicating how long the condition 

actually existed, Stanley classified the Respondent’s negligence as moderate. Tr. 479. 

The citation was abated later that day when the tie-rod end and the ball joint were replaced.

Tr. 480, 488. Stanley did not take measurements after abatement, although he did go under the 

Kubota to examine the repair. Tr. 498. 

2. The Testimony from Respondent’s Witness 

a. Schilke’s Testimony 

As noted, Schilke accompanied Stanley during the inspection. Tr. 560. Schilke testified 

that he did not recall if Stanley initially examined the vehicle. Tr. 563. Schilke then testified that 

Stanley observed the steering while Jeff Wilkins, the Kubota operator, was directed to turn the 

steering wheel. Tr. 560, 563-64. 

According to Schilke, after Stanley’s inquiry, Wilkins told Stanley that Wilkins had 

checked the Kubota prior to use and found no issues with the steering. Tr. 560-61, 624, 627. 

Stanley then directed Wilkins to drive the Kubota to the repair shop. Tr. 561-62. Schilke 

observed no problems with the steering as Wilkins drove the vehicle to the shop. Id., Tr. 624. At 

the shop, the vehicle was lifted and the ball joints were examined. Tr. 561, 567. There Schilke 

observed movement in the ball joint, although neither he nor Stanley used an instrument to 

quantify how much movement was present. Tr. 561-62, 567-68, 621, 625. Schilke opined that the 

movement was less than an eighth of an inch, or less than the thickness of a quarter. Tr. 568, 622, 

625. Schilke conceded that the movement would get worse over time if not repaired. Tr. 625.

38 FMSHRC Page 1208
Schilke testified that the Kubota that Wilkins drove was very similar to the Kubota that 

Schilke drove. Tr. 565-66; see R. Ex. 5 (photograph of Schilke’s Kubota). Schilke described the 

brakes on the Kubotas as “pretty good.” Tr. 566. The Kubotas have hydrostatic transmissions, 

which slow down the vehicles when pressure is removed from the gas pedal. Id. Finally, Schilke 

described the concrete slope in the mine as rougher than an interstate, with a rutted and grooved 

surface. Tr. 636. 

When asked on direct examination to offer any mitigating circumstances, Schilke 

testified that the movement of the ball joint had little impact on the steering. Tr. 569. He also 

mentioned that any impact on steering was further reduced by the soft tread of the tires on the 

soft clay floor of the mine. Id. Finally, Schilke reiterated that Wilkins had driven the Kubota 

down to the seals of the mine and back, and that Wilkins had found no difficulty with steering. 

Id. 

Schilke also testified that he spoke with a mechanic for Respondent after Stanley issued 

the citation. The mechanic did not testify at hearing. Schilke testified that the mechanic told him 

that he would not have allowed an unsafe Kubota to go underground. Tr. 627, 637. According to 

Schilke’s testimony, the mechanic was of the opinion that the Kubota was safe because Wilkins 

had told him that the steering worked fine. Id. Schilke further testified that the mechanic told him 

that although the Kubota manufacturer wants no movement in the ball joint, in practice, vehicles 

that are used in a mine experience similar movement. Tr. 561-62, 566. Schilke later conceded on 

cross-examination that the steering in a private vehicle is very different from the steering in a 

Kubota. Tr. 620. 

b. Jeff Wilkins’ Testimony 

Jeff Wilkins was a mine examiner for Respondent.25 Tr. 683. Wilkins operated the 

Kubota in question every day. Tr. 685-686, 697. On the date of the inspection, Wilkins 

conducted a pre-operational check of the Kubota. Tr. 687. This check included an examination of 

the steering, which he performed by turning the wheel back and forth to ascertain any slack.26 Tr. 

687-88. Wilkins stated that a visual inspection of the ball joint while the wheel was turned was

not necessary to detect movement in the ball joint. Tr. 688-89. Instead, the movement would

manifest as play in the steering wheel. Id. Wilkins testified that without turning the wheel, he

would not notice wear in the ball joint, unless it was substantial. Tr. 699. Wilkins claimed that he

would notice gradual slack in the Kubota’s steering over time. Tr. 698. Wilkins further testified,

consistent with Schilke’s account, that Wilkins did not notice any problems with the steering

during his pre-operational check of the vehicle. Id.

25 Wilkins was employed with Respondent for seven and a half years. Tr. 683. Apart from 

his position as an examiner, Wilkins worked as an outby laborer and foreman. Id. Prior to his 

employment with Respondent, Wilkins worked at three separate mines: Willow Lake Mine, 

Eagle Valley Mine, and Sahara Mine. Tr. 683-84. Wilkins was a certified examiner with an 

electrical card. Tr. 685. 

26 When the wheel turned, suspension rose and descended, pivoting the ball joint that was 

threaded in the tie rod. Tr. 701-03. The ball joint had a nut and cotter pin that were intact. Id. 

38 FMSHRC Page 1209
After concluding his pre-operational check, Wilkins drove his Kubota underground for 

approximately one hour. Tr. 689-90. He described the underground path driven as a fairly steep 

slope, with smooth and rough patches, with rough conditions encountered where rocks fell off 

beltlines and along intake ways. Tr. 695-96. He testified that the Kubota was a slow-moving 

vehicle and he experienced no problems with the steering or the brakes. Tr. 690-91, 701. 

Wilkins contrasted his trip on the day of the citation with an earlier experience that he 

had driving a Kubota with faulty steering. Tr. 692. In the later instance, Wilkins noticed the 

steering arm loosen and jerk when he drove over a rough area. Id. He testified that without 

repair, such a steering arm may disconnect from the steering jack, forcing the vehicle to halt 

instantly. Id. Wilkins testified that the Kubota automatically stops when the wheel is turned and 

the operator removes his foot from the gas. Tr. 693. 

Contrary to Schilke’s testimony, Wilkins testified that he did not operate the Kubota 

around Stanley. Tr. 696. Rather, Wilkins testified that he left the Kubota after returning to the 

surface. Tr. 693-94. Wilkins was not present for Stanley’s initial inspection of the vehicle or for 

the inspection that occurred in the repair shop.Id. When Wilkins returned to the vehicle, Stanley 

and Schilke had already decided to relocate the vehicle to the repair shop. Id. 

B. Analysis and Disposition

1. The Violation of § 75.1914(a)

Section 75.1914 imposes two duties upon an operator: (1) to maintain machinery and 

equipment in safe operating condition, and (2) to remove unsafe equipment from service. 

Derogation of either duty violates the standard. Peabody Coal Co., 1 FMSHRC 1494, 1495 (Oct. 

1979). The Kubota cited by inspector Stanley was mobile equipment. It is undisputed that such 

mobile equipment was in service when cited. The dispute is whether the Kubota was maintained 

in safe operating condition. I find that the Kubota was not maintained in safe operating condition 

and was not removed from service. Accordingly, I find the violation. 

Equipment is in unsafe operating condition when a reasonably prudent person familiar 

with the factual circumstances surrounding the alleged hazardous condition, including any facts 

peculiar to the mining industry, would recognize a hazard warranting corrective action within the 

purview of the applicable regulation. Ambrosia Coal & Construction, 18 FMSHRC 1552, 1557 

(Sept. 1996) (citing Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982) (applying 

identical standard in underground coal mines)). 

The Commission has recognized that movement in steering linkage ball joints alone can 

rise to the level of a hazardous defect. See LaFarge North America, 35 FMSHRC at 3500 

(applying § 56.14100(c), which concerns defects that make continued operation hazardous, and 

remanding to determine amount of movement in ball joints and whether such amount constitutes 

a hazardous defect). Stanley credibly testified that MSHA finds violations where there is excess 

play in the ball joint. Tr. 507. Both Stanley, and through Schilke’s hearsay admission, 

Respondent’s mechanic, reported that the Kubota manufacturer requires no movement in the ball 

joint. Tr. 475, 561. In addition, I take administrative notice of the North American Standard Out38 FMSHRC Page 1210
of-Service Criteria, issued by the Commercial Vehicle Safety Alliance.

27 This manual provides 

that a vehicle is to be taken out of service if any of its ball and socket joints exhibit “any motion, 

other than rotational, between any linkage member and its attachment point of more than 1/8 

inch (3.2 mm) measured with hand pressure only” or if any tie rod exhibits “any looseness in any 

threaded joint.” Commercial Vehicle Safety Alliance, North American Standard Out-of-Service 

Criteria, at 44 (revised April 2010). 

I credit inspector Stanley’s testimony that there was impermissible movement in the 

lower left ball joint. A simple visual inspection by Stanley as the operator turned the wheel 

revealed a hesitation in steering, while the shine on the ball joint itself supplied physical 

evidence of wear. Tr. 474. Schilke corroborated the play in the ball joint when recalling the 

examination conducted in the repair shop. Tr. 561-62. The operator, Wilkins, used the Kubota 

after conducting a pre-operational examination, which he admits did not include a visual 

examination of the ball joint, and failed to reveal the play in the ball joint. Tr. 687-89.28 Neither 

side disputes that, if left unchecked, the movement would grow worse over time. Tr. 477, 625. 

Accordingly, I find that excess play in the ball joint as visually observed by inspector Stanley 

constitutes a hazard making continued operation of the Kubota unsafe and requiring its removal 

from service. 

I discredit the recollection of Respondent’s witnesses concerning the ball joint 

examination. Respondent’s witnesses contradict themselves and each other with regard to the 

Kubota’s inspection. Schilke alleged that he could not recall Stanley’s examination of the 

Kubota’s steering, and then immediately proceeded to describe the inspection. Tr. 563-64. 

Although Wilkins did not remember participating in the inspection, both Stanley and Schilke 

confirmed the participation of Wilkins during Stanley’s inspection. Tr. 482, 560-64, 693. 

Based on my review of the testimony, I find that the Secretary proved by a preponderance 

of the evidence that Respondent violated § 75.1914(a) by failing to maintain the Kubota in safe 

operating condition, and by failing to remove it from service. 

27 This manual is relied on and cited by the United States Department of Transportation. 

49 C.F.R. Pt. 385.4(b)(1)(2013); 79 F.R. 27766, (May 15, 2014). Under Commission precedent, 

judicial notice can be taken of the existence or truth of a fact or other extra-record information 

that is not the subject of testimony, but is commonly known, or can safely be assumed, to be true. 

Union Oil, 11 FMSHRC 289, 300 n.8 (Mar. 1989). 

28 Although Respondent was not cited for an inadequate pre-operational inspection, I 

have determined in previous cases that a proper pre-operational inspection of a ball joint requires 

one person monitoring the steering linkage while another person moves the steering wheel. Extra 

Energy, 36 FMSHRC 2733, 2743 (Oct. 2014)(ALJ). Wilkins failed to conduct a visual 

inspection of the ball joint while another person turned the wheel, or vice versa. 

38 FMSHRC Page 1211
2. The Violation was Significant and Substantial

a. There was a Violation of a Mandatory Safety Standard

For the reasons explained above, I find the underlying violation of mandatory safety 

standard § 75.1914(a). 

b. The Violation Contributed to a Discrete Measure of Danger to Safety 

My finding of a violation supports a finding of a discrete measure of danger to safety as 

the standard violated requires a failure to maintain mobile equipment in safe operating condition. 

Accordingly, if the Kubota is not maintained in safe operating condition, there is necessarily a 

discrete measure of danger to safety. This conclusion is supported by the fact that MSHA, the 

Kubota manufacturer, and the North American Standard Out-of-Service Criteria manual require 

that vehicles with ball joints exhibiting excessive wear must be immediately repaired or removed 

from service. Tr. 507, 475. Furthermore, Stanley credibly testified that such a ball joint, if left 

unrepaired, would fail and result in compromised steering and control over the vehicle. Tr. 477. 

Accordingly, I find that the second Mathies factor is satisfied. 

c. The Violation Contributed to a Hazard That was Reasonably Likely to 

Result in Injury 

Regarding the third Mathies factor, the Secretary demonstrated that the hazard 

contributed to by the violation, i.e., loss of steering of a Kubota within the mine, was reasonably 

likely to result in an injury. Schilke and Wilkins testified that Kubotas are slow to a stop when 

pressure is removed from the gas pedal. Tr. 499, 692-93. However, a Kubota driven at speeds up 

to approximately twenty-one miles an hour on rough mine roads at an eight degree slope with 

undiscovered excess wear on the ball joint, is reasonably likely to contribute to compromised 

steering and loss of control of the Kubota, which hazard is reasonably likely to result in injury to 

the driver or injury to a miner working nearby. The driver is exposed to injury due to the 

excessive wear in the ball joint, which contributes to a compromised or loss-of-steering-control 

hazard that would likely result in collision with an object or rib and injury to the driver. Further, 

Stanley’s testimony credibly establishes that miners working along the conveyer belt adjacent to 

the travelway were exposed to injury from a collision due to the loss of control of the Kubota. In 

these circumstances, the loss-of-control hazard contributed to by the violation, was reasonably 

likely to result in injury during continued operation of the Kubota with excessive wear in the ball 

joint. 

d. There was a Reasonable Likelihood That the Injury in Question Will Be of a 

Reasonably Serious Nature 

With regard to the fourth Mathies factor, I find a reasonable likelihood that any such 

injury would be of a reasonably serious nature. The loss-of-control hazard contributed to by the 

failure to maintain the Kubota in safe operation condition was reasonably likely to result in a 

collision with associated serious or fatal injury to the Kubota operator or pedestrian miners 

working nearby. The Kubota is large enough to seat two people and has a dump bed in the back. 

38 FMSHRC Page 1212
See R. Ex. 5. A collision with a miner, the rib, or other equipment would likely be serious or 

fatal. A miner struck by the Kubota and pinned against the vertical supports within the mine 

would likely suffer serious injuries. Accordingly, the Secretary has shown a reasonable 

likelihood that an injury resulting from the hazard contributed to by the violation was reasonably 

likely to be serious or fatal. 

3. Respondent’s Negligence was Appropriately Designated as Moderate 

As discussed above, a reasonably prudent operator engaging in appropriate buddy-checks 

of steering linkage components should have been aware of the cited condition. Based on the 

testimony and briefs, I do not find considerable mitigating circumstances that would justify 

reducing the negligence designation from moderate to low. Respondent’s assertion that the soft 

floor of the mine would reduce the impact of malfunctioning steering is not persuasive. There 

was no evidence that the floor disturbed the speed or performance of a Kubota in safe operating 

condition. Therefore, I discredit Schilke’s inference that the same floor would hinder a Kubota 

with compromised steering. Tr. 569. Further, the assertion that the Kubota’s operator (Wilkins) 

noticed no defect in the steering that day does not eliminate the likelihood of the danger. Rather, 

the insufficient examination procedure supports at least a moderate negligence designation. 

Respondent’s Kubota operator failed to perform any visual examination the vehicle, much less 

while another person turned the wheel. Tr. 699. In these circumstances, I find that the Secretary 

properly designated the Respondent’s level of negligence as moderate. 

4. Civil Penalty for Citation No. 8439454 

Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find 

that Respondent mined 7,528,061 tons of bituminous coal in 2012. The parties stipulated that the 

originally proposed penalty of $1,026 will not affect Respondent’s ability to remain in business. 

MSHA recognized Respondent’s good-faith compliance in abating the citation. I have affirmed 

MSHA’s gravity, negligence, and S&S determinations. After consideration of the penalty 

assessment criteria set forth in section 110(i) of the Act, I assess a $1,026 civil penalty against 

the Respondent for Citation No. 8439454. 

VII. Citation No. 8452203

A. Findings of Fact

1. Inspector Horseman’s Testimony

After observing a missing portion of an emergency lifeline, MSHA inspector Steven Paul 

Horseman29 issued Citation No. 8452203 for a violation of 30 C.F.R. § 75.380(d)(7)(i), which 

29 At the time of hearing, inspector Horseman had been employed with MSHA for one 

year and eleven months. Tr. 515. Apart from a four-year stint with a phone company, Horseman 

had worked in mining since 1991. Tr. 516. He has experience in longwall and continuous mining 

and has held various positions, including equipment operator, examiner, IT specialist, electrician, 

and mine supervisor. Id. 

38 FMSHRC Page 1213
requires that lifelines be installed and maintained throughout the entire length of the escapeway. 

Tr. 465, 476. Stanley determined that the violation was S&S and contributed to an inability-totimely-escape hazard that was reasonably likely to result in injuries affecting thirty miners as a 

result of Respondent’s moderate negligence. Tr. 156, 162-63. The Secretary proposed a penalty 

of $13,268. 

On September 8, 2013, Horseman conducted an EO2 section 103(i) spot inspection, 

while being accompanied by safety manager Schilke. 30 U.S.C. §813(i); Tr. 517; P. Ex. 109. On 

the way toward headgate seven, Horseman lost sight of the lifeline along the East Mains travel 

road. Tr. 517. He asked Schilke to pull over and the two of them located the lifeline one entry 

over in the secondary escapeway. Tr. 517, 529. They returned to their vehicle and followed the 

lifeline until they found a break in the line. Id. The lifeline dangled from the ceiling, 

approximately five feet above the ground. Tr. 517-18. The other end of the line was located 

approximately 160 feet away. Tr. 518. Horseman measured the gap between the ends of the 

lifeline, while Schilke found replacement line. Id. With the extra line, Horseman and Schilke 

connected the two ends of the lifeline. Id., 525-26. 

Horseman issued Citation No. 84522036 for a § 75.380(d)(7)(i) violation. Tr. 519. 

§75.380(d)(7)(i) requires lifelines to be installed and maintained throughout the entire length of

the escapeway. Id. A lifeline is typically a durable, nylon rope. In the event of an emergency, a

lifeline provides disoriented miners with a tactile method of escape if the entry fills with smoke.

Tr. 520. The lifeline has cones and reflective lights that direct the miner towards the exit near the

slope. Tr. 543-45; 30 C.F.R. § 75.380(d)(7)(iii-v).

Horseman opined that all lifeline citations are not automatically S&S. Tr. 526. He 

designated the instant violation as S&S because he determined that the violation contributed to a 

hazard that was reasonably likely to result in fatal injuries affecting 30 miners. Tr. 523-24. With 

respect to likelihood, Horseman testified that the lifeline would only be used in the event of an 

emergency. Tr. 523. If a fire or explosion occurred, Horseman testified that it would not be 

unusual for ventilation control devices to fail. Id. With failed ventilation, Horseman testified that 

miners would inhale toxic fumes from smoke, or find themselves in a buildup of carbon 

monoxide. Id. Even assuming sufficient time to don self-contained self-rescuers (SCSRs), 

Horseman noted the reduced efficacy of these devices should the miners panic or fumble during 

the emergency. Tr. 523. He recalled an incident from his own experience as a miner when a 

smoke-filled entry limited visibility to the point where “you could not see your hand in front of 

your face.” Tr. 521. He testified that in such conditions, 160 feet of missing lifeline would 

prevent a miner from locating the other end of the lifeline and escaping the mine. Id.

Additionally, he testified that the miners may not have been aware that the lifeline changed 

entries, which left them susceptible to further disorientation. Tr. 522. Given these conditions, 

Horseman believed that fatal injuries were reasonably likely. Tr. 523. With respect to the number 

of persons affected, Schilke informed Horseman that three loading crews comprised of ten 

miners apiece were working inby the missing lifeline. Tr. 524. 

Horseman designated the Respondent’s negligence as moderate. Id. He made this 

designation because he could not determine how long the condition existed. Tr. 524-25. He 

conceded that of the 35,000 feet of secondary escapeway, he found only 160 feet of the lifeline 

38 FMSHRC Page 1214
that was missing. Tr. 542-43. He confirmed that Respondent held escape drills for miners to 

familiarize themselves with using the escapeways. Tr. 547. Additionally, Respondent’s vehicles 

had tethers. Id. A tether allows miners to stay attached to one another in case a single miner 

grows disoriented. Tr. 547-49. 

2. The Testimony from Respondent’s Witnesses 

a. Schilke’s Testimony 

Schilke confirmed that a portion of the lifeline was missing in the East Mains #1 

travelway. Tr. 570-72. Schilke did not know how the condition occurred, or for how long it had 

existed prior to discovery by Horseman. Tr. 601-02. Schilke admitted that he traveled that route 

daily and had not discovered the condition. Tr. 615. The mine records did not contain any 

notations regarding the missing lifeline. Tr. 602. The cited condition was in an area where 

tractors were driven all day long, including the third-shift tractors, which had passed through the 

area before the inspection. Tr. 602-03. Schilke did not find the disconnected section of the 

lifeline and speculated that it could have been dragged away by a passing vehicle. Tr. 612-15. 

The remaining ends of the lifeline, normally at shoulder height, were on the ground. Tr. 613-14. 

Schilke testified about the location of the missing lifeline. If one walked towards the exit of the mine, the 

lifeline primarily followed the direction of the travel road. Tr. 600. The travel road headed north before turning west 

into the #3 entry of the East Mains #1 route. Id. The lifeline did not turn with the travel road, but continued into the 

#2 entry before turning west. Tr. 601. This detour ran parallel to the travel road and past three crosscuts. Id. The gap 

in the lifeline occurred within this detour in the #2 entry. Tr. 578, 599-601. The detour turned south down the #29 

crosscut to rejoin the travel road in the #3 entry. Tr. 597-601; see R. Ex. 11. A miner, who followed the 

lifeline into the #2 entry, needed to walk through two crosscuts to find the other end of the line. 

Tr. 574-75. 

Schilke testified that the miners were aware of the detour because the lifeline had 

followed that path since the area was developed. Tr. 610. He conceded, however, that miners 

would not be expecting the section of the lifeline to be missing. Tr. 611. Schilke opined that 

miners, who encountered a gap in the lifeline, would continue forward following the flow of air 

rather than choose to retrace their path to rejoin the travel road. Tr. 608. However, he admitted 

that in an emergency, the direction of air can change, thus preventing miners from using air 

courses as directional indicators. Tr. 616. Nonetheless, he opined miners would know which 

direction they were walking because the mine graded up as it headed outby. Tr. 616-17. 

According to Schilke, if the miner could not find the other end of the line, he or she 

would eventually hit stoppings placed west and north of the detour through the #2 entry.30 Tr. 

596, 608. Thus, disoriented miners would eventually be forced to turn south or return east in the 

30 There was a stopping in the #2 entry inby the # 29 crosscut, which prevented miners 

from walking further westward. Tr. 595-96. There were additional stoppings that blocked access 

to the crosscuts and entries to the north of the #2 entry. One of the stoppings in the crosscuts 

north of the #2 entry had a man door. Tr. 596. A man door allow miners to cross through a 

stopping. Id. During normal production, man doors are closed. Tr. 595-96. 

38 FMSHRC Page 1215
direction from which they came. Tr. 596-98, 608. When choosing between these options, Schilke 

opined that the miners would not return east in the direction from where smoke traveled. Tr. 608. 

The remaining direction, south, would lead the miners to the travel road. Tr. 596-97, 608. 

The self-contained self-rescuers (SCSRs) are equipped to last from forty-five minutes to 

an hour. Tr. 617. Schilke recalled that the nearest self-rescuer caches were approximately 2,500 

feet inby the missing lifeline, and 3,000 feet outby the missing lifeline. Tr. 640-42. As noted, the 

height of the mine is generally nine to ten feet. Tr. 619. Schilke estimated that it would take 

approximately an hour to travel about 5,700 feet, although some miners may move more slowly 

than others. Tr. 619, 637, 644. Additionally, disoriented or lost miners may take longer to reach 

a cache. Tr. 644-45. According to Schilke, the distance from the three working sections to the 

missing lifeline was 15,000 feet. Tr. 618. The distance between the missing lifeline and the slope 

exit of the mine was about another 15,000 feet. Tr. 617-18. On foot, it would take a miner nearly 

three hours to reach the slope from the missing lifeline. Tr. 619, 637. 

Schilke opined that directional signals on the lifeline and Respondent’s safety protocols 

reduced the danger of the violation. On either end of the missing lifeline section, Respondent’s 

lifeline had cones and reflectors that indicated the direction towards the exit. Tr. 572-73, 614. 

The reflectors were visible in the cited area. Tr. 573-74. Reflectors were spaced every twentyfive feet and were attached to either a cone or the lifeline itself. Tr. 573. Schilke recalled that the 

cones were spaced every 100 feet. Tr. 573. The cones were situated on the lifelines so that a 

miner’s hand would slide smoothly over the tip of the cone towards the base as the miner 

traveled towards the exit. Tr. 573. If a miner traveled in the wrong direction, the miner’s hand 

would stop against the base of the cone. Tr. 573. 

Additionally, Schilke testified that escaping miners would not rely solely on lifelines 

during an emergency situation. Tr. 609. He testified that in the event of an emergency, the ideal 

method for escape was by vehicle. Tr. 574, 604-05, 609. He further testified that an escaping 

vehicle would continue along the main travelway, rather than detour into the adjacent entry to 

follow the lifeline. Tr. 574. Depending on the level of smoke, however, Schilke was uncertain 

whether the vehicle could drive down the secondary escapeway. Tr. 611-12. Schilke opined that 

a pedestrian miner would exit the mine along the main travelway, rather than follow the lifeline. 

Tr. 574-576. He conceded, however, that a miner might become disoriented, panic, and become 

lost in an emergency. Tr. 611, 644-45. 

Schilke confirmed that Respondent held escapeway drills every ninety days and 

instructed miners to use tethers to keep together during a mine evacuation. Tr. 603-605, 609, 

611. Additionally, he testified that signs labelling the crosscut numbers would indicate a miner’s

location. Tr. 573-74. Schilke maintained that these precautions, combined with the miner’s

knowledge of the mine’s topography and air flow, were sufficient for miners to find their way

out of the mine in an emergency situation. Tr. 608-10.

38 FMSHRC Page 1216
B. Analysis and Disposition

1. The Violation of § 75.380(d)(7)(i)

Section 75.380(d)(7)(i) provides that a continuous directional lifeline must be installed 

and maintained throughout the entire length of each escapeway. 30 C.R.F. § 75.380(d)(7)(i). 

Neither side contests that a portion of the lifeline was missing. Tr. 572; see R. Ex. 14 (missing 

lifeline denoted in red). The missing portion of the line was approximately 160 feet. Tr. 518. A A 

missing portion or gap in the lifeline makes it non-continuous under the plain meaning of the 

standard and creates a violation of § 75.380(d)(7)(i). 

Respondent argues that the violation was not S&S because the missing portion of the 

lifeline was relatively small compared to the full length of the line, and because additional safety 

measures were adequate to ensure the safe evacuation of the miners. 

2. The Violation was Significant and Substantial

a. There was a Violation of a Mandatory Safety Standard

For the reason explained above, I find the underlying violation of mandatory safety 

standard § 75.380(d)(7)(i). 

b. The Violation Contributed to a Discrete Measure of Danger to Safety 

With regard to the second Mathies factor, the violation created a discrete safety hazard or 

measure of danger to safety. The Commission has found that an accurate description of the 

hazard contributed to by an inaccessible lifeline is “the danger of not being able to access or use 

the lifeline in the event of an emergency where visibility is reduced and miners must rely upon 

the tangible nature of the lifeline to quickly and safely escape the mine.” Black Beauty Coal Co., 

36 FMSHRC 1121, 1124 (May 2014). This description supports the Commission’s earlier 

understanding of the hazard as “miners not escaping quickly in an emergency with attendant 

increased risk of injuries due to a delay in escape.” Cumberland, 33 FMSHRC at 2346, aff’d sub 

nom., Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013). I find that a 160-

foot gap in the lifeline is a significant and substantial hindrance that contributes to the hazard of 

not being able to use the lifeline to escape the mine in an emergency situation. 

Respondent argues that an S&S designation is inappropriate because 160 feet of missing 

lifeline is a small percentage of the length of the entire lifeline. R. Br. 20-21. The percentage of 

uninterrupted line is essentially immaterial to the impact that a 160-foot break in the line would 

have on escaping miners. In Black Beauty, the Commission found that 110 feet of inaccessible 

lifeline was reasonably likely to contribute to an inability-to-timely-escape hazard that would 

result in injury. Black Beauty, 36 FMSHRC at 1124-25. Given the greater length of missing 

lifeline in the present case, I find that 160 feet of missing lifeline supports my S&S finding for 

this violation. 

38 FMSHRC Page 1217
Respondent also argues that its miners would use quicker alternatives to escape, and that 

their knowledge of the primary escapeway would keep them on the quickest path towards the 

exit, allowing them to disregard the lifeline entirely. I reject this argument. Although the 

Commission has not yet defined the weight that must be given to the presence of additional 

safety precautions, the Commission discounts the argument that additional safety measures 

prevent an S&S finding. See Brody Mining, 37 FMSHRC at 1691 (stating that evidence of 

redundant safety measures has been consistently rejected as irrelevant); Black Beauty, 36 

FMSHRC at 1125 n.5 (stating that additional safety measures do not prevent a finding of S&S); 

Cumberland, 33 FMSHRC at 2369 (stating that allowing redundant safety measures to provide a 

defense to a finding of S&S would defeat the purpose of any safety protection, and citing Buck 

Creek, 52 F.32 at 136). Thus, alternative safety protocols do not undercut the significant and 

substantial contribution that violations of mandatory standards have toward discrete safety 

hazards. 

In the present case, I examine the impact of a missing lifeline on a miner that must rely 

upon said lifeline to quickly and safely exit the mine in an emergency situation. In short, I find 

that the hazard contributed to by the violation was the prevention of a quick escape from the 

mine by miners who were entitled to rely on a continuous lifeline when escaping the mine during 

an emergency. Accordingly, the second Mathies factor is satisfied. 

c. The Violation Contributed to a Hazard That was Reasonably Likely to 

Result in Injury

I find that the violation contributed to the hazard that miners would become lost, 

disoriented, or otherwise unable to quickly escape from the mine because of a compromised 

lifeline, and that such hazard was reasonably likely to result in injury. The Commission requires 

its judges to examine the S&S factors for lifeline violations within the context of emergency 

conditions. Cumberland, 33 FMSHRC at 2357, aff’d Cumberland Coal Res., LP v. FMSHRC, 

717 F.3d 1020 (D.C. Cir. 2013). The Commission has discussed different hazards that are 

reasonably likely to result in an injury because of a lifeline violation in an emergency situation. 

Black Beauty, 36 FMSHRC at 1125 (inaccessible lifelines contribute to injuries that are 

reasonably likely to result from hazards such as tripping or stumbling, an interruption of 

ventilation, miner panic and disorientation during an emergency, and excessive smoke filling a 

corridor as a result of an a fire inby). In the present case, should miners follow the lifeline into 

the secondary escapeway, and should the secondary escapeway fill with smoke, visibility may be 

completely compromised. Because the gap in the lifeline occurs within the secondary escapeway, 

miners will be unable to use the lifeline to navigate out of the secondary escapeway in conditions 

of reduced visibility, re-enter the primary escapeway and continue exiting the mine via the 

primary escapeway. Tr. 522; R. Ex. 11. Inspector Horseman testified that he personally 

experienced a situation where smoke within the mine was so thick that he could not see his hand 

in front of his face. Tr. 521. With such reduced visibility, locating a lifeline 160 feet away is a 

staggering and time-intensive obstacle to overcome. A miner with little to no visibility and no 

lifeline is likely to be disoriented or lost. 

The Commission has discussed different ways a lifeline violation in an emergency 

situation was reasonably likely to result in injury. Black Beauty, 36 FMSHRC at 1125 

38 FMSHRC Page 1218
(inaccessible lifelines contribute to injuries that may result from hazards such as tripping or 

stumbling, an interruption of ventilation, miner panic and disorientation during an emergency, 

and excessive smoke filling a corridor as a result of an a fire inby). Should ventilation fail in an 

emergency, miners may breathe toxic air or a buildup of carbon monoxide. Tr. 523. The miners 

carry portable ventilation self-rescuers that only last for forty-five minutes to an hour. Tr. 617. 

This time is reduced if the miners fumble or panic in an emergency. Tr. 523. In an emergency, 

time spent lost or disoriented due to a missing lifeline reduces precious air supply, may prevent 

miners from reaching the next self-rescuer supply cache, or may thwart them from escaping the 

mine entirely. 

Respondent put on evidence that it has adequate safety protocols and training to ensure 

that miners will not panic in an emergency. Tr. 608-10. However, the Commission has reasoned 

that even experienced miners “panic and become disoriented in an emergency.” Black Beauty, 36 

FMSHRC at 1124. I find it likely that panic will exacerbate the consequences of reduced 

visibility or limited ventilation. 

I conclude that a miner who becomes lost, disoriented, or delayed in locating a missing 

portion of the lifeline in order to escape during a mine emergency is reasonably likely to suffer 

injury from smoke inhalation, carbon monoxide inhalation, or entrapment during the emergency. 

Accordingly, the third Mathies factor is satisfied. 

d. There was a Reasonable Likelihood That the Injury in Question Will Be of a 

Reasonably Serious Nature 

With regard to the fourth Mathies factor, any such injury from a delayed escape from the 

mine is reasonably likely to be of a serious nature. Black Beauty, 36 FMSHRC at 1125 (“The 

hazard of delayed or no escape at all due to an inaccessible lifeline in an emergency is 

reasonably likely to result in serious or fatal injuries”); Cumberland, 717 F.3d at 1029 (“[T]he 

lifeline violations at issue here would delay miners from escaping from an emergency and that 

such a delay would be reasonably likely to cause serious injuries or death”). The hazard of a 

delayed escape is supported by inspector Horseman’s testimony. He reasonably determined that 

limited air supply from the self-rescuers in a corridor filled with smoke and carbon monoxide, 

miner panic and disorientation during an emergency, and reduced visibility are reasonably likely 

to inhibit a timely escape from the mine. Tr. 523-24. I credit his testimony that the prolonged 

inhalation of smoke and carbon monoxide during such an escape from the mine is reasonably 

likely to be of a reasonably serious nature or fatal. Id. Accordingly, the Secretary has 

demonstrated a reasonable likelihood that any injury resulting from the hazard contributed by the 

violation would be serious or fatal. 

3. Respondent’s Negligence is Raised from Moderate to High 

I find that Respondent’s negligence should be raised from moderate to high. Respondent 

knew or should have known of the missing lifeline and there are no mitigating circumstances. 

Initially, I note that escapeways must follow “the most direct, safe and practical route to the 

nearest mine opening suitable for the safe evacuation of miners.” 30 C.F.R. § 75.380(d)(5). The 

lifeline followed a circuitous route used by drivers to avoid a belt drive that was once installed in 

38 FMSHRC Page 1219
the main travelway. Tr. 610. However, at the time of the citation, the belt was no longer within 

the travelway. Tr. 610. Respondent’s failure to move the line to the primary travelway indicates 

that Respondent paid little to no attention to the path of the line after the belt drive was removed. 

Furthermore, Respondent failed to discover the condition of the lifeline for an undetermined 

length of time. 

The violation before me presents more than a lifeline that was merely in poor condition. 

A portion of the primary escapeway did not have a lifeline because the lifeline took a detour into 

the secondary escapeway that was costly in both time and distance for a miner escaping on foot. 

Within that detour, 160 feet of lifeline was entirely absent. Schilke testified that he traveled the 

route daily and did not notice the condition. Tr. 615. Respondent’s inability to definitively 

explain why the line was missing or for how long the violation existed is not a mitigating 

circumstance, but instead, is further evidence of a cavalier lack of care towards a condition that is 

essential to the survival of miners in an emergency situation. Further, Respondent’s ignorance 

raises the concern that a similar section of the lifeline could go missing again without discovery. 

Finally, Respondent has not justified its failure to maintain an intact lifeline -- a failure that 

jeopardized the lives of thirty miners. I find that the Respondent should have known of the 

violative condition and corrected it immediately as a top priority. Accordingly, Respondent’s 

negligence is raised from moderate to high. 

4. Civil Penalty

Applying the penalty assessment criteria set forth in section 110(i) of the Mine Act, I find 

that Respondent mined 7,528,061 tons of bituminous coal in 2012. The Secretary originally 

proposed a penalty of $13,268 and the parties have stipulated that the total proposed penalty 

from all seven citations equaling $39,500 will not affect Respondent’s ability to remain in 

business. MSHA recognized Respondent’s good-faith compliance in abating the citation. I have 

affirmed MSHA’s S&S determination. I have modified MSHA’s negligence determination from 

moderate to high for the reasons stated above. After consideration of the penalty assessment 

criteria set forth in section 110(i) of the Act, I assess a $25,000 civil penalty against the 

Respondent for Citation No. 8452203. Respondent’s new total penalty from the combined 

citations is now $32,636. Given that this is lower than the total amount which Respondent 

stipulated will not affect its ability to remain in business, I find that this increase in penalty is 

appropriate and justified for the gravity and severity of the violation and would not affect 

Respondent’s ability to remain in business. 

VIII. ORDER

It is ORDERED that Citation No. 8451651 be MODIFIED to reduce the level of 

negligence from high to moderate. 

It is ORDERED that Citation No. 8439446 be AFFIRMED, as written. 

It is ORDERED that Citation No. 8432319 be AFFIRMED, as written. 

It is ORDERED that Citation No. 8439454 is AFFIRMED, as written. 

38 FMSHRC Page 1220
It is ORDERED that Citation No. 8452203 be MODIFIED to raise the level of 

negligence from moderate to high. 

It is ORDERED that the operator pay a total penalty of $32,63631 within thirty days of 

this decision.32 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

Distribution: 

Marty J. Gayer, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 

2300 Willow St, Suite 200, Vincennes, IN 47591 

Christopher D. Pence, Esq., Eric L. Silkwood, Esq., Hardy Pence PLLC, 500 Lee St. East, Ste. 

701, Charleston, WV 25301 

Jason Grover, Esq., Office of the Solicitor, U.S. Dept. Of Labor, 11—Wilson Blvd., 22nd Floor 

West, Arlington, VA 22209 

Daniel McIntyre, Esq., U.S. Dept. of Labor, Office of the Solicitor, 1999 Broadway, Ste. 800, 

Denver, CO 80202 

Thomas J. Motzny, Esq., U.S. Depot. Of Labor, Office of the Solicitor, 211 7th Ave. North, Ste. 

420, Nashville, TN 37219 

31 As noted herein, I assess a penalty of $5,081 for Citation No. 5481651, $1,412 for 

Citation No. 8439446, $117 for Citation No. 8432319, $1,026 for Citation 8439454, and $25,000 

for Citation No. 8452203. 

32 Payment should be sent to: Mine Safety & Health Administration, U.S. Department of 

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

38 FMSHRC Page 1221
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May 31, 2016 

DECISION AND ORDER

Appearances: Latasha Thomas, Esq., U.S. Department of Labor, Nashville, Tennessee, 

for Petitioner 

James F. Bowman, Midway, West Virginia, for Respondent 

Before: Judge Moran 

This case is before the Court upon a petition for assessment of a civil penalty under 

section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Involved 

are two alleged violations concerning a Cat 329 excavator: a section 104(d)(1) order, Order No. 

8302707, citing 30 C.F.R. §77.404(a),1

 for failing to maintain equipment in safe operating 

condition, and a second (d)(1) order on the same piece of equipment, Order No. 8302708, citing 

30 C.F.R. § 77.1606(a),2 for an inadequate pre-shift exam of that excavator. For the reasons that 

follow, the Court affirms both violations, but, having determined that neither involved 

unwarrantable failures, reduces the civil penalties to appropriate amounts. 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1

 Section 77.404, titled, Machinery and equipment; operation and maintenance, provides:

(a) Mobile and stationary machinery and equipment shall be maintained in safe

operating condition and machinery or equipment in unsafe condition shall be

removed from service immediately.

2

 Section 77.1606, titled, Loading and haulage equipment; inspection and maintenance, 

provides: 

(a) Mobile loading and haulage equipment shall be inspected by a competent

person before such equipment is placed in operation. Equipment defects affecting

safety shall be recorded and reported to the mine operator

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

KENTUCKY FUEL CORPORATION, 

 Respondent.

CIVIL PENALTY PROCEEDING

Docket No. KENT 2015-575 

A.C. No. 15-19475-384304

Mine: Beech Creek Surface Mine 

38 FMSHRC Page 1222
Findings of Fact 

MSHA Inspector Melvin Keith Wolford testified for the Secretary. Inspector Wolford is a 

coal mine inspector service specialist. His employment with MSHA began in October 2006. Tr. 

26. His prior experience in the mining industry includes working for a trucking company, taking

care of coal trucks, and performing general maintenance. He has also operated bulldozers and

end loaders. As an equipment operator, he was responsible for doing pre-operational checks on

such equipment. Id.

The inspector was at Kentucky Fuels’ Beech Creek Surface Mine on February 7, 2015 to 

complete an MSHA regular E01 surface mine inspection. Tr. 30. After arriving at the mine he 

traveled down to the open pit area, where he met the foreman, Bernie Harper, who was then 

operating the Cat excavator in issue. Tr. 31. On that day, Wolford inspected three pieces of 

equipment: an articulating truck, and two excavators. As noted, this matter involves the two 

orders issued on the Cat 329 excavator, No. 6024. 

The first 104(d) order, Order No. 8302707, Sec’y Ex. 1, lists nine alleged safety defects.3

Each of these defects will be discussed in turn. 

The loose handrail

The Order first listed that the handrail used to access the excavator’s engine had 

mounting bolts missing and moved when pulled on to mount the machine. The inspector stated 

that when he went to mount the machine, 

initially, with the first step and the first handrail, when I grabbed this thing and 

went to pull my weight up, where the mounting bolt was missing out of the upper 

part of the bracket, it just allowed the handrail to pull back with me, and I kind of 

went back down to the ground and had to refigure how I was going to mount the 

machine. 

Tr. 32-33. 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 3

 The nine alleged defects include the following: 1) the handrail used to access the 

excavator’s engine had mounting bolts missing and moved when pulled on to mount the 

machine; 2) the lower step, used to mount the engine deck, was damaged; 3) the deck lids that 

are walked on to access the engine compartment were damaged and had shifted out of place 

because it was being held by a bungee cord; 4) the fuel tank mounting bolts were loose causing 

the fuel tank to wobble when stepped on; 5) the safety latch for the engine cover was out of the 

bracket; 6) the bottom windshield wiper blade was missing on the lower glass; 7) the handrail on 

the left side used to access the cab was loose and the bottom mount was damaged; 8) engine oil 

leaks were found on the engine compartment, turbo, valve cover gaskets, and running down the 

sides of the engine block onto the exhaust manifolds; and 9) the hydraulic pump compartment 

was covered with hydraulic oil due to a large crack located on the side of the aluminum filter 

housing (Tr. 32 Sec. Ex. 1). 

38 FMSHRC Page 1223
Sec’y Ex. 3F is a photo of the subject handrail on the equipment. Tr. 52. It shows a black 

bar on the left third of the photo. The bar in issue turns out at an approximate 60 degree angle 

and it is away from a mounting point on the handrail. Tr. 52. One can visualize that if the bar 

was pulled up, it would be capable of being bolted into a threaded hole. See Sec’y Ex. 3F. The 

bar provides a hand hold for one ascending to the machine’s deck. Tr. 55. The inspector’s issue 

with this condition was: 

[W]hen you first get up to mount the machine, that’s the handrail that you would

use to pull all your weight up initially to get up to the track, and this mounting

bolt was loose, which would — when I grabbed the bar to mount it, it caused the

handrail to kind of come back toward me, and I had to step back to the ground,

and then mount the machine a second time.

Tr. 53. In short, the handrail moved when grabbed to ascend the excavator. Reduced to its 

essence, a single bolt to secure the handrail was missing. Tr. 59. The inspector stated that the 

type of injuries that could arise from the missing handrail bolt were: 

Fall-related injuries, you know, whether you would’ve been on the ground level 

coming up, or stepping up from the track up to these other two steps to get up on 

top of the deck, you know, this is the rail you hold onto until you get up on the top 

of the machine. 

Tr. 53. 

The Court, noting that the condition would make the handrail, which was also described 

as a “grab bar” or “grab iron,” a little shaky, remarked that there would still be two bolts above 

that point, securing the handrail. The inspector agreed. Tr. 56. The Court commented that it did 

not appreciate the alleged safety hazard, as the rail was still secured by the two other bolts. Tr. 

57. The inspector responded that, with the bolt missing, the iron would rotate, instead of being

firm. He expressed that, alluding to a different alleged defect on the equipment, a bent step, if

one were to “curl an ankle” on the damaged step and then grab the handrail, it would then rotate.

Tr. 57-58.

On cross-examination, the inspector agreed that the preferred method for safely mounting 

and dismounting a machine is to use three points of contact. Tr. 113. The inspector, also agreeing 

that he had seen the operator’s videos associated with the cited equipment, was then asked if the 

foreman safely mounted it.4

 Again, the inspector was reluctant to concede the point, initially 

responding only that the foreman “didn’t fall.” Tr. 113. Pressed, he then acknowledged that the 

foreman mounted the equipment safely. Tr. 114. He then admitted that handrails will move a 

little, even when fastened securely. Nor could the inspector speak to the condition of the 

handrails on that morning when the pre-op exam was made. Id. 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4

 In addition to the testimony from witnesses, the evidence of record includes the 

Secretary’s photographs and the operator’s videos of the cited excavator. 

38 FMSHRC Page 1224
The Court concluded that the inspector was reluctant to concede what was plain about the 

video involving the use of the handrails. When asked if there was support on both ends of the 

handrail leading to the engine compartment, he then conceded that, 

[t]here was a mounting location down near the track, and then the one that we

talked about in the photos where the rubber mount on the top part of where the

bottom portion was at, yes. So you had one on top, and one on the bottom.

Tr. 114. He also admitted that one could stand with both feet on the ground and reach the 

handrail to the engine compartment, and that one could do the same thing to mount the cab 

compartment. Asked when a person stands on the ground with two feet and reaches up and grabs 

that handrail, when he pulls on it, whether he would know then if it was secure enough to pull his 

weight up on, he responded, “Yeah. I would say so.” Tr. 114-115. Similarly, he agreed that once 

one had mounted the machine, using the handrail that runs back to the engine compartment, it 

was stable enough for a person to hold onto and keep his balance: “Yeah. You could hold onto it 

as you climbed up the other steps, yeah.” Id. The inspector also acknowledged that there was a 

hasp near the top of the handrail with two bolts. Further, he found no problems with the how the 

bottom part of the handrail was attached. Tr. 116. He confirmed that the handrail would not fall 

off. Thus, his essential issue was that the rail would “give around” (i.e. move) when one tried to 

pull up on it, but couldn’t speak to whether it would support one’s weight when pulling up on it. 

He also conceded that, after letting go upon his initial effort to mount the rail, he started back and 

was able to mount the equipment. Tr. 117. 

The foreman, Bernie Harper, who was operating the cited excavator, and was also the 

person who did the pre-op check, testified about both orders. Regarding the handrail, he stated 

that it supported his weight. Tr. 165. As to whether handrails are rigid, with no movement, he 

informed that some are rigid but that the cited handrail was 

on the off side is mounted – the way it’s mounted, it goes to a rubber grommet, 

and then it – and it’s got a bushing, and then it’s bolted to the bottom. The support 

of it [is] a rubber bushing. It’s meant to give a little bit because this type of – this 

particular machine, when you move it in and out in tight areas with brush and so 

forth, it’s designed to just give a little bit or it’d break it completely off. 

Id. 

He described the mounting procedure: With both feet on the ground, there is 

a step that’s on the undercarriage as your first step. You reach up, you mount it, 

you grab the handle with both hands, put your foot on the -- on the step that’s on 

the undercarriage, step up on the track, then the handrail proceeds on up the side 

38 FMSHRC Page 1225
of the machine, you hold onto that, and you go to step, and then it goes up, I 

think, onto the fuel tank, and then up onto the top. 

Tr. 166. The foreman stated that there was nothing that would affect his safety that morning 

when mounting to ascend to the engine compartment. Id. Further, upon learning that the 

inspector would be issuing a violation, he told him: 

Melvin, I said, This is not – these violations is not there. I can get on and off of 

this machine with no problem. The hazard is not there. 

Tr. 168. 

The Respondent, through the testimony of foreman Harper, described each of the nine 

videos, which were taken shortly after the alleged violations were issued. The first video, no. 

0627, reflects accessing the equipment using the cited handrail. Harper stated that he ascended 

the equipment using the three points of contact. He added that the handrail was fastened at the 

bottom with a sleeve, and with a rubber bushing and two bolts and a bracket. At the top of the 

handrail, he was not sure how it was fastened, but believed it had the same arrangement as the 

bottom, bolted at the top. Tr. 176. In the Court’s estimation, the video does show that the 

handrail functions and that the foreman was able to use it to step up on the vehicle. It is true that 

the handrail had some motion, but the Court cannot say that the amount of motion shown 

demonstrated that it constituted a hazard. Foreman Harper stated that when he mounted the 

machine, he did use the handrail to pull his body weight and used both hands in doing so. Tr. 

178. When the video shows him shaking the rail, he was using one hand for the purpose of

showing the amount of looseness in the rail. Tr. 178. Cross-examination noted that it was the top

portion of the handrail which was cited.

Based upon the totality of the evidence, the Court concludes that the handrail, while not 

in perfect condition, was in safe operating condition. 

The deformed lower step

The second item listed on the order asserted that “the lower step, used to mount the 

engine deck is damaged. The step has been pushed back greatly reducing the footing area.” Sec’y 

Ex. 1. The inspector described the condition as “probably” the third step one would take, and 

also described it as the lower step, used to mount the engine deck. He stated that it was damaged 

in that the metal for that step was bent up and pushed back. Sec’y Ex. 3C fairly shows the 

deformed step from a view looking down from above. While there is a reduced surface area, the 

photo does not support that the surface area reduction was 50%, although the inspector asserted 

that it reduced the area for that step from what would have been about six inches to about half 

that distance. The reduced area was unevenly reduced. The step is used to ascend to a deck to get 

on top of the engine to perform pre-op checks. Tr. 46. He expressed that the safety hazard 

associated with the condition was the risk of missing a step when mounting the machine, creating 

the chance of rolling an ankle or perhaps falling due to the unsure footing. As the step area was 

reduced by about 50%, he noted that there is less footing available. If step area was wet or iced, 

this would increase the risk. Tr. 46. The next step up was fine. Tr. 49. To abate the condition, the 

38 FMSHRC Page 1226
lower engine access step was pulled out and straightened up to restore the full surface area. Tr. 

87. 

Upon cross-examination, the inspector continued with inadequate responses regarding 

basic questions. When asked at what point he considered the step to be unsafe, he responded, 

“Can you rephrase your question, sir? Tr. 118. He was then asked, “[i]n reference to the step that 

was cited that was bent in in the front, at what point d[id] you consider the step to be unsafe?” 

He responded: 

Where I was at on this violation was you’ve got a step there that’s – and I’m just 

guessing – 12, 14 inches wide, and I think it was two, four, about six inches out, 

and it had been compressed back 50 percent or more. You get to where, going up, 

you don’t have a real good place to put your foot, and then coming back down, 

you’re trying to step with your heel, and you just have a real small area there to 

step on. 

Id. 

Asked if one “had a step that is bent in the front, and you can take both feet and stand on 

the step, is that safe,” the inspector responded, “Well, that would depend on, you know, how big 

of an area that you had to stand on, you know, if you’ve got two or three inches, or have you got 

six or eight inches, or what kind of area are we talking about?” Id. When asked if he knew the 

area of the step that was left, the inspector stated, “[j]ust looking at the photos, I was – I think I 

said that two, four, five-ish – four-ish inches, I think – I’d have to look again – was, you know, 

compressed back, leaving two, maybe three inches or so to put your foot on in that one area.” Tr. 

119. Contradicting his earlier assertion that the step was also bent up, when asked if the

compressed step was still flat, he stated: “[r]elatively flat, that I can remember, yes.” Id.

The same video, no. 627, demonstrating the handrail issue also shows the use of the 

deformed step. Foreman Harper’s video shows that he was able to place both of his feet on the 

step. As with the handrail, the step was not in pristine, showroom-like condition, but as the video 

shows, it was still serviceable, albeit with a diminished surface step area. It seems unreasonable 

to deem the step to be in an “unsafe condition” and the Court therefore declines to uphold the 

Secretary’s claim. 

 The deck lid 

The Order asserts that “the deck lids that are walked on to access the engine compartment 

are damaged. One is bent up several inches and one has the mounting brackets broke out and the 

lid is moved out of the intended location.” Sec’y Ex. 1. This condition is displayed in Sec’y Ex. 

3A and 3B. The inspector stated that photo 3A shows, in the left bottom quadrant, a bungee cord 

securing the deck lid. The inspector stated that the deck lid should’ve been spun around to be 

positioned properly and bolted down. Persons walk on this deck lid. However, the inspector 

conceded that the bungee cord was keeping the lid secure, but “not secure where it’s supposed to 

be.” Tr. 36. The inspector stated that the lid was on top of another damaged lid “and it had 

probably a couple inch raised lip” that made it unstable or one could catch a toe, and it was 

38 FMSHRC Page 1227
unstable and the arrangement created a hole that one could accidentally step in. Tr. 36. Sec’y Ex. 

3B, also shows the deck lid and the raised lip that concerned the inspector. The lid would wobble 

when one stepped on it. 

As he summarized his concerns about the lid, the inspector stated: 

So you could either step in the hole over here to the left where the deck lid should 

be, or trip on the lid itself, or step on the lid that’s unstable because it’s not over 

there in position and mounted down. 

Tr. 39. 

A better depiction of the inspector’s concern about the lid appears in Sec’y Ex. 3D. It 

more clearly shows the lid in its out of position state, held by the bungee cord (the bungee cord 

was circled on the photo with the words “bungee cord” added on the photo), the hole that 

concerned the inspector, as well as the tripping hazard where the lid is shown to be resting atop 

two other plates. One standing on the plates would be about seven to eight feet above the ground. 

Tr. 41. The inspector stated that the bungee cord was not a good secure way to hold the lid in 

place. He expressed that the condition created “fall-related type” injuries, such as strains, sprains, 

and “maybe” broken bones. Tr. 42. The area beneath the hole has hydraulic components and 

these would be too hot to touch when the machine is running and under a load. Tr. 43. The 

inspector agreed, however, that the machine operator would not be on the deck lid when the 

excavator was running. Instead, that area would be examined before the machine was operated in 

order to check oil levels and perhaps clean the windows. Tr. 44. 

Upon cross-examination regarding the deck lids, the inspector was asked whether the 

deck lids were safe to travel over when they were in place. The inspector replied that “[w]ith 

everything in place and everything bolted down, they would've been safe to travel.” Tr. 120. The 

inspector also acknowledged that he traveled over the deck lids and that he did not need to put 

them back in place in order to travel over them. Instead, he simply stepped around the one lid 

over to the other lid and didn’t need to step on the one that was out of position. Asked further 

whether he agreed that he traveled over the deck lid safely, the inspector responded: “I didn't fall. 

Yes, sir.” Tr. 121. 

It is clear that at the time of the inspection the deck lid was out of place and that the 

means to hold it was a bungee cord. In discussing the hazard presented by the condition, the 

inspector that with the deck lids “missing” one could step on it and turn, and possibly fall seven, 

eight feet down to the ground. Tr. 103. To abate the condition, the deck lid or plate was 

straightened and bolted down, no longer relying on the bungee cord to secure it. Tr. 87-88. 

From his perspective, foreman Harper did not consider the condition to be a safety hazard 

because he still had safe access across it. Tr. 181. He also stated that the plate was not askew, but 

rather was in the correct position the morning that he got on the machine to perform his preoperation inspection. Tr. 181. However, he agreed that the plate was out of position at the time 

the inspector viewed it. He maintained that there was the strap, the bungee cord, holding the 

plate in place. Later the mechanic “put it back in there.” Tr. 182. Harper did not know why the 

38 FMSHRC Page 1228
plate was out of place, but guessed that he left the strap loose and when tramming the machine 

later, it turned. Tr. 182. Harper’s contention was that the video reflects the position of the plate at 

the time he did his pre-shift that morning. Tr. 183. There is a small corner with the metal bent up. 

As to the other plate, in this video, Harper testified and stated in the video that it was in place at 

the time he did his pre-op that morning. Video no. 628 shows the fuel tank and the handrail. This 

video pertained to item no. 3, the deck lids. Tr. 180. 

The government’s attorney then asked some additional questions about the deck lid, 

referring to Exhibits 3B and 3D. Harper agreed that the lid was lying loose. Tr. 194. The area had 

a six to eight inch opening. Tr. 195. He also agreed that his video shows the deck lid as it looked 

when he mounted the machine earlier that morning and did his pre-shift. Tr. 196. Harper 

acknowledged that when the mechanic addressed the issue, it was apparently corrected without 

use of a bungee cord. Tr. 197. 

The Court accepts the testimony of foreman Harper that the plate was in place at the time 

he performed his pre-operational check that morning and it so finds that as the fact. Given that 

finding, while the bungee cord arrangement was hardly ideal, it is difficult to conclude that the 

method employed to hold the plate in place rendered the equipment in an unsafe operating 

condition, especially when one takes into account that no person would be on the plate while the 

equipment was being operated. Despite these observations, with the plate out of position, albeit 

post the pre-op inspection, the condition must be deemed to have constituted a violation when 

inspected. Finally, regarding the small portion of the decking material which was bent up,5

 and 

therefore not in perfect condition, the Court, having viewed the photographs and videos, along 

with the testimony, considered that defect as having only a de minimus effect on safety. 

Accordingly, the violation was established.6

Loose fuel tank mounting bolts, causing the tank to wobble

The inspector stated that the “tank was actually fairly unstable, wobbly.” Tr. 119. He 

added that the Respondent’s video shows this condition. Id. However, he conceded that he did 

not examine the mounting bolts, as they were located under the tank. He also admitted that the 

tank was not at risk to fall through to the ground and that one traveling over the fuel tank would 

not fall. Tr. 120. The bolts were tightened to correct the condition. Tr. 87. Video no. 628 speaks 

to the fuel tank and the handrail issues. In that video foreman Harper, standing on top of the tank, 

clearly shows that the wobbling was minimal. Accordingly, the Court does not agree with the 

inspector’s characterization that the tank was “fairly unstable.” This minimal wobbling simply 

cannot be considered as evidencing an unsafe operating condition. 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 5

 The inspector described the extent of it as: “it had a probably a couple inch raised lip.” 

Tr. 36. 

6

 Though as discussed later, it is important to distinguish that although the Court has 

found that the lid was not maintained in safe operating condition, in violation of 30 C.F.R. § 

77.404(a), it has found that the condition was not present at the time of the foreman’s pre-op 

exam. Accordingly, the parallel charge that the pre-op for deck lid was deficient, is not sustained. 

The lid was in place that morning when foreman Harper did his pre-op inspection. 

38 FMSHRC Page 1229
Safety latch to secure engine hood out of bracket 

Inspector Wolford described this item as follows: 

[T]he safety latch that, when you raise the hood to check oil, it locks it in place,

and keeps that hood – just say you’re reaching down there grabbing the dipstick,

maybe a gust of wind come through and catch the hood, and it could blow, you

know, fairly – probably five foot by three or four foot wide hood back down on

you while you were laying down in there pulling your dipstick to check your

engine oil.

Tr. 32. 

Elaborating, the inspector referred to Sec’y Ex. 3A, which depicts the hood safety latch. 

The engine hood is open in the photo. Wolford stated that the latch should have been in an 

upright position and locked to keep the hood from blowing back down, if there were a gust of 

wind, if one were checking engine oil. The latch apparently is to catch and go into a bracket hole 

on the hood, thereby preventing the hood from coming back down inadvertently. The Court 

sought clarification about the issue with the safety latch, noting that the latch was present. The 

inspector stated that his issue was that the latch was not attached to the hood bracket. Thus, it did 

not latch automatically. As it was, one would need to grab the latch and put it up in place. Tr. 37. 

When the Court inquired if it was possible for one to manually attach the safety latch to the 

hood, the inspector stated that he did not know the answer. Tr. 37. Later testimony established 

that the latch could be manually attached, thus securing the hood from accidentally coming back 

down. 

Although the inspector did not know if the latch could be disconnected, the Court 

inquired if the inspector’s concern was that the latch would not be secured automatically upon 

opening the hood. He confirmed that the automatic feature was his concern and therefore he was 

not contending that the latch would not secure the hood, if done manually. Tr. 123. He did not 

know if the mount itself was broken, as his focus was upon the latch not setting automatically. 

The inspector believed that another miner using the machine might open the hood, unaware that 

it did not latch automatically. He did not know the method for disconnecting the latch from its 

automatic set position. He conceded that if one knows about the latch, and one was to set it 

manually, there would not be a hazard. Tr. 124. He did not dispute that one could’ve manually 

set the latch, and thereby secure the hood and that, under those circumstance, there would not be 

hazard. Tr. 125. The inspector also agreed that many cars employ a manual method to secure a 

hood so that it will not come down. Tr. 124. However, it is true that this excavator had an 

automatic hood latch feature. Id. Thus, while “[t]he safety latch on the engine cover was out of 

its bracket and could not support the engine cover while leaning in to check the engine oil,” the 

hood could be secured manually. Although the Respondent presented a video of the hood latch 

issue, it only shows the latch in its secured position. Inspector Harper admitted that the latch was 

not in place when the excavator was inspected by inspector Wolford. Tr. 185; Resp. Ex. 3. 

38 FMSHRC Page 1230
The Court cannot conclude that the hood latch issue constituted an unsafe condition. The 

entire assembly, both the support arm and the bracket, were present. There is no contest about 

that. The only question is whether if, as here, one can manually and fully set the support arm, but 

that it did not set automatically, such a situation constitutes an unsafe condition. The Court finds 

that there is no requirement that a hood latch must be automatically set. While a design feature, 

the inspector conceded that some equipment sets the hood latch automatically, while others are 

set manually. If there were no way to manually secure the hood latch, and thus no protection 

against the hood falling inadvertently, that would be a different matter. 

Bottom wiper blade missing on lower glass 

The order for this condition states that the “bottom wiper blade is missing on the 

[excavator’s] lower glass.” Sec’y Ex. 1. There is no real challenge to this matter, but there are 

some mitigating considerations. The inspector identified Sec’y Ex. 3E, another photograph, and 

it shows, in the center of the photo, where a wiper arm should’ve been present, but was not. That 

wiper, also described as the “foot glass” wiper, had it been present, serves to wipe the lower 

portion of the glass on the front of the machine. Tr. 49-50. A separate wiper on the machine 

covers a larger area of glass on the machine’s front but there was no issue with that larger wiper, 

which wipes the main front glass for the machine operator’s eye level viewing. Simply 

explained, the machine’s front windshields have a lower and upper wiper, each covering a 

different area of glass. It was the lower glass that was missing a wiper blade. Tr. 50. 

The Court inquired why viewing through the lower glass is important. The inspector 

stated that this becomes important when digging back or down low, that is to say, when digging 

close to the machine itself. Tr. 52. The inspector considered both wipers to be important. The 

Court agrees. The inspector described the safety issue with the missing lower blade: “This wiper 

blade, again, you’re running during foggy conditions, rain, snow, whatever.” With “stuff 

accumulating on your glass, you can hit your wiper blade and turn it on, and you continue to 

see.” Tr. 127. 

However, he conceded that “individually, with that one little glass, you know, that’s a – 

that’s a totally separate scenario, but individually, that’s not what I would call a real serious 

condition.” Tr. 128. Further, at least on that morning, the inspector stated that the operator could

see through the foot glass. Id. 

It is apparent that the inspector viewed the various problems he perceived collectively. 

That means that to the extent that some number of the nine conditions have been determined by 

the Court either not to be an unsafe operating condition or de minimus conditions, the significant 

and substantial and unwarrantability determinations are undercut. In support of the conclusion 

that the inspector’s conclusions in this regard was a cumulative finding, resting on all nine 

conditions, he conceded that, with regard to the foot glass, on the same day as this inspection, he 

issued a wiper violation on another piece of equipment at this mine, also an excavator, Citation 

No. 83202706 for an inoperative wiper blade but found that it was unlikely to cause an injury. 

Tr. 128. Seeing a justifiable difference for his contrary conclusions, the inspector fell back on his 

38 FMSHRC Page 1231
approach that all nine conditions were taken together in reaching his conclusions about 

negligence and gravity, stating: 

[w]ith the violation in question, you know, you’ve got, I can’t take a violation

that’s got nine items and pick out the – say, the least likely item hazard in this

violation, and evaluate my whole complete citation based on one little fact, versus

if I only issued a violation, say, for – if that was the only thing wrong with it, it

would be, say, an unlikely non-S&S violation versus I’ve got nine items, I can’t

just, like I say, pick out one and base my whole citation on it.

Tr. 129. 

Thus, the inspector conceded that, taken alone, the wiper blade issue was unlikely in 

terms of the gravity. Id. Foreman Harper conceded that the foot glass wiper was not present. 

Obviously, this missing lower wiper blade was a violation. However, taken by itself, as 

the inspector acknowledged, it was not S&S nor unwarrantable. 

Loose handrail, left side of the cab access 

This involved a cab access handrail which had a loose top bolt and the inspector believed 

that, to abate the condition, the Respondent welded the lower portion of it back around to where 

it was supposed to be. The Order states “the handrail on the left side of the cab access is loose.” 

Sec’y Ex. 1. The cited condition is depicted in Sec’y Ex. 3H. This is the handrail used to mount 

the cab portion of the machine to facilitate the operator’s access to the cab seat. The issue 

involved the lower mount, which the inspector described as “pretty much tore [] all loose except 

for [a] little piece [] that’s attached to the rail still yet.” Tr. 64. 

The inspector stated that the condition could cause fall-type injuries. He noted that he 

weighs some 230 pounds and stated that, in climbing to the three foot level of the cab, it was 

“real shaky and loose to mount the cab of the machine. The Secretary’s brief repeats the 

inspector’s claim, stating that “[t]he handrail on the left side used to access the cab was loose and 

the bottom mount was damaged.” Sec’y Br. at 4. 

The Court agrees it does appear that a portion of the rail is not completely secured to the 

machine. However, the Court notes that the Respondent’s video refutes the inspector’s 

conclusion that the rail presently constituted an unsafe condition. The testimony from the 

Secretary regarding this condition was quite brief and when considered along with the 

Respondent’s videos of the condition, the condition was not established as being unsafe. 

Importantly, when assessing the legitimacy of the order, the same testimony reinforces 

what the Court has already noted – the inspector’s findings in support of his order were arrived at 

cumulatively. Though the following pertains to the same issue, but as it relates to the order for an 

inadequate pre-op, the inspector revealed his thought process again in this exchange: Asked if he 

“[w]ould [] issue an inadequate examination for a pre-op examiner who missed a loose bolt,” he 

responded, “I wouldn’t think so.” Tr. 142. Pursuing that line of questioning, the inspector was 

38 FMSHRC Page 1232
then asked, “How many loose bolts would you have to have before you;d issue an inadequate 

pre-op exam?” He replied, he didn’t know how to answer such a broad question, but he then 

added that he “questioned [Foreman Harper] if he done a pre-op for the morning because of all 

the conditions that was on the machine.” Tr. 145. The foreman replied that he had done a pre-op 

and that no conditions were listed because he believed that “[i]t didn’t look that bad to [him].” 

Id. 

In the Court’s estimation, Respondent’s videos, numbers 633 and 635, demonstrate that 

the handrail, again while not in pristine condition, were still in safe operating condition. Foreman 

Harper established this to be the case in the videos, which show him safely ascending the cab, 

while using the handrail. Foreman Harper is not a slight man. The handrail was able to 

accommodate his ascending to the cab. This condition did not reflect an unsafe operating 

condition. However, while the evidence did not establish a present violation, the Court 

acknowledges that, at some point in the future, the lower rail could become further detached and 

at that point it would become an unsafe condition. 

Engine compartment oil leaks on the turbo and valve cover gaskets 

As listed in the Order, this item stated that “there are engine oil leaks in the engine 

compartment on the turbo and valve cover gaskets. Oil is running down the sides of the block 

and onto the exhaust manifolds.” 

 Sec’y Ex. 3I was introduced for the purpose of showing oil leaking next to the turbo and 

running down the bottom portion of it. Both the turbo and the oil leak were circled in the photo. 

The Court did not view the photo as particularly helpful to establishing the cited condition. The 

inspector considered it 

. . . a fire-related hazard with the engine oil leaking around this turbo, and the – 

which, you know, leaks things get, you know, pretty hot temperatures if they’re 

worked under a load for an extended period of time, [adding that] . . . in some 

literature that I’ve looked at and read, you know, operating temperatures, 1,000, 

1,200 degrees, and I’ve seen noted where some turbos can get up to 1,800 

degrees. 

Tr. 65. 

 The inspector could only speculate as to the source of the oil leak. Tr. 66. Sec’y Ex. 3L 

depicts the top portion of the engine’s valve cover area, and, according to the inspector, also 

shows a “coating of oil,” though he admitted it was “really not a good view.” Tr. 71. Still, he 

maintained that oils were “running all the way down the side of the head, down to these exhaust 

manifolds, and it's starting to accumulate on the flanges of this exhaust manifold.” Tr. 71. The 

photo was taken atop the equipment where the previously discussed deck lids were located. The 

Court noted however, that per the photo, the area looked “pretty clean.” Tr. 73. It is also noted 

that the oil coating was not to a degree that one was unable to read the truck brand name “CAT” 

on that valve cover. Tr. 82-83. The inspector clarified that the area of concern had engine oil on 

38 FMSHRC Page 1233
it, and he circled the area on Sec’y Ex. 3L. Tr. 75-76. The essence of his issue was “a film of oil 

on [the] whole valve cover.” Tr. 76. His concern was: 

[j]ust left uncorrected with the leaks continuing to leak and continuing to run

down, and it would continue to build and accumulate, and go on down to even

below the engine and accumulate, you get into your fire-related hazards, you

know, in the engine compartment.

Tr. 78. 

 Sec’y Ex. 3M is another photo of the same area. The inspector believed that the photo 

more completely depicted the oil on the valve cover and showed that it was leaking down 

towards the manifold too. Tr. 78. The areas of his concern were similarly circled on Sec’y Ex. 

3M. Because this condition and the next cited condition both deal with oil-type accumulations, 

the Court will discuss them together infra. 

Hydraulic pump covered with oil due to broken filter housing 

Sec’y Ex. 3J, another photograph, depicts, according to the inspector 

. . . the area of where that – that hydraulic fuel was kind of on over to the right . . . – you 

open up a lid into this what I’m going to call little hydraulic area, here, and this just 

shows, you know, where some of these components like this hose, and this big hose down 

here, this – where this has got the oil that’s been spraying and leaking down from the 

crack in that filter housing. 

Tr. 67. 

The inspector stated that the area was “wet” from the hydraulic oil from the leaky filter 

housing. Tr. 67. The hazard identified by the inspector was 

[t]he machine function, you know, with the loss of oil related type hazards, and

also, you know, with this oil continuing to run out and spray out, and as it

accumulates more, you get into your fire hazard-type conditions.

Tr. 67. 

Sec’y Ex. 3K, the inspector stated, shows a close-up view of the oil inside the 

compartment, though he conceded it was “kind of hard to tell from being back out of that panel 

that that stuff is, you know, getting sprayed with that oil.” Tr. 69. He stated that it shows “where 

the hoses and components are wet inside of there.” Tr. 69. The inspector circled the area, 

essentially the whole photo, which he identified as being wet. Although the inspector contended 

that everything in the photo had hydraulic oil on it, at least in terms of the photos, the Court did 

not find the inspector’s assertions to be supportive. Tr. 70. He was unable to state how long the 

hydraulic oil had been leaking, though he expressed his opinion that, at least while the equipment 

was running, the condition had existed probably for more than a shift. Tr. 70-71. 

38 FMSHRC Page 1234
Further discussion of the oil leaks, alleged defects 8 and 9, as listed in Order No. 8302707 

The Court did inquire of the inspector, regarding the oil leaks and oil accumulations, 

whether those subjects had been part of his training at the Mine Safety Academy as safety issues 

and whether he was trained to be wary of such issues. The inspector affirmed that those subjects 

were part of his training and that such leaks and accumulations are deemed to be violations. Tr. 

149. Further, addressing a subject raised during cross-examination, the inspector stated that he

was never instructed that combustion points must first be determined before issuing such

violations. Reinforcing that point, the inspector affirmed that accumulations of hydraulic oil, or

engine oil, are a concern in and of itself, without any concern about determining the temperature

at which a given fluid might combust. Tr. 150.

Though the photographs did not particularly aid the Secretary’s case, at least in terms of 

presenting an obvious or extensive oil leak problem, the Court accepts that there were some 

accumulations of oil from engine and hydraulic sources. The Court also accepts that in 

establishing the presence of oil accumulations, it is not part of the Secretary’s case to show that 

such accumulations present a hazard and therefore the Secretary is not obligated to produce 

testimony about the point at which such oils become combustible, or auto-ignite. 

Accordingly, the Court rejects the contention that hydraulic oil or engine oil are not 

combustible materials. However, that determination does not end the inquiry in terms of whether 

the orders were justified. For example, the inspector agreed that most such accumulations are 

issued as non-S&S violations: “Yeah. Most of them are unlikely, if it’s dealing with oils. Yes, 

sir.” Tr. 129. Nor did he detect any evidence of misting of such oils. Id. 

The inspector maintained that the accumulation of the engine oil is a hazard in itself. 

However, he distinguished that hazard, expressing that such accumulations did not create an 

unsafe operating condition. Tr. 133. Instead, the inspector expressed that hydraulic leaks pose a 

machine function hazard, in that, with oil loss, one starts losing machine function and if such oil 

sprays onto a hot engine component, it could vaporize and become a flame. Tr. 67-68, 135. 

However, it was fire, not machine function issues, cited by the inspector. The inspector affirmed 

his belief that the turbo and the exhaust manifolds temperatures are definitely high enough to 

ignite an oil mixture getting sprayed onto them, asserting that he has seen that happen “several 

times.” Tr. 136. Thus, the Respondent’s points about automatic machine shut-down when oil 

levels drop, are beside the point. Of greater significance, is the appropriate characterization of 

the gravity presented by these oils, especially given the generally unsupportive photographs, 

which again, do not evidence extensive accumulation conditions. 

The inspector admitted that on the same day at the Beech Creek Surface Mine, he issued 

other citations for oil accumulations on equipment involving a truck and another excavator. For 

38 FMSHRC Page 1235
both, he listed the gravity as unlikely. Tr. 139. Yet the inspector did not find this to be 

inconsistent, stating: 

Again, with the accumulations being part of the not maintained, safe to operate 

violation, you know, I can’t just, say, single out the one item and say, well, it’s 

going to be unlikely because of this one, and look over the other things that were 

more reasonably likely to happen, so that’s where you get your difference at 

between the three. 

Tr. 139. 

Thus, this is a further example to show that the inspector’s evaluation of the gravity and 

negligence was a determination made collectively upon all nine cited conditions. 

Conclusions about Order No. 8302707 

As per the discussion above, the Court has found that at least some of nine items (four of 

nine) listed in Order No. 8302707 constituted unsafe operating conditions. Therefore, the 30 

C.F.R. §77.404 violation is affirmed. More significant to this case is whether a section 104(d)(1)

order was justified, a finding which requires establishing that the violation was the result of an

unwarrantable failure. The Court finds that there was no unwarrantable failure.

 The Commission has spoken definitively on the subject of unwarrantable failure. In ICG 

Hazard, LLC, 36 FMSHRC 2635 (Oct. 2014), it modified a judge’s finding of unwarrantable 

failure to a section 104(a) citation, holding that such a finding must be based on an examination 

of specific criteria. Noting that it has “defined ‘unwarrantable failure’ as ‘aggravated conduct 

constituting more than ordinary negligence,’” Manalapan Mining Co., 35 FMSHRC 289, 293 

(Feb. 2013) (citing Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987)),” it reviewed that 

the criteria for determining whether conduct is “aggravated,” includes 

(1) the extent of the violative condition, (2) the length of time that the violative

condition existed, (3) whether the violation posed a high degree of danger, (4)

whether the violation was obvious, (5) the operator’s knowledge of the existence

of the violation, (6) the operator’s efforts in abating the violative condition, and

(7) whether the operator had been placed on notice that greater efforts were

necessary for compliance. See IO Coal Co., 31 FMSHRC 1346, 1351-57 (Dec.

2009); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on

other grounds, 195 F.3d 42 (D.C. Cir. 1999).

Id. at * 2637. Though the Commission acknowledged that “not all factors may be relevant to 

every case, all relevant factors must be examined.” Id. 

38 FMSHRC Page 1236
Similarly, in Mach Mining, LLC, 34 FMSHRC 1769 (Aug. 2012), the Commission earlier 

noted that 

. . . the ‘unwarrantable failure’ terminology is taken from section 104(d) of the 

Act, 30 U.S.C. § 814(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, and we characterized it in 

such terms as “reckless disregard,” “intentional misconduct,” “indifference,” or

the “serious lack of reasonable care.” Id. at 2003-04. The Commission has further 

recognized that whether conduct is “aggravated” in the context of unwarrantable 

failure is determined by considering the facts and circumstances of each case to 

determine if any aggravating or mitigating circumstances exist. Factors relevant to 

that consideration include the length of time that the violation has existed, the 

extent of the violative condition, whether the operator has been placed on notice 

that greater efforts were necessary for compliance, the operator’s efforts in 

abating the violative condition, whether the violation was obvious or posed a high 

degree of danger, and the operator’s knowledge of the existence of the violation. 

See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) (“Consol”); 

Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other 

grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 

34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); 

Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992). **6 The Commission 

has repeatedly made clear that it is necessary for a judge to consider all relevant 

factors in determining whether an unwarrantable failure to comply with a standard 

has occurred. Coal River Mining, LLC, 32 FMSHRC 82, 89 (Feb. 2010); Windsor 

Coal Co., 21 FMSHRC 997, 1001 (Sept. 1999); San Juan Coal Co., 29 FMSHRC 

125, 129-31 (Mar. 2007) (remanding unwarrantable determination for further 

analysis and findings when judge failed to analyze all factors). While an 

administrative law judge may determine, in his or her discretion, that some factors 

are not relevant, or may determine that some factors are much less important than 

other factors under the circumstances, all of the factors must be taken into 

consideration and at least noted by the judge. IO Coal Co., 31 FMSHRC 1346, 

1351 (Dec. 2009). 

Id. at 1775. 

The Commission found the judge’s assessment of unwarrantability to be insufficient. It 

noted that while the judge considered three of the factors—obviousness, the operator’s 

knowledge of the existence of the violation, and the length of time the violation existed—in 

considering the operator’s knowledge of the violation, and by adopting the Secretary’s argument 

that the violative act itself outweighed the short period of time between action and discovery, the 

judge failed to adequately consider and address mitigating evidence relevant to that factor. Id. at 

1775-76. 

38 FMSHRC Page 1237
Determination of unwarrantability issue for Order No. 8302707 

Applying the Commission’s test for determining unwarrantability, a recap of the nine 

alleged defects is useful. They were: the loose handrail, the deformed lower step, the deck lid, 

the loose fuel tank mounting bolts, the safety latch to secure engine hood, the missing bottom 

wiper blade, the loose handrail on the left side of the cab access, the engine compartment oil 

leaks on the turbo and valve cover gaskets, and the hydraulic pump covered with oil due to a 

broken filter housing. 

As referenced several times in the discussion above, the issuing inspector’s determination 

that this matter was an unwarrantable failure was predicated on all of the violations together. In 

the Court’s estimation, by virtue of the fact that it has found that several of the nine conditions 

were not established as violations, the unwarrantability determination collapses. Despite that 

finding, the Court will proceed to examine each of the conditions to determine if any were 

individually unwarrantable failures. 

Again, those considerations are: (1) the extent of the violative condition, (2) the length of 

time that the violative condition existed, (3) whether the violation posed a high degree of danger, 

(4) whether the violation was obvious, (5) the operator’s knowledge of the existence of the

violation, (6) the operator’s efforts in abating the violative condition, and (7) whether the

operator had been placed on notice that greater efforts were necessary for compliance. In

addition, while there is some overlap, whether reckless disregard, intentional misconduct,

indifference, or the serious lack of reasonable care, were involved are to be discussed in the

analysis.

To avoid utterly wearing out the reader, the discussion of unwarrantability for each of the 

cited conditions will be brief. 

The loose handrail

As noted, the Court found that this did not constitute an unsafe condition. However, even 

if the Commission were to disagree, it was not unwarrantable, because the extent was limited, 

had not existed for more than a shift, definitely did not pose a high degree of danger, (as the 

video demonstrates) was not obvious in the sense that the foreman used the handrail to ascend 

without a problem, was not known to the foreman prior to the day the condition was cited, as the 

foreman was filling in for the usual equipment operator, was abated to more securely attach the 

handrail, though it was previously secure enough to perform its function, and there was no notice 

to the operator that greater efforts were necessary for compliance. Thus, terms such as reckless 

disregard, intentional misconduct, indifference, or the serious lack of reasonable care, were 

totally inapplicable. Further, as a significant mitigating factor, the foreman performed the precheck in pre-dawn hours. 

The deformed lower step 

The Court determined that this also did not constitute an unsafe condition. As discussed 

earlier, the Respondent’s video shows this to be the case. Even if the Commission were to 

38 FMSHRC Page 1238
disagree with the Court’s finding, in the Court’s estimation it was not unwarrantable. After all, 

the step, while compressed, fully accommodated the foreman’s use of it, so the extent of the 

step’s insufficiency must be considered minimal. It still functioned, fully, as a step, albeit with a 

reduced surface step area. There was no evidence of record that the deformed step had so existed 

for a prolonged period of time. It did not pose any high degree of danger by any stretch. If 

accepted to be a violative condition, it was obvious, but again still fully functional. The foreman 

did, after all, use the step without incident in the pre-dawn hour that day. There was no evidence 

that the foreman knew of the condition prior to spelling the usual equipment operator that 

morning. The step was returned to its uncompressed state promptly. No evidence of greater 

efforts for compliance was presented. It cannot be fairly claimed that reckless disregard, 

intentional misconduct, indifference, or the serious lack of reasonable care, were involved. The 

same mitigation factor, as described next above and which applies to each of the cited 

conditions, was present. On these grounds the Court finds that there was no unwarrantable failure 

associated with the step deformity. 

The deck lid 

As noted above, the Court accepted as credible the foreman’s testimony that the deck lid 

was in place at the time he conducted his pre-shift exam. This conclusion is bolstered by the fact 

that a bungee cord had been employed to secure the lid. While true that the bungee was a suboptimal method to hold the deck lid, it is not unreasonable to conclude that use of the excavator 

prior to the inspection could’ve dislodged the lid. Along the continuum of unsafe conditions 

however, it was deemed to be have only a de minimus effect on safety. The equipment operator 

would not be on the deck while operating the machine, the plate was present, not absent, and it 

could be secured, insufficiently, by the bungee cord. The foregoing describes the extent of the 

condition. The length of time the lid was out of place was not established to be longer than the 

period of time following the foreman’s pre-op inspection until the inspector performed his 

review of the machine. Given that the plate was in place at the time of the pre-op and that no one 

would be on top of the deck during machine operation, it did constitute a high degree of danger. 

It was not obvious either, if one accepts, as the Court did, that the foreman was credible in his 

assertion that the lid was in place when he performed his pre-op. The foreman’s knowledge is the 

same as for the previous conditions – he did not operate the machine as part of his duties – he 

was filling in for the customary machine operator that morning. The condition was promptly 

corrected and the inadequate bungee cord arrangement abandoned in favor of a more secure 

method to keep the lid in place. No notice of greater efforts for compliance to maintain safe 

operating conditions for equipment is part of this record. The fact that a bungee cord was 

employed is viewed as a mitigating factor, when compared with a hypothetical arrangement 

where no method of securing was present at all. There was no unwarrantable failure associated 

with the deck lid. 

The loose fuel tank mounting bolts, causing the tank to wobble 

This cited condition was found by the Court as in safe operating condition. As the video 

demonstrates it was clearly safe. Taken as a whole, the Court viewed some of the conditions 

cited, this being one, as larding up the alleged unsafe conditions on the equipment, the next cited 

condition is another such example. 

38 FMSHRC Page 1239
The safety latch to secure engine hood out of its bracket 

The problem with this cited condition was that the latch and bracket were present and 

functional. The shortcoming was that it did not automatically engage. That being said, it is hard 

for the Court to conclude that the manual activation method, a method which completely served 

the function of keeping the engine hood secured in an upright position, was a violation. The 

corrective action was to reinsert one end of the latch into the bracket, an effort which can barely 

be described as “abatement.” However, if the Commission were to disagree and find that the 

inoperative automatic engagement feature of the safety latch constitutes an unsafe operating 

condition, the Court still finds that it was not an unwarrantable failure. The extent of the 

condition was the automatic engagement of the latch, as the latch could be secured manually. 

Given that, it did not present a high degree of danger. There was no evidence as to the length of 

time the automatic feature was not engaged. If the automatic feature itself constitutes an unsafe 

condition, then it was obvious to anyone who tried to secure the hood upon raising it. If, as the 

evidence suggests, raising the hood of the equipment is essentially no different than raising the 

hood of the typical car, one realizes immediately that the hood will not stay up until the support 

arm is locked into the bracket. Given the real world application that the task of raising an engine 

hood requires a support to keep it up, it is additionally hard to conclude that a high degree of 

danger was present. There was no evidence about the length of time the latch had been out of the 

bracket and, as is obvious, abating the problem took seconds to reinsert the latch into the bracket. 

No notice of greater needed abatement efforts was presented for this, or for that matter, for any 

of the nine conditions listed. Words like reckless disregard, intentional misconduct, indifference, 

or the serious lack of reasonable care cannot be employed with respect to this condition. 

Mitigation, if it need be mentioned at all, again is that the foreman was using this equipment on 

the day the order was issued to spell the usual driver. Using the equipment was not part of his 

customary duties. 

The bottom wiper blade missing on lower glass 

This was an unsafe operating condition violation, as the Court so found. However, the 

inspector admitted that taken by itself, as the inspector acknowledged, it was neither S&S nor 

unwarrantable. Thus, standing alone, the Secretary relinquished the claim that this was an 

unwarrantable violation. The Court finds that the evidence is in line with the inspector’s 

admission. The testimony of record was that the foreman only needed to use the forward, eyelevel view that morning for the equipment and that the bottom glass was sufficiently clear in its 

own right on that day. Under those circumstances, no “high degree of danger” was present. There 

was no evidence about the length of time of the violative condition. However, it was an obvious 

deficiency. The foreman’s knowledge about the condition, at most, began in the pre-dawn hour 

when he did his pre-op and apparently overlooked seeing the missing lower wiper blade. No 

notice that greater efforts were necessary for compliance was part of this record. 

Again, the terms reckless disregard, intentional misconduct, indifference, or the serious lack of 

reasonable care are foreign to the facts here. The mitigation, as discussed above, remains. 

Accordingly, the Court finds that there was no unwarrantable failure associated with this 

condition. 

38 FMSHRC Page 1240
The loose handrail, on the left side of the cab access 

The Court found that, at the time the loose cab access handrail was cited, it remained 

functional and not in an unsafe operating condition. The Respondent’s video establishes this, 

supporting the foreman’s view about its safety. However, should the Commission take a different 

view of the findings about the functionality and then-present safety of the handrail, the Court 

would still find that the condition did not constitute an unwarrantable failure on the mine’s part. 

The extent of the condition has been described above, and even the inspector conceded that the 

lower mount still was attached, though he described it as “that little piece . . . that’s still attached 

to the rail yet.” Tr. 64. There was no evidence about the length of time the loose lower mount 

had been in that condition. Given the foreman’s demonstration using the handrail, the condition 

did not pose a high degree of danger. The looseness of the rail was obvious; that it created a 

present hazard was not. Evidence of operator knowledge was limited to the morning that the 

foreman used the rail to ascend to the cab access, a task he performed successfully at least twice 

that morning—when he did his pre-op check and later when he demonstrated its safe function in 

the video. The condition was abated promptly. No notice was given to the operator that greater 

efforts at compliance were necessary. The terms reckless disregard, intentional misconduct, 

indifference, or the serious lack of reasonable care, do not fit with the facts. The mitigating 

circumstances, as described above, apply equally to this alleged unsafe condition. 

The engine compartment oil leaks on the turbo and valve cover gaskets and the hydraulic 

pump covered with oil due to broken filter housing 

As these two conditions involved similar concerns—accumulations of combustible 

materials—and because the Court discussed them together in the findings of fact section, 

concluding that both constituted unsafe conditions, the unwarrantability issue is similarly 

discussed jointly here. The essential problem with the inspector’s testimony and the 

photographic evidence in support of that testimony is that the former did not particularly support 

the later. The Respondent’s testimony and its own video were more consistent with the 

Secretary’s photographic evidence. 

The extent, but only in terms of the extent of time of the two violative conditions, has 

been described above. In contrast the degree of the violative condition was far less than the 

inspector contended. The inspector’s testimony that the “extent” was present for more than a 

shift is accepted. Given the degree found by the Court based on the record evidence, it cannot be 

concluded that the accumulations posed a high degree of danger. Based on the photos and video, 

the Court cannot conclude that the conditions, in terms of a reasonable conclusion that the 

accumulations presented a high degree of danger, were present. The most serious shortcoming 

was the cracked filter housing which had to be repaired. The breather for the blow-by gases 

needed to be replaced, but beyond that apparently only a good steam cleaning of the engine 

compartment was needed, hardly an indication of a serious leakage issue. In terms of 

obviousness, it must be recalled that the pre-op, performed in the pre-dawn hours, is not akin to 

the “160 point safety checks” advertised for pre-owned, (formerly known as “used”) car sales. 

The foreman, based on his credible testimony, did perform an adequate, although imperfect, 

check of the excavator prior to beginning its use during the shift. The factors of knowledge of the 

existence of the violation, the operator’s efforts in abating the violative condition, and whether 

38 FMSHRC Page 1241
the operator had been placed on notice that greater efforts were necessary for compliance, remain 

as described above for the other cited conditions. The terms reckless disregard, intentional 

misconduct, indifference, or the serious lack of reasonable care have no descriptive applicability 

to the cited conditions. The place overarching mitigation element, also as discussed above, 

remain applicable here. 

Assessment of a civil penalty for Order 8302707, now determined as, and modified to be, a 

section 104(a) citation 

In Brody Mining, Inc., 37 FMSHRC 1687 (Aug. 2015), the Commission, while 

remanding the matter to the presiding judge to reexamine the degree of negligence involved, 

took pains to note that 

. . . the Part 100 regulations apply only to the proposal of penalties by MSHA and 

the Secretary of Labor; under both Commission and court precedent, the 

regulations do not extend to the independent Commission, and thus the MSHA 

regulations are not binding in any way in Commission proceedings [and that] [i]n 

light of the Commission holding that Commission judges are not required to apply 

the definitions of Part 100, judges may evaluate negligence from the starting point 

of a traditional negligence analysis rather than based upon the Part 100 

definitions. Under such an analysis, an operator is negligent if it fails to meet the 

requisite standard of care – a standard of care that is high under the Mine Act. 

Id. at 1701. 

Elaborating, the Commission added: 

[i]n determining whether an operator met its duty of care, we consider what

actions would have been taken under the same circumstances by a reasonably

prudent person familiar with the mining industry, the relevant facts, and the

protective purpose of the regulation.” It also stated that “in making a negligence

determination, a Judge is not limited to an evaluation of allegedly “mitigating”

circumstances. Instead, the Judge may consider the totality of the circumstances

holistically.

Id. at 1703. 

Similarly, in Wade Sand & Gravel Co., 37 FMSHRC 1874 (Sept. 2015), citing 

Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984), the Commission 

noted that: 

‘neither the ALJ nor the Commission is bound by the Secretary’s proposed 

penalties;’ also, ‘neither the Act nor the Commission’s regulations require the 

38 FMSHRC Page 1242
Commission to apply the formula for determining penalty proposals that is set 

forth in section 100.3’ 

Id. at 1877. 

Of course, the authority is not unfettered. As fellow Administrative Law Judge Zane Gill 

took note: 

substantial deviations from the Secretary’s proposed assessments must be 

adequately explained using the Section 110(i) criteria. E.g., Sellersburg Stone Co., 

5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May 2000); Cantera 

Green, 22 FMSHRC 616, 620-21 (May 2000) [and that although] [a] judge need 

not make exhaustive findings [the court] must provide an adequate explanation of 

how the findings contributed to his or her penalty assessments. Cantera Green, 22 

FMSHRC at 621. 

Oil Dri Production, 2016 WL 2619895, at *4 (May 3, 2016) (ALJ). 

Had it not been for the special assessment calculation, the violation identified in Order 

No. 8302707, would have been assessed at $9,122.00. Tr. 19. This, not the $41,500.00 special 

assessment figure, represents an appropriate starting point. In using that phrase, “starting point,” 

the Court does not imply that $9,122.00 represents a penalty floor. 

Under section 110(i) of the Mine Act, the Commission is to consider the following when 

assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness 

of such penalty to the size of the business of the operator charged; (3) whether the operator was 

negligent; (4) the effect on the operator’s ability to continue in business; (5) the gravity of the 

violation; and (6) the demonstrated good faith in abatement of the violative condition. 30 U.S.C 

§ 820(i).

As to the demonstrated good faith in abatement of the violative condition, the Secretary 

concedes such good faith was present. Sec’y Br. at 16. Speaking to the history of previous 

violations, the Beech Creek Surface violation history is reflected in Ex. 4, known as the “R 17.” 

Tr. 13. The Secretary states, without elaboration, that the Respondent “had received violations 

for the standards violated in this case.” Sec’y Br. at 16; Sec’y Ex. 4. The Part 100 table offers no 

basis or information as to how to translate the number of repeat violations for the 15 months 

covered (November 1, 2013 through February 1, 2015) by Ex. 4. The Court can only note that 

nine violations are in that history for 30 C.F.R. §77.404(a) and no violations for the same period 

of history for 30 C.F.R. §77.1606(a). 

Regarding the size of the Beech Creek Surface Mine, the mine produced 148,741 tons of 

coal in 2014. Parties’ Stip. No. 5. That tonnage places the mine in the upper mid-range, with nine 

(9) points assessed under Part 100 out of a possible 15 points for that category. According to the

Special Assessment Narrative Form, the controller size points, mine size points, violation history

points and repeat violation history points are the same under the regular and special assessment

points. While admittedly only a partial analysis, the combined point total for those categories is

38 FMSHRC Page 1243
44 points for the section 77.404(a) violation and 29 points for the 77.1606(a) violation. A point 

total of 60 points or less yields a penalty of $112.00. Of course, here such a total must then 

evaluate the gravity and negligence criteria. The point of this discussion is not to inferentially 

heel to the Secretary’s Part 100 penalty calculation but to highlight that the other factors, that is 

factors other than the negligence and gravity, even under the Secretary’s system, have only a 

minor influence on the appropriate penalty. Restated, at least with regard to the Beech Creek 

Mine, the attendant negligence and gravity are the dominant, but not exclusive, penalty elements. 

These factors have largely been discussed above but a few additional remarks are here made. 

For item 1, the loose handrail, even if the Commission were to find that it constituted a 

safety defect, the gravity would be unlikely with, at most, lost workdays or restricted duty, and 

the negligence low. 

For item 2, the deformed lower step, as with item 1, even if the Commission were to find 

that it constituted a safety defect, the gravity would be unlikely with, at most, lost workdays or 

restricted duty, and the negligence low. 

For item 3, the deck lid, the same analysis for gravity and negligence applies as for items 

1 and 2: the gravity would be unlikely with, at most, lost workdays or restricted duty, and the 

negligence low. 

For item 4, the fuel tank mounting bolts, yet again the previous analyses apply. 

For item 5, the safety latch to secure engine hood out of bracket, yet again, even if the 

Commission were to find that it constituted a safety defect, the gravity would be unlikely with, at 

most, lost workdays or restricted duty, and the negligence low. 

 For item 6, the bottom wiper blade missing on lower glass the Court did find this to be a 

violation of the standard as it constituted an unsafe operating condition. Still, per the evidence, as 

described above, there were mitigating circumstances. Assessing the evidence for this violative 

condition, the gravity was unlikely, no lost workdays would be likely, and the negligence was 

low. 

For item 7, the loose handrail, left side of the cab access, the Court found that it did not 

then constitute an unsafe condition. Nevertheless, even if the Commission were to find that it 

constituted a safety defect, the gravity would be unlikely with, at most, lost workdays or 

restricted duty, and the negligence low. 

For item 8, the engine compartment oil leaks on the turbo and valve cover gaskets, the 

condition was found to be an unsafe operating condition, but even the issuing inspector conceded 

that, viewed as singular condition (that is not premised on the inspector’s theory that one may 

total up a number of alleged safety issues and have that total number, as opposed to the 

underlying facts for each condition, determine the gravity and negligence), he would have 

viewed the gravity as unlikely. The Court agrees that the gravity was unlikely and, as discussed 

above, the negligence on the foreman’s part was, at most, low. 

38 FMSHRC Page 1244
For item 9, the hydraulic pump covered with oil due to broken filter housing, the same 

analysis applies as for item 8. The Court’s earlier described findings about this and the other 

accumulation condition, next above, stand. 

In summary, the Court upheld only four of the nine cited conditions: the deck lid, the 

lower wiper and the two oil accumulations conditions. Given those determinations, upon 

consideration of the statutory penalty criteria, the Court finds that a civil penalty of $2,000.00 

is appropriate.7

 

Conclusions about Order No. 8302708 

The analysis for this Order, a claim of an inadequate pre-operational inspection, being so 

completely related to and predicated upon the inspector’s conclusions about nine claims made in 

the unsafe operating conditions Order, may be briefly discussed. The inadequate pre-op claim 

arose following the inspector’s determination of those purportedly unsafe operating conditions. 

With five of those determinations found by this Court to be unsupported, obviously the 

inadequate pre-op claim collapses, because the claim was built upon the premise that, 

collectively, those nine conditions demonstrated an inadequate exam. However, since four of the 

conditions were upheld, (though the two fuel accumulations were affirmed on a technical basis), 

the violation of 30 C.F.R. §77.1606(a) was established. As mentioned, when the subject involves 

the pre-op exam, the Court finds that three, not four, of the conditions should have been detected, 

as it has been found that the lid was in place at the time of the pre-op and either came loose or 

was not fully re-secured by the bungee cord, following the pre-op. It is important to note 

however that even if the Commission were to conclude that some of the others, or even all, of the 

remaining six conditions should have been noted in the pre-op, unwarrantability, per the 

Commission’s test for such a finding, would not be established. 

The second order, inadequate pre-shift, would have been assessed at $2,748.00 under a 

Part 100 regular assessment. Tr. 19. As with the equipment defects violation, that figure also 

represents an appropriate starting point, not the $12,500.00 under the special assessment. Given 

the marginal amount of oil established by the record as being present and because those 

conditions were difficult to discern during the pre-op, leaving only the missing lower wiper blade 

as the only readily apparent defect, a penalty of $1,000.00 is imposed for this nonunwarrantable violation. 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 7

 If the Commission were to find that all nine conditions constituted unsafe operating 

conditions, based on the evidence of record, the Court would impose a $4,000.00 civil penalty. 

38 FMSHRC Page 1245
ORDER 

Wherefore, it is ORDERED that Kentucky Fuel Corporation pay a total civil penalty of 

$3,000.00 (three thousand dollars) within 30 (thirty) days of the filing of this Decision. 

It is further ORDERED that Order No. 8302707 and Order No. 8302708 each be modified from 

section 104(d)(1) orders to section 104(a) citations. 

/s/ William B. Moran

William B. Moran 

Administrative Law Judge 

Distribution: 

Latasha Thomas, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

James F. Bowman, P.O. Box 99, Midway, WV 25878 

38 FMSHRC Page 1246
ADMINISTRATIVE LAW JUDGE ORDERS

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May 2, 2016 

ORDER GRANTING TEMPORARY REINSTATEMENT 

OF JEREMY COOTS

Before: Judge Steele 

Pursuant to Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Act”), 

30 U.S.C. §801, et. seq., and 29 C.F.R. §2700.45, the Secretary of Labor (“Secretary”) on April 

13, 2016, filed an Application for Temporary Reinstatement of miner Jeremy Coots 

(“Complainant”) to his former position with Yellow Rose Coal Co. (“Respondent”) at Mine No. 

3 pending final hearing and disposition of the case. 

According to Commission Rule 45, a request for hearing must be filed within 10 days 

following receipt of the Secretary’s application for temporary reinstatement. 29 C.F.R. 

§2700.45(b). By email, the Respondent’s counsel notified the court that they would not be

requesting a hearing. The Respondent has not filed a timely Request for Hearing. For the

following reasons, the temporary reinstatement of Jeremy Coots is hereby GRANTED.

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Mine Act. The purpose of the protection is to encourage miners “to play 

an active part in the enforcement of the [Mine Act]” recognizing that, “if miners are to be 

encouraged to be active in matters of safety and health, they must be protected against any 

possible discrimination which they might suffer as a result of their participation.” S. Rep. No. 

181, 95th Cong., 1 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 623 (1978). 

The Commission’s regulations control the temporary reinstatement procedures. Once an 

application for temporary reinstatement is served on the person against whom relief is sought,

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of JEREMY COOTS, 

 Complainant, 

v. 

YELLOW ROSE COAL CO., LLC, 

 Respondent

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. KENT 2016-320-D 

MSHA Case No.: BARB-CD-2016-06 

Mine: No. 3 

Mine ID: 15-18277

38 FMSHRC Page 1247
that person shall notify the Chief Administrative Law Judge or his designee within 10 calendar 

days whether a hearing on the application is requested. 29 C.F.R. §2700.45(b). If no hearing is 

requested, the Judge assigned to the matter shall review immediately the Secretary’s application 

and, if based on the contents thereof, the Judge determines that the miner’s complaint was not 

frivolously brought, he shall issue immediately a written order of temporary reinstatement. Id. In 

the instant case, the Respondent has not timely filed a request for hearing. 

In adopting section 105(c), Congress indicated that a complaint is not frivolously brought 

if it Aappears to have merit.@ S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in

Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In 

addition to Congress= Aappears to have merit@ standard, the Commission and the courts have 

also equated Anot frivolously brought” to Areasonable cause to believe” and Anot insubstantial.”

Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), 

aff'd, 920 F.2d 738, 747 & n.9 (11th Cir. 1990). The plain language of the Act states that “if the 

Secretary finds that such complaint was not frivolously brought, the Commission, on an 

expedited basis upon application of the Secretary, shall order the immediate reinstatement of the 

miner pending final order on the complaint.” 30 U.S.C. §815(c)(2). The judge must determine 

whether the complaint of the miner “is supported by substantial evidence and is consistent with 

applicable law.”1 Sec=y of Labor on behalf of Peters v. Thunder Basin Coal Co., 15 FMSHRC 

2425, 2426 (Dec. 1993). 

The Declaration of Special Investigator Kenneth McClung was filed with the 

Complainant’s Application for Temporary Reinstatement asserting the following: 

1. Prior to his discharge on February 23, 2016, Jeromy Coots (Coots) was employed by 

Yellow Rose Coal Co., LLC (Yellow Rose). Yellow Rose operates the No. 3 mine. The 

No. 3 mine is a "coal or other mine" as defined by Section 3(h) of the Mine Act, 30 

U.S.C. § 802(h). The No. 3 mine is located in Lejunior, Harlan County, Kentucky. 

2. Coots began working for Yellow Rose on February 22, 2016. Coots worked as roof bolter 

operator at the No. 3 mine. 

3. On February 22, 2016, Coots spoke with Yellow Rose mine owner Randall Fleming 

(Fleming) about a job at Yellow Rose. Fleming told Coots he had an opening for a roof 

bolter and that he would observe Coots operate the roof bolting machine before he would 

be hired. Fleming observed Coots operate the roof bolter and stated that Coots was the 

best bolt machine operator he had seen. Coots was left underground to work the 10 hour 

shift. On February 23, 2016, Fleming received two phone calls regarding Coots. Both 

callers informed Fleming that Coots was represented by attorney Tony Oppegard and that 

Coots had filed a lawsuit against his previous employer, Lone Mountain. Fleming was 

warned to be careful around Coots. 

1 ASubstantial evidence@ means Asuch relevant evidence as a reliable mind might accept 

as adequate to support [the judge=s] conclusion.@ Rochester & Pittsburgh Coal Co., 11 

FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197, 

229 (1938)). 

38 FMSHRC Page 1248
4. Coots was terminated on February 23, 2016 by Fleming. Fleming stated that he could not 

continue to employee Coots for fear that Coots would file a complaint against Yellow 

Rose. 

5. On October 7, 2014, the Secretary filed a Discrimination Complaint against Lone 

Mountain Processing on behalf of Jeromy Coots. An order was issued settling the case on 

August 17, 2015. 

6. Based upon my investigation of these matters, I have concluded that Coots' complaint of 

discrimination was not frivolously brought. Pursuant to 28 U.S.C. § 1746, I declare under 

penalty of perjury under the laws of the United States of America that the foregoing is 

true and correct. 

Based upon the affidavit of the Special Investigator and the asserted facts therein, I find 

that the Secretary’s complaint was not frivolously brought. WHEREFORE, it is hereby 

ORDERED that Jeremy Coots be immediately TEMPORARILY REINSTATED to his former 

job at his former rate of pay, overtime, and benefits pending final decision on the complaint. 

/s/ William Steele 

William Steele 

Administrative Law Judge 

Distribution (Certified Mail): 

LaTasha T. Thomas, Office of the Solicitor, US Dept. of Labor, 618 Church Street, Suite 230, 

Nashville, TN 37219 

Randall Fleming, 2328 Thistle Park, Lexington, KY 40509 

Yellow Rose Coal Co., LLC, Mr. Randall Fleming, Owner, 1160 Jackson Drive, 

Paris, TN 38242 

Tony Oppegard, P. O. Box 22446, Lexington, KY 40522 

Wes Addington, Esq., 317 Main Street, Whitesburg, KY 41858 

/mzm 

38 FMSHRC Page 1249
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May 9, 2016 

ORDER TO SHOW CAUSE 

Before: Judge Feldman 

The single citation at issue is 104(d)(1) Citation No. 6511548, issued to West Alabama 

Sand & Gravel, Inc., (“West Alabama”), alleging a violation of 30 C.F.R. § 56.15005, which 

provides that “[s]afety belts and lines shall be worn when persons work where there is danger of 

falling. . . .” The violation concerns the failure of a contract haul truck driver to wear a 

restraining device while securing his truck’s load. The Secretary proposes a civil penalty of 

$15,971.00 for the cited violation in 104(d)(1) Citation No. 6511548. The Commission, in its 

remand in this matter, has vacated the initial decision’s deletion of the unwarrantable failure 

designation and directed that I reconsider the issues of negligence and unwarrantable failure 

consistent with their decision. 37 FMSHRC 1884, 1891 (Sept. 2015). 

Following a series of conference calls, on December 15, 2015, West Alabama stipulated 

that the subject section 56.15005 violation was attributable to an unwarrantable failure. 

Specifically: 

1. West Alabama stipulates to such facts as are necessary and sufficient to permit 

the Court to make a designation of unwarrantable failure under 30 U.S.C. § 

814(d)(1). 

2. West Alabama stipulates to such facts as are necessary and sufficient to permit 

the Court to make a designation of “high” negligence level. 

West Alabama’s Stipulation of Material Facts, at 1 (Dec. 15, 2015). 

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

WEST ALABAMA SAND & GRAVEL, 

INC., 

 Respondent.

CIVIL PENALTY PROCEEDING

Docket No. SE 2009-870-M 

A.C. No. 01-02738-194100

Mine: West Alabama Sand & Gravel 

38 FMSHRC Page 1250
Thus, the only remaining issue is the appropriate civil penalty to be assessed for 

104(d)(1) Citation No. 6511548. Consequently, on February 17, 2016, the parties were requested 

to specifically identify any aggravating or mitigating factors with respect to the civil penalty 

criteria in 30 U.S.C. § 820(i). The parties’ responses to the February 17 Order are under 

consideration. 

The Secretary’s response to the Order asserted, in part: 

It is also notable that Respondent continues to consistently violate safety 

standards and essentially stopped paying assessed penalties in approximately 

January 2010, according to the Mine Data Retrieval System [“MDRS”]. 

Sec’y Resp., at 12 (Mar. 9, 2016). 

Consistent with the above assertion, the MDRS reflects that of the $27,890.00 civil 

penalties assessed for the 59 citations and orders issued to West Alabama during the period June 

2010 to November 2015, West Alabama has paid $200.00 in satisfaction of two citations. The 

MDRS further reflects that West Alabama is delinquent in its payment of the $27,690.00 total 

civil penalty for the remaining 57 citations and orders. Thus, with the exception of two citations, 

West Alabama has been delinquent in its payment of assessed civil penalties for approximately 

six years. 

With respect to delinquency as it relates to the imposition of civil penalties, in the 

past, the Commission has narrowly construed the civil penalty criteria in section 110(i). In Sec’y 

o/b/o Johnson v. Jim Walter Res., Inc., 18 FMSHRC 841 (June 1996), the Commission stated: 

“An operator’s delinquency in payment of penalties is not one of the criteria set forth in section 

110(i) of the Mine Act for consideration in the assessment of penalties.” Id. at 850. 

However, in Black Beauty Coal Co., 34 FMSHRC 1856 (Aug. 2012), the Commission 

departed from its narrow interpretation of section 110(i) by emphasizing the role of deterrence as 

a proper consideration in assessing civil penalties.1

 In this regard, the Commission noted: 

Clearly Congress viewed civil penalties as a mechanism to promote operator 

compliance with health and safety mandates, and it explicitly called for 

consideration of the protection of the “public interest” - which includes such 

compliance - before a [penalty is assessed]. Consequently, it is eminently 

appropriate for a Judge to acknowledge the need for deterrence in [considering the 

appropriate civil penalty], with the understanding that the [ultimate civil penalty], 

consistent with fundamental principles underlying the penalty provisions of the 

1

 Although Black Beauty concerned the propriety of considering deterrence in the context 

of approving settlements of civil penalties, it is clear that deterrence is also an appropriate 

consideration in determining civil penalties in contested cases. See Black Beauty, 34 FMSHRC at 

1865-66. 

38 FMSHRC Page 1251
Mine Act, discourage operators from violating health and safety regulations and 

laws in the future. 

Id. at 1866. In sum, the Commission stated: 

Simply put, we refuse to require our Judges to apply blinders . . . and to ignore the 

central and most obvious purpose of civil penalties - to ensure operator 

compliance with safety measures - when deciding whether such penalties are 

appropriate. Deterrence is a principle basic to and underlying the entire statutory 

scheme of imposing civil penalties. 

Id. at 1869. 

In the final analysis, the imposition and payment of civil penalties is the statute’s 

principal means of achieving the deterrence necessary to further the Mine Act’s goal of 

promoting health and safety. 

ORDER 

In view of the above, West Alabama IS ORDERED TO SHOW CAUSE on or before 

May 31, 2016, why its delinquent payment history should not be considered an aggravating 

factor in determining the appropriate civil penalty to be assessed in this matter. If the Secretary 

elects to file a written response to West Alabama’s submission, such response should be filed on 

or before June 14, 2016. 

/s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

Distribution: (Regular and Certified Mail) 

Sophia E. Haynes, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street 

SW, Room 7T10, Atlanta, GA 30303 

Clatus Junkin, Esq., P.O. Box 688, 202 3rd Street NE, Fayette, AL 35555 

Charles E. Harrison, Esq., Pearson Harrison & Pate, LLC, P.O. Box 3119, Tuscaloosa, AL 35403 

/acp 

38 FMSHRC Page 1252
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May 10, 2016 

ORDER DENYING RESPONDENT’S MOTION TO DISMISS

Before: Judge Andrews 

Pursuant to section 105 (c)(2) of the Federal Mine Safety and Health Act of 1977 

(AAct@), 30 U.S.C. '801, et. seq., and 29 C.F.R. '2700.45, the Secretary of Labor (ASecretary@) 

on March 14, 2016, filed a Complaint on behalf of miner George M. Scoles (“Complainant”), 

alleging that Scoles was discriminated against in violation of his rights under the Mine Act. 

On April 13, 2016, Respondent filed a Motion to Dismiss Complaint based on the 

miner’s untimely filing of his discrimination complaint. Respondent argues that the Mine Act 

contains a 60-day statute of limitations, after which a miner may not file a discrimination 

complaint, unless there are justifiable circumstances. In the instant case, the miner filed his 

discrimination complaint 80 days after the alleged discrimination occurred, and the Respondent 

argues that the miner knew of his rights under the Mine Act, but chose to pursue relief through a 

grievance procedure instead. 

The Secretary responded by arguing that Scoles was unaware of his rights under the Mine 

Act, as well as the time constraints contained in the Act. Furthermore, the delay was relatively 

short, and Respondent has alleged no prejudice. Therefore, the Secretary argues that the matter 

should not be dismissed. 

The relevant facts in this matter are that Scoles was suspended with intent to discharge on 

September 15, 2015. Scoles grieved the matter, and on November 8, 2015, following an 

arbitration hearing, the suspension with intent to discharge was modified to a 40-day suspension. 

Scoles filed the instant discrimination complaint with MSHA on December 4, 2015—80 days 

after his initial suspension and 26 days after the arbitration decision. 

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of GEORGE M. SCOLES, 

 Complainant, 

v. 

HARRISON COUNTY COAL CO., 

 Respondents 

DISCRIMINATION PROCEEDING

Docket No. WEVA 2016-274-D 

MSHA Case No.: MORG-CD-2016-13 

Mine: Harrison County 

Mine ID: 46-01318 

38 FMSHRC Page 1253
The Mine Act allows any miner who believes that he or she has been discharged, 

interfered with, or otherwise discriminated against due to his or her protected activity to file a 

discrimination complaint with the Secretary within 60 days of the alleged violation. 30 U.S.C. 

§815(c)(2). The Commission has consistently held that “the time limits in sections 105(c)(2) and

(3) ‘are not jurisdictional’ and that the failure to meet them should not result in dismissal, absent

a showing of ‘material legal prejudice.’” Sec’y of Labor ex rel. Nantz v. Nally & Hamilton

Enterprises, 16 FMSHRC 2208, 2215 (Nov. 1994) (citing Sec’y of Labor obo Hale v. 4-A Coal

Co., 8 FMSHRC 905, 908 (June 1986)). Indeed, the legislative history stated this point

explicitly.1 The Commission has excused a miner’s late filing on the basis of “justifiable

circumstances.” Gary D. Morgan v. Arch of Illinois, 21 FMSHRC 1381, 1386 (Dec. 1999). In

determining if such circumstances exist, a judge is required to review the facts “‘on a case-bycase basis, taking into account the unique circumstances of each situation.’” Id. (citations

omitted). Justifiable circumstances include, “a case where the miner within the 60–day period

brings the complaint to the attention of another agency or to his employer, or the miner fails to

meet the time limit because he is misled as to or misunderstands his rights under the Act.” David

Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 24 (Jan. 1984), citing legislative history,

S.Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate Sub-committee on Labor,

Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine

Safety and Health Act of 1977, at 624 (1978).

The example cited in the Senate Report accompanying the Mine Act appears to describe 

Scoles’ situation. Scoles has stated in his Declaration that he does not fully understand his rights 

under the Mine Act. Scoles Declaration ¶¶ 18-24. Specifically, he did not understand what type 

of violation “‘triggers’ the time-filing requirement under the Act,” and believed that the 

arbitrator’s decision on November 8 was part of the discriminatory conduct. Id. at ¶¶ 18, 22. 

Furthermore, Scoles believed that prior to filing a §105(c) complaint he had to first exhaust other 

remedies, including arbitration. Id. at ¶ 20. Scoles brought the matter to his employer’s attention 

and proceeded through a grievance proceeding. 

Respondent argues that Scoles was aware of his rights under the Mine Act and failed to 

proceed in a timely fashion. It grounds this argument in the fact that Scoles was “vocal” about 

safety issues at the mine, was a miner’s representative, and had made previous §105(c) 

complaints. Respondent relies almost exclusively on the 1984 Commission case of Hollis v. 

Consolidation Coal, 6 FMSHRC 21, where the Commission affirmed the ALJ’s findings that the 

miner’s discrimination complaint was time-barred. 

1

 Referring to discrimination cases, the Senate Committee stated: 

It should be emphasized, however, that these time frames are not intended to be 

jurisdictional. The failure to meet any of them should not result in the dismissal of 

the discrimination proceedings; the complainant should not be prejudiced because 

of the failure of the Government to meet its time obligations. 

S. Rep. No. 181, 95th Cong., 1st Sess. 24 (1977), reprinted in Senate Subcommittee on Labor,

Committee on Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine

Safety and Health Act of 1977, 3401, 2436 (1978).

38 FMSHRC Page 1254
Despite Respondent’s almost complete reliance on Hollis, it fails to note the important 

procedural distinction between Hollis and the instant case. In Hollis, an evidentiary hearing had 

been held, and based on the evidence and testimony admitted at hearing, the ALJ determined that 

the miner’s testimony concerning ignorance of his rights under the Mine Act was not credible. 

David Hollis v. Consolidation Coal Co., 4 FMSHRC 1974 (Nov. 12, 1982) (ALJ Melick) 

(“Hollis I”). Noting its limited role in reviewing a judge’s credibility determinations, the 

Commission found that the judge’s conclusions were appropriate because the miner filed his 

complaint 133 days late, despite his assertions that he was knowledgeable about the Mine Act, 

that he was a militant chairman of the Safety Committee, and that he had written notice in his 

arbitration decision of remedies available under the Mine Act. Hollis, 6 FMSHRC at 24-25. 

In the instant case, there is no credible evidence that the miner knew of the time 

limitations or his specific rights under §105(c) of the Act. Scoles’s delay in filing was quite 

short—only 20 days. Had Respondent reviewed more recent caselaw beyond Hollis, it would 

have found that discrimination complaints by miners who alleged ignorance of their rights under 

the Act, filed shortly after the 60-day time-limit had run, where the Respondent has shown no 

actual prejudice, are rarely held to be time-barred. See e.g. Daniel C. Howell v. Capitol Cement 

Corp., 23 FMSHRC 901 (Aug. 6, 2001) (ALJ Bulluck) (4 month delay in filing permitted where 

miner claimed he lacked knowledge of discrimination procedure); Sec’y of Labor obo Smith v. 

Jim Walters Resources, Inc., 21 FMSHRC 359 (March 23, 1999) (ALJ Melick) (10 month delay 

excused by filing within 61 days of first learning of section 105(c) and no claim of prejudice by 

Respondent); Sec’y of Labor obo Rocoe Ray Young v. Lone Mountain Processing, Inc., 20 

FMSHRC 1233 (Oct. 27, 1998) (ALJ Melick) (permitting complaint filed 21 days late); Sec’y of 

Labor on behalf of Franco v. W.A. Morris Sand and Gravel, Inc., 18 FMSHRC 278 (Feb. 15, 

1996) (ALJ Manning) (delay of 107 days justified by prompt filing after Complainant first 

became aware of his rights under the Act). 

The miner’s justifications for filing his complaint 20 days late appear reasonable. 

Respondent has not alleged that it has been prejudiced by the delay in filing. Accordingly, the 

Motion to Dismiss is DENIED. 

Kenneth R. Andrews 

Kenneth R. Andrews 

Administrative Law Judge 

Distribution (Via E-mail and First Class Mail): 

M. del Pilar Castillo, Esq., U.S. Dept. of Labor, Suite 630E, The Curtis Center, 170 S.

Independence Mall West, Philadelphia, PA 19106-3306; Castillo.m.pilar@dol.gov

Philip K. Kontul, Esq., Ogletree Deakins, One PPG Place, Suite 1900, Pittsburgh, PA 15222 

Philip.kontul@ogletreedeakins.com 

/mzm 

38 FMSHRC Page 1255
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May 11, 2016 

ORDER APPROVING SETTLEMENT 

AND 

ORDER TO PAY 

Before: Judge Feldman 

This proceeding is before me based upon a petition for assessment of civil penalty filed 

pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 (the Act). 

30 U.S.C. § 815(d). The Secretary proposed a civil penalty of $12,500.00 on July 24, 2015, 

following a determination in Docket No. VA 2014-233 that Dominion Coal Corp. (“Dominion”) 

violated the anti-discrimination provisions of section 105(c) of the Act. This finding of liability 

was predicated on Dominion’s reduction in the pay of Scott G. McGlothlin after he had initiated 

the application process for Part 90 protection available to miners suffering from pneumoconiosis. 

McGlothlin v. Dominion Coal Corp., 37 FMSHRC 1256 (June 2015) (ALJ). The Commission, 

in essence, affirmed the finding of Dominion’s liability for violation of section 105(c) of the Act. 

38 FMSHRC __, slip op. (Mar. 30, 2016). Dominion now represents that it has agreed to 

withdraw its contest of the proposed penalty and pay the $12,500.00 civil penalty proposed by 

the Secretary. 

I have considered the representations and documentation submitted in this matter and I 

conclude that the proffered settlement terms are appropriate under the criteria set forth in Section 

110(i) of the Act. Accordingly, Dominion Coal Corp. IS ORDERED to pay the proposed 

$12,500.00 civil penalty within 30 days of the date of this Order.1 Upon receipt of timely 

payment, the captioned civil penalty matter IS DISMISSED. 

/s/ Jerold Feldman

Jerold Feldman 

Administrative Law Judge

1

 Payment should be sent to the Mine Safety and Health Administration, U.S. Department 

of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please include the 

Docket No. and A.C. No. noted in the above caption on the check. 

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

DOMINION COAL CORPORATION, 

 Respondent.

CIVIL PENALTY PROCEEDING 

Docket No. VA 2015-285 

Mine: Dominion No. 7 

Mine ID: 44-06499

38 FMSHRC Page 1256
Distribution: 

Pollyanna E.F. Hampton, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12th Street 

South, Suite 401, Arlington, VA 22202 

David J. Hardy, Esq., Hardy Pence PLLC, 500 Lee Street East, Suite 701, P.O. Box 2548, 

Charleston, WV 25329 

/acp 

38 FMSHRC Page 1257
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May 16, 2016 

ORDER DENYING MOTION TO DISSOLVE

This case is before me upon an application for temporary reinstatement filed by the 

Secretary of Labor on behalf of Michael Murray (“the Complainant”) against Mach Mining, LLC 

(“the Respondent”) pursuant to section 105(c) of the Federal Mine Safety and Health Act of 

1977 (“the Mine Act”), 30 U.S.C. § 815(c). 

The Complainant filed a discrimination complaint with the Secretary of Labor on January 

12, 2016, and the Secretary subsequently initiated this temporary reinstatement proceeding. 

Before the matter could proceed to hearing, the parties reached a settlement whereby the 

Respondent agreed to economically reinstate the Complainant. The parties agreed that the period 

of reinstatement would begin retroactively on March 7, 2016 and reinstatement would remain in 

effect until the entry of a final order of the Commission regarding the Complainant’s underlying 

discrimination complaint or until the dissolution of my order approving the settlement, 

whichever should occur first. I approved the settlement on April 26, 2016. On May 6, 2016, the 

Respondent filed a motion requesting that I dissolve my order approving the settlement and 

release the Respondent from its reinstatement obligation. 

Parties’ Positions 

The Respondent argues that its temporary reinstatement obligation should be terminated 

because the Secretary has failed to comply with the requirements of section 105(c)(3) of the 

Mine Act. Section 105(c)(3) sets a deadline of 90 days after receipt of a discrimination complaint 

for the Secretary to make a determination as to whether to initiate a discrimination proceeding on 

the merits. See 30 U.S.C. § 815(c). In this case, the deadline passed on or about April 11, 2016, 

but the Secretary has yet to decide whether to pursue the case on the merits. The Respondent 

contends that requiring the company to provide reinstatement beyond the 90-day timeframe is 

unfair and results in unjust enrichment to the Complainant. 

The Secretary responds that the motion should be denied because the Commission has 

made clear that the deadline set forth in section 105(c)(3) is non-jurisdictional. The Secretary 

further asserts that despite Department of Labor’s failure to meet the deadline, the delay has not 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), on 

 behalf of MICHAEL MURRAY, 

 Complainants, 

v. 

MACH MINING, LLC, 

 Respondent.

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. LAKE 2016-186-D 

MSHA Case No. VINC-CD-2016-02 

Mine ID: 11-03141 

Mine: Mach #1 Mine 

38 FMSHRC Page 1258
legally prejudiced the Respondent and should not be found to trigger an outcome that will 

prejudice the Complainant. 

Counsel for the Complainant joins in the Secretary’s opposition to the motion to dissolve. 

Discussion 

Section 105(c)(2) of the Mine Act provides that after the Secretary receives a 

discrimination complaint and initiates an investigation, “if the Secretary finds that such 

complaint was not frivolously brought, the Commission, on an expedited basis upon application 

of the Secretary, shall order the immediate reinstatement of the miner pending final order on the 

complaint.” 30 U.S.C. § 815(c)(2). 

Aside from the entry of a final order on the complaint, the Mine Act does not explicitly 

identify any conditions that interrupt the mine operator’s reinstatement obligation. However, 

precedent has established that the obligation may be tolled or dissolved in several situations. The 

Commission has recognized that a subsequent change in the operator’s economic status, such as 

closure of the mine or a mass layoff, may toll the reinstatement obligation. See Sec’y of Labor on 

behalf of Gatlin v. KenAmerican Res., Inc., 31 FMSHRC 1050, 1054 (Oct. 2009). In addition, the 

federal appellate courts have held that an order of temporary reinstatement must be dissolved if 

and when the Secretary concludes, after investigating the underlying complaint, that no 

discrimination has occurred. Vulcan Constr. Materials v. FMSHRC, 700 F.3d 297 (7th Cir. 

2012); N. Fork Coal Corp. v. FMSHRC, 691 F.3d 735 (6th Cir. 2012). 

38 FMSHRC Page 1259
This case does not present either of the situations described above, and the Respondent 

has cited no other legal authority that would support releasing it from its obligation to comply 

with the settlement agreement. The Secretary’s failure to meet the 90-day deadline under 

105(c)(3) does not provide a basis upon which to dissolve a temporary reinstatement order. The 

Commission has long recognized, as is noted in one of the cases cited in the Respondent’s 

motion, that the deadlines imposed on the Secretary under 105(c) “are not intended to be 

jurisdictional” and that “the complainant should not be prejudiced because of the failure of the 

Government to meet its time obligations.” Gilbert v. Sandy Fork Mining Co., 9 FMSHRC 1327, 

1337 (Aug. 1987) (quoting pertinent legislative history). Rather, the Commission has 

emphasized that the intent of 105(c) is to make the miner whole until his case can be decided on 

the merits. See Sec’y of Labor o/b/o Rieke v. Akzo Nobel Salt, Inc., 19 FMSHRC 1254, 1258 

(July 1997). It would be contrary to the spirit of 105(c) to cut off the Complainant’s relief due to 

the Secretary’s delay, and it would be premature for me to accept the Respondent’s contention 

that the Complainant is being “unjustly” enriched when no determination has been made yet on 

the merits of his complaint. 

Accordingly, it is ORDERED that the Respondent’s motion to dissolve is DENIED. 

/s/ Priscilla M. Rae 

Priscilla M. Rae 

Administrative Law Judge 

Distribution: 

R. Jason Patterson, Esq., U.S. Department of Labor, Office of the Solicitor, 230 South Dearborn

Street, Room 844, Chicago, IL 60604

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

Christopher D. Pence, Esq. & Eric L. Silkwood, Esq., Hardy Pence PLLC, 500 Lee Street East, 

Suite 701, Charleston, WV 25301 

38 FMSHRC Page 1260
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May 24, 2016 

ORDER GRANTING MOTION TO AMEND COMPLAINT 

Before: Judge Feldman 

This case is before me based on a discrimination complaint filed on January 7, 2014, 

pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, as amended,

30 U.S.C. § 815(c)(3) (2006) (Mine Act). Sandra G. McDonald seeks to recover relief under 

Section 105(c) of the Mine Act,1

 based on her alleged September 2013 termination of 

employment by George King and Mark Toler,2 who were providing contract security guard 

1

 Section 105(c)(1) provides, in pertinent part: 

No person shall discharge or in any manner discriminate against ... any miner ... 

because such miner ... has filed or made a complaint under or related to this Act, 

including a complaint notifying the operator or the operator’s agent ... of an 

alleged danger or safety or health violation in a coal or other mine ... or because 

such miner ... instituted any proceeding under or related to this Act .... 

30 U.S.C. § 815(c)(1). 

2

 McDonald’s initial complaint identified her employer as TMK Enterprise Security 

Services, Inc. (“TMK”). However, the evidence of record reflects that TMK’s corporate status 

was terminated by the state of West Virginia on June 12, 2009. As McDonald began working for 

TMK in May 2011, McDonald was never employed by TMK, but rather was employed by King 

and Toler, the former principals of TMK, who were apparently operating their security services 

business as a non-corporate entity. 

SANDRA G. MCDONALD,

 Complainant, 

v. 

GEORGE KING, MARK TOLER, 

 GUARDCO SECURITY, LLC, and 

 NEW TRINITY COAL, INC., 

 as successor-in-interest to 

 FRASURE CREEK MINING, LLC, 

 Respondents. 

DISCRIMINATION PROCEEDING

Docket No. WEVA 2014-387-D 

HOPE-CD 2013-10 

Mine ID 46-07014 5G1 

38 FMSHRC Page 1261
services at a mine site operated by Frasure Creek Mining, LLC (“Frasure Creek”). McDonald’s 

discrimination complaint alleges, in essence, that her employment was terminated following 

safety complaints concerning the wearing of hardhats by employees on Frasure Creek property, 

as well as King and Toler’s failure to provide timely security guard refresher training. 

On December 31, 2015, McDonald filed an amended complaint, which I construe as a 

motion to amend, seeking to add, for the first time in this proceeding, Guardco Security, LLC 

(“Guardco”) and Frasure Creek as parties.3

 Consequently, on February 26, 2016, the parties were 

ordered to address the propriety of adding Guardco and Frasure Creek in this proceeding. 38 

FMSHRC 389 (Feb. 2016) (ALJ). Briefs submitted in this matter reflect that Guardco has 

provided contract security services at the Frasure Creek mine site since November 2014, which 

were previously provided by King and Toler. Guardco Resp., at 2 (Apr. 12. 2016). The briefs 

further reflect that Frasure Creek was the subject of a Chapter 11 bankruptcy proceeding, which 

terminated on January 31, 2014, that identified New Trinity Coal, Inc. (“New Trinity”), inter 

alia, as “reorganized debtors.” The bankruptcy proceeding provided that, as a reorganized 

debtor, New Trinity acquired the property of Frasure Creek “free and clear of all Liens, Claims, 

charges, Causes of Action, or other encumbrances.” New Trinity’s Mot. to Dismiss Frasure 

Creek, at 3-4 (Apr. 7, 2016). Both New Trinity, identifying itself as a successor-in-interest to 

Frasure Creek, and Guardco oppose McDonald’s motion to include them as Respondents. New 

Trinity’s Opp’n to Adding Frasure Creek, at 4 (Apr. 20, 2016). 

I. Guardco as a proper party

McDonald asserts that Guardco is a proper party as a successor-in-interest to King and 

Toler’s business operation. The Commission has determined that a successor-in-interest may be 

found liable for its predecessor’s discriminatory conduct. See Meek v. Essroc Corp., 15 

FMSHRC 606, 609-10 (Apr. 1993). To determine whether an entity is a proper successor-ininterest in a discrimination proceeding, the Commission traditionally considers nine factors: 

(1) whether the successor company had notice of the charge, (2) the ability of the

predecessor to provide relief, (3) whether there has been a substantial continuity

of business operation, (4) whether the new employer uses the same plant, (5)

whether he uses the same or substantially the same work force, (6) whether he

uses the same or substantially the same supervisory personnel, (7) whether the

same jobs exist under substantially the same working conditions, (8) whether he

uses the same machinery, equipment and methods of production and (9) whether

he produces the same products.

Sec’y of Labor o/b/o Keene v. S&M Coal Co., 10 FMSHRC 1145, 1153 (Sep. 1988) (citing 

Munsey v. Smitty Baker Coal Co., 2 FMSHRC 3463 (Dec. 1980), aff’d sub nom. Munsey

v. FMSHRC, 701 F.2d 976 (D.C. Cir 1983), cert. denied, 464 U.S. 851 (1983)).

3

 McDonald’s December 31, 2015, amended complaint, also for the first time, identified 

King and Toler in their individual capacities as Respondents. 

38 FMSHRC Page 1262
Arguing that Guardco is a proper party as a successor-in-interest to King and Toler, 

McDonald asserts: 

Upon information and belief, Guardco conducts the same security activities at the 

same mine sites, employing the same Site Supervisor Karen Payne who was 

previously employed by Respondents King and Toler. 

McDonald’s Memo. in Support of Adding Guardo and Frasure Creek, at 5 (Mar. 30, 2016). 

In response, Guardco asserts: 

In this matter the Defendent Guardco had absolutely no knowledge of and did not 

know Ms. McDonald existed on this earth, nor did it have any knowledge that she 

had a claim against her employer and Frasure Creek at the time they signed a 

contract to provide security services for Frasure Creek. No representations were 

made by Frasure Creek concerning this case whatsoever and Guardco had no 

reason to suspect any claims were pending. 

Guardco Resp., at 3 (Apr. 12. 2016). 

In addressing whether Guardco should be included as a party as a successor-in-interest to 

King and Toler, it is not necessary that all of the successorship criteria identified above be 

satisfied. Resolution of whether a party is a proper successor-in-interest requires an equitable 

determination in the context of the successorship criteria with respect to whether there is a 

substantial continuity of business operations. The undisputed fact that Guardco has employed 

Karen Payne as site supervisor for their operations, who was previously employed in the same 

capacity by King and Toler, for the purpose of performing, essentially, the identical security 

services performed by King and Toler, provides a colorable claim of successorship to include 

Guardco as a party at this stage of the proceeding. 

However, unresolved issues of fact may remain with respect to the continuity of business 

of operations between King and Toler and Guardco, and other successorship criteria. 

Consequently, Guardco will have the opportunity to demonstrate that it is not, in fact, a 

successor-in-interest and a proper party at the forthcoming evidentiary hearing. As such, 

McDonald’s motion to include Guardco as a Respondent in this matter at this stage of the 

proceeding shall be granted. 

38 FMSHRC Page 1263
II. New Trinity, as a successor-in-interest to Frasure Creek, as a proper party 

McDonald’s initial section 105(c)(3) complaint was not docketed to include Frasure 

Creek as a Respondent. On this basis, McDonald’s initial motion to amend her complaint by 

adding Frasure Creek as a party, filed on February 18, 2015, was denied on March 12, 2015, 

based on the Commission’s holding in Hatfield v. Colquest Energy, Inc., 13 FMSHRC 544 Apr. 

1991). See Order Denying Mot. to Amend, 37 FMSHRC 683 (Mar. 2015) (ALJ). In Hatfield, the 

Commission held: 

If the Secretary’s . . . investigation . . . did not include consideration of the matters 

contained in the amended complaint, the statutory prerequisites for a complaint 

pursuant to § 105(c)(3) have not been met. 

13 FMSHRC at 546; see also Pontiki Coal Corp., 19 FMSHRC 1009, 1018 (Jun. 1997).

Following the March 12, 2015, denial of McDonald’s request to include Frasure Creek as a party 

based on the Commission’s holding in Hatfield, on October 23, 2015, the Commission, upon 

review, granted broad leave for McDonald to “amend the complaint to add [all] other relevant 

parties....” 37 FMSHRC 2239, 2243 (Oct. 2015). 

Currently before me is McDonald’s second motion to amend her complaint, filed on 

December 31, 2015, to add Frasure Creek as a party. New Trinity, as a successor-in-interest to 

Frasure Creek, opposes McDonald’s motion for three reasons. Namely: 1) that McDonald’s 

initial 105(c)(3) complaint failed to assert any allegations against Frasure Creek; 2) that Frasure 

Creek was never properly served with McDonald’s initial 105(c)(3) complaint; and 3) that 

McDonald’s claims against Frasure Creek were discharged in bankruptcy. 

With respect to New Trinity’s first two objections, it is true that my March 12, 2015, 

dismissal order initially denied McDonald’s motion to add Frasure Creek based on the 

Commission’s holding in Hatfield. 37 FMSHRC 683 (Mar. 2015) (ALJ). However, upon 

revisiting this issue subsequent to the Commission’s remand, I find it significant that the caption 

of the Mine Safety and Health Administration’s (“MSHA”) December 5, 2013, letter declining to 

pursue McDonald’s discrimination complaint noted both TMK (King and Toler) and Frasure 

Creek. Shortly thereafter, McDonald’s January 7, 2014, 105(c)(3) complaint, filed with the 

Commission, identified both TMK (King and Toler) and Frasure Creek in its caption. 

Significantly, McDonald’s 105(c)(3) complaint reflects that copies were sent to: “USDOL, 

MSHA Mt. Hope; TMK Enterprise Security; Frasure Creek.” 

Additionally, the evidence further reflects that Frasure Creek communicated its 

dissatisfaction with McDonald’s performance as a security guard to King and Toler at or about 

the time McDonald was allegedly terminated. Letter from Vedat Ozsever, Director of Coal 

Processing, to Karen Payne (Sept. 9, 2013). Thus, when viewed in its entirely, the evidence of 

record demonstrates that McDonald, acting pro se at the time, adequately named Frasure Creek 

as a relevant party in her discrimination complaint. 

38 FMSHRC Page 1264
I am cognizant that McDonald has not formally sought to include New Trinity as a party 

to this matter. However, by their own admission New Trinity has identified itself as a successorin-interest to Frasure Creek. Thus, I construe McDonald’s motion to add Frasure Creek as a 

motion to add New Trinity as Frasure Creek’s successor. 

Regarding New Trinity’s argument that McDonald’s claims against Frasure Creek were 

discharged in bankruptcy, it is well-settled that the fundamental purpose of section 105(c) is to 

ensure, where discrimination has occurred, that “discriminatees are made whole.” See, e.g., 

McGlothlin v. Dominion Coal Corp., 38 FMSHRC __, slip op. at 2 (Mar. 30, 2016). The Mine 

Act’s goal would be thwarted if miners who are the victims of discrimination were left without a 

remedy when a successor steps into the shoes of a predecessor as a result of a bankruptcy 

proceeding. The issue of whether discrimination claims are not dischargeable in bankruptcy has 

been thoroughly addressed by Judge Moran in ongoing litigation before him. See Lowe v. Veris 

Gold USA, Inc., and Jerritt Canyon Gold, LLC, 38 FMSHRC __, slip op. at 6-11 (Mar. 14, 2016) 

(ALJ); Varady v. Veris Gold USA, Inc., and Jerritt Canyon Gold, LLC, 38 FMSHRC __, slip op. 

at 6-11 (Mar. 4, 2016) (ALJ). While I find it doubtful that discrimination claims can be 

discharged in bankruptcy, I need not definitively address this matter until such time as it is 

determined that McDonald has a meritorious claim against Frasure Creek. Thus, New Trinity’s 

motion to dismiss based on its assertion that Frasure Creek’s bankruptcy precludes any liability 

in this matter shall be denied as premature. 

Consequently, New Trinity, as a successor-in-interest to Frasure Creek, shall be 

included as a party at this stage of the proceeding. Inclusion of New Trinity at this point does 

not prejudice New Trinity’s opportunity to demonstrate that it is not, in fact, a proper party at the 

forthcoming evidentiary hearing. 

Given that testimony in an evidentiary hearing is necessary to ultimately resolve the issue 

of the proper parties to be included in this matter, in the interest of judicial economy, the hearing 

on this issue shall be consolidated with the hearing on the merits of McDonald’s discrimination 

complaint. 

ORDER

In view of the above, IT IS ORDERED that McDonald’s December 31, 2015, motion to 

amend her complaint to include George King, Mark Toler, Guardco Security, LLC, and New 

Trinity Coal, Inc., as a successor-in-interest to Frasure Creek Mining, LLC, IS GRANTED. 

IT IS FURTHER ORDERED that New Trinity’s motion to dismiss its participation in 

this matter as a successor-in-interest to Frasure Creek IS DENIED as premature. 

38 FMSHRC Page 1265
IT IS FURTHER ORDERED that the parties contact my law clerk, Avery Peechatka, at 

apeechatka@fmshrc.gov within 10 days of the date of this Order to provide their availability 

to schedule this matter for a hearing to commence no later than September 27, 2016. 

Finally, nothing herein should be construed as either, an ultimate finding with respect to 

the proper parties to be included in this matter, or a finding with regard to the merits of 

McDonald’s discrimination complaint. 

/s/ Jerold Feldman

Jerold Feldman 

Administrative Law Judge 

Distribution: (by regular and certified mail) 

Samuel B. Petsonk, Esq., Mountain State Justice, Inc., 1031 Quarrier Street, Suite 200, 

Charleston, WV 25301(counsel for Sandra G. McDonald)

David C. Stratton, Esq., Stratton Law Firm, PSC, P.O. Box 1530, Pikeville, KY 41502 (counsel 

for Guardco Security, LLC) 

Mark W. Kelley, Esq., Ray, Winton & Kelley, PLLC, 109 Capitol Street, Suite 700, Charleston, 

WV 25301 (counsel for New Trinity Coal, Inc.)

Mark Toler, P.O. Box 88, Delbarton, WV 25670 

George King, 1704 Jackson Avenue, St. Albans, WV 25177 

38 FMSHRC Page 1266
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May 25, 2016 

ORDER OF DISMISSAL 

Before: Judge Simonton 

This case is before me upon a discrimination complaint filed pursuant to section 

105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) by Ms. 

Jennifer Morreale (Complainant) against Veris Gold USA, Inc. (Respondent). 

On May 20, 2016, this court issued an Order Conditionally Approving Joint Withdrawal 

Motion stating that this matter would be dismissed with prejudice after confirmation of full 

satisfaction of the parties’ private settlement agreement. May 20, 2016 Order. On May 23, 

2016, Complainant and counsel for the Respondent both represented that the terms of the 

settlement agreement had been completed and satisfied.

Accordingly, this matter is DISMISSED with prejudice. 

/s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

SECRETARY OF LABOR, MSHA, 

 on behalf of JENNIFER MORREALE, 

 Complainant, 

 v. 

VERIS GOLD USA, INC., 

JERRITT CANYON GOLD, LLC, 

WHITEBOX MANAGEMENT, & 

ERIC SPROTT, 

 Respondents. 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2014-793-DM 

MSHA Case No.: WE MD 14-13 

Mine: Jerritt Canyon Mill 

Mine ID: 26-01621 

38 FMSHRC Page 1267
Distribution: (U.S. First Class Mail) 

Brad Mantel, U.S. Department of Labor, Office of the Solicitor, Division of Mine Safety and 

Health, 201 12th Street South, Suite 401, Arlington, VA 22202 

Niamh E. Doherty, Office of the Solicitor, U.S Department of Labor, 350 S. Figueroa Street, 

Suite 370, Los Angeles, CA 90071 

Jennifer Morreale, 686 Westcott Drive, Spring Creek, NV 89815 

Annette Jarvis, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 136 South Main 

Street, Suite 1000, Salt Lake City, UT 84101 

Mark R. Kaster, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 50 South Sixth Street, 

Suite 1500, Minneapolis, MN 55402 

Shaun Heinrichs, Veris Gold, 688 West Hastings Street, Suite 900, Vancouver, BC V6B 1P1, 

Canada 

Cathy L. Reece, Counsel for Whitebox Management, LLC, 2394 East Camelback Rd., Ste. 600, 

Phoenix, AZ 85016 

Tevia Jeffries, Dentons Canada LLP, Counsel for Bankruptcy Monitor, 250 Howe Street, 20th

Floor, Vancouver, BC V6C 3R8, Canada 

38 FMSHRC Page 1268
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May 26, 2016 

APPROVAL OF SETTLEMENT AND ORDERS TO COMPLY

Before: Judge Barbour 

! ! !

Pursuant to Section 105 (c)(2) of the Federal Mine Safety and Health Act of 1977, 30

U.S.C. § 815(c)(2), the Secretary of Labor (“the Secretary”) has filed an application for the 

temporary reinstatement of Kelly Rawley to the position of crusher supervisor at a portable 

crushing plant owned and operated by J.L. Sherman Excavation (“the company”). The Secretary 

seeks Mr. Rawley’s reinstatement pending a final disposition of Mr. Rawley’s complaint of 

discrimination in which Mr. Rawley asserts he was illegally laid off by the company in October 

2015 and then illegally denied re-employment in April 2016 when other company employees 

were called back to work. Upon the company’s failure to offer re-employment, Mr. Rawley filed 

the previously mentioned discrimination complaint with the Secretary’s Mine Safety and Health 

Administration (“MSHA”). A copy of the complaint is attached to the Secretary’s application. In 

the complaint, Mr. Rawley states: 

I was the crusher supervisor . . . until October 6, 2015[.] 

I had an ongoing argument about the brakes on the [No. 51] 

980 front end loader . . . . An MSHA Inspector showed up 

that day and I was told by the owner[,] Jeff Sherman[,] 

do not talk to that inspector because I talk to[o] much[.] 

We argued and I was fired[.] 

On [November 24, 2015, I withdrew my [previous] 

discrimination complaint based on my return as 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

on behalf of KELLY RAWLEY, 

 Complainant, 

 v. 

J.L. SHERMAN EXCAVATION,

 Respondent.

TEMPORARY REINSTATEMENT 

PROCEEDING: 

Docket No. WEST 2016-467-DM 

MSHA Case No. WE MD 16-07 

Mine ID: 45-03100 

Mine: J.L. Sherman Excavation 

38 FMSHRC Page 1269
crusher supervisor in the spring which will 

apparently not happen.[1]. 

Application, Exh. A. 

In April 2016, Mr. Rawley filed a second discrimination complaint which MSHA. The 

agency assigned Owens to investigate the complaint. Owens concluded evidence exists that Mr. 

Rawley was prevented from speaking with an MSHA inspector and was permanently let go in 

part because he complained about safe working conditions with regard to the No. 51 980 front 

end loader. Therefore, Owens found that Mr. Rawley’s complaint was not frivolously brought. 

Upon learning of this determination, the Secretary, through counsel, filed the subject application 

to temporarily reinstate Mr. Rawley pending a final resolution of Mr. Rawley’s April 2016 

complaint. 

The Commission’s Chief Judge assigned the case to the court, and the court, through its 

law clerk, contacted counsels to schedule a conference call. The court intended to propose an 

expedited date for hearing the application. However, before the call was made, counsels advised 

the court’s law clerk that they agreed to settle the application by economically reinstating Mr. 

Rawley until a determination can be made by MSHA if Mr. Rawley’s complaint has merit and, if 

so, until a hearing on Mr. Rawley’s discrimination complaint can be held and the matter can be 

finally decided. On May 23, 2016, the court received the parties Settlement Agreement and Joint 

Motion for Temporary Economic Reinstatement. The pertinent terms of the agreement are as 

follows: 

4.) [The company] agrees to economically reinstate Mr. Rawley to his position as a 

crusher supervisor, effective upon the approval of this Settlement and Order . . . .

[The company] agrees to pay Mr. Rawley at his regular rate of pay for $19 per 

hour for the first 40 hours per week and $28 per hour over 40 [hours] per work 

week subject to normal deductions. [The company] agrees to pay Mr. Rawley for 

44 hours per week. 

5.) [The company] shall provide benefits (if any, including but not limited to health 

insurance, retirement plan, and seniority accrual) associated with Mr. Rawley’s 

employment and consistent with those provided pre-termination. [The company] 

may deduct all applicable tax withholdings and other withholdings on the same 

basis as generally required for payment of other benefits pursuant to its policies 

and practices applicable to other employees. 

1

 According to MSHA’s investigator, Corey Owens, Mr. Rawley’s original 

discrimination complaint was filed on November 12, 2015. Application, Exh. B 3. Owens states 

that after Mr. Rawley filed the complaint he was told by a company representative that he had 

not been fired. Instead, the representative described his work hiatus as a “layoff” and told Mr. 

Rawley that he would be brought back to work in 2016 when the mine’s seasonal closure ended. 

Id. However, on April 12, 2016, Mr. Rawley learned that he would not be brought back to work. 

Id.

38 FMSHRC Page 1270
6.) The first payment shall be due to Mr. Rawley on [the company’s] first regular 

weekly pay day after the date of approval of this Settlement Agreement an 

administrative law judge. All subsequent payments shall be due on [the 

company’s] regular weekly pay days. All payments shall be made by regular 

payroll or certified check to “Kelly Rawley” and sent to the following address: 

Kelly Rawley 

P.O. Box 0045 

Laclede, ID 83841 

Proof of each payment shall be forwarded by email within five days to 

brown.bruce.1@dol.gov. 

7.) [The company] agrees to provide a neutral job reference for Mr. Rawley if 

contacted by potential employers. 

8.) If [the company] fails to provide payment and benefits as required by this 

Settlement Agreement and Motion . . . the Commission may sanction [the 

company]. 

9.) Mr. Rawley’s economic temporary reinstatement shall terminate upon a finding by 

the Secretary that Section 105(c)(1) has not been violated. Alternatively, if the 

Secretary finds that the discrimination complaint has merit and the Secretary files 

a Complaint of Discrimination pursuant to Section 105(c)(2) with the 

Commission, Mr. Rawley’s economic temporary reinstatement shall expire only 

after entry of a final order on the Complaint. 

APPROVAL OF THE SETTLEMENT 

The settlement protects the economic interest of Mr. Rawley while the merits of his 

discrimination complaint are determined. At the same time, it recognizes the limits of Mr. 

Rawley’s proposed economic reinstatement. For these reasons, the court concludes the 

settlement faithfully reflects the purpose of section 105(c)(2), and the agreement IS 

APPROVED. 

ORDER

THE COMPANY’S REQUIREMENTS UNDER THE ORDER 

Given the court’s approval of the settlement the company SHALL comply in full with 

the terms of the settlement agreement. In particular it SHALL:

(1) Economically reinstate Mr. Rawley to his position as a crusher supervisor, effective the 

date of this Order and it SHALL pay Mr. Rawley at his regular rate of pay of $19 per 

hour for the first 40 hours per week and $28 per hour over hours over 40 hours per week, 

subject to normal deductions, and it SHALL PAY Mr. Rawley for 44 hours per week 

each week that he is economically reinstated; 

38 FMSHRC Page 1271
(2) Provide benefits (if any, including but not limited to health insurance, retirement plan, 

and seniority accrual) associated with Mr. Rawley’s employment and consistent with 

those provided pre-termination. [The company] may deduct all applicable tax 

withholdings and other withholdings on the same basis as generally required for payment 

of other benefits pursuant to its policies and practices applicable to other employees; 

(3) Pay Mr. Rawley his first payment on [the company’s] first regular weekly pay day after 

the date of this Approval and Order. All subsequent payments SHALL be due on [the 

company’s] regular weekly pay days. All payments SHALL be made by regular payroll 

or certified check to “Kelly Rawley” and SHALL be sent to the address specified in the 

agreement. The company SHALL forward proof of each payment by email to 

brown.bruce.1@dol.gov within five days of each payment; 

(4) Provide a neutral job reference for Mr. Rawley to any potential employer. 

THE SECETARY’S REQUIREMENTS UNDER THE ORDER

To expedite the Secretary’s consideration of Mr. Rawley’s complaint, the Secretary 

SHALL no later than 60 days from the date of this Order, advise Mr. Rawley, the company, and 

the court as to its determination whether section 105(c)(1) has been violated. If the conclusion 

of the Secretary is that the company did not violate section 105(c)(1), Mr. Rawley’s temporary 

economic reinstatement SHALL end and from that time forward the company will be under no 

obligation to pay Mr. Rawley or to comply with any other provisions of the agreement. If the 

Secretary concludes Mr. Rawley’s discrimination complaint has merit and that the company 

violated section 105(c)(1), the Secretary SHALL forthwith file a discrimination complaint with 

the Federal Mine Safety and Health Review Commission on Mr. Rawley’s behalf. 

/s/ David F. Barbour 

David F. Barbour 

Administrative Law Judge 

Distribution: (Certified Mail) 

Bruce L. Brown, Associate Regional Solicitor, U.S. Department of Labor, Office of the Solicitor, 

300 Fifth Avenue, Suite 1120 Seattle, WA 98104 

Robin R. McCroskey, Esq., 405 W. Walnut, Suite 4, Newport, WA 99156 

Kelly Rawley, P.O. Box 0045, Laclede, ID 83841 

/db 

38 FMSHRC Page 1272