JANUARY AND FEBRUARY 2009 

COMMISSION DECISIONS AND ORDERS 

01-08-2009 Martin Marietta Materials, Inc. SE 2008-991-M Pg. 1 

01-08-2009 Delta Sand & Gravel Co. WEST 2008-1103-M Pg. 4 

01-12-2009 Left Fork Mining Company KENT 2008-1111 Pg. 8 

01-12-2009 Southwest Rock Products, LLC. WEST 2009-51-M Pg. 14 

01-13-2009 Lopke Quarries, Inc. KENT 2008-1561-M Pg. 17 

01-13-2009 18 Karat, Inc. PENN 2008:-580 Pg. 20 

01-13-2009 Craig & Company, LLC. SE 2008-960-M Pg. 23 

01-13-2009 Dynatec Mining Corporation SE 2008-990-M Pg. 26 

01-13-2009 Twentymile Coal Company WEST 2008-991 Pg. 29 

01-15-2009 Dusek Sand & Gravel, Inc. CENT 2008-357-M Pg. 32 

01-15-2009 Dyno Nobel, Inc. KENT 2008-1580 Pg. 35 

01-15-2009 Ancient Sun, Inc. PENN 2008-581 Pg. 38 

01-15-2009 West Coast Aggregates, Inc. WEST 2008-1496-M Pg. 41 

01-1~-2009 ChamplainStone, Ltd. YORK 2008-238-M Pg. 44 

01-22-2009 Petra Materials CENT 2008-735-M Pg. 47 

01-22-2009 Highland Mining Company, LLC. KENT 2009-1 Pg. 51 

01-22-2009 Alaska Mechanical, Inc. WEST 2008-1582-M Pg. 54 

01-27-2009 Luminant Mining Company, LLC. CENT 2008-726 Pg. 58 

01-29-2009 Sec. Labor o/b/o Lawrence Pendley v. 

Highland Mining Company KENT 2008-506-D Pg. 61 

02-02-2009 Freeman Rock, Inc. WEST 2008-1548-M Pg. 91 

02-02-2009 Brody Mining, LLC. WEV A 2008-1861 Pg. 95 

02-03-2009 Estacada Rock Products WEST 2008-812-M Pg. 99 

02-04-2009 Lafarge Building Materials, Inc. SE 2009-95-M Pg. 102 

02-04-2009 Endurance Mining WEV A 2008-267 Pg. 105 

02-05-2009 Standard Sand & Silica Company SE 2008-546-M Pg. 108 

02-05-2009 Ruscat Enterprises, Inc. WEVA 2008-143 Pg. 112 

02-11-2009 Oak Grove Resources, LLC. SE 2009-20 Pg. 115 

02-22-2009 J & T Services SE 2008-49-M Pg. 118 

02-11-2009 Bill Baltrusch Construction, Inc. WEST 2009-203-M Pg. 121 

02-11-2009 Wolf Run Mining Company WEV A 2008-259 Pg. 124 

02-12-2009 Southern Industrial Constructors SE 2008-923-M Pg. 127 

02-17-2009 ISP Minerals, Inc. CENT 2008-714-M Pg. 130 

02-17-2009 Omis Ricky Smith KENT 2008-1482 Pg. 133 

i 

ADMINISTRATIVE LAW JUDGE DECISIONS 

01-02-2009 

01-26-2009 

01-27-2009 

01-28-2009 

02-02-2009 

02-02-2009 

02-04-2009 

02-11-2009 

02-12-2009 

02-19-2009 

02-26-2009 

02-26-2009 

Cumberland Coal Resources, LP 

R S & W Coal Company, et al. 

Eastern Associated Coal Corporation 

Coal River Mining, LLC. 

Webster County Coal, LLC. 

Richard Jaimes v. Stansley Mineral Resources 

Powder River Coal, LLC. 

CCC Group, Inc. 

Holcim (US) Incorporated 

D&H Gravel 

West Ridge Resources, Inc. 

Wolf Run Milling Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

02-17-2009 United Taconite, LLC. 

ii 

PENN 2008-51-R 

PENN 2009-97-R 

WEVA 2007-335 

WEV A 2006-125-R 

KENT 2007-451 

LAKE 2008-486-DM 

WEST 2007-898-R 

WEST 2008-124 

SE 2007-154-M 

LAKE 2008-219-M 

WEST 2009-504-R 

WEV A 2008-804 

LAKE 2008-93-RM 

Pg. 137 

Pg. 168 

Pg. 174 

Pg. 192 

Pg.219 

Pg.237 

Pg.243 

Pg.261 

Pg.269 

Pg.272 

Pg.287 

Pg.306 

Pg.312 

JANUARY AND FEBRUARY 2009 

Review was granted in the following cases during the months of January and February 2009: 

Secretary of Labor, MSHA v. Dusek Sand & Gravel, Inc., Docket No. CENT 2008-357-M. (Judge 

Melick, unpublished Default order issued December 8, 2008) 

Secretary of Labor, MSHA v. Aracoma Coal Company, Docket Nos. WEVA 2006-654, et al. 

(Judge Lesnick, December 23, 2008) 

Secretary of Labor, MSHA v. Cumberland Coal Resources, LP, Docket Nos. PENN 2008-51-R, et 

al. (Judge Zielinski, January 2, 2009) 

No case was filed in which review was denied during the months of Januazy and Februazy 2009: 

iii 

COMMISSION DEQSIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 8, 2009 

Docket No. SE 2008-991-M 

A.C. No. 31-02009-155842 

MARTIN MARIETTA MATERIALS, INC. 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S. C. 

§ 801 et seq. (2000) ("Mine Act"). On September 4, 2008, the Commission received from 

Martin Marietta Materials, fuc. ("Martin Marietta") a motion by counsel requesting reopening of 

a proposed penalty assessment that had become a final order of the Commission pursuant to 

section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 1 

On July 3, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Penalty Assessment No. 000155842 to Martin Marietta. The 

operator states that it timely contested the proposed assessment. Martin Marietta further submits 

that, by a letter dated August 26, 2008, MSHA stated that the proposed assessment had not been 

timely contested. 

1 Under section I 05( a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

31 FMSHRC I 
The Secretary has subsequently informed the Commission that Assessment No. 

000155842 is being treated by MSHA as a validly contested assessment. Consequently, there is 

no final Commission order with respect to this assessment to reopen, and this docket is 

dismissed. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC2 
Distribution: 

Karen L. Johnston, Esq. 

Jackson Kelly PLLC 

I 099 I 81

h Street, Suite 2150 

Denver, CO 80202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, 

MSHA, 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

·Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety& Health Review Commission 

601 New JerseyAvenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC3 
FED.ERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

DELTA SAND & GRAVEL CO. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 8, 2009 

Docket No. WEST 2008-1103-M 

A.C. No. 35-00481-131566 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER 

BY: Jordan and Cohen, Commissioners 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq, (2000) ("Mine Act"). On June 2, 2008, the Commission received from Delta Sand 

& Gravel Co. ( .. Delta") a motion by counsel seeking to reopen a penalty assessment that had 

become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. 

§ 815(a). 

Under section 105( a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

On February 26, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued a proposed penalty assessment to Delta for two citations MSHA had issued to 

Delta in November 2007. Delta requests reopening on the ground that the citations were related 

to a fatal accident, and Delta intended to contest the penalty assessments, as it later did in the 

case of another assessment resulting from that accident. Delta states that its failure to contest 

was due to office personnel not realizing the connection between the assessment and the 

accident, so they did not forward the assessment to the company's Risk Manager. Delta alleges it 

forwarded the assessment through its payment process, but the assessment was never paid, and 

later Delta received a delinquency notice. The Secretary states that she does not oppose Delta's 

request to reopen the penalty. 

31 FMSHRC4 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R 

§ 2700.l(b) ("the Commission and its Judges shall be guided so 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). 

While Delta's request for relief addresses the mistake that led to its failure to return the 

assessment form to MSHA, its motion is silent regarding why the assessment sat apparently 

unpaid for months, despite having been routed through Delta's payment process. Consequently, 

we deny Delta's request to reopen without prejudice. Cf Twentymile Coal Co., 30 FMSHRC 

177, 178 {Apr. 2008) (denying without prejudice motion to reopen by operator that explained late 

payment of penalties but failed to address its separate failure to return contest form). 

fu the event Delta chooses to refile its request to reopen, we would expect it to provide, 

by submitting affidavits; detailed evidence regarding what happened when the assessment was 

routed to the payment office and why staff there failed to pay it or forward it to the appropriate 

personnel. 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC5 
Chairman Duffy and Commissioner Young: 

Having reviewed Delta's request and the Secretary's response, we would not deny the 

request on the grounds stated by our two colleagues, but would instead remand this matter to the 

Chief Administrative Law Judge for a determination of whether good cause exists for Delta's 

failure to timely contest the penalty proposal and whether relief from the final order should be 

granted.1 

1 Where two Commissioners have voted to deny without prejudice a request to reopen a 

C3$e and two Commissioners have voted to remand the case for a determination of whether good 

cause exists to reopen the case, the effect of the split vote is that the request to reopen is not 

granted. However, we believe that the party seeking a reopening in such a situation may file a 

new request to reopen which provides additional support for its position. 

31 FMSHRC6 
Distribution: 

Adele L. Abrams, Esq. 

Law Office of Adele L. Abrams, P.C. 

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31FMSHRC7 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 12, 2009 

Docket No. KENT 2008-1111 

A.C. No. 15-12564-125861 

Docket No. KENT 2008-1181 

A.C. No. 15-12564-127886 

LEFT FORK MINING COMP ANY, INC. Docket No. KENT 2008-1182 

A.C. No; 15-12564-130206 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER 

BY: Jordan, Young, and Cohen, Commissioners 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2000) ("Mine Act"). 1 On May 28, and June 20, 2008, the Commission received 

frpm Left Fork Mining Company, Inc. ("Left Fork") a letter and motions seeking to reopen 

penalty assessments that had become final orders of the Commission pursuant to section 105( a) 

of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105( a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

On August 28, 2007, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000125861 to Left Fork, proposing civil penalties 

for several citations, including 27 citations currently at issue. On October 2, 2007, MSHA issued 

Proposed Assessment No. 000127886 to Left Fork for six citations, including two citations 

1 Pursuant to Commission Procedural Rule 12, on our own motion, we hereby 

consolidate Docket Nos. KENT 2008-1111, KENT 2008-1181, and KENT 2008-1182, as all 

dockets involve similar procedural issues and similar factual backgrounds. 29 C.F.R. § 2700.12. 

31FMSHRC8 
presently at issue. On October 30, 2007, MSHA issued Proposed Assessment No. 000130206 to 

Left Fork for several citations, including four citations presently at issue. 

On November 29, 2007, MSHA issued a Notice of Delinquency to Left Fork pertaining to 

Proposed Assessment No. 000125861. On December 26, 2007, MSHA issued a Notice of 

Delinquency to Left Fork pertaining to Proposed Assessment No. 000127886. On January 30, 

2008, MSHA issued a Notice of Delinquency to Left Fork pertaining to Proposed Assessment 

No. 000130206. 

On May 13, 2008, counsel for MSHA sent Left Fork a letter pertaining to the 

delinquencies of all three proposed assessments. In this letter, MSHA stated that the total unpaid 

delinquencies amounted to $76,897.79, including statutory interest and administrative fees. 

MSHA further stated that unless payment was made by May 27, 2008, it would issue a citation 

under section 104(a) of the Mine Act charging Left Fork with a failure to comply with the 

Commission's final orders and for failing to comply with sections 105 and HO(j) of the Mine 

Act. MSHA also stated that ifLeft Fork should fail to abate the section 104(a) citation, it would 

necessitate the issuance of a mine closure order. 

On May 28, 2008, the Commission received a letter from Left Fork's safety director, 

stating with respect to Proposed Assessment No. 000125861 that Left Fork did not receive a 

conference regarding the citations on the proposed assessment form that it had "checked for 

contest." Left Fork alleged that MSHA was seeking payment of penalties associated with the 

citations that Left Fork indicated it was contesting, and that there had been an error. The 

Secretary responded that Left Fork failed to make a showing of exceptional circumstances 

required to obtain reopening under Fed. R. Civ. P. 60(b ). She further stated that MSHA had no 

record of having received a contest of the proposed assessment. The Secretary requested that the 

Commission provide the operator with an opportunity to satisfy the requirements for reopening. 

On June 20, 2008, the Commission received from Left Fork's counsel a memorandum 

responding to the Secretary's statement that the operator be given an opportunity to satisfy the 

requirements for reopening with respect to Proposed Assessment No. 000125861. On that same 

date, the Commission received motions to reopen from Left Fork's counsel with respect to 

Proposed Assessments Nos. 000127886 and 000130206. 

In all three pleadings, Left Fork's counsel states that, upon receipt of the proposed 

assessments, the assessment forms were marked to indicate Left Fork's intent to contest the 

penalties associated with several citations, and then forwarded to Left Fork's Brookside office, 

consistent with company policy~ Counsel maintains that "[t]hrough inadvertence or mistake," the 

completed assessment forms were not timely returned to MSHA. Counsel attached to the 

pleadings affidavits by Tony Nelson, Jr., Left Fork's safety director, in which the safety director 

states in part that "[b ]ecause of a misunderstanding, personnel formerly employed in the 

Brookside office paid the uncontested penalties but apparently did not return the assessment 

cards to MSHA as contested." 

31 FMSHRC9 
On July 2, the Commission received responses to the three pleadings from the Secretary, 

in which the Secretary opposed the operator's requests to reopen the penalty assessments. The 

Secretary states that the operator does not explain how or why a mistake occurred in the 

Brookside office, but merely asserts that a mistake occurred. She submits that such a conclusory 

assertion is insufficient to establish exceptional circumstances that warrant reopening. In 

addition, the Secretary states that the operator failed to identify facts that, if proven on reopening, 

would establish a meritorious defense. She further states that the operator failed to explain why, 

after it was sent the Notices of Delinquency in each of the three cases many months earlier, it 

took as long as it did to request the reopenings. In this regard, the Secretary noted the letter sent 

by her counsel on May 13, 2008. The Secretary submits that the operator's filing of requests to 

reopen only when facing enforcement action does not demonstrate good faith. 

On July 22, the Commission received from Left Fork a reply to the Secretary's responses. 

Left Fork asserts that, contrary to the Secretary's assertions, it did explain how or why a mistake 

occurred at the Brookside office. It states that the explanation was set forth in the safety 

director's affidavit when he stated that he intended to contest the penalties but that "[ f]or reasons 

unknown" the proposed assessment was not returned to MSHA. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105( a). Jim 

·Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of inadvertence or mistake. · See 29 C.F .R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have noted that Rule 60(b) "is a tool 

which ... courts are to use sparingly .... " Atlanta Sand & Supply Co., 30 FMSHRC 605, 608 · 

(July 2008) (citing JWR, 15 FMSHRC at 789). We have also observed, however, 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). 

Having reviewed Left Fork's filings and the Secretary's responses, we agree with the 

Secretary that Left Fork has failed to make a showing of circumstances that warrant reopening. 

The operator's conclusory statements that its failure to timely file was due to "inadvertence or 

mistake" do not provide the Commission with an adequate basis to justify reopening. Even after 

the Secretary opposed Left Fork's motion on the grounds that it had set forth only a conclusory 

assertion in its attempt to justify relief, the operator merely responded that "[ f]or reasons 

unknown, the proposed assessments wete not returned as contested." L.F. Reply at 2. 

In addition, Left Fork fails to explain its failure to act after receiving Notices of 

D¢linquency in November, December, and January. Rather, the record reveals that the operator 

did not seek relief until it faced the enforcement action described in MSHA's May 13, 2008 letter 

31FMSHRC10 
to the operator, including potential mine closure. Despite the receipt of a Notice of Delinquency 

in each of the three penalty assessments, Left Fork did not seek reopenings until approximately 

eight months after each of them became final, and approximately six months after MSHA 

notified the operator of its delinquencies in the three cases. 

Left Fork, as the movant, carries the burden of establishing its entitlement to 

extraordinary relief. Delay in seeking that relief, if unexplained, has been a relevant 

consideration in denial of motions to reopen. See Central Operating Co. v. Utility Workers of 

America, 491F.2d245, 253 (4th Cir. 1974) (finding "inexcusable dereliction"and denying 

motions to vacate when defendants waited almost four months after receivingJtotice of default 

judgments); see also McLawhorn v. John W. Daniel & Co., 924 F.2d 535, 538 (4th Cir. 1991) 

(finding that unexplained delay of three-and-a-half months was not reasonable). 

Left Fork has provided no explanation for what cannot be objectively viewed as a prompt 

and diligent response, including its failure to seek relief of any type from the final orders until 

after MSHA threatened further enforcement action and closing the mine for non-payment. 

Accordingly, we deny Left Fork's requests. 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC11 
Chairman Duffy; dissenting: 

While I agree with the majority that Left Fork has not been as responsive as it could and 

should have been regarding its failure to return the contest forms, and has thus far failed to 

explain why it waited so long to act after MSHA had sent it delinquency notices, I do not agree 

that the operator's failures justify denial of its requests to reopen with prejudice. Rather; I would 

deny the requests without prejudice, to allow Left Fork, should it choose to renew its requests to . 

reopen, the opportunity to explain why it waited five to six months following its receipt of 

delinquency notices before filing its original requests to reopen. See Pinnacle Mining Co., 

Docket Nos. WEVA 2008-927, etc., slip op. at 4 (Dec. 17, 2008) (denying without prejudice 

requests to reopen ten assessments, totaling over $250,000 in proposed penalties, that had gone 

final because of operator inaction, and noting that any renewed request for reopening should 

address, among other matters, the operator's actions following the receipt of delinquency notices 

regarding nine of the assessments). 

31FMSHRC12 
Distribution: 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

John M. Williams, Esq. 

Rajkovich, Williams, Kilpatrick & True, PLLC 

2333 Alumni Park Plaza, Suite 310 

Lexington, I(Y 40517 

Melanie J. Kilpatrick, Esq. 

Rajkovich, Williams, Kilpatrick & True, PLLC 

2333 Alumni Park Plaza, Suite 310 

Lexington, KY 40517 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31FMSHRC13 
FED.ERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 12, 2009 

Docket No. WEST 2009-51-M 

A.C. No. 02-03111-141339 

SOUTHWEST ROCK PRODUCTS, LLC 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2000) ("Mine Act"). On October 16, 2008, the Commission received from 

Southwest Rock Products, LLC ("Southwest") a request to reopen two penalty assessments that 

had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 

U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary supports reopening of the proposed penalty assessments in order that the 

parties' agreement to settle the assessments can be approved. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed 

31FMSHRC14 
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). 

Having reviewed Southwest's request and the Secretary's response, we grant reopening 

and hereby remand this matter to the Chief Administrative Law Judge to rule on the motion for 

approval of the settlement attached to the Secretary's response. 

Mich 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC15 
Distribution: 

Christopher Reinesch 

Southwest Rock Products, LLC 

745 N. Gilbert Rd., #124-304 

Gilbert, AZ 85234 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31FMSHRC16 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION·(MSHA) 

v. 

LOPKE QUARRIES, JNC. 

SUITE9500 

WASHINGTON, DC 20001 

January 13, 2009 

Docket No. KENT 2008-1561-M 

A.C. No. 15-00101-136796 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2000) ("Mine Act"). On September 9, 2008, the Commission received from Lopke 

Quarries, fuc. ("Lopke") a request to reopen a penalty assessment that had become a final order 

of the Commission pursuant to section 105(a) of the.Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). fu evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the.basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have 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 

31FMSHRC17 
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed Lopke's request and the Secretary's response, in the interests of justice, 

we hereby remand this matter to the Chief Administrative Law Judge for a determination of 

whether good cause exists for Lopke' s failure to timely contest the penalty proposal and whether 

relief from the final order should be granted. If it is determined that such relief is appropriate, 

this case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 

C.F.R. Part 2700. 

Michael~ ~~~ fly, Chairm~ ~ 

Michael 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC18 
Distribution: 

William K. Doran, Esq. 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 

2400 N Street NW, 5th Floor 

Washington, DC 2003 7 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor, West 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31FMSHRC19 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

18 KARAT, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 13, 2009 

Docket No. PENN 2008.;580 

A.C. No. 36.:.07230-148541 SIS 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2000) ("Mine Act"). On September 2, 2008, the Commission received from 

18 Karat, fuc. ("Karat") a request to reopen a penalty assessment that had become a final order of 

the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section I 05( a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). fu evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed 

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause 

31 FMSHRC20 
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). 

Having reviewed Karat's request and the Secretary's response, in the interests of justice, 

we hereby remand this matter to the Chief Administrative Law Judge for a determination of 

whether good cause exists for Karat's failure to timely contest the penalty proposal and whether 

relief from the final order should be granted. If it is determined that such relief is appropriate, 

this case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 

C.F.R. Part 2700. 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC21 
Distribution: 

Peter J. Magnotta, Controller 

18 Karat, Inc. 

211 Mitchell Road 

Eighty Four, PA 15330 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC22 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CRAIG & COMPANY, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 13, 2009 

Docket No. SE 2008-960-M 

A.C. No. 31-02143-134329 Q615 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (2000) ("Mine Act"). On August 15, 2008, the Commission received from Craig & 

Company, LLC ("Craig") a request to reopen a penalty assessment that had become a final order 

of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section IOS(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR''). In evaluating requests to 

reopen final section IOS(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from 

a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See 

29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by 

the Federal Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed that 

default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a 

31FMSHRC23 
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). 

Having reviewed Craig's request and the Secretary's response, in the interests of justice, 

we hereby remand this matter to the Chief Administrative Law Judge for a determination of 

whether good cause exists for Craig's failure to timely contest the penalty proposal and whether 

relief from the final order should be granted. If it is determined that such relief is appropriate, this 

case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F .R. 

Part 2700. 

Mich ~ a el 

~~ F ----

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC24 
Distribution: 

Adele L. Abrams, Esq. 

Law Office of Adele L. Abrams, P.C. 

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th-Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC25 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 13, 2009 

Docket No. SE 2008-990-M 

A.C. No. 40-00864-154105 

DYNATEC MINING CORPORATION 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2000) ("Mine Act"). On September 4, 2008, the Commission received from 

Dynatec Mining Corporation ("Dynatec") a request to reopen a penalty assessment that had 

become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. 

§ 815(a). 

Under section 105( a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

:frQm a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed 

31 FMSHRC26 
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). 

Having reviewed Dynatec's request and the Secretary's response, in the interests of 

justice, we hereby remand this matter to the Chief Administrativ:.e Law Judge for a determination 

of whether good cause exists for Dynatec 's failure to timely contest the penalty proposal and 

whether relief from the final order should be granted. If it is determiried that such relief is 

appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural 

Rules, 29 C.F.R. Part 2700. 

Michae 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC27 
Distribution: 

C. Gregory Ruffennach 

Attorney at Law 

1629 K Street 

Suite 300 

Washington, D.C. 20036 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Department of Labor 

1 l 00 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC28 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 13, 2009 

Docket No. WEST 2008-991 

A.C. No. 05-03836-141404 

TWENTYMILE COAL COMP ANY 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2000) ("Mine Act"). On May 8, 2008, the Commission received from Twentymile 

Coal Company (''Twentymile") a request to reopen a penalty assessment that had become a final 

order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105( a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

On February 26, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000141404, which proposed civil penalties for 

various citations issued to Twentymile. Twentymile states that it received the proposed 

assessment on March 3, 2008, but that its safety assistant, having miscalculated the number of 

days in March, mistakenly believed that the contest of the proposed penalties was to be submitted 

to MSHA by April 3, 2008, rather than by April 2. On April 2, Twentymile's safety assistant 

sent, by overnight mail, its contest indicating which proposed penalties it wished to contest. 

Twentymile submits that on April 21, 2008, MSHA sent a delinquency notice stating that the 

proposed penalty assessment had not been timely contested. 

31 FMSHRC29 
The Secretary states that she does not oppose Twentymile's request for relief. 

We conclude that Twentymile's contest of the proposed penalty assessment was timely 

filed. Twentymile's allegation that it received Pr,oposed Assessment No. 000141404 on March 3, 

2008, is supported by MSHA' s delinquency notice dated April 21, 2008, which also states that 

Twentymile received the proposed penalty assessment on March 3. Under the Mine Act and 

Commission Procedural Rule :26, the deadline for filing Twentymile's contest was April 2, 2008. 

When filing is by mail; filing is effective upon mailing. 29 C.F.R. § 2700.5(e)(2). Here, the 

record reveals that Twentymile mailed its contest by overnight mail on April 2, 2008. 

For the foregoing reasons, we conclude that the proposed penalty assessment has not 

become a final order of the Commission because Twentymile timely contested it. We deny 

Twentymile's motion as moot and remand this matter to the Chief Administrative Law Judge for 

further proceedings as appropriate pursuant to the Mine Act and the Commission's Procedural 

Rules, 29 C.F.R. Part 2700. See State of Alaska Dep 't of Transp. and Pub. Facilities, 29 

FMSHRC 389, 390 (June 2007). 

A. 

.~~ Michae1:llffY,Chairll~~ 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC30 
Distribution: 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center 

Suite 1340 

40 I Liberty Avenue 

Pittsburgh, PA 15222 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd. 

Room2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC31 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MlNE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

DUSEK SAND & GRAVEL, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 15, 2009 

Docket No. CENT 2008-357-M 

A.C. No. 32-00153 .. 139261 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners 

DIRECTION FOR REVIEW AND 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 December 8, 2008, Administrative Law Judge Gary 

Melick entered an order of default against Dusek Sand & Gravel, Inc. (''Dusek") for its failure 

to file an answer to the Secretary of Labor's petition for assessment of civil penalty. On 

December 22, 2008, the Commission received a motion from the Secretary requesting that the 

Commission relieve Dusek from the order of default. 

The judge's jurisdiction in this matter terminated when his decision was issued on 

December 8, 2008. 29 C.F .R. § 2700.69(b ). Under the Mine Act and the Commission's 

procedural rules, relief from a judge's decision maybe sought by filing a petition for 

discretionary review within 30 days ofits issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. 

§ 2700. 70( a). If the Commission does not direct review within 40 days of a decision's 

issuance, it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(I). We construe 

the Secretary's motion to be a timely filed petition for review, which we grant. 

In her motion, the Secretary requests that Dusek's response to the Secretary's motion 

for summary judgment filed on November 26, 2008, be treated as an answer to the civil penalty 

petition and that the Commission reopen the case in order that the parties' agreement to settle 

the proposed penalty assessment can be approved. 

31 FMSHRC32 
In evaluating requests to reopen final section 105( a) orders, the Commission has found 

guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a 

party could be entitled to relief from a final order of the Commission on the basis of 

inadvertence or mistake. See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges shall be 

guided so far as practicable by the Federal Rules of Civil Procedure"); Highlands Mining & 

Processing Co., 24 FMSHRC 685, 686 (Dec. 2004). 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). 

Having reviewed the Secretary's motion, we hereby reopen this matter and remand it to 

Administrative Law Judge Melick for a determination of whether the motion for settlement 

should be approved, and for other appropriate relief pursuant to the Mine Act and the 

Commission's Procedural Rules, 29 C.F.R. Part 2700. See Tresca Brothers Sand &Gravel, 

Inc., 28 FMSHRC 494 (Aug. 2006). 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC33 
Distribution: 

Timothy S. Williams, Esq. 

Office of the Solicitor 

U.S. DepartmentofLabor 

1999 Broadway, Suite 1600 

Denver, CO 80202 

Wes R. Welch, Esq. 

201 Briggs A venue 

South, ParkRiver, ND 58270 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-~021 

Chief AdministrativeLaw Judge Robert.I. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C .. 20001-2021 

31FMSHRC34 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

DYNO NOBEL, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 15, 2009 

Docket No. KENT 2008-1580 

A.C. No. 15-18867-154605 RN6 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2000) ("Mine Act"). On September 16, 2008, the Commission received from 

Dyno Nobel, Inc. (''Dyno") a request to reopen a penalty assessment that had become a final 

order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) (''JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.l{b) ("the Commission and its Judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed 

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause 

31 FMSHRC35 
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). 

Having reviewed Dyno' s request and the Secretary's response, in the interests of justice, 

we hereby remand this matter to the Chief Administrative Law Judge for a determination of 

whether good cause exists for Dyno' s failure to timely contest the penalty proposal and whether 

relief from the final order should be granted. If it is determined that such relief is appropriate, 

this case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 

C.F.R. Part 2700. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC36 
Distribution: 

Adele L. Abrams, Esq. 

Law Office of Adele L. Abrams, P.C. 

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Rooi:n 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31FMSHRC37 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ANCIENT SUN, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 15, 2009 

Docket No. PENN 2008"".581 

A.C. No. 36-05208-149884 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety andHealth Act of 1977, 30 U.S.C. 

§ 801 et seq. (2006) (''Mine Act"). On September 2, 2008, the Commission received from 

Ancient Sun, Inc. (''Ancient Sun") a request to reopen a penalty assessment that had become a 

final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (''JWR."). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed 

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause 

31 FMSHRC38 
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). 

Having reviewed Ancient Sun's request and the Secretary's response, in the interests of 

justice, we hereby remand this matter to the Chief Administrative Law Judge for a determination 

of whether good cause exists for Ancient Sun's failure to timely contest the penalty proposal and 

whether relief from the final order should be granted. If it is determined that such relief is 

appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural· 

Rules, 29 C.F.R. Part 2700. 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC39 
Distribution: 

Brian J. Kahle, Esq. 

Minto Law Group, LLC · 

Two Gateway Center 

603 Stanwix Street, Suite 2025 

Pittsburgh, PA 15222 . 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 251

h Fl. 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC40 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMJNISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 15, 2009 

Docket No. WEST 2008-1496-M 

A.C. No. 04-02261-148716 

WEST COAST AGGREGATES, INC. 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2000)("Mine Act"). On September 3, 2008, the Commission received from West 

Coast Aggregates, Inc. ("West Coast") a request to reopen a penalty assessment that had become 

a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR."). In.evaluating requests to 

reopen final section 105( a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed 

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause 

31FMSHRC41 
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). 

Having reviewed West Coast's request and the Secretary's response, in the interests of 

justice, we hereby remand this matter to the Chief Administrative Law Judge for a determination 

of whether good cause exists for West Coast's failure to timely contest the penalty proposal and 

whether relief from the final order should be granted. If it is determined that such relief is 

appropriate, this case sb.all proceed pursuant to the Mine Act and the Commission's Procedural 

Rules, 29 C.F.R. Part 2700. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC42 
Distribution: 

Timothy R, Olsen, Esq. 

163 Montezuma Street 

Brighton, CO 80601 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Department of Labo~ 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

. Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC43 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CHAMPLAIN STONE, LTD. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 15, 2009 

Docket No. YORK 2008-238-M 

A.C. No. 30-02803-123963 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2000) ("Mine Act"). On September 24, 2008, the Commission received from 

Champlain Stone, Ltd. ("Champlain") a request to reopen a penalty assessment that had become 

a fmal order of the Commission pursuant to section 105( a) of the Mine Act, 30 U.S.C. § 815( a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR''). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700. l(b) (''the Commission and its Judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed 

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause 

31 FMSHRC44 
for a failure to· timely respond, the case may be reopened and appropriate proceedings on the 

merits pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed Champlain's request and the Secretary's response, in the interests of 

justice, we hereby remand this matter to the Chief Administrative Law Judge for a detennination 

of whether good cause exists for Champlain's failure to timely contest the penalty proposal and 

whether relief from the final order should be granted. If it is determined that such relief is 

appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural 

Rules, 29 C.F.R. Part 2700. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC45 
Distribution: 

Scott M. McKenna 

Champlain Stone, Ltd. 

P.O. Box 650 

Warrensburg,, NY 12885 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC46 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PETRA MATERIALS 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 22, 2009 

Docket No. CENT 2008-735-M 

A,C. No. 41-04518-157473 

Docket No. CENT 2008-736-M 

A.C. No. 41-04518-140610 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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"). 1 On September 5, 2008, the Commission received from 

Petra Materials ("Petra") a letter seeking to reopen penalty assessments that had become final 

orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

On February 14 and July 17, 2008, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued Proposed Penalty Assessment Nos. 000140610 and 

000157473, respectively, to Petra for several citations. On September 5, 2008, the Commission 

received from Petra a letter requesting that the cases be reopened so that the operator could 

contest and discuss the amounts of the penalties. The operator states that the date to contest the 

penalties had passed because it "did not know the procedures." 

1 Pursuant to Commission Procedural Rule 12, on our own motion, we hereby 

consolidate docket numbers CENT 2008-735-M and CENT 2008-736-M, both captioned Petra 

Materials and involving similar procedural issues. 29 C.F .R. § 2700.12. 

31 FMSHRC47 
On September 30, 2008, the Commii;sion received an opposition from the Secretary, in 

which the Secretary states that the operator made no showing of circumstances that warrant 

reopening. In addition, as to Docket No. CENT 2008-736-M, the Secretary notes that MSHA 

notified Petra by letter dated May 14, 2008, that it was delinquent in paying the proposed 

a$Sessment. She states that Petra fails to explain why it took three months to seek relief once it 

received the letter advising that it was delinquent in paying the penalties. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders wider section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

reopen final section 105( a) orders, the Commission has found guidance in Rule 60(b) under 

which, for example, a party could be entitled to relief from a final order of the Commission on 

the basis ofinadvertence or mistake. See 29 C:F.R. § 2700.l(b) ("the Commission and its Judges 

shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 

FMSHRC at 787. 

31 FMSHRC48 
Having reviewed Petra's request to reopen and the Secretary's response thereto, we agree 

with the Secretary that Petra has failed to provide a sufficiently detailed explanation for its failure 

to timely contest the proposed penalty assessments. Petra's conclusory statement that it failed to 

timely contest because it did "not know the procedures," and its failure to explain the delay in 

responding to the delinquency notice in Docket No. CENT 2008-736-M do not provide the 

Commission with an adequate basis to reopen. Accordingly, we deny without prejudice Petra's 

request. See, e.g., BRS Inc., 30 FMSHRC 626, 628 (July 2008); Eastern Associated Coal, LLC, 

30 FMSHRC 392, 394 {May 2008). The words ''without prejudice" mean Petra may submit 

another request to reopen the case so that it can contest the citations and penalty assessments.2 

Robert F. Cohen, Jr., Commissioner 

2 If Petra submits another request to reopen the cases, it must identify the specific 

citations and assessments it seeks to contest. Petra must also establish good cause for not 

contesting the citations and proposed assessments within 30 day8 from the date it received the 

proposed penalty assessments from MSHA. Under Rule 60(b) of the_ Federal Rules of Civil 

Procedure, the existence of "good cause" may be shown by a number of different factors 

including mistake, inadvertence, surprise or excusable fault on the part of the party seeking relief, 

or the discovery of new evidence, or fraud, misrepresentation or other misconduct by the adverse 

party. Petra should include a full description of the facts supporting its claim of"good cause," 

including how the mistake or other problem prevented Petra from responding within the time 

limits provided in the Mine Act, as part of its request to reopen the case. Petra should also 

explain its delay in responding to the delinquency notice in Docket No. CENT 2008-736-M. In 

addition, Petra should submit copies of supporting documents with its request to reopen the case. 

31 FMSHRC49 
Distribution: 

Raul Villa 

Petra Materials 

1600 E. Fourth Ave. 

El Paso, TX 79901 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Department of Labor1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC50 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMJNISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 22, 2009 

Docket No. KENT 2009-1 

A.C. No. 15-02709-146615 

HIGHLAND MINING COMPANY, LLC 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and flealth Act of 1977, 30 U.S.C. 

§ 801 et seq. (2006) ("Mine Act"). On October 1, 2008, the Commission received from 

Highland Mining Company, LLC ("Highland") a request to reopen a penalty assessment that had 

become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. 

§ 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). fu evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.l(b) c·the Commission and its Judges shall be guided so far as practicable 

31FMSHRC51 
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). 

Having reviewed Highland's request and the Secretary's response, in the interests of 

justice, we hereby remand this matter to the Chief Administrative Law Judge for a determination 

of whether good cause.exists for Highland's failure to timely contest the penalty proposal and 

whether relief from the final order should be granted. If it is determined that such relief is 

appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural 

Rules, 29 C.F.R. Part 2700. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC52 
Distribution: 

Michael T. Cimino, Esq. 

Jackson Kelly, PLC 

1600 Laidley Tower 

P.O. Box 553 

Charleston, WV 25322 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty 

U.S. Department of Labor 

MSHA 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC53 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY ANO HEALTH 

ADMINISTRATION (MSHA) 

v. 

ALASKA MECHANICAL, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 22, 2009 

Docket No. WEST 2008., 1582-M 

A.C. No. 50-01850-159018 LWI 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2000) ("Mine Act"). On September 25, 2008, the Commission received from 

Alaska Mechanical, Inc. ("Alaska Mechanical") a motion by counsel seeking to reopen a penalty 

assessment that may have become a final order of the Commission pursuant to section 105(a) of 

the Mine Act, 30 U.S.C. § 815(a). 

Under section 105( a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

On October 4, 2007, the Department of Labor's Mine Safety and Health Administration 

{'•MSHA") issued Citation Nos. 6398234 and 6398235 to Alaska Mechanical. Alaska 

Mechanical contested the citations, which are the subject of Docket Nos. WEST 2008-152-RM 

and WEST 2008-153~RM and are currently stayed. The operator states that it received Proposed 

Assessment No. 000159018, which proposed civil penalties for the citations, on August 11, 

2008, and thus its deadline for contesting the penalties was September 10, 2008. Alaska 

Mechanical further states that it sent its contest by Federal Express priority delivery on 

September 9, and that, contrary to the assertion in MSHA's delinquency notice that MSHA 

received the contest on September 12, a tracking slip indicates that MSHA received the contest 

on September 10. Alaska asserts that it timely submitted its contest and that MSHA 

miscalculated applicable deadlines. 

31FMSHRC54 
The Secretary states that she does not oppose Alaska Mechanical' s request to reopen. 

She notes, however, that MSHA records show that the operator received the proposed penalty 

assessment on August 8, 2008. She asserts that the operator's contest filed on September 9 was 

filed one day late. 

· We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R. 

§ 2700. l (b) ("the Commission and its Judges shall be guided so 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 defaultil!gparty 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). 

On the record presently before us, we are unable to determine whether Alaska Mechanical 

timely contested the proposed penalty assessment. Specifically, it is unclear on what date 

(August 8 or August 11, 2008) Alaska Mechanical received the proposed penalty assessment. 

If the company timely contested the proposed assessment, the proposed assessment has not 

become a final order of the Commission and the company's request for relief would be moot. DS 

Mine & Dev. LLC, 28 FMSHRC 462, 463 (July 2006). 

31FMSHRC55 
Accordingly, we remand this matter to the Chief Administrative Law Judge for a 

determination of whether Alaska Mechanical timely contested the proposed penalty assessment 

at issue. If it is determined that the company did file a timely contest, the Chief Judge shall order 

further proceedings as appropriate.pursuant to the Mine Act and the Commission's Procedural 

Rules, 29 C.F.R. Part 2700. If it is determined that Palmer failed to timely contest the proposed 

assessment, the Chief Judge shall determine whether good cause exists for granting relief from 

the final order. See Palmer Coking Coal Co., 30 FMSHRC _, No. WEST 2008-934-M {Dec. 

22, 2008). 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC56 
Distribution: 

Cole A. Wist 

Baker & Hostetler, LLP 

303 E. l 71

h Ave., Suite 1100 

Denver, CO 80203 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

U.S. Department of Labor 

1100 Wilson Blvd., 22"d Floor, Room 2220 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC57 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 27, 2009 

Docket No. CENT 2008-726 

A.C. No. 41-03660-153277 

LUMINANT MINJNG COMP ANY, LLC 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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 September 2, 2008, the Commission received from 

Luminant Mining Company, LLC ("Luminant") a motion by counsel seeking to reopen a penalty 

assessment that had become a final order of the Commission pursuant to section 105(a) of the 

Mine Act, 30 U.S.C. § 815(a). 

Under section l 05( a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

p~nalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

On June 11, 2008, the Department of Labor's Mine Safety and Health Administration 

is$ued Proposed Penalty Assessment No. 000153277 to Luminant, proposing a civil penalty for 

Cjtation No. 4542218. In its request, Luminant states that it intended to timely contest the 

proposed penalty but that it failed to do so due to "inadvertence and mistake by Company 

personnel." 

The Secretary opposes Luminant' s request to reopen. She states that the conclusory 

assertion of the cause for Luminant's failure to timely file does not constitute a showing of the 

circumstances required to obtain reopening under Fed. R. Civ. P. 60(b ). She requests that the 

Commission deny the operator's request to reopen. 

31 FMSHRC58 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). fu evaluatingrequests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); .!WR, 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). 

Having reviewed Luminant's motion to reopen and the Secretary's response, we agree 

with the Secretary that Luminant has failed to provide a sufficiently detailed explanation for its 

failure to timely contest the proposed penalty assessment. Luminant' s conclusory statement that 

its failure to timely file was due to "inadvertence and mistake" does not provide the Commission 

with an adequate basis to justify reopening. Accordingly, we deny without prejudice Luminant's 

request. See, e.g., Eastern Associated Coal, LLC, 30 Fl\4SHRC 392, 394 (May 2008); James 

Hamilton Constr., 29 FMSHRC 569, 570 (July 2007). 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC59 
Distribution: 

Laura E. Beverage, Esq. 

Jackson Kelly PLLC 

I 099 18th Street, Suite 2150 

D~nver, CO 80202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA . 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U,S. Department ofLabor1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC60 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

SUITE9500 

WASHINGTON, DC 20001 

January 29, 2009 

on behalf of LA WREN CE L. PENDLEY 

v. 

HIGHLAND MINING COMP ANY, LLC 

Docket Nos. KENT 2006-506-D 

KENT 2007-383-D 

BEFORE:. Duffy, Chairman; Jordan and Young, Commissioners1 

DECISION 

BY: Duffy, Chairman, and Young, Commissioner 

This consolidated proceeding involves discrimination complaints filed by the Secretary of 

Labor on behalf of Lawrence Pendley under section 105(C) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 815(C) (2006) ("Mine Act" or "Act"), against Highland Mining 

Company, LLC ("Highland") and its agents, David Webb, Larry Millburg, and Scott Maynard. 

Administrative Law Judge David Barbour determined that Highland and Webb 

discriminated against Pendley when they suspended him from work on December 21, 2005. 30 

FMSHRC 459, 498 (May 2008) (AU).2 The judge further determined that Highland and its 

agents did not discriminate against Pendley when he was suspended, with intent to discharge, on 

March 21, 2007. Id. at 499. The judge also found no merit to the Secretary's allegation ·of 

adverse changes in Pendley' s working conditions following his temporary reinstatement in June 

1 Commissioner Cohen did not participate in this matter. 

2 Highland did not appeal the judge's determination that it had discriminated against 

Pendley when it suspended him on December 20, 2005. The judge subsequently issued a final 

decision in which he determined the backpay due Pendley and imposed a civil penalty against 

Highland. 30 FMSHRC 500, 502 (June 2008) (ALJ). 

31FMSHRC61 
2007. Id. The Secretary appealed thejudge's determination that Highland did not discriminate 

against Pendley when it suspended him on March 21, 2007. Pendley appealed the judge's 

detennination that Highland did not discriminate against Pendley in his working conditions 

following his temporary reinstatement. For the reasons that follow, we affirm the judge's 

decision. 

I. 

Factual and Procedural Background3 

A. Incidents at the Mine Involving Pendley and Creighton 

Highland's No. 9 Mine is a large underground coal mine that employs approximately 300 

miners on two production shifts that mine coal six days a week. R. Ex. 25 at 1-2. Highland's 

miners are represented by the United Mine Workers of America (UMW A). Id. at 1. Lawrence 

Pendley is a non-production miner who is classified as a "maintenance parts runner." 30 

FMSHRC at 459-60. His responsibilities include delivering parts and supplies to underground 

miners. Id. at 462. 

Beginning in May 2005, Pendley' s job brought him in contact with Jack Creighton, who. 

worked above ground as a supply man and hoist man and also maintained the bathhouse. Id.; Tr. 

749. During the spring and summer of 2005, Pendley was involved in a series of events that he 

suspected Creighton had initiated. Pendley' s truck was damaged while parked in the mine 

parking lot. 30 FMSHRC at 463. Around the same time as the damage to Pendley's truck 

occurred, someone opened his locker in the bathhouse and poured bleach on his clothes. Id. He 

reported these incidents to management. Id. Sometime after Pendley reported the damage to his 

clothes, Pendley found dirt piled in front of his locker in the bathhouse. Id. Also, during this 

time period, Creighton was hosing down the floor when Pendley walked between Creighton and 

a row of lockers. Id. at 464. Pendley was sprayed, and his pants and feet got wet. Id. Pendley 

had problems with his cap light caused by the light going out. Id. at 465. Pendley believed that 

the reason was that "bad" bulbs were being placed in his cap lamp. Id. 

fu the summer of 2005, Creighton admittedly knew that Pendley had gone to management 

and complained about him. Id. at 464. In the bathhouse, Creighton confronted Pendley and 

threw a paper towel on the floor and told Pendley, "[T]here is something to cry about, go cry 

about that." Id.; Tr. 764. Creighton then saw Pendley reach into his locker and pull out what 

Creighton thought was a gun. 30 FMSHRC at 464. Creighton told Pendley that he would shove 

3 The record includes the transcript of the three days of hearing before Judge Barbour in 

this consolidated proceeding (Docket Nos. KENT 2007-383-D and KENT 2006-506-D). 

References to that transcript are designated "Tr." In addition, by agreement of the parties and the 

judge, the transcript of the one-day temporary reinstatement hearing (Docket No. KENT 2007-

2650) was also included in the record. References to that transcript are designated "TRH Tr." 

31 FMSHRC62 
the gun down Pendley's throat. Id. Pendley responded by "mouthing" at Creighton, who walked 

away. Id. About two or three weeks later, Creighton complained to operations manager Webb 

that Pendley had threatened Creighton that he had a gun in his locker or acted as ifhe had a gun 

in his locker. Id. 

Also during this period, Pendley complained about the operation of the "man," or hoist, 

cars on which he rode.4 30 FMSHRC at 465. Pendley complained numerous times to assistant 

superintendent Maynard that Creighton had unnecessarily stopped and then restarted the man 

cars when Pendley was on board. Id. Pendley also complained that, when Creighton was at the· 

controls in the hoist shack, he would send cars below ground without Pendley even though 

Pendley was waiting to board. Id. 

Pendley also spoke to Maynard about Creighton running too close to Pendley in the 

motorized cart, or golf cart. Id. According to Pendley, Larry ("Lap") Lewis told Pendley that he 

did not understand why management did not do something about Creighton's "close calls" with 

Pendley. Id. Pendley spoke to Maynard about Creighton trying to run him over, but Maynard 

could not find any witnesses who could confirm the incidents. Id. 

Sometime later, another incident occurred involving Pendley and Creighton, who was 

operating a forklift. Id .. at 466. Creighton had a pallet of materials on the forklift that Lap Lewis 

was preparing to foad irito the hoist cars. Id. According to Pendley, rather than waiting to board 

the car near the hoist shack, he went to board the car where Lewis was loading. When Lewis 

finished unloading, Pendley walked behind him, placing himself between the forklift and the car. 

Id. Pendley testified that Creighton threatened to run him over. Creighton was certain that 

Pendley had placed himself between the forklift and the car, thereby endangering himself in the 

event the brakes on the forklift failed or the throttle stuck. Id.; Tr. 776-79. 

Assistant superintendent Maynard learned of the forklift incident and spoke to Creighton, 

who denied knowing what had happened. 30 FMSHRC at 466; Tr. 933-35. Highland's safety 

manager, James Allen, also became involved in reviewing the incident. He determined that 

Pendley did not have to walk where he did, that he could have sat in another row of seats in the 

car, and that he could have sat in another car. 30 FMSHRC at 467; Tr. 704-05. 

4 Man cars served to transport miners and supplies in and out of the mine. Id. at 465. 

Three cars were usually hooked together to go into the mine. Only one car had brakes to stop the 

cars. Id. Controls for the hoist cars, which included an emergency stop button (the "e-stop" 

button) were located in the hoist shack (or slope shack) and in the hoist house, both on the 

surface, and at the bottom of the slope inside the mine. Also, some o.f the hoist cars had e-stop 

buttons on their front compartments. Id. If the e-stop button is pressed, the man cars stop 

quickly, generally causing the brakes on the brake car to lock. Id.; Tr. 69-70. 

31 FMSHRC63 
As a result of Pendley's complaints regarding Creighton and Creighton's reporting the 

gun incident, Highland management held a meeting with the two men in the early fall of 2005. 

30 FMSHRC at 467. Present at the meeting, in addition to Pendley and Creighton, were 

Maynard, mine superintendent Jesse O'Rourke,5 operations manager Dave Webb, union 

president Ron Shaffner, and union safety committee chairman Shugg Dyer. Id.; Tr. 75-76. 

Pendley and Creighton met separately with the management and union officials, and then all the 

attendees met together. 30 FMSHRC at 467. Pendley reiterated many of his complaints, and the 

gun incident was also discussed. At management's request, both Pendley's and Creighton's 

lockers were searched, and no guns were found. Id. & n.10. At the end of the meeting, Webb 

told Pendley and Creighton that he was giving each of them a warning letter. Id. at 467. 

Bighland officials as well as the union officials agreed that the letter should contain a strongly 

worded warning that future incidents would not be tolerated and future altercations were not 

acceptable. Id. 

In letters dated October 7, 2005, Highland issued written warnings to Pendley and 

Creighton. Id. at 468; R. Ex. 9, 10. The letters, which were identical in substance, stated that, as 

result of, ''verbal abuse, disregard for safety rules, and threatened violent behavior to a coworker, you are hereby is-sued this last and final warning." R. Ex. 9, 10 (emphasis in original). 

The letters further stated, "Any further abuse, altercations,.orviolations of Company Safety and 

Work Rules may lead to ... suspension with intent to discharge." Id. The letters concluded by 

stating that, if either Pendley or Creighton had any questions that were not discussed at the 

meeting, he should contact Webb, who signed the letter. Id. 

B. The Man Car Incident 

No further incidents occurred between Pendley and Creighton for over a month. 30 

FMSHRC at 468. On November 29, 2005, Pendley got into the front seat of the middle car of 

three cars. One of the other cars had supplies in it. When Pendley was ready to go into the mine, 

he pulled the cord adjacent to the cars that released them into the mine. Pendley was the only 

miner in the cars. Id. Creighton was on the surface when Pendley got into the car but apparently 

was not at the control panel in either the hoist house or the slope shack. Id. 

After traveling about halfway into the mine, the cars in which Pendley was riding came to 

an abrupt stop. In order to prevent himself from falling out of the car, Pendley leaned to the 

ri¥ht, and he felt his back and neck muscles pull. Id. at 468-69. Pendley stayed in the car 

approximately five to ten minutes, waiting for the cars to start back up again. The cars started 

back, continued the descent to the bottom of the mine, and came to a gradual stop in the usual 

manner. Id. at 469. 

After Phillips, a miner waiting to unhook the supply car, assured Pendley that no one in 

the bottom area of the mine had pressed the e-stop button, Pendley resumed work, although his 

5 Larry Millburg succeeded O'Rourke in the position of mine superintendent. Id. 

31 FMSHRC64 
back bothered him. Id. at 469-70. Pendley reported to his supervisor, Greg Moody, that his back 

hurt him. Moody asked Pendley to help in filling out an accident report, and the two went to the 

surface. When they got to the surface, they went to the common area where they filled out the 

report, which Pendley read and signed. Id. at 4 70. 

A short time later, Pendley went tO the hospital by ambulance where he had x-rays taken~ 

In addition, he was given pain medication. Id. Pendley was also directed to visit a clinic in a 

nearby town. Pendley went to the clinic, and the doctor there instructed Pendley not to work for 

several days. Id. When Pendley returned to work, he asked Lap Lewis if he was in the area 

where the man cars were loaded. Lewis responded that he was not but that Creighton was. 

Lewis thought that Creighton had sent Pendley underground, but Pendley told Lewis that he had 

sent himself underground. Id . .. 

Operations manager Webb heard about the man car incident the day after it happened. He 

retained an electrical company to ascertain that the hoist and its safety features had :functioned 

properly. As Webb recounted, one of the theories being considered was whether the e-stop 

button had been pushed. The electricians concluded that the system was :functioning as it should; 

however they were unable to ascertain if the e-stop button had been pushed. Id. at 4 71. After 

Webb received the electricians' :findings, he learned that Pendley alleged that Creighton had 

pushed the e-stop button. Id. Based on the electricians' report, Webb did not believe that an estop button had been pushed, and he apparently did not ask Creighton about it. Id. 

Pendley also requested a copy of the company accident report that he had assisted Moody 

in filling out. Highland safety manager Allen denied Pendley' s request, stating that the report 

was company property. Allen also added that the Pendley' s description of the accident could not 

be accurate. Id. at 470 n.11. 

C. Pendley's December 2005 Complaint to MSHA 

On December 15, 2005, following the hoist incident, Pendley went to MSHA. Id. at 471. 

According to MSHA investigator Kirby Smith, Pendley spoke to him about a number of things at 

the mine, including operation of the hoist and the harassment about which he had been 

complaining to management. Pendley had been keeping detailed notes of events at the mine for 

the last five months because of the problems he had been having with Creighton. Id. &n.14. 

Pendley asked for a copy of Highland's accident report of the November 29 hoist incident, but 

MSHA had not yet received one. Id. at 471. 

Thereafter, MSHA inspector Michael Moore went to the mine to inspect the hoist. Id. 

Moore found nothing wrong with the hoist or the brake car. Contrary to the conclusion reached 

by Highland's electrical consultants, Moore concluded that the man car incident could have 

occurred by someone hitting thee-stop button. Id.; Tr. 326-27. Smith accompanied Moore on 

the inspection and believed that it was common knowledge at the mine that Pendley had gone to 

31 FMSHRC65 
MSHA. 30 FMSHRC at 471-72. Similarly, Pendley said that another miner had overheard 

several miners saying that Pendley had gone to MSHA, initiating the inspection. Id. at 471 n.16. 

During the inspection, inspector Moore asked Highland officials about the November 29 

hoist incident and whether Highland had filed an accident report. Id. at 4 72. Safety manager 

Allen gave Moore an intra-company memorandum that stated that Highland had not yet 

determined whether the event was an accident. Id. On December 20, MSHA issued a citation to 

Highland for failing to.report the November 29 incident within 10 days of its occurrence.6 

MSHA became concerned that Highland was not reporting all of its accidents as required by 

regulation. 30 FMSHRC at 472. As a resultofits audit, MSHA issued four more citations that 

charged Highland with failing to report accidents. Id. 

D. Pendley's December 21, 2005, Suspension 

The sign-in book where miners record their times of arrival and departure is kept in the 

common area, a room that is approximately 20 by 30 feet that is furnished with tables and 

benches. Id. at 472, 473 n. 19; Tr. 115-116; R. Ex. 11. A miner's sign-in time determines when 

he begins to be paid under the union contract. 30 FMSHRC at 4 72 n.18. 

During the latter part of 2005, Pendley routinely worked 12-hour days with eight hours at 

regular time and four hours of overtime. Id. at 4 72. Oii December 21, Pendley arrived at the 

mine around 12:30 p.m. Id. Pendley signed in between 12:50 and 12:55 p.m., but indicated that 

the time was 1 :00 p.m. Id. Pendley then went to the bathhouse, picked up some supplies, and 

went to the man load area. Id. When he arrived at the man load area, he saw Lap Lewis, who 

told him that the man cars were underground and that it would be several minutes before they 

returned. Id. Because it was cold, Pendley did not want to wait outside. Id. He. and Lewis went 

to the common area to wait. Id. at 472-73. Miner Joe Adamson, who had signed in immediately 

after Pendley, was also in the room. Id. at 473. It was common practice for miners to wait inside 

when it was cold outside. Id. at 473 & n.20, 490. 

Adamson had indicated to Pendley that he wanted to go underground with him when the 

man cars arrived. Id. at 473. Adamson and Lewis were sitting in front of Pendley where they 

could see the man cars outside of a window~ Id. About 15 or 20 minutes after 1 :00 p.m., 

operations manager Dave Webb walked into the room and asked Pendley if he was being paid to 

sit there. Id.; Tr. 630. Pendley responded that he was waiting to go underground. 30 FMSHRC 

at 473. Webb stated to Pendley, "Not on my time[,] you're not." Id.; Tr. 117. Pendley walked 

over to the sign-in book and leaned over to examine it. 30 FMSHRC at 490. Because Pendley 

had done nothing out of the ordinary, he did not change the entry in the book. Id. Neither 

Adamson nor Lewis spoke to Webb. Id. at 473. Webb then turned and walked out of the room. 

Id, The man cars arrived at the load area around 1 :30 p.m. Id. Adamson, Lewis, and Pendley 

6 MSHA regulations require that reports of injuries or accidents must be filed within I 0 

days of their occurrence. 30 C.F.R. § 50.20-1. 

31 FMSHRC66 
left the common area and went outside where they boarded the man cars and went underground. 

Id. 

Webb went back to the common area to see if Pendley had changed his time in the sign-in 

book. Id. at 474. The bookstill showed that Pendley had signed in at 1 :00 p.m. Id. Webb felt 

that Pendley was being insubordinate by not changing his time and that he had falsified a 

company record. 7 Id. at 4 74. Webb called underground and notified Pendley that he wanted to 

see him in his office. Id. When Pendley arrived at Webb's office, in addition to Webb, assistant 

superintendent Maynard, safety committeeman Shugg Dyer, and union local president Ron 

Shaffuer were there. Id. 

Webb spoke about why Pendley had not caught the man load cars to go underground and 

then asked Pendley for his side of the story. Id. Pendley denied falsifying the sign-in book but 

stated that he needed better representation. Id. at 473, 490. Webb then announced that Pendley 

would be suspended for three days for falsifying a company record, the sign-in book. Id. at 474-

75. Webb then handed Pendley a three-day suspension letter. Id. at 475. 

E. MSHA' s Settlement of Pendley's First Discrimination Complaint and His 

Commission Appeal 

On December 22, 2005, Pendley filed a complaint with MSHA, alleging that he had been 

suspended on December 21 because he requested a copy of Highland's accident report. Id. at 

476. On September 25, 2006, following an investigation, the Secretary filed her first 

discrimination complaint on Pendley's behalf (Docket No. KENT 2006-506), alleging that he 

was suspended for making safety complaints. Id. The Secretary entered into a settlement 

agreement with Highland to resolve the discrimination complaint arising out of the suspension. 

Docket No. KENT 2006-506. By order dated January 18, 2007, the judge approved the 

settlement. 

Subsequently, Pendley filed a petition for review of the judge's order in which he argued 

that the settlement did not fully compensate him for his loss of wages. Letter dated Feb. 11, 

2007. The Secretary then moved to reopen the proceeding. Mot. to Reopen, Feb. 26, 2007. The 

Commission directed review in the proceeding on February 26, 2007. On April 3, 2007, the 

Commission vacated the judge's dismissal order in Docket No. KENT 2006-506, vacated the 

settlement because Pendley was not a party to it, and remanded the case to the judge for 

appropriate proceedings. 29 FMSHRC 164, 165-66 {Apr. 2007). 

7 Webb testified at trial that he agreed that miners could be paid while waiting for man 

cars. However, he objected to Pendley waiting inside, particularly for an extended period, 

because miners could wait outside at the slope shed. Id. at 474 nn.23 & 24. 

31 FMSHRC67 
F. Pendley's Meetings with the Office Staff on March 19 and 21, 2007 

Sometime in early 2007, Pendley became aware that the employee at the mine in charge 

of payroll, Fay Hubbert, had questioned certain overtime pay that Pendley claimed. 30 FMSHRC 

at 476. On March 19, 2007, Pendley became upset over this and went to the office ofHubbert's 

supervisor, Sheila Gaines. Id. Pendley and Gaines discussed the matter, and Pendley became 

increasingly agitated over Hubbert's questioning of his pay. Id. Gaines, as Hubbert's supervisor, 

explained that part ofHubbert's duties was to review all claims for overtime and ensure that they 

were accurate. Id. According to Gaines, Pendley argued that Hubbert had no right to do this, 

that what she was doing was not right, and that Gaines would be held accountable, telling her that 

"You 're going to take the fall." Id.; TRH Tr. 23 5. Gaines felt uncomfortable because of what 

Pe11dley said and how he said it; she felt as if he were planning something. 30 FMSHR.C at 476; 

TRH Tr. 235. Another employee who worked down the hall from Gaines' office thought Gaines 

might need assistance, but Pendley left. 30 FMSHRC at 476. After the meeting with Pendley, 

Gaines reported the meeting to mine superintendent Larry Millburg because the meeting was 

"disturbing" to her and it made her "uncomfortable." TRH Tr. 237-38. 

Two days later, on-March 21, Pendley resumed the discussion about his overtime with 

Fay Hubbert. 30 FMSHRC at 476. It was shortly before 1:00 p.m., and Pendley had not yet 

signed in. Id. at 477. Sheila Gaines overheard a heated discussion in the payroll office and heard 

Hubbert tell Pendley that he needed to speak with mine superintendent Millburg, who was 

handling all questions regarding overtime pay. Id. Pendley then appeared at the door of Gaines' 

office and asked to speak to her. Gaines responded that she was very busy, but Pendley entered 

anyway. Id.; TRH Tr. 238. Pendley had a copy of the mine sign-in sheet and his pay stub. He 

told Gaines that he was not being properly paid, and Gaines told him to leave the sheet and stub 

with her and that she would check into it. Pendley continued to insist that his pay was 

inaccurate. He left when Gaines received a telephone call. 30 FMSHRC at 477. 

After Pendley left Gaines' office, he looked for Millburg, but Millburg was unavailable. 

Id. Pendley then went to the bathhouse, dressed for work, and went to the man load area. Id. 

Pendley waited for a man car; however, the man cars passed him by without stopping. Lap 

Lewis explained to Pendley that MSHA inspectors were in the mine for a section 103(g) 

inspection. 8 Pendley noticed a federal inspector; Highland officials, and union personnel sitting 

in one of the cars. 30 FMSHR.C at 4 77. Because he would have to wait 15 or 20 minutes for 

another car, Pendley decided to go back into the office area to look for Millburg. Id. at 477-78. 

During that time, Gaines had called Fay Hubbert to come to her office. Account manager 

Roger Wise also came to her office. Id. at 478. Having gone into the building from the man load 

area, Pendley overheard the three talking, went into Gaines's office, and began discussing 

8 Section 103(g) of the Mine Act provides for an immediate inspection of a mine upon 

the complaint of a miner or representative of miners. 30 U.S.C .. § 813(g). The section further 

provides that the name of the complaining miner should not be disclosed. 

31 FMSHRC68 
Highland's rules for overtime pay and how they should be applied. Id. Gaines described Pendley 

as "agitated" and "very loud." Id.; TRH Tr. 241. While they μ-ied to explain to Pendley that they 

applied the rules for overtime pay given to them by Larry Millburg, Pendley argued that what 

they did was "illegal." 30 FMSHRC at 478. Pendley "got in [Wise's] face." Id.; TRH Tr. 279. 

Hubbert felt very uncomfortable. 30 FMSHRC at 478; TRH Tr. 265. 

Gaines then tried to end the discussion, telling Pendley that he needed to talk to Larry 

Millburg. Hubbert then left the office. Pendley continued to press the issue with Wise, who said 

that he was not going to continue to listen to Pendley and left. 30 FMSHRC at 478. When Wise 

left, he intended to find Millburg to handle the situation. Id. That left Pendley with Gaines, who 

felt intimidated by Pendley. Id. According to Gaines, Pendley was "mad" and ''upsee' Id.; 

TRH Tr. 243. Pendley continued to talk about the pay situation, and Gaines continued to instruct 

him to talk to Millburg. 30 FMSHRC at 478. Gaines finally turned her back to Pendley, and he 

left. Id. After Pendley left, Hubbert, Wise, and Gaines locked the doors to the offices to prevent 

Pendley from returning. Id.; TRH Tr. 266. Wise said he would get Millburg, who would take 

control of the situation. However, Millburg was underground at that time. 30 FMSHRC at 478. 

Later that afternoon, Gaines reported the incident to Millburg. Id. 

G. Pendley's Altercation with Creighton 

·After Pendley left Gaines' office, he immediately returned to the man load area to go 

underground. Id. at 479. Pendley stood outside the slope shack waiting for Creighton to bring 

up the cars to the man load area. Id. Lap Lewis was working nearby. Id. Creighton was under 

the canopy of the slope shack, sitting on the golf cart in front of the man car controls.9 30 

FMSHRC at 478. The slope shack is open ended with panels on either side, and Pendley stood 

outside the canopy on the end nearest the controls. Id. at n.31; R. Ex. 18. Pendley believed that 

Creighton was not going to call the man cars to the load area. 10 Therefore, Pendley decided to 

use the control inside the slope shack to bring the cars to the man load area. 30 FMSHRC at 479. 

9 The hoist control panel contained about 15 buttons, including the red e-stop button and 

call button that could send the cars to the charging area or the man load area. In order to push the 

man load call button, one had to be positioned in front of the control panel. There was also a 

man load call button outside the slope shack that miners could use unless the cars were at the 

charger. Testimony established that, when Pendley was waiting for the cars, they were at the 

charger. Id. atn.31; Tr. 586-87; 1070-71. 

10 While Pendley testified that he waited outside the slope shack for "quite a period of 

time," Tr. 157, as the judge noted, the surveillance tape showed that Pendley waited for the man 

car for one minute and 20 seconds before moving into the slope shack to push the man car call 

button. 30 FMSHRC at 480 & n.33: see Gov't Ex. 3. 

31 FMSHRC69 
Pendley testified that he walked toward the slope shack with one hand up, 11 reaching 

between the golf cart where Creighton was sitting and the controls. He then looked at the control 

panel to see if the e-stop button was tagged out and reached to push the man load call button. 

According to Pendley, Creighton put his arm against Pendley' s right arm to push it away from 

the controls. 30 FMSHRC at 479; Tr. 1055-56, 1070-71. Creighton then began yelling for 

foreman Rodney Barker. 30 FMSHRC at 4 79. Pendley stated that, after he pushed the call 

button, Creighton said that there was a hoist test going on. Id. at 479-80. 

Creighton testified that the surface foreman and a mechanic informed him that they were 

on their way to the hoist house and, when the man cars came from underground, they were going 

to conduct a safety test of the hoist. After they left, the only other miner in the area was Lap 

Lewis, who was preparing to hook up a man car to take supplies into the mine. Id. at 480; Tr. 

793-800. Afterthe man cars came from the mine, the hoist test commenced. Creighton's role in 

the test was to monitor the slope shack control panel. Pendley was waiting for the man cars, 

st{lllding about five to eight feet from Creighton. As Creighton was waiting for the call from the 

hoist house to tell him that the hoist test was completed, Pendley charged in with both hands 

raised and shoved Creighton out of the way. 30 FMSHRC at 480; Tr. 802-04. Creighton yelled 

out that there was hoist test going on and went to the telephone next to the control panel to call 

the surface foreman. 30 FMSHRC at 480; Tr. 805. · 

When fore.man Rodney Barker arrived, he separated the two men. Creighton told Barker 

what had happened, and Pendley gave his version. 30 FMSHRC at 480-81. According to 

Pendley, Creighton put his finger in Pendley' s face, and Pendley asked Barker to tell him to stop. 

Id. at 481. When the man cars appeared, Barker told Pendley to get on a car and for Creighton to 

move away. Id. Barker told them both to stay away from each other. Pendley then boarded a car 

and went underground. Id. 

A short time later, superintendent Millburg came out of the mine, and Creighton 

motioned to speak to him. Creighton told Millburg that Pendley had come into the slope shack 

when a safety check was occurring, pushed Creighton aside, and taken control of the hoist. Id.; 

Tr. 1005-06. Millburg also talked to Lap Lewis, who confirmed what Creighton had said. 12 30 

11 Security tapes of the yard on March 21 show Pendley turning toward the slope shack 

with two arms raised. Gov't Ex. 3. Pendley explained that one of his hands was used for 

grabbing the pipe supporting the canopy roof to steady himself, while he used the other hand (the 

right hand) to push the man load call button. Tr. 1054-55. 

12 The judge noted that Lewis' trial testim~ny regarding the incident "was informed by 

watching the video surveillance tape." 30 FMSHRC at 480-81 n.34. However, the judge noted 

that, although the video showed "Pendley standing some distance from the shack and then 

advancing toward the slope shack[,]" the judge found the video "inconclusive as to who pushed 

first." Id. Lewis testified that he saw Pendley shove Creighton but admitted he was 25 feet away 

from the slope shack and that Pendley's back was facing Lewis. Tr. 555, 572, 594. 

31 FMSHRC70 
FMSHRC at 481. Millburg considered it significant that Pendley apparently shoved Creighton 

and interfered when the hoist test was going on. Id.; Tr. 1006-07. When Mill burg went to his 

office, Sheila Gaines told him about the earlier incident involving the office employees. 30 

FMSHRC at 481. Millburg drafted a letter, notifying Pendley that he was suspended, subject to 

discharge. Id. The letter gave as the reasons for the discipline: "harassment of office staff;" 

"interference with safety check;" and "assaulting another employee." Gov't Ex. 4. 

Prior to summoning Pendley to his office and presenting him the suspension letter, 

Millburg telephoned David Webb, who at this time was director of several mines owned by 

Peabody Coal, including Highland. Millburg would speak to Webb about non-routine personnel 

matters. Millburg recounted the offenses that Pendley was charged with, and Webb agreed that 

discharge was appropriate discipline but indicated that it was Millburg's call since he was present 

at the mine. 30 FMSHRC at 481-82 n.35; Tr. 605, 673-75, 1028-29. 

H. Pendley's March 21. 2007. Suspension and Discharge. His Second MSHA 

Complaint. and Temporary Reinstatement 

Sometime betweeii 3:00 and 4:00 p.m. on March 21, Pendley was directed to come out of 

the mine and report to Millburg's office. 30 FMSHRC at 481. Pendley met up with union 

officials Shugg Dyer and Ron Shaffner. Id. When the three miners arrived at Millburg's office, 

assistant superintendent Scott Maynard, union safety committee member David Acker, and 

Millburg were already there. Id. at 482. Millburg gave Pendley the suspension letter. Id. After 

receiving the letter, Pendley apparently left Millburg's office. Id.; Tr. 176. Thereafter, two of the 

union representatives came and got Pendley from the bathhouse to return to Millburg's office and 

respond to the charges in the letter. 30 FMSHRC at 482; Tr. 176-77. When they reached the 

office, Maynard was still there with Millburg. Pendley indicated that with regard to harassing the 

office staff, he had been discussing his pay. 30 FMSHRC at 482. As to interfering with the hoist · 

test, Pendley stated that he had looked on the control panel for any indicators that a test wa5 

going on and did not see any. Id. Finally, with regard to assaulting Creighton, Pendley denied 

that it happened. Id. Pendley then left Millburg' s office, changed his Clothes~ and went home. 

Id. 

Sometime after Pendley's departure, MSHA inspector Fazzolare completed his section 

103(g) inspection and issued a citation alleging a violation of 30 C.F .R. § 7 5 .400 for 

accumulations of coal. Id. Inspector Fazzolare had not given anyone from Highland a copy of 

the section 103(g) complaint when he arrived at the mine, because he had inadvertently put 

Pendley's name on it. Id. at 482-3 n. 36. Millburg was later given a copy of the citation 

Fazzolare had written. Id. at 483. · 

31FMSHRC71 
The day ~fter his suspension, Pendley filed a complaint with MSHA. 13 30 FMSHRC at 

483. Pendley's discharge became effective March 24. Id. at 460. Following an investigation, 

MSHA filed a second complaint against Highland (Docket No. KENT 2007-383-D). Id. The 

Secretary filed a petition for temporary reinstatement of Pendley, and, following a hearing, 

Highland was ordered to reinstate Pendley in June 2007. 29 FMSHRC 424 (May 2007) (ALJ). 

I. Pendley's Post-Reinstatement Working Conditions 

After Pendley returned to work at Highland following the judge's temporary 

reinstatement order, he complained about changed working conditions, including closer 

supervision ("birddogging"), additional job duties, and someone posting his job duties on the 

company bulletin board. 30 FMSHRC at 483. 

Pendley's supervisor, Steve Bockhorn, testified that Pendley's attitude changed after he 

returned to work. Tr. 861-62. Both Bockhorn and shift foreman David Howell believed that 

Pendley was working more slowly than before his discharge. 30 .FMSHRC at 484-85. Howell 

observed Pendley driving his vehicle "extremely slow" (sic). Id. at 485. Following his 

reinstatement, Pendley decided that he did not want to work overtime. Id. at 484. Assistant 

superintendent Maynard received complaints from managers about Pendley' s slowness. In 

response,. Maynard told the managers just to ensure that Pendley did his job. He never instructed 

anyone to be tougher on Pendley. Id. 

Pendley believed that, after his reinstatement, he was given the additional assignments of 

washing equipment and taking oil to units in addition to his regular duties of delivering supplies. 

Id.; Tr. 184-86. All the jobs that Pendley was asked to do were within his job classification. 30 

FMSHRC at 484. He had occasionally been asked to wash equipment before his discharge. Id. 

Foreman Howell told Pendley to let him know if he could not get all his work done by the end ·of 

the shift, so Howell could get someone else to do it. Id. at 485. 

Bockhorn had Pendley' s job duties specified in a letter after Pendley questioned one of 

his assignments when he returned to work. Id.; Gov't Ex. 5. According to Millburg, assistant 

superintendent Maynard told him there was some confusion about Pendley's job duties and 

Maynard thought it best to lay out Pendley's duties so there would be no confusion. 30 

FMSHRC at 485. Other parts runners were given letters describing their duties. Id. However, 

Pendley' s was the only one posted on the bulletin board. Bockhorn did not know who posted it, 

and he had it removed as soon as Pendley complained about it. Id. at 485-86. 

13 Pendley also grieved his suspension and discharge under the union contract, and the 

matter was taken to arbitration. See R. Ex. 25 at 1. The arbitrator decided that Highland had 

shown "just cause" for disciplining Pendley for the reasons given in the March 21 letter and that 

discharge was appropriate discipline. Id. at 15. 

31 FMSHRC72 
J. The Judge's Decision 

Based on the credited facts and inferences drawn from them, the judge concluded that 

Pendley's three-day suspension on December 21, 2005, was discriminatory and in violation of 

the Mine Act. The judge concluded that Pendley was suspended because of his safety complaints 

to MSHA and because of his protected safety complaints to Highland management. 14 30 

FMSHRC at 489-94. 

The judge further concluded that Pendley's March 21, 2007, suspension and discharge 

were not taken in response to Pendley's MSHA complaints, his pending litigation before the 

· Commission, or his prior safety complaints. Id. at 494. The judge found that Pendley' s 

"confrontations" with the office staff on March 19 and 21 played pivotal roles in Millburg's 

decision to discharge Pendley "and well they should." Id. The judge further noted that Pendley 

''was disruptive, irrational, and orally aggressive." Id. Moreover, the judge found that Pendley 

knew that, after the March 19 meeting with Sheila Gaines, he needed to meet with Millburg on 

the overtime issue but kept pressing the issue with the office staff instead. Id. at 495. The judge 

also noted that Pendley had previously been warned in the October 5, 2005, letter that "verbal 

abuse" would lead to his discharge. Id. 

The judge found that Millburg had another ."compelling" reason to discharge Pendleythe altercation with his long-time antagonist, Creighton. Id. While acknowledging that it was . 

disputed as to who first pushed whom, the judge found that Pendley "did not have to charge the 

slope shack," and that the situation could have been avoided if Pendley had not chosen to place · 

himself "toe to toe with Creighton." Id. The judge further noted that the October 5 warning 

letter indicated that further "altercations" could lead to Pendley' s discharge. Id. Finally, the 

judge found that the Secretary failed to establish that the section 103(g) inspection, which 

occurred on March 21, had anything to do with Highland's decision to discharge Pendley. Id. at 

495-96. 

The judge dismissed the Secretary's allegations of discrimination that Pendley received 

additional job duties, was more closely supervised, and was treated adversely because a letter to 

him concerning his job duties was posted on the company bulletin board. Id. at 496-98. The 

judge found that Pendley's job duties were within his job classification and, as Pendley even 

agreed, properly assigned to him. Id. at 496-97. Further, the judge found that there was no 

evidence that Highland assigned Pendley job duties to punish him for seeking reinstatement or 

for other protected activity. Id. at 497. As to the allegation of more intense supervision, the 

judge found that Highland had legitimate concerns about Pendley's work pace when he returned 

and that its post-reinstatement supervision was not improper. Id. With regard to the letter, the 

judge found that it was taken down as soon as Pendley notified his supervisor of its presence. Id. 

14 Highland did not appeal the judge's conclusion that it discriminated against Pendley 

when it suspended him on December 21, 2005. Accordingly, that matter is not before the 

Commission on review. 

31 FMSHRC 73. 
II. 

Disposition 

The Secretary appealed the judge's conclusion that Highland did not violate section 

105(C) of the Mine Act, 30 U.S.C. § 815(C), when it suspended Pendley, with intent to 

discharge, on March 21, 2007. S. PDR at 1. The Secretary argues that extensive evidence 

supports a finding that Highland was motivated, at least in part, by Pendley' s protected activity 

when it suspended him. The Secretary argues that Pendley's filing of a petition for review to 

appeal the Secretary's settlement of the December 21, 2005, suspension, culminating in the 

Commission's granting of the petition on February 26, 2007, was "the straw thatbroke the 

camel's back." S. Br. at 19. The Secretary further argues that Highland seized upon the events 

of March 19 and 21 to rid itself of Pendley because of his persistence in engaging in protected 

activity. S. Br. at 19-26. The Secretary also contends that the judge, in upholding the 

suspension, improperly relied on the October 2005 disciplinary warning letter to Pendley, 

reformulated Highland's accusations against Pendley, and erred by failing to correctly: apply the 

Commission's legal test for mixed motive discrimination cases. Id. at 26-34. The Secretary 

concludes by asking the Commission to vacate the judge's decision and remand the proceeding 

for a complete and proper analysis. Id. at 34. 

Pendley appealed the judge's determination that Highland did not discriminate against .. 

P~dley following his temporary reinstatement in addition to challenging the judge's conclusion 

regarding the March 21 suspension. P. PDR at l. Pendley argues that the judge applied the 

incorrect legal standard in weighing whether the assignment of dutiesto Pendley following his 

reinstatement was discriminatory. P. Br. at 2-6. Pendley also argues that the judge misstated his · 

testimony regarding his job duties. Id. at 4-5. Pendley concludes by requesting that the 

Commission vacate the judge's decision and remand the case to the judge to analyze the record 

evidence under the correct legal standard. Id. at 6. 

In response, Highland argues that substantial evidence supports the judge's finding that 

the suspension and discharge of Pendley were not discriminatoty. H. Br. at 8. fu support, 

Highland asserts that there is nothing in the record to support a conclusion that management 

knew about Pendley' s filing a PDR in the pending discrimination case. Id. at 8-12. Further, 

Highland argues that the Secretary essentially wants the Commission to overturn the judge's 

crediting of Highland's witnesses who testified concerning Pendley's misconduct. Id. at 13. 

Highland denies that it did not adequately investigate the incidents that led to Pendley' s 

March 21 suspension and discharge. Id. at 13-15. Highland challenges the Secretary's position 

that the judge erred by improperly relying on the October 2005 disciplinary warning to Pendley, 

by reformulating Highland's reasons for suspending Pendley, or by improperly applying the 

Commission's legal test for discrimination cases. Id. at 15-22. Finally, Highland states that, 

during the period following Pendley's reinstatement, there was no change in Pendley's job duties 

that constituted adverse action. Id. at 22-23. Highland concludes that the Commission should 

affinn the judge. 

31 FMSHRC74 
A. The March 21 Suspension and Discharge 

Section lOS(c)(l) of the Mine Act states in relevant part that "[il]o person shall discharge 

or in any manner discriminate against ... or othetwise interfere with the exercise of the statutory 

rights of any miner." 30 U.S.C. § 81S(c)(l). A complainant alleging discrimination under 

section lOS(c)(l) of the Mine Act establishes a prima facie case of prohibited discrimination by 

presenting evidence sufficient to support a conclusion that the individual engaged in protected 

activity and that the adverse action complained of was motivated in any part by that activity. See 

Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Secy of Labor on 

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev 'don other 

grounds, 663 F.2d 1211 (3d Cir. 1981); Secy of Labor on behalf of Robinette v. United Castle 

Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The operatormayrebuttheprima facie case by 

showing either that no protected activity occurred or that the adverse action was in no part 

motivated by protected activity. See Robinette, 3 FMSHRC at 818 n.20. If the operator cannot 

rebut the prima facie case in this manner, it nevertheless may defend affirmatively by proving 

that it also was motivated by the miner's unprotected activity and would have taken the adverse 

action for the unprotected activity alone. See id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see 

also Eastern Assoc. CoalCorp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying 

Pasula-Robinette test). 

On the record in this proceeding, the judge concluded that Pendley' s complaints to 

MSHA, including his prior discrimination complaint, were protected activities. 30 FMSHRC at 

493. The judge also found that many of Pendley's complaints to management about safety issues 

that arose out of his dispute with Creighton were also protected. Id. at 491-93. The judge further 

noted Pendley' s administrative appeal to the Commission in which he objected to the agreement 

between the Secretary and Highland that settled the complaint. 15 Id. at 494. Nevertheless, the 

judge rejected the Secretary's position that Highland was motivated by "[k]nowledge of these 

factors" in taking adverse employment action against Pendley on March 21. Id. Rather, the 

judge relied upon direct evidence concerning the events on March 19 and 21 to conclude that the· 

Secretary had failed to establish a prima facie case. Substantial credited evidence supports the 

judge.16 

15 The judge specifically rejected any reliance on Millburg's knowledge of the section 

103(g) inspection that took place on March 21 because "Millburg did not know about the section 

103(g) inspection and the resulting citation until after he made the decision to suspend Pendley." 

30 FMSHRC at 496. In addition to finding a lack of direct knowledge on Millburg' s part, the 

judge also noted that there was no basis for implying knowledge that Pendley requested the 

inspection. Id. 

16 When reviewing an administrative law judge's factual determinations, the Commission 

is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. 

§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable 

mind might accept as adequate to support [the judge's] conclusion.'" Rochester & Pittsburgh 

31FMSHRC75 
The credited testimony shows that on March 19, 2007, Pendley initially contacted Fay 

Hubbert, as payroll head, because she had questioned whether he was authorized to work 

overtime. TRH Tr. 261. He next showed up at the office of Highland controller Sheila Gaines. 

IQ. Gaines' words, Pendley was "upset," "very vocal and very loud." Id. at 232-34. Pendley 

asserted that there were a lot of bad things going on and that Gaines would "take the fall." 

Gaines began to feel more and more uncomfortable. Before Pendley left, Gaines told him to 

discuss the matter with Larry Millburg. Id. at 237. Later that day, Gaines reported the 

confrontation to Millburg, told him that she felt uncomfortable with Pendley, and that she 

thought he was planning something. Id. at 237-3.8. 

There is no record evidence that Pendley sought out Millburg to discuss the overtime 

issue, as Gaines had suggested. Rather, on March 21, Pendley again sought out Hubbert on the 

overtime issue. Gaines overheard Pendley talking to Hubbert in a heated manner. TRH Tr. at 

239. Pendley then appeared at Gaines' office. He tossed his paycheck stub and a copy of the 

sign-in sheet onto her desk and asserted that he was not being paid properly. Id. at 240. After 

Pendley left her office, he signed in and got ready for work, but returned to the office area after 

he could not get in the man cars going underground. 30 FMSHRC at 477-78. Roger Wise and 

Hubbert had assembled in-Gaines' office when Pendley came in. TRH Tr. 241. Pendley was 

very loud and agitated, arguing that the overtime policies were "illegal." Pendley was told 

repeatedly to take the matter up with mine superintendent Larry Millburg. Id. at 241, 278. At 

one point, Wise. testified that Pendley moved toward Hubbert, who got up and left. Pendley then 

approached Wise and got within IO to 12 inches of Wise's face. Id. at 278~79. Wise testified 

that "Normally, we don't have that type of aggression - - in the office." Id. at 280. Wise left to 

find Millburg. Id. Pendley then walked around the corner of Gaines' desk. She felt intimidated 

and that Pendley was "out of control." She turned her back to Pendley to work on her computer, 

and Pendley left. Id. at 243. Then, the doors to the office section of the building were locked so 

that Pendley could not return. Id. at 266. After Millburg returned from the mine, Gaines 

reported to him that there had been "another incident" involving Pendley." Id. at 245. At the 

time Gaines found Millburg in his office, he was investigating the shoving incident involving 

Creighton and Pendley. Id. 

Our review of the record does not disclose any basis for overturning the judge's 

credibility resolutions. 17 Based on this credited testimony, the judge found that ''The office 

Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 

U.S. 197, 229 (1938)). 

17 A judge's credibility determinations are entitled to great weight and may not be 

overturned lightly. Fanner v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); 

Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). The Commission has recognized 

that, because the judge "has an opportunity to hear the testimony and view the witnesses[,] he 

[or she] is ordinarily in the best position to make a credibility determination." In re: Contests of 

Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting 

31FMSHRC76 
incidents of March 19 and 21 played critical roles in Millburg's decision to suspend Pendley with 

an intent to discharge, and well they should. Pendley was disruptive, irrational, and orally 

aggressive." 30 FMSHRC at 494. The judge further found that as of March 19, Pendley knew 

that Hubbert and Gaines did not have authority to resolve overtime pay issues. Rather, Pendley 

knew he needed to talk to Millburg. Yet, he persisted in raising the matter on March 21, "again 

in a loud, agitated and irrational way." Id. at 495. 

In addition to his findings as to what occurred when Pendley confronted the office staff 

on March 19 and 21, the judge also noted that Pendley had been warned in the October 7, 2005, 

letter concerning his "continued verbal abuse" and that further abuse "may lead to your 

suspension with intent to discharge." Id.; R. Ex. 10. The judge found it significant that Pendley 

"was on notice" of the consequences of engaging in conduct noted in the letter. 30 FMSHRC at 

495. Based on the letter, the judge noted that "Pendley acted at his peril" when he angrily 

confronted the office staff on two occasions. Thus, the judge further concluded that it was 

appropriate to consider the confrontations·as a basis for discharge because of this notice to 

Pendley. Id. 

The Secretary challenges the judge's findings and conclusions on several grounds. 

However, our review of the record and relevant precedents compels us to conclude that the 

Secretary's objections are without m~rit. 

The Secretary contests the judge's consideration of the warning letter. The Secretary 

argues that the judge cannot rely on evidence that Millburg was unaware of when he made his 

decision to discipline Pendley on March 21. S. Br. at 27-29. However, the Secretary 

misunderstands the judge's limited reliance on the letter. The judge did not find or suggest that 

Millburg knew of the letter or could have relied on it. Rather, the judge noted that Pendley was 

aware of the consequences for engaging in similar conduct for which he was reprimanded in the 

October 2005 letter. Moreover, the judge's consideration of the prior disciplinary warning was 

appropriate under the Pasula-Robinette analysis. 18 See also Bradley v. Belva Coal Co., 4 

Ona Corp. v. NLRB, 729 F.2d 713, 719 {11th Cir. 1984)), ajf'd sub nom. Sec'y of Labor v. 

Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998). Nonetheless, the Commission 

will not affirm such determinations if they are self-contradictory or if there is no evidence or 

dubious evidence to support them. Id. at 1881 n.80; Consolidation Coal Co., 11 FMSHRC 966, 

974 {June 1989). 

18 Our colleague concludes that she would remand this case for the judge to reconsider 

the discharge, ''without the letter playing any part in [his] consideration of Millburg' s mental 

process in arriving at his discharge decision." Slip op. at 25. However, such a remand would 

inevitably lead to the same result in light of the judge's findings regarding Pendley's 

confrontation with the office staff and his altercation with Creighton. Significantly, nowhere 

does our colleague indicate any disagreement with the judge's :findings in these areas and the role 

they played in Millburg's decision to discharge Pendley. 

31FMSHRC77 
FMSHRC 982, 993 (June 1982) (an operator can cany its burden under Pasula by showing, for 

e:xample, past discipline consistent with that meted out, the miner's unsatisfactory work record, 

prior warnings to the miner, and personnel rules or practices forbidding the conduct in question). 

As the judge further found, Pendley's misconduct on March 21 was not limited to his 

interaction with the office staff. Millburg had "another compelling reason" to discipline Pendley 

because of''yet another run-in" with Creighton. 30 FMSHRC at 495. On this matter, the judge 

did not resolve the conflicting testimony as to who first pushed whom. Id. The judge, however, 

found it persuasive that Pendley chose to "charge" the slope shack, "putting himself in a 

situation where an altercation was all but certain to occur." Id. The judge further noted that 

Pendley had been warned that further altercations could lead to his discharge. Id.; R. Ex.10. 

Finally, the judge found it significant that Millburg knew of the recent confrontation with 

I{ubbert, Wise, and Gaines that occurred just minutes before his altercation with Creighton. 30 

FMSHRC at 495. Substantial evidence supports the judge's finding that Pendley's discipline 

was justified, and we see no reason to disturb his findings. 

The Secretary also argues that the judge impermissibly "reformulated" Highland's 

justification for disciplining Pendley because the judge referred to the incident with Creighton as 

an "altercation" rather than an "assault." S. Br. at 29-36. We conclude that the specific label that 

the judge attached to that incident is not significant here. 19 The pertinent point is that the judge, 

in weighing the sufficiency of the reasons that Highland gave for Pendley's discharge, relied on 

the trial testimony given by the Secretary's and Highland's witnesses concerning who was the 

aggressor in the dispute and found facts indicating that Pendley was at fault because he put 

himself in a situation where an altercation with Creighton was all but certain to occur. 

30 FMSHRC at 495. Although the judge did not resolve the conflicting testimony as to whether 

Pendley pushed Creighton, he made the critical determination that Pendley initiated the incident 

with Creighton when Pendley decided to "charge the slope shack," thereby precipitating the 

ensuing altercation. Id. 

The Secretary additionally argues that the judge erred when he found that reliance on 

Pendley's interference with the hoist test was not "crucial to the validity of the disciplinary 

19 In support of her position that the judge improperly recast the basis for Pendley's 

discharge, the Secretary relies on the Commission's decision in Secretary of Labor on behalf of 

McGill v. US. Steel Mining Co., 23 FMSHRC 981 (Sept. 2001 ). The McGill case is readily 

dii;tinguishable from the instant proceeding. In McGill, the judge had found that the operator had 

established an affirmative defense to a complaint of discrimination, notwithstanding that the 

reasons relied on at the time of discharge and established at trial (insubordination and use of 

profanity) were completely different substantively from the reasons relied on by the judge in his 

decision (threats to file a grievance, failure to stop walking away, and union status). Id. at 987-. 

88. fu contrast to McGill, the judge's findings with regard to the altercation between Pendley and· 

Creighton are well within the parameters of, and consistent with, the assault charge in the 

March 21 letter. Compare McGill, 23 FMSHRC at 989. 

31FMSHRC78 
action" because of the other more serious misconduct. S. Br. at 30-31; see 30 FMSHRC at 

495 n.43. The judge concluded that the two other reasons Millburg relied on for discharging 

Pendley - his confrontation with the office staff and his altercation with Creighton - were 

sufficient grounds for determining the validity of the disciplinary action under the Mine Act. Id. 

With regard to the interference with the hoist test allegation, the judge noted that the control 

panel was not tagged and Creighton did not advise Pendley of the test until after he pushed the 

man car call button. Id. Contrary to the Secretary's argument, S. Br. at 30, the judge did not find 

that the hoist test allegation was pretextual.20 Rather, the judge simply found ample grounds for 

sustaining the discipline without relying on the interference allegation. Moreover, the judge's 

role in examining the reasons for Pendley's discharge under the Mine Act does not require that 

he adopt every reason given by the operator in order to sustain the discipline under the collective 

bargaining agreement.21 

In addition to the Secretary's arguments relating to the specific reasons given for 

Pendley' s March 21 suspension and discharge, she also argues that the judge failed to fully 

analyze the adverse action under the Pasula-Robinette test. Our reading of the judge's decision 

indicates that he made findings that are sufficient with regard to the requirements in Commission 

discrimination cases. First, thejudge found that Pendley engaged in activities protected under 

the Mine Act, including making safety complaints and filing a discrimination complaint. 30 

FMSHRC at 491-94. The judge further noted Pendley' s subsequent protected activities, .... 

including his involvement in a section 103(g) investigation and his filing of an appeal with the 

Commission because of the Secretary's and Highland's settlement of his December 21, 2005, 

suspension. Id. at 494. Finally, and most significantly, the judge concluded that Highland's 

20 Pretext may be found where the asserted justification for discipline is ''weak, 

implausible, or out ofline with the operator's normal business practices." Sec'y of Labor on 

behalf of Price & Vacha v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990) (citing 

Haro v. Magma Copper Co., 4 FMSHRC 1935, 1937-38 (Nov. 1982)); see also Moses v. Whitely 

Dev. Corp., 4 FMSHRC 1475, 1481-82 (Aug. 1982) (pretext found where defense of poor 

performance was so weak as to make the defense pretextual). "Once it appears that a proffered 

business justification is not plainly incredible or implausible, a finding of pretext is 

inappropriate. . . . If a proffered justification survives pretext analysis and meets the first part of 

the Pasula affirmative defense test, then a limited examination of its substantiality becomes 

appropriate." Sec'y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 

2516 (Nov. 1981). 

21 The arbitrator in the grievance proceeding, who addressed whether Pendley was 

terminated for "just cause" under the union contract, concluded that Pendley' s "unilateral, blatant 

failure to check with Creighton or Lewis as to the availability of the hoist car was reckless and in 

disregard of his own safety and others." R. Ex. 25 at 14. Thus, even though the judge found that 

this reason for Pendley's discipline was unnecessary for his determination, the arbitrator's 

treatment of the defense offers substantial record support for concluding that the hoist test 

interference charge is not deemed pretextual under the rationale of Chacon. 

31FMSHRC79 
knowledge of Pendley' s protected activities did not motivate Highland to act adversely against 

Pendley. Id. Rather, the judge concluded that Pendley was disciplined on the basis of his 

unprotected activity alone. Id. at 494-95. Having concluded that, based on the evidentiary record 

before him, Highland was not motivated by Pendley's protected activities, the judge's analysis 

was complete under Fasula-Robinette. See Driessen, 20 FMSHRC at 329-31 ·(complainant failed 

to establish a prima facie case because substantial credited evidence supported judge's 

conclusion that the operator was in no part motivated by the complainant's safety complaints but 

rather complainant was terminated solely for insubordination). 

The Secretary's argument that the judge's analysis was inadequate is premised in large 

measure on her disagreement with the fundamental conclusion that Highland's suspension and 

discharge of Pendley were not motivated in any way by protected activities. In particular, the 

Secretary in her brief relies extensively on circumstantial evidence to establish that Highland had 

an unlawful motive in suspending and discharging Pendley. S. Br. at 19-26, 32-33. However, in 

this proceeding thejudge relied on direct evidence to establish Highland's non-discriminatory 

reasons for terminating Pendley. 30 FMSHRC at 494-96. Therefore, ''use of circumstantial 

evidence to bypass the judge's fact findings on the pivotal issue of motivation is improper." 

Driessen, 20 FMSHRC at-330 n.9; see also Sec '.Y of Labor on behalf of Garcia v. Colorado 

L(lva, Inc., 24 FMSHRC 350, 354 (Apr; 2002} ("consideration of indirect evidence when 

examining motivational· intent necessarily involves the drawing of inferences"). 

Moreover, even if the judge had found that Millburg was motivated in any part by 

Pendley' s protected activities, the record amply supports the conclusion that Highland would 

have taken the adverse employment action in any event because of unprotected activity alone. 

Secy of Labor on behalf of Price & Vacha v. Jim Walter Res., Inc., 14 FMSHRC 1549, 1555-56 

(Sept. 1992). fudeed, in the Secretary's brief, she concedes that the judge rejected her position 

that Pendley was discharged because ofhis protected activities, noting, "The [judge] disagreed, 

finding either that Highland was not motivated in any part by Pendley's protected activity or that 

Highland would have discharged Pendley for his unprotected activity alone." S. Br. at 3 (citing 

30 FMSHRC at 494-96). In this regard, we additionally find that substantial evidence supports a 

conclusion that Highland affirmatively defended against the Secretary's discrimination case by 

proving that it would have discharged Pendley solely because of his confrontation with the office 

staff and his altercation with Creighton for the same reasons that we have concluded Highland 

rebutted the Secretary's prima facie case of discrimination. See also Chacon, 3 FMSHRC at 

2512-13, 2516-1 7 (operator's reason for miner's discharge analyzed as a rebuttal to Secretary's 

prima facie case and as an affirmative defense). 

In sum, we conclude, in agreement with the judge, that Lawrence Pendley was· suspended, 

with intent to discharge, on March 21, 2007, solely because of the incidents that occurred that 

day in connection with the office staff and Creighton. 

31FMSHRC80 
B. Post-Reinstatement Working Conditions 

Pendley' s allegations of changed conditions of employment essentially involved three 

areas - more intense supervision when Pendley returned to work ("birddogging"), changed job 

responsibilities, and Highland's posting a letter identifying Pendley's job responsibilities. 

In addressing whether Pendley was more closely supervised, the judge found that credited 

trial testimony established that Highland supervisors were worried about the amount of time that 

it took Pendley to perform his assigned work after he was reinstated. See Tr. 869 (Bockhorn), 

905-06 (Howell), 931 (Maynard). Based on this credited testimony, the judge found that 

"Pendley worked at a slower pace when he returned" and that Highland had "legitimate" 

concerns about Pendley's work pace. 30 FMSHRC at 497. In light of these findings, the judge 

concluded that Highland's post-reinstatement supervision of Pendley was not improper. Id. We 

see no reason to disturb the judge's credibility resolutions in this area. 

As to the allegation of increased workload, the judge found that none ofPendley's work 

assignments involved jobs outside of his classification under the union-labor agreement.22 30 

FMSHRC at 497; Tr. 257: Further, as the judge found, Pendley was never asked to complete 

more work assignments than he could accomplish during a regular shift of eight hours. 30 

. FMSRHC at 497; Tr. 255. Pendley admitted that, upon his reinstatement, he voluntarily chose 

not to work overtime, essentially decreasing his workday from 12 hours to eight. 30 FMSHRC at 

497 n.46; Tr. 256; 919. Most significantly, the judge concluded that there was no evidence to 

support a finding that Pendley was assigned work to punish him for seekirig reinstatement or for 

any other protected activity. 23 30 FMSHRC at 497. Compare Sec '.Y of Labor on behalf of 

Glover v. Consolidation Coal Co., 19 ·FMSHRC 1529, 1534-35 (Sept. 1997) (transfer of miners 

found to be unlawful where new position was less desirable and more hazardous and the adverse 

action was motivated by protected activity). Substantial evidence supports the judge.24 

22 In particular, Pendley objected to the assignment of washing the "nurse" car that was 

used to deliver oil. Tr. 184. See Gov't Ex. 5. 

23 At least one other supply runner at Highland testified at the hearing that he and the two 

other runners including Pendley (each runner worked on a different shift), were assigned the task 

of washing the oil car and supply centers. Tr. 837-40. 

24 Our colleague relies on an apparent incident involving Pendley being instructed to 

move a pallet of glue by hand to conclude that we should vacate the judge's decision so that he 

can reevaluate the post-reinstatement evidence. Slip op. at 28. Pendley testified for the first 

time, during the Secretary's rebuttal case, that an unidentified '1nan" told him not to take a 

forklift to load the glue. Tr. 1081-82. However, the Secretary did not address the incident in her 

post-trial brief to the judge (Pendley did not file a separate brief before the judge), S. PostHearing Br. at 51-54, and neither the Secretary nor Pendley raised the incident in their briefs to 

the Commission. See P. Br. at 1-5. In these circumstances, we do not see how the judge's 

31FMSHRC81 
Finally, with regard to the posting of Pendley's job duties, foreman Steve Bockhorn 

explained that Pendley's job duties were put in writing when he was reinstated because Pendley 

raised a question about his duties. Tr. 870-71, 926-28; Gov't Ex. 5 .. Other non-production 

employees received letters specifying their duties as well. Tr. 929; Gov't Ex. 6. Thus, mechanic 

R,oger Grace also received a letter specifying his job duties, including the task of washing the oil 

car. Tr. 837-41. When Pendley saw his letter posted on the company bulletin board,25 he spoke 

to Bockhorn, and the letter was immediately taken down. 30 FMSHRC at 497; Tr. 190-91, 

87 6-77. In these circumstances, the judge properly concluded that the letter was. removed as soon 

as Pendley complained to his supervisor and, therefore, "It would be a stretch indeed to find this . 

mistake, which was quickly and fully rectified, constituted adverse action." Id.; see also Sec '.Y of 

Labor on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-49 (Aug. 1984) 

(letter posting not deemed unlawful under section 105(C) where second element of prima facie 

case not proved in light of no adverse action; also mine management was found to be acting in 

"good faith"). 

Pendley argues before the Commission that the judge's analysis of the reinstatement 

cQnditions under Pasula-Robinette is inadequate. P. Br. at 3-4; P. Reply Br. at4. More 

specifically, Pendley argues that the judge failed to address whether Pendley was involved in 

protected activity that led to the adverse employment conditions. The judge made extensive 

findings with regard to the protected nature of Pendley's activities that preceded his March 21. 

suspension and discharge. 30 FMSHRC at491-93. In addition, the judge noted that the 

Secretary alleged new acts of discrimination "as a result of Pendley's reinstatement," and the 

judge pointedly referenced his conclusion of no discrimination "since his reinstatement." Id. at 

496 & n.44. Moreover, the judge would not have addressed the second element of the PasulaRobinette analysis - whether an adverse employment action occurred - if he had not found that 

Pendley was involved in protected activity. In sum, we agree with the judge that none of the 

post-temporary reinstatement events are discriminatory under section 105(C) and PasulaRobinette. 

determination not to address this incident is reversible error or a basis for remand. 

25 The letter was actually taped to the outside of a locked glass case; Highland job 

postings were placed inside of the case. Tr. 275-76, 876-77. 

31FMSHRC82 
ill. 

Conclusion 

For the foregoing reasons, we affirm the judge's decision; 

31FMSHR.C83 
Commissioner Jordan, dissenting: 

In ruling that Highland was motivated solely by Lawrence Pendley' s unprotected activity 

when it discharged him, the judge in this case improperly relied on evidence which the operator 

admitted was not a factor in its termination decision. In addition, the judge failed to consider 

certain testimony regarding work assigned to Pendley and other miners, testimony which could 

indicate anti-safety reporting animus by the operator. Finally, the judge applied an incorrect legal 

analysis to the evidence of Pendley's work assignments that he did discuss. Consequently, for 

the reasons outlined below, I would vacate the judge's decision and remand the case to him. 

1. The Judge Improperly Relied on the October 2005 Disciplinary Letter 

The judge found that Pendley' s protected activity did not motivate Highland's decision to 

discharge him. 30 FMSHRC at 494. In reaching this conclusion, the judge focused primarily on 

conduct by Pendley that the judge believed warranted his termination. Id. at 494-95. In his 

analysis of the confrontational behavior the operator claimed was the basis for Pendley' s 

discharge, the judge referred to the "last chance letter" that David Webb, Highland's operations 

manager, issued to Pendley in October 2005. Id. at 4951

: 

Id. 

On October 7, 2005, Pendley was warned in writing [that] 

''verbal abuse" on his part might lead to his suspension with intent 

to discharge. Resp. Exh. 10. Although he was on notice of the 

consequences, he persisted in the very behavior about which he 

was warned. Perhaps he just could not help himself, but he 

certainly knew his behavior could lead to the discipline he 

ultimately received. Pendley acted at his peril .... 

Although it appears that the judge took the letter into account in ruling that Pendley's 

protected activity played no role in Highland's decision to discharge him, it is undisputed that 

Larry Millburg, the Highland official who fired Pendley, did not know the warning letter existed 

until after he issued the termination letter. When asked if he knew of the warning letter at the 

time he issued Pendley the written suspension with intent to discharge, Millburg replied 

unequivocally, ''No, I did not know about- about this last and final written warning." TRH Tr. 

211-212. 

The judge's consideration of the warning letter when examining Millburg's motivation 

was erroneous. Highland readily admits that, "[t]he law holds that Millburg's disciplinary 

1 The judge had also discussed the letter at length in his factual findings. See 30 

FMSHRC at 467-68. 

31FMSHRC84 
decision must be judged on the basis of what Millburg believed at the time of the decision .... " 

H. Br. at 17 (emphasis added). As counsel for Highland acknowledged at oral argument before 

the Commission "case law clearly says that when assessing a disciplinary action ... you look at 

the mindset of the decision-maker." O.A. Tr. at 62. Moreover, the First Circuit has emphasized, 

"an employer cannot avoid liability in a discrimination case by exploiting a weakness in an 

employee's credentials or performance that was not known to the employer at the time of the 

adverse employment action (and that, therefore, could not have figured in the decisional 

calculus)." Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 751 (1st Cir. 1996).2 

The mindset of a supervisor determining the discipline to be meted out to an employee 

the supervisor knows to be the recipient of a "last chance letter" is obviously different from the 

mindset that would be employed if that supervisor was unaware of a prior warning. The 

supervisor in the first scenario is likely to engage in little or no weighing of factors - indeed 

might consider his or her hands to be tied. A supervisor in the second scenario, however, would 

undoubtedly consider him or herself to have more leeway in deciding the appropriate 

punishment. Such a supervisor would likely consider many factors before making a decision. 

The issue in this case is whether Pendley' s protected activity was a factor that entered into 

Millburg' s decision to discharge him. Close scrutiny of all pertinent evidence is required in 

order to answer that question. The manner in which the evidence is sifted and weighed, however, 

may well be affected by whether a judge believes the decision-maker was operating within the 

confines of a "last chance letter." 

Because Millburg was not aware of the letter when he terminated Pendley, his motivation 

for the discharge must be viewed without reliance on this evidence. The judge's determination 

as to whether Millburg was motivated solely by Pendley' s unprotected activity should thus be 

performed without the letter playing any part in the judge's consideration ofMillburg's mental 

process in arriving at his discharge decision. The judge's reference to the letter leaves me unsure 

that this occurred. 3 Consequently, I would remand the case to the judge for such an analysis. 

2 My colleagues claim that the judge's consideration of the prior disciplinary warning 

was appropriate. Slip op. at 17. They rely on Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 

(June 1982), in which the Commission stated that an operator may carry its burden by showing 

past discipline consistent with that meted out, the miner's unsatisfactory work record, prior 

warnings to the miner, and personnel rules forbidding the conduct in question. In Bradley, 

however, there was no indication that such evidence should be taken into account ifit was 

unknown to the decision-maker who took the adverse action against the complainant. 

3 The majority defends the judge's use of the letter, contending that he did not find that 

Millburg knew of it or relied on it. Rather, my colleagues emphasize that ''the judge noted that 

Pendley was aware of the consequences for engaging in similar conduct for which he was 

reprimanded in the October 2005 letter." Slip op. at 17 (emphasis in original). Pendley's 

knowledge of the letter and the possibility that he could be discharged for future transgressions is 

not relevant to the analysis the judge was charged with performing. There was no other reason 

31FMSHRC85 
2, Jn Analyzing Pendley's Retaliation Claim. the Judge Applied an Incorrect Legal Standard 

and Failed to Consider Relevant Evidence 

The judge ruled that Pendley did not suffer any adverse action from Highland when, 

subsequent to the·discharge, he returned to work as a result of the temporary reinstatement order. 

30 FMSHRC at 496-98. However, the judge applied an unduly restrictive standard in reviewing 

evidence pertaining to the Secretary's claim that after his reinstatement, Pendley was assigned 

additional and more difficult job duties. Id. at 483-86; 496-98. The judge noted that: 

While an assignment of duties outside the labor agreement 

or an assignment of more tasks than can be accomplished in a 

normal work period conceivably can constitute adverse actions, in 

this instance ... the evidence establishes the tasks Pendley was 

assigned fit squarely within the labor agreement ... [and] the 

record does not support finding Pendley was assigned more tasks 

than he reasonably could accomplish in an eight-hour work day. 

Id. at 497 (footnote omitted). The judge's premise that different or additional job assignments do 

not constitute adverse action if they fall within a miner's normal job classification constituted 

legal error and his adoption of this incorrect legal principle tainted his analysis of Pendley's 

adverse action claim. 

Jn Moses v. Whitley Development Corp., 4 FMSHRC 1475, 1478 (Aug. 1982), the 

C9mmission emphasized that: 

it is clear that section 105(c)(l) was intended to encourage miner 

participation in enforcement of the Mine Act by protecting them 

against "not only the common forms of discrimination, such as 

discharge, suspension, demotion ... but also against the more 

subtle forms of interference, such as promises of benefit or threats 

of reprisal." S. Rep. 95-191, 95th Cong,, 1st Sess. 36 (1977) ["S. 

Rep."], reprinted in Senate Subcommittee 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) .... 

Jn Glover v. Consolidation Coal Co., 19 FMSHRC 1529, 1534 (Sept. 1997), the 

Commission found that the complainants' transfer to section mechanic jobs involving more 

hazards and dangerous machinery than that used in their former positions, and heavy lifting not 

previously required, constituted adverse action. We acknowledged that "transfers to more 

for the judge to take into account whether the operator had given Pendley a warning except to use 

this information in deciding the question before him - whether Millburg's discharge of Pendley 

was motivated in any part by protected activity. 

31 FMSHRC86 
arduous or difficult work have been held to be discriminatory under the National Labor Relations 

Act." Id. at 1534 (citations omitted). 

I have found no case law qualifying the principles stated above in the narrow manner 

articulated by the judge. A transfer to more arduous job duties based on a miner's protected 

activity may constitute adverse action even if the new task is permitted by a union contract and is 

within the miner's job classification. Such a transfer may still have a chilling effect on miners' 

willingness to make safety complaints. 

The Supreme Court recognized this principle in Burlington Northern & Santa Fe Railway 

Co. v. White, 548 U.S. 53 (2006). In that case, the Court reasoned: 

Id. at 70-71. 

Burlington argues that a reassignment of duties cannot constitute 

retaliatory discrimination where, as here, both the former and 

present duties fall within the same job description .... We do not 

see why that is so. Almost every job category involves some 

responsibilities and duties that are less desirable than others. 

Common sense suggests that one good way to discourage an 

employee ... from bringing discrimination charges would be to 

insist that she spend more time performing the more arduous duties 

and less time performing those that are easier or more agreeable. 

The judge's error affected his analysis in two regards. First, it constrained his 

examination of the motivation behind the decision to discharge Pendley. A job assignment that 

might not rise to the level of adverse action can nevertheless indicate animus and therefore be 

relevant in analyzing whether the earlier decision to terminate Pendley was tainted by a 

retaliatory motive. Second, the error precluded the judge from correctly analyzing whether the 

job assignments Pendley received after he was ordered reinstated constituted a separate instance 

of discriminatory conduct in violation of section 105( c ). Thus, a remand is needed to evaluate 

the evidence using the proper legal standard. 4 

The judge's evaluation of the record led him to conclude that ''the evidence offers no 

support for finding Pendley'sjob assignments were designed to punish him .... " 30 FMSHRC 

.

4 Pendley challenged his discharge and the job assignments that occurred after he was 

·temporarily reinstated. Pendley also challenged his earlier three-day suspension as violative of 

section 105(c). 30 FMSHRC at 459-61. Pendley's suspension was determined by the judge to be 

illegally motivated by Pendley' s protected activity. Id. at 461. This activity led to Highland 

receiving several citations for failing to comply with accident reporting requirements. Id. at 4 71-

72. The judge's ruling that Highland discriminated against Pendley when it suspended him in 

December 2005 was not appealed. Slip op. at 1 n.2. 

31FMSHRC87 
at 497. In reaching this conclusion, however, the judge omitted any mention of one particular 

task assigned to Pendley following his temporary reinstatement - moving pallets of glue by hand. 

Pendley testified that he was told to move glue pallets without a forklift, and that when he arrived 

at his destination, there were already full pallets of glue on the unit. Tr. 1081-82.5 The 

implications of this assignment were not lost on fellow miners. Clarence Powell, a mechanic at 

the mine who tried to help Pendley {Tr. 483, 489), commented that 

Tr. 488. 

[W]hat made it so ironic was the fact that they specified for him 

[Pendley] to specifically pick that up [the glue] and haul it to the 

unit when ... there's low tracks or fork trucks passing by that area 

and they could just as easily scooped it up and took it theirselves 

instead of making an individual pick it up and haul it like they did 

him. 

Bernard Alvey, an outby support miner, Tr. 518, also observed Pendleymoving the glue 

by hand that night. He confirmed that''( a]ny other time ... [the glue] would have been picked 

up by a forklift or a scoop. It wouldn't have been hand loaded." Tr. 521. Alvey explained that a 

scoop was available and that in fact he "pulled around him [Pendley] twice that night with a 

scoop" while he was picking up the glue, but "[h Je told me that he was told to pick it up, that I 

couldn't pick it up with a scoop." Id. 

The judge also failed to discuss other evidence of work assignments being changed after 

persons made safety complaints. Larry Geary testified that after some miners questioned their 

foreman, Steve Bockhorn, about something "a few weeks later they were on a roof bolter off 

their regular job." Tr. 477. Asked why it would be bad to be assigned as a roof bolter, Geary 

e.x;plained, "the majority of us there are older people and we would rather have something other 

than a roof bolter because roof bolter basically is the hardest job in the mines." Id. 

Steven Tramel, Jr. testified that, as a battery maintenance worker, when he complained to 

the safety director about smoke he was transferred to work on the belts. Tr. 508-09. He also 

te$tified about a fellow miner, Robert John, who complained about the slope rope being dirty and 

then was assigned to it full-time. Tr. 511. The assignment was viewed as a retaliatory action by 

the miners, because although "[i]t wasn't really a different type job ... it was in the dead of 

winter," and, according to Tramel, "you don't need to be putting a man in the slope in the dead of 

winter all the time." Tr. 512. Asked ''why is that?" Tramel responded "[t]oo cold." Id. Tramel 

5 Despite the reluctance of my colleagues to address this evidence, slip op. at 21•22 n.24, 

I am mindful of the principle that "[i]n reviewing the whole record, an appellate tribunal must 

consider anything in the record that 'fairly detracts' from the weight of the evidence that supports 

a challenged finding." Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). 

31FMSHRC88 
believed John got the slope rope assignment "[b]ecause he complained to the federal about it." 

Id. In response to a question by the judge, the witness conceded the assignment was a job within 

the same classification. Id. Finally, James Morris testified that when he complained to federal 

officials about excessive exposure to rock dust, he was removed from his scoop job position and 

put on a roof bolter on the return side, which is exposed to more dust. Tr. 407. 

Accordingly, I would vacate the judge's decision and remand the case for a reevaluation 

of the post-reinstatement evidence. Such an analysis would be premised on the understanding 

that job duties assigned to a complainant may constitute adverse action, even if they are within 

his or her same job classification and pennitted by the union contract. I would also have the 

judge consider this evidence in reevaluating whether the operator's decision to discharge Pendley 

was in any way motivated by Pendley' s protected activity. 

For the foregoing reasons, I respectfully dissent. 

31FMSHRC89 
Distribution: 

Melanie J. Kilpatrick, Esq. 

R,ajkovich, Williams, Kilpatrick & True, PLLC 

2333 Alumni Park Plaza 

Suite 310 

Lexington, KY 4051.7 

Jaines B. Crawford, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

Mr. David Webb 

Agent for Services 

Highland Mining Co., LLC 

P,0.Box 569 

Morganfield,_ KY 4243 7 

Scott Maynard 

Highland Mining Co., LLC 

P.O. Box 569 

Morganfield, KY 42437 

Lawrence Pendley 

P.O. Box 84 

Broward, KY 42326 

David F. Barbour 

Administrative Law Judge 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

601 New Jersey Avenue, N. W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC90 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

FREEMAN ROCK, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

February 2, 2009 

Docket No. WEST 2008-1548-M 

A.C. No. 35-01041-158346 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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 September 16, 2008, the Commission received from 

Freeman Rock, Inc. ("Freeman") a letter seeking to reopen penalty assessments that had become 

·final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

On July 29, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA'') issued Proposed Penalty Assessment No. 000158346 to Freeman for seven citations. 

On September 16, 2008, Freeman filed a request to reopen this proposed assessment, stating that 

it is contesting the proposed assessment on the basis that it was not notified of unspecified 

changes in procedures at MSHA' s Albany Field Office. It further alleges that it had been 

building its defense in this case during a busy season and did not realize that the time to contest 

had passed. 

The Secretary responds that the operator's request for reopening should be denied. She 

states that the circumstances as stated by the operator, that the operator was not notified of 

changes in procedures at MSHA's field office and that it did not realize that it was out of time, 

do not qualify as circumstances that warrant reopening under Rule 60(b) of the Federal Rules of 

Civil Procedure. 

31FMSHRC91 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) under 

which, for example, a party could be entitled to relief from a final order of the Commission on 

the basis of inadvertence or mistake. See 29 C.F.R. § 2700. l (b) ("the Commission and its Judges 

shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 

FMSHRC at 787. 

Having reviewed Freeman's request to reopen and the Secretary's response, we agree 

with the Secretary that, as its allegations are currently stated, Freeman has failed to show 

circumstances that warrant reopening the proposed penalty assessment. It is unclear from 

Freeman's statements what alleged changes in the procedures at MSHA's Albany Field Office 

Freeman is referring to, whether the alleged changes affected Freeman's ability to timely contest 

the proposed penalty assessment, and, if so, what that effect was. 

31 FMSHRC92 
Accordingly, we deny without prejudice Freeman's request. See, e.g., Eastern Associated 

Coal, LLC, 30 FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 

(July 2007). The words "without prejudice" mean that Freeman may submit another request to 

reopen the case so that it can contest the citations and penalty assessments.1 

'-

~~ 

Robert F. Cohen, Jr., CommissiJner 

1 If Freeman submits another request to reopen the case, it must identify the specific 

citations and assessments it seeks to contest. Freeman must also establish good cause for not 

contesting the citations and proposed assessments within 30 days from the date it received the 

proposed penalty assessments from MSHA. Under Rule 60(b) of the Federal Rules of Civil 

Procedure, the existence of "good cause" may be shown by a number of different factors 

including mistake, inadvertence, surprise or excusable fault on the part of the party seeking relief, 

or the discovery of new evidence, or fraud, misrepresentation or other misconduct by the adverse 

party. Freeman should include a full description of the facts supporting its claim of "good 

cause," including how the mistake or other problem prevented Freeman from responding within 

the time limits provided in the Mine Act, as part of its request to reopen the case. In addition, 

Freeman should submit copies of supporting documents with its request to reopen the case. 

31 FMSHRC93 
Distribution: 

Ted Freeman, Jr. 

Freeman Rock, Inc. 

P.O. Box 1218 

Brookings, OR 97 415 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra J runes, Chief 

Office of Civil Penalty Compliance 

MSHA __ 

U.S. Department of Labor 

1l00 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC 94 -
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMJNISTRATION (MSHA), 

v. 

BRODY MINING, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

February 2, 2009 

Docket No. WEV A 2008-1861 

A.C. No. 46-09086-135505 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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 September 23, 2008, the Commission received from 

Brody Mining, LLC ("Brody") a request by counsel to reopen a penalty assessment that had 

become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. 

§ 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

On January 8, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000135505 to Brody proposing civil penalties for 

violations alleged in 15 citations. Brody states that on approximately January 24, 2008, its safety 

director mailed the proposed assessment and a check to MSHA to pay 11 of the 15 penalties. Of 

the 15 citations in the Proposed Assessment that was returned to MSHA, Citation Nos. 7280178, 

7280180, 9967987, and 9967988 were checked for contest and blackened out. The operator 

submits that on the same date, the safety director also faxed copies of the Proposed Assessment 

and check to MSHA's Civil Penalty Compliance Office and copied counsel on the fax. Counsel 

states that he mistakenly believed that the safety director was contesting the four citations, while 

the safety director believed that counsel would separately contest the citations. Brody states that 

31FMSHRC95 
MSHA has since marked Citation Nos. 7280178, 7280180, 9967987, and 9967988 as delinquent 

and the remaining citations in the case, to which payment was applied, as closed. 

In response, the Secretary states that she opposes the request to reopen. The Secretary 

explains that on April 3, 2008, MSHA sent the operator a notice indicating that the assessment 

had become a final order on February 14, 2008. She submits that the notice, which was sent to 

th,e address listed on the operator's legal identity form, was returned to MSHA as "undelivered."1 

The Secretary contends that the operator fails to explain why, after MSHA had informed it that it 

had not contested the Proposed Assessment, it took over half a year to request reopening. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessment forms that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so 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). 

1 The Secretary notes that the notice was sent to the same address as the Proposed 

Assessment, which the operator states that it received. 

31 FMSHRC96 
Having reviewed Brody's request and the Secretary's response, in the interests of justice, 

we remand this matter to the Chief Administrative Law Judge for a determination of whether 

good cause exists for Brody's failure to timely contest the penalty proposal and whether relief 

from the final order should be granted. We ask the Judge, in considering the matter, to ascertain 

the reasons for the delay of the operator in seeking relief from the final order. If it is determined 

that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the 

Commission's Procedural Rules, 29 C.F.R. Part 2700. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC97 
Distribution: 

William K. Doran, Esq. 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 

2400 N Street NW, 5th Floor 

Washington, DC 20037 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Department of Labor, 

llOO·Wilson Blvd., 25th Floor, 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC98 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MJNE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ESTACADA ROCK PRODUCTS 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

February 3, 2009 

Docket No. WEST 2008-812-M 

A.C. No. 35-00483-133754 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Cominissioners 

ORDER 

BYTHE 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 April 10, 2008, the Commission received from Estacada 

Rock Products ("Estacada") a request to reopen a penalty assessment that had become a final 

order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed 

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause 

31 FMSHRC99 
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). 

Having reviewed Estacada's request and the Secretary's response, in the interests of 

justice, we hereby remand this matter to the Chief Administrative Law Judge for a determination 

of whether good cause exists for Estacada's failure to timely contest the penalty proposal and 

whether relief from the final order should be granted. If it is determined that such relief is 

appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural 

Rules, 29 C.F.R. Part 2700. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 100 
Distribution: 

David L. Coffin, Vice President 

Estacada Rock Products, Inc. 

29400 S. E. Rivennill Rd. 

P.O. Box2I8 

Estacada, OR 97023 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

I I 00 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSI:IA -

U.S. Department of Labor 

I I 00 Wilson Blvd., 25th Floor 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

60I New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 2000I-202I 

31FMSHRC101 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

M1NE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

February 4, 2009 

Docket No. SE 2009-95-M 

A.C. No. 38-00305-161453 

LAP ARGE BUILDING MATERIALS, INC. 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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 November 12, 2008, the Conunission received from 

Lafarge Building Materials, fuc. ("Lafarge") a motion made by counsel to reopen a penalty 

assessment that had become a final order of the Commission pursuant to section 105(a) of the 

Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 1 

We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). fu evaluating requests to 

1 The record indicates that a company official inadvertently forwarded the contest form to 

Lafarge's financial services center for payment and that, as a result, the contest form was mailed 

one day late to MSHA. 

31FMSHRC102 
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R. 

§ 2700. l (b) ("the Commission and its Judges shall be guided so 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). 

Having reviewed Lafarge's request and the Secretary's response, in the interests 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. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment 

of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

~· ~~~~··· ~~ Michael F • >Chai1'lll3.11 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 103 
Distribution: 

Laura E. Beverage, Esq. 

Jackson Kelly PLLC 

1099 l 81h Street, Suite 2150 

. Denver, CO 80202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Department of Labor· 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC 104 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ENDURANCE MINING 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

February 4, 2009 

Docket No. WEV A 2009-267 

A.C. No. 46-08549-157507 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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 November 12, 2008, the Commission received from 

Endurance Mining ("Endurance") a request to reopen a penalty assessment that had become a 

final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105( a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700. l(b) ("the Commission and its Judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed 

31 FMSHRC 105 
that default is a harsh remedy and that, ifthe 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). 

Having reviewed Endurance's request and the Secretary's response, in the interests of 

justice, we hereby remand this matter to the Chief Administrative Law Judge for a determination 

of whether good cause exists for Endurance's failure to timely contest the penalty proposal and 

whether relief from the final order should be granted. If it is determined that such relief is 

appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural 

Rules, 29 C.F .R. Part 2700. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC I 06 
Distribution: 

Max L. Corley, ill, Esq. 

Dinsmore & Shohl, LLP 

P. 0. Box 11887 

900 Lee Street, Suite 600 

Charleston, WV 25339 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief · 

Office of Civil Penalty Compliance 

MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC 107 
FEDERAL MINI; SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY A.Nb HEALTH 

ADMINISTRATION (MSHA) 

v. 

STANDARD SAND & 

SILICA COMP ANY 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

February 5, 2009 

Docket No. SE 2008-546-M 

A.C. No. 09-00815-126587 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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 April 2, 2008 and May 8, 2008, the Commission received 

letters from Standard Sand & Silica Company ("Standard Sand") seeking to reopen a penalty · 

ruisessment that had become a final order of the Commission pursuant to section 105(a) of the 

Mine Act, 30 U.S.C. § 815(a). 

Under section 105{a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

On September 5, 2007, the Department of Labor's Mine Safety and Health 

Administration {"MSHA") issued a proposed penalty assessment to Standard Sand. On 

December 6, 2007, MSHA apparently sent a notice to Standard Sand indicating that the penalty 

had become delinquent and payment was due. In its first letter to the Commission, dated 

March 28, 2008, Standard Sand's Safety Services Manager asserts that the operator "originally 

contested the citation in late October by sending in the Proposed Assessment Case Number: 

000126587." Attached to this letter is a copy of the proposed assessment with the notation 

"Rec'd 9/12/07" and the initials of the Safety Services Manager. In his second letter to the 

Commission, dated May 5, 2008, the Safety Services Manager states that in late October he 

"forwarded the original Proposed Assessment- Case Number 000126587 to Standard Sand & 

31 FMSHRC 108 
Silica's accounts payable department with the Check for Contest box checked to be sent in as 

proper procedure." 

Standard Sand further states that it never received MSHA's delinquency notice. It claims 

that the first time it learned that the assessment had not been contested was on March 28, 2008, 

when it received a collection notice from the Department of Treasury. On the same day, 

Standard Sand sent its initial letter to the Commission requesting reopening. 

The Secretary states that although she does not oppose the reopening of the assessment, 

MSHA has no record of receiving the penalty contest form. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become fmal Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so 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). 

31 FMSHRC 109 
Having reviewed Standard Sand's request and the Secretary's response, in the interests of 

justice, we remand this matter to the Chief Administrative Law Judge .. On remand, the judge 

should determine whether Standard Sand mailed its contest to MSHA, and if so, whether it did so 

prior to the 30-day deadline set forth in section 105( a). If the judge finds that the assessment was 

not timely contested, he should determine-whether good cause exists for Standard Sand's failure 

to timely contest the penalty proposal and whether relief from the final order should be granted. 1 

If it is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act 

and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

,._<~' ~ ..• ""· 

Michael F.~_.-;. _ __,...,. ~Ko.\-

Robert F. Cohen, Jr., Commissioner 

1 The judge should specifically determine what Standard Sand actually did to allegedly 

contest the proposed penalty assessment and when it did so. If Standard Sand failed to meet the 

30-day deadline, it should provide reasons to the judge as to why its neglect is excusable. 

31 FMSHRC 110 
Distribution: 

Gordan J. Broadhead, Safety Services Mngr. 

Standard Sand & Silica, Inc. 

1850 Hgwy. 17 /92 North 

P .0. Box 1059 

Davenport, FL 33836-1059 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA .-

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31FMSHRC111 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

RUSCAT ENTERPRISES, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

February 5, 2009 

Docket No. WEV A 2009-143 

A.C. No. 46-06843-159507 

BEFORE: Duffy, Chairm!lll; Jordan, Young, and Cohen, 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 October 7, 2008, the Commission received from Ruscat 

Enterprises, Inc. ("Ruscat") a request to reopen a penalty assessment that had become a final 

order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105( a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 1 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

1 The record indicates that the company, which has only one full-time office employee 

and relies in part upon an outside safety consultant, was only three days late in mailing the 

contest form, having mailed the contest form on a Monday rather than the preceding Friday. 

31FMSHRC112 
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Com.mission <;>n 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). 

Having reviewed Ruscat' s request and the Secretary's response, in the interests 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. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of 

penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 113 
Distribution 

Howard R. Morris, President 

R,uscat Enterprises, Inc. 

P.O. Box 1537 

Welch, WV 24801 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

l l 00 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1 l 00 Wilson Blvd., 251

h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC 114 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

OAK GROVE RESOURCES, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

February 11, 2009 

Docket No. SE-2009-20 

A.C. No. 01-00329-155698 

Docket No. SE-2009-21 

A.C. No. 01-00851-155699 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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 October 9, 2008, the Commission received from Oak 

Grove Resources, LLC, {"Oak Grove") a request to reopen two penalty assessments that had 

become final orders of the Commission pursuant to section 105{a) of the Mine Act, 30 U.S.C. 

§ 815(a). 1 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessments. 2 

1 Pursuant to Commission Procedural Rule 12, on our own motion, we hereby 

consolidate docket numbers SE 2009-20 and SE 2009-21, each captioned Oak Grove Resources, 

LLC, and involving similar procedural issues. 29 C.F.R § 2700.12. 

2 The record indicates that, because of internal delays, Oak Grove filed its contests one 

day late, and promptly filed a motion to reopen upon discovering that the contests were untimely. 

31FMSHRC115 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (".!WR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order 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). 

Having reviewed Oak Grove's request and the Secretary's response, in the interests of 

justice we hereby reopen these matters and remand them 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. Accordingly, consistent with Rule 28, the Secretary shall file petitions for 

assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC116 
Distribution: 

Justin A. Rubenstein, Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd. 

Suite 310 

Morgantown, WV 26501 

W. Christian Schuinann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

U.S. Dept. Of Labor 

Office of Civil Penalty Compliance 

MSHA 

1100 Wilson Blvd., 25th Fl. 

Arlington, VA 22209 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31FMSHRC117 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MlNE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

J & T SERVICES 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

February 11, 2009 

Docket No. SE-2009-49-M 

A.C. No. 40-00864-157739 U424 

BEFORE: Duffy, Chaiffi!an; Jordan, Young, and Cohen, 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 October 10, 2008, the Commission received from J & T 

Services (''J & T") a request to reopen a penalty assessment that had become a final order of the 

Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105( a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 1 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a)~ Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (''JWR"). fu evaluating requests to 

1 The record indicates that the individual at the company who would have reviewed the 

assessment died in an accident during the 30-day period, and that the company was only two days 

late in filing its contest. 

31FMSHRC118 
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have 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. Se,,,s., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed J & rs request and the Secretary's response, in the interests 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. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of 

penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

Michael G 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC119 
Distribution: 

Jerry M. Vaughn, Owner 

J &T Services 

3390 Pulaski Highway 

Columbia, TN 38401-8517 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31FMSHRC120 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v .. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

February 11, 2009 

Docket No. WEST 2009-203-M 

A.C. No. 24-02318-156943 

BILL BALTRUSCH CONSTRUCTION, INC. 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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 November 20, 2008, the Commission received from Bill 

Baltrusch Construction, Inc. (''Baltrusch") a request to reopen a penalty assessment that had 

become a final order of the Commission pursuant to section IOS(a) of the Mine Act, 30 U.S.C. 

§ 815(a). 

Under section 105( a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section I05(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

reopen final section IOS(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed 

31FMSHRC121 
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., 17FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed Baltrusch' s request and the Secretary's response, in the interests of 

justice, we hereby remand this matter to the Chief Administrative Law Judge for a determination 

of whether good cause exists for Baltrusch' s failure to timely contest the penalty proposal and 

whether relief from the final order should be granted. If it is determined that such relief is 

appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural 

Rules, 29 C.F.R. Part 2700. 

Michae!F.~Ch~ ~Cc~ 

MarY ML~ ~rdan, CQlnmissioner 

Michae 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC122 
Distribution: 

Bill Baltrusch, President 

Bill Baltrusch Construction, Inc. 

P.O. Box 111 

Havre, MT 59501-0111 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

US Dept. Of Labor 

1100 Wilson Blvd., Rm 2220 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC 123 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMlNISTRATION (MSHA) 

v. 

WOLF RUN MlNING COMP ANY 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

February 11, 2009 

Docket No. WEV A 2009-259 

A.C. No. 46-04168-156462 

BEFORE: Duffy, Chainnan; Jordan, and Young, Commissioners1 

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 November 5, 2008, the Commission received from Wolf 

Run Mining Company ("Wolf Run") a motion by counsel to reopen a penalty assessment that 

had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 

U,S.C. § 815(a). 

Under section 105( a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

as$essment. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

1 Commissioner Cohen did not participate in this matter. 

31 FMSHRC 124 
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 neglect. See 29 

C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the 

Federal Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have 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). 

Having reviewed WolfRun's request and the Secretary's response, in the interests of 

justice, we remand this matter to the Chief Administrative Law Judge for a determination of 

whether good cause exists for WolfRun's failure to timely contest the penalty proposal and 

whether relief from the final order should be granted. If it is determined that such relief is 

appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural 

Rules, 29 C.F.R. Part 2700. 

MaryLu v~ J~, Co~issioner .. 

31FMSHRC125 
Distribution: 

R Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center 

Suite 1340 

401 Liberty Avenue 

Pittsburgh, PA 15222 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

A,rlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

F¢deral Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31FMSHRC126 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SOUTHERN INDUSTRIAL 

CONSTRUCTORS 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

February 12, 2009 

Docket No. SE 2008-923-M 

A.C. No. 31-02153-148029 C2S 

BEFORE: Duffy, Chainrian; Jordan, Young, and Cohen, 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 August 5, 2008, the Commission received from Southern 

Industrial Constructors ("Southern") a request to reopen a penalty assessment that had become a 

final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 1 

We have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section 105(a). 

1 The record indicates that a company official mistakenly believed that counsel would be 

submitting the contest of the penalty while counsel believed that the company had chosen to 

handle the contest itself Upon learning of the delinquency, the operator promptly filed its 

Motion to Reopen Penalty Assessment. 

31FMSHRC127 
Jim Walter Res., Inc.; 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

reopen final section I 05( a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so 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 cas.e may be reopened and appropriate proceedings on the merits permitted. 

See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed Southern's request and the Secretary's response, in the interests 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. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment 

of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC128 
Distribution: 

Adele L. Abrams, Esq. 

Law Office of Adele L. Abrams, P.C. 

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31FMSHRC129 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ISP MINERALS, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

February 17, 2009 

Docket No. CENT 2008-714-M 

A.C. No. 23-00288-117226 . 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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 August 21, 2008, the Commission received from ISP 

Minerals, fuc. ("ISP") a motion made by counsel to reopen a penalty assessment that had become 

a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that upon review of the record, she has found that service of the 

proposed assessment was not achieved, and as a result, the assessment did not become a valid 

final order. The Secretary plans to re-send the proposed assessment to the correct address and 

then ISP will have 30 days after receipt to contest the penalty. Accordingly, the Secretary 

submits that the request to reopen should be dismissed as moot. 

31 FMSHRC 130 
Given the circumstances and in the interest of justice, we conclude that service of the 

proposed assessment was never made, and thus there is no final order under section I 05( a) of the 

Mine Act. Hence, ISP's motion is moot and the motion is dismissed. 

-

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 131 
Distribution: 

Brent I. Clark, Esq. 

Seyfarth Shaw, LLP 

131 S. Dearborn St., Suite 2400 

Chicago, IL 60603 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

l l 00 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC 132 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADM1NISTRA TION (MSHA) 

v. 

OMIS RICKY SMITH 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

February 17, 2009 

Docket No. KENT 2008-1482 

A.C. No. 15-18788-122198M 

BEFORE: Duffy, Chaimfan; Jordan, YoWlg, and Cohen, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises Wlder the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2006) ("Mine Act"). On August 21, 2008, the Commission received from Omis 

Ricky Smith ("Smith") a letter to reopen a penalty assessment that had become a final order of 

the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

The Secretary states that upon review of the record, she has foWld that service of the 

proposed assessment was not achieved, and as a result, the assessment did not become a valid 

final order. The Secretary plans to resend the proposed assessment to the correct address and 

then Mr. Smith will have 30 days after receipt to contest the penalty. Accordingly, the Secretary 

submits that the request to reopen should be dismissed as moot. 

31 FMSHRC 133 
Given the. circumstances and in the interest of justice, we conclude thats~rvice of the 

proposed assessment was never made, and thus there is no final order under section 105(a) of the 

Mine Act. Hence, Mr. Smith's motion is moot and his request is dismissed. 1 

Mich 

Robert F. Cohen, Jr., Commissioner 

1 This means that at present, there is no order requiring Mr. Smith to pay a penalty. 

However, the Secretary has the right to send a copy of the proposed assessment to Mr. Smith at 

his correct address. Upon receipt of the re-sent proposed assessment, Mr. Smith will have to 

submit a notice of contest to MSHA. The matter will then be referred to the Commission for a 

hearing. 

31FMSHRC134 
Distribution: 

Omis Ricky Smith 

P.O. Box 147 

Banner, KY 41603 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31FMSHRC135 
31 FMSHRC 136 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 

202-434-9981frELE FAX: 202-434-9949 

January 2, 2009 

CUMBERLAND COAL RESOURCES, LP : CONTEST PROCEEDINGS 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

Docket No. PENN 2008-51-R 

Citation No. 7025468; 10/04/2007 

Docket No. PENN 2008-52-R 

Order No. 7025469; 10/04/2007 

Docket No. PENN 2008-53-R 

Order No. 7025480; 10/22/2007 

Docket No. PENN 2008-54-R 

Order No. 7025481; 10/1112007 

Cumberland Mine 

Mine ID 36-05018 

DECISION 

Appearances: Donald K. Neely, Esq., Office of the Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, on behalf of the Secretary of Labor; 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, on behalf 

of Cumberland Coal Resources, LP. 

Before: Judge Zielinski 

These cases are before me on Notices of Contest filed by Cumberland Coal Resources, 

LP, pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815. 

The notices challenge a citation and three orders issued by the Secretary's Mine Safety and 

Health Administration. A hearing was held in Pittsburgh, Pennsylvania, and the parties filed 

briefs after receipt of the transcript. For the reasons set forth below, the citation and orders are 

affirmed. However, Citation No. 7025468 and Order Nos. 7025469 and 7025480 are modified to 

citations issued pursuant to section 104(a) of the Act. 

Findings of Fact - Conclusions of Law 

Cumberland Coal Resources, LP, operates a large underground coal mine, the 

Cumberland Mine, in Gree1:1e County, Pennsylvania. The Cumberland Mine is a "gassy" mine, 

liberating over one million cubic feet of methane in a 24-hour period, and is subject to 5-day spot 

31FMSHRC137 
inspections by the Secretary's Mine Safety and Health Administration pursuant to section 103(i) 

of the Act. On October 4, 2007, MSHA coal mine inspector, Barry Radolec, conducted a regular 

quarterly inspection of the mine. David Severini, Radolec's supervisor, accompanied him in 

o,rder to conduct an evaluation of his performance. Tr. 170. Severini's supervisor, assistant 

district manager Anthony Guley was also present to evaluate Severini 's performance. Ronald 

Duke, a United Mine Workers of America representative, and Michael Konosky, Cumberland's 

representative, completed the inspection party. 

Before starting his inspection, Radolec reviewed the MSHA mine file and, when he 

arrived at the mine, reviewed the preshift and onshift report books for the 8 Butt section. He 

noticed entries for several previous days to the effect that areas of the belt entry from crosscuts 

#25 to #30 and #11 to #15 needed rock dusting. Tr. 66-67; ex. G-5. He traveled to the 8 Butt 

s¢etion, disembarking at the #11 crosscut so that he could walk the belt entry from that point to 

the working places near crosscuts #33 and #34. The conveyor belt transporting coal away from 

the section was five to six feet wide and its bottom rollers were 18-24 inches above the mine 

floor. Tr. 70. He found no hazardous conditions between crosscuts #11 and #15. Tr. 138. At 

the #17.5 crosscut, he observed that the belt had gone out of alignment. One side ofthe lower 

portion of the belt was rubbing on a metal belt stand. The abrasive action of the belt had cut into 

the steel stand approximately one-quarter to one-half inch. The stand was warm to the touch, and 

there was blue "smoke" rising about six to eight inches from the belt/stand contact point. Tr. 70-

71. There was a small, pyramid-shaped pile of belt shavings, about six inches high near the point 

where the belt was rubbing the stand. Radolec believed that the belt was on fire and that the blue 

"smoke" was an indication that rubber was burning.1 Tr. 71-72. When Duke, the miners' 

representative, observed the condition, he promptly took.the belt out of service so that the 

misalignment could be corrected. Tr. 75. Radolec then proceeded with the inspection; traveling 

inby. 

Radolec observed accumulations of dry black float coal dust, coal fines and loose coal in 

the entry between crosscuts #25 and #25.5, #26.5 and 50 feet outby #27, and #27 and #30.5. The 

coal and fines and loose coal were underneath the belt and ranged 4 inches deep in the center of 

the 16-foot wide entry and tapered out to one-half inch deep near the ribs. Between crosscuts 

#28 and #30.5 there were piles six to ~ight inches deep and 24 inches in diameter. Tr. 77..,80; 

137. There was a thin layer of float coal dust on the belt structures, electric cables and switches. 

Tr. 36, 80, 172. The float coal dust was deposited on "token" rock dust, such that, when wiped, 

it was gray in color. Tr. 49, 83, 160, 164, 172-73. Radolec determined that the condition was 

highly likely to result in a fire that would cause fatalities because the belt presented several 

potential ignition sources, including, the misalignment, the possibility of additional 

misalignments, and the possibility of a failure of a roller bearing resulting in sparking and 

friction. He also considered the presence of electrical cables, boxes and switches. Tr. 85-86. 

1 Radolec issued Citation No. 7025467, alleging a violation of 30 C.F.R. § 75.1725(a)~ · 

for failure to maintain machinery in a safe condition. Ex. G-2. That citation is not at issue in 

these proceedings. 

31 FMSHRC 138 
He detennined that Cumberland's negligence with respect to the violation was high because of 

the notations "needs dusted" that had been reported on records of preshift examinations from 

September 25 to October 4. At 9:30 a.m., he issued Citation No. 7025468, pursuant to section 

104( d) of the Act, alleging a significant and substantial and unwarrantable failure violation of 

30 C.F.R. § 75.400, which requires that combustible materials be cleaned up and not allowed to 

accumulate, and specified that the violation was to be terminated by 1 :40 p.m., that day. Ex. G4. A crew of eight to ten miners began shoveling the accumulations, worked for about an hour 

until the inspection party left, and continued thereafter. Tr. 52. Radolec also issued Order No. 

7025469, alleging a significant and substantial and unwarrantable failure violation of 30 C.F.R. 

§ 75.363(a), which requires that hazardous conditions found during preshift examinations be 

corrected immediately or be posted with a conspicuous danger sign. Ex. G-8. He left the mine 

after completing the inspection. 

Radolec returned to the mine on October 9, to detennine if the cited conditions had been 

abated.2 He inspected the subject area and found that it had been approximately 75% cleaned. 

Tr. 104. Although a light layer of rock dust had been applied, coal fines were still present in the 

area of the #29 to #30 crosscuts. Radolec spoke to Fred Evans, a Cumberland safety 

representative, who instructed two miners to clean the area. Tr. 104-05. Radolec extended the 

time within which the violation was to be terminated to 2:45 p.m. on October 9, and then left the 

mine. He returned on October 11 to conduct a 5.;.day spot inspection for methane. Tr. 106. 

Accompanied by Walter Lemenovich, an MSHA trainee inspector, John Peny, a Cumberland 

safety representative, and Mickey Geisel, a miners' representative, he proceeded to the 8 Butt 

belt entry at the #29 to #30 crosscuts, expecting to terminate the accumulations violation. 

However, he found the area in the same condition it had been in on October 9. No more work 

had been done and there had been only token rock dusting. Tr. 107-08. At 10:30 a.m., he 

terminated the Citation and issued Order No. 7025481, pursuant to section 104(b) of the Act.3 

He told Perry to take the belt out of service, and to have the area cleaned and dusted immediately. 

Tr. 108-09; ex. G-10, G-7 at 14-15. At around 12:00 noon, Perry advised that the condition had 

been corrected. However, Radolec refused to terminate the Order until further rock dusting had 

been done. Tr. 111. The Order was terminated at 1 :20 p.m. 

On October 11, while en route to check on the area of the accumulations, Radolec 

inspected the track haulage entry because he had seen notations in the preshift book for at least 

five shifts to the effect that garbage was located at the #10 and #20 crosscuts. At crosscut #10, 

he observed wooden pallets, plastic containers, empty oil cans, paper bags and cardboard boxes, 

2 October 4, 2007, was a Thursday, and Monday, October 8, was a holiday. 

3 Section 104(b) of the Act provides that, where an inspector determines that a violation 

cited under section 104(a) "has not been totally abated within the period of time as originally 

fixed or subsequently extended, and that the period of time for the abatement should not be 

further extended," he shall issue an order requiring the withdrawal of affected miners from the 

area. 30 U.S.C. § 814(b). 

31 FMSHRC 139 
piled irregularly two to three feet high, half way across the crosscut for half of its length, an area 

about 8 by 35 feet. Tr. 449-51. At crosscut#20, he observed a large plastic trash bag hanging 

from the rib, filled with empty oil cans and plastic containers. At 9:45 a.m., he issued Order No. 

7025480, pursuant to section 104{d){l)ofthe Act, alleging a significant and substantial and 

unwarrantable failure violation of the combustible accumulations standard, 30 C.F.R. § 75.400. 

Upon his return to the MSHA field office, the Order was reviewed with Severini, and was 

modified to allege that an injury was unlikely, that the violation was not S&S and that no persons 

were affected. 

Cumberland timely filed Notices of Contest with respect to the Citation and Orders. The 

parties have represented that disposition of these Contest Proceedings will facilitate resolution of 

any remaining issues, e.g., those associated with the determination of appropriate civil penalties, 

such that no further hearing will be required. The alleged violations are addressed below. 

Citation No. 7025468 

Citation No. 7025468, issued on October 4, 2007, alleges a violation of 30 C.F .R 

§ 75.400, which provides:-

§ 75.400 Accumulation of combustible materials 

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. 

The alleged violation was described in the "Condition and Practice" section of the Citation as 

follows: 

An accumulation of dry black coal float dust and dry black coal fines 

existed in the conveyor belt entry on the active 8 Butt {027) M.M.U. development 

mining section of the mine. This accumulation existed starting at the number 25 

cross-cut and continued to the number 30 112 cross-cut, the location of the 

conveyor belt tail roller. These accumulations of dry black coal float dust existed 

on the conveyor belt structure, metal 6-inch pipe line, roof support metal channels, 

mine roof and ribs, mine floor, electrical power cables, on/off electrical switches, 

dry black coal fines and plastic mesh installed on the ribs. The accumulations of 

dry black coal fines measured from 1/2 inches to 4 inches across the width of the 

16 foot wide entry and for a distance of 7 5 feet from number 25 to 25 1/2 crosscut. Also the same type coal fines existed from 26 1/2 cross-cut to 50 feet out by 

number 27 cross-cut. Number 27 to number 30 112 cross-'cut the same type coal 

fines existed along side and under conveyor and in cross-cuts. Number 28 crosscut to the tail roller coal piles existed under the bottom conveyor belt bottom 

31 FMSHRC 140 
rollers that measured 6 inches to 8 inches in depth, 24 inches wide and 24 inches 

long. This type of condition creates a Highly Likely condition for a coal dust 

explosion and mine fire to occur. This condition has been reported in the pre shift 

record book since 9/25/2007, 8:00 P.M. to 8:40 P.M. and continued until this days 

pre-shift examination. This type violation has been issued 63 times in the last 2 

years at this mine. 

Ex. G-4. 

Radolec determined that it was highly likely that the violation would result in a fatal 

injury, that the violation was S&S, that one person was affected, and that the operator's 

negligence was high. The citation was issued pursuant to section 104( d)(l) of the Act, and 

alleged that the violation was the result of the operator's unwarrantable failure to comply with 

the mandatory standard. · 

The Violation 

Radolec and Severini testified about the conditions they observed, as documented in the 

Citation. Supervisory inspector Severini traveled to the section separately, and met Radolec near 

the feeder. Radolec informed him of the accumulations that he had found and the belt 

misalignment. They then walked back outby, from the belt tailpiece to crosscut #28. Severini 

observed the float coal dust on the roof, ribs and belt structure. Tr. 172-73. He also observed 

accumulations under the belt, almost rib to rib. Tr. 173. He and Radolec concluded that the 

conditions may have been the result of an inadequate cleanup in conjunction with the last belt 

move, and that the material had been dragged up the entry as the belt was extended. He saw 

"token rock dusting, at best." Tr. 173. He agreed that the area needed to be cleaned and bulk 

rock dusted. 

In his capacity as a supervisory inspector, Severini reviews citations and orders written by 

inspectors. He agreed with Radolec's determination that the standard had been violated, and 

with his assessment of gravity, although he did not appear to regard the conditions as seriously as 

Radolec, stating that the condition ''wasn't the worst I've ever seen. But it was unacceptable." 

Tr. 175. Duke, the miners' representative, assisted Radolec in talcing measurements of the depth 

of the accumulations, and confirmed the existence of the conditions in the entry as described in 

the Citation. Tr. 36. He testified that after a belt move, the area is usually "fling dusted," but 

that it hadn't been done as far as he could tell.4 Tr. 36-37. He believed that the condition was 

hazardous, primarily because of the float coal dust. Tr. 38. Duke disagreed with Radolec's 

instruction that material along the ribs and in the crosscuts had to be shoveled. "The stuff that 

was along the rihs is the draw slate, it flakes off. ... I felt it wasn't that bad to where it needed 

4 Fling dusting is done with a mechanical distributer mounted on a scoop, and is applied 

to the cleaned area before the belt tailpiece is moved inby. Bulk rock dusting is done with an air 

blowing system after a belt move has been completed. Tr. 174, 235, 243. 

31FMSHRC141 
[to be] shoveled." Tr. 47. 

Konosky, a senior safety representative at Cumberland, traveled to the 8 Butt section with 

Severini and Guly, and met Radolec and Duke at the feeder. When informed that the 

accumulations citation had been issued, he examined the belt entry in the area of the #25 to #30 

crosscuts. While he did not agree that there were dry black coal fines across the width of the 

entry, he confirmed that there were some spots with some spillage, and explained '<that's coal 

mining." Tr. 223. He testified that the area had been fling dusted when the belt was moved, but 

djd not know if there was float coal dust present, and explained that rock dust is darker when it is 

wet and could be mistaken for float coal dust. Tr. 221-22. 

There is relatively little dispute concerning the existence of the conditions, as described 

by Radolec, Severini and Duke, each of whom has considerable mining experience. Konosky did 

not refute their testimony, and his explanation that rock dust, when wet, could be mistaken for 

float coal dust was unconvincing. Accumulations of loose coal and coal fines, one-half to four 

inches deep, were present across nearly the entire width of the belt entry in several locations from 

the #25 to the #30.5 crosscuts. There were irregularly spaced piles of coal from six to eight 

inches deep between crosscuts #28 and #30.5. In addition, there was a thin layer of float coal 

dust on stationary horizontal surfaces, deposited on _an inadequate layer of rock dust that had 

been applied by hand. The area had not been fling dusted when the belt moves were done, and 

bulk rock dusting had not progressed to that area. While some of the material along the ribs and 

in the crosscuts was non-hazardous draw slate, and some rock dust had been applied in the area, a 

significant quantity of combustible material had been permitted to accumulate, in violation of the 

standard.5 

Significant and Substantial 

A significant and substantial ("S&S") violation is described in section 104(d)(l) of the 

Act as a violation "of such nature as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." A violation is properly designated 

S&S "if, based upon the particular facts surrounding that violation, there exists a reasonable 

likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious 

nature." Cement Div., Nat'! Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

The Commission has explained that: 

In order to establish that a violation of a mandatory safety standard is 

significant and substantial under National Gypsum, the Secretary of Labor must 

prove: (I) 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 

5 I also find that a reasonably prudent person, familiar with the mining industry and the 

protective purposes of the Act, should have realized that the conditions violated the standard. 

31 FMSHRC 142 
violation; (3) a reasonable likelihood that the hazard co.ntributed to will result in 

an injury; and ( 4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861F.2d99, 

103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving 

Mathies criteria). 

In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission 

provided additional guidance: 

We have explained further that the third element of the Mathies formula "requires 

that the Secretary establish a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury." U.S. Steel Mining Co., Inc., 

6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance 

with the language of section 104( d)(l ), it is the contribution of a violation to the 

cause and effect ofa hazard that must be significant and substantial. U.S. Steel 

Mining Co., Inc., 6 FMSHRC 1866, 1868 (Augast 1984); U.S. Steel Mining Co., · 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

This evaluation is made in terms of "continued normal mining operations." U.S. Steel 

Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is 

significant and substantial must be based on the particular facts surrounding the violation. 

Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 

2007 (Dec. 1987). 

The fact of the violation has been established. The measure of danger to safety was 

contributed to by the presence of the combustible accumulations, which presented a hazardous 

condition, i.e., the possibility of a fire or explosion or an exacerbation of the effects of a fire or 

explosion that might occur in the area. Any injury resulting from such an event could be 

expected to be reasonably serious. The focus of the S&S analysis, as is often the case, is whether 

the violation was reasonably likely to result in an injury producing event. Cumberland also 

makes an argument that, even ifthere was an ignition and fire, there was no reasonable 

likelihood of a serious injury resulting. Because I find that the Secretary has failed to carry her 

burden of proof on the third element of the test, I need not reach Cumberland's argument on the 

forth element. While it has some appeal, it appears to be foreclosed by Commission precedent. 6 

6 Cumberland's argument is based largely on an MSHA study, reporting that no fatalities 

or reportable injuries resulted from any of the 63 reportable belt fires that occurred from 1980 

through 2005. Coupled with the presence of multiple safety features, some of recent origin, it 

contends that a potential belt fire cannot be found to be reasonably likely to result in a serious 

mJury. The courts and the Commission have held, however, that such evidence does not 

31FMSHRC143 
When evaluating the reasonable likelihood of a fire, ignition, or explosion, 

the Commission has examined whethera 'confluence of factors' was present 

based on the particular facts surrounding the violation. Texasgulf, Inc., 10 

FMSHRC 498, 501 (April 1988). Some of the factors include the extent of the 

accumulations, possible ignition sources, the presence of methane, and the type of 

equipment in the area. Utah Power & Light Co., 12 FMSHCR 965, 970-71 (May 

1990) ('UP&L ');Texasgulf, 10 FMSHRC at 500-03. 

Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997). 

Radolec addressed the factors identified in Enlow Fork in explaining his determination 

that the violation was S&S. He described the accumulations, cited the presence of methane, and 

identified the conveyor belt system and related electrical equipment as potential ignition sources. 

Tr. 85 He also described a remarkably catastrophic sequence of events that he deemed was 

hjghly likely to occur as a result of the violation, beginning with the dust and coal fines igniting, 

resulting in a fire that would grow to such an extent that it would prevent effective Ventilation, 

producing a buildup of methane which would explode, putting the float coal dust into 

suspension, resulting in another explosion, such that the entire mine and any miners in it would 

be caught up in the conflagration. Tr. 82-83, 146-47, 416-20. Radolec's opinion about the 

likelihood of a catastrophic event, which appears to have little, if anything, to do with the cited 

accumulations, will be discussed in conjunction with the Enlow Fork factors. 

The Accumulations 

While.the accumulations existed over a significant area, they ranged from one-half to four 

inches deep, and were not close to the belt or bottom rollers. The deposits were not being added 

to as mining continued. 7 Radolec and Severini concluded that they were the product of loose 

coal that had been dragged up the entry during the last belt move. · Tr. 173. While they existed 

over areas that could be described as extensive, they were not particularly extensive in volume, 

and were considerably removed from moving machine parts. There was a thin layer of float coal 

dust, deposited on previously rock dusted surfaces. However, the rock dusting that had been 

done was inadequate. 

establish that a violation is not S&S. See Buck Creek Coal, supra; Amax Coal Co., 19 FMSHRC 

846, 849(May1997). One problem with the argument is that the report did not correlate the 

incidence of belt fires with the presence of unlawful accumulations. Had unlawful 

accumulations been present, there may have been more serious consequences. 

7 Radolec confirmed that the deposits had not been added to between October 4 and 

October 11, and that it was a "pretty good belt." Tr. 133. 

31FMSHRC144 
Ignition Sources 

Radolec identified potential ignition sources as friction from the belt going out of 

alignment, like he found at crosscut #17.5, and friction and sparks from belt rollers with bad 

bearings. Tr. 85. He also believed that it was highly likely that the conveyor belt itself would 

cause the coal dust to ignite, because of its capacity to generate heat. Tr. 83-85. He also 

mentioned dust on cables and electrical boxes, including belt switches, cables to the carbon 

monoxide ("CO") monitors, and the power cable for the feeder. However, he did not explain 

how the cables or the electrical boxes could produce an ignition, or the likelihood that such an 

event would occur. Tr. 85, 121. It appears that the cables and wires were stationary and 

insulated, and that the connections were enclosed in boxes. Aside from the power cable that had 

not been properly hung, he did not identify any defects in any of the electrical equipmen( His 

belief that the cables could be ignition sources was apparently based upon the occurrence of 

some event that would result in damage and the creation of sparks or heat build-up. But, he did 

not identify the nature of such an event, or the likelihood of it occurring. The· fact that electrical 

cables or equipment could somehow result in an ignition cannot establish that the violation was 

S&S. Amax Coal Co., 18 FMSHRC 1355, 1358-59 (Aug. 1996) (to prove S&S nature of 

violation Secretary must prove that it is reasonably likely that an injury producing event will 

occur, not that one could occur - S&S finding reversed, in part, because ALJ did not consider 

that electrical cables in area were insulated and produced no heat). 

Radolec considered the misalignment of the belt at crosscut# 17.5 as a potential ignition 

source. Tr. 84-85. However, his explanation of how the misalignment could affect the 

accumulations 1~000 feet inby, was difficult to follow. Tr. 416-18. He stated that a ''hot area" on 

the belt would "increase" and ''work its way all the way up to 25," causing an ignition that would, 

in tum, ignite "coal dust on the belt" and particles of coal on the belt, causing a fire in coal 

around the tailpiece that would spread throughout the "total belt entry." Tr. 416-18. Whether or 

not this scenario bears any relationship to reality, it is clear that he substantially misperceived the 

conditions at the #17.5 crosscut.8 He testified that there was "blue smoke" coming from where 

the belt contacted the stand, and that: "The belt was on fire. It was burning." Tr. 71-72. His 

belief persisted, even though he admitted that he saw no flames, did not detect any carbon 

monoxide, the metal stand was warm rather than hot, and the belt was not burning when it was 

stopped by Duke. Tr. 116-17. 

John Galli ck, vice president of safety and health for Foundation Coal, of which 

Cumberland is an affiliate, testified that, from Radolec's description of the rubbing belt at 

crosscut #17.5, the belt was not on fire. He also testified, referencing earlier studies, that a belt · 

cannot catch on fire by rubbing on a stand. Tr. 361-63, 440-43. Gallick has extensive 

education, training and experience in the field of safety, particularly as associated with fires, 

8 Radolec did not explain, e.g., how a hot area on the belt could ignite the accumulations 

when it was moving at approximately 500 feet per minute and was more than one foot away from 

them. 

31FMSHRC145 
including belt fires.9 He explained that, in the absence of dust or accumulations in contact with 

the point of friction, the fire resistant belt is the only thing that could potentially begin to bum, 

and that it cools as it leaves the point of contact and continues around the circuit, such that it 

cl;l1lllot be ignited by rubbing on a stand. Tr. 362, 440-43. 

Cumberland offered Gallick as an expert witness on mine fires and risk analysis. Tr. 317-

18. The Secretary objected, contending that general opinions on whether a violation was S&S or 

the likelihood of an injury occurring and its severity are not proper subjects of expert opinion 

and, as a person who did not observe the conditions associated with the violation, he should not 

be permitted to offer lay opinion testimony. Tr. 324-26. The testimony was allowed, in essence 

provisionally, subject to later challenge, e.g., on grounds that it was unreliable or irrelevant.10 

9 Gallick has over 25 years of experience as a safety director for companies operating 

underground coal mines. While working for a safety consultant, he taught fire :fighting and 

rescue teams at MSHA's training academy in Beckley, West Virginia, and has a Master's Degree 

in safety with an emphasis on management He worked in command centers at two major mine 

fires, Marianna Mine 58 and the recent Aracoma fire. After his involvement in the Marianna belt 

fire, he became involved in research with consultants and with the then Bureau of Mines, 

National fustitute for Occupational Safety and Health (''NIOSH"), on solutions to problems 

encountered at Marianna. He was involved in projects that generated research papers, which he 

did not author, many of which were cited and discussed in a recent MSHA report on belt fires 

from 1980 through 2005, referred to as the "Bentley Report." MSHA, Reducing Belt Entry Fires 

in Underground Coal Mines (2007) .. Ex. R-8. He also was an invited speaker by the chairman of 

a belt study group in 1989. Tr. 296-323. 

10 I declined to bar Galli ck from testifying or to designate him as an "expert" in a 

specific field, and held that his testimony would be accorded whatever weight it was entitled to, 

bl;l.Sed upon an evaluation of its relevance and reliability in light of his experience and 

qualifications. The parties were invited to make arguments on the relevance of his testimony in 

post-hearing briefs. Tr. 332-33, As I noted in Cactus Canyon Quarries of Texas, Inc., 23 

FMSHRC 280, 287 (Mar. 2001) (ALJ), the Commission, like most federal agencies, operates 

under far more liberal rules governing the admissibility of evidence than those set forth in the 

Federal Rules of Evidence. Commission Procedural Rule 63(a), 29 C.F.R. § 2700.63(a), 

provides that: "Relevant evidence, including hearsay evidence, that is not unduly repetitious or 

cumulative is admissible." This is an entirely appropriate standard for litigation before the 

Commission's Administrative Law Judges. As one noted commentator has written: 

The complicated rules of evidence applicable to judicial trials were 

designed to govern decisiomnaking by juries. They are premised on the belief that 

lay jurors are likely to misuse large categories of relevant evidence if they become 

aware of that evidence. Whether or not the [Federal Rules of Evidence] are well~ 

suited to that purpose, they are totally inappropriate for application either to 

agency adjudications or to judge-tried cases ..... 

31FMSHRC146 
Tr. 330-34. The Secretary argues, in her post-hearing brief, that Gallick's testimony on certain 

issues should be accorded little weight, because it is unreliable and contrary to established 

precedent. Sec'y Br. at 15-16. While some ofGallick's testimony should be accorded limited 

weight, 11 for th~ most part,.his testimony was informative and well-supported. 

I find Gallick's testimony regarding the probability of the belt catching fire because it was 

rubbing on the stand at crosscut #17.5, highly probative. The Secretary does not directly argue 

otherwise as to this part of his testimony. Gallick's statement that the fire-resistant belt could not 

catch on fire by rubbing on the stand was clearly explained, and was supported by references to 

studies. It also made sense. The belt was moving past the area of contact at approximately 500 

feet per minute. A particular point on the edge of the belt came into contact with the stand, 

heated by the friction of the belt's rubbing, only for a :fraction of a second. No significant 

amount of heat could transfer to the belt, because the stand was not·particularly hot, and the 

length of time that any point on the edge of the belt was in contact with the stand was extremely 

short. That would be the case even if the stand became considerably hotter. Once passing the 

stand, a point on the belt edge made a complete loop of some 10,000 feet, before once again 

coming into contact with the stand. Any heat picked up by the edge of the belt would have been 

quickly dissipated as the b-elt moved through its circuit of travel. 

Radolec agreed that the belt was not on fire when Duke stopped it, and he did not check 

to see whether it was hot. Tr. 116-17. The ''wann" stand did not ignite the belt, even after it was 

stopped. As Gallick explained, while the belt cannot catch fire while moving, even from a hot 

roller, there is more potential for heating when the belt is shut down and a stationary portion of 

the belt is continuously exposed to a heat source. Tr. 362. 

Clearly, the belt was not on fire, as Radolec believed, nor was there any realistic 

possibility that the belt· could have caught on fire by rubbing against the belt stand. While the 

condition may have become somewhat worse as mining continued, there is no credible evidence 

that it would have been reasonably likely to cause an adverse effect, either directly or indirectly, 

on the accumulations cited, which were 1,000 feet away, and upstream in the 230 foot-perminute ventilation flow. 12 

II Davis and Pierce, Administrative Law Treatise 118 (3rd ed.). Accordingly, there was no need 

to perform a "gatekeeper" function, as discussed in Daubert v. Merrell Dow Pharmaceuticals, 

Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Rather, 

Gallick's testimony was allowed, subject to later challenge. 

11 For example, Gallick's testimony that the conditions were not S&S or hazardous has 

been accorded virtually no weight. Tr. 337-38. 

12 Radolec estimated, without any real foundation, that it had taken about one day for the 

belt to wear into the stand about one-quarter inch. Tr. 155-58. He also noted that belts are 

examined three times each day. Tr. 412. It is likely that a belt examiner would soon have 

31FMSHRC147 
Radolec also believed that a belt roller, the bearings of which had failed, could become 

overheated by metal-to-metal contact, and ignite the belt and the coal on it. Gallick testified that 

studies had shown that a moving belt will not be ignited, even if coal is burning. Tr. 441-42. 

I find Radolec's belt ignition scenario entirely speculative and unfounded for the same reasons 

discussed above. Certainly, a bad roller in the area of the cited accumulations could present an· 

ignition source. Gallick noted that the Bentley Report demonstrated that a bad roller could be a 

source of ignition, even though reportable fires from bad rollers were relatively rare. Tr. 361. 

llowever, the Secretary offered no evidence that there was a bad roller anywhere on the belt, and 

no evidence to establish that it was reasonably likely that a roller would fail in the area of the 

accumulations. Radolec walked the belt from the #11 crosscut to the #17.5 crosscut, where it 

was rubbing the stand and was shut down. He did not see any bad rollers. Tr. 425. Nor did he 

mention seeing any obviously bad rollers as he continued to walk the belt out to the tailpiece. 

While he may not have been able to detect a roller that was starting to fail while the belt was not 

running, a failed roller would have been very hot and most likely would have been identified 

even with the belt stopped. Cumberland's belt examiners were equipped with heat gun sensors to 

identify any rollers that might be hot. Tr. 227. Consequently, the possibility of a roller's bearing 

failing and creating a potential ignition source was significantly reduced. fu addition, the 

accumulations were 18 to-24 inches away :from the rollers. 

Methane 

The presence of methane can be a significant consideration in the S&S analysis, and 

Radolec relied on the fact that the Cumberland Mine produced over one million cubic feet of 

methane ill a 24-hour period. However, there was very little methane in the area of the violation, 

nor was there likely to be. Radolec tested the atmosphere in the belt entry and found 0.4% 

methane, well below the explosive range. Tr. 82. The presence of methane in any significant 

concentration was unlikely because the belt entry was ventilated with a split of intake air that had 

not coursed through any other active workings. The Secretary argues that liberation of methane 

is unpredictable and that dangerous concentrations could occur at any time. · However, it is well 

recognized that most methane is liberated when coal is being cut; i.e., at the active faces.· See, 

e.g., U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). In the Cumberland Mine, any 

methane liberated at the faces would be coursed out the return entry, not the belt entry. 

Moreover, the mine has virtually no history of methane ignitions. 13 

Equipment 

The only equipment operating in the area was the belt system itself The electrical cables, 

switches and boxes have been addressed above, as have the possibility of bad rollers and belt 

discovered the condition and shut the belt down, as Duke did when he saw it. 

13 Cumberland had a major mine fire in 1987, a gob fire approximately three years 

earlier, and a recent electrical fire in a load center that was not reportable. Tr. 62, 131-32. 

31 FMSHRC 148 
misalignments. Radolec believed that an injury was "highly ljkely to occur because of the nature 

of the very equipment that operates in a confined area." Tr. 408. Referring to the belt drive unit, 

he described "big motors with the enormous hydraulic equipment and the heat that they ... put 

off." Tr. 409. It is apparent from that testimony, and from other explanations offered by 

Radolec, that he believes that conveyor belts, particularly newer belt systems that are 

substantially larger and more powerful than older systems, in themselves, pose a significant 

potential for catastrophic belts fires. He stated that his fire - methane explosion - dust explosion 

progression was not just a statement of possibilities, but "things that happen in the coal mines," 

and if something happens once it is highly likely to happen again. Tr. 131. He further opined that 

"[i]t' s highly likely we are to encounter a coal mine fire any place in a coal mine, being that we 

are completely surrounded with the fuel of coal which is enhanced by methane." Tr. 131. If his 

statements are accurate, it was highly likely that a fire would occur in the belt entry at the #25 to 

#30 crosscuts, even after the accumulations had been completely removed and the area had been 

bulk rock dusted. 

There are several problems with Radolec 's catastrophic scenarios. First, the 

accumulations played virtually no role in his assessment that a belt entry engulfing fire was 

highly likely to occur and-result in multiple fatalities. His testimony reflects his general 

assessment of dangers posed by modern belt systems, regardless of whether safety systems, such 

a CO monitors and fire suppression systems, are in place or whether unlawful accumulations are 

present. Second, his assessment is not supported by actual occurrences in the thousands of 

underground coal mines that have operated under MSHA's jurisdiction over the past 28 years. 

With one notable exception, there have been no fatalities and no reportable injuries resulting 

from any reportable belt fire since at least 1979. 

The exception, of course, was the belt fire at Aracoma's Alma #1 Mine on January 19, 

2006, in which two miners perished. It is apparent that the Aracoma fire figured heavily in 

Radolec's assessment of the dangers posed by conveyor belt systems. However, Gallick 

explained, and Radolec also admitted, that there were several conditions unique to the Aracoma 

mine that resulted in the disaster. The fire suppression system at Aracoma's belt drive unit, 

where the fire originated, had been turned off. Tr. 97, 127. Stoppings separating the escapeways 

from the belt entry were missing, such that the miners attempting to evacuate the mine were not 

protected from the products of combustion in the belt entry, and there were delays in the system 

for alerting miners to a fire and commencing evacuation from the mine. 14 fu contrast, the belt 

drive unit at the Cumberland Mine, which was located about 5,000 feet from the accumulations, 

was protected by a substantial fire suppression system, including a ''wall of water." Tr. 373. 

Permanent stoppings separated both escapeways from the belt entry, and there was an operational 

CO monitoring system that would provide an automatic early warning to the working sections, 

14 Aracoma's multiple flagrant violations of safety standards recently resulted in a 

negotiated settlement of criminal and civil enforcement actions, with Aracoma pleading guilty to 

several criminal violations and agreeing to pay criminal fines and civil penalties totaling 4.2 

million dollars. 

31 FMSHRC 149 
and prompt immediate evacuation of the mine. Tr. 351. Additional safety measures were also 

present as a result of recent legislation, including lifelines to assure that miners would not loose 

their way during an evacuation, like those who perished at Aracoma, additional self-rescuing 

devices to provide breathable air for a longer period of time, and additional training requirements 

for miners on escaping such hazards. Tr. 352-53, 378-79; 

While the Aracoma fire demonstrates that a major belt fire can result in fatalities, the 

conditions under which it occurred bear no resemblance to the conditions at the Cumberland 

Mine. It has little significance on the question of whether the cited accumulations were S&S, 

and does not lend appreciable support to Radolec's determination that the accumulations were 

highly likely to result in a fatality. 

The Commission and courts have observed that the opinion of an experienced MSHA 

inspector that a violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 

20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36 

(7th Cir. 1995). Radolec certainly qualifies as an experienced MSHA inspector. He has been 

performing that function for fifteen years, and had 26 years of mining experience before 

becoming an inspector. However, aside from a general reference to his initial training, he did not 

relate his explanation of why he determined that the violation was S&S to his experience or 

trlrining, nor did he cite any reports, studies or other information to support his determination. 

He was asked to explain the bases for his belief that the violation would be highly likely to result 

in fatalities, e.g., to cite personal experience, studies, reports, or other data, especially in light of 

MSHA' s Bentley Report, which documented the fact that from 1980 to 2005 there were 63 

reportable belt fires none of which resulted in a reportable injwy, much less a fatality. Tr. 148-

53, 415-20. His attempts to explain were largely non-responsive, and he felt that the Bentley 

Report actually enhanced his S&S finding. Tr. 95. He eventually made a general reference to his 

in,itial training as an inspector, some 15 years ago, and expressed his belief that the training had 

been based upon reported incidents. Tr. 426-28. 

Severini, who also observed the accumulations, concurred with Rado lee's determination 

on gravity. He has more limited experience as an MSHA inspector, having been an inspector for 

three years, and a supervisory inspector for one year. Tr. 166-67. He had over 25 years of 

previous mining experience, almost all ofit as a manager. Tr. 167-69. Severini did not explain, 

in detail, why he agreed that the violation was S&S, or whether he believed that the catastrophic 

scenarios related by Radolec were reasonably likely to occur. When asked about ignition sources 

in the area of the accumulations, he identified only the "belt itself" Tr. 173. He later referred to 

the belt rubbing on the stand, but did not explain how that could have been an ignition source for 

the cited accumulations. Tr. 194. While he concurred with Radolec, his characterization of the 

violation and his assessment of whether other violations he had cited were S&S, suggest that he 

did not have a strong opinion that the violation was S&S. 15 

15 Severini had issued a violation in a track entry at the Cumberland Mine for an 

accumulation of float coal dust over an extensive area, rating it non-S&S and unlikely to result in 

31 FMSHRC 150 
My impression of his testimony on this issue is that he reluctantly supported Radolec 

because he did not want to, in essence, overrule him on a second violation. As previously noted, 

and as discussed below, Radolec had also issued a section 104( d)(l) order, citing an 

accumulations violation based upon trash he had observed at two locations along the track entry. 

Ex. G-8. Rado lee had evaluated the violation as S&S, determined that it was "highly likely'' to 

result in a "permanently disabling" injury, and that 10 persons were affected. The following 

day, Severini reviewed the order with Radolec. As a result of that meeting, Radolec amended the 

violation to delete the S&S designation and changed the gravity findings to "unlikely'' to result in 

a "No Lost Workdays" injury, and that no persons were affected. Ex. G-8. While Severini and 

Radolec explained that the changes were mutually agreed upon, it was Severini's review that 

prompted the substantial amendments, and neither party cited any new information as a 

justification for the changes. Tr. 457-60; 507-08, 511-12. 16 

While it is possible that the fire/explosion sequence described by Radolec might or could 

occur, that is not sufficient to establish that it was reasonably likely that an injury producing 

event would occur as a result of the violation. Radolec' s and, to a lesser extent, Severini' s 

determinations that the violation was S&S are, by virtue of their positions, entitled to weight. 

However, their opinions were not based upon or explained in relation to their experience, or 

training, and they will be afforded weight only insofar as they are supported by the evidence. 

Considering all of the Enlow Fork.factors,. I find that the violation was not S&S. The 

accumulations were not particularly extensive, only potential ignition sources were in the area, 

there was very little methane, and, aside from the remotely located belt rubbing the stand, there 

were no defects in the belt system. A significant factor is that the accumulations were not close 

to being in contact with the rollers or belt, and were not being added to. Here the focus is on the 

presence of an ignition source for these accumulations. While several possible ignition sources 

were identified, there was no evidence that any of them was reasonably likely to ignite the 

accumulations. 17 The potential ignition sources identified are present in all conveyor belt entries. 

a lost workdays injury, and cited conditions that differed from those on October 4. Tr. 181, 190-

91. He also had issued a violation for accumulations that were in contact with several rollers and 

were being ground up in the tailpiece, and rated it as S&S, and highly likely to result in a lost 

workdays injury. Tr. 185-86. He explained the difference between his evaluation of the latter 

violation and Radolec's evaluation of the instant violation as, being a judgment call and 

"everyone has to make that call themselves." Tr. 192. 

16 Radolec's initial evaluation of the violation was that the trash could propagate a fire 

and explosion originating in the belt entry, if it blew out a stopping between the belt and track 

entries. Tr. 458. Upon review, it was determined that that was not a "real reasonable case." 

Tr. 459. 

17 The presence of float coal dust, even though it had been deposited on limited rock 

dust, enhanced the possibility of an injury producing event occurring if an ignition occurred. · 

31FMSHRC151 
If they are sufficient to make an accumulations violation S&S, then virtually all accumulation 

violations in belt entries would be S&S. Clearly, that is not the case. I find that the violation 

was unlikely to result in a lostworkdays injury, and that one person was affected. 18 

The finding that the violation was not S&S is consistent with other cases decided by the 

Commission and its Administrative Law.Judges. See Solid Energy Mining Co., 30 FMSHRC 

823 {July 2008) (ALJ) (accumulations violation, consisting of dry textured float coal dust on 

mine floor, belt structure and water lines for distance of 642 feet, in mine that liberates in excess 

of 250,000 cubic feet of methane in a 24-hour period, held not S&S - there was no loose coal; the 

dust was paper thin, inspector's conclusion regarding dust's explosive nature was based only on 

the color of the dust, he acknowledged that he observed no ignition sources in the vicinity of the 

dust, and he found no methane in the area); Jim Walter Resources, Inc., 30 FMSHRC 834 (July 

2008) {ALJ) {accumulations violation consisting of float coal dust, black in color, on top of rock 

dust, on roof, ribs, belt frame and floor extending 867 feet, with coal fines in layers of rock dust 

for 1,451 · feet, up to 48 inches deep, potential ignitions sources consisted of electrical cables and 

possibility of belt roller going bad, but no evidence of the likelihood of an ignition by the 

electrical equipment or likelihood that a roller would go bad in a manner to cause an ignition, and 

no defects were found in electrical equipment or rollers); Amax Coal Co., 19 FMSHRC 846 

{May 1997) {S&S finding affirmed where accumulations were 6 inches to 3 feet deep for 85 

along belt and 200 feet along intersecting belt, accumulations were covered with float coal dust 

and an ignition source was present where the belt was running for 15 feet on dry, packed coal and. 

loose coal); Clinchjield Coal Co., 21FMSHRC231, 238-,42 (Feb. 1999) (AU) (accumulations 

2 to 24 inches deep·extending 3,000 feet, float coal dust extending 450 feet, ignition sources 

presented by 37 places where rollers were running in the accumulations or were stuck and 11 

places where rollers were missing and the belt was rubbing on the stand); Maple Creek Mining, 

Inc., 22 FMSHRC 742, 754-56 {June 2000) {AU) {accumulations 4 feet by4 feet and 1 foot 

d~ep and ignition source presented by tail roller running in accumulations and belt rubbing on 

st~d in close proximity to accumulations, and stand was too hot to touch). 

Unwarrantable Failure - Negligence 

In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated 

the law applicable to determining whether a violation is the result of an unwarrantable failure: . 

Radolec posited that the dust and fines would ignite, eventually resulting in a methane explosion 

that would put the dust into suspension producing a dust explosion. Tr. 82-84. Gallick opined 

that a dust explosion would almost always require a methane explosion to put the dust into 

suspension, and that it would need to be very thick in the air to be explosive itself. Tr. 369-70. 

18 The Secretary argues that several other violations issued by Radolec, which were not 

at issue in these cases, support the S&S finding. Tr. 86, 120-24. For the reasons cited by 

Gallick, I find that they are largely irrelevant on the S&S issue. Tr. 369, 394. 

31 FMSHRC 152 
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. Id. at 2001. Unwarrantable 

failure is characterized by such conduct as "reckless disregard," "intentional 

misconduct," "indifference," or a "serious lack of reasonable care." Id. at 

2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) 

("R&P"); see also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 

1995)] (approving Commission's unwarrantable failure test). 

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, such as 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 are necessary for compliance, the operator's efforts in 

abating the violati:\7e condition, whether the violation is obvious or poses 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) ... ; Cyprus 

Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 

195 F.3'd 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); BethEnergy Mines, Inc., 

14 FMSHRC 1232, 1243-44 (Aug. 1992); QuinlandCoals, Inc., 10 FMSHRC · 

705, 709 (June 1988). All of the relevant facts and circumstances of each case 

must be examined to determine if an actor's conduct is aggravated, or whether 

mitigating circumstances exist. Consol, 22 FMSHRC at 353. Because 

supervisors are held to a high standard of care, another important factor 

supporting an unwarrantable failure determination is the involvement of a 

supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 

1998). 

The Secretary argues that the violation was the result of an unwarrantable failure because 

the conditions were extensive, obvious, posed a high degree of danger, and existed for several 

days. Moreover, management was on notice of the conditions, because they had been repeatedly 

noted in reports of preshift examinations, and numerous prior violations had put Cumberland on 

notice that additional efforts were needed to address accumulations hazards. Not surprisingly, 

Cumberland disagrees with each of these arguments. 19 

19 The Citation was issued pursuant to section 104( d)(l) of the Act, which requires that a 

violation be both S&S and the result of an unwarrantable failure. Because the violation has been 

held not to have been S&S, it is technically unnecessary to decide the unwarrantable failure issue. 

However, it is necessary to address the issue of Cumberland's negligence, which is alleged to 

31 FMSHRC 153 
As noted in the discussion of S&S, the accumulations were fairly extensive and, while 

they were only about one-half inch deep in the traveled areas of the entry, they should have been 

reasonably obvious to preshift examiners. The Secretary argues that, because the violation was 

highly likely to result in fatalities and was S&S, that it posed a high degree of danger. However, 

the violation was found not to have been S&S. Rather it was unlikely to result in an injury 

resulting in lost work days. The accumulations were not being added to. Some rock dust had 

been applied, and they were damp or wet in areas, particularly close to the feeder.20 Tr. 49. The 

belt rubbing on the stand at the #17.5 crosscut did not pose a realistic possibility of an ignition of 

the accumulations, and there were no other ignition sources identified that presented a reasonable 

likelihood that an ignition would occur. Consequently, while the accumulations constituted a 

hazard, they did not pose a high degree of danger. 

The Secretary places great emphasis on the fact that Cumberland's preshift reports for 

several days prior to the violation showed that the area in question needed rock dusting, and 

argues that Cumberland had ample knowledge of the conditions. As Radolec explained, his 

review of the operator's preshift reports showed entries dating back to September 22, 2007, 

stating that areas of the belt entry from various crosscuts to the tail piece "needs dusted." Tr. 66-

67, 138; ex. G-5. The preshift reports are signed by the Assistant Foreman, the Mine Foreman 

and the Superintendent. Ex. G-5. Radolec and Severini determined, based on those notations, 

·th,at Cumberland's higher level managers had actual knowledge of the violation for several days, 

· and took no action to abate the condition. Tr. 89-90, 178-79. 

Cumberland takes issue with the Secretary's argument. It points out that the "needs 

dusted" notations were made in a section of the report titled "Violations Observed and Reported; 

Violation or Condition." Immediately below that is another section of the report, entitled 

"Dangerous and Hazardous Conditions Observed and Reported." The word "none" was entered 

in the hazardous conditions section of the reports. Konosky testified that there was a very 

significant difference between the two sections of the report. Any dangerous or hazardous 

conditions would be reported in that section and would be immediately attended to, as required 

by the Secretary's regulations. He also related that mine managers reviewing the reports would 

pay particular attention to hazardous conditions and assure that they were addressed, whereas 

conditions noted in the "violation or condition" section, would be addressed in due course. 

have been high. Other citations and orders are also at issue, and the S&S finding may not 

become final. For the sake of judicial economy the issue of unwarrantable failure, as well as 

negligence, will be addressed. 

20 There was conflicting testimony on whether the accumulations were wet or dry. 

Radolec, Severini and Lemenovich testified that they were dry. Tr. 79, 175, 202. Konosky, 

Nairn and Perry testified thatthey were wet. Tr. 223, 240, 286. Duke testified that they were 

generally dry, but may have been wet or damp near the feeder. Tr. 49. It is well settled that wet 

or damp accumulations can dry out and ignite, and do not establish that a violation is not S&S. 

See Utah Power & Light, 12 FMSHRC 965, 969 (May 1990). 

31 FMSHRC 154 
Tr. 228-30. John Nairn, Cumberland's continuous miner manager, had over thirty years of 

mining experience, and also testified that there was a difference in the types of conditions that 

would be reported in the two sections of the preshift report. Hazardous conditions would be 

noted in that section, and would be immediately attended to, i.e., either corrected or the area 

dangered off. Other conditions reported in the first section would be looked at and dealt with in 

the regular course of business. Tr. 254-55. Based on this testimony, and the nature of the reports 

themselves, Cumberland argues that the "needs dusted" entries were merely routine notations 

that bulk rock dusting had yet to occur in relation to the most recent belt move, and did not 

indicate that a hazardous condition existed. Radolec and Severini were of the opinion that, in 

their experience, there was no difference between the two sections of the report, and that any 

entries were regarded as notifications of hazardous conditions. Tr. 100, 179-80. 

As the section advanced, the feeder and belt tailpiece were periodically moved further 

inby, extending the belt. Belt moves were done about twice a week. Tr. 242. Cumberland's 

standard procedure was to clean up loose coal with a scoop from the tailpiece to the next crosscut 

inby, where the feeder was going to be moved. ·Loose coal around the feeder would be shoveled 

onto the belt. The area then would be fling dusted, using a mechanical duster mounted on a 

scoop, and the feeder and iailpiece would be moved inby one crosscut. The construction 

department would be notified and bulk rock dusting would be done after the move. Tr. 242-45. 

Cumberland argues that the entries, "needs dusted," merely are reports that the bulk dusting had 

not yet occurred. A comparison of the preshift reports with reports of bulk tock dusting 

introduced by Cumberland lends some credence to Cumberland's explanation. The miner crews 

that perform bulk rock dusting submit a report, identifying where rock dust was applied, and how 

much of it was dispensed. Tr. 245-50; ex. R-3. Preshift reports for September 22, 23 and 24, 

indicate that the 8 Butt belt entry from crosscut #17 to the tailpiece needed dusting. Ex. G-5 at 

22-27. A rock dust report for September 24 indicates that bulk dusting was done that day from 

crosscut # 17 to crosscut # 19. Ex. R-3. A later preshift report for September 24, and subsequent 

reports, reflect that fact, because the #17 to #19 area is no longer identified as needing rock dust. 

Ex. G-5 at 29-33. Preshi:ftreports for September 24 through 27 show the area from crosscut #19 

to the tailpiece needing dust. A rock dust report for September 27, indicates that dusting was 

done from crosscuts # 19 to #22. Preshift reports thereafter indicate that that area no longer 

needed dusting. Likewise, a rock dust report for October 2 indicates that the area from crosscuts 

#23 to #25 was dusted, and preshift reports thereafter indicate that the area from crosscut #25 

outby no longer needed dusting. 21 Curiously, preshi:ft reports from September 25 through 

October 4 state that the area between crosscuts # 11 and # 16 needed dusting, and there are no rock 

dust reports showing that that occurred. On his October 4 inspection, Radolec walked the area 

from crosscut #11 inby and found no hazardous conditions. Tr. 69, 93. 

21 The reports are not entirely consistent. A rock dust report for October 3 states that 

bulk dusting was done in the belt entry between crosscuts #24 and #27. Ex. R-3. However, 

preshi:ft reports 9:00 p.m. on October 3 and 5:00 a.m. on October 4 continue to show a need for 

bulk dusting from crosscut #25 inby. Ex. G-5 at 84, 87. 

31FMSHRC155 
Preshift examiners are required to "examine for hazardous conditions," make a record of 

any hazardous condition found, and either immediately correct it or post the area with a 

conspicuous danger sign. 30 C.F.R. §§ 75.360(b), {f), 75.363. Cumberland's records ofpreshift 

examinations reported that no "Dangerous and Hazardous Conditions" were found during the 

examinations. Those conducting the examinations and reporting the results, noted conditions in 

the "violation or condition" section of the report that they did not consider hazardous, and mine 

managers reviewing the reports did not consider them to be reports of hazardous conditions. 

Neither preshift examiners, nor higher level managers, took steps to immediately correct such 

conditions, or to bar miners from entering the areas until the conditions were corrected. They 

obviously did not consider them to be hazardous conditions that required such attention. 

The notations that portions of the belt entry needed rock dusting, and that the condition 

had been reported, do not, on their face, indicate the existence of a hazardous condition. A 

manager, reviewing the reports in sequence, would have seen a need for the application of bulk 

rock dust, that the condition bad been reported, and that bulk rock dust application was 

progressing in the entry. The area reported as needing dusting progressed from #17 crosscut on 

September 22, to the #22 crosscut on September 27, to the #25 crosscut on October 2. 

I find that, while the preshift reports put higher level mine managers on notice that bulk 

rock dusting was yet to occur, they did not notify them that any hazardous condition existed, or 

that the cited accumulations existed. Cumberland is, nevertheless, chargeable with knowledge of 

the accumulations, because preshift examiners act as agents of the operator when conducting 

such examinations. Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-96 {Feb. 1991); 

Pocahontas Fuel Co., 8 IBMA 136, 146-48 (Sept. 1977), aff'd, 590 F.2d 95 (4th Cir. 1979). 

From September 30 through October 3, eight different preshift examiners noted that the 

conditions in the belt entry from crosscut #25 iii.by needed to be bulk rock dusted. Ex. G-5 at 63-

84. They obviously did not regard the conditions as hazardous, and needing immediate attention. 

While the preshift examiners are chargeable, as agents of Cumberland, with knowledge of the 

accumulations, higher level managers had no such knowledge. 

The Secretary argues that Cumberland was put on notice that increased efforts to address 

accumulations were needed because it was cited 63 times in the prior two-year period for 

violations of section 75.400. Radolec took that into account in detennining to cite the violation 

as an unwarrantable failure. Tr. 93, 140-41. However, he acknowledged that the standard 

applies to a wide variety of situations, and is the most cited standard in the nation. Tr. 140-41; 

While Severini agreed with Radolec's assessment of negligence, he did not find the fact that 

Cumberland had been cited for 63 violations of section 75.400 to be of significance. It did not 

affect his assessment of whether the violation was the result of an unwarrantable failure, because 

section 7 5 .400 covers a broad range of conditions, such that 63 violations was "just not a true 

number to this situation." Tr. 177-78. I agree with Cumberland's argument that to establish that 

it had been put on notice that additional compliance efforts were needed, the Secretary was 

required to show more than a history of prior citations for violations of the broad standard, and 

find that Cumberland had not been put on notice that additional compliance efforts were needed. 

31FMSHRC156 
Considering all of these factors, I find that the violation was not the result of 

Cumberland's unwarrantable failure, and that its negligence was moderate to high. The fact that 

eight different preshift examiners,· including Nairn, did not regard the conditions as hazardous 

reflects more an honest disagreement over whether a hazardous violation existed than aggravated 

conduct constituting more than ordinary negligence. 

Order No. 7025469 

Order No. 7025469, which was issued in conjunction with Citation No. 7025468, alleges 

a violation of 30 C.F.R. § 75.363(a), which requires that hazardous conditions found during 

preshift examinations be corrected immediately or be posted with a conspicuous danger sign and 

remain so posted until the hazardous condition is corrected. The alleged violation was described 

in the Condition and Practice section of the Order as follows: 

The mine operator failed to correct immediately a hazardous condition reported in 

the pre shift examination book. The hazardous condition recorded stated the 

condition 8 Butt conveyor belt needed rock dusted from No. 25 to 30. This 

hazardous condition was first recorded in the pre shift record book on the surface 

on 9/25/2007, 8:00 P.M. to 8:40 P.M. and [continued] to be recorded with out any 

corrective action being taken to correct the condition including this days pre shift 

· examination· I 0/04/2007 day shift. An inspection of this hazardous condition was 

conducted this day and as a result of this days inspection, Citation No. 7025468. 

was issued for a violation of75.400 (accumulations of combustible materials 

existing). Also during the time the inspection was being conducted no miners 

were observed working to correct the hazardous condition recorded in the pre shift 

record book. This type of violation has been issued 0 times during the last 2 years 

at this mine. 

Ex. G-6. 

Radolec determined that it was highly likely that the violation would result in a fatal 

injury, that the violation was S&S, that 13 persons were affected, and that the operator's 

negligence was high. The Order was issued pursuant to section 104( d)(l) of the Act, and alleged 

that the violation was the result of the operator's unwarrantable failure to comply with the 

mandatory standard. 

As noted in the discussion of Citation No. 7025468, I found that notations in the preshift 

reports that areas of the belt entry needed rock dusting did not report a hazardous condition that 

required immediate correction under the preshift regulations. However, I did find that the 

accumulations violated section 75.400. While the violation was not S&S, the accumulations 

presented a measure of danger to safety, and should have been specifically identified and 

reported as such by the preshift examiners. As Radolec stated, to be properly reported in the 

preshift report, the specific conditions, as noted by him, should have been reported. Tr. 99, 161. 

31FMSHRC157 
Consequently, the regulation was violated. 

For the same reasons that I found the accumulations violation was not S&S, I find that 

this violation was not S&S, but was unlikely to result in a lost workdays injury to one miner. 

Ljkewise, I find that it was not the result of Cumberland's unwarrantable failure and that 

Cumberland's negligence was moderate to high. 

Order No. 7025481 

Order No. 7025481, which was issued on October 11, 2007, pursuant to section 104(b) of 

the Act, alleges that Cumberland failed to timely abate the accumulations violation that was the 

subject of Citation No. 7025468. Radolec's rational for issuing the Order was described in the 

Condition and Practice section as follows: 

No effort was made to remove accumulations of dry black coal fines in the · 

conveyor belt entry of the 8 Butt 027-0 (M.M.U.) number one entry between 

number 29 and 30 cross cut, after an extension of time had been granted from the 

initial citation teniiination time. An extension of time was granted on 10/09/2007, 

12:45 P.M. for the condition to be corrected by 2:45 P.M. Upon inspection of the 

area on 10/11/2007 10:30 [A J.M. the accumulation of coal fines still existed at the 

same location and no miners were at work to correct the conditfon when 

inspected. This type of violation has been cited 65 times at this mine during the 

past two years. 

Ex. G-10. 

Section 104(b) of the Act provides: 

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 or as subsequently extended, ai:ld (2) that the 

period of time for the 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). 

The Secretary contends that, in the area between the #29 and #30 crosscuts, the original 

accumulations cited on October 4 had not been cleaned up adequately, were present on October 9 

31FMSHRC158 
when additional time for abatement was granted, and remained in their original condition on 

October 11 when Radolec issued the section 104(b) order. Cumberland argues that the original 

accumulations in that area had been cleaned up and that any accumulations present on October 

11 were most likely deposited on October 10, such that issuance of the order was an abuse of 

discretion. 

In order to present a prima facie case that a section 104(b) withdrawal order was properly 

issued, the Secretary must prove that the originally cited condition continued to exist after the 

period allowed for abatement expired. Mid-Continent Resources, Inc., 11 FMSHRC 505, 509 

(Apr. 1989). The operator may rebut the Secretary's prima facie case by showing that the 

conditions in the citation had been abated within the period allowed, but that they recurred. The 

operator may also challenge the reasonableness of the time period set for abatement, or the 

Secretary's refusal the extend the period. Energy West Mining Co., 18 FMSHRC 565, 568 (Apr. 

1996). The burden is on the operator "to bring to MSHA's attention any specific abatement 

measures justifying extension of the abatement period." Energy West Mining Co. v. FMSHRC, 

111 F.3d 900, 904 (D.C. Cir. 1997). In evaluating whether an inspector has abused his discretion 

in issuing a section 104(b) withdrawal order, in lieu of extending the abatement period, the 

following factors should oe considered: 1) the degree of danger that extension would have caused 

to miners; 2) the diligence of the operator in attempting to meet the date originally set for 

abatement; and, 3) the disruptive effect that an extension of time, or a failure to extend the time, 

would have had upon operating shifts. Youghiogheny and Ohio Coal Co., 8 FMSHRC 330, 339 

(Mar. 1986). 

The underlying citation was issued on October 4, 2007, at 8:40 a.m., and identified in 

detail the affected areas. The originally specified abatement deadline was 12:00 noon, on 

October 4. However, because Radolec did not return to the mine until October 9, the abatement 

time was, in effect, extended from three hours and 20 minutes to five days, including a weekend 

and a holiday. On October 4, when the citation was issued a crew of eight to ten miners began to 

clean up the accumulations. They were told by Konosky to clean from rib to rib, and worked for 

about an hour until the inspection party left, and continued to work thereafter. Preshift reports 

for October 4 examinations noted that the area was being worked on. The 9:00 p.m. report 

showed that the area from #25 to #29.5 had been "corrected," and that the area from #29.5 to the 

tailpiece at #30.5 had been "reported." Ex. G-5 at 92. The report of the 5:00 a.m. examination 

on October 5 noted that the #29.5 to tailpiece conditions had been "corrected," and subsequent 

reports noted no conditions in the area. Ex. G-5 at 93. Rock dust reports purport to show that 

bulk dusting was done on October 4 from crosscut #25.5 to the tailpiece. Ex. R-3. 

When Radolec examined the area on October 9, he was satisfied that about 75% of the 

cleanup had been done and the area had been well dusted. However, he believed that the area 

between crosscuts #29 and #30 had not been cleaned. He spoke to Fred Evans, a Cumberland 

safety representative, about the failure to clean, and gave Cumberland another two hours, until 

2:45 p.m. to complete the abatement. Ex. G-4. Evans believed that the area was clean, under 

any realistic standard, noting that ''you would have had to scrape it to get it any cleaner." 

31FMSHRC159 
Tr. 267. He explained that the continuous miner'sround cutting head left indentations in the 

mine floor that a scoop could not completely clean~ Tr. 271. fu his opinion, the only difference· 

between the areas #29 to #30 and #25 to #29 was that the latter had been heavily rock dusted. 

Tr. 274. He got two miners to scrape and clean the area. Radolec gave the men a safety talk and, 

with Evans, marked where cleaning needed to be done with red tape. Evans checked with the 

shift foreman later, and was told the cleanup had been completed. He also told the afternoon 

shift foreman to check on the area, and was advised the next day that it "looked alright." Tr. 269. 

Preshift reports for October 9 show that the area from crosscut #29 to the tailpiece needed 

dusting, and by 9:00 p.m. had been "corrected." 

When Radolec returned on October 11 he observed what he believed to be the same 

conditions he had observed two days earlier, and concluded that no more work had been done 

after he left. At I 0:30 a.m., he issued the section 104(b) order, which effectively shut down the 

belt and ceased production on that section. He wanted the fines removed and the area blanket 

dusted. At noon he was advised that the work had been done and that the order should be lifted. 

However, he required that more rock dust be applied, and eventually terminated the order at 1 :20 

p.m. Five miners had worked on the cleanup effort, and others carried 40 pound rock dust bags 

to the area. 

Walter Lemenovich, an MSHA trainee inspector, accompanied Radolec on October 11, 

and con:fii:riied the existence of dry accumulations of coal fines under the belt ranging from zero 

to four inches deep. Radolec told him, upon seeing the conditions, "this is where they stopped 

cleaning." Tr. 203. Lemenovich overheard miners in the "dinner hole" questioning why they 

were shoveling, apparently suggesting that they did not feel that whatever loose coal was there 

needed to be removed. Tr. 205. Percy, who was with Radolec on the 11th, thought that the area 

from #25 to #30 looked "pretty nice." Tr, 286. He could see shovel marks in the #29 to #30 

area, and small irregularly spaced piles of wet fines 18 to 24 inches in diameter and 0 to 2 inches 

deep, for about 80 feet. Tr. 287-89. Radolec kicked at the piles, and inquired ''what's this?" To 

which Percy responded I think it's pretty good. According to Peny, Radolec then whirled and 

showed him a 104(b) order. Tr. 288. 

Cumberland's first argument is that its documented abatement efforts prove that the 

conditions were completely abated, and that any coal fines present on the 11th could not have 

been the same material that was cited on the 4th or was there. on the 9th. It notes that a preshift 

report for October 10 shows spillage at the tailpiece. However, that report also shows that the 

condition had been "corrected," and no one suggested to Radolec that the material that was under 

the belt on the 11th between crosscuts #29 and #30 was the result of spillage that occurred on the 

10th at the tailpiece which was located at crosscut #30.5. As noted above, Radolec testified, 

under questioning by Cumberland's counsel, that no additional material had been deposited 

between the 4th and the 9th, i.e., there was no ongoing spillage in the area, and that it was a 

"pretty good belt." Tr. 133. I find that there were irregularly spaced "piles" of coal fines and 

loose coal, approximately 24 inches in diameter, ranging from zero to two to four inches deep, 

located under the belt from the #29 to the #30 crosscut, and that it was part of the accumulations 

31 FMSHRC 160 
that had been cited on October 4. Cumberland's argument that the material was newly deposited 

is not supported by the evidence. 

In deciding to issue the section I 04(b) order, Radolec necessarily decided that no 

additional time should be allowed to abate the condition. It is appropriate, therefore, to assess 

whether he acted reasonably, or arbitrarily, by analyzing the factors identified in Youghiogheny . . ·

A further extension of time, e.g., two more hours, would have allowed the limited accumulations 

to remain in a decreasing amount over another one-to-two-hour period.22 I have held, in relation 

to the October 4 citation,· that the entirety of the accumulations on October 4 did not present a 

high degree of danger to miners. While Radolec determined that the violation was S&S, he did 

not consider issuing an imminent danger order pursuant to section 107(a) of the Act. By October 

9, at least 75% of the area had been cleaned and heavily dusted, and some rock dust had been 

deposited in the #29 to #30 area. While there were some irregular piles of coal fines present, the 

measure of danger to miners by allowing additional abatement time, e.g., four hours, would have 

been minimal. 

Cumberland had been reasonably diligent in abating the violation, at least up to a point. 

Substantial effort was expended on October 4, when the violation was cited. Preshift and rock 

dust reports confinn efforts to correct the cited conditions. Additional efforts were expended on 

October 9, when Radolec determined that the condition had not been completely abated. 

Radolec was convinced that the two miners who were shoveling on the 9th stopped when he left 

the area and that no further work was done. Completion of the abatement effort on October 11 

consumed about three hours of work by a crew of five miners, plus rock dust carriers. About half 

of that time was devoted to cleaning up the accumulations. As noted above, I find that -

Cumberland exhibited diligence in abating the violation, but that it could have been more diligent 

by assuring that the miners who started cleaning on the 9th completed the job. 

Issuance of section 104(b) order is a very powerful tool in the Secretary's enforcement 

arsenal. An inspector can force stoppage of production, without prior notice and opportunity for 

a hearing, and substantial disruption of mining operations can occur. Shutting down the belt 

caused disruption of that regular production shift. However, it may not have been as disruptive 

as if it had happened at a different time. Lemenovich testified that Cumberland normally shut 

down for a half day on Thursdays (October 11, 2007, was a Thursday). No witness contradicted 

that testimony. The 104(b) order was issued at 10:30 a.m. While it was not terminated until 1 :20 

p.m., its actual impact may have been limited to a shorter period. 

Whether Radolec abused his discretion by issuing the withdrawal order is a very close 

question. There is evidence that he may have been unreasonable in insisting on excessive 

22 From the evidence regarding the abatement effort, it appears that the fines would have 

been cleaned up in approximately four hours, considering that a smaller crew would have been 

available. Distribution of rock dust would have had to occur after the cleanup. 

31 FMSHRC 161 
abatement measures. 23 The measure of danger to miners that would have attended another brief 

extension of the abatement period would have been small, and the disruption caused by issuing 

tbe order was significant. Had he issued it on October 9, when he first observed that 

accumulations remained in the area, it is doubtful that the order could have been sustained. 

However, he did not do so. Rather, he explained in some detail what he believed to be necessary 

abatement actions, and marked specific areas in question with red tape to assure that there was no 

misunderstanding about what needed to be done. Two days later, the area had still not been 

cleaned and dusted to his satisfaction. Bohach protested that issuing the order was "very strong" 

enforcement action and that the problem may have been the result of miscommunication. 

Tr. 435. The order certainly was strong enforcement action, but the conditions that lead to its 

issuance were not the result of miscommunication. 

Upon consideration of all the evidence, I find that Radolec did not abuse his discretion in 

issuing the section 104(b) withdrawal order.24 I am troubled by the fact that, in deciding to issue 

the order, he apparently did not specifically weigh the three factors identified in Youghiogheny. 

H:owever, on balance, the lack of diligence that he perceived following his specific instructions 

on October 9, coupled.with the small measure of danger to miners that would have been posed by 

briefly extending the abatement time, outweighed the disruption caused by issuance of the order. 

Order No. 7025480 

Order No. 7025480 was issued on October 11, 2007, and alleges a violation of 30 C.F.R. 

§ 75.400, which was described in the "Condition and Practice" section of the Order as follows: 

An accumulation of combustible material consisting of wooden pallets, plastic 1 

gallon containers, open empty 5 gallon oil cans, card board boxes, ventilation 

cloth, brown paper bags, resin glue boxes, 3 sheets of card board and 6 crushed 5 

gallon oil cans existed at number I 0 cross-cut. Also an accumulation of 

combustibility material consisting of a large garbage bag full of 8 open empty 5 

gal hydraulic oil cans and plastic 5 gallon containers existed in the cross-cut of 

number 20 cross-cut. This condition exist along the active coal producing 8 Butt 

027-0 (M.M.U.) intake escapeway ventilation air course and track haulage. This 

condition was reported in the pre-s}rift record book on the surface dated . 

1010612007 08:00 P.M. to 09:25 P.M. at number 10 cross-cut and then on 

23 As noted above, Duke thought that some unnecessary shoveling of rib sloughage had 

been required on October 4. In addition, several Cumberland managers, including Evans, who 

h~d retired by the time he testified, were of the opinion that the area was clean under any 

reasonable definition of the term. 

24 Cumberland argues that section 104(b) orders cannot be issued for failures to abate 

citations issued pursuant to section 104( d) of the Act. I reject that argument, as one other ALJ 

has. Pretzel Excavating, 12 FMSHRC 1308, 1317-18 (June 1990) (AU). 

31 FMSHRC 162 
10/09/2007, 12:35 P.M. to 01 :35 P.M. report of garbage at number 20 cross-cut 

along with the garbage at number 10 cross-cut and continued including in the preshift record book for this dayshi:ft, 10/11/2007. This type of violation has been 

cited 64 times at this mine in the past two years. Also this is a mine that liberates 

methane in excess of 1 million Cu. Feet of methane gas in a 24 hour period and is 

on a M.S.H.A. 5 day spot inspect schedule. 

Ex. G-8. 

As issued, the Order alleged that it was highly likely that the violation would result in a 

permanently disabling injury, that the violation was S&S, that 10 persons were affected, and that 

the operator's negligence was high. The Order was issued pursuant to section 104( d)(l) of the 

Act, and alleged that the violation was the result of the operator's unwarrantable failure to 

comply with the mandatory standard. However, when Severini reviewed the Order with Radolec 

on October 12, 2007, it was modified to allege that it was unlikely that the violation would result 

in an injury, that the violation was not S&S, and that no persons were affected. The reasons for 

the modification of the Order were stated as: 

After farther review and evaluation by the issuing coal mine inspector. Of all the 

facts surrounding. For this type of accumulation of combustible material and 

there location. To add into a acceleration of a coal dust or methane gas explosion. 

It has been determined that this type and am.omit of combustible materials and 

location of these materials. That they would not be a farther enhancement to a 

coal dust or methane gas explosion propagation. This determination has been 

evaluated for this particular condition, location and time. This order is being 

modified to reduce the gravity of the subject order. (no corrections made) 

Ex. G-8. 

The Violation 

There is no dispute that the materials cited as trash were present, as Radolec described 

them, at the # 10 and #20 crosscuts, in the track entry. Perry agreed that the materials were at 

those locations. Tr. 517. Radolec noted in the Order that the trash at crosscut #10 had been 

noted on preshift reports since October 6, and that the trash at crosscut #20 had been noted since 

October 9. Ex. G-8. At the hearing he testified that the conditions had been reported since 

September 28. Tr. 463. He was mistaken. While the preshift reports show that trash had been 

noted in the haulage entry at crosscuts #10 and #20 from September 28 to October 1, the 

condition was noted as "corrected" on October 1, and there are no reports of trash at either 

location until 9:00 p.m. on October 5, when trash was noted at crosscut #10. Ex. G-5 at 62-70, 

97. Trash was not noted at crosscut #20 until October 9. Ex. G-5 at 13. 

31 FMSHRC 163 
The Secretary's regulations require that mine operators establish a program for regular 

cleanup and removal of combustible materials. 30 C.F.R § 75.400-2. The provisions of the 

program are not subject to MSHA approval, and thus are largely within the mine operator's 

discretion. Cumberland's cleanup program provided that trash was to be hauled to the section 

supply point "as necessary to facilitate its removal from the mine." Ex. G-9. Nairn explained 

that active mining generates a great deal of trash, as is evident from the descriptions of the cited 

trash deposits. Tr. 533-34. Removal of trash is an ongoing process, and is done on a shift-byshift basis. Tr. 532. Typically, it is done on the midnight shift, when supplies are delivered to 

the section. An empty supply car, or garbage car, would be loaded with trash and taken out of 

the mine. Tr. 529-30. There is no set schedule for trash removal. Tr. 463, 521. It might occur 

during the same shift it was deposited, or could take several shifts if an empty car on which to 

load the trash was not available. Tr. 533-34. The section's trash was accumulated at crosscut 

#20, a designated location, and was placed in a large plastic bag hung on the rib. Tr. 513-14. 

Unbeknownst to Radolec, Cumberland also had an outby work site where a de"'.'gas hole was 

being drilled. Tr. 467, 515. Crosscut #10, at the trackentry, was the designated location for the 

temporary deposit of trash generated by that operation. Tr. 515, 527-31. Crosscuts # 10 and #20 

were designated areas for the accumulation and removal of trash under Cumberland's cleanup 

program, and the preshift reports show periodic notations of trash at those locations. Radolec 

placed considerable significance on the fact that the trash was not at crosscut #25, which he 

believed was the section supply point. Tr. 484. However, whether the #20 and #10 crosscuts 

·were "section supply points," is not material to whether a violation was committed. As Radolec 

explained in response another question, you have to apply common sense to an evaluation of the 

process, and it appears that designating those points as trash collection locations was not a 

deviation from the cleanup program. Tr. 491-92. 

As observed in other reported decisions, the standard does not require that trash be 

removed from a mine immediately. See, e.g., Basin Res. Inc., 19 FMSHRC 711, 717-18 (Apr. 

1997) (ALJ). However, if a significant accumulation of combustible trash is allowed to remain 

in the mine for an unreasonable period of time, section 75.400 may be violated. Basin Res. Inc., 

19 FMSHRC 1391, 1403 (Aug. 1997) (AU). As described by Cumberland's witnesses, while 

there was no set schedule for removal of trash, it typically would have been removed within 24 

hours. Tr. 533-34. As Perry stated, it generally doesn'tsit for days, and if it has not been 

removed in a week, someone is not doing his job. Tr. 521. 

I place little significance in the fact that there was trash at crosscut #20. That was a 

designated trash accumulation site for the section, and had been cleaned on October 1. No 

notations of the existence of trash at that location appear in the preshift reports until October 9, 

le$s than two full days before the issuance of the Order.25 While its presence for that lengthof 

time is of concern, the fact that the trash was coilected in a large bag which was practically full, 

25 Severini observed trash at the #20 crosscut on October 4, and discussed its presence 

with Cumberland personnel. The condition was not cited as a violation, and there is no evidence 

that the trash, which was at the section's trash collection site, remained there until October 11. 

31 FMSHRC 164 
and was located at a designated point for removal appears to be consistent with the established 

cleanup program. The trash at crosscut #10, however, is a different matter. That trash was 

associated with the outby de-gas operation. It made sense to designate crosscut #10 as a place to 

accumulate the trash, rather than haul it inby to crosscut #20. However, it was a significant 

accumulation oflargely combustible material and, judging from the preshift reports, had been 

allowed to remain in place since October 5, about 6 days. I find that Cumberland allowed a 

significant accumulation of combustible material to remain at the #10 crosscut in the track entry. 

for several days. The trash was allowed to accumulate and was not cleaned up, in violation of 

section 75.400. 

Cumberland makes several arguments challenging the violation. At least two do not 

require extended discussion. It argues that trash is not a hazard intended to be prevented by 

section 75.400, because it was not likely to cause a fire. Cont. Br. at 63-64. However, as noted 

in Utah Power & Light Co., 12 FMSHRC 965 (May 1990), the case cited by Cumberland for the 

proposition, the standard addresses accumulations of combustible materials that can cause a fire 

"if an ignition source is present." 12 FMSHRC at 968 (emphasis added). Certainly, the paper 

bags, wooden pallets, cardboard and plastic items could readily catch fire in the presence of an 

ignition source. Cumberland also contends that no reasonable person could anticipate that 

accumulations of trash that remain in a mine for several days could amount to a violation of the 

standard. However, the Commission has sustained violations of section 75.400 based upon 

accumulations of trash, and Cumberland itself has been cited for such violations in the past.: Jim 

Walter Res. Inc., 18 FMSHRC 508, 509-10 (Apr. 1996); Tr. 518. 

Cumberland argues that there is no evidence to establish that the trash present on October 

11 had been there six days earlier or at any point in the past. However, while I agree that 

Radolec's reference to September 28 was an erroneous reading of the preshift reports, those 

reports indicate the presence of trash accumulations at the #10 from October 5 to October 11. 

While the Secretary's witnesses did not personally observe the trash at those earlier times, and 

could not testify that it was, in fact, the same trash, it is reasonable to infer from the continuous 

reports of trash at that location, that a large portion of the trash observed on October 11 had been 

there since October 5. 

Unwarrantable Failure 

The violation, as modified, was not S&S, and was determined to be unlikely to result in 

an injury, involving ''No Lost Workdays." Ex. G-8. At the hearing, Radolec and Severini 

retrenched a little on their evaluation of gravity, stating that ohe miner was affected, rather than 

none, and describing a potential injury as smoke inhalation or burns. Tr. 460, 486, 509. 

Nevertheless, I find that the violation presented a low degree of danger to miners.26 The trash 

26 Radolec cited the fact that the mine is "gassy," and is subject to 5-day spot 

inspections. He did not note that he tested the atmosphere in the track entry and found no 

methane. Tr. 470. Without more, I find the fact that the mine was gassy does not enhance the 

31 FMSHRC 165 
aecumulation at crosscut #10 was significant, occupying an area approximately 8 feet by 35 feet, 

a$ of October 11. It most likely was not that large on October 5, because it would have been 

added-to until the 11th. It was bagged or stacked at the trash loadout point for the de-gas project. 

Tr. 514-15, 528. I find that the condition was not extensive. It existed for six days, and mine 

management was on notice that the trash needed to be picked up and transported out of the mine. 

Cumberland appears to have been following its cleanup program. However, the intervals 

between .trash· pick-ups, particularly at the # 10 outby work site, had been allowed to grow too 

long. As with the initial accumulations violation, Radolec placed great significance on the noting 

of the conditions in the preshift reports, believing that they had been identified as hazards to 

upper level management. Tr. 463-65, 467. However, as pointed out in the discussion of the 

imtial citation, the notations were not in the "hazards" section of the reports, and Cumberland's 

examiriers noted non-hazardous conditions in the reports.27 Radolec also noted the fa~t that 

Cumberland had been cited 64 times for accumulations violations in the last two years. 

However, for the reasons expressed by Severini with respect to the coal accumulations citation, I 

find that fact insufficient to put Cumberland on notice that greater efforts were need_ed to address 

accumulations of trash. · 

On the whole, considering all of the factors addressed above. I find that the violation was 

not the result of Cumberlarid' s unwarrantable failure, but that its negligence was moderate. 

ORDER 

Order No. 7025481 is AFFIRMED, and Citation No. 7025468, Order No. 7025469 and 

Order No. 7025480 are modified to citations issued. pursuant to section 104(a) of the Act, and are 

AFFIRMED, as modified. 

danger to miners of this violation. 

27 Nairn testified that he would not note the presence of trash at a loadout point on a 

preshift report, except to pass information on to a supervisor of an area he was not responsible 

for. Tr. 536-39. 

31 FMSHRC 166 
Distribution: 

Donald K. Neely, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 

Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty 

Avenue, Pittsburgh, PA 15222 

31 FMSHRC 167 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, D.C. 20001 

R S & W COAL COMP ANY, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

Respondent 

B & B COAL COMP ANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

Respondent 

BEAR GAP COAL COMP ANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

Respondent 

January 26, 2009 

CONTEST PROCEEDING 

Docket No. PENN 2009-97-R 

Citation No. 7011308; 11/03/2008 

Order No. 7011310; 11/05/2008 

RS & WDrift 

Mine ID 36-01818 

CONTEST PROCEEDING 

Docket No. PENN 2009-98-R 

Citation No. 7001051; 11/03/2008 

Order No. 7001053; 11/05/2008 

Rock Ridge No. 1 Slope 

Mine ID 36-07741 

CONTEST PROCEEDING 

Docket No. PENN 2009-99-R 

Citation No. 7011309; 11/03/2008 

Order No. 7011311; 11/05/2008 

N &LSlope 

Mine ID 36-02203 

DECISION 

Appearances: Lynne Bowman Dunbar, Esq. and Thomas A. Paige, Esq., U.S. Department of 

Labor, Arlington, Virginia, on behalf of the Respondent 

Adele L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., Beltsville, 

Maryland, on behalf of the Contestants 

31 FMSHRC 168 
Before: Judge Barbour 

The captioned contest proceedings arise under Section 105(d) of the Federal Mine Safety 

and Health Act of 1977. 30 U.S.C. § 815(d). In the cases RS&W Coal Company, Inc. (RS&W), 

B&B Coal Company (B&B) and Bear Gap Coal Company (Bear Gap) contest the validity of 

citations issued to each company for alleged violations of mandatory safety standard 30 C.F.R. § 

75.370(a)(l ). 1 The citations allege the companies violated the standard when they failed to revise 

their ventilation plans to require the main mine fans at the mines to be run for 1-Yi hours prior to 

any persons entering the mines. 

The citation issued to RS&W, which is substantially identical to the other two citations, 

states in pertinent part: 

On October 29, 2008, the approved ventilation plan (for 

the RS& W mine] was revoked, however the operator is 

continuing to operate without an approved ventilation 

plan in violation of ... [section] 75.370(a)(l). On July 1, 

July 9, and December 11, 2007, MSHA sent letters to 

... [RS& W] requesting ... a revised ventilation plan 

be submitted to the district manager. The operator was 

notified that, based on the results of the analysis of air 

samples, MSHA has determined that the ventilation 

plan in effect is not adequate and, in MSHA's view, 

the plan should require that the main mine fan be run 

continuously, i.e., during both active and idle shifts. 

In September[,] 2008, following extended negotiations, 

the Independent Miners Association and MSHA 

agreed that ... [RS&W] would operate the main mine 

fan for 1 Yi hours before each shift, turning off the fan 

daily. On October 21, 2008, MSHA sent a letter to 

... [RS&W] giving [it] until October 28, 2008 to submit 

the revised ventilation plan and warning ... that 

failure to submit the revision would result in revocation 

of the approved plan. The operator failed to submit 

the revision. The condition has been designated 

non-S&S [i.e., not a significant and substantial contribution to a mine safety hazard] because the 

1

The standard requires operators to "develop and follow a ventilation plan approved by 

the [MSHA] district manager." Once filed and approved, the agency retains the right to request 

revisions of the plan and the right to revoke the plan if, after good faith negotiations, the district 

manager and the operator fail to agree on the revisions. If the plan is revoked, the operator may 

not operate its mine until it adopts a revised plan that is approved by the district manager. 

31 FMSHRC 169 
violation is the result of an impasse between the 

parties in negotiating changes to the ventilation 

plan. During the period in which the operator is 

attempting to achieve abatement, it shall follow the 

terms of the original ventilation plan. 

Gov't Exh.2A. 

As the citation indicates, once MSHA, acting through its district manager, detennined 

revised ventilation plans were necessary, the agency and the companies entered into protracted 

negotiations. During the negotiations the companies were represented by the Independent Miners 

Association (IMA).2 At one point, the agency believed the representative and, thus, the 

companies agreed to revise their plans in a way that would be acceptable to MSHA. However, 

the companies maintained no such agreement was reached, and they did not submit revised plans 

to the district manager. This lead the agency to notify the companies by letter dated October 21, 

2008, that they had until October 28 to submit the plans and, if they failed to do so, their existing 

plans would be revoked. On October 29, MSHA revoked the companies' existing plans because 

the companies had not complied with the agency's demands. 

The contested citations were issued on November 3, 2008, and the agency gave the 

cQmpanies until November 5, 2008, to submit acceptable plans (i.e., plans containing the 

provision that the main mine fan would be run for at least 1-Yi hours before the miners entered 

the mines at the start of the workday and before underground power circuits were energized). 

The companies were warned if they did not submit acceptable plans, orders would be issued 

closing their mines. Revised plans were not submitted, and the closure orders were issued. 

The orders prompted the companies to request their contests of the validity of the 

underlying section 104(a) citations be heard on an expedited basis. The cases were consolidated 

and assigned to me, and following discussions with counsels, MSHA agreed to suspend 

enforcement of the orders until the contest proceedings could be heard and decided. 

The matters were called for trial on December 9, 2008, in Pottsville, Pennsylvania. At the 

commencement of the hearing I summarized the issues. 

The issues involved inclucle whether the companies 

violated [s]ection 75.370(a)(l). As I understand the 

law, the Secretary will have the burden of proving 

the unsuitability of the provision [of the ventilation 

plans] ... [to which she objects] and the ... suitability 

of the provision upon which she ... insist[s]. This 

2

The IMA is an organization of small, independent anthracite mine operators whose 

purpose is to protect the interests of its members and to promote the use of anthracite coal. 

31FMSHRC170 
Tr. 6-7. 

means the Secretary must prove a specific mine 

hazard ... that is not addressed in the previously 

approved plan[ s ], and she must establish that the 

hazardous condition, assuming she proves one, 

is corrected by the [provision] she is insisting upon. 

The Secretary cannot use the ... approval process 

... to impose ... requirement[ s] ... well suited to 

all or nearly all mines so ... the Secretary must 

show the provision addresses specific conditions 

in the mines involved. 

Opening statements then were offered by counsels, and one and one-half days of trial 

followed, during which the Secretary presented the principal part of her case-in-chief and one of 

the companies' witnesses was heard. During the noon break on the second day of the hearing 

(December 10), the parties resumed negotiations to determine if they could resolve their 

differences. At the beginriing of the afternoon session, counsel for the companies announced the 

parties had reach an agreement. Counsel stated: 

[T]he parties ... have come tci an agreement 

after good faith negotiations that will modify 

the existing plans and also modify the position 

taken by MSHA .... [T]he same provisions 

will apply to the revised plans for all three mines 

and everything will remain the same[,] with the 

change being made to the portion of the plan[ s] 

that stipulates how long the fan must run 

following resumption of mining in an idle 

period .... The current plans say the main 

mine fan will be operated for .a minimum of 

one half hour after the pressure recorder 

indicates. that the normal mine ventilating 

pressure has been reached prior to any person 

entering the mine. That will be changed to 

one hour. The Secretary's position [originally] 

had been one and one half hours ... [In 

addition,] the main mine fan will be operated 

for a minimum of one hour after the pressure 

recorder indicates ... the normal mine ventilating 

pressure has been reached prior to energizing 

power circuits entering underground areas of 

the mine [and] prior to any person entering 

31 FMSHRC 171 
the mine .... All other provisions of the 

currently approved plans will remain in effect. 

The Government has agreed ... the operators 

will have until 5[ :00] p.m., Eastern Standard Time 

on Friday, December 12, 2009[,] to submit a revised 

.. ; section of the plan[s] to the MSHA District ... 

office, that ... [they] can be submitted by 

facsimile [copy] but ... [the companies] will 

also mail a hard copy to the MSHA office for 

inclusion in the official mine ventilation plan. 

Tr. 421-422. 

Counsel for the companies further requested the contested citations be vacated, but[,] if · 

they were not vacated[,] that the violations of section 7 5 .3 70( a)(l) contained in the citations be 

assessed at not more than $112, which amount the operators agreed to pay. Tr. 423-424. 

Counsel for the Secretary agreed with the provisions of the settlement as stated by counsel for the 

companies, and the hearing was closed. Tr. 424. 

ORDER 

The settlement, which conforms in all rei;pects with the letter and spirit of the Act, IS 

APPROVED. I note the companies have.filed with the agency revisions of their ventilation 

plans containing the agreed-upon provisions, and the agency has approved the revised plans. 

Nothing more remains to be done with regard to revising the plans. 

With regard to the civil penalties for the violations of section 75.370(a)(l ), in a letter 

dated January 9, 2009, one of the Secretary's counsels stated the agency assessed a civil penalty 

of$162 against B&B Coal Co., and the company paid the amount. She further stated, upon 

is$uance of this decision approving the settlement, MSHA will amend B&B's penalty to $112 to 

conform to the settlement and will credit or refund $50 to B&B. Counsel also stated MSHA 

asi:;essed civil penalties of $100 each against RS& W and Bear Gap for their violations of section 

75.370(a)(l) and will consider payments in that amount as fully satisfying the agreement. 

31 FMSHRC 172 
ACCORDINGLY, within 30 days of the date of this decision, the Secretary IS 

ORDERED to credit or refund $50 to B&B in compliance with the terms of the settlement, and, 

if they have not already done so, within the same 30 days, RS& W and Bear Gap ARE 

ORDERED to pay $100 each to the Secretary for the violatiop.s of section 75.370(a)(l) 

contained in the contested citations. Upon the Secretary's credit or refund to B&B of $50 and 

RS& W's and Bear Gap's payment to the Secretary of $100 each, these proceedings ARE 

DISMISSED. 

Administrative Law Judge 

Distribution: (Certified Mail) 

Lynne Bowman Dunbar, Esq., Thomas A Paige, Esq., U.S. Department of Labor, 1100 Wilson 

Blvd., Office of the Solicitor, Room 2226, Arlington, VA 22209-2296 

Adele L. Abrams, Esq., DianaR. Schroeher, Esq., Law Office of Adele L.Abrams, P.C., 4740 

Corridor Place, Suite D, Beltsville, MD 20705 

/ej 

31 FMSHRC 173 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 

TELEPHONE: 202-434-9964 /FAX: 202-434-9949 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

January 27, 2009 

CNIL PENALTY PROCEEDING 

Docket No. WEY A 2007-335 

A.C. No. 46-01456-111046 

EASTERN ASSOCIATED COAL CORP., 

Respondent Federal No. 2 

DECISION 

Appearances: John M. Strawn, Esq., Office of the Solicitor, U.S: Department of Labor, 

Philadelphia, Pennsylvania, for the Petitioner; 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, for the 

· Respondent. 

Before: Judge Weisberger 

Statement of the Case 

This case is before me based upon a Petition for Assessment of Civil Penalty filed by the 

Secretary of Labor ("Secretary''), alleging violations by Eastern Associated Coal Corporation 

("Eastern") of various mandatory standards set forth in Title 30 of the Code of Federal 

Regulations. 

On July 17, 2006, MSHA Inspector Jason Rinehart inspected Eastem's Federal No. 2 

Mine, an underground coal mine. He observed seven areas of unsupported roof in the 7 Right 

empty track and issued Order No. 6602108 under Section 104(d)(2) of the Federal Mine Safety 

and Health Act of 1977 {"The Act"), alleging a violation of 30 C.F.R. § 75.202(a). 

On October 4, 2006, MSHA Inspector David Severini observed accumulations ofloose 

coal and float coal dust while inspecting a belt entry near the longwall face. These conditions 

had not been noted in the pre-shift examination record book. Severini issued Order No. 6603046 

under Section 104(d)(l) of the Act, alleging a violation of 30 C.F.R. § 75.360(a)(l). 

31 FMSHRC 174 
On July 9 and 10, 2008, a hearing was held on this matter in Washington, Pennsylvania. 1 

. Subsequent to the hearing, the parties each filed proposed findings of fact and a brief. 

I. Order No. 6602108 

A. Introduction 

The 7 Right empty track is a track entry with two rails running down the center of the 

entry. One side of the entry ("the wire side''), between the rails and left rib facing inby, contains 

.an overhead trolley wire that supplies power to vehicles traveling on the rails. The other side of 

the entry between the rails and the right rib facing inby is used as a walkway for foot traffic (''the 

walk side" or "walkway''). The track is approximately 7,000 feet long and is utilized to store 

unused coal cars. 

The roof in the entry, which has been in existence for over thirty years; is supported by a 

series ofroofbolts located generally in the center of the entry, and straps located between the 

bolts. After the initial bolting when the entry was developed, additional bolts, post, and cribs 

were installed in the area. -

B. Findings of Fact and Discussion 

L The Secretaty's Case 

According to Rinehart, when he made his inspection on July 17, 2006, the roof and ribs 

had deteriorated at seven2 locations in the entry, and the roof was not adequately supported. 

Rinehart observed that in an area3 that extended fifteen feet parallel to the last row of 

bolts, there were not any bolts or other means of roof support for a seven foot distance between 

the bolts and the wire side rib. According to Rinehart, a hazard was created inasmuch as 

subsequent to the initial installation of roof bolts when the entry was first developed, the width of 

the entry and the distance between the last row of bolts parallel to the rails and the ribs had 

increased, due to rib sloughage. Rinehart opined that miners who worked or traveled on the wire 

side of the entry, such as examiners, pumpers, electricians and maintenance men, were exposed 

1 At the hearing, the parties filed a Motion for Decision and Order Approving Partial. 

Settlement setting forth their agreement to settle nine of the eleven citations at issue. The Motion 

is granted for the reasons set forth below. (III, iefra) 

2 He testified regarding his observations at six locations. The seventh location is set forth 

in the order as follows: "Between No 14 and No. 15 car marker, there is an area 7 feet by 7 feet 

not bolted. The roof has deteriorated and potted out." (Government Exhibit 1) 

3 The left rectifier area. 

31FMSHRC175 
to falling rock from the roof. In addition, he alleged that falling material could bring down the 

trolley wire and cause a fire or an ignition. 

According to Rinehart, the ribs had sloughed off on the inby and outby comers of the 

intersection on the wire side at the No. 2 car marker.4 The sloughage had also enlarged the width 

of the entry. Rinehart indicated that the roof had potted out between roof bolts, leaving an 

unsupported area eight to ten feet wide and more than sixteen feet long through the intersection. 

Rinehart observed objects on the floor under this portion of the roof. He opined that they had 

fallen from the roof, and were "nothing like a total roof falling," but were "softball, basketball 

size." (Tr. 39) 

Rinehart indicated that an area of roof to the right of the cited area looking inby had 

begun to pot out. He opined that intersections are a ''weak point" for support and are "typically 

an area where a roof would fall." (Tr. 52) According to Rinehart, as potting increases due to 

weathering of the roof between the bolts, the bolts will eventually lose their effectiveness as 

support. Also, material from the roof will fall down and could cause injury to miners in the area. 

He also opined that should the roof in the intersection "fall in," it could pull out some bolts, 

causing injury to persons outside the intersection. (Tr. 5 I) 

Rinehart observed that at the No. 215 car marker, in an area six feet by twelve feet, coal 

had potted out between the existing roof bolts. He opined that if mining operations would 

continue, the roof would eventually fall out around the bolts, which would result in inadequate 

s"Qpport, and someone in the area could suffer an injury. 

According to Rinehart, at the No. 108-110 car marker, he observed a sixteen foot long 

area on each side of the last line of bolts where there was not any roof support in the seven foot 

wide distance between the ribs and the last row of bolts on both sides of the entry, i.e., the 

walkway and the wire side. He opined that a miner in the cited area could be hurt by falling roof 

material. 

Rinehart indicated that at the No. 108-107 car marker, for a distance of twelve feet, the 

rib had sloughed off on the wire side. There was a seven foot distance between the last row of 

bolts and the rib line that was not supported. Thus, miners walking under this area of the wire 

side could have been injured by falling material. 

According to Rinehart, at the No. 105 car marker on the walkway side, as a result of roof 

sloughage, the distance between the rib line and the last row of bolts in the entry had increased to 

seven feet. This condition extended for a linear distance of twelve feet. Accordingly, miners in 

that area could have been injured by a roof fall. Rinehart opined that when the roof pots out 

around a roof bolt, it eventually becomes loose and will no longer be tight against the roof. As a 

4 Locations in the entry are designated by reference to a car marker number. The car 

markers are twenty-one feet apart. 

31 FMSHRC 176 
consequence, it will not be able to continue to compress various roof strata, resulting in 

decreased roof support. 

As a result of his inspection, Rinehart issued an order under Section 104(d)(2) of the Act, 

alleging a violation of Section 75.202(a), which provides as follows: "[t]he roof, face and ribs 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." 

2. The Respondent's Case 

Daniel Edwin Kurry, Eastern's safety supervisor, was with Rinehart on the date of his 

inspection. He indicated that in addition to the number of bolts that were initially installed, posts 

have been set, and cribs have been built in the entry to provide additional support. Also, straps 

were provided between bolts located in the center of the entry above the track, which provide 

further compression of the roof. He opined that the entry has undergone "normal weathering" 

(Tr. 150), and there have not been any reportable roof falls in the entry. He testified that "to my 

knowledge" (Tr. 152), the roof in the entry is at its original height. He opined that this ''tells 

him" that "roof stresses" or "pressure" on the roof is "very limited." (Tr. 151) In general, he 

indicated that he did not hear any sounds, or observe cracks or small pieces falling from the roof 

in the cited areas. 

Kurry indicated that the maximum allowable distance from the last bolts to the rib is six 

feet. He opined that an increase of this distance in some areas to only seven feet is "not a 

distance that I feel will allow a roof fall to propagate into the supported area." (Tr. 156) 

James Poe, who was a track boss in July 2006, indicated that fifteen bolts had been 

installed at the top end of the entry at issue on July 16, 2006. He examined the entry at the end of 

the midnight shift on July 17, 2006, prior to Rinehart's inspection. He traveled down the entry in 

an open jeep. He indicated that he did not see any cracks or "hooving" (sic.). (Tr. 185) 

3. Discussion 

a. Violation of Section 75.202(a) 

In essence, it is Respondent's position that it was not in violation of Section 75.202(a) 

because of the following factors: 

The height of the roof in the Seven-Right empty track has remained at the . 

same height since the original mining occurred in the 1970s, indicating little 

pressure on the roof. 

There was no visible evidence that the bolts in the cited areas were faulty or 

otherwise unsatisfactory. 

31 FMSHRC 177 
The 7 Right empty track was maintained by track bolting, posts, and cribs. 

There were steel straps, and possibly also wooden straps, installed between the 

original bolts that aided in the support of the bolts and the roof 

Additional roofbolts have been installed throughout the length of the entry of 

the 7 Right empty track. Eastern has consistently installed supplemental 

support. since the original mining as recently as the day before the subject 

inspection when fifteen roof bolts were installed. 

Mine personnel have not observed any evidence of stress in the roof or pillars, 

such as floor heave, changes in the roof height, or cracks. 

To the extent there has been any change in the distance between the last row 

of roof bolts to the rib, that change has been minimal. 

Even fuspector Rinehart agreed that some areas he cited had sufficient 

support: 

At the No. 239 Car Marker, fuspector Rinehart noted two posts and at 

least four roof bolts that were in contact with the roof. 

At the No. 215 Car Marker, fuspector Rinehart testified that all bolts 

were in contact with, and supporting, the roof. 

Respondent's Brief, at 38-39 (citations omitted). 

30 C.F.R. § 75.202(a) states in pertinent part that "[t]he roof, face and ribs of areas where 

persons work or travelshall be supported or otherwise controlled to protect persons from hazards 

related to falls of the roof, face or ribs and coal or rock bursts." This standard is broadly worded, 

and, as such, the Commission has held that: 

[T]he adequacy of particular roof support or other control must be measured against 

the test of whether the support or control is what a reasonably prudent person, 

familiar with the mining industry and protective purpose of the standard, would have 

provided in order to meet the protection intended by the standard. We emphasize 

that the reasonably prudent person test contemplates an objective - not subjective -

analysis of all the surrounding circumstances, factors, and considerations bearing on 

the inquiry in issue. 

Canon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987). 

More recently, the Commission has held that: 

31 FMSHRC 178 
The Secretary's roof control standard is broadly worded. See 30 C.F.R. § 75.202(a). 

Accordingly, we have held that "the adequacy of particular roof support or other 

control must be measured against the test of whether the support or control is what 

a reasonably prudent person, familiar with the mining industry and protective 

purpose of the standard, would have provided in order to meet the protection 

intended by the standard." 

Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1277 (Dec. 1998) (following Canon Coal, 6 

FMSHRC at 668). 

For the reasons that follow, I find that a preponderance of the evidence establishes that 

Eastern violated Section 75.202(a). 

The area of inadequately supported roof at the No. 239 car marker was located at an 

intersection which, according to the uncontradicted testimony of Rinehart, is typically a "weak 

point for roof support" (Tr. 52), because the intersection lacks continuous rib support. 5 

According to Rinehart, in the more than sixteen foot long cited area that was between 

eight and ten feet wide, the roof had potted out between bolts, creating gaps between the original 

and the existing roof height. (Government Exhibit 4-A) As a result, some bolts were loose and 

their bearing plates were not up against the roof, and as such they were not providing support. 

Additional potting out was observed at the No. 215 car marker.6 

In addition, fifteen square feet of unsupported roof existed at both the walk and wire sides 

of the track at the Nos. 108-110 car marker. As a result, according to Rinehart, the width of the 

entry was increased, making it more susceptible to roof failure. 7 Significantly, Rinehart observed 

some material on the floor. He described the material as not like a total roof fall but as "softball, 

basketball size." (Tr. 39) His testimony in these regards was not impeached or contradicted. I 

5 Respondent argues in its brief that the roof at the No. 239 car marker was sufficiently 

supported by ''two posts and at least four roof bolts that were in contact with the roof." 

However, this argument, while factually correct, does not acknowledge that this area is located at 

an intersection and subject to the problems discussed above. 

6 Additionally, another area of unbolted roof, seven feet by seven feet, located between the Nos. 

13 and 14 car markers, was described by Rinehart in the order at issue as "deteriorated" and 

"potted out." (Government Exhibit 1) This statement in the order, admitted into evidence, was 

not impeached or contradicted, and therefore I accept it. 

7 Respondent argues in its brief that the height of the roof is the same as it was in the 1970s. 

This argument is based on Kurry's testimony on direct examination. However, Kurry has only 

been employed at the mine for five and a half years and, as such, has no personal knowledge of 

the height of the mine roof prior to his tenure. · 

31 FMSHRC 179 
thus accept it. 

Additionally, there were three areas, fifteen square feet each, 8 where unsupported roof 

exceeded the maximum allowable distance between the last row of bolts and the rib. According 

to Rinehart, the increase in width of the cited entries due to sloughage compromises the integrity 

of the roof support system. Respondent argues that, as testified to by Kurry, this increase in the 

width of the entries was only one foot, and the roof would not be likely to fall because of this 

increase. However, on cross-examination, Kurry agreed that the bolt support system is designed 

to create a compression beam from rib to rib, and that the original design regarding roof support 

was being exceeded. 9 

Within the above framework, I conclude that a preponderance of the evidence establishes 

that there was inadequate roof support in the cited areas of the entry. This lack of roof support 

presented the discrete safety hazard of a potential roof fall. 

I further conclude that this hazard existed on both the wire and the walkway side of the 

track, subjecting miners to potential exposure. Examiners traverse the 7 ,000 foot entry daily. 

Also, repairmen and wire maintenance persons are required to access the track and wire side of 

the entry respectively. to Further, pumpers are required to traverse the entry to repair and inspect 

three pumps that were located in the entry. t 1 · 

8 The 5-left rectifier, the Nos. 107-108 car marker, and the No. 105 car marker. 

9 Respondent also argues in its brief that there was no visual evidence that any of the roof bolts 

in the cited areas were faulty, citing page 119 of the transcript. This page contains the testimony 

of Kevin Luketic, one ofEastem's roofbolters, who was with Rinehart during the latter's 

inspection. Luketic' s testimony relating to the condition of roof bolts is as follows: ''Your bolts 

maybe-you know, because you have no visual evidence there that, you know, that I could say 

that they're bad, you know, but there's that chance." (Tr. 119) I find that it is not clear whether 

hi$ testimony refers to what he actually observed during the inspection, or whether his testimony 

is based generally on his experience as a bolter. Also, it is significant to note that he agreed that 

there was an unsupported area at the cited left rectifier. 

fu addition, Respondent advances the argument that the roof had sufficient support at the 

No. 215 car marker. However, the area at the No. 215 car marker was subject to a separate and 

distinct problem of being potted out. 

10 Rinehart also pointed out that "[ e ]xaminers, possibly building the track, track men, motor 

men," may be on the track itself. (Tr. 67) 

11 One pump was located in a cross-cut on the wire side at the No. 70 car marker. The record 

does not indicate the exact location of the other two pumps. fu Supplemental Stipulations, filed 

after the hearing, the parties indicated that it could not be conclusively determined whether these 

pumps were on the wire or walkway side of the entry. 

31 FMSHRC 180 
Based on all the above, I further conclude that a reasonably prudent person familiar with 

the mining industry and the protective purpose of Section 75.202(a) would have provided 

additional roof support in the areas cited. See Canon Coal Co., 9 FMSHRC 667 (Apr. 1987). 

Failure to do so has resulted in a violation of Section 75.202(a). 

b. Significant and Substantial 

A "significant and substantial" violation is described in Section 104(d)(l) of the Mine 

Act as a violation "of such nature as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814( d)(l). A violation is 

properly designated significant and substantial "if, based upon the particular facts surrounding 

that violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature." Cement Division, National Gypsum Co., 

3 FMSHRC 822, 825 (Apr. 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) ("Mathies"), the Commission 

explained its interpretation of the term "significant and substantial" as follows: 

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 ofa 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. 

In United States Steel Mining Co., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission 

stated further as follows: 

We have explained further that the third element of the Mathies formula "requires 

that the Secretary establish a reasonable likelihood that the hazard contributed to will 

result in an event in which there is an injury." U S. Steel Mining Co., 

6 FMSHRC 1834, 1836 (August 1984). We have emphasized that; in accordance 

with the language of section 104(d)(l), it is the contribution of a violation to the 

cause and effect of a hazard that must be significant and substantial. U S. Steel 

Mining Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining 

Company, Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

(emphasis added) 

As set forth above, the record establishes a violation of a mandatory standard, i.e., Section 

75.202 (a), and that this violation contributed, to some degree, to a discrete safety hazard of a 

31FMSHRC181 
roof fall. Thus, the record has established the first two factors set forth in Mathies. Regarding 

the third element, the Secretary has the burden of establishing that the hazard contributed to 

herein, a roof fall, was reasonably likely to have occurred and to have resulted in an injury of a ·. 

reasonably serious nature. 

In support of its position, Respondent asserts that Rinehart did not provide any opinion 

regarding the likelihood of an event such as a roof or rib fall that would have reasonably resulted 

in an injury. Respondent maintains that additional timbers, bolts, straps, and cribs were installed 

subsequent to the initial bolting of the entry. Further, although the entry had been developed 

approximately twenty years ago, the record does not contain any evidence of any roof falls. 

Lastly, when the entry was inspected, there was not any evidence of conditions which would 

indicate some instability in the roof or ribs, such as cracks in these areas or heaving of the floor. 

Also, according to Kurry, any deterioration in the roof resulting in material falling from 

the roof would not propagate and cause a fall outside the area of deterioration. In this 

connection, he cited the absence of roof problems in areas adjacent to portions of roof that had 

potted out. 

However, the fact that the roof had potted out in three areas and sloughage increased the 

width of the entry for a total. of approximately ninety feet in the cited areas lends credence to 

Rinehart's opinion that potting is caused by a weathering or deterioration process, that the roof 

wjll continue to deteriorate, and eventually the roof support bolts in the area will no longer be in 

cQntact with the roof. I note that, in the main, this specific testimony was not contradicted by 

Eastem's witnesses. 

Moreover, as explained more fully above ((I)(B)(3)(a), infra), in the intersection at the 

No. 239 car marker, some bolts were loose, and their bearing plates were no longer in contact 

with the roof and were not providing support. 

In addition, as set forth above, there was unsupported roof at both sides of the track at the 

108-110 car marker. The width of the entry was thus increased, resulting in the area becoming 

more susceptible to roof failure. Further, according to the uncontradicted testimony ofRinehart, 

material that had fallen from the roof was observed. 

Also, for the reasons set forth above, l find that the increase in the width of the entries 

due to sloughage at three different areas compromises the integrity of the roof support system. In 

this connection, I note that Rinehart explained that sloughage is a continuous process eventually 

leading to potting out of bolts. It thus can be concluded, given continued mining operations in 

the entry, that sloughage will continue to increase the width of the entry, further reducing roof 

support. 

Finally, I note, as elaborated above, that miners regularly travel the entry at issue. 

31 FMSHRC 182 
Within the context of all the above, in combination, I conclude that,·given continued 

mining operations, accompanied by the passage of time, it was more likely than not that there 

was a reasonable likelihood that the cited violative conditions contributing to the hazard of a roof 

fall will result in an injury-producing event, i.e., material falling from the roof. Further, 

considering the exposure of miners in the entry, the size of materials that had already fallen, and 

the height of the roof, i.e., approximately six feet, I find that there was a reasonable likelihood of 

a reasonably serious injury occurring. I thus find that the Secretary has established the third and 

fourth elements set forth in Mathies. Accordingly, I find that the Secretary established by a 

preponderance of the evidence that the violation was significant and substantial. 

c. Unwarrantable Failure 

The Secretary also alleges the violation was the result of the Respondent's "unwarrantable 

failure" to comply with the cited standard. 

fu Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987), the Commission 

determined that unwarrantable failure is aggravated conduct constituting more than ordinary 

negligence. Unwarrantable failure is characterized by such conduct as "reckless disregard," 

"intentional misconduct," "indifference" or a "serious lack of reasonable care." Id. at 2003-04; 

Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure 

test). 

The Commission has recognized that a number of factors are relevant in determining 

whether a violation is the result of an operator's unwarrantable failure. Consolidation Coal Co., 

23 FMSHRC 588, 593 (June 2001). These include the extent of the violative condition, the 

length of time that it has existed, the operator's efforts at abating the violative condition, whether 

the operator has been placed on notice that greater efforts are necessary for compliance, the 

operator's knowledge of the existence of the violation, whether the violation is obvious, and 

whether the violation poses a high degree of danger. Id. See also San Juan Coal Co., 29 

FMSHRC 125, 128 (Mar. 2007). 

L. Extent of the cited conditions 

The Secretary argues that the violative conditions were extensive because seven separate 

areas of unsupported roof were cited, "each of which covered a substantial section of the roof' 

(Secretary's Post Hearing Brief, at 30), and that sixty-six roof bolts and three jacks were needed 

to abate the conditions. Three of the cited locations, the No. 215 and No. 239 car makers, and 

between the No. 13 and 14 car markers, involved conditions of potting in areas of approximately 

seventy feet and forty-nine feet respectively. The remaining four areas cited each contained an 

area approximately fifteen feet in length where the allowable maximum width set forth in the 

applicable roof control plan had been exceeded by one foot, or a total of ninety square feet in five 

31FMSHRC183 
separate locations. 12 I find that the total area cited was not significant compared to the total roof 

area of the entry in question, which extended approximately seven thousand feet and was sixteen 

foet in width, i.e., 112,000 square feet of roof. Thus, I find that the violative conditions were not 

extensive compared to the total area of the roof in the entry in question. 

11. The length of time the violation existed 

Respondent argues that the cited conditions had not existed for a significant period of 

time prior to Rinehart's inspection. As support for its position, Respondent cites the pre-shift 

mine examiners' report of an examination of the entry in question by Jam es Poe on the midnight 

shift, July 17, which does not note any hazardous condition in any of the areas cited by Rinehart. 

However, it is significant to note that Poe, who testified on behalf of Eastern, was not asked to 

describe bis specific observations of the cited areas during that, or prior examinations. On the 

other hand, Rinehart opined that the cited conditions existed for a week and provided his reason 

as follows: "[s]even areas just don't fall within the shift or don't get wide within the shift." (Tr. 

n.) I note that Kuny, who was with the inspector, did not proffer any contrary opinion regarding 

the length of time the cited conditions had been in existence .. 

Therefore, based on the above, and considering the increase in width in the entry due to 

sloughage at six different locations including the wire and walk sides at the No. 215 car marker, 

as well as two separate areas where the roof had potted out; I conclude that the cited conditions 

had existed for more than a few days. 

111. Whether the conditions cited were obvious or posed a high 

degree of danger 

Respondent asserts, in essence, that its personnel had a good faith believe that the area 

was well-supported and safe. It argues that accordingly the existence of the violative conditions 

was not obvious. It further asserts that there was not a high degree of danger inasmuch as, inter 

alta, the twenty year old roof in the entry has not evidenced any roof falls or signs of instability. 

I have considered Respondent's arguments. However, forthe reasons, set forth above ((I) 

(B)(3)(b) infra), I find that the violation presented a high degree of danger to miners. Further, 

according to Rinehart, the conditions were obvious and could be seen when walking up the entry. 

It is significant that Kuny, who was with Rinehart, did not contradict this testimony. Therefore, 

based on the above, I find that the cited conditions were obvious. 

iv. Whether the operator was placed on notice that greater 

efforts were necessary for compliance. and whether the 

operator had knowledge of the existence of the violation 

12 The fourth location cited, the No. I 08-110 car marker, cited two unsupported areas, one 

on each side of the entry. 

31 FMSHRC 184 
The Secretary cites Eastern's having performed supplemental bolting in the entry in 

question on July 16, 2008, shortly before the inspection, as evidence that it was aware of the need 

to maintain the roof in the entry. I note, however, that this supplemental bolting was performed 

approximately 1,000 feet away from the nearest area cited by Rinehart. 

As additional support for its position that Eastern was on notice that further efforts were 

required for compliance, the Secretary cites the testimony of Kurry, Eastem's safety supervisor, 

that the entry which was approximately twenty years old and had undergone weathering. 

However, according to Kurry, the weathering was "normal" (Tr. 150), and did not involve roof 

falls that had pulled out any bolts. 

Significantly, the record does not contain any evidence that Eastern had actual knowledge 

of the violative conditions. Further, the record does not indicate that there was any history of 

previous roof falls in the cited entry. Nor was any evidence adduced that, previous to issuance of 

the instant order, any MSHA officials had communicated to Eastern the need for any additional 

efforts at compliance with Section 75.202(a). ( c.f. Enlow Fork Mining Co., 19 FMSHRC 5, 

11-12 (Jan. 1997)). 

I find that the record has failed to establish that Eastern had knowledge of the violative · 

conditions or had been put on notice of the need for greater efforts to achieve compliance with 

Section 75.202(a). 

v. The operator's abatement efforts 

The Secretary does not assert there was any deficiency in Eastern's efforts in abating the 

violative conditions. The record does not contain any evidence as to any deadline that Rinehart 

had set for completion by Eastern of its efforts to abate the order. Subsequent to the issuance of 

the order in question, Eastern installed sixty-six additional roof bolts and three jacks in the cited 

areas. As a result, the order was terminated five days after its issuance. Significantly, the record 

does not contain any evidence that any MSHA personnel or agents had, prior to termination, 

expressed to Eastern any dissatisfaction relating to its abatement efforts, or the time being taken 

to achieve compliance. Considering all of the above, I find that it has not been established that 

there was any deficiency relating to Eastem's efforts in abating the violativeconditions. 

vi. Further discussion 

In the context of all of the above, I find that the violative conditions were obvious and 

posed a high degree of damage. However, the violative area of roof cited was not extensive in 

comparison with the total area of the roof in the entry. Moreover, it has not been established that 

Eastern had knowledge of the conditions, or was aware that greater efforts were needed for 

compliance. Further, although the conditions existed for more than a few days, there is 

insufficient evidence regarding their existence beyond that limited time period. Thus, I find that 

Eastem's negligence was mitigated and did not reach the level of aggravated conduct. 

31FMSHRC185 
Accordingly, I find that it has not been established that the violation was the result of 

Eastem's unwarrantable failure. 

C. Penalty 

I find, for the reasons set forth above ((l)(B)(3)(b), infra), that the gravity of the violation 

was relatively high. I find that the history of violations does not warrant either an increase or 

decrease in the penalty to be assessed. However, for the reasons set forth above (I(B)(3)(c) 

tefra), I find that Eastern exhibited no more than a moderate level of negligence which was 

below the level of aggravated conduct. Considering all of the above, and the parties' stipulations 

regarding the remainder of the factors set forth in Section 11 O(i) of the Act, I find that a penalty 

of $3,000 is appropriate. 

IL Order No. 660304613 

On October 4, 2006, MSHA inspector David Severini inspected the 9 Left section of the 

Federal No. 2 Mine, owned and operated by Eastern. In general, the latter was involved in 

mining bleeders which had to be completed prior to the start of a longwall section. Severini 

examined the 9 Left coal conveyor belt which conveyed coal outby, and was approximately 6,000 

feet in length. He noted accumulations of loose coal and float coal dust that had not been 

recorded in the pre-shift examination report for the examination conducted earlier that day. He 

is1med an order under Section 104( d)(l) of the Act, alleging a violation of 30 C.F.R. § 

7S.360(a)(l), which provides, as pertinent, that "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." 

A. The Secretary's Evidence 

According to Severini, the accumulation of loose coal began under the tail piece and 

extended under the belt approximately two hundred feet to the outby end of the No. 59 block. He 

indicated that the accumulations were approximately five to six feet wide, and varied between 

two to twenty inches in depth .. According to Severini, the tail roller was turning in an 

accumulation of loose coal four to eight inches deep, and five inches wide, and was grinding the 

loose coal into dust that was black in color and was suspended in the air. Also, the first two 

bottom rollers outby the tail roller were turning in coal from six to sixteen inches deep, and six 

feet wide. The bottom belt was also running in the coal accumulations. The dust coated the roof, 

13 Five minutes prior to the issuance of Order No. 6603046, Severini had issued a Section 

104(d)(l) Citation No. 660304, alleging a violation of 30 C.F.R. § 400 for coal and dust 

accumulations. These conditions were the predicate for Order No. 6603046. Respondent is 

challenging the existence of the conditions cited in Citation No. 660304. However, the validity 

of the issuance of this citation, and any penalty to be assessed for the violation, are not before me 

in the case at bar, as it is the subject of a separate penalty proceeding (Docket No. WEV A 2008-

944). 

31 FMSHRC 186 
ribs, floor, belt structure, and pipeline, for a distance of approximately one hundred feet outby the 

tail roller. 

B. The Respondent's Evidence 

Daniel Kevin Conaway, Eastem's safety supervisor, was with Severini on October 4 

when the latter made his inspection of the area in question. He essentially corroborated 

Severini' s testimony regarding the accumulations observed by the latter. However, Conaway 

indicated that he found it difficult to believe that the material that he observed had been there for 

three shifts. He explained his opinions as follows: 

Tr. 285. 

A. The reason that you don't want coal around belt rollers is because it 

will create friction on the belt or on the rollers, and that will generate 

heat, which, in turn, can start a fire. 

We did not find any hot rollers. We did not find any hot stands, and 

the belt was not running out of alignment, so my issue was what's 

the heat source? 

Q. So you didn't see-when the rollers were checked, they were not hot 

or warm? 

A. Not the ones we checked, no, sir. 

Q. What would that indicate to you about how long that material had 

been there? 

A. It would lead me to believe that it hadn't been there that long. 

Conaway indicated that the belt had been raised approximately one hundred feet outby 

the tail to allow traffic to travel under the belt in setting up the long wall. He indicated that the 

raising of the belt is not a normal configuration and it "[put] friction on the belt. Thus material 

is more prone to accumulate at the tail." (Tr. 281) 

On October 4, 2006, between 4:30 a.m. and 5:10 a.m., Theodore Echols examined the 9 

Left belt. His pre-shift examination report noted various conditions under the heading 

violations and other hazardous conditions observed and reported, including "spillage" which 

was described as being "[b]etween stands 26 to tail." (Government Exhibit 15) Echols 

indicated that when he was at the tailpiece on October 4, the belt was running and "[t]hey were 

loading on it." (Tr. 371) Echols testified that he observed spillage on the belt line, but none 

around the tail. He indicated that the tail roller was not running in coal. He did not identify any 

31 FMSHRC 187 
coal dust in the air, nor did he observe any coal dust on the roof or rib. Specifically, he 

indicated that he did not see any accumulations that were sixteen to twenty-one inches deep 

"[a]t or around the tail area, either the tail roller or the two rollers that are near there." (Tr. 375) 

John Kucish, Eastern' s mine manager, indicated that on October 4, during the midnight 

shift, which usually runs from approximately 1 :00 a.m. to 8:30 or 9:00 a.m., 407 tons of coal 

were produced. Kucish indicated that on October 4, 2006, during the entire day shift which 

typically runs from 9 a.m. to 4 p.m;, 120 tons of coal were produced. Four hundred and 

nineteen tons were mined during the afternoon shift on October 4. 

C. Discussion 

Essentially it is the Secretary's position that the dust and coal accumulation at the tail of 

the belt had not been reported in the pre-shift examination report on October 4, 2006, and as 

such Eastern was in violation of Section 75.360(a)(l). The record clearly supports the testimony 

of Severini regarding the extent of the coal and dust accumulations, observed by him at 11 :55 

a.m. on October 4. Also, I find that there was not any notation of these accumulations in the 

pre-shift examiner's report for the day shift, October 4. The critical issue for resolution is 

whether the Secretary has established that the accumulations observed by Severini were in 

e:x;istence at the time that Echols made his examination and subsequent report between 4:30 and 

5:00 a.m. on October 4. In this connection, the Secretary relies on the dimensions of the 

accumulations of coal, and the fact that the belt and rollers were running in the accumulations. 

Also, the Secretary cites testimony that the float coal dust, which was black, coated all surfaces 

of the belt entry ranging in depth from a "film" to a ••measurable thick[ness]." (Tr. 212) In this 

connection, Severini and MSHA inspector Melbourne Robinson, who was with Severini during 

the inspection, opined that it took several shifts for the accumulations to occur. Severini 

provided the following as the basis for his conclusion: ''Just experience and, again, the amount 

of float coal dust that accumulated on the ribs and the mine roof at that time, it would take - it 

would take a few shifts to get that dark, that black and in some places on that structure that 

thick." (Tr. 228) Robinson's testimony on this point is as follows: 

Q. Now, there was some issue raised about the condition of the coal, 

whether it was wet or dry, what kind of moisture content it had. Can 

you tell me based on your observation of the coal that the rollers 

were turning in, what was it? 

A. I believe it was dry, dry coal. 

Q. And with regard to the float coal dust accumulation, where was the 

float coal dust? 

A. It pretty much covered everything, like, the belt structure, roof, floor, 

ribs, pipeline. 

31 FMSHRC 188 
Tr. 316-18. 

Q. And was there anything significant about this.accumulation? How 

did it look? 

·A. It was a serious accumulation problem. 

Q. Okay. How would you compare the scene, this accumulation that 

you saw with Mr. Severini on your experience in the industry? 

A. I would have to rate -- it was probably one of the worst conditions 

I've seen on a belt with nobody working on it. You always have 

spills along the belt line, but you usually have people in attendance. 

Q. Andwhen you came upon this, was anybody working on it? 

A. No. 

Q. All right. Now, also based on your experience in the industry, how 

long did it take this accumulation of float coal dust, the coal 

accumulation to occur? 

·A. The float dust seemed extensive enough in my opinion it would have 

been three shifts to accumulate that bad. 

I find that the weight to be accorded to the inspectors' opinion on this critical issue is to 

be diminished inasmuch as, aside from a reference to their experience, they did not explain how 

the existence of the conditions that they observed led to their opinion as to the length of time the 

accumulations had existed. 

Further, according to Severini, in essence, the extent of dust accumulations resulted from 

the effect of the tail rollers grinding accumulations of coal which, as observed by him, produced . 

fine dust that was thrown up into the air and carried throughout the entry. Robinson opined that, 

based on his experience, due to the extensive condition of dust in the entry, it took three shifts to 

accumulate. Thus underlying the inspectors' testimony is an assumption that the rollers had 

been grinding coal dust during and before the pre-shift examination. In this connection, I note 

that according to Conaway, when rollers have been turning in and grinding coal accumulations, 

heat would have been generated as a result of the friction that was produced by this action. 

Thus, the absence of any evidence of hot rollers or stands tends to significantly diminish any 

inference that the rollers had been grinding coal and producing dust since before Echols' 

examination seven hours earlier. Further, since the record establishes that 120 tons of coal were 

produced on the entire day shift, it is incumbent upon the Secretary to prove that the observed 

accumulations did not result from coal being run on the belt after Echol's examination, and prior 

31 FMSHRC 189 
1Q Severini's inspection. I note that when Severini arrived "on the section," although the belt 

was in operation, it was not running coal. Although the parties stipulated that the inspection 

party arrived "on the section" at 9:00 a.m., the record is not clear when Severini first observed 

that coal was not being transported on the belt, i.e., when he first entered the belt entry and had 

the ability to make this observation. 

Subsequent to the hearing, the parties stipulated as follows: "On October 4, 2006, the 

inspection party arrived on the section at approximately 9:00 a.m. The party proceeded up the 9 

Left Track Entry and went to the longwall setup face before entering the 9 Left Coal Conveyor 

Belt Entry." (Supplemental Stipulations, B(l)) (emphasis added). However, there is not any 

evidence in the record as to when Severini and the inspection party actually arrived at the entry. 

Hence, since the record fails to establish when Severini arrived on the belt entry, there is not any 

basis to predicate a finding, based upon his observations, as to the length of time the coal had 

not been run on the belt prior to 11 :55 a.m. Moreover, due to the operation of the withdrawal 

order at issue, the belt was not in operation, and coal could not have been run on the belt . 

between the issuance of the order at approximately 11 :55 a.m. and its termination later that day 

at "1500." (Government Exhibit 10, p. 3). There is not any direct evidence in the record as to 

whether coal was produced and transported on the belt (1) between Echols' examination and 

Severini's inspection and/or (2) between the termination of the withdrawal order and the end of 

the day shift. There is not any basis in the record to allow a specific allocation of the tot~ 

production of 120 tons for the shift to either of these periods. Therefore, I find that the · 

Secretary has failed to establish that coal, in quantities sufficient to produce the accumulations 

observed by Severini, was not transported on the belt after Echols' examination. 

Therefore, considering all the above, I find that the Secretary has not established by a 

preponderance of the evidence that the accumulations observed by Severini at approximately 

11 :55 a.m. had been in existence at the time of the pre-shift examination by Echols. I thus find 

that the Secretary has not met her burden of establishing a violation of a failure to perform a preshift examination as required by Section 75.360(a). Accordingly, I find that Eastern did not 

violate Section 75.360(a)(l). 

IIJ. Citation Nos. 6602109, 6601079, 6601841, 6601849, 6602565, 6602567, 6602568 and 

6602569 

At the hearing, the Secretary filed a motion for decision and order approving partial· 

settlement relating to these citations. In the motion, it is represented that the parties reached a 

settlement regarding these citations and seek a reduction in penalties from $11,045 to $6,200. I 

have reviewed the representations set forth in the settlement agreement, and conclude that its 

terms are appropriate and are consistent with the terms of the Act. Accordingly, the motion is 

granted. 

31 FMSHRC 190 
ORDER 

It is Ordered that Order No. 6603046 be dismissed. It is further Ordered that the 

Respondent pay a total civil penalty of$9,200 within 30 days of this decision. 

Distribution: 

liO ~ - ~.Weisberger Admin'istrative Law Judge 

John M. Strawn, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 

Suite 630E, 170 S. Independence Mall West, Philadelphia, PA, 19106-3306 

R. Henry Moore, Esq., JacksonKellyPLLC, Three Gateway Ctr., Suite 1340, 401 Liberty Ave., 

Pittsburgh, PA 15222 

/eb 

31FMSHRC191 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, NW., Suite 9500 

Washington, D.C. 20001 

COAL RIVER MINING, LLC, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

S~CRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COAL RIVER MINING, LLC, 

Respondent· 

January 28, 2009 

CONTEST PROCEEDINGS 

Docket No. WEV A 2006-125-R 

Citation No. 7249165; 01/30/2006 

Docket No. WEV A 2006-126-R 

Order No. 7249166; 01/30/2006 

Docket No. WEVA 2006-127-R 

Order No. 7249167; 01/30/2006 

Docket No. WEVA 2006-128-R 

Order No. 7249168; 01/30/2006 

Tiny Creek No. 2 

Mine ID: 46-08835 

CNIL PENALTY PROCEEDING 

Docket No. WEVA 2007-196 

A.C. No. 46-08835-103740 

Tiny Creek No. 2 Mine 

DECISION 

Appearances: Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, 

Virginia, on behalf of the Secretary 

F. Thomas Rubenstein, Esq., Dinsmore & Shohl, LLP, Morgantown, West 

Virginia, on behalf of Coal River Mining, LLC 

Before: Judge Barbour 

31FMSHRC192 
These consolidated cases are before me pursuant to four notices of contest filed by Coal 

River Mining, LLC (Coal River) and one petition for assessment of civil penalty filed by the 

Secretary of Labor against Coal River. The proceedings arise under section 105(d) of the Federal 

Mine Safety and Health Act of 1977 (the Mine Act or Act). 30 U.S.C. § 815(d). In the contest 

proceedings, Coal River challenges the validity of one citation and three orders issued at its Tiny 

Creek No. 2 Mine, a bituminous underground coal mine located in Lincoln County, West 

Virginia. In the civil penalty proceeding, the Secretary proposed civil penalties totaling $34,400 

for the violations alleged in the citation and orders. The cases were tried in Charleston, West 

Virginia. 

THE CITATION. THE ORDERS AND THE PENALTY PETITION 

Section 104(d)(1)(30 U.S.C. §814(d)(l)) Citation No. 7249165 (Docket No. WEVA 

2006-125-R) asserts the company violated 30 C.F.R. § 75.340{a), a mandatory safety standard 

requiring in pertinent part ''underground ... battery charging stations ... [to] be housed in 

noncombustible structures or areas or be equipped with a fire suppression system." Section 

104(d)(l) Order No. 7249166 (Docket No. WEVA 2006-126-R) asserts the company violated 30 

C.F.R. § 75.360(b)(9), a mandatory safety standard requiring the preshift examiner to "examine 

for hazardous conditions ... at ... [u]nderground electrical installations." Section 104(d)(l) 

Order No. 7249167 (WEVA 2006-127-R) asserts the company violated 30 C.F.R. § 75.5.12, a 

mandatory safety standard requiring all electric equipment to be "frequently examined, tested and 

properly maintained ... to assure safe operating conditions." Seetion 104(d)(l) Order No. 

7249168 (WEVA 2006-128-R) asserts the company violated 30 C.F.R. § 75.503, a mandatory 

safety standard requiring an operator to keep electric face equipment in "permissible condition." 

The citation and orders contain findings the alleged violations were significant and 

substantial contributions to mine safety hazards (S&S) and were the result of the company's high 

negligence and unwarrantable failure to comply with the standards. The company contests all of 

the allegations. 

· The Secretary seeks penalties of $10,300 each for the violations alleged in Citation 

7249165 and Orders No. 7249166 and 7249167 and a civil penalty of $3,500 for the violation 

alleged in Order No. 7249168 (Docket No. WEVA 2007-196). 1 In the civil penalty proceeding, 

as in the contest proceedings, the company denies it violated the cited standards. It also 

challenges the inspector's gravity and negligence findings. 

1

Counsel for the Secretary explained the lower proposed penalty was the result of an 

error. When the inspector issued the order, he indicated one person was endangered by the 

alleged violation. According to counsel, he should have indicated eight persons were affected. 

Counsel's explanation was supported by the inspector's testimony, and the Secretary's motion to 

modify the order to indicate eight persons were affected was granted. Tr. 282, 414. According to 

counsel, if the alleged violation had been assessed as endangering eight miners the proposed 

penalty would have been $10,300, not $3,500. Tr. 24-25. 

31 FMSHRC 193 
STIPULATIONS 

The parties stipulated as follows: 

1. Coal River ... is an operator as defined in Section 3( d) 

of the ... [Act]. 

2. Operations of Coal River ... at [the mine] are ... subject 

to the jurisdiction of the ... Act. 

3. [T]his proceeding is subject to the jurisdiction of the 

Federal Mine Safety and Health Review Commission 

and its designated administrative law [judge] pursuant 

to Sections 105 and 113 of the ... Act. 

4. [T]he products of the ... mine ... affected interstate 

commerce within the meaning and scope of Section 4 

of the.~. Act. 

5. True copies of each citation and order ... at issue ... 

in this proceeding were served on ... [Coal River] 

or its agent as required by the ... Act. 

6. The total proposed penalty for the citation and orders 

at issue in this proceeding will not affect ... [Coal 

River's] ability to continue in business. 

7. [F]or the purpose of assessing a penalty in this case, 

... [Coal River] has a low history of previous violations. 

Tr. 38-40. After these stipulations were read into the record, counsels agreed on one additional 

fact-that from January 1, 2005, to January 27, 2007, no citation or order was issued· at the mine 

alleging a violation of section 75.340{a). Tr. 41-42. 

THE BACKGROUND OF THE CITATION AND ORDERS 

The subject enforcement actions arose out of MSHA's investigation of an incident that 

occurred at the mine on January 27, 2006, when batteries allegedly overheated during the evening 

shift. The batteries had been taken off a scoop, placed on the ground, and connected to a battery· 

charger at a battery charging station. 2 The batteries were located just outby the battery charger, 

2

MSHA inspector, Bobby Moreland, described the scoop as "a rubber-tired :machine that 

... has a bucket on one end, [and] batteries on the other [end]." Tr. 138. The scoop in question 

31 FMSHRC 194 
and the charging station was located at Sp ad No. 1965. Tr. 597. Air ventilating the charging 

station did not travel to the face, but was routed outby. Id., Tr. 602. The charging and/or 

overheating of the batteries apparently caused them to release hydrogen gas, which in turn 

triggered the mine's carbon monoxide (CO) sensors. This resulted in an alarm sounding, which 

in tum resulted in all underground miners being evacuated and rescue teams being called. 3 There 

were no InJUnes. 

Bobby Moreland has been an MSHA inspector since approximately 1991. Tr. 47-48. On 

January 27, Moreland was acting as an accident investigator and an electrical specialist for the 

agency. In addition to his MSHA duties, Moreland is a certified electrician. He also holds mine 

foreman's papers. Tr. 47. Since becoming an electrical specialist for MSHA, his primary area of 

responsibility has been accident investigations. Moreland estipi.ated he has investigated 30 to 40 

accidents for the agency, three of which involved electrical incidents. Tr. 49. 

Moreland had inspected the Tiny Creek No. 2 Mine in the past; but at the time of the 

incident it had been "several years" since he had been underground there. Tr. 50; see also Tr. 92. 

On January 27, Moreland was at home when he received a telephone call from his supervisor, 

Terry Price. Price told Moreland there had been an incident at the mine.4 Price instructed 

Moreland to go to the mine. Tr. 52. Price also decided to go to the mine. 

Moreland and Price were not the only ones who received calls that evening. B.K. Smith, 

the mine superintendent, was at home when he, too, was called. Smith was advised the mine's 

CO monitoring system was reporting "real high" CO levels underground. Smith, who was well 

aware of recent mine explosions and fires involving other mines and operators, was "scared to 

death." Tr. 773; see also Tr. 772. He ordered all miners evacuated, and then he immediately left 

for the mine.5 Tr. 771-772. 

When Moreland arrived at the mine, he discovered no one knew exactly what had 

happened. Some miners still were underground. Tr. 59, 94-95. Both Price and Smith arrived 

was used ''to carry supplies or to do cleaning." Id. 

3

LarryBlackbum, Coal River's production manager, estimated a total of 30 miners were 

evacuated. Tr. 629. 

4Terry Price learned something had happened when, at about 8:30 p.m., Terry Chapman, 

the mine's safety director, called Price and reported the event. Tr. 56; see Gov't Exh. 8. 

5

0n January 27, in addition to Smith, who had been the superintendent since August 1995 

(Tr. 170), the mine management team included the manager of operations, Larry Blackbum; and 

the third shift mine foreman, Mark Blackbum. The team generally received good marks from 

MSHA enforcement personnel. For example, Moreland believed they did a "good job" 

managing the mine. Tr. 93. 

31FMSHRC195 
shortly after Moreland. Tr. 773. Moreland first spoke with the chief electrician, Ryan Browning. 

Then, Moreland went to the CO monitor station to get a printout of the underground CO levels. 6 

Tr. 60. A printout was not available, but Moreland could tell from the system that its alann had 

sounded. Moreland thought the alann could have been triggered by gases produced by a fire or 

released from a battery or batteries. 7 Tr. 61. 

Smith also checked the monitor station. He was very concerned about a possible 

underground fire. Tr. 814. However, as he continued to check, he could see the gas levels 

beginning to diminish. Tr. 773-774. The gas was moving outby and out of the mine, and new gas 

was not being produced.8 Tr. 780. In the meantime, MSHA took control of the situation by 

issuing a section 103(k) order (30 U.S.C. § 813(k)) to Coal River.9 Tr. 776-777. 

Moreland stayed at the mine until after midnight. After he confirmed all miners were 

safely accounted for and none were left underground, Moreland prepared to go home. 10 Before 

leaving, Moreland listened to the miners being "debriefed" as they came out of the mine. Tr. 63. 

From what he heard, he believed the high gas levels were the result of a "possible battery fire." 

Id. 

In the meantime, third shift mine foreman, Mark Blackburn, had traveled underground to 

6

The station was located in the main mine office. 

7

Everyone agreed although the system was designed to signal a fire by detecting the 

resulting CO, the system also could be triggered by the release of high levels of hydrogen given 

off by batteries while they were charging or when they overheated. Tr. 61-62. 

8

Moreland explained that by looking at the system, ''You could follow [the gas] ... from 

one sensor to another" as air traveled outbyto exit the mine. Tr. 96. 

9

Section I 03(k) provides in part: 

In the event of an any accident occurring in 

a coal ... mine ... [an inspector], when 

present, may issue such orders as he deems 

appropriate to insure the safety of any person 

in the coal ... mine, and the operator of such 

. mine shall obtain the approval of ... [the 

inspector] ... of any plan to recover any person in such mine ... or [to] return affected 

areas of such mine to normal. 

10Smith was so concerned about what might have happened underground, he ordered four 

head counts to make sure everyone was out. Tr. 778. 

31 FMSHRC 196 
find out what happened. Blackbum first determined there was no active mine fire, and he then 

made his way to the battery charging station at Spad No. 1965. Blackbum was familiar with the 

station because, at the direction of Smith, Blackbum had ordered the battery charger and the 

batteries moved to the area. Tr. 679, 683, 717. The move was motivated by less than ideal roof 

conditions in the area where the station was previously located. 11 Tr. 682, 693; See also Tr. 784. 

According to Blackburn, he had the equipment moved to Spad No. 1965 "probably a couple of 

days" before January 27. Id.; Tr. 708. 

Blackburn explained when batteries are charged, they 4

'emit gases ... because that's the 

nature of ... batteries." Tr. 680. Therefore, when setting up a charging station, the charger is 

located in neutral air, but gases given off by the batteries are ventilated out of the mine with the 

return air.12 Tr. 685, 787. 

Blackburn described in general how charging stations were established at the mine. He 

stated, either before or after a battery charger was moved into an area designated as a charging 

station, the ribs of the station were fireproofed by spraying them with Pyro-Chem, a fire retardant 

coating. Tr. 684. The company then applied rock dust to the area. Tr. 687. Blackburn's 

description of how a chaigmg station was set up was echoed by Smith. Tr. 790-791. 

With regard to the charging station at Spad No. 1965, Blackbum explained that the first 

thing moved to the area was the battery charger. Next came the batteries. After this, Blackbum· 

instructed the crew to "run the cable [to the charger] and ... spray the area." Tr. 689. Blackbum 

thought the area would be sprayed by the incoming shift. ("I moved the charger and the 

batter[ies] ... I didn't spray ... because I didn't have time. The other boss was going to take his 

people down there and do it. I basically got it started." Tr. 703.) Ronald Byans was the 

incoming section foreman, and Blackburn believed it was Byans' job to make sure the area was 

sprayed. Tr. 719-720. However, after the next shift ended, Blackbum learned there was a 

problem, Contrary to his instructions, Pyro-Chem had not been applied to the ribs. Tr. 689. At 

first, Blackbrirn thought the spray machine had malfunctioned, but later he learned the PyroChem, which had been stored on the surface, was frozen and was not brought into the mine soon 

enough to thaw. Tr. 699-700, 707. According to Blackbum, when Smith learned the area had 

not been sprayed, he said, "[O]kay we'll get someone to take care of it." Tr. 707. Smith told a 

foreman about the situation. Smith expected the foreman to pass on the information and to 

11 Smith confirmed the charging station was moved to Spad No. 1965 after bad roof 

conditions were encountered. Tr. 784. 

12Moreland testified that the air at Spad No. 1965 was moving at least 50 feet per minute. 

This velocity was slow, but it did not violate any MHSA requirements. See Tr. 353. 

31 FMSHRC 197 
r¢ctify the problem. Tr. 832. Howevet, the area was never sprayed. 13 

Blackburn described spraying charging stations at the mine as a "common practice." Tr. 

708. In the past four years, he could not recall any other instance when a charging station was 

not sprayed and, thus, when a charging station was deprived of a fire suppression system. Tr. 

711. (At the mine, Pyro-Chem served as a means by which the company provided charging 

stations with their required fire suppression systems.) 

Because everyone was accounted for and the incident did not result in any injuries, 

MSHA did not begin its on-site investigation of the events of January 27 until Sunday, January 

29. That Sunday Moreland returned to the mine, where he was scheduled to meet MSHA's lead 

accident investigator, Fred Willis. Willis arrived between 9:00 a.m. and 9:30 a.m. He was 

briefed by James Maynard, another agency investigator. Maynard was assigned to assist Willis 

and Moreland. Smith also was at the mine. Tr. 782. Maynard had reviewed some of Coal 

River's records, and he gave Willis copies of pre-shift, on-shift and weekly examination reports, 

as well as gas readings. Tr. 227. 

Willis asked Moreland to interview "certain individuals." Tr. 64. Willis gave Moreland 

a list of questions suggested to Willis by the MSHA District Manager. Tr. 64; see Gov't Exh. 13. 

Id.; see Tr. 98, Tr. 229; see also Gov't Exhs. 13 at 17, As a result, Moreland interviewed nine 

miners. From the interviews, Moreland concluded: "[s]om~ of the people knew about [the. 

battery] charger installations. Some of them didn't. ... Not everyone knew the exact 

requirements of charger installations .... " Tr. 69. Moreland concluded the charging station had· 

been at Spad No.1965 for two or three weeks prior to January 27. Tr. 73, 120, 136-137. 

However, he agreed it was possible the station had only been at Spad No. 1965 for couple of 

days. Tr. 121; see also Tr. 137. 

Later that day a joint MSHA-company inspection party proceeded underground. Willis 

and Moreland were among those representing MSHA Larry Blackburn was one of the 

company's representatives. Tr. 228. According to Willis, one of the first things the team did was 

travel to Spad No. 1965 to look at the battery charging station. Tr. 231. The scoop batteries, 

which were on the ground to one side of the battery charger, were in their metal case. The lid on 

the case was closed. 14 Tr. 232-233; Gov't Exh, 17. As the party gathered around the case, the lid 

13Smith testified, when he learned the area had not been sprayed, it was ')ust like a smack 

in the face." Tr. 801. Blackburn, could not explain why the Pyro-Chem was not applied to the 

ribs. He stated, "for whatever reason it didn't get taken care of, I guess we dropped the ball. 

Somebody, somewhere, somehow, didn't spray it." Tr. 706. He added, he was "sure it wasn't 

intentional." Id. 

14According to Daniel Bickey, whose company, Mine Power Systems (MPS), supplied the 

batteries, when batteries are charged, they should not be confined so the hydrogen which is given 

off by the batteries during charging does not reach explosive concentrations. Tr. 453-454. 

31FMSHRC198 
was lifted. Willis testified he noticed evidence of ••extreme heat" on one the batteries. Tr. 233, 

369, 372. One battery's inby end was discolored. Willis stated, "it appeared ... the [batteries'] 

cells had ruptured, spilling the contents out of the batteries. Tr. 233; Gov't Exh. 18. Although · 

the on-site investigation revealed there never was a fire at Spad No. 1965 (Tr. 369), Willis 

believed removing power from the charger as soon as the CO monitors gave the alarm - which is 

what Coal River personnel had done - allowed the charger to cool and "prevent[ ed] a major fire" 

or explosion. 15 Tr. 314; see also Tr. 250. 

Willis recalled that the caps over two battery cells had been removed. Willis speculated 

the caps could have been "blown off'when the fluid in the battery cells overheated. Tr. 242. 

Further, Willis testified some of the permanent insulation around the edges of the batteries' case 

was missing. 16 Tr. 243-244; Gov't Exh. 18. In addition; insulation on the inside of the case lid 

was ••gone." Tr. 243. According to Willis, the heat had melted it. Id.; Tr. 246.17 

Additionally, Willis thought seven or eight of the batteries' cells looked like they had 

been damaged byheat. ("Heat had built up within those cells. The ... [cap covering] the cell 

ha[ d] sunk down inside the cell as if a piece of plastic had heated and went down into the cell." 

Tr. 243.) Willis remembered looking into the cells. He could see "nothing except the plates in 

them." Tr. 249. If water had been above the plates, the batteries would not have overheated. Tr. 

250. According to Willis, eight cells had simply melted from the "extreme heat." Tr. 250. 

Maynard also testified about damage that had been done to the batteries. He recalled 

seeing melted rubber connections between the batteries. Tr. 173. 

The MSHA inspectors' belief the batteries overheated was challenged by Coal River's 

witnesses. A large majority of the plastic caps on top of the batteries' cells remained intact, and 

maintenance manager, Carl Estep, asked ifthe batteries had gotten as hot as MSHA's witnesses 

maintained, why had not most of the plastic caps melted? Tr. 973. Daniel Bickey' s theory was 

the incident resulted from over watering the batteries' cells. He testified, when batteries are 

15Willis's view the batteries had been subjected to "extreme heat" was disputed by 

Bickey. Bickey was not a member of the investigation team. However, he had spent almost all 

of his working life involved in the sale and service of batteries, and he testified the danger of a 

fire or explosion was minimal during charging because "[t]he temperatures don't get that high. 

A high temperature in a battery is 115 degrees Fahrenheit .... " Tr. 576 .. Even battery 

temperatures as high as 160 or 180 degrees Fahrenheit were not dangerous in his view. Id. 

16Steven Curry, who conducted the weekly electrical examinations for the company, 

disagreed. Tr. 880. 

17However, Bickey thought the lid appeared to have been treated with ScotchCast, a black 

spray-on insulation. Tr. 475-477. Thus, while he agreed the black color showing on the inside 

of the lid could have been evidence of heat, he did not think it was. Tr. 477. 

31 FMSHRC 199 
watered before they are charged, the batteries' cells overflow, battery acid spills onto the top of 

the batteries, and the acid flows out of the ventilation openings {cut out parts of the batteries' 

case). Tr. 4 79; see Gov't Exh. 19. Rather than evidence of heat, Bickey believed the corroded 

area at the end of the subject case was produced by acid due to too much water in the cells. Tr. 

479, 577. Looking at a photograph that purportedly showed damage to the batteries, Bickey 

testified, "This is an over-watered battery and that's why you have that over-flow over the side." 

Tr. 577. According to Bickey, over-watering is not dangerous and would not have caused 

excessive hydrogen to be liberated and the CO monitors to trigger an alarm. Tr. 578. 

In addition to trying to determine the cause of the incident, MSHA's investigators found 

specific conditions at Spad No. 1965 violated the previously-menticmed, mandatory health and 

safety standards. Willis and Maynard were sure there was no Pyro-Chem on the charging 

station's walls {Tr. 29, 200-201) and Willis concluded Coal River violated section 75.340(a) 

because with no Pyro-Chem on the walls there was no fire suppression system for the batteries 

when they were charged off the scoop. Tr. 385-386. Maynard acknowledged, however, the area 

at Spad No. 1965 was well rock dusted, that five bags ofrock dust were stored at Spad 1965, and 

that the rock dust could act as fire suppression material. Tr. 200-201, 298. Therefore, in 

Maynard's opinion, the ro-ck dust at Spad No. 1965 somewhat minimized the hazard from the 

lack of Pyro-Chem. Tr. 201, 211 .. Still, Maynard emphasized the primary purpose of the rock 

dust was to "prevent float coal dust from getting suspended in the air and blowing up," not to 

prevent the ribs from catching fire. Tr. 210. 

Because of the lack of Pyro-Chem, Citation 7246621 was issued to Coal River. Gov't · 

Exh. 1. Maynard believed the lack of Pyro-Chem at Spad 1965 was reasonably likely to 

cQntribute to an accident. According to Maynard, "it's a hazard changing ... batteries, period 

.... That's why you have to have all the fire protection there." Tr. 180. In his opinion, the 

hazards inherent in charging batteries were "fires, hydrogen buildup, explosion, things of that 

nature." Tr. 181. 

It was clear to Moreland that company personnel, including the pre-shift examiners, had 

missed the fact Pyro-Chem had not been applied to the ribs. He thought one reason was because 

the ribs were covered with rock dust. Tr. 112. This view was shared by weekly electrical 

examiner, Steven Curry, who stated when Pyro-Chem is first sprayed on the ribs it looks "like 

wet mud," but "when they come in there and rock dust ... it dries ... so it's just like regular rock 

dust." Tr. 885. 

The investigators further found the condition of the scoop's battery cables and the 

batteries themselves indicative of a violation of section 75.503, because the scoop was not 

. maintained in permissible condition. In addition to missing insulation on the batteries' case lid, 

two of the battery cables were spliced and the cables used on the batteries were not approved by 

MSHA. Further, some of the batteries' cells were dry, and accumulations of combustible 

materials were found on the batteries. These conditions were set out in Order No; 7249168. 

31 FMSHRC 200 
As far as the missing insulation was concerned and, as previously noted, Willis testified 

insulation on the inside of the battery case lid was simply "gone'' (Tr. 243) due to "extreme 

heat." Id., Tr. 246. Willis also testified insulation was missing around the edges of the batteries' 

case. Tr. 243-244; Gov't Exh. 18. Moreland stated the conditions could have existed before the 

January 27 incident or they could have resulted from the incident, "depending on how the 

batteries [were] maintained." Tr. 134. Moreover, referring to a photograph of the batteries, 

Willis identified failed insulation where one of the battery cables connected to the battery. Tr. 

268; Gov't Exh. 23. The cable had not melted, but it appeared to have been subjected to a lot of 

heat. Id. 

Moreland identified a splice on a battery cable that ran across the top of one of the 

batteries. Tr. 145, 169; Gov't Exh. 19, Gov't Exh. 21. Moreland testified splices in battery 

cables were "not allowed" because a splice '"weakened" the cable and created ''the possibilities of 

arcing [and] heating."18 Tr. 145. Moreland believed those examining the batteries for the 

company, for example, the certified electrician who conducted the weekly examination of 

electrical equipment, should have known splices were not allowed. Tr. 148. 

In addition to the splice about which Moreland testified, Willis identified "a very badly 

damaged splice that had melted." Tr. 263; Gov't Exh. 21. The splice was open, revealing the 

insulated conductors. The cable containing the splice served the second of one of the two 

batteries being charged. Id.; Gov't Exh. 20. The splice was wrapped in low-voltage tape. Tr. 

265, 363. Some of the tape had melted. Tr. 265. Willis believed the defective splice contributed 

to the cause of the accident. See Id. However, Coal River's maintenance manager, Carl Estep, 

looking at a picture of the splice (Gov't Exh. 21), pointed out that much of the splice was still in 

tact and "[t]he tape on both sides of the splice ... [had] not burned.'' Tr. 953. To Estep, this 

showed the splice was not a contributory factor. If the splice had gotten hot enough to spark the 

incident, all of the tape used to make the splice would have melted or been distorted. Tr. 953-

954. 

According to Willis, the splices were dangerous because hydrogen given off when the 

batteries are charged is explosive when it is between 3% to 75% of the atmosphere. Tr. 331. 

Battery cases vibrate when the battery-operated equipment is activated. The vibration can cause 

a hole or holes to be worn in the insulation, exposing the conductors. The conductors can arc and 

cause an explosion (Tr. 257) and, in Willis's opinion, a hydrogen explosion can be 

"catastrophic." Tr. 256. Like Moreland, Willis maintained splices never are allowed in battery 

cables. Tr. 251. Willis read from MSHA' s Program Policy Manual (PPM), which, in explaining 

MSHA's enforcement policy for section 75.503, states in part: "Splices shall not be made in 

18Steve Curry, the company's weekly electrical inspector, agreed to some extent. He 

testified splices offer resistance to electrical current and the resistance heats the spliced area of a 

cable. Tr. 983. 

31FMSHRC201 
external wiring of permissible equipment."19 Id.; Gov't Exh. 28. Because the splice was lying 

on top of part of the metal frame of the battery case, the only thing between the case and the 

conductors was the tape that was wrapped around the splice. Tr. 276. The tape was low-voltage 

tape, the kind used for general electrical repairs. Id. In Willis's opinion, the splice was a poorly 

made repair of a cable that should not have been spliced in the first place. Tr. 277. 

Daniel Bickey testified the splices probably were made by one of his employees. Id. 

Until the splices were cited for violating section 75.503, Bickeybelieved battery cables could be 

spliced. Tr. 450. Larry Blackbum, the company's production manager; Carl Estep, its 

maintenance manager; and Steven Curry, the weekly electrical inspector, held similar beliefs. Tr. 

611-612, 866, 903, 935, 943. Bickey testified; from a pragmatic standpoint, splicing sometimes 

was preferable to replacing a damaged cable because splicing "took less time" and, thus, 

production was less disrupted. He was certain a properly prepared splice would not compromise 

safety. Tr. 452. 

MSHA' s inspectors found something else wrong with the cables used on the batteries. 

The cables were not approved by the agency. Tr. 146; Gov't Exh. 20. An MSHA-approved 

cable bears. an approval notice or stamp, and Moreland knew the cables were not approved, 

because they lacked the agency's official imprimatur. Tr. 146. In. Moreland's opinion, miners 

examining the batteries should have known approved cables were required. Id. 

Like Moreland, Willis, too, testified there were no MSHA markings.on the cables. Tr .. 

257. The type of cable used on the batteries was 600-volt welding cable. Tr. 259, 260,. 356. 

Willis did not believe insulation around the welding cable's conductors was designed to be 

effective for the long time period a scoop battery was typically used. Tr. 260. Moreover, unlike 

an MSHA-approved cable, the 600-volt welding cable was not tested for flame resistence. Willis 

feared insulation usedon the non-approved cables would break down. Tr. 261. He recognized 

MPS supplied the batteries and cables to Coal River, but he did not think this in any way 

lessened the company's negligence for failing to use approved cables. 

Bickey testified 600-volt welding cable (also referred to as "2/0 cable") was used at mines 

prior to 1989. After 1989, MSHArequired.used of cable that had.a thicker"skin." Tr 430-431; 

see C.R. Exh. 9. However, according to Bickey, cable used after 1989 actually withstood less 

heat (210° Fahrenheit, as opposed to 240° Fahrenheit) than cable used prior to 1989. Tr. 431. · 

The older cable was ''better" because of this. Tr. 432; see also Tr. 527, 528. Nonetheless, 

19Larry Cook, an MSHA supervisory electrical engineer, explained if an operator had 

reason to believe equipment would be used in the face area or in return areas, the equipment had 

to be maintained in permissible condition. Among other things, this meant that battery cables 

could not be spliced. Tr. 667-668. It was clear from the testimony that prior to the incident 

neither company personnel nor Daniel Bickey understood this. They consistently testified that 

· they were not familiar with the referenced part of the PPM and with the "no-splice" requirement. 

See, e.g., Tr. 948. 

31 FMSHRC 202 
Bickey described 2/0 cable and MSHA-approved cable as "functionally equivalent." Tr. 435. In 

Bickey's view, using non-approved cable did not jeopardize safety (Tr. 443), whereas using 

approved cable created a "cost issue" for suppliers. Tr. 529. He stated, "We ... [paid] double 

because MSHA was printed on it." Id. 

Like Bickey, the company's maintenance manager, Carl Estep, also thought 2/0 cable and 

MSHA-approved cable were functionally equivalent. He could "not see any difference in either 

cable." Tr. 937. He knew of no problems at any of Coal River's three mines from using 2/0 

cable. Tr. 938. 

Bickey testified it was not until after the January 27 incident that MPS learned the cable it 

used was not compliant. "[N]ot until this incident had we ever had any complaints about the 2/0 

cable, the ... [MSHA] people have come through our shop, they've seen this [2/0]cable, [they 

have] never said a word to us and to my knowledge, we have never been contacted by ... 

[MSHA] ... to put this ... [MSHA-approved] cable on the batteries." Tr. 433; see also Tr. 524. 

Bickey added, "We're not about looking up laws." Tr. 522. 

Larry Blackburn, Coal River's operations manager, also did not know until the incident 

that the cable supplied with the batteries should not have been used. Tr. 610. He had "never 

heard anybody say there was [such a thing as] MSHA approved cable." Id. He just "did not 

know that." Id. Rather, he "took it for granted" cables supplied by MPS were acceptable. Tr. 

614. He testified the company never experienced safety or operational difficulty using the nonapproved cable.20 Tr. 610-611. 

Each of the two batteries was composed of numerous batttery cells. The cells were 

distinct compartments containing lead plates. For the batteries to function properly, the cells had 

to be ''watered" so each cell had enough water to reach and interact with the cell's lead plate. 

(The resulting chemical reaction produced the batteries' electrical charges.) According to the 

inspectors, the investigation revealed some of the batteries' cells contained either no water or 

insufficient water. Moreland agreed with Willis that the water in several of the cells was low or 

the cells were dry, but he could not say for sure which of the cells were dry. Tr. 149. 

Maintenance manager Carl Estep looked at the batteries after they were taken out of the mine. 

He could not see any water in the cells. However, he believed some must have contained water 

because they "[had] to have water in [them] ... to charge." Tr. 952. Nonetheless, he 

acknowledged the water in some of the cells was "low." Id. 

Willis believed low water in the cells could have caused the batteries to overheat. He 

also testified once the cells overheated the loss of water would have accelerated, which,. in tum 

20 Like Blackburn, Steven Curry did not know cable provided by MPS was not 

acceptable. Tr. 865. Nor did the company's maintenance manager or its superintendent. See Tr. 

807, 935, 944. 

31 FMSHRC 203 
would .cause more heat. Tr. 287. Because of the danger of overheating if water was too low, 

Moreland stated he "definitely [would] add water [to the cells] prior to charging [the batteries]." 

Tr. 152. Willis agreed (Tr. 324-325) and stated proper maintenance of the batteries required 

monitoring their water level. Tr. 284-286. 

The.government's assertions regarding when to water the batteries was challenged by 

Daniel Bickey. Bickey identified a sticker MPS attached to the batteries it sent to mines. The 

stickers stated in part: "Water me after charging only." C.R. Exh. 10. Bickey thought adding 

water prior to charging the batteries was "almost criminal." Tr. 458. He stated, "All batteries 

that are on charge are going to have low water because they've been discharged. So our rule is 

you water after [a] charge." Tr. 460. He explained, ''[I]fyou water before a charge ... you bring 

acid and water to the surface of ... [the] battery, and that's where it's dangerous because when 

acid is on the top of ... [the] battery it will go to ground and short to the steel from the connector 

aJ;ld create a very hazardous situation."21 Tr. 461. According to Bickey, low water prior to 

charging was not the sign of a battery maintenance problem. 

Willis understood the last weekly examination of the scoop was on January 24, 3 days 

before the incident. Tr. 291. At that time the examiner indicated the scoop was "OK." Gov't 

Exh. 15 at 4. The lack of adequate water levels indicated to Willis that despite.the "okay" given 

by the examiner, the water levels were low on the 24th and the examiner or another company 

.employee had not corrected the defect. Tr. 292. Willis believed the failure to properly maintain · 

the scoop's batteries was the result of "high negligence" because of the obviousness of the 

conditions. 

Willis also maintained there were accumulations of combustible materials on the 

batteries. On the second of the two batteries, Willis thought he saw evidence of smouldering, 

fine coal and/or coal dust in the form of white ash. Tr. 266; Gov't Exh. 20, Gov't Exh. 22. 

Bickey challenged Willis's belief the ash was residue from combustible material. Bickey thought 

the "ash" identified by Willis could have been baking soda that ''wasn't washed off really good." 

Tr. 465. Maintenance manager Carl Estep essentially agreed. Tr. 940. He added, ''We clean the 

batteries with baking soda. It dilutes the acid when it builds up on top of the batteries." Id. 

Finally, and as previously noted, during the course of the investigation Moreland asked 

for and was given copies of various company reports, including the pre-shift reports from the 

morning shift of January 19 to the hoot owl shift of January 27 (Tr. 73; Gov't Exh. 14) and the 

weekly electrical equipment examination reports covering various days between January 4 and 

January24. Tr. 73; Gov't Exh. 15. According to Moreland, Jerry Vance was one of the pre-shift 

examiners who inspected the area at Spad No. 1965 for the company. Tr. 126-127. Vance 

recalled conducting the pre-shift examinations prior to the incident. Vance agreed he did not 

21Weekly electrical examiner Steve Curry, who ''watered" batteries, agreed with Bickey. 

Cuny testified it was his practice to add water to the batteries' cells if the water level was low, but 

he did not do so if the batteries were going to be charged. Tr. 862 

31 FMSHRC 204 
notice fire retardant material was missing from the ribs at the battery charging station. 22 Rather, 

he remembered the area at Spad No. 1965 as being well rock dusted, and as containing fire 

extinguishers and extra bags of rock dust. Tr. 754. To Vance, these conditions alone meant 

batteries could be charged in the area because, as Vance then understood the requirements of 

section 75.340(a), fire retardant material on the ribs was not necessary to comply with the 

standard's requirements. He believed the application of Pyro-Chem as an additional precaution 

the company voluntarily undertook to "further fireproof[the] area." Tr. 754-755. Therefore, at 

the time of the inspections he thought the area was in compliance. Tr. 754. MSHA's 

investigators disagreed, and charged the company with a violation of section 75.360(b )(9), for 

failing to perform an adequate pre-shift examination (Order No. 7249166). They further charged 

the failure of the weekly electrical examiner to note, among other things, that the batteries were · 

not properly maintained meant the weekly examination was inadequate (Order No. 7249167). 

RESOLUTION OF THE ISSUES 

WEVA 2006-125-R 

WEV A 2007-196 

Section 104(d)(l) Citation No. 7249165 states: 

Gov't Exh. 1. 

The unattended 35 C scoop charger . ; . located at [S]pad 

. No. 1965 was not provided with a fire suppression 

system or enclosed in a noncombustible structure. 

Batteries were being charged on the bottom of the 

scoop and were not provided with fire suppression 

systems required by[§] 75.1107-3 through[§] 75.1107-16. 

. . . Through interviews this charger station has existed for 

2 to 3 weeks. 

THE VIOLATION 

Among other things, the standard requires battery charging stations to be "housed in 

noncombustible structures or areas or to be equipped with a fire suppression systems meeting ... 

[specified] requirements." I find the requirements of the standard were not met. There really is 

22 After the incident, when he was informed the retardant in fact was missing, he viewed 

the condition as an aberration because, as he put it, Coal River "always Pyro-Chem'd [its] 

charging stations." Tr. 753; see also Tr. 755. Production manager Larry Blackbum agreed. He 

could not recall the company ever receiving a prior citation for failing to provide a fire 

suppression system at a battery charging station. Tr. 606. 

31 FMSHRC 205 
no question about this. The battery charger was not "housed in noncombustible structure;" nor 

was the area in which it was located rendered noncombustible by the application of Pyro-Chem 

to the walls. Since the batteries were charged on the floor at Spad No. 1965 rather than on the 

scoop itself, the charging station was not equipped with a "fire suppression system" within the 

meaning of the standard, and for these reasons I find the violation occurred as alleged. 

S&SGRAVITY 

An S&S violation is a violation "of such nature as could significantly and substantially 

contribute to the cause and effect ofa ... mine safety or health hazard." 30 U.S.C. § 814(d). 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 (April 1981). To establish the S&Snature ofa violation, the Secretary must prove: (1) 

the underlying violation; (2) a discrete safety hazard - that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable likelihood the hazard contributed to will result in 

an injury; and ( 4) a reasonable likelihood the injury will be of a reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC 3-4(January1984); accord Buck Creek Coal Co., Inc. 52 F. 3d 

133, 135 (7th Cir. 1995); Austin Power Co., Inc. v. Sec'y of Labor, 81 F. 2d 99,103 (5th Cir. 

1988) (approving Mathies criteria). 

It is the third element of the S&S criteria that is the source of most controversies 

regarding S&S findings. The element is established only if the Secretary proves "a reasonable 

likelihood the hazard contributed to will result in an event in which there is an injury." U.S. Steel 

Mining Co., Inc., 7 FMSHRC 1125, 1129 (August 1985). Further, an S&S determination must 

be based on the particular facts surrounding the violation and must be made in the context of 

continued normal mining operations. Texasgulf, Inc., IO FMSHRC 1125 (August 1985); U.S. 

Steel, 7 FMSHRC at 1130. 

Finally, the S&S nature of a violation and the gravity of a violation are not synonymous. 

The Commission has pointed out that the "focus of the seriousness of the violation is not 

necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, 

but rather on the effect of the hazard if it occurs." Consolidation Coal Co., 18 FMSHRC 1541, 

1550 (September 1996). 

The Secretary established a violation of section 75.304(a). She also established a safety 

hazard contributed to by the violation. In this regard, I find Maynard's testimony concerning the 

hazards associated with charging batteries logical and pertinent. He persuasively explained how 

charging batteries can result in .. fires, hydrogen buildup, [and] explosion[s]." Tr. 181. The 

requirements of section 75.304(a) are designed to greatly minimize these hazards. If an 

explosion and/or a fire had occurred at Spad No. 1965 while the batteries were being charged, 

little was in place to minimize the chance the ribs would catch fire and the fire would spread. 

31 FMSHRC 206 
Without the protections required by the standard, it is reasonably likely the hazard would 

have contributed to an injury. The splices in the battery cables provided a potential ignition 

source for hydrogen liberated while the batteries were charging. If an explosion and/or a fire 

occurred, smoke and/or fume inhalation or burns were reasonably likely to result. Miners likely 

to be injured would either have worked in the vicinity of the accident or would have been sent to 

fight the accident's results. fu this regard, I note the mine superintendent's candid admission that 

eight or nine miners could have been affected in the event of an explosion. Tr. 834; see also Tr. 

823-824. B.K. Smith maintained no miners would have been affected in the event of a fire 

because, if the stoppings remained intact, smoke would have traveled away from the miners. Id. 

However, his contention is highly speculative and too problematic. The fact is, underground 

mine fires can disrupt ventilation and send smoke and fumes over the miners working in fresh 

air. Inhalation and/or burn injuries were reasonably likely to be serious, even fatal, and for these 

reasons I conclude the violation was S&S. Moreover, in view of the kind of injuries that were 

likely to happen to miners if the hazard occurred, I find the violation also was serious. 

UNWARRANTABLE FAILURE AND NEGLIGENCE 

Unwarrantable failme is "aggravated conduct, constituting more than ordinary negligence 

... in relation to a violation of the Act." Emery Mining Corp. 9 FMSHRC 1997, 2004 

(December 1987). Unwarrantable failure is characterized by such conduct as "reckless 

disregard," "intentional misconduct," "indifference," or "a serious lack of reasonable care." Id. 

2003-2004; Rochester & Pittsburg Coal Co., 13 FMSHRC 189, 193-194(February1991); see 

also Rock of Ages Corp. v. Sec'y of Labor, 170 F.3d 157 (2d Cir. 1999); Buck Creek Coal, Inc. v. 

MSHA, 53 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test). 

Moreover, the Commission has examined the conduct of supervisory personnel in determining 

unwarrantable failure, and recognized that a heightened standard of care is required of such 

individuals. See Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (December 1987) 

(section foreman held to demanding standard of care in safety matters); S&HMining, Inc., 17 

FMSHRC 1918, 1923 (November 1995) (heightened standard of care required of section 

foreman and mine superintendent). Negligence, of course, is the failure to meet the standard of 

care required by the circumstances. 

I conclude the violation was not caused by Coal River's unwarrantable failure to comply 

with the standard. I do not entirely agree with Willis that the charging station was "set up ... 

without ... regard to fire suppression." Tr. 284. I accept Mark Blackburn's essentially 

unchallenged testimony that the Pyro-Chem the company intended to apply to the walls of the 

charging station was frozen, and I find, as Blackburn testified, that when he learned of the 

situation, B.K. Smith ordered the area to be sprayed. Tr. 699-700, 707. The record reveals 

nothing "aggravated," ''reckless," or "intentional" in the company's failure. fudeed, 

Superintendent Smith throughout the course of the hearing impressed me as a caring, careful, and 

conscientious supervisor, one any company would be lucky to employ and any miner would be 

lucky to work for. I fully believe he was as surprised as anyone when he learned his instructions 

had not been followed and the area had not been sprayed. As he stated, it was ''just like a smack 

31 FMSHRC 207 
in the face." Tr. 801. 

The record also does not support a finding of heightened neglect. There was no showing 

the failure to provide fire protection was a habitual practice at the mine (see, e.g., Tr. 696, 802). 

Further, the rock dust that covered the ribs clearly made the absence of Pyro-Chem difficult, 

although not impossible, to detect. In this regard, Larry Blackbum' s testimony regarding the 

similarities in the color of rock dust and Pyro-Chem was persuasive. Tr. 603-604. I agree with 

Blackbum that the lack of Pyro-Chem would not have "jumped out" at anyone.23 Tr. 634 

In sum, I conclude the failure to apply Pyro-Chem to the ribs at Spad No. 1965 reflected a 

lack of care, but not one so heightened as to constitute unwarrantable failure. Rather, the 

violation occurred due to Coal River's moderate negligence, and I will order the citation to be 

modified to reflect this fact. 

WEVA 2006-126-R 

WEV A 2007-196 

Section 104(d)(l)-Order No . .7249166 states in part: 

Gov't Exh. 2. 

[An in ]adequate pre-shift examination was conducted , 

for the 35 C Scoop charger ... located at [S]pad [No.]-

1965. The pre-shift examiners did not record obvious 

hazards that existed at this location. [The] charger 

station was not provided with a fire suppression system 

or enclosed in a noncombustible structure. Through 

interviews with management and miners [the] charger 

has been at this location for two to three weeks. No 

hazardous conditions [have] been recorded in the 

pre-shift records concerning the [charger] during 

this period of time. 

THE VIOLATION 

Section 75.360(b)(9) requires the pre-shift examiner to "examine for hazardous 

conditions" at "[u]nderground electrical installations," and section 75.360(d)(f) requires the 

keeping of a record of "hazardous conditions and their locations found by the examiner during 

each examination." 

23The testimony of Mark Blackbum and Jerry Vance, both of whom were familiar.with 

the chemical and with rock dust, corroborated that of Larry Blackburn in this regard. Tr. 694, 

695, 713, 756. 

31 FMSHRC 208 
The order states that the charging station was located at Spad No. 1965 "for two to 

three weeks,", but this is not certain from the record. Moreland acknowledged the two- to threeweek period was based on what he remembered hearing others say, and Moreland later agreed it 

was possible the station had been at the spad for only a few days before the accident. Tr. 121; 

see also Tr. 136-137. In fact, no one testified exactly when the station was moved to the area. 

Mark Blackburn believed it was moved "probably a couple of days" before January 27. Tr. 708. 

Jerry Vance, who conducted the pre-shift examinations immediately prior to the incident, stated 

it was "a week, a couple of weeks, maybe" (Tr. 738-739) and "[i]t could have been less." Tr. 

739. 

Although it is impossible to establish with certainty when the station was moved, it is 

reasonable to assume the station was located at Spad No. 1965 when Vance conducted his preshift examination immediately before the incident. Vance testified he did not notice fire 

retardant material was missing from the ribs. Tr. 754. This oversight was confirmed by his preshift reports, none of which reference the missing Pyro-Chem. See Gov't Exh. 19. The lack of 

the fire retardant material on the ribs at the charging station was a "hazardous condition." It 

should have been reported. In failing to do so, Vance, and through Vance, the company, violated 

section 75.360(b)(9). 

S&SGRAVITY 

I have found the Secretary established a violation of section 75.360(b )(9). She also 

established a safety hazard contributed to by the violation. The failure to conduct an adequate 

pre-shift examination in this instance meant a hazardous condition was not reported. Reporting 

is an essential step in the elimination of hazards, because pre-shift reports are reviewed by 

management personnel (usually the incoming shift foremen) and reported conditions are 

corrected. When the incident occurred on January 27, the explosion and/or fire hazard was 

augmented by the lack of Pyro-Chem on the ribs, a condition that presumably would not have 

existed had Coal River fully complied with section 7 5 .360(b )(1 ). Moreover, I find it reasonably 

likely as mining continued the failure to report the lack of fire retardant material on the ribs 

would have contributed to an injury. The ongoing charging of batteries whose cables were 

spliced and improperly clamped (see discussion of Order No. 7249168, infra) meant it was 

reasonably likely an explosion and/or fire would occur. The failure to identify the lack of fire 

retardant material on the ribs also meant it was reasonably likely serious injuries would result. 

This is especially true in the context of continued mining operations. The area had been rock 

dusted, and Jerry Vance did not look under the rock dust for Pyro-Chem. Tr. 7 41. Therefore, as 

mining continued there was little likelihood the lack of material ever would have been reported 

as a hazard and corrected. For these reasons, I conclude the violation was both S&S and serious. 

In finding the violation was serious, I reject the suggestion offered by Vance that rock dust alone 

could afford sufficient fire protection for the charging station. See Tr. 749. As Maynard pointed 

out, the purpose of the rock dust was to inert potentially explosive coal dust, not to retard a fire. 

31 FMSHRC 209 
Tr. 210. 

UNWARRANTABLE FAILURE AND NEGLIGENCE 

I conclude the violation was not the result of CoalRiver's unwarrantable failure. 

Certainly, Vance was not guilty of reckless disregard, intentional misconduct, or indifference to 

his obligations. He relied on the fact that it was the practice at Coal River to spray Pyro-Chem 

on the ribs and then to.rock dust over the Pyro-Chem. While his reliance was misplaced and did 

not meet the standard of care required, it was not the kind of serious lack of reasonable care that 

justifies an unwarrantable failure finding. The record established the practice on which Vance 

relied was a fact. It was repeatedly testified to by other of the company's witnesses, and the 

Secretary did not offer evidence of frequent, previous failures to apply fire retardant material 

where it was required. (For example, she did not introduce previous citations alleging the same 

violation of section 75.360(b)(9).) The similarity in color between Pyro-Chem and rock dust 

once both were applied meant its absence was not readily apparent. Had the company's pre-shift 

examiner exercised the care required, he would have observed and recorded the fact the material 

was missing. However, because the lack of Pyro-Chem was not the kind of condition that would 

have ''jumped out" at him aild because it was reasonable to assume Pyro-Chem had been applied 

as usual, I conclude the lack of care in failing to note its absence was ordinary and was not 

unwarrantable. 

WEV A 2006-127-R 

WEVA 2007-196 

Section 104(d)(l) Order No. 7249167 states in part: 

Gov't Exh. 3. 

[An in ]adequate weekly examination was conducted 

at the 35 C Scoop charger ... located at [S]pad [No.] 

1965. Numerous and obvious hazards existed at this 

location including no fire suppression provided, 

damaged charger cables, and batteries not being 

maintained. Records of weekly examination[ s do] 

not reveal any hazardous conditions existing. Through 

interviews of management and the miners this charger 

station has existed at this location for two to three weeks. 

This violation is an unwarrantable failure to comply 

with a mandatory standard. 

THE VIOLATION 

Section 75.512 requires "[a]Il electric equipment" to be ":frequently examined," and 

31FMSHRC210 
when a "potentially dangerous condition is found on electrical equipment," for the equipment to 

be "removed from service until such condition is corrected." Moreover, "[a] record of [the] 

examination" is required to be kept. 30 C.F.R. § 75.512. Under section 75.512-2 the frequency 

of the required examination is defined as "at least weekly." 

I conclude the Secretary established a violation of section 75.512, although not as 

extensive a violation as she alleged. It is clear from the order and from the testimony of 

Inspector Willis that :MSHA regarded the failure of the weekly electrical examiner to note the 

absence of Pyro-Chem on the ribs at Spad No. 1965 as violative of the standard. Gov't Exh. 3; 

Tr. 294, 299. The problem is the allegation focuses on a condition extraneous to the cited 

electrical equipment. It would be a stretch indeed to regard the ribs at the charging station as part 

of the charger and batteries, and I find the weekly examiner's failure to note the condition did not 

violate the standard. 

The order also charges the examiner should have noted the batteries were not "being 

maintained." Gov't Exh. 3. To Willis, this meant low water levels of the battery cells should 

have been reported by the _examiner, as should the accumulations of combustible materials on the 

batteries. Tr. 296, 336. 

Willis understood the last pertinent weekly electrical examination was on January 24, 

three days before the incident. With regard to the water levels in .the battery cells, Willis clearly 

stated his opinion the water levels were low or nonexistent at the time of the last inspection. Tr. 

291-292; Gov't Exh. 15 at 4. Willis's belief was reasonable in the light of what happened on 

January 27. Although there was a great deal of testimony about the right time to add water to the 

batteries' cells - before or after charging - I find the most probable deduction to draw from the 

incident is when the batteries were being charged that the water in several of the cells was too 

low - in fact, a few of the cells might have had no water at all - and this caused the batteries to 

overheat and release gas, which in tum activated the CO sensors. The electrical examiner, 

Steven Curry, should have checked the batteries on January 24 to make sure the water in the cells 

was at an appropriate level for the batteries to be charged. 24 At no point in Curry's testimony did 

he indicate he conducted such a test as part of his examination. I find that his failure to do so 

violated the standard. 

As for the alleged accumulations, as I have previously found, in my view, the Secretary 

did not carry her burden of proving they existed. The testimony offered by the Secretary was 

almost entirely restricted to the existence of white "ash," and, as discussed above, whether the 

substance was ash from combustible material or was residue from baking soda, cannot be 

24Carl Estep's assertion, watering battery cells before they are charged causes the water 

and acid to overflow the cells (Tr. 950) may be true if, after watering, the level of water is too 

high in the cells. But, water has to be in the cells for the batteries to take a charge, and it 

logically follows there has to be a properlevel for the water, one that will not cause them to 

overflow. 

31FMSHRC211 
determined from the record. For this reason, I find any failure of the weekly examiner to report 

the presence of the alleged combustible material on the batteries did not violate the standard. 

Finally, the order asserts the examiner should have reported the presence of"damaged 

charger cables," and I agree The testimony established the spliced battery cables were present 

when Curry conducted the examination on January 24. I have found the spliced cables posed a 

hazard. The hazard should have been reported by the examiner. The spliced cables represented a 

"potentially dangerous·condition" (section 75.512), a condition that could have posed an ignition 

source and/or a shock hazard as mining continued. 

S&SGRAVITY 

. ·The Secretary established a violation of section 75.512. She also established a safety 

hazard contributed to by the violation. The failure to conduct an adequate weekly electrical 

examination in this instance meant that two potentially dangerous conditions were not brought to 

the attention of mine management: insufficient water in the battery cells prior to charging and 

spliced cables in use on the batteries. As previously stated, the reporting of a hazardous 

condition is an essential step in eliminating a hazard. Weekly electrical examination reports are 

reviewed by management personnel and reported conditions are corrected. Here, Curry's failure 

to report low water in the battery cells before they were charged meant the batteries overheated 

during charging, a condition that triggered the January 27 incident. Fortunately, no injuries 

occurred as a result of the incident, but a very real potential for irtjuries either through an 

explosion and/or fire existed, and, in my opinion the hazard was reasonably likely to occur as 

mining continued. 

Moreover, the failure to report the spliced battery cables meant that as mining continued, 

the spliced areas would have been exposed to more vibration and strains. The insulation at the 

spliced areas could have ruptured, and the conduits could have been exposed and presented a 

potential ignition source for the gas given off during charging; The spliced cables also presented 

a continuing shock hazard to miners working with the batteries. Serious ll:tjuries were reasonably 

likely. The company's unquestioned acceptance of whatever MPS provided and the lack of 

knowledge of the electrical examiner that splicing was prohibited meant the spliced cables would 

in all likelihood have remained indefinitely on the batteries. (In this regard, I again note Curry's 

testimony he was unaware battery cables could not be spliced. Tr .. 866.) The injuries most 

likely to result from an explosion and/or a fire or from being shocked would have been serious, 

even fatal. For these reasons, I find the violation was both S&S and serious. 

UNWARRANTABLE FAILURE AND NEGLIGENCE 

The failure of the weekly examiner to make sure sufficient water was in the battery cells 

was an unwarrantable failure. Because of the potential dangers involved in charging the batteries 

when the cells contained insufficient water, it should have been a practice at the mine to have the 

weekly examiners always check the water in batteries of electrically powered equipment. It is 

31 FMSHRC 212 
clear no such practice existed. In all likelihood the lack of such a practice directly contributed to 

the January 27 incident. 

Moreover, Curry's and the company's failure to detect and report the use of spliced cables 

on the batteries went beyond a lack of observation. The testimony established the company 

officials and Curry did not even know the use of spliced cables was prohibited. As previously 

discussed, the record fully supports finding the company totally relied on MPS to provide it with 

compliance ready batteries and did nothing beyond that to ensure compliance. This serious lack 

ofreasonabey care resulted in the violation here at issue and it reflected both Coal River's 

unwarrantable failure and its high negligence. 

WEVA 2006-128-R 

WEVA 2007-196 

Section 104(d)(l) Order No. 7249168 states: 

Gov't Exh. 4. 

The 35 C scoop batteries located at [S]pad [No.] 1965 

were not being maintained as approved. Insulation on 

the battery lids and areas.near cells [was] damaged 

and missing ... cables within the battery box ... 

[were] found damaged and two were found spliced,· 

cables also were not approved ... in that ... [they] 

must be accepted by MSHA as flame resistant under 

[P]art 18[.] [A]lso[,] battery cables must be protected 

from abrasion by effective means. Scoop batteries were 

also not being maintained in that cells were dry of 

water and accumulations of combustible materials 

were found present on the batteries. These are 

obvious and extensive hazards that should have been 

addressed by management .... this violation is an unwarrantable failure to comply with a mandatory 

standard. 

THE VIOLATION 

I conclude the Secretary properly charged the company with a violation of section 75.503. 

Coal River does not dispute the subject scoop was taken into and used inby the last open 

crosscut. As such, the scoop was "electric face equipment" required to be maintained in 

"permissible condition." The permissibility requirement extends to the components of the scoop, 

including its batteries, and the evidence clearly establishes the batteries were not permissible in 

several ways. 

31FMSHRC213 
First, at least two battery cables were spliced. The splices were testified to by Moreland 

and Willis and were shown in the Secretary's exhibits. Tr. 145, 169,263; Gov't Exhs. 19, 20, 21. 

Moreover, the Secretary established that under section 75.503, no splices are allowed in battery 

c~bles. This ban on splices is, as Willis testified, MSHA's policy and the policy reflects the 

requirements of the regulation. Tr. 251; see Gov't Exh. 28. Second, the cables used on the 

scoop's batteries were not approved by MSHA. Moreland and Willis testified to this fact, and 

their testimony was not disputed by Coal River's witnesses. Tr. 146, 257; see Gov't Exh. 20. 

Third, and as the order alleges, the lack of proper clamps securing the cables also violated section 

75.503. The testimony supports the charge. Willis's contention a non-approved Buncy clamp 

was used to hold the conductors at one of the splices was not refuted, and even Bickey agreed 

tape, not a clamp, was used at another of the splices. Tr. 267; 568; see Gov't Exh. 21. 

Finally, the order asserts the batteries were "not being maintained" (presumably in 

permissible condition), in that the battery cells were "dry of water" and "accumulations of 

combustible materials" were found on the batteries. There are problems with these charges. The 

record reveals the Secretary's witnesses actually did not know if the cells were totally without 

water, that is, ifthe cells were "dry." (Moreland admitted he could not say which of the cells in 

each battery was without water. Tr. 149.) The inspectors could not see to the bottom of the cells 

because of the cells' lead plates. Furthermore, Carl Estep's contention the battery cells had to 

have at least some water in them for the cells to make a circuit for the charger to function was not 

refuted (Tr. 949), and Moreland and Willis essentially agreed some of the cells contained water, 

although the level was insufficient. See, e.g., Tr. 149, 287. Thus, the record does not support 

fin.ding the cells were "dry of water", as the order charges. Gov't Exh. 4. 

Further, the evidence falls short of establishing the presence of accumulations of 

combustible materials on the batteries. True, Willis' s testimony confirmed the presence of white 

residual "ash" on the batteries, but, as I have noted, whether the "ash" was the result of 

incinerated combustible accumulations, as he maintained {Tr. 266), or was the residue of baking 

soda used to clean the batteries, as Rickey and Estep testified (see Tr. 266, 465, 940), cannot be 

determined. 

For these reasons, I conclude the Secretary established the scoop's batteries were not 

maintained in permissible condition as alleged, but only insofar as the cables were spliced, were 

not approved by MSHA, and were not permissibly clamped. 

S&SGRAVITY 

The Secretary established a violation of section 75.503. She also established a safety 

hazard contributed to by the violation. I find Moreland's testimony that splices in battery cables 

''weakened" the cables and created "the possibilities of arcing and heating" to be compelling. Tr. 

145. The danger was heightened in this instance because one of the splices had been damaged to 

the extent it was open and revealed the spliced cable's inner conductors. Tr. 263; Gov't Exh. 21. 

However, I do not find the Government offered sufficient evidence to find any of the splices was 

31FMSHRC214 
causally linked to the incident of January 27. In this regard, I note Estep's observation that most 

of the tape used in making the ruptured splice showed no evidence of being affected by heat, in 

that it was not burned or distorted. Tr. 953-954. Nonetheless, I agree with Willis that the splices 

were very dangerous because of their potential to ignite a hydrogen explosion. Tr. 256-257; see 

also Tr. 331. He persuasively described the result of any such explosion as "catastrophic." Tr. 

256. It also is obvious to me the splices could have contributed to a dangerous fire. Given the 

fact the spliced cables were subject to vibration and abrasion as mining continued, were not 

clamped properly, and·one of the splices already had ruptured, revealing its conductors, I find in 

the context of continued, normal mining operations, an explosion and/or fire was reasonably 

likely to occur, and serious, even fatal, injuries to miners caused by gas, smoke and/or fume 

inhalation or fire were reasonably likely to result. For these reasons, I conclude the violation was 

both S&S and serious.25 

UNWARRANTABLE FAILURE AND NEGLIGENCE 

I conclude the company unwarrantably failed to prevent use of the spliced, improperly 

clamped and non-approved battery cables. Coal River unquestionably relied on MPS to provide 

it with batteries meeting all of the applicable MSHA requirements. As Estep stated, company 

officials believed MPS to be a "quality vendor." Tr. 933. The attitude of mine operations 

manager Larry Blackburn was typical. He stated he just "took it for granted" the batteries 

supplied and serviced by MPS were acceptable to MSHA. Tr. 614; see also Tr. 807, 865; 935, 

944 (testimony of other company officials regarding unquestioned reliance on MPS). I also 

accept as credible the testimony of Larry Blackburn, Estep, and Curry that they were unaware 

battery cables could not be spliced (Tr. 611-612, 866, 903, 935, 943), and the testimony they did 

not know the battery cables supplied by MPS were not approved by MSHA. Tr. 807, 865, 935, 

944. However, I fully agree with Inspector Willis that the company's reliance on MPS did not 

lessen the company's culpability. See Tr. 356. Coal River's responsibility for compliance was 

not subject to contract. In failing to ensure MPS provided it with batteries that complied with the 

law, the company exhibited a serious lack of reasonable care. There was no evidence of a system 

established by the company to check on the compliance-readiness of the equipment it was 

provided. Coal River simply abrogated its responsibilities in this regard. As such, I conclude the 

violation of section 75.503 was the result of its unwarrantable failure and high negligence. 

OTHER CIVIL PENALTY CRITERIA 

251 do not find use of the non-approved cables contributed significantly to the hazard. 

While Willis expressed fear about the insulation of the non-approved cables breaking down due 

to long use (Tr. 261), Bickey testified without dispute that the 2/0 cable used on the batteries was 

more heat tolerant than MSHA-approved cable. Tr. 431-432. Moreover, I accept Estep's 

testimony non-approved cable had long been used at the mine without problems. Tr. 938. Thus, 

while use of the cable supplied by MPS violated the standard, it did not add to the S&S nature of 

the violation or to its gravity. 

31FMSHRC215 
The parties stipulated the proposed penalties for the alleged violations would not affect 

Coal River's ability to continue in business (Stip. 6) and that Coal River had a "low" applicable 

history of previous violations. Stip. 7. The parties also stipulated Coal River abated in good 

faith the violations alleged in the citation and orders. Tr. 397-398. Exhibit A of the Secretary's 

civil penalty assessment petition indicates Coal River is of a moderately large size, an assertion 

not disputed by the company. Finally, the record reveals Coal River exhibited much more than 

ordinary good faith in abating the violations. For example, Larry Blackburn described how Coal 

River complied with the requirement to use MSHA-approved cable on its batteries. He stated, as 

soon as management became aware of the requirement, the company "had ... [MPS] come in 

and change all batteries at all three [of its] mines with the MSHA approved cables." Tr. 613. 

The company also discontinued spraying the ribs and chose instead to have dry chemical fire 

suppression systems at each of its battery charging stations. Tr. 617-618. The heat activated 

systems were hung from the roof over the chargers. Tr. 710. As Blackburn stated, the company 

did "everything ... [it] could to avoid having~ .. [an] incident [similar to that of January 27] 

happen in the future." Tr. 659. He added, "We tried to make a positive out of this and learn 

from it." Tr. 660. Mark Blackburn described the new fire suppression system as "a better 

system." Tr. 714; see also Tr. 808, 810. In addition, pre-shift examiner Jerry Vance noted after 

the January 27 incident, additional training was given at the mine regarding pre-shift 

examinations and how they should be conducted. Vance stated he "learned a lot." Tr. 762. With 

regard to battery cables and splices, weekly electrical examiner Steven Curry noted after the 

subject citation and orders were issued, things were done differently at the mine. 

We [charged] every cable on every battery. 

We put certification tags on every battery. 

[The]. batteries are always ventilated and 

we make sure the water's maintained, the 

epoxy' s maintained, and we never splice 

the cables. 

Tr. 887; see also Tr. 959-960 (testimony of maintenance manage, Carl Estep). Curry stated if he 

found a splice on a scoop battery cable, he would "shut the scoop down" until the cable was 

replaced, even if the splice had been made by MPS personnel. Tr. 923. Maynard agreed, under 

the management team of B.K. Smith and Larry Blackburn, there had been improvements at the 

mine. He described Smith and Blackbum as "good," even "excellent," when it came to safety. 

Tr. 205. From all of this, I conclude the company's attitude toward compliance and safety 

wan;ants recognition and encouragement, and I will give much more weight than normal to the 

good faith criteria when I assess penalties in this case. 

CITATION NO. 

7249165 

WEV A 2007-196 

CIVIL PENALTY ASSESSMENTS 

DATE 

1/30/06· 

30CFR§ 

75.340(a) 

31FMSHRC216 

PROPOSED ASSESSMENT 

$10,300 
I have found the violation occurred, that it was serious, and that it was due to Coal 

River's moderate negligence. Given the other civil penalty criteria, especially the company's low 

history of prior violations and its greater than ordinary good faith, I conclude a civil penalty of 

$2,000 is appropriate. 

ORDER NO. 

7249166 

DATE 

1/30/06 

30 CFR § PROPOSED ASSESSMENT 

75.360(b)(9) $10,300 

I have found the violation occurred, that it was serious and that it was due to Coal River's 

moderate negligence. Given the other civil penalty criteria, especially the company's low history 

of prior violations and its greater than ordinary good faith, I conclude a civil penalty of $2,000 is 

appropriate. 

ORDER NO. 

7249167 

DATE 

1/30/06 

30CFR§ 

75.512 

PROPOSED ASSESSMENT 

$10,300 

I have found the violation occurred, that it was serious, and that it was due to Coal 

River's high negligence. ·Given the other civil penalty criteria, especially the company's low 

history of prior violations and its greater than ordinary good faith, I conclude a civil penalty of 

$4,000 is appropriate. 

ORDER NO. 

7249168 

DATE 

1/30/06 

30CFR§ 

75.503 

PROPOSED ASSESSMENT 

$5,300 

I have found the violation occurred, that it was serious, and that it was due to Coal 

River's high negligence. Given the other civil penalty criteria, especially the company's low 

history of prior violations and its greater than ordinary good faith, I conclude a civil penalty of 

$4,000 is appropriate. 

ORDER 

Within 40 days of the date of this decision Coal River IS ORDERED to pay civil 

penalties totaling $12,000 for the violations found above. Within the same 40 days the Secretary 

IS ORDERED to modify Citation No. 7249165 from a citation issued pursuant to section 

104( d)(l) of the Act to a citation issued pursuant to section 104( a) of the Act and to modify the 

inspector's negligence :from finding :from '"high" to "moderate." She also IS ORDERED to 

modify Order No. 7249166 from an order issued pursuant to section 104( d)(l) of the Act to a 

citation issued pursuant to section 104(a) of the Act and to modify the inspector's negligence 

31FMSHRC217 
finding from "high" to "moderate." Finally, she IS ORDERED to modify Order No. 7249167 

from an order issued pursuant to section 104( d)(l) of the Act to a citation issued pursuant to 

section 104(d)(l). Upon payment of the penalties and modification of the citation and orders, 

these proceedings ARE DISMISSED.26 

Distribution: (Certified Mail) 

_J),,v/t/ f .t?~ 

David F .. Barbour 

Administrative Law Judge 

Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd 

Floor West, Arlington, VA 22209-2247 

F. Thomas Rubenstein, Esq., Dinsmore &Shohl, llP, 215 Don Knotts Blvd., Suite 310, 

Morgantown, WV 26501 

/ej 

2

6These cases were tried despite my strong belief they should have been settled. 

Following the trial, I orally advised the parties I still believed a settlement was the best way to 

resolve the issues, and I outlined my v~ew of a reasonable compromise. The parties considered 

my suggestions, but were unable to :reach an agreement. I have heard many disputes under the 

Mine Act, but rarely have I been as impressed with the commitment to. safety and to the wellbeing of miners as I was with that displayed by B.K. Smith and the Blackburns. I doubt if the 

trial enhanced their commitments, and I doubt if Coal River's miners, the company, the industry, 

the government, or the taxpayers gained much, if anything, from the extended proceedings. With 

more flexibility on the part of all involved and with more appropriate and timely intervention on 

my part, the matters should have been resolved prior to the day we convened or, at the latest, 

immediately after the hearing. Since these cases were initiated, the Commission has established 

an office of Settlement Counsel. I am convinced the counsel's mediation would have been 

helpful here, and, in the future, I will aggressively recommend parties seek the counsel's 

assistance in cases such as this. 

31FMSHRC218 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, D.C. 20001 . 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WEBSTER COUNTY COAL, LLC, 

Respondent 

February 2, 2009 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 2007-451 

A.C. No. 15-02132-122679 

Docket No. KENT 2008-73 

A.C. No. 15-02132-127206 

Dotiki Mine 

DECISION 

Appearances: Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, on behalf of the Petitioner; 

Noelle Holladay True, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 

Lexington, Kentucky, and Gary McCollum, Esq., Lexington, Kentucky, on behalf 

of the Respondent. 

Before: Judge Melick 

These cases are before me upon petitions for civil penalty filed by the Secretary of Labor 

pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

seq., the "Act," charging Webster County Coal, LLC, (Webster County) with violations of 

mandatory standards and proposing civil penalties of$2 l ,403 .00 for the violations. The general issue 

before me is whether Webster County violated the cited standards and, if so, what is the appropriate 

civil penalty to be assessed in accordance with section l lO(i) of the Act. Additional specific issues 

are addressed as noted. 

At hearings, the parties advised that all but two of the charging documents at issue had been 

settled and a motion confirming that settlement was filed post-hearing. Considering the 

representations and documentation submitted therewith, I am able to conclude that the proffered 

settlement is acceptable under the criteria set forth in section 11 O(i) of the Act. Approval of that 

settlement will be incorporated in this decision. The two citations remaining at issue are addressed 

below. 

Citation No. 6693541,.issued May 30, 2007, alleges a "significant and substantial" violation 

of the standard at 30 C.F.R. § 75.604(b), and charges as follows: 

31FMSHRC219 
. . 

The Trailing Cable on Joy Shuttle Car co. no. B 4000ET-l 6403 located on unit # 1 has an 

opening in a permanent splice exposing the inner insulated conductor. This is a 300VDC 

cable and the floor in this area is damp. Trailing cables are sometimes handled by the miners 

to allow other mobile equipment to pass under the cable. 

The cited standard provides that "[w]hen permanent splices in trailing cables are made, they 

shall be ... (b )effectively insulated and sealed so as to exclude moisture ... ". 

At hearings, Webster County admitted the violation as charged and challenged only the 

"significant and substantial", gravity and negligence findings and the amount of the Secretary's 

proposed civil penalty. 

Edward Nichols, an inspector for the Department of Labor's Mine Safety and Health 

Administration (MSHA) has an associate degree in mining technology from Madisonville 

Community College and extensive industry experience. He has been an MSHA inspector for eight 

years. According to Inspector Nichols, the subject citation was issued when he observed the cited 

trailing cable with what he considered to be a bad splice. The subject trailing cable supplied power 

from the power station to various mobile equipment. The cable consisted of an outer jacket of hard 

rubber and two inner cables with dialectric insulation. The cable carried 300 volts direct current and 

power was engaged at the time of the violation. 

More particularly, Nichols set forth the basis for his "significant and substantial" findings 

in the following colloquy at hearings: 

Q And do you believe this condition contributed to a safety hazard? 

A Yes, sir. 

Q And what was that hazard? 

A The hazard is that, as I stated, the mining floor is wet down to allay the dust and 

application of this water, cable laying on the ground, that the cable is also being watered --

water has been applied to it, and the use of the mining -- piece of mining equipment back and 

forth will allow the cable to pick up moisture. · 

Q And how would that pose a hazard to a person? 

A Sometimes these cables are handled by miners to allow other mobile equipment to pass 

under them. The miners physically pick the cables up and hold them up out so that the 

mobile equipment can pass under them or they take a spad type nail and hang it up that way 

~~ . 

Q In order to achieve the same objective? 

31 FMSHRC 220 
A Yes, in order to achieve the same purpose. 

Q Now, how did you conclude that it was reasonably likely that this hazard would 

contribute to an injury? 

A Because of the moisture there at the ground and the continued use of this cable will just 

:further deteriorate the splice. The inner insulation is a dielectric strength type insulation. It 

has no mechanical value as far as hardness to insulate. 

Q So what's the purpose of that inner insulation? 

A The purpose of the inner insulation is to separate the two conductors from coming in 

contact with each other. It's just a dielectric strength insulation only. 

Q And what protects the cable from the mining environment? 

A The outer jacket of the cable, the hard -- hardened rubber protects it. 

Q Why did you conclude that miners sometimes handle these cables? 

A Because I have seen them handle the cables. 

Q At this particular mine? 

A Yes. 

Q Now, if you knew that a shuttle car operator would routinely do a preoperational check 

before using a car on a particular shift, would that in any way change your opinion about the 

likelihood of an injury here? 

A No. 

Q Why is that? 

A Starting time for day shift is 7:00 o'clock, given the time that it would take to transport 

the miners from -- from the opening of the mines, say, approximately 8:00 o'clock in the 

morning. This violation was cited at 11 :25. If the operator had done his preop check at 8:00 

o'clock, then approximately three -- three hours and 25 minutes had passed since he had done 

his first preop check. 

Q And I think -- when you observed miners handle these cables, were they wearing gloves? 

31 FMSHRC 221 
A Most of the time -- it's a company policy that the miners there at that mines wear gloves. 

I had at different occasions cautioned miners when tliey go to reach -- it's just kind of a 

reactive response. Sometimes they'll reach to grab ahold of a cable to move it out of 

somebody's way or to help somebody move a piece of equipment, but I have at times 

cautioned them before they grabbed ahold of the cable bare handed. 

Q And do you recall or do you have any knowledge of what type of gloves these were? 

A These are common type leather -- leather gloves. The company I think also issues a 

rubber type glove which is a cloth type glove with a rubber application put over top of the 

glove. It's kind of a spray on type or a dipping process to apply this rubber coating over the 

glove to make it somewhat insulated. 

THE COURT: Who was responsible at that mine for the preoperational check of the cable? 

THE WITNESS: The equipment operator, sir, would be. 

THE COURT: Miner operator? 

THE WITNESS: Yes, sir. 

THE COURT: Do you know who that was that day? 

THE WITNESS: At that time, no, sir. I didn't note the person's name. 

THE COURT: I see. All right. 

Q (By Mr. Barber.) Does the fact that the the company has a policy for miners wearing 

gloves and that you've actually observed miners handling cables with gloves on, does that 

in any way change your opinion about the likelihood of an injury here? 

A No, sir. Perspiration and gloves handling other pieces of equipment and so forth, 

moisture may gather on the gloves and make it conductive. 

Q How did you conclude that the injury here would result in lost workdays or restricted 

duty? 

A From receiving an electrical shock, burns or the shock itself to the body. 

Q And how would that occur? What would have to happen for that to occur? 

A Sometimes permanent splices and even the bare trailing cable itself under excessive wear 

creates an air gap situation where the metals actually separates from one another. This air 

31 FMSHRC 222 
gap then is where the cable -- the conductor in the cabl~ will actually arc and try to keep its 

path of electricity going, but in this arcing situation, the cable actually burns and bums the 

rubber, and it's an explosive type. 

Q And the condition -

THE COURT: You mean even with the insulation in place? Are you saying -

THE WITNESS: Yes, sir. 

THE COURT: -- even if the inner insulation is in place, you know of situations where there 

is arcing? 

THE WITNESS: I've seen permanent splices - one time at another mines when I was giving 

a safety talk, one of the car cables was laying up -- pulled up against the rib, and during that 

safety talk, some of the miners and I were discussing some of the safety issues, that the 

permanent splice itself just arced and it exploded. 

On cross examination Nichols acknowledged however that without "pinholes" or other 

exposure to the inner wires, there was no hazard or risk of injury and for someone to be injured they 

would actually need to be in contact with a defective splice. Nichols did not perform any test to 

determine whether there were any pinhole leaks. He also acknowledged that the cable was not wet 

and that this area of the mine was dry. 

MSHA electrical supervisor, Michael Moore, has a bachelors degree from Western Kentucky 

University in electrical engineering technology. He also has significant industry experience as an 

electrician and electrical inspector for MSHA. Moore's testimony in support of his "significant and 

substantial" findings with respect to this citation was intermixed with his testimony regarding 

Citation No. 6693992 and is set forth therein. 

Mr. Donnie Gatten is training director for Alliance Coal, Respondent's parent company. He 

has a bachelors degree in electronic engineering technology, several electrical certifications and 

industry experience. Gatten testified that permanent splices on trailing cables have been damaged 

in the past. If a piece of equipment struck a cable, it could result in a cable explosion due to a phase 

to phase contact as described by Mr. Moore. The Dotiki mine's policy with respect to handling 

trailing cables requires miners to wear gloves and to avoid trying to pick up any energized cable in 

a spliced area. Dotiki policy also requires miners to wear boots with protective insulation of up to 

14,000volts. 

Gatten opined that it was not likely that a person would be injured by the described 

conditions because there was no break in the insulation, and the mine has no practices that would 

create a pinhole in conductors. Mr. Gatten opined that the inner insulation would not wear from 

contact with the mine floor because the outer jacket was still on the cable. Gatten agreed that under 

31FMSHRC223 
continued mining operations the shuttle car cable and the damaged splice would continue to suffer 

damage. 

Gary Thweatt is Respondent's director of training and safety. He has been a miner since 

1993, as a section foreman, an assistant safety director, and as the safety director. Thweatt testified 

that the shuttle car cable at issue would not be handled very often because a mobile· equipment 

operator would ordinarily have to wait less than a minute for the shuttle car to return from the face 

to the feeder, and its cable to reel in, allowing the other equipment to pass. 

It is not disputed that Respondent performs weekly examinations of the equipment, including 

trailing cables, and that equipment operators perform preoperational checks on equipment, including 

trailing cables, on every shift. Thweatt has seen miners pick up cables without gloves, although he 

could not recall observing that practice at the Dotiki mine. The continuous miner operator's feet or 

legs could contact the cable inadvertently during the mining process. · There could be inadvertent 

contact with either the miner cable even if someone is not intentionally picking up the cable. Miners 

intentionally step on cables to cross over them. 

Citation No. 6693992, issued August 5, 2007, as amended, alleges a ··significant and 

substantial" violation of the standard at 30 C.F.R. § 75.604(b), and charges as follows: 

The trailing cable on Joy continuous miner co~ no. 6345 located on MMU-029-0 #4 unit has 

an opening in the outer jacket exposing the inner insulated conductor. The permanent splice 

4 inches from this exposed insulated conductor was rolled back form the splice, continuous 

use of this cable will cause ware[ sic]. Miners handle this cable to hang the cable. The floor 

in this are[sic] is damp. 

As previously noted, the cited standard provides that "[ w ]hen permanent splices in trailing 

cables are made, they shall be " ... (b)effectively insulated and sealed so as to exclude moisture ... ". 

At hearings, Webster County admitted the violation as charged and challenged only the 

··$ignificant and substantial", gravity and negligence findings . and the amount of the Secretary's 

proposed civil penalty. 

Inspector Nichols described his "significant and substantial" findings in the following 

colloquy at hearings: 

Q (By Mr. Barber) Can you tell us - -what's the difference between a continuous miner 

cable and the shuttle car cable that we just finished discussing. 

A Physically the miner cable is a much larger cable. It is a three phase cable that conducts 

in this case 995 volts of AC in comparison to the DC cable which is a much smaller two 

conductor cable that conducts approximately 300 volts DC. 

31 FMSHRC 224 
Q Any other differences in the way this cable is constructed versus the shuttle car cable? 

A There is more -- there's more outer insulation I think on this particular cable than there 

is on a trailing cable. There's a -- each one in the Dotiki mine, they use shielding over each 

one of the phases. 

Q And what's shielding? 

A Shielding is a grounding. If the ground opens, the shielding is supposed to detect this 

electricity and knock the breaker at the substation. 

Q What's the shielding made out of? 

A It's a metal construction, a web like constructed metal material that is tube like that fits 

on the outer side of the dielectric insulation of the phase. 

Q Does it provide any mechanical protection for the cable such as protection from abrasions 

andA No. 

Q How long was this cable? 

A This cable is approximately 750 foot in length. 

Q And was it energized and in use when you observed it? 

A Yes, it was. 

Q And do you recall where it was located? Was it suspended or on the ground or -

A It was laying on the ground. 

Q And were there people in the area of this cable? 

A The miner helper was in this area. Other people who passed by would be -- would be 

in the area. 

Q And who might those be? Would those be the same people that -

A Yes. 

THE COURT: Well, maybe you ought to finish your question. 

31 FMSHRC 225 
Q Those would be the same people that you spoke of in discussing the previous citation? 

A Yes. 

Q Does this particular cable -- would it be your testimony that this cable is exposed to the 

same conditions of the mine environment during use as the shuttle car cable? 

A Yes. This cable is mostly on the ground. Sometimes it is hung over the entries to allow 

other mobile .equipment to pass under it but miner cables are mainly up close. The miner 

itself -- if you need more cable to reach farther -- another place or the next place and so forth, 

they carry loops of trailing cable and they pull this cable with the miner itself so it is 

subjected to -- due to its weight and the weight of the other parts of the cable laying on it, 

it is subjected to kind of a sandpapering like effect. 

(Tr. 45-47) 

***** 

Q (By Mr. Barber.) Did this particular condition create a hazard? 

A Yes, sir. 

Q And what was the hazard? 

A The hazard was the exposed inner -- the opening in the outer jacket exposing the inner 

insulated conductor. 

Q How could that injure a person? 

A Through the contact with this area and the continued use of this cable which in my 

opinion would continue throughout the day that it would be further damaged. 

(Tr. 49) 

***** 

Q (Mr. Barber.) What's the basis or how did you conclude that it was reasonably likely that 

this condition would result in an injury? 

A Because of the exposed inner insulation -- insulated conductors. 

Q Well --

THE COURT: Go ahead. You can continue. Did you have further response to that? 

31 FMSHRC 226 
A With continued use -- the dielectric portion of a cable is a very soft material, and through 

continued use of it, it will deteriorate the insulation of the conductors. 

Q When you say dielectric material, are you referring to the inner insulation? 

A Yes. 

Q And I believe you testified that miners sometimes handle this cable, and what's the basis 

for that testimony? 

A Miners handle the cable to hang the cable up. The cable will be hung from the 

transformer where it receives its power over the crosscuts to allow scoops, supply jeeps, and 

other normal pieces of mining equipment that are used to travel. Sometimes it's hung even 

at the face for a pinner if the pinner/roofer bolters don't have crossover pads to cross over the 

cable. They hang it temporarily. 

THE COURT: Same reasons as you stated for the prior violation? 

THE WITNESS: Yes, sir. 

Q (By Mr. Barber.) And I assume then for your conclusion that the injury would result in 

lost workdays or restricted duty, the basis would be the same as with the prior violation? 

A Yes, sir. 

(Tr.50-51) 

Electrical Inspector Moore's findings in support of his "significant and substantial" findings 

for this citation were discussed in the following colloquy at hearings: 

Q And you heard Mr. Nichols' testimony earlier today with respect to that citation; is that 

correct? 

A Yes, sir. 

Q And do you have an opinion about whether the condition described in that citation and 

by Mr. Nichols here today was reasonably likely to contribute to an injury? 

A Yes, sir, I do. 

Q And what is that opinion? 

A The outer jacket of a trailing cable is designed to-- for abrasion only, and the inner 

31 FMSHRC 227 
conductors has a dielectric strength rating around each phase conductor. Also that shielding 

that's around that particular phase is copper. It's soft alloy. And there's about a three to one 

ratio as far as the insulation. Insulation in comparison like -- I think the insulation -- all 

cables are designed by IPCEA ratings. 

THE COURT: What does IPCEA mean? What does that stand for? 

THE WITNESS: IPCEA is Industrial Power Cable Engineering Association, and that has 

changed. ICEA is Industrial - excuse me. Insulated Cable Engineering Association. It 

gives a design for all cables that are used underground and MSHA accepts that design. 

THE COURT: Sets an industry standard? 

THE WITNESS: Yes, sir. It's -- and by that standard, rm saying.that the insulation around 

each phase conductor is, for example, 80,000 in thickness versus the outer jacket which is 

250,000ths in thickness, which would be a three to one ratio --approximately a three to one 

ratio. 

THE COURT: Are you talking about the cables here we're talking about today? 

THE WITNESS: Yes, sir. 

THE COURT: You know the dimensions of these cables? 

THE WITNESS: Yes, sir. 

THE COURT: Okay. Go ahead. 

Q (By Mr. Barber.) And we're talking right now about the continuous miner cable that's 

described in Government Exhibit 6? 

A Yes, sir, that's correct. 

Q As part of your answer you just explained that the inner insulation is dielectric strength 

insulation. What's the purpose of that inner insulation? 

A Insulation on each phase conductor is rated for 2,000 volts. Insulation is -- and the 

voltage that's in the cable is 995 volts. That insulation which is rated for 2,000 volts contains 

that working current and voltage from the unit transformer to the miner, and the shielding 

on the outside of each -- each phase conductor is in case you get any type of damage to the 

phase conductor itself that when it -- when that power exits the insulated conductor and 

makes contact with the shielding, there will be a phase to ground fault and the ground to 

phase protected device that the circuit breaker will open. And, again, you have -- and not 

31 FMSHRC228 
only is that designed -- or that particular trailing cable has got two grounding conductors 

inside, and they are contacting the copper shielding around each phase conductor, and then 

we have this outer jacket which is for abrasion because the cable is flexed and twisted and 

carried on and bent and looped and dragged. 

THE COURT: What was the question? I think I lost track of the question. We seem to be 

going on here beyond any question. What was the precise question you asked him? 

Q (By Mr. Barber.) The precise question was why he agreed that this condition was 

reasonably likely to lead to an injury. So why-- given all the substance of that answer, why 

do all those facts lead you to conclude or to agree with inspector Nichols that injury was 

reasonably likely here? 

A Because the fact that the cable was a poorly designed -- poorly made splice that rolled up 

the way he described it, if the company had their preop, normally a cable that -- spliced and 

on a 995 miner cable is designed in such a manner that it would roll back like that in a short 

period of time of four hours, and that it's obvious that the phase conductors were exposed 

with that copper coating on the outside of each phase, and that with continuous working --

or continuous dragging of this cable, it will deteriorate that soft copper shielding and also 

that soft inner insulation around each phase conductor. 

THE COURT: Then what would happen in your opinion? 

THE WITNESS: Somebody could touch that particular damaged spot and receive electrical 

shock or it could explode if it was a phase to phase of those. Those phase conductors are --

if they're damaged for a low KBA rating on that transformer -

THE COURT: What kind ofrating? 

THE WITNESS: Low rating on that -

THE COURT: I thought you said AP A or something. What was that? A low rating? 

THE WITNESS: KBA. 

THE COURT: What does KBA stand for? 

THE WITNESS: A thousand volt amps. We've got--ifyou've got a transformerTHE COURT: I don't want to go beyond --

THE WITNESS: I'm trying to explain why that would blow up. 

31 FMSHRC 229 
THE COURT: All right. Go ahead. 

THE WITNESS: Okay. I've got a transformer that's got 1,000 KBA transformer and it's got 

a cadence of five percent, then you're going to have 11,000 amps that's going to be generated 

when you have a phase to phase fault, and this has happened time and time again in the 

industry. Any time we get 11,000 amps flowing, you're starting to take that soft copper and 

you're vaporizing it, you're creating copper metal alloys that are flying off of that stuff, you're 

going to have a cloud of dust, you're going to have an explosion type, like an arc welder, and 

if anybody is anywhere close to that, they could be damaged, their hands, even if they've got 

rubber gloves or leather gloves or cotton gloves on, they're going to get damaged. That 

damage can bum all the way up their hands and arms which has happened in our district. 

Q (By Mr. Barber.) How does this condition that the inspector described in this citation 

contribute to that hazard? Is it yourtestimony that it does contribute to that? 

A Yes, because it's -- my outer jacket is gone now and it's done rolled up on this poorly 

made splice and you've got everything exposed now. If that continues to operate like that, 

the outer -- the protection of that cable is going to be gone, which is the copper outer 

shielding which is soft copper and that soft insulation which has dielectric strength -

dielectric rating of2,000 volts. 

Q What is that soft insulation made out of! Do you know? 

A It's just. a rubber compound that's designed by -- it can be bought by the company and 

different compounds can be ordered for that particUlar insulation. 

THE COURT: So you don't know exactly what this insulation was in this case? 

THE WITNESS: I don't know the brand name. If I know the brand name and the number 

on it, then I can get that -- get the -

THE COURT: But regardless of the nature of the material, your testimony would be the 

same? 

THE WITNESS: Yes, sir. Regardless if it's Tiger or whatever brand, Anaconda or whatever 

brand they use, they're normally a compound that's rated for 2,000 volts. 

Q (By Mr. Barber.) Is there a particular reason why that material is soft? 

A Because the -- the reason why the inner -- why the phase insulation is soft because of the 

-- because of the abrasive outer jacket is designed by the ICEA program that MSHA 

recogmzes. 

31 FMSHRC 230 
Q But in order to do its job, the inner insulation, does it have to be a softer material? 

A It's designed that way. 

Q This particular cable, does it have a feature that would cause it to de-energize if 

somebody contacted a bare wire or contacted the energized portion of the conductor? 

A If that particular area that was in question here on this citation 6693992, if -- let's say, we 

had a damaged spot in there and had a fault condition there, phase to ground, the breaker 

would -- or when that has a phase to ground fault on it to that shielding, that shielding 

vaporizes, and you go back down there and they put the breaker back up. Now I've got a 

damaged place in that 995 where the shielding is gone, and a man touches that, he's going 

to be electrocuted or -- go ahead. 

Q What would happen -- if he touches it, would the breaker knock? 

A No. 

Q Why? 

A It will not break. It will not open. Even though it would cause -- a human body for a 

man is usually 1,000 ohms. That's what we calculate that at, all our electrical measurements 

that we go by. So ifl have a damaged spot in that cable and ifl contact it, I will be -- receive 

575 volts of voltage through me and into -- because I'm standing on -- or-- which is the same 

potential that's all the grounding median in that mines. It don't make any difference if that 

groundTHE COURT: What would that do to a person? 

THE WITNESS: It would kill them. 

THE COURT: I see. All right. 

Q (By Mr. Barber.) And that would happen before the cable would be de-energized by any 

sort of safety feature? 

A Yes, sir, that's correct. 

Q If a person touched the cable in that same manner but they were wearing gloves, if they 

touched the bare copper on this cable, would the gloves protect them from being injured? 

A No, sir, they will not, not that kind of voltage - not that 995, no. 

31 FMSHRC 231 
Q Are there any -- are you aware of any type of gloves that would -

A We wear gloves that is rated for 750 volts. When we're working with circuit breakers -

THE COURT: The question was, are you aware of any gloves that would protect you from 

that voltage? 

THE WITNESS: Yes, sir. 

THE COURT: Okay. Next question. 

Q (By Mr .. Barber.) What are those gloves? 

A They're -- they're dielectric rated gloves with leather coating, leather cover on the outside 

that I wear. 

Q I believe you heard Mr. Nichols testify about the gloves that he has observed miners in 

the Dotiki mine wear. Is that the same type of glove that you're talking about here, the 

dielectric strength? 

A No, sir, it is not. 

Q And what's the difference between the gloves? 

A My gloves are rated at 750 volts. The gloves they wear are not rated for any type of 

electrical - dielectric strength -- dielectric rating. 

THE COURT: I didn't hear that testimony from the other witness. Did he testify that they 

didn't have those kind of gloves at the mine? 

MR. BARBER: I believe he testified --

THE COURT: Well, you're satisfied that he did testify to that? If it's not in the record, then 

it's not in the record. All right. 

Q (By Mr. Barber.) Have you been to the Dotiki mine? 

A Several times. 

Q And have you observed miners wearing gloves when they handle cables? 

A Yes, sir. 

31 FMSHRC 232 
Q And do you know what kind of gloves those are? 

A They're cotton gloves or they're rubber gloves or they're leather gloves. 

Q Are they the -- is that the same type of glove that would protect them from injury if they 

contacted this cable? 

A No, sir. 

Q This particular citation notes that the floor in this area is damp. Does that have any 

relevance to your opinion that it would be reasonably likely that this condition would result 

in an injury? 

A It has -- ask me that again, please. 

Q If the floor in this area was damp, does that have any relevance -- is that relevant to your 

opinion that it was reasonably likely that this condition would result in an injury? 

A Reasonably likely whether it's wet or damp. 

THE COURT: Restate the question. Listen carefully to the question. 

THE WITNESS: Yes. Sorry, sir. 

Q (By Mr. Barber.) If the floor in this area was damp, how is that relevant to your -- is it 

relevant and how to your opinion that it was reasonably likely that this condition would result 

in an injury? 

A It wouldn't change my opinion. It still would be reasonably likely. 

Q If the floor was dry --

A Orwet. 

Q -- would your opinion be the same? 

A Yes, sir. 

Q Why is that? 

A Because if it's wet or dry, the only value of that mine floor that we stand on is always less 

than three -- less than three ohms. Therefore, the water in the mines is contaminated which 

gives it as the same potential as the dry ground is due to the fact that I've took numerous 

31 FMSHRC 233 
earth meager type readings in our area and I know that that -- at Dotiki, they drill the bore 

hole down below the fire clay and that's what the men stand on which is the mine floor. 

THE COURT: All right. Did you want a full explanation or just the answer? 

Q (By Mr. Barber.) If I understand you correctly -- in other words, are you saying that the 

groundTHE COURT: It's difficult for lay people to follow you sometimes. 

THE WITNESS: But we need.to know --

THE COURT: That's why we want to know basically what your conclusion is, and on cross 

examination, if she wants a further explanation, she can ask it. 

Q (By Mr. Barber.) Are you saying that the dry ground is as good a conductor as damp 

ground? 

A Yes, sir, absolutely, due to my tests. 

(Tr. 67-78) 

A violation is properly designated as "significant and substantial" if, based on the particular 

facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to 

wjll result in an injury or illness of a reasonably serious nature. Cement Division, National Gypsum 

Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4(January1984), 

the Commission explained: 

fu order to establish that a violation of a mandatory standard is significant and substantial 

under National Gypsum the Secretary must prove: (1) the underlying violation of a 

mandatory safety standard, (2) a discrete safety hazard - - that is, a measure of danger to 

safety - - contributed to by the violation, (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. 

See also Austin Power Co. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988), aff'g 

9 FMSHRC 2015, 2021(December1987) (approving Mathies criteria). 

The third element of the Mathies formula requires that the Secretary establish a reasonable 

likelihood that the hazard contributed to will result in an event in which there is an injury. U.S. Steel 

Mining Co., 6 FMSHRC 1834, 1836 (August 1984), and also that the likelihood of injury be 

evaluated in terms of continued normal mining operations. U.S. Steel Mining Co., Inc., 6 FMSHRC 

31 FMSHRC 234 
1573, 1574(July1984); See also Halfway, Inc., 8 FMSHRC 8, 12(January1986) and Southern Ohio 

Coal Co., 13 FMSHRC 912, 916-917 (June.1991). 

It is undisputed, of course, that, with respect to both citations, the Secretary has established 

a violation of a mandatory safety standard. With respect to both citations, I find that damage to the 

outer jacket and to the pennanent splice on the cited cables contributed to the discrete safety hazard 

of contact with exposed energized conductors inside the cables and phase-to-phase contact between 

the conductors. There·also can be little dispute that damage to, and contact with, the conductors 

inside the cables would result in reasonably serious injury such as electrical shock and burns. The 

Secretary has therefore established the first, second, and fourth elements of the Mathies test. 

With respect to the third element of the Mathies inquiry, I find that for both citations the 

credible evidence establishes a reasonable likelihood that the hazard contributed to would result in 

an injury. There is no dispute that when Inspector Nichols obsetved the violative conditions 

described in these citations that the cables were in use, energized, and subject to continued wear. 

I find therefore that during continued normal mining operations the cables would likely sustain 

further wear and that the splices would likely deteriorate. 

· The credible record evidence also shows that miners will pick up cables for various reasons. 

Inspector Nichols credibly testified that he has obsetved miners handling cables at this mine, and on 

different occasions he has cautioned miners as they reached for cables bare-handed. The credible 

evidence also shows that the miner cable is subjected to an abrasive environment in the mine 

I also note that although the inspector obsetved no pinholes or bare wire when he wrote the 

citations that does not bar a finding that the violations were of a significant and substantial nature. 

See Harlan Cumberland Coal Company, 20 FMSHRC at 1286 (Dec. 1998) and U. S. Steel Mining 

Co., 6 FMSHRC 1573 (July 1984). In reaching my conclusions herein I have also not disregarded 

Respondent's claims that protective gloves and boots worn by its miners would prevent electrical 

shock, however, such equipment would not in any event protect from explosions from phase to phase 

contact. I also note that the cases cited by Respondent, i.e. Oak Grove Resources, LLC, 29 

FMSHRC 1089 (Nov. 2007) (ALJ), and Lone Mountain Processing, Inc., 29 FMSHRC 957 (June 

2007) (ALJ), are factually distinguishable. Accordingly, those cases provide no support to its 

argument. For the reasons noted above I also find that the violations were of significant gravity. 

I further find that the violations were the result of the operator's moderate negligence. It is 

apparent from the record evidence that the cited splices were obvious. Moreover, the record shows 

that this operator had a number of violations of the same standard at issue herein i.e. 30 C.F.R. § 

75.604(b ), during relevant times preceding these violations. 

Civil Penalties 

Under Section 11 O(i) of the Act, the Commission and its judges must consider the following 

factors in assessing a civil penalty: the history of violations, the negligence of the -Operator in 

31 FMSHRC 235 
committing the violation, the size of the operator, the gravity of the violation, whether the violation 

was abated in good faith and whether the penalties would affect the operator's ability to continue in 

business. It has been stipulated that the Dotiki Mine is a large mine and Alliance Resources Partners 

LP is a large controlling entity. It has been further stipulated that the Secretary's proposed penalties 

would not affect Respondent's ability to remain in business. Respondent has a significant history 

of violations (Exh G-2). The gravity and negligence findings have previously been discussed. 

ORDER 

Citation Numbers 6693541 and 6693992 are affirmed with "significant and substantial" 

findings and Webster County Coal, LLC is directed to pay civil penalties totaling $17 ,531.00 (which 

includes penalties of $1,900.00 and $2,000.00, for the violations charged in Citation Numbers 

6693541 and 6693992, respectively).·· 

Distribution:(Certified Mail) 

Gaxy Melick 1 

Administrative Law Judge 

(202) 434-9977 

Christian Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

Noelle Holladay True, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumni Park 

Plaza, Suite 310, Lexington, KY 40517 

/lh 

31 FMSHRC 236 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY A VENUE N. W., SUITE 9500 

WASHINGTON, D.C. 20001 

February 2, 2009 

RICHARD JAIMES, 

Complainant 

DISCRIMINATION.PROCEEDING 

v. Docket No. LAKE 2008-486-DM 

NC-MD-08-05 

STANSLEY MINERAL RESOURCES, INC.: 

Robinson Run No. 95 Mine 

Mine ID ll-00176Dl70 

Respondent 

DECISION 

Appearances: Richard Jaimes, Adrian, Michigan, prose; 

Richard B. Stansley Jr., Sylvania, Ohio, on behalf of the Respondent. 

Before: Judge Melick 

This case is before me upon a complaint of discrimination filed by Mr. Richard Jaimes 

alleging that he was discharged by Stansley Mineral Resources Inc.(Stansley Minerals), on 

September 19, 2007, in violation of Section 105(c) of the Federal Mine Safety and Health Act of 

1977, 30 C.F.R. § 801 et seq., the ••Act."1 Stansley Minerals denies the allegations of unlawful 

discharge and, alternatively, seeks dismissal of the complaint on the grounds that the complaint was 

not filed within the time limits set forth in Section 105(c)(2) of the Act. 

1

Section 105(c)(l) of the Act provides as follows: 

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 the 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 such miner, 

representative of miners or applicant for employment is the subject of medical evaluations and 

potential transfer under a standard published pursuant to section 101 or because such miner, 

representative of miners or applicant for employment bas instituted or caused to be instituted any 

proceeding under or related to this Act or has testified or is about to testify in any such 

proceeding, 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. 

31FMSHRC237 
Section 105(c)(2) provides that "any miner ... who believes that he has been discharged, 

interfered with, or otherwise discriminated against by any person in violation of this subsection may, 

within 60 days after such violation occurs, file a complaint with the Secretary [of Labor] alleging 

such discrimination ... ". The Commission has long held, however, that this 60-day limit is not 

jurisdictional and a judge is required to review the facts on a case-by-case basis, taking into account 

the unique circumstances of each situation in order to determine whether a miner's late filing should 

be excused. Hollis v. Consolidation Coal Company, 6 FMSHRC 21, 24(January 1984), aff'd mem. 

750 F.2d 1093 (D.C. Cir. 1984); Herman v. Imco Services, 4 FMSHRC 2135(December1982). 

In this case there is no dispute that Mr. Jaimes' alleged protected activities began in August 

2007 and continued until shortly before his discharge on September 19, 2007. There is also no 

dispute that Mr. Jaimes' complaint of unlawful discharge to the Department ofLabor's Mine Safety 

and Health Administration (MSHA)was dated April 9, 2008, or almost five months after the 60-day 

deadline set forth in Section 105( c )(2). At hearings, Mr. Jaimes explained that he delayed filing his 

complaint to MSHA because: 

I wanted to be very determined, I mean, very reasoned in my, you know, redress. I wanted 

to make sure that I wasn't, frivolous. So, I waited for the EEOC [Equal Employment 

Opportunity Commission] to make a rendering on their case. And when they, when.they 

made their rendering, then I figured, that I determined I would just, you know, follow that 

up through the Mine Safety Health Administration. And that's why- - and that's the thing 

that I noted on the, on my request is that I was trying to be very prudent and very, you know, 

measured. I wasn't just, I wasn't just throwing everything up, you know, on the wall and 

seeing what would stick. (Tr. 99-100). 

Significantly, Mr. Jaimes does not claim that he was unaware of the filing deadlines under 

the Act and bases his excuse for late filing solely on his election to give priority to his EEOC 

complaint wherein he asserted that his discharge was the result of age discrimination. I do not find 

this reason to be a grounds to excuse his late filing in this case. See Wilson v. CSR Southern 

Aggregates,22FMSHRC 1218(ALJ)(October2000). Underthecircumstancesthecomplaintherein 

must be dismissed. 

Even assuming, arguendo, that the complaint was filed timely, I find that Mr. Jaimes would 

have, in any event, failed to sustain his burden of proving that his discharge was in violation of the 

Act. He alleges in his complaint to MSHA on April 9, 2008, as follows: 

On Sept 18, 2007, I was hauling brown clay to a dump site under construction. While in the 

process oflifting my load, the load shifted resulting in the truck box :flipping on its side. The 

failure of the company to properly train me to operate the haul truck along with the absence 

of a safety berm on an uneven slope contributed to the accident. In addition, my repeated 

requests to replace bad tires and leaking wheel cylinder all went unheeded leading to this 

accident. My safety concerns were noted on the daily vehicle report. As a result of this 

accident ~n (9-18-2007) and the accumulative effect of other discrinitaory[ sic] practices, I 

was terminated [as] of (9-19-2007) I am seeking recovery of lost wages and compensation · 

to be made whole. 

31 FMSHRC 238 
This Commission has long held that a miner seeking to establish a prima facie case of 

discrimination under section 105( c) of the Act bears the burden of persuasion that he engaged in 

protected activity and that the adverse action complained of was motivated in any part by that 

activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 

(October 1980), rev'd on grounds, sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd 

Cir. 1981 ); and Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 

(April 1981 ). The operator may rebut the prima facie case by showing either that no protected 

activity occurred or that the adverse action was in no part motivated by the protected activity. If an 

operator cannot rebut the prima facie case in this manner, it may nevertheless defend affirmatively 

by proving that it would have taken the adverse action in any event on the basis on the miner's 

unprotected activity alone. Pasula; supra; Robinette, supra. See also Eastern Assoc. Coal Corp. 

v. FMSHRC, 813 F .2d 639 (4th Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d 194, 195-

196 (6th Cir. 1983) (specifically approving the Commissions' Pasula-Robinette test). Cf. NLRB v. 

Transportation Management Corp., 462 U.S. 393, 397-413 (1983) (approving nearly identical test 

under National Labor Relations Act.)· 

The record shows that Mr. Jaimes was hired by Stansley Minerals in April 2007, as a loader 

operator/customer service representative, loading semi-trucks and checking them in and out of the 

mine. A month or two after he was hired, he was transferred to the mine at issue where he operated 

the 30-ton No. 4 haul truck. Jaimes was discharged on September 19, 2007, following verbal and 

written warnings issued as a result of several vehicular accidents (Exhibits R-1,R-2, and R-3). 

These incidents were summarized by Respondent's president, Richard Stansley, as follows: 

On 6/20/2007, Mr. Jaimes was involved in a haul truck rollover accident exposing his coworkers and himself to unwarranted hazardous condition [sic] which could have resulted in 

loss of life or limb. The accident resulted in substantial damage to the equipment and lost 

production time. The disciplinary action included verbal discussion and a written warning. 

On 8/31/2007, Mr. Jaimes was involved in a backing incident where he was in a haul truck 

that was backed into by a co-worker. After an investigation and review of witness 

statements, it was found that Mr. Jaimes [sic] actions contributed to the accident which was 

found to be avoidable. The accident exposed his co-workers and himself to unwarranted 

hazardous condition [sic] which could have resulted in loss of life or limb. The accident 

resulted in substantial damage to the equipment and lost production time. The disciplinary 

action included verbal discussion and a written warning. 

On 09/i 8/2007, Mr. Jaimes was involved in a second haul truck rollover accident exposing 

his co-workers and himself to unwarranted hazardous condition [sic] which could have 

resulted in loss oflife or limb. The accident resulted in substantial damage to the equipment 

and lost production time. The incident resulted in termination of employment. 

(Exhibit R-18) 

At hearings, Jaimes acknowledged that, prior to his discharge, he did not in fact make any 

complaints about his alleged lack of training and the alleged absence on September 18, 2008, of a 

berm at the accident site. He clarified and amplified his other allegations of protected activity as 

31 FMSHRC 239 
follows: (1) beginning in early August of 2007, he reported on an almost daily basis on his daily 

vehicle reports that tbe tire treads on the No. 4 truck were "in very bad shape", (2) that two or three 

times he verbally told his supervisor, Mr. Francis Tandoh, that he needed new tires, (3) that he 

reported in his daily vehicle reports that he had a leaking wheel cylinder, and (4) that he reported to 

his supervisor that other employees were acting irresponsibly by "playing chicken" and using their 

cell phones (Tr.42-43). 

Ti.re Complaints 

There is no dispute that Mr. Jaimes frequently reported on his daily vehicle, reports, 

complaints about the tires on his haul truck. (See Exhibit R-15). Mr. Jaimes' supervisor, Francis 

Tandoh, holds a university degree in mining engineering and is experienced in the mining industry. 

Tandoh testified that he was aware of Jaimes' complaints regarding the condition of the tread on the 

tires of his haul truck. As a result of these complaints Tandoh inspected the tires himself and 

brought in an outside contractor to examine the tires. Both found the.tires to be in safe condition. 

Jaimes also acknowledged that on August 30, 2007, MSHA performed a complete inspection at the 

mine and that no citations were issued. Jaimes admitted that even though the MSHA inspector 

examined his truck he (J aim.es) did not report any problem with his tires. On the daily inspection 

report earlier that same date, Jaimes had reported several defects i.e. "Tires Damage/Low" and 

"Body, Blade, Bucket" (Exhibit R-15). 

Mr. Tandoh testified that the same tires remained on the No. 4 haul truck following the 

MSHA inspection and even after Mr. Jaimes' discharge on September 19, 2007. According to 

Tandoh, when an employee reports a safety condition, it is Tandoh's obligation to make sure it is 

corrected. Tandoh maintained that he does not interfere with the employees' right to report 

conditions the employee feels are unsafe. Tandoh checks out those conditions but if found not to 

be unsafe he, in essence, does nothing further. Tandoh testified that he made no recommendation 

as to whether Jaimes should be discharged following his third accident on September 18, 2007. It 

was his opinion, however, that.Jaimes was not competent to operate. either the front end loader or 

the haul truck. According to Tandoh, Jaimes was a safety risk to himself and others. 

Complaints about a leaking wheel cylinder 

Jaimes testified that he had a leaking wheel cylinder on his haul truck but did not know 

whether it affected safety. The leaking wheel cylinder was apparently reported on his daily 

inspection reports under the category "Body, Blade, Bucket (Exh. R-15). 

Jaimes' supervisor, Mr. Tandoh, testified that he was aware of the oil leak of which Jaimes 

was complaining but testified, without contradiction, that it was, in fact, not a safety issue and that 

they maintained the appropriate level of oil on the No. 4 haul truck. Under the circumstances, I do 

not find that Jaimes' complaint regarding a leaking wheel cylinder was a protected activity under the 

Act. 

31 FMSHRC 240 
Complaint about employees acting irresponsibly 

In this regard, Jaimes testified that, about a week before his accident on September 18, 2007, 

he had complained to Mr. Tandoh about other employees acting irresponsibly in using cell phones 

in violation of company policy and trying to race other truck drivers into line.(Tr. 42-43). 

Significantly, Mr. Jaimes failed to cite this allegation in his complaint to MSHA and in his complaint 

to this Commission, and, since Mr. Tandoh credibly testified that he received no such complaints 

from Jaimes, I give no weight to the allegation. 

Analysis 

As previously noted, the mine operator may rebut a prima face case of discrimination by 

showing that the adverse action, (in this case Mr. Jaimes discharge on September 19, 2007), was in 

no part motivated by the protected activity. In this regard this Commission observed in Chacon v. 

Phelps Dodge Corp., 3 FMSHRC 2508(November1981) that "[d]irect evidence of motivation is 

rarely encountered; more typically, the only available evidence is indirect." The Commission 

considered in that case the_following circumstantial indicia of discriminatory intent: knowledge of 

protected activity; hostility toward protected activity; coincidence of time between the protected 

activity and the adverse action; and disparate treatment. · 

Richard Stansley, president of Stansley Minerals, testified at hearings that Jaimes was 

tenninated on September 19, 2007, because of his unsafe operation of the haul truck. Stansley 

testified, and it is undisputed, that Jaimes was involved in three accidents prior to his discharge and 

had twice before been issued verbal and written warnings(Exhibits R-1, R-2 and R-3). These 

warning reports confirm the credible testimony of Jaimes' supervisor, Francis Tandoh, that Jaimes 

was not competent to operate the haul truck. Tandoh opined that Jaimes was indeed a safety risk to 

himself and others. I find that the asserted unprotected grounds for Mr. Jaimes discharge to be 

credible and convincing and, in the absence of any evidence of hostility toward Jaimes' protected 

activity or other improper motivation by Stansley Minerals, I conclude that Mr. J aimed would have, 

in any event, failed to establish that his discharge was motivated in any part by his protected activity. 

Even assuming, arguendo, that Jaimes' discharge was motivated in part by his protected 

activity, it is clear that the operator would have successfully affirmatively defended by establishing 

that the adverse action would have been taken in any event on the basis of Jaimes' unprotected 

activity alone. Under all the circumstances, I conclude that Mr. Jaimes would not, in any event, have 

met his burden of proving that his discharge was in violation of Section 105(c)(l) of the Act, and 

his complaint must, for this additional reason, be dismissed. 

31FMSHRC241 
ORDER 

Discrimination. complaint Docket No. LAKE 2008-486-DM is hereby dismissed. 

Distribution: (Certified Mail) 

Gary Melick 

Administrative Law Judge 

202-434-9977 

Richard Jaimes, 2712 Lenawee Hills Highway, Adrian, MI 49221 

Richard Stansley, Stansley Minerals Resources, 5648 N. Main Street, Sylvania, OH 43560 

/lh 

. 31 FMSHRC 242 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577 /FAX 303-844-5268 

POWDER RIVER COAL, LLC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

POWDER RIVER COAL, LLC., 

Respondent 

February 4, 2009 

DECISION 

CONTEST PROCEEDINGS 

Docket No. WEST 2007-898-R 

Citation No. 7610571; 08/24/2007 

Docket No. WEST 2007-899-R 

Citation No. 7610725; 08/24/2007 

North Antelope Rochelle Mine 

Id. No. 48-01353 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2008-242 

A.C. No. 48-01353-130970-01 

Docket No. WEST 2008-243 

A.C. No. 48-01353-130970-02 

North Antelope Rochelle Mine 

Appearances: Karen L. Johnston, Esq., Jackson Kelly PLLC, Denver, Colorado, 

for Powder River Coal, LLC; 

Before: 

GregoryW. Tronson, Esq., Office of the Solicitor, U.S. Department 

of Labor, Denver, Colora~o, for the Secretary of Labor. 

Judge Manning 

These cases are before me on two notices of contest filed by Powder River Coal, LLC 

("Powder River") and two petitions for assessment of civil penalty filed by the Secretary of 

Labor, acting through the Mine Safety and Health Administration ("MSHA") pursuant to 

sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 

820 (the "Mine Act"). Powder River contested eight citations in these proceedings. An 

evidentiary hearing was held in Denver, Colorado. The parties introduced testimony and 

documentary evidence and filed post-hearing briefs. 

31 FMSHRC 243 
Powder River operates the North Antelope Rochelle Mine, a large open-pit coal mine in 

Campbell County, Wyoming. Just prior to the hearing, the parties agreed to settle four citations. 

The Secretary agreed to vacate Citation No. 7610571. The Secretary also agreed to reduce the 

gravity in Citation No. 7610570 from "fatal" to "permanently disabling" and Powder River 

agreed to pay a penalty of$1,684.00. Powder River agreed to withdraw its contest of Citation 

Nos. 7610731 and 7610640. Finally, Powder River agreed to the terms and conditions set forth 

in paragraph 6 of the parties' motion to approve partial settlement. 

I. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

A. Citation No. 7610725, Testint= Conveyor Pull Cord Switches. 

On August 24, 2007, Inspector Wayne Johnson issued Citation No. 7610725 under 

section 104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 77.502-2 as follows: 

The examinations and tests required under the provision of this 

section 77:502 shall be conducted at least monthly. The mine has 

not examined and tested monthly pull cord inspections. 

The inspector determined than an injury was unlikely but that any injury would likely be 

pennanently disabling. He determined that the violation was not of a significant and substantial 

nature ("S&S") and that the company's negligence was high. Section 77.502-2 provides that the 

"examinations and tests" required by section 77.502 shall be conducted "at least monthly." 

Section 77.502 provides, in part, that "[e]lectric equipment shall be :frequently examined, tested,· 

and properly maintained by a qualified person to assure safe operating conditions." The 

Secretary proposes a penalty of $643 .00 for this citation. 

A pull cord switch is a shut off device used along conveyors. (Tr. 12; Exs. G-3, G-4). 

The pull cords are set up along walkways next to the conveyor and they can be activated 

('1Julled") in an emergency to stop the belt from running. The switch is activated by pulling the 

cord. When the cord is pulled, a signal is sertt to the computer in the control room and that 

section of the conveyor is instantly shut down. Other sections may also be sequentially shut 

dQwn so that coal does not continue to run and spill off the belt. Inspector Johnson estimated 

that there are several hundred pull cord switches in the mine. (Tr. 14). 

Inspector Johnson inspected the pull cords because a miner filed a safety complaint with 

MSHA. He testified that he spoke to several employees and managers regarding the allegations 

of the complaint. (Tr. 15). He was told that the mine only performs a visual inspection of the 

pull cord switches on the daily walk-around examinations and during the monthly electrical 

inspection. Inspector Johnson testified that a :functional test must be performed in order to 

determine if the activating arm on the switch is operating properly. If the activating arm is 

frozen, the conveyor will not shut down when the cord is pulled. (Tr. 16-17). He spoke with 

31 FMSHRC 244 
Donnie Blackburn, a team leader and electrician for Powder River, and was told that the mine 

never shuts down conveyors to test pull cord switches. 

Inspector Johnson said that he discussed the methods of testing pull cord switches with 

several other mine operators. He testified that these operators told him that they include a 

monthly switch functional test in their inspection. (Tr. 19). The inspector believes that the safety 

standard requires that a functional test be included as part of the monthly inspection of all 

switches in the mine. He said that it is not necessary that the conveyor be running when the 

functional test is conducted. The main purpose of the test would be to make sure that the 

activating arms are functional and not frozen. (Tr. 21). A miner in the control room would be 

able to determine if the switch has been activated for a particular belt. The company's on-shift 

report recorded problems with pull cord switches, including stuck switches, that were repaired. 

(Tr. 23-24; Ex. G-5). A review of the inspection books after the citation was issued indicates that 

several pull cords needed to be repaired by an electrician. 

The inspector determined that the violations were the result of Powder River's high 

negligence because mine managers were not able to recall ever conducting a complete functional 

test on the switches. (Tr.-26). In Inspector Johnson's opinion, a defective condition would not 

be discovered by a visual inspection as one could not tell just by looking at the switch whether it · 

was working properly. 

On cross-examination, Inspector Johnson discussed his interpretation of section 77.502. 

He stated that the term "examine" in the safety standard means a visual inspection while the term 

"test" means a functional test. (Tr. 34). It is his understanding that employees of Powder River 

walk along the conveyor systems to look at the pull cords to ensure they are connected and to 

look for visible abnormalities. This examination would include looking at both sides of the 

switch to make sure all electrical components are connected. (Tr. 38). 

Blackburn testified on behalf of the company. Blackburn has been employed by Powder 

River for 16 years and has been the electrical team leader for one year. He is an MSHA certified 

electrician. His job duties include overseeing all the electrical equipment and personnel at the pit 

and the plant. (Tr. 88). Blackbum explained that the pull cord system at the mine is installed at 

unguarded portions of the conveyor and is used throughout the mine. The pull cord switches are 

made by different manufacturers, but they use the same general system and setup. (Tr. 91 ). 

There are approximately 35,000 feet of conveyor pull cords throughout the mine. He described 

the pull cord system as having two components to it: (1) the aircraft cable that runs through metal 

posts mounted on the conveyor, and (2) the switch. The cables loop through the indicator arm on 

the switch. (Tr. 93). He explained that the system is wired in a fail-safe manner. When a switch 

is pulled a signal is sent to the computer which instantly shuts down the conveyor. There is a 

redundancy built into the system. 

Taking into consideration manufacturers' recommendations, the mine has the switches 

placed about 185 feet apart making the total number of switches in the mine between 200 and 

31 FMSHRC 245 
250. (Tr. 95). Blackburn stated that the computer.system monitors the circuits so ifthe electrical 

circuit in the pull cord switch fails, then the conveyors are automatically shut down and they 

cannot be restarted until repairs are made. (Tr. 95). 

The Conveyor Components Company is the manufacturer of the most recently installed 

pull cord system. It recommends testing once installation is complete to make sure that the 

switches are mounted correctly and operating properly. However, there is no recommended 

testing after that point.· (Tr. 97). After the initial installation, the system was checked by 

physically pulling on the cord to make sure it was operating. The cables were checked to assure 

they were in place and that all parts were mounted correctly. The system was also checked by 

pulling each pull cord and matching it with the computer to show that the proper switch was 

tripped. Blackburn said that this test is only required when a pull cord system is first installed. 

(Tr. 97). He has not performed a functional test for the purposes of complying with section 

77.502-2 and has not directed anyone else to perform this test. He feels that the functional test is 

unnecessary as the computer system monitors the electrical system 24 hours a day and ther~ is a 

person in the control room at all times. (Tr. 98). He believes that Powder River complied with 

the standard by conducting a visual inspection. The electrical team inspects the area as do the 

on-shift supervisor and ori-shift technician on a daily basis. Any problems are recorded in the log 

books. (Tr. 100). If there is a problem, a work order is generated and the problem is corrected. 

Blackburn stated that he has never been told by an MSHA inspector that a functional test of the 

pμll cord system needed to be performed on a monthly basis. (Tr. 101). He has also spoken with 

other mines and they stated that they do not perform monthly functional tests. (Tr. 103). 

Blackburn testified that JnspectorJohnson permitted Powder River to conduct the test 

with the belts stopped as the equipment is not meant to be started so many times in a short period 

of time. (Tr. 108). Inspector Johnson watched in the computer room while the cords were pulled 

and saw that they were functioning properly. Blackburn does not feel that the system should be 

tested on a monthly basis as it is designed to be used in emergency situations only and the life of 

each switch would be shortened if it were tested monthly. (Tr. 111 ). 

Michael Stephens, production manager for the plant, also testified on behalf of the 

company and he reiterated much ofBlackburn's testimony. (Tr. 127-146). He has been 

employed by the company for 24 years and has held his current position since February 2008. 

Given the complexity of the conveyor system, he estimated that it would take at least one full.day 

to test all of the pull cord switches at the mine in the manner initially required by Inspector 

Johnson. (Tr. 129). After negotiation with the inspector, the conveyor system was shut down 

and mine employees pulled each switch as someone made sure that a signal was being received 

by the computer in the control room. (Tr. 132). 

The Secretary argues that the plain language of the safety standard requires more than a 

visual inspection of electrical equipment. The standard clearly provides that a "test" is required. 

The pull cord switches are not tested when miners merely examine them. If a switch handle is 

stuck in place, pulling on the_ cord will not activate the switch. This defect cannot always be 

31 FMSHRC 246 
detected by a visual inspection. She also maintains that her interpretation of the standard is 

reasonable because it is consistent with the language and purpose of the standard. As such, her 

interpretation is entitled to deference by the Commission. 

Powder River contends that it has never been advised by MSHA, during all of the years 

that the mine has been inspected, that it must physically pull each and every pull cord switch on a 

monthly basis in order to comply with the safety standard. It argues that the electrical 

examination standard does not apply to pull cord systems and the citation should be vacated. 

Powder River also argues that its method of monitoring and inspecting the pull cord system 

makes a functional test unnecessary. The electrical portion of the pull cord system is monitored 

by the computer at all times, the computer control room is manned at all times, and the 

mechanical portion of the pull cord system can be effectively inspected visually. The inspector 

failed to recognize that the "electronics" in the pull cord system is being constantly monitored by 

the computer and that the system shuts down if it is not working properly. (P.R. Br. 15). "The 

pull cord system is designed to be pulled on an as-needed basis and, much like a sprinkler system 

in an office building, its computer monitoring system is sufficient to advise when an electrical 

problem exists." Id. The pull cord switches were not designed to be regularly pulled with the 

result that repeatedly performing the test required by the inspector would shorten their lives. The 

on-shift examinations performed at the mine are adequate to note any mechanical problems with 

the switches. 

Powder River also maintains that it was not put on notice that the cited standard requires 

the operator to perform a functional test of the pull cord system on a monthly basis as part of the 

electrical equipment examination. A reasonably prudent person familiar with the mining 

industry and the protective purposes of the standard would not have recognized that a functional 

test was required. See Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). Powder River 

had never been cited for a violation of the standard because it failed to perform a functional test, 

notwithstanding the fact that the conveyor system contains between 200 and 250 pull cord 

switches along 35,000 feet of cord. MSHA inspectors have also regularly reviewed the 

company's record of electrical examinations. Blackburn also testified that he talked to other coal 

mine operators in Wyoming's Powder River Basin and was advised that these mines also have 

not been required to perform functional tests on pull cord switches. Finally, Powder River 

contends that the placement of the safety standard within the standards for electrical equipment 

indicates that section 77.404 is concerned with electrical issues rather than mechanical problems 

with a switch. 

Where the language of a regulatory provision is clear, the terms of that provision must be 

enforced as they are written unless the regulator clearly intended the words to have a different 

meaning or unless such a meaning would lead to absurd results. Dyer v. United States, 832 F.2d 

1062, 1066 (9th Cir. 1987) (citations omitted); see also Utah Power & Light Co., 11 FMSHRC 

1926, 1930 (Oct. 1989) (citations omitted); Consolidation Coal Co., 15 FMSHRC 1555, 1557 

(Aug. 1993). In the absence of a regulatory definition or technical usage of a word, the 

Commission would normally apply the ordinary meaning of the word. See Bluestone Coal Corp., 

31FMSHRC247 
19 FMSHRC 1025, 1029 (June 1997); Peabody Coal Co., 18 FMSHRC 686, 690(May1996), 

affd, 111F.3d963 {D.C. Cir. 1997) (table). 

If, however, a standard is ambiguous, courts have deferred to the Secretary's reasonable 

interpretation of the regulation. See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 

(O.C. Cir. 1994); accord Sec'y of Labor v. Western Fuels-Utah, Inc., 900 F.2d 318, 321 {D.C. 

Cir. 1990) ("agency's interpretation ... is 'of controlling weight unless it is plainly erroneous or 

inconsistent with the regulation'") (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 

414 {1945) (other citations omitted)). The Secretary's interpretation of a regulation is reasonable 

where it is "logically consistent with the language of the regulation[] and ... serves a permissible 

regulatory function." General Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) {citation 

omitted). 

The safety standard provides that "[ e ]lectric equipment shall be .frequently examined, 

tested, and properly maintained by a qualified person to assure safe operating conditions." The 

Secretary's regulations do not define the term "electric equipment" and they do not indicate what 

is meant by "examined, testecl, and properly maintained." As a consequence, I find that the · 

safety standard is not clear on its face. It is particularly ambiguous when applied to pull cord 

switches along conveyor systems. 

The next issue is whether the Secretary's interpretation of the safety standard is 

reasonable. As stated above, the Secretary's interpretation is reasonable if it is logically 

consistent with the language of the regulation and serves a permissible regulatory function. The 

Secretary interpreted this safety standard in her Program Policy Manual as follows: 

For purposes of this section, "electric equipment" shall include.all 

control circuits, coiltrol switches or devices, circt,rit breakers, fuses, 

conduits, wiring, motors, transformers, lighting equipment, handheld tools such as drills, wrenches, and saws, etc. The tests, 

examinations, and proper maintenance required by this section 

shall include all items mentioned above and all other such 

equipment at the mine. 

(V MSHA, U.S. Dep't of Labor, Program Policy Manual, Part 77) (PPM). This interpretation is 

consistent with the position the Secretary took at the hearing in that "control circuits" and 

"control switches" are included in the definition in the PPM. I find that the Secretary's decision 

to include "switches" in the definition of electric equipment in the PPM is reasonable and 

consistent with the language of the safety standard. See, U.S. Steel Mining Co.,. Inc., 15 

FMSHRC 1541, 1543-44 (Aug. 1993). As a consequence, I also find that the subject pull 

switches are covered by the safety standard. 

The Secretary's PPM does not provide any guidance with respect to the phrase 

"examined, tested, and properly maintained" used in the safety standard. In the present citation, 

31 FMSHRC 248 
there is no allegation that the switches were not properly maintained. The term "examine" is 

defined as "to closely inspect, to test the condition of' and the term "test" is defined as "a critical 

examination, observation, or evaluation." (http://www.merriam-webster.com/dictionary). By 

themselves, these definitions do not provide much guidance. 

The.preponderance of the evidence clearly shows that the pull switches were inspected on 

a daily and monthly basis by various people. Every day, the on-shift supervisor inspects the pull 

cord system and an on-"shift plant technician performs a safety check. {Tr. 98-99, 135-38, 140-

44). These inspections include a visual examination of the cable, cable attachments, and the 

mechanical parts of the switch. The tension on the cable tension is checked and adjusted as 

necessary. The electrical department also performs a visual inspection of the system on a 

monthly basis and documents these inspections in the electrical exam log book, as required by 

the safety standard. (Tr. 99-100, 136). This inspection makes sure that the pull cable is properly 

supported and tight, the electrical connectors going into and out of the electrical switches are 

properly secured, the covers on the switches are secured, and that all components are properly 

mounted. (Tr. 105-06). In addition, the electrical components in the pull cord system are 

continuously monitored by the computer system for the conveyors. If the electrical circuit for a 

pull cord switch fails for any reason, the conveyor belt automatically shuts down and cannot be 

restarted until the problem is corrected. (Tr. 93-96, 106-07, 130, 144-45). Each pull cord switch 

is enclosed in a sealed box so the switch itself cannot be physically examined, but the electrical 

system is being monitored by the computer at all times and an employee is in the control room at 

all times. 

It is not clear that Inspector Johnson was aware that the electrical components are 

continuously monitored by the computer system. Nevertheless, the Secretary takes the position 

that each switch must be pulled into an open position to see if such action registers on the 

computer. She argues that the standard requires Powder River to test all 200 plus pull cord 

switches in this manner on a monthly basis and record the results in the electrical examination 

book. The Secretary argues that without a functional test, there is no way for the operator to 

determine if the activating arm for a switch is frozen in place, which would prevent the conveyor 

from shutting down during an emergency. (Tr. 17, 24). Inspector Johnson testified that he has 

observed activating arms that do not function because they are stuck and Will not move when the 

pull cord is yanked. 1 (Tr. 40-41). Stephens and Blackburn acknowledged that the computer 

monitoring system will not detect a stuck activating arm and that a visual inspection will also not 

indicate if an arm is stuck. (Tr. 121, 139, 156). 

I find that the Secretary's interpretation of section 77.512 requiring a monthly functional 

test is reasonable in this instance. Powder River "closely inspects" the pull switches on at least a 

1 Inspector Johnson also argued that a functional test is required because, during a 

previous inspection of the mine, a pull cord came completely out of its attachment point when 

pulled. (Tr. 26). A competent visual inspection and examination would be able to detect such a 

defect in the pull cord system. 

31 FMSHRC 249 
monthly basis. By monitoring the electrical components, the mine's computer system "tests the 

condition of' the pull cord switches on a continual basis. Taken together, the daily inspections, 

monthly electrical inspections, and the computer monitoring system constitute a "critical 

examination, observation, and evaluation" of the pull cord switches. As a consequence, these 

switches were "frequently examined, tested and properly maintained by a qualified person to 

ru;sure safe operating conditions," except that the activating arms were never tested to make sure 

they were not stuck in place. The Secretary established that requiring the mine operator to 

examine and test the pull cord switches to ensure that the activating arms work "serves a 

permissible regulatory function" and is consistent with the purposes of the Mine Act. I need to 

point out, however, that Powder River may be able to determine whether the activating arms are 

frozen in place without having to shut down the conveyor system or perform the test in the exact 

manner required by Inspector Johnson. 

Powder River also argues that it did not have adequate notice that the safety standard 

required it to perform a functional test of the pull cord system on a monthly basis as part of the 

electrical equipment examination. Where the imposition of a civil penalty is at issue, 

considerations of due process prevent the adoption of an agency's interpretation "from validating 

the application of a regulation that fails to give fair warning of the conduct it prohibits or 

requires." Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir" 1986) (citations omitted). 

An agency's interpretation may be permissible but nevertheless may fail to provide the notice 

required to support imposition of a civil penalty; See Gen. Elec., 53 F.3d at 1333-34; Phelps 

Dodge Corp. v. FMSHRC, 681F.2d1189, 1193 (9th Cir. 1982); Phelps Dodge Tyrone, Inc., 30 

FMSHRC 646, 656 (Aug. 2008). 

. In order to avoid due process problems stemming from an operator's asserted lack of 

notice, the Commission has adopted an objective measure (the "reasonably prudent person" test) 

to determine if a condition is violative of a broadly worded standard. That test provides: 

[T]he alleged violative condition is appropriately measured against 

the standard of 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 (Dec. 1982); see also Asarco, Inc., 14 

FMSHRC 941, 948 (June 1992). As the Commission stated in Ideal Cement Co., 12 FMSHRC 

2409, 2416 (Nov. 1990), "in interpreting and applying broadly worded standards, the appropriate 

test is not whether the operator had explicit prior notice of a specific prohibition or requirement," 

but whether a reasonably prudent person would have ascertained the specific prohibition of the 

standard and concluded that a hazard existed. The "reasonably prudent person" is based on an 

"objective standard." US. Steel Corp., 5 FMSHRC 3, 5 (Jan. 1983). 

31 FMSHRC 250 
In Alan Lee Good d/b/a Good Construction, 23 FMSHRC 995 (Sept. 2001) ("Good 

Construction"), the opinion of Commissioners Jordan and Beatty included the following 

analysis: 

In applying the reasonably prudent person standard to a 

notice question, the Commission has taken into account a wide 

variety of factors, including the text of a regulation, its placement 

in the overall enforcement scheme, its regulatory history, the 

consistency of the agency's enforcement, and whether MSHA has 

published notices informing the regulated community with 

"ascertainable certainty" of its interpretation of the standard in 

question. Also relevant is the testimony of the inspector and the 

operator's employees as to whether the practices affected safety. 

Finally, we have looked to accepted safety standards in the field, 

considerations unique to the mining industry, and the 

circumstances at the operator's mine. 

23 FMSHRC 1005 (citations and footnote omitted). 

To support its argument, Powder River relies on the fact that it had never been cited for 

not conducting a functional test. The North Antelope Rochelle Mine is one of the largest surface 

coal mines in the United States and it has an extremely large conveyor system. MSHA has a 

field office in Gillette and the mine has been inspected by MSHA on a regular basis. MSHA 

inspectors regularly inspected the conveyor system and reviewed Powder River's electrical 

examination records. Nevertheless, no MSHA official has ever mentioned that the mine was 

required to pull every pull cord switch in the mine as part of its monthly examination of electrical 

equipment. After it received this citation, Blackbum contacted electrical supervisors at several 

large coal mines in Wyoming's Powder River Basin. He talked to electrical supervisors at 

Peabody Energy's Rawhide and Caballo mines, Big Sky Energy's mine, Thunder Basin's Black 

Thunder Mine, and Rio Tinto Energy's mine. (Tr. 102-03). These electrical supervisors are 

responsible for overseeing compliance with MSHA's electrical standards and would have 

knowledge of electrical examination practices used at their respective mines. (Tr. 103). These 

individuals advised Blackbum that they did not perform functional tests of the pull cord switches 

as part of their monthly electrical examinations and that MSHA had never advised them that they 

were required to do so. Powder River also relies on the placement of the standard in the 

regulations dealing with electrical issues. The functional test required by Inspector Johnson is 

really designed to address mechanical rather than electrical problems with the pull cord switches. 

Finally, Powder River points out that MSHA has not issued any interpretive material that would 

provide notice to the regulated community that functional tests of pull cord switches is required 

under the safety standard. 

I vacate this citation because the Secretary failed to provide fair notice of the · 

requirements of this standard with respect to pull cord switches. Although the Secretary's broad 

31FMSHRC251 
interpretation of the standard is reasonable, she failed to give adequate notice that each pull cord 

must be pulled on the monthly basis to make sure that each switch is functioning properly and is 

not stuck in position. A reasonably prudent person familiar with the mining industry and the 

protective purposes of the standard would not necessarily recognize that this functional test was 

required, given the visual inspections that were performed and the computerized electrical 

monitoring system that was in use at the mine. ·The text of the safety standard is broadly written 

and does not describe what testing is required in this context. The agency's PPM does not 

provide any guidance on this issue and the Secretary has not issued any other interpretive 

materials. Powder River has been mining atthis location since the mid-1980s and MSHA has 

never advised the company that the safety standard requires a functional test of each pull switch. 

In addition, it appears that other mines in the area have likewise not been required to perform 

such tests. It appears that the Secretary has not consistently interpreted this safety standard to 

require a functional test of each and every pull cord switch at coal mines in the United States on a 

monthly basis.2 Consequently, this citation is vacated. 

B. Citation No. 7610727, Accumulation of Coal at the Top ofa Silo. 

On August 26, 2007, Inspector Wayne Johnson issued Citation No. 7610727 under 

section 104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 77.1104 as follows: 

Combustible materials (coal.fines and chunks) were allowed to 

accumulate where they can create a fire hazard on the S-3 belt on 

the West sample system, on top of silo 3. Two sets oftroughing 

idlers were observed turning in coal. Accumulations were 

measured from under the rollers up to 8 inches deep for the length 

of two feet along the rollers. The coal was within 3 feet of the tail 

pulley and dry.to the touch. The examinations and tests required 

under the provision of this section 77.502 shall be conducted at 

least monthly. .The mine has not examined and tested monthly pull 

cord inspections. 

The inspector determined than an injury was reasonably likely and that any injury would 

likely be permanently disabling. He determined that the violation was S&S and that the 

company's negligence was moderate. The safety standard provides that "[ c ]ombustible materials 

... shall not be allowed to accumulate where they can create a fire hazard." The Secretary 

proposes a penalty of $1, 795. 00 for this citation. 

2 Inspector Johnson testified that he is aware of other coal mines that perform functional 

tests on pull cord switches on a monthly basis, but his testimony was rather vague. (Tr. 19, 42-

44). Nevertheless, even if some mines perform a functional test, it is clear that MSHA's 

interpretation of the standard has been neither clear nor consistent. 

31 FMSHRC 252 
fuspector Johnson observed coal eight inches deep for a length of two feet along the 

rollers under a sample system belt within three feet of the tail pulley. The accumulation was dry 

to the touch; and posed a fire and/or smoke inhalation hazard. (Tr. 28). The coal was located on 

top of the silos in an enclosed building. The conveyor was running at the time and the rollers 

were turning in the coal. This violation was designated as S&S as the inspector felt it was 

reasonably likely that the condition would contribute to a hazard where there is foreseeable 

potential for illness or injury if not corrected. Inspector Johnson was particularly concerned 

about a smoke inhalation hazard that could occur due to the equipment turning in the coal. 

After the condition was discovered, Inspector Johnson spoke with Lynn Snyder, step-up 

supervisor, and he learned that the accumulation was present for at least three hours. He also 

learned from miners that they wash down the facilities every three hours. {Tr. 29). To terminate 

the citation, the company washed off the accumulation. (Tr. 31 ). 

Michael Stephens, who was the production manager for the plant, testified on behalf of 

the company. He stated that the accumulation cited was located at the S3 belt which is the last 

belt in the system where a sample is taken. (Tr. 147). Before reaching this point, the coal went 

through a hammer mill where it was crushed to eight mesh making it between 85 and 95 percent 

eight mesh. Eight mesh coal is similar to the size of coffee grounds. Stephens would not 

characterize it as coal dust but it was similar to coal fines. He explained that generally eight 

mesh coal is less combustible than coal dust. (Tr. 148). ·He did not feel the citation was 

warranted as there was no heat source present. The citation alleged there were idlers present. 

Idlers are rollers with bearings that support the moving belt in a V position to keep the coal in the 

center of the belt. The belt moves at a rate of about 17 feet per minute making it a slow-moving 

belt. (Tr. 149). ·He stated that when the belt comes into contact with the idlers there is little 

friction created and.little heat generated. He does not believe it would be enough to ignite the 

coal fines. 

Several employees continuously wash down the three floors of the silo. These employees 

start at the top and work their way down to the bottom and then start over again. (Tr. 152). The 

cleanup cycle takes about three hours. The inspector testified that the employees had started 

cleaning the top level again when he issued the citation (Tr. 52). 

The Secretary argues that she is only required to establish that there were sufficient 

accumulations present to create a fire hazard or add to a fire hazard if an ignition source were to 

be introduced. Here the accumulation was substantial and was near the tail pulley. The 

accumulation had existed for several hours and was at least partially dry. Finally, the idler rollers 

were turning in the accumulation, which had the potential to heat the coal dust to the ignition 

point. 

Powder River maintains that the plain language of the standard provides that an 

accumulation is permitted, at least for short periods of time, as long as a fire hazard is not 

created. Where the Secretary is unable to establish an ignition source, there is no violation of the 

31 FMSHRC 253 
standard. In this instance there was no ignition source in the area. The turning idlers were not an 

ignition source because the belt moved so slowly thatheat would not be created. There were no 

other ignition sources in the area. The accumulation did not create a fire hazard. In addition, the 

spill was partially wet and no coal dust or float coal dust was present. 

I find that the Secretary established a violation of section 77 .1104. The Secretary is not 

required to show that an ignition or explosion was reasonably likely to occur. Pittsburg & 

Midway Coal Mining Co., 15 FMSHRC 2250 (Nov.1993). She is only required to show that it 

is possible that the accumulation would create a fire. The phrase "create a fire" in the standard is 

best interpreted broadly because, otherwise, the Secretary will never be able to establish a 

violation. I find that at least one ignition source was present and it was possible that the presence 

of the accumulation could create conditions in which a fire could be propagated. The term "fire" 

may include the smouldering of coal fines where flames are not present. See Phelps Dodge. 

Tyrone, Inc., 30 FMSHRC 646, 657, 663-64 (Aug. 2008). Although it was not reasonably likely, 

it was possible that the turning rollers could generate enough heat to start a fire. 

I find, however, that the Secretary did not establish that the violation was S&S. A 

violation is classified as S-&S "if based upon the facts surr()unding the violation, there exists a 

reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature." National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). ht 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out a four-part test for 

analyzing S&S issues. Evaluation of the criteria is made assuming "continued normal mining 

operations." U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The question of 

whether a particular violation is S&S must be based on the particular facts surrounding the 

violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988). The Secretary must establish: (1) the 

underlying violation of the safety standard; (2) a discrete safety hazard, a measure of danger to 

safety, contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to 

wHI result in an injury; and ( 4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. The Secretary is not required to show that it is more probable than not 

that an injury will result from the violation. U.S. Steel Mining Co.; 18 FMSHRC 862, 865 (June 

1996). Although the Secretary established the first two elements, I find that the third and fourth 

elements of the Mathies test was not present in the case. Consequently, I modify the citation to 

delete the S&S determination. 

I also find that Powder River's negligence was low. The company had an established 

cleanup program and the cited accumulations would have been removed shortly after the 

inspector observed them. The accumulations had existed for less that three hours and the hazard 

created was not very great. Consequently, I reduce the level of negligence attributed to Powder 

River. A penalty of $300.00 is appropriate for this violation. 

31 FMSHRC 254 
C. Citation No. 7610574, Welding Operations That Were Not Shielded. 

On August 29, 2007, Inspector Todd Jaqua issued Citation No. 7610574 under section 

104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 77.408 as follows: 

Welding operations were not shielded to prevent injuries to the 

eyes to four persons working within ten feet of this operation in 

progress. The operations were to be performed for a full shift of 

ten hours. This poses burn type injuries to the eyes from flash 

and/or arc exposure. 

The inspector determined than an injury was unlikely but that any injury would likely be 

permanently disabling. He determined that the violation was not S&S and that the company's 

negligence was moderate. The safety standard provides that "( w ]elding operations shall be 

shielded and the area shall be well-ventilated." The Secretary proposes a penalty of $138.00 for 

this citation. 

Inspector Jaqua saw that welding operations were occurring as he and Inspector Scott 

Markve were driving to the mine office. The inspectors stopped their vehicle to inspect the 

welding operation because they did not see welding shields in place between the welder and 

·.other people in the area. The welder was using a welding stand to cut support for cable struts for 

a new conveyor. (Tr. 60). The welding work was being performed by an independent 

contractor. In addition to the welder, two contractor employees were standing about 10 to 20 feet 

from the welding operations. (Tr. 62). In addition, two Powder River employees were about 50 

feet away, over near the conveyor that was under construction. Inspector Jaqua found out from 

Scott Markve that the Powder River employees were there to instruct the contractors where to 

place the brackets on the conveyor. The conveyor was part of a new loadout facility that was 

being constructed. 

After observing the welding operations, Inspector Jaqua questioned the welder as to 

whether he was aware that he was required to have a shield between him and the other people. 

(Tr. 63). The welder nodded indicating that he was aware and pointed the inspector in the 

direction of his supervisor. 

Welding without a shield presents a hazard associated with flash burns to the eyes. 

Inspector Jaqua explained that the person doesn't even have to look directly into the welding 

operations or the flash arcs to be affected by the reflection. He felt that it would have been 

possible to have shields in the area as they are easy to install. (Tr. 66). Inspector Jaqua issued a 

citation to Powder River and to the independent contractor who was doing the fabricating work 

on the conveyor. 

Dave Hendricks, plant maintenance supervisor, testified on behalf of the company. He 

has been employed by the company for 22 years and has held his current job for 12 years. He 

31 FMSHRC 255 
stated that the welding was being performed by CCC Group which is a construction company 

that was installing the conveyor system. (Tr. 176). The welding was being performed in the 

southwest lay-down yard which is an area where all the pan sections, idlers, and iron were being 

stored for the new conveyor system. This area is not in an enclosed building, but rather out in the 

open. (Tr. 177). This area is not regularly used by Powder River employees, but the CCC 

contractors have done some work there. 

Hendricks and Kevin Johnson, an electrical technician, went out to the southwest laydown area around 8:00 a.m. on August 29, 2007, to take a look at the pan section and to 

determine where to run the electrical cable. (Tr. 177-178). They did not see the CCC Group 

employees welding at any time while they were in the area. (Tr. 180). Hendricks estimated that 

the end of the pan was about ten feet away from the CCC Group employees and the welding table 

was an additional ten feet away. (Tr. 184). Hendricks and Johnson were preparing to leave the 

area when two MSHA inspectors pulled up. Johnson·and Hendricks were not supervising the 

CCC Group workers on that day and stated that CCC Group management was responsible for 

their work. Hendricks stated that he was not exposed to any potential hazards such as flash burns 

because welding was not being performed while he was present. (Tr. 186). Hendricks also 

explained that welding could bave begun as he andJohnson were walking back to the truck but 

the conveyor pan would have been blocking their view so they would not have been exposed to 

any hazard. The violation was abated when the CCC Group employees put shields up without 

·help from Powder River employees. (Tr. 187). 

The Secretary argues that the safety standard is clear on its face when it states that 

welding operations shall be shielded. There are no exceptions to this requirement. Inspector 

Jaqua observed the welding and testified that there were people within 20 feet who were 

providing assistance to the welder. The welder told Jaqua that he was working a 10-hour shift 

and that he would be welding during that shift. Two Powder River employees were within 50 

feet of the welding operation. The Secretary also argues that it was appropriate for Inspector 

Jaqua to cite Powder River for the violation. Powder River employees were in the area and these 

employees were management officials. One of them was the plant maintenance supervisor. 

Hendricks testified that, although he did not see any welding flashes, it looked like the CCC 

Groups employees were getting ready to weld and he did not see any shields. Hendricks should 

have advised the CCC Group employees that a welding shield is required. As a consequence, he 

contributed to the violation. 

Powder River maintains that the lay.,..down yard is not an area where Powder River 

employees work on a regular basis. The area is a storage yard and an area where CCC Group 

occasionally works. When Hendricks and Johnson traveled to the area they walked around the 

pan section of the conveyor. ·Their position in relation to the welding work is illustrated on Ex. 

R~5. They did not observe any welding while they were in the vicinity of the CCC Group 

employees. They were near Hendricks' pickup truck when the MSHA inspectors arrived. 

Powder River argues that under the facts presented in this instance it was not appropriate for the 

Secretary to issue a citation to Powder River under her guidelines in her Program Policy Manual 

31 FMSHRC 256 
(IIIPPMPart 45-1). Powder River's employees were not exposed to the hazard and Powder 

River did not contribute to the existence of the hazard. It is clear that neither Hendricks nor 

Johnson observed any welding occurring while they were in the area. In addition, they were not 

exposed to the hazard and they did not contribute to the hazard. 

I find that the Secretary established a violation and that it was appropriate for the 

Secretary to cite Powder River as well as CCC Group for the violation. I have no difficulty 

finding that a shield was required under the safety standard. l note that the Secretary has broad 

"discretionary authority to cite the owner operator, the independent contractor, or both for 

contractor violations." Sec'y of Labor v. Twentymile Coal Co., 456 F.3d 151, 152 (D.C. Cir. 

2006). The guidelines set forth by the Secretary in the PPM are not binding on the agency. 

Brock v. Cathedral Bluffe Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1986). As a consequence, 

I examine the Secretary's decision to cite Powder River using an abuse of discretion standard. 

As stated above, the Secretary contends that Powder River violated two of the guidelines because 

its employees were exposed to the potential hazard and Hendricks contributed to the violation by 

failing to make sure that the welding operations were shielded. I find that the Secretary did not 

abuse her discretion when she determined that Powder River should also be cited for the 

violative condition. 

The Secretary determined that it was unlikely that an employee of Powder River would be 

injured by the violation. The two Powder River employees were to be in the lay-down area for a 

short period of time and they were not directly involved in the fabricating activities. As a 

consequence, I find that Powder River's negligence should be reduced slightly. ·A penalty of 

$130.00 is appropriate for this violation. · 

D. Citation No. 7610576, Frayed Cable on Back of a Haul Truck. 

On August 29, 2007, Inspector Todd Jaqua issued Citation No. 7610576 under section 

104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 77.210(a) as follows: 

Hitches and slings used to hoist materials [were] not suitable for 

handling the types of materials being hoisted on the Caterpillar 793 

haul truck. The two inch safety bed cable attached to the rear of 

the box was severely frayed at the cast eyelet. The truck was 

located in camp #4 fuel station. 

The inspector determined than an injury was unlikely but that any injury would likely be 

fatal. He determined that the violation was not S&S and that the company's negligence was 

moderate. The safety standard provides that "[h]itches and slings used to hoist materials shall be 

suitable for handling the type of materials being hoisted." The Secretary proposes a penalty of 

$425.00 for this citation. 

31 FMSHRC 257 
During his inspection, Inspector Jaqua observed a Caterpillar 793 haul truck located at the 

Camp Four fuel station with a frayed cable attached to the box of the truck. The cable was 

present so that the dump box could be secured when in a raised position in the event the 

hydraulics failed during repairs. When attached between the box and the frame of the truck, the 

c;;ible would prevent the box from falling. (Tr. 68). The truck was not tagged out for repair. The 

cable was severely frayed. 

Dave Wickett, safety supervisor, testified on behalf of the company. At the time of the 

inspection, the haul truck was not under repair and was not being used in a way that the cable 

would be needed. (Tr. 167). Instead, the truck was hauling dirt when the inspector asked to 

inspect the truck. The safety cable is never used while the haul truck is in production and it does 

not have anything to do with the operation of the equipment. Indeed, the driver of the haul truck 

would have no way to get to the cable because it is too high off the ground. A maintenance 

employee would inspect the cable before using it during repairs at the shop. This policy is in the 

company's safety handbook. (Ex. R-4). The cable would never· be used to support the dump box 

in the field. (Tr. 169). Because the cable serves no function while the truck is in production, 

company policy now provides that the cable be removed at the shop once all repairs are 

completed. 

I vacate this citation for two reasons. First, the cable was not a "hitch or sling used to 

hoist materials." It was a safety device used at the shop when the dump box needed to be in.a 

raised position during repairs. This safety device secures the dump box so that it does not fall in 

the event the hydraulic system and other safety devices fail while the box is raised during repairs. 

There is no evidence that the cable was ever used to hoist materials. Second, there is no evidence 

that the cable was used as a safety device while it was in the condition observed by the inspector 

or that it would ever be used in that condition. Mr. Wickett credibly testified that the cable is 

now removed from the back of the dump box before the truck leaves the shop because the 

movement of the truck causes the cable to bang against the truck thereby damaging it. This 

banging action may have frayed the cable in this instance. I credit Wickett's testimony that the 

mechanics in the shop would have used a different cable if the dump box needed to be kept in a 

raised position during repairs. This citation is vacated. 

II. APPROPRIATE CIVIL PENAL TIES 

Section l lO(i) of the Mine Act sets forth six criteria to be considered in determining 

appropriate civil penalties. Powder River is a large mine operator and its parent company 

(Peabody Energy) is also large. The record shows that the North Antelope Rochelle Mine was 

issued about 35 citations and orders in the 24 months prior to late August 2007. (Exhibit A to 

Petition for Penalty). The citations at issue in this case were rapidly abated in good faith. The 

penalties assessed in this decision will not have an adverse effect on the operator's ability to 

continue in business. My gravity and negligence findings are set forth above. Based on the 

penalty criteria, I find that the penalties set forth below are appropriate. 

31 FMSHRC 258 
III. ORDER 

Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

Citation No. 30 C.F.R. § 

WEST 2007-898-R, WEST 2007-899-R, WEST 2008-242 

7610570 

7610571 

7610725 

7610727 

7610731 

WEST 2008-243 

7610640 

7610574 

7610576 

77.205(b) 

77.516 

77.502-2 

77.1104 

77.1104 

77.1110 

77.408 

77.210(a) 

TOTAL PENALTY 

Penalty 

$1,684.00 

Vacated 

Vacated 

300.00 

362.00 

$127.00 

130.00 

Vacated 

$2,603.00 

For the reasons set forth above, the citations are AFF1RMED, MODIFIED, or 

VACATED, as set forth above and Powder River Coal, LLC, is ORDERED TO PAY the 

Secretary of Labor the sum of$2,603.00 within 30 days of the date of this decision.3 

Richard W. Manning 

A~inistrative Law Judge 

3 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. 

31FMSHRC259 
Distribution: 

GregoryW. Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 1600, Denver, CO 80202 (Certified Mail) 

Karen Johnston, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202-

1958 (Certified Mail) · 

RWM 

31 FMSHRC 260 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577 /FAX 303-844-5268 

February 11, 2009 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CNIL PENALTY PROCEEDINGS 

Docket No. WEST 2008-124 

A.C. No. 48-01353-127627-01 B96 

v. Docket No. WEST 2008-125 

A.C. No. 48-01353-127627-02 B96 

CCC GROUP, INC., 

Appearances: 

Before: 

Respondent North. Antelope Rochelle Mine 

DECISION 

GregoryW. Tronson, Esq., Office of the Solicitor, U.S. Department 

of Labor, Denver, Colorado, for the Secretary of Labor; 

Gary Klatt, Safety Manager, CCC Group, Inc., San Antonio, 

Texas, for Respondent. 

Judge Manning 

These cases are before me on two petitions for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA'') against 

CCC Group, Inc., pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. §§ 815 and 820 (the ''Mine Act"). A hearing was held in Denver, Colorado and 

the parties introduced testimony and documentary evidence. 

Powder River Coal, LLC, operates the North Antelope Rochelle Mine, a large open-pit 

coal mine in Campbell County, Wyoming. CCC Group was an independent contractor 

performing services at the mine. 

I. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

A. Citation No. 7610573, Weldine Operations at Lay-Down Area. 

On August 29, 2007, Inspector Todd Jaqua issued Citation No. 7610573 under section 

104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 77.408 as follows: 

Welding operations were not shielded to prevent injuries to the 

eyes to four persons working within ten feet of this operation in 

progress. The operations were to be performed for a full shift of 

31FMSHRC261 
ten hours. This poses burn type injuries to the eyes from flash 

and/or arc exposure. All welding operations are stopped until 

shields are put in place to protect persons from contact. 

The inspector determined than an injury was highly likely and that any injury would likely 

be permanently disabling. He determined that the violation was of a significant and substantial 

nature (S&S) and that the company's negligence was high. The safety standard provides that 

"[w]elding operations shall be shielded and the area shall be well-ventilated." The Secretary 

proposes a penalty of $25,163.00 for this citation, 

Inspector Jaqua saw that welding was occurring soon after he and Inspector Scott Markve 

entered the mine property. The inspectors stopped their vehicle to inspect the welding operation 

because they could not see a welding shield in place between the welder and other people in the 

area. The welding was taking place outside in the lay-down area. There was a conveyor on the 

ground nearby that was to be included in a new coal loadout facility. There were five people in 

the area including three CCC Group employees and two Powder River Coal employees. Two 

CCC Group employees were standing at a vise about 10 feet from another CCC Group employee 

who was welding. The employees at the vise were cutting channel iron with an electric band saw 

and the welder was then fabricating brackets out of the cut iron. (Tr. 11). Inspector Jaqua 

testified that the CCC Group employees were fabricating cable support trays and attaching them 

to the adjacent conveyor, which was about 20 to 30 feet away. There was a pile of channel iron 

near the band saw. Apparently the two Powder River Coal employees were present to determine 

where the brackets being fabricated should be attached to the conveyor. 

Jaqua testified that the safety standard required an opaque shield be placed between the 

welder and the other two CCC Group employees. The shield could be made out of any kind -of 

material, including plywood or a canvas tarp. The shield must be present to prevent employees 

from being exposed to the arc and flash of the welding unit. Arcs and flashes from welders can 

cause serious eye damage. Safety glasses do not protect employees from this hazard. 

Inspector Jaqua determined that the violation was S&S because he believed that it was 

highly likely that someone would be seriously injured by the hazard. Based on discussions he 

had with the employee doing the welding, Jaqua determined that the CCC Group employees 

would have been exposed to the hazard for the entire 10-hour shift. (Tr. 23-24). He also 

determined that these employees would be working close by the welder during the shift. As a 

consequence, Jaqua testified that "there was no doubt in my mind whatsoever that there would 

have been damage to the eyes of both of the persons that were ... working in that area .... " (Tr. 

24). Inspector Markve testified that the citation was S&S because an eye injury was reasonably 

likely to occur given how close the other employees were to the welding operation. (Tr. 49). 

Inspector Jaqua determined that the negligence of CCC Group was high based on a 

conversation he had with Jody Kaylor, CCC Group's supervisor at the site. Jaqua testified that 

Kaylor told him that the employee performing the welding had been trained and he was or should 

31 FMSHRC 262 
have been aware that a shield was required. (Tr. 18, 25). Jaqua believed that Kaylor did not take 

the steps necessary to make sure that the work area was safe for welding. Because it was a clear 

violation of the safety standard, Kaylor should have been aware that a shield was required and he 

should have made sure that a shield was in place before work began. 

CCC Group argues that the standard is quite vague as to when a shield is required. It also 

argues that its employees would not be exposed to the welding operations the entire 10-hour shift 

because· as the parts were fabricated, the employees would be attaching the parts to the conveyor 

structure. As a consequence, its employees would not be looking at the arc for any length of 

time, if at all. Ronald Segura, a site safety supervisor for CCC Group, testified that CCC 

Group's employees would only have been near the welding for short periods of time. (Tr. 81). 

They were not going to be working "side by side within ten feet" of the welder. Id. 

I find that the Secretary established a violation. The safety standard is broadly written to 

cover a wide variety of situations. It requires shielding in all situations. See Consolidation Coal 

Co., 10 FMSHRC 1702, 1703 (Dec. 1988)(ALJ). Its application is not limited to indoor welding 

operations. CCC Group argues that the standard is too vague to be meaningful to mine operators. 

It points out that if welding were occurring a quarter of a mile away, the literal language of the 

safety standard would still require a screen and that cannot be the intent of the safety standard. 

The standard for metal/nonmetal mines provides more clarity because it states that "[ w ]elding 

operations shall be shielded at locations where arc flash could be hazardous to persons." 

(§ 56/57.14213). I agree that section 77.408 could be applied to situations where a serious 

hazard is not created, but that is not the case here. Indeed, the conditions observed by Inspector 

Jaqua would easily violate the metal/nonmetal standard if it were applicable to coal mines. 

I recognize that the two other CCC Group employees were not going to be standing right 

next to the welder the entire shift. They were going to be walking around, taking fabricated 

components to the conveyor that was being assembled, and walking back to the vise to cut more 

iron. I agree with Inspector Jaqua that such a situation would seriously expose the miners to the 

hazards of the welding arc. (Tr. 31-32). There was nothing present to shield the miners from the 

arc produced by the welder. · 

I also find that the Secretary established that the violation was S&S. A violation is 

classified as S&S "if based upon the 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." National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 

FMSHRC 1, 3-4 (January 1984), the Commission set out a four-part test for analyzing S&S 

issues. Evaluation of the criteria is made assuming "continued normal mining operations." U.S. 

Steel Mining Co., 6 FMSHRC 1573, 1574(July1984). The question of whether a particular 

violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc., 

10 FMSHRC 498 (April 1988). The Secretary must establish: (1) the underlying violation of the 

safety standard; (2) a discrete safety hazard, a measure of danger to safety, contributed to by the 

violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and 

31 FMSHRC 263 
( 4) a reasonable likelihood that the injury in question will be of a reasonably serious nature. The 

Secretary is not required to show that it is more probable than not that an injury will result from 

the violation . . U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). 

Although welding would not be performed continually for the entire ten-hour shift, 

welding would be occurring for a significant length of time. In addition, miners would be 

moving around in the vicinity of the welding operations. As a consequence, the eyes of the 

miners would be exposed to the hazard presented by the arc of the welder. I credit the testimony 

of Inspector Jaqua with respect to the serious hazard presented when the eyes of miners are 

exposed to the flash arc of welding. Retina damage can occur when people are exposed to 

welding arcs. (Tr. 44). Given these facts, I.find that the Secretary established all four elements 

of the Mathies S&S test. There was a reasonable likelihood that someone would suffer an injury 

of a reasonably serious nature. I recognize that if the miners working around the welder 

studiously avoided looking at the flash arc, the likelihood that they would suffer retina damage 

would be reduced. (Tr. 43). Nevertheless, this safety standard was promulgated so that miners 

would not be exposed to the hazards associated with welding. The Secretaryis not required to · 

show that it was more probable than not that someone's eyes would be damaged that day. 

The Commission and the courts have uniformly held that mine operators are strictly liable 

for violations of safety and health standards. See, e.g. Asarco v. FMSHRC, 868 F.2d 1195 (10th 

Cir. 1989). "[W]hen a violation of a mandatory safety standard occurs in a mine, the operator is 

automatically assessed a civil penalty." Id. at 1197. The negligence of the operator and the 

degree of the hazard created by the violation are taken into consideration in assessing a civil 

penalty under section 1 lO(i) ... 30 U.S.C. § 820(i). This legal standard also applies to independent 

contractors performing services at a mine. Inspector Jaqua based his high negligence 

determination.on the fact that the CCC Group supervisor did not specifically.tell the welder to 

put up a screen before be started working. Jaqua determined that the supervisor's attitude was· 

rather cavalier because he relied on the welder to perform his job in a safe manner. The 

supervisor told Jaqua that the miner~ were trained on safe welding procedures. I find that the 

company's negligence was moderate. ·There has been no showing that CCC Group did not 

adequately train its welders on safe welding procedures. In addition, the welding was being 

performed outside where the need for a shield would not be as obvious. Moreover, Mr. Kaylor 

was not in the area when the welding started. The evidence in the record does not support a high 

negligence finding. 

The penalty proposed by the Secretary is much too high for this violation, especially since 

I have reduced thelevel of negligence attributable to the company. Taking into consideration the 

penalty criteria set forth in the Mine Act, I find that a penalty of $8,000.00 is appropriate for this 

violation. 

31 FMSHRC 264 
B. Citation No. 7610642, Weldin& Operations at Loadout Construction Area. 

On August 29, 2007, Inspector Scott Markve issued Citation No. 7610642 under section 

104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 77.408 as follows: 

Welding operations were not shielded on the blending load out 

construction area located at the northwest comer of the building. A 

welder was welding on the staircase from the second level to the 

third level. 

The inspector determined than an injury was unlikely but that any injury would likely 

result in lost workdays or restricted duty. He determined that the violation was not S&S and that 

the company's negligence was moderate. The Secretary proposes a penalty of $425.00 for this 

citation. 

CCC Group stated at the hearing that it was withdrawing its contest of this citation. (Tr. 

79). CCC Group's representative stated that the company has paid the Secretary's proposed 

penalty of$425.00. Id. The records on the data retrieval system at MSHA's website indicates 

that this penalty has not been paid. Consequently, I have intluded the penalty in the total due at 

the bottom of this decision. CCC Group is not required to pay the penalty twice so it should 

double check its records and contact MSHA if it has any questions. 

C. Citation No. 7610643, Overhead Work at Loadout Construction Area. 

On August 29, 2007, Inspector Scott Markve issued Citation No. 7610643 under section 

104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 77.203 as follows: 

Adequate protection was not provided for three miners working 

below the overhead work area above them. A miner was using a 

sledge hammer while setting beams on the south end of the 

blending loadout construction area. The miner was located at the 

85 foot level. Two miners were located about 30 feet below that 

level and one miner was located 25 feet below those two. The 

sledge hammer was not on a lanyard and there was nothing to 

prevent the hammer from falling onto any of the miners located 

below the work activity. 

The inspector determined than an injury was highly likely and that any injury would likely 

be fatal. He determined that the violation was S&S and that the company's negligence was 

moderate. The safety standard provides that "[ w ]here overhead repairs are being made at surface 

installations and equipment or material is taken into such overhead work areas, adequate 

protection shall be provided for all persons working or passing below the overhead work area in 

31 FMSHRC 265 
which such equipment or material is being used." The Secretary proposes a penalty of 

$19,793.00 for this citation. 

Inspector Markve testified that the safety standard is designed to protect miners from the 

hazards presented by falling objects. (Tr. 58). He stated that he saw a miner at the top of the 

steel structure being constructed for the coal blending loadout facility. The building was "pretty 

much a skeleton" at that point in time. (Tr. 59). The miner at the top of the facility was in a 

double-lanyard safety harness and he was setting guide bolts for steel beams that were to be 

added. He was straddling an I-beam at the 85-foot level. He was using a sledge hammer to 

install the bolts. Tue inspector believed that he was using a 20 pound sledge that was not tied 

off. The area below his work areawas open to the next level of the structure. (Tr. 61). There 

were beams, tubes, and other components in the structure but, if he were to drop his hammer, it 

would go at least to the first floor above ground. Id. 

Markve testified that there were two miners 30 feet below the miner working on the beam 

and one miner working25 feet below that point. Inspector Markve believed that these miners 

were "pretty much all in a line," with the result that if the miner at the top were to.drop his 

hammer it could have hit-one of the miners below. (Tr. 62, 76). He also believed that if the 

hammer hit an object on the way down, it could still bounce around and hit a miner below. The 

inspector testified that the hazard could have been avoided if the hammer had been attached to a 

lanyard, or a net had been installed below the miner, or all work below him had been suspended. 

Inspector Markve does not deny that there may have been pipes or other obstructions below the 

miner working on the beam but he still believes that the violation created a serious safety hazard. 

He testified that it was reasonably likely that someone would be seriously injured or killed by 

hazard. Tue miner working on the beam would have his hammer in one hand and a bolt in the 

other as he worked. (Tr. 76). He would pick up the hammer and set it down on a regular basis as 

he worked. The miners working below were not paying any attention to what the miner above 

was doing. If someone had been hit by the hammer, a fatal injury was highly likely. (Tr. 66). 

Fatal accidents have occurred at other mines.over the years under similar circumstances. 

CCC Group introduced photos of the loadout facility under construction. (Ex. R-3). The 

company represented that the photos were taken a day or two after the citation was issued, but the 

inspector thought that more construction work had been completed when the photos were taken. 

(Tr. 71-72, 77). Ronald Segura testified that he was with the inspector when he issued the 

citation. (Tr. 83). He recalls that other employees in the structure were on a lower level of the 

loadout facility. That is, there were no employees on an intermediate level that was 30 feet 

below the employee working on the beam. (Tr. 83). In addition, there were many impediments 

between the employee working on the beam and anyone working on the lower level, including Qdecking, walkways, piping, and various structural members. Id. The Q-decking was used as a 

base on which a concrete walkway would subsequently be poured. As a consequence, Segura did 

not believe that it was probable that anything accidently dropped would hit a miner working ata 

lower level. (Tr. 85). In addition, nothing had fallen from upper levels of the structure as it was 

being constructed. Finally, the employees of CCC Group typically use sledge hammers that 

31 FMSHRC 266 
weigh four to six pounds because anything heavier would be too cumbersome to use. (Tr. 86). 

Employees put the hammer in their tool belt or pouch when not in use. He admitted that if a 

hammer were to fall, it could hit a structural member and then keep falling. The hammer could 

also land on decking or another obstruction and fall no further. (Tr. 89-90). 

I find that the Secretary established a violation. I credit the testimony of Mr. Segura that 

the hammer weighed four to six pounds. Even though there were some obstructions below the 

employee on the beam, if he were to drop his hammer, it could have bounced around and hit one 

of the men working below. Adequate protection was not being provided for all persons working 

or passing below the overhead work area. 

Whether the violation is S&S is a close question. I find that the Secretary did not 

establish the S&S nature of this violation. The inspector issued the citation after looking at the 

structure under construction from a significant distance. He did not closely examine the work 

areas to see how likely it was that a falling object would reach the lower level of the structure. 

He could not state with any certainty if workers were below the man on the beam. (Tr. 76). 

Consequently, I find that the Secretary established the first, second, and fourth elements of the 

Mathies S&S test but that-she did not establish that it was reasonably likely that a hazard 

contributed to by the violation would result in an injury. I find that the violation was serious 

because the cited condition created a potential for a fatal accident. 

I affirm the inspector's determination that the violation was the result of the moderate 

negligence of CCC Group. A penalty of $5,000.00 is appropriate for this violation. 

II. APPROPRIATE CIVIL PENALTIES 

Section 11 O(i) of the Mine Act sets forth six criteria to be considered in determining 

appropriate civil penalties. CCC Group is a rather large independent contractor that worked over 

a million hours nationwide in 2007 and employed over 600 people in the third quarter of 2007. 

(Data Retrieval System at MSHA's Website). CCC Group was issued about 8 citations at coal 

mines and 19 citations at metal/nonmetal mines in the 24 months prior to August 29, 2007. Id. 

The citations at issue in this case were rapidly abated in good faith. The penalties assessed in this 

decision will not have an adverse effect on the opera.tor's ability to continue in business. My 

gravity and negligence :findings are set forth above. Based on the penalty criteria, I find that the 

penalties set forth below are appropriate. 

31 FMSHRC 267 
V. ORDER 

Based on the criteriain section l IO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

Citation No. 

WEST 2008-124 

7610573 

7610643 

WEST 2008-125 

7610642 

30 C.F.R. § 

77.408 

77.203 

77.408 

TOTAL PENALTY . 

Penalty 

$8,000.00 

5,000.00 

$425.00 

$13,425.00 

For the reasons set forth above, the citations are AFFIRMED or MODIFIED as set forth 

above and CCC Group, fuc., is ORDERED TO PAY the Secretary of Labor the sum of 

$13,425.00.00 within 30 days of the date of this decision. 1 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 1600, Denver, CO 80202 .(Certified Mail) 

GaryD. Klatt, CSP, Safety, Health & Environmental Manager, CCC Group, fuc., P.O. Box 

2000350, San Antonio, TX 78220-0350 

RWM 

1 Payment should be sent to the Mine Safety and Health Administration, U.S. 

Department ofLabor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

31 FMSHRC 268 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

HOLCIM (US) INCORPORATED, 

Respondent 

February 12, 2009 

CIVIL PENALTY PROCEEDING 

Docket No. SE 2007-154-M 

A.C. No. 22-00313-101052 

Holcim Artesia Plant 

ORDER OF DISMISSAL 

Before: Judge Feldman 

. 

This civil penalty matter concerns 104( d)(l) Citation No. 6243289 and 104( d)(l) 

Order No. 6243291 issued to Holcim (US) Incorporated (Holcim) on May 2, 2006. Holcim 

timely contested the citation and order in contest proceedings in Docket Nos. SE 2006-190-M 

and SE 2006 -191-M. The contest proceedings were stayed on June 12, 2006, pending the 

anticipated assignment of the related civil penalty case. On October 18, 2006, the Secretary 

proposed a total civil penalty of $6, 700.00 in satisfaction of the citation and order. 

Pursuant to section 105(a) of the Federal Mine Safety and Health Act of 1977, an operator 

that wishes to contest a proposed civil penalty must notify the Secretary within 30 days after 

receiving the proposed penalty assessment. If the operator fails to notify the Secretary, the 

proposed penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

Holcim failed to notify the Secretary within the required 30 day period. On 

February 8, 2007, Holcim filed a Motion to Reopen Penalty Proceeding with the Commission 

because it reportedly did not receive the Secretary's October 18, 2006, proposed $6, 700.00 

penalty assessment. 1 On March 23, 2007, the Commission rem'Wded Holcim's request to reopen 

to the Chief Administrative Law Judge (Chief ALJ) for a determination as to whether good cause 

existed for Holcim's failure to timely notify the Secretary. 

1 Holcim alleges that it may not have been served with the Secretary's proposed 

assessment because of a typographical error in the caption of the June 12, 2006, Stay Order 

in Docket Nos. SE 2006-190-M and SE 2006 -191-M. Although an error in the caption cannot 

affect MSHA's mailing of a proposed assessment, it should be noted that a corrected stay order 

was issued eight days later on June 20, 2006, after Holcim reported the error in the original 

caption~ · 

31 FMSHRC 269 
Finding excusable neglect, on September 4, 2008, the Chief AU granted Holcim's 

request to reopen, and ordered the Secretary to file a petition for the assessment of civil penalty. 

The Secretary filed the petition on October 21, 2008, once again seeking a total civil penalty of 

$6, 700.00. Holcim responded to the petition on October 27, 2008. This matter was assigned to 

me by the Chief ALJ on November 30, 2008. 

The records of the Mine Safety and Health Administration's (MSHA's) Office of 

Assessments reflect that on October 23, 2008, Holcim paid a civil penalty of$6,700.00 

in satisfaction of 104(d)(l) Citation No. 6243289 and 104(d)(l) Order No. 6243291.2 

Consequently, on January 7, 2009, the contest proceeding in Docket Nos. SE 2006-190-M 

and SE 2006-191-M were dismissed.3 

Thus, MSHA records reflect that Holcim paid the civil penalty after its successful efforts 

to reopen this civil penalty matter. Holcim's excusable neglect has been compounded by its 

subsequent payment of the $6, 700.00 that has rendered consideration of its motion to reopen an 

unnecessary expenditure of scarce Commission resources. 

ORDER 

Accordingly, IT IS ORDERED THAT, the $6, 700.00 civil penalty having been paid, 

the civil penalty proceeding in Docket No. SE 2007-154-M IS DISMISSED with prejudice. 

Jerold Feldman 

Administrative Law Judge 

2 Holcim' s payment documentation is of record. Holcim paid a civil penalty of 

$6,700.00, in addition to interest of$19.53. Holcim's total payment of$6,719.53 was by 

Check No. 12750298 drawn on Wachovia Bank, dated October 15, 2008. 

3 The contest proceedings in Docket Nos SE 2006-190-M and SE 2006 -191-M had not 

yet been consolidated with the civil penalty proceeding in Docket No. SE 2007-154-M. 

31 FMSHRC 270 
Distribution: 

Channah S. Broyde, Esq., Office of the Solicitor, U.S. Department of Labor, 

61 Forsyth Street, SW, Room 7TIO, Atlanta, GA 30303 

Micheal T. Heenan, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 

2400 N Street NW, 5th Floor, Washington, DC 20037 

/rps 

31FMSHRC271 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577/FAX 303-844-5268 

February 19, 2009 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMlNISTRATION (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 2008-219-M 

A.C. No. 12-02399..:139528-01 

v. Docket No. LAKE 2008-220-M 

A.C. No. 12-02399-139528-02 

D&HGRAVEL, 

Respondent D &H Gravel 

Appearances: 

Before: 

DECISION 

Wayne L. Lundquist, Conference & Litigation Representative, Mine 

Safety and Health Administration, Duluth, Minnesota, for Petitioner; 

James R. Salts, Owner/Operator, D & H Gravel, Williamsport, Indiana, 

for Respondent. 

Judge Manning 

These cases are before me on two petitions for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"), 

against D & H Gravel pursuant to sections 105 and 110 of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. §§ 815 and 820 (the ''Mine Act"). The cases involve 21 citations issued 

by MSHA on July 24, 2007, under section 104(a) of the Mine Act and 1 order of withdrawal 

issued under section 104(g)(l ). The parties presented testimony and documentary evidence at the 

hearing held in Lafayette, Indiana. 

At all pertinent times, D & H Gravel operated a quarry in Warren County, Indiana. 

D & H Gravel is a sole proprietorship owned by James R. Salts. (Tr. 102). The quarry mines 

sand and gravel on an intermittent basis. The quarry operates in the summer months only with 

one hourly employee, Brian Powell, who works no more that 20 to 30 hours a week. (Tr. 103). 

The quarry mines material and then screens it. The quarry has been in operation for only a few 

years. (Tr. 104). Mr. Salts is also a federal employee. (Tr. 108-09, 130). He stated that paying a 

large civil penalty will have an adverse affect on his business. (Tr. 129-30). He further stated 

that in 2006 he did about $31,000.00 worth of business and that, when the bills were paid, he 

"may have broken even." (Tr. 130). 

Mr. Salts testified that he did not know anything about MSHA until Inspector Jerry 

Spruell arrived at the mine on July 24, 2007, to inspect the quarry. (Tr. I 04). At the hearing, 

Salts questioned why MSHA did not send him a letter to advise him that he was subject to 

31 FMSHRC 272 
inspection by the agency. He said that Inspector Spruell was aware of his quarry before he 

arrived to inspect it on July 24; he drove by the quarry to inspect other mines and yet he did not 

attempt to tell Mr. Salts that the quarry was subject to inspection byMSHA. (Tr. 21). 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

A. Discussion of General Issues 

D & H Gravel is a very small, seasonal operation. It employed one part-time miner 

besides Mr. Salts. I credit the testimony of Mr. Salts that he was unaware ofMSHA's · 

jurisdiction over the quarry and that he did not have personal knowledge of the Secretary's 

regulations and safety standards. As set forth below, the Mine Act imposes strict liability on 

mine operators so I cannot vacate citations on that basis. I affirm all of the citations except as 

discussed below. I find, however, that the operator's negligence was low in each citation, except 

where noted. Mr. Salts acted in good faith when he learned about MSHA's requirements and he 

corrected the cited conditions. 

The Secretary proposed a penalty of $100.00 for each citation and a penalty of $112.00 

for Order No. 7810806. I have substantially reduced the penalties primarily because the quarry is 

a small, intermittent operation and I have determined that the operator's negligence was low in 

most instances. Information at MSHA's website indicates that the mine has been "abandoned" 

and that the citations at issue are the only ones ever issued at the quarry. 

The Federal Mine Safety and Health Review Commission and the courts have uniformly 

held that mine operators are strictly liable for violations of safety and health standards. See, e.g. 

Asarco v. FMSHRC, 868 F.2d 1195 (10th Cir. 1989). "[W]hen a violation of a mandatory safety 

standard occurs in a mine, the operator is automatically assessed a civil penalty." Id. at 1197. In 

addition, the Secretary is not required to prove that a violation creates a safety hazard, unless the 

safety standard so provides. 

The [Mine Act] imposes no general requirement that a violation of 

MSHA regulations be found to create a safety hazard in order for a 

valid citation to issue. If conditions existed which violated the 

regulations, citations [are] proper. 

Allied Products, Inc., 666 F.2d 890, 892-93 (51h Cir. 1982)(footnote omitted). The negligence of 

the operator and the degree of the hazard created by the violation are taken into consideration in · 

assessing a civil penalty under section 11 O(i). 30 U.S.C. § 820(i). Thus, a violation is found and 

a penalty is assessed even if the chance of an injury is not very great.· 

The Commission interprets safety standards to take into consideration "ordinary human 

carelessness." Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (September 1984). In that 

case, the Commission held that the guarding standard must be interpreted to consider whether 

31 FMSHRC 273 
there is a "reasonable possibility of contact and injury, including contact stemming from 

inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness." Id. 

Human behavior can be erratic and unpredictable. For example, someone might attempt to 

perform minor maintenance or cleaning near an unguarded tail pulley without first shutting it 

down. In such an instance, the employee's clothing could become entangled in the moving parts 

and a serious injury could result. Guards are designed to prevent just such an accident. This 

principle applies to all violations of safety standards that could potentially injure a miner. The 

fact that no. employee has ever been injured at the D & H Quarry is not a defense because there is 

a history of such injuries at quarries throughout the United States. ..Even a skilled employee may 

suffer a lapse of attentiveness, either from. fatigue or environmental distractions .... " Great 

Western Electric Co., 5 FMSHRC 840, 842(May1983). 

B. Contested Citations and Order 

1. Inspector Jerry Spruell issued Citation No. 7810801 alleging a violation of section 

56.18013. The citation alleges that there was no communication system at the mine to obtain 

assistance in the event of an emergency. The citation states that the quarry was about five miles 

from the nearest town and there was only one person working at the mine; Inspector Spruell 

determined that an injury was unlikely but that any injury would result in lost workdays or 

restricted duty .. He determined that the violation was not of a significant and substantial ("S&S") 

nature and that the negligence was moderate. The safety standard provides that a "suitable 

communication system shall be provided at the mine to obtain assistance in the event of an 

emergency." 

Inspector Spruell testified that there was no phone at the mine. (Tr. 13). An accident was 

unlikely because there were no immediate hazards present at the mine. The inspector recognized 

that Mr. Salts and his wife.lived about 500 feet from the quarry. (Tr. 15). He marked the 

negligence as moderate because the operator should have known that a phone was required. (Tr .. 

17). Mr. Salts testified that his home is about 500 feet away from the mine and his wife is 

always there. (Tr. 105, 108). She can see down into the mine and see anything that happens. 

Thus, a communication system was present because, if a miner were hurt, someone could go to 

the house or the injured person could signal to his wife. He also testified that when he is at the 

mjne, his cell phone is available in the event of an emergency. (Tr. 107). 

I find that the Secretary established a violation. There was no way to directly contact 

emergency personnel in the event of an accident. The means suggested by Mr. Salts is clearly not 

sufficient. A penalty of $20.00 is appropriate. 

2. Inspector Spruell issued Citation No. 7810802 alleging a violation of section 46.3(a). 

The citation alleges that the operator failed to develop and implement a written training plan for 

his employee. The mine has been in operation for more than a year and the operator did not 

notify MSHA. Inspector Spruell determined that there was no likelihood that there would be an 

injury. He determined that the violation was not S&S and that the negligence was low. The 

31FMSHRC274 
regulation requires that every mine "develop and implement a written [training] plan approved 

by''MSHA. 

The inspector testified that the operator advised him that he was not aware of the 

requirement of have a training plan for his employee. (Tr. 19). Mr. Salts testified that ifMSHA 

had notified him that such a plan was required, he could have had a plan in place. (Tr. 108). He 

also stated that his employee was experienced and well trained. Inspector Spruell knew about the 

D & H Gravel operations for some time and he could have made a courtesy call to the pit to 

advise him of the requirements of the Mine Act. The inspector was more interested in issuing 

citations than improving the safety of miners. (Tr. 109). 

I find that the Secretary established a violation. A penalty of $20.00 is appropriate. 

3. Inspector Spruell issued Citation No. 7810803 alleging a violation of section 41.11 (a). 

The citation alleges that the operator failed to submit a completed legal identity form to the 

nearest MSHA office within 30 days after it opened the quany. Inspector Spruell determined 

that there was no likelihood that there would be an injury. He determined that the violation was 

not S&S and that the negligence was low. The regulation provides that an operator of a mine 

"shall, in writing, notify the appropriate [MSHA] district manager" of the legal identity of the 

operator. 

Inspector Spruell testified that the quany had been open for a little over a year. (Tr. 24). 

The operator was not aware of the requirement of this regulation. As with the previous citation, 

Mr. Salts testified that if he had known that he was subject to inspection by MSHA, he would 

have filed an identity report. Inspector Spruell had driven by this operation prior to July 24, 

2007, and he could have told him about MSHA. (Tr. 109). Salts testified that he was not trying 

to skirt the law, he just did not know about the Mine Act and its requirements. 

The Secretary established a violation. A penalty of$10.00 is appropriate. 

4. Inspector Spruell issued Citation No. 7810804 alleging a violation of section 

56.15001. The citation alleges that adequate first-aid materials, including a blanket, a stretcher, 

and a first-aid kit, were not provided at the mine. Inspector Spruell determined that an injury was 

unlikely but that any injury would result in lost workdays or restricted duty. He determined that 

the violation was not S&S and that the negligence was moderate. The safety standard provides 

that ''[a]dequate first-aid materials, including stretchers and blankets, shall be provided at places 

convenient to all working areas." 

The inspector did not find any first-aid supplies at the mine. (Tr. 27). Mr. Salts testified 

that he was trained in first aid at his other job and he had a first-aid kit in his truck. (Tr. 109). 

He was not aware of the requirements of this safety standard. 

The Secretary established a violation. A penalty of $20.00 is appropriate. 

31FMSHRC275 
5. Inspector Spruell issued Citation No. 7810805 alleging a violation of section 

56.18010. The citation alleges that an individual trained to provide first aid was not available at 

the mine. Inspector Spruell determined that an injury was unlikely but that any injury would 

result in lost workdays or restricted duty. He determined that the violation was not S&S and that 

the negligence was moderate, The safety standard provides that an "individual capable of 

providing first aid shall be available on all shifts.'' 

Inspector Spruell testified that no employee was trained to provide first aid. (Tr. 28). Mr. 

Salts testified that he was trained in first aid but that he was not always at the mine. His 

employee was trained, but his certification was not current. {Tr. 110). 

I find that the Secretary established a violation. A penalty of $20.00 is appropriate. 

6. Inspector Spruell issued Order No. 7810806 under section 104(g)(l) of the Mine Act 

alleging a violation of section 46.5(a). The order alleges that Bruce Powell, a new miner, had not 

been given any new miner training before being employed as a miner at the quarry. Inspector 

Spruell determined that an injury was reasonably likely and that anyiajury would result in lost 

workdays or restricted duty. He determined that the violation was S&S and that the negligence 

was low. The safety standard provides that each new miner must receive not less than 24 hours 

of training prior to working at a mine 

The inspector testified that history has shown that miners who are properly trained have 

fewer accidents. (Tr. 31 ). There were no training records at the mine. He determined that the 

violation was S&S because it was reasonably likely that an untrained miner would be seriously 

injured. Mr. Salts testified that his employee had "a lot of training, but it wasn't on paper to meet 

the citation." (Tr. 110). The employee has been working with heavy equipment all of his life 

and he has been operating the loader at the mine for over a year. Salts believes that because the 

employee was well trained, the citation should not be designated as serious and S&S. 

I find that the Secretary established a violation. Mr. Salts did not offer any testimony that 

specifically described the training the Mr. Powell received. It is highly unlikely that Powell 

received the safety training required by the Secretary in Part 46. On that basis, I also find that the 

Secretary established that the violation was S&S. A violation is classified as S&S "if based upon 

the 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.'' National Gypsum 

Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 

1984), the Commission set out a four-part test for analyzing S&S issues. Evaluation of the 

criteria is made assuming "continued normal mining operations.'' U S. Steel Mining Co., 6 

FMSHRC 1573, 1574 (July 1984). The question of whether a particular violation is S&S must 

be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 

(April 1988). The Secretary must establish: (1) the underlying violation of the safety standard; 

(2) a discrete safety hazard, a measure of danger to safety, contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in an injury; and ( 4) a reasonable 

31 FMSHRC 276 
likelihood that the injury in question will be of a reasonably serious nature. The Secretary is not 

required to show that it is more probable than not that an injury will result from the violation. · 

U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). In this instance, it was reasonably 

likely that, assuming continued mining operations, Powell's lack of training would result in an 

injury of a reasonably serious nature. A penalty of $50.00 is appropriate. 

7. Inspector Spruell issued Citation No. 7810807 alleging a violation of section 

56.14132( a). The citation alleges that neither the horn nor the backup alarm were operational on 

the Caterpillar 988 loader. When the transmission was placed in reverse no alarm sounded and 

the manually-operated horn would not work. Inspector Spruell determined that an injury was 

unlikely but that any injury would likely be fatal. He determined that the violation was not S&S 

and that the negligence was moderate. The safety standard provides that "[ m )anually-operated 

horns or other audible warning devices provided on self-propelled mobile equipment as a safety 

feature shall be maintained in functional condition." 

Inspector Spruell testified that when these safety devices were tested, they did not work. 

(Tr. 35). He said that an injury was unlikely because there was usually only one person working 

at the quarry. Salts testified that there was a horn button in the loader, but it was apparently not 

working. (Tr. 112). He did not know that these audible warning devices were not working 

properly. 

The Secretary established a violation. Although the cited condition was not S&S it 

presented a safety hazard. The operator's negligence was moderate. A penalty of $40.00 is 

appropriate for this violation. 

8. Inspector Spruell issued Citation No. 7810808 alleging a violation of section 

56.14103(b). The citation alleges that the right front windshield on the Caterpillar 988 loader 

was not replaced or removed after it had become damaged about a month earlier. There was a 

spider-web-type break in the glass. The equipment operator could have cut his hand while trying 

to clean this section of the window. Inspector Spruell determined that an injury was unlikely but 

that any injury would likely result in lost workdays or restricted duty. He determined that the 

violation was not S&S and that the negligence was moderate. The safety standard provides, in 

part, that "[i]f damaged windows obscure visibility necessary for safe operation, or create a 

hazard to the equipment operator, the windows shall be replaced or removed." 

Inspector Spruell testified that the hazard presented to the loader operator was the risk 

that he could cut his hand while cleaning the window. (Tr. 39; Ex. G-1). The cracks also 

partially obstructed the loader operator's view. Mr. Salts testified that the cracks would not 

obscure the view of the operator and the chance of anyone cutting his hand on the cracks was 

minimal. (Tr. 113-14). 

I credit the testimony of Mr. Salts. The photograph shows that the cracked window did 

not present a hazard. (Ex. G-1 ). The cracks were at the edge of a side window. The loader 

31 FMSHRC 277 
operator could easily see through the window. The risk of someone cutting his hand when 

cleaning the window was pretty insignificant. This citation is vacated. 

9. Inspector Spruell issued Citation No. 7810809 alleging a violation of section · 

56.14130(a). The citation alleges that, although there were seat belts in the Caterpillar 988 

loader, they were not installed in a way that would allow them to function. The original seat belt 

was stuck beneath the operator's seat and was not functioning because the ends coul.d not be 

latched. An additional. seat belt was present but the right half of the belt was not connected to the 

bracket. Inspector Spruell determined that an injury was reasonably likely and that any injury 

would likely result in lost workdays or restricted duty. He determined that the violation was S&S 

and that the negligence was moderate. The safety standard provides, in part, that seat belts shall 

be installed in wheel loaders. 

The inspector testified that it was obvious that the seat belt was not being used on the 

loader because the belt was damaged so that it could not be used. (Tr. 41, 43). The ends of the 

original seat belt could not be connected and latched. The belt was stuck underneath the seat, 

which indicated to the inspector that it had not been used. {Tr. 46). At some point in time 

another seat belt was installed, but could not be used as well. (Tr. 44). The inspector did not 

personally observe the loader operator using the equipment without wearing a seat belt. It·was 

reasonably likely that the loader operator would be injured in the event of an accident. 

Mr. Salts testified that the original seat belts in the loader worked properly. (Tr. 114). . . They latched together in a way that is different from seat belts used today. The other belt that 

had been installed was not working, but the original set was functional. This set may have fallen 

under the seat. The violation was also neither serious nor S&S and there was no negligence. 

Salts testified that the employee has worn the seat belt in the past. (Tr. 115). 

I credit the testimony of Mr. Salts that there was a functioning seat belt in the loader. 

Because the latch operated differently than is typical, the inspector may not have recognized that 

it could be used. Consequently, this citation is vacated. 

10. Inspector Spruell issued Citation No. 7810810 alleging a violation of section 

56.14101(a)(3). The citation alleges that the left, rear brake on the loader had been disconnected 

and the line leading to the brake chamber had been plugged off. When tested, the brakes stopped 

and held the loader on an incline without a load in the bucket. Inspector Spruell determined that 

an injury was reasonably likely and that any injury would likely result in lost workdays or 

restricted duty. He determined that the violation was S&S and that the negligence was moderate. 

The safety standard provides that "[a]ll braking systems installed on [self-propelled mobile] 

equipment shall be maintained in functional condition." 

Inspector Spruell testified that the left, rear brake had been disconnected and the line from 

the actuator had been plugged off. {Tr. 47-48). He believed that because one of four brakes had 

been rendered inoperable, an injury was reasonably likely. The loader stopped when it was tested 

31 FMSHRC 278 
on an incline, but the safety standard requires that all the braking systems be functional. (Tr. 51-

54). 

Mr. Salts testified that he was not aware that the line leading to the left, rear brake on the 

loader had been plugged off. (Tr. 116). Nevertheless, he testified that the brakes worked fine. 

When the brakes were tested by the inspector, the loader held on an incline. The citation should 

not have been designated as serious or S&S and there was no negligence because he was not 

aware of the condition.- All the braking systems on the loader were working. 

I find that the Secretary established a violation. Although the brakes could stop the loader 

when tested, not all of the brakes on the loader were working. If the loader operator had to stop 

the vehicle quickly in an emergency, he would likely need all of the brakes to work. I find, 

however, that the violation was not S&S. It was not reasonably likely that someone would be 

injured as a result of this violation. The operator's negligence was moderate because an 

inspection of the loader would have revealed the condition. A penalty of $40.00 is appropriate. 

11. Inspector Spruell issued Citation No. 7810811 alleging a violation of section 

50.30(a). The citation alleges that work was performed at the quarry in March 2007 and a 

quarterly employment report was not completed or submitted for the first quarter of 2007. 

Inspector Spruell determined that there was no likelihood of an injury and that the operator's 

negligence was low. The regulation requires, in part, that every mine operator prepare and 

submit to MSHA a quarterly employment report. 

The inspector testified that a miner worked at the quarry during the first quarter of 2007 

and the required quarterly employment report was not submitted to MSHA. (Tr. 55). Mr. Salts 

testified that he did not know about this requirement. 

I find that the Secretary established a violation, but the violation was not serious. A 

penalty of $10.00 is appropriate for this violation. 

12. Inspector Spruell issued Citation No. 7810812 alleging a violation of section 

50.30(a). The citation alleges that work was performed at the quarry during April, May and June 

2007 and a quarterly employment report was not completed or submitted for the first quarter of 

2007. Inspector Spruell determined that there was no likelihood of an injury and that the 

operator's negligence was low. 

The inspector testified that a miner worked at the quarry during the second quarter of 

2007 and the required quarterly employment report was not submitted to MSHA. (Tr. 58). My 

findings here are the same as with the previous citation. 

13. Inspector Spruell issued Citation No. 7810813 alleging a violation of section 

56.13015(a). The citation alleges that there was no record to indicate that the air receiver tank on 

the air compressor at the shop had been inspected by a certified inspector. The compressor was 

31 FMSHRC 279 
fairly new and had been recently installed. No adverse conditions were observed by the 

inspector. Inspector Spruell determined that an injury was unlikely but that any injury would 

likely result in lost workdays or restricted duty. He determined that the violation was not S&S 

and that the negligence was low. The safety standard provides, in part, that "[ c ]ompressed-air 

receivers and.other unfired pressure vessels shall be inspected by inspectors holding a valid 

National Board Commission." 

The inspector testified that there was no indication that the air receiver had ever been 

properly inspected. (Tr. 60-61 ). The violation was not S&S because the compressor appeared to 

be fairly new and in good shape. Mr. Salts testified that he was not aware that these tanks had to 

be inspected, especially on compressors that are new. (Tr. 117). He testified that the tank was · 

on a "brand-spanking-new compressor." Id. The manufacturer placed a metal tag on the side of 

the pressurized vessel to show that it was pressure-tested before it was sold. ·He testified that he 

bought the compressor in 2006 or 2007. (Tr. 119). 

I credit the testimony of Mr. Salts that the compressor was new and that it had been 

recently pressure-tested and inspected by the manufacturer. The citation is vacated. 

14. Inspector Spruell issued Citation No. 7810814 alleging a violation ofsection 

56.12028. The citation alleges that there was no record to indicate that testing for continuity and 

resistance of the grounding system had been performed at this quarry. Electrical equipment was 

present at the mine. No ungrounded circuits were discovered. Inspector Spruell determined that 

an injury was unlikely but that any injury would likely result in lost workdays or restricted duty. 

He detennined that the violation was not S&S and that the negligence was low. The safety 

standard provides, in part, that "[ c ]ontinuity and resistance of grounding systems shall be tested 

immediately after installation, repair, and modification, and annually thereafter." 

The inspector testified that the resistance and continuity of the. grounding circuits for 

electrical motors had never been tested at the quarry. (Tr. 64). No ungrounded circuits were 

found. The inspector considered this to be a paperwork violation. (Tr. 66). Mr. Salts testified 

that all equipment was properly grounded. (Tr. 119). He said that he was not aware he was 

required to do this test. 

The Secretary established a violation. All electric equipment was properly grounded. A 

penalty of $20;00 is appropriate. 

15 .. Inspector Spruell issued Citation No. 7810815 alleging a violation of section 

56.12034. The citation alleges that there were no guards on the two lights in the shop. There 

was nothing in place to prevent contact with the bulbs. Inspector Spruell determined that an 

injury was unlikely but that any injury would likely result in lost workdays or restricted duty. He 

determined that the violation was not S&S and that the negligence was low. The safety standard 

provides, in part, that "[p ]ortable extension lights, and other lights that by their location present a 

shock or burn hazard, shall be guarded." 

31 FMSHRC 280 
Inspector Spruell testified that the unguarded lights were about6 Yi feet above the floor of 

the shop. The hazard the inspector was concerned about was getting burned by contacting the 

bulbs. (Tr. 67). Mr. Salts testified that, given the height of the bulbs, it was highly unlikely that 

anyone would come into contact with the lights. (Tr. 120). 

I agree that contact with the bulbs was unlikely, but they were not so high that they did 

not present a hazard. The Secretary established a violation. A penalty of $20.00 is appropriate. · 

16. Inspector Spruell issued Citation No. 7810816 alleging a violation of section 

56.420l(a)(l). The citation alleges that the fire extinguishers on the loader and at the shop were 

not being inspected monthly to determine if they were fully charged and operable. The gauges 

showed that the extinguishers were fully charged and they appeared to be operable. Inspector 

Spruell determined that an injury was unlikely but that any injμry would likely result in lost 

workdays or restricted duty. He determined that the violation was not S&S and that the 

negligence was low. The safety standard provides, in part, that "[f]ire extinguishers shall be 

visually inspected at least once a month to determine that they are fully charged and operable." 

The inspector testified that the extinguishers had not been inspected, but they appeared to 

be fully functional. (Tr. 71 ). Mr. Salts testified that he was not aware of this requirement. He 

stated that he regularly checks them but there are no tags on the extinguishers to indicate when 

they were tested. (Tr; 120-21 ). They were all in working order. 

The Secretary established a violation. I credit the testimony of Mr. Salts and find that the 

violation was not serious. A penalty of $20.00 is appropriate. 

17. Inspector Spruell issued Citation No. 7810817 alleging a violation of section 

56.12032. The citation alleges there was no cover on the main breaker panel for the quarry. This 

condition meant that energized electrical parts would be exposed to anyone who opened the 

panel door. Inspector Spruell determined that an injury was unlikely but that any injury would 

likely result in lost workdays or restricted duty. He determined that the violation was not S&S 

and that the negligence was low. The safety standard provides, in part, that "[i]nspection and 

cover plates on electrical equipment and junction boxes shall be kept in place at all times except 

during testing or repairs." 

Inspector Spruell testified that the breaker panel was south of the scale trailer. The door 

for the panel was closed but, when opened, there was no cover for the breakers. (Tr. 7 4). The 

circuits were energized. 

Mr. Salts admits that there was a panel missing on the inside of the electrical box, but the 

outside cover was still present. (Tr. 121 ). Salts had an electrical contractor install this box and 

he was not aware that the inside cover was missing. 

31FMSHRC281 
The evidence establishes that the outside cover for the electrical box was closed. The 

inner cover was apparently never installed by the electrician. The Secretary established a 

violation. A penalty of$20.00 is appropriate. 

18. Inspector Spruell issued Citation No. 7810818 alleging a violation of section 

56.11012. The citation alleges that there were openings in the handrail around the platform on 

the sand conveyor. The platform was about 7 feet above the ground and 2 Yi feet wide. At the 

top of the ladder there was nothing in place to prevent anyone from falling down. At the right 

side of the platform· there was an 18 inch area that was not protected by a handrail. There was 

also an opening in the floor of the platform that was 2 feet long and about 6 inches wide. 

Inspector Spruell determined that an injury was reasonably likely and that any injury would likely 

result in lost workdays or restricted duty. He determined that the violation was S&S and that the 

negligence was moderate. The safety standard provides, in part, that "( o ]penings above, below, 

or near travelways through which persons or materials may fall shall be protected by railings, 

barriers, or covers." 

Inspector Spruell testified that the platform for the sand conveyor had areas that were not 

protected by handrails. (T-r. 78; Exs. G-6, G-7 & G-8). A person could fall from the platform or 

partially fall through the opening in the floor. The platform was 7 feet above the ground. There 

was no handrail where the ladder came up to the platform and to the left of the ladder. (Tr. 79). 

There was another opening at the end of the platform near the engine" This area would need to 

be accessed twice a day to start and stop the engine. There was also an opening in the floor of 

the platform near the engine. 

Mr. Salts testified that at one end of the platform, the handrail was not tied back to the 

structure. He said that "[t]here was hardly enough room for anybody to get through there." (Tr. 

122). The citation should not have been marked as "reasonably likely'' and the negligence should 

be low. 

I credit the testimony of Inspector Spruell as to the hazards presented by the cited 

conditions. The citation is affirmed as written. The violation was S&S because it was 

reasonably likely that someone would he injured by the conditions, assuming continued mining 

operations. The operator's negligence was moderate because the hazards were obvious. (Tr. 84). 

A penalty of$50.00 is appropriate. 

19. Inspector Spruell issued Citation No. 7810819 alleging a violation of section 

56.14107(a). The citation alleges that there was no guard on the tail pulley of the finish gravel 

conveyor belt. The unguarded pulley was about 2 Yi feet above the ground. The inspector was 

advised that people are not in the area when the conveyor is operating. Inspector Spruell 

determined that an injury was unlikely but that any injury would likely be permanently disabling. 

He determined that the violation was not S&S and that the negligence was moderate. The safety 

standard provides, in part, that "[ m ]oving machine parts shall be guarded to protect persons from 

31 FMSHRC 282 
contacting ... drive, head, tail, and takeup pulleys ... and similar moving machine parts that can 

cause injury." 

The inspector testified that there was no guard to protect the cited tail pulley. (Tr. 88-89; 

Ex. G-9). He did not believe that an injury was likely because people do not normally travel 

through the area when the conveyor is operating. 

Mr. Salts testified that nobody walks or travels near this pulley when it is operating. {Tr. 

123). I find that the Secretary established a violation. The pulley was clearly not guarded. {Ex. 

G-9). I affirm the citation and find that the operator's negligence was moderate. A penalty of 

$30.00 is appropriate. 

20. Inspector Spruell issued Citation No. 7810820 alleging a violation of section 

56.14109. The citation alleges that there was no railing or stop cord for the three upper rollers 

and one lower roller on the sand conveyor belt. The upper rollers were between 3 Yz and 6 Y:z feet 

above the ground while the bottom roller was about 4 feet above the ground. Someone travels by 

the belt after the conveyor is started. Inspector Spruell determined that an injury was reasonably 

likely and that any injury would likely result in lost workdays or restricted duty. He determined 

that the violation was S&S and that the negligence was moderate. The safety standard provides, 

in part, that "[u]nguarded conveyors next to travelways shall be equipped with {a) emergency 

stop devices ... or {b) railings .... " 

Inspector Spruell testified that there was a conveyor belt without a railing or stop cord in 

an area where contact could be made with the belt or rollers. {Tr. 91). The rollers were from 3 

feet to 6 Y:z feet above the ground. He determined that the violation should be S&S because the 

employee walks by this area while the conveyor is operating. He based this determination on a 

conversation with the employee. The employee would be 3 to 4 feet from the conveyor when he 

walked by. This condition should have been known by the operator. 

Mr. Salts testified that nobody would travel near the conveyor belt. {Tr. 123). He said 

that he was baffled that anyone would have told the inspector that he usually walked near the 

conveyor because it is not on the way to anything. He also testified that the condition was not 

serious because nobody could get into the belt or rollers. 

I find that the Secretary established a violation. The area was not protected by a railing or 

a stop cord. Whether the violation was S&S is a close question because the testimony directly · 

conflicts. I find that the violation was not S&S. The evidence does not establish that it was 

reasonably likely that anyone would come into contact with the belt or the rollers. The conveyor 

was out in the open and I am not convinced that anyone would walk immediately adjacent to the 

moving belt. The operator's negligence was moderate. A penalty of$30.00 is appropriate. 

21. Inspector Spruell issued Citation No. 7810821 alleging a violation of section 

56.14107(a). The citation alleges that a guard was not provided to prevent accidental contact 

31 FMSHRC 283 
with the pulley or v-belt drive on the engine of the loader. The pulley and belt were about 2 to 3 

inches from the cowling at the left rear of the loader. The loader operator was observed passing 

by this area during trips in and out of the cab of the loader. Inspector Spruell determined that an 

injury was reasonably likely and that any injury would likely result in lost workdays or restricted 

duty. He determined that the violation was S&S and that the negligence was moderate. 

The inspector testified that there was no guard to protect the pulley and v-belt on the 

engine of the loader. (Tr. 94; Ex. G-10). He testified that the loader operator passes close by this 

area every time he gets in and out of the loader. (Tr. 95). The condition was obvious and 

presented a hazard of a serious injury. 

Mr. Salts testified that the v-belt drive and pulley referenced in the citation are for the air 

conditioner for the loader. (Tr. 124-25). The loader was manufactured without any type of guard 

in this location. 

I find that the Secretary established a violation. The fact that the manufacturer did not 

install a guard does not relieve the operator from its responsibility to comply with the safety 

standard. I affirm the citation as written, including the S&S determination, except that I find that 

the operator's negligence was low. The pulley and drive belt are partially recessed behind the 

frame of the loader and the operator did not believe that it created a hazard. A penalty of $40 .00 

is appropriate. 

22. Inspector Spruell issued Citation No. 7810822 alleging a violation of section 

56. l 8002(a). The citation alleges that a competent person designated by the operator was not 

examining each working place at least once each shift for conditions which may adversely affect 

safety or health. Several safety hazards were discovered during the MSHA inspection. Inspector 

Spruell determined that an injury was reasonably likely and that any injury would likely result in 

lost workdays or restricted duty. He determined that the violation was S&S and that the 

negligence was low. The safety standard requires that a "competent person ... examine each 

working place at least once each shift for conditions which may adversely affect safety or 

health." The operator is required to correct any safety hazards that are found. 

Inspector Spruell testified that the operator was not keeping records of workplace 

examinations that are required to be performed each shift. {Tr. 99). He was not given any 

information that suggested that such examinations were being conducted. He determined that the 

violation was S&S based on the number of violations he found during his inspection. Negligence 

was low because the operator was not aware that it was subject to MSHA inspections. 

Mr. Salts testified that he performed examinations at the quarry and he made any 

necessary repairs. He went to the quarry every evening to check everything. (Tr. 126). 

I find that the Secretary established a violation. I also find that the violation was S&S 

because workplace examinations are crucial to ensure that the work environment is safe. 

31 FMSHRC 284 
Although I do not dispute that Mr. Salts checked out and repaired equipment in the evenings, 

such activities are not as comprehensive as the examinations required under the safety standard. 

Recording safety problems in a record book also helps to ensure that any problems are promptly 

corrected. A penalty of$30.00 is appropriate. · 

II. APPROPRIATE CIVIL PENALTIES 

Section l lO(i) of the Mine Act sets out six criteria to be considered in determining 

appropriate civil penalties. D & H Gravel had not been issued any citations prior to the present 

inspection. D & H Gravel was a small operator. AII of the violations were abated in good faith. 

D & H Gravel did not establish that the penalties assessed in this decision will have an adverse 

effect on its ability to continue in business. My gravity and negligence findings are set forth · 

above. Based on the penalty criteria, I find that the penalties set forth below are appropriate. 

ID. ORDER 

Based on the criteria in section 11 O(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: -

Citation/Order No. 

LAKE 2008-219-M 

7810801 

7810802 

7810803 

7810804 

7810807 

7810808 

7810809 

7810810 

7810811 

7810812 

7810813 

7810814 

7810815 

7810816 

7810817 

7810818 

7810819 

7810820 

7810821 

7810822 

30 C.F.R. § 

56.18013 

46.3(a) 

41.ll(a) 

56.15001 

56.14132(a) 

56.14103(b) 

56.14130(a) 

56.14101(a)(3) 

50.30(a) 

50.30(a) 

56.13015(a) 

56.12028 

56.12034 

56.4201(a)(l) 

56.12032 

56.11012 

56.14107(a) 

56.14109 

56.14107(a) 

56.18002(a) 

31 FMSHRC 285 

Penalty 

$20.00 

20.00 

10.00 

20.00 

40.00 

Vacated 

Vacated 

40.00 

10.00 

10.00 

Vacated 

20.00 

20.00 

20.00 

20.00 

50.00 

30.00 

30.00 

40.00 

30.00 
LAKE 2008-22ff-M 

7810805 

7810806 

56.18010 

46.5(a) 

TOTAL PENALTY 

20.00 

50.00 

$500.00 

Accordingly, the citations contested in these cases are AFFIRMED, MODIFIED, or 

VACATED as set forth above and D & H Gravel is ORDERED TO PAY the Secretary of 

Labor the sum of $500.00 within 40 days of the date of this decision. 1 Upon payment of the 

penalty, these proceedings are DISMISSED. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Wayne L. Lundquist, Conference & Litigation Representative, Mine Safety and Health 

Administration, 515 W. First Street, Room 333, Duluth, MN 55802-1302 (Certified Mail) 

James R. Salts, D & H Gravel, 7794 S State Road 263, Williamsport, 1N 47993-8271 (Certified 

Mail) 

RWM 

1 Payment should be sent to the Mine Safety and Health Administration, U.S. Department ofLabor, 

Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390 

31 FMSHRC 286 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577 /FAX 303-844-5268 

February 26, 2009 

WEST RIDGE RESOURCES, INC, 

Contestant 

CONTEST PROCEEDING 

v. 

Docket No. WEST 2009-504,..R 

Order No. 8454817-05; 02/13/2009 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

West Ridge Mine 

Id. No. 42-02233 

Appearances: 

Before: 

DECISION 

Kevin N. Anderson, Esq., and Jason W. Hardin, Esq., Fabian & 

Clendenin, Salt Lake City, Utah, and Daniel W. Wolff, Esq, 

Crowell & Moring, Washington, DC, for West Ridge Resources, Inc.; 

Timothy S. Williams, Esq., John Rainwater, Esq., and Derek Baxter, 

Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, and 

Arlington, Virginia, for the Secretary of Labor. 

Judge Manning 

This case is before me on a notice of contest brought by West Ridge Resources, Inc. 

("West Ridge") against the Secretary of Labor, acting through the Mine Safety and Health 

Administration ("MSHA"), pursuant to section 105 of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et. seq. (the "Mine Act"). An expedited hearing was held in Denver, 

Colorado, on February 20 and 21, 2009. 

I. BACKGROUND AND STIPULATIONS 

West Ridge operates the West Ridge Mine, a large underground coal mine in Carbon 

County, Utah. The mine extracts coal in panels using a longwall system. fu each panel, two sets 

of entries are excavated using continuous mining equipment to the very back of the panel. The 

coal to be mined is between the two sets of entries. The longwall equipment is transported to the 

back of the panel where it is set up to begin the mining process. Large cutting blades with teeth 

(the "shearer") cut the coal along the face. The coal is transported out of the mine on a series of 

conveyor belts. As the shearer moves along the face cutting the coal, the shields that support the 

roof move closer to the longwall face along with the other longwall equipment, so that a new cut 

can be made. The longwall equipment moves toward the main entries of the mine until the panel 

31 FMSHRC 287 
is completely mined out. This type of mining is often referred to as retreat mining because the 

longwall equipment is set up at the back of the panel and the coal is cut as the equipment 

"retreats" toward the main mine entries. 

The West Ridge Mine is under deep cover. In a very real sense, the mine is under a 

mountain. As discussed below, the mine experienced a series of bounces in late January 2009. 

When a bounce occurs there is a sudden outburst of coal from the ribs (sides) of an entry. The 

outburst can also emanate· from the working face. One miner was injured as a result of a bounce. 

The parties entered into stipulations of fact. The key stipulations are set forth below. I 

have edited the stipulations slightly as shown in brackets. 

4. Since May 2001, West Ridge has utilized a longwall mining system commonly 

referred to as a two-entry yield pillar system, where, generally, longwall panels are mined one 

after another, with two entries and 30-foot yield pillars left between them. 

5. On August 15, 2008, Allyn Davis, District Manager, Coal Mine Safety & Health 

("CMS&H") District 9, sent a letter to West Ridge discussing the proposed longwall retreat of 

Panel 13. (Joint Exhibit ("JX") 1). · 

7. On September 9, 2008, West Ridge submitted a large roof control plan amendment 

and accompanying reports. (JX-3). 

9. On September 19, 2008, West Ridge submitted to MSHA a Site Specific Mining Plan 

for Longwall Panel 13, which enclosed the September 17, 2008 report [prepared by Agapito 

Associates, fuc. ("AAI'')]. (JX-5). 

10. On October 8, 2008, Michael.Gauna, Mining Engineer, Roof Control Division of 

MSHA, authored his evaluation of [the site specific plan]. (JX-6). 

11. On October 20, 2008, West Ridge sent a letter to [District Manager Davis], enclosing 

for his review and approval a submittal amending pages 39 and 40 of the current West Ridge 

Roof Control Plan. · (JX-7). 

12. On October 27, West Ridge sent a letter to [District Manager Davis] enclosing for his 

review and approval modifications/amendments to the currently approved West Ridge Roof 

Control Plan. (JX-8). · 

13. On October 31, 2008, MSHA sent a letter to West Ridge approving proposed roof 

control plan amendments. (JX-9). · 

14. Also, on October 31, 2008, MSHA sent a letter to West Ridge approving the 

proposed roof control plan to longwall mine Panel 13. (JX-10). 

31 FMSHRC ·288 
15. West Ridge began to Iongwall mine Panel 13 in November 2008. 

16. On January 24, 2009, a coal burst occurred on the Panel 13 longwall in the tailgate 

[area of the face]. It damaged mining equipment and caused mining to cease for over an hour. 

No one was injured. West Ridge reported the incident to MSHA pursuant to 30 C.F.R. § 50.10. 

MSHA issued an order pursuant to section 103(k) of the Mine Act and terminated the order the 

next day. (JX-11). 

17. On January 26, 2009, a coal burst occurred on the Panel 13 lorigwall in the tailgate 

[area of the face]. It damaged equipment and caused mining to cease for over an hour. No one 

was iajured. West Ridge reported the incident to MSHA pt1rsuant to· [ sectfon 50. l O]. MSHA 

issued an order pursuant to Section 103(k) of the Mine Act (Order No. 8454816) after the bounce 

occurred. (JX-12). 

18. Order No. 8454816 was twice amended to allow West Ridge to move equipment. 

(JX-13 & 14). 

19. On January 29, 2009, MSHA terminated Order No. 8454816 following approval of a 

roof control amendment (JX-15). Among other things in the amendment, West Ridge agreed to · 

slow the rate of mining from forty-five (45) feet per minute to thirty-two (32) feet per minute on 

most portions of the longwall face and to twenty (20) feet per minute on the tailgate portion. 

20. On January 31, 2009, a coal burst occurred on the Panel 13 longwall in the tailgate 

[area of the face]. It caused injury to the Iongwall shearer operator. West Ridge reported the 

incident to MSHA pursuant to [section 50.10]. 

21. Following the coal outburst on January 31, 2009, MSHA issued an Order pursuant to 

Section 103(k) of the Mine Act (Order No. 8454817). (JX-16). 

22. Later on January 31, 2009, MSHA issued a modification to the order [No. 8454817-

01] to allow West Ridge to bring the shearer to the headgate. (JX-17). 

23. On February 1, 2009, MSHA issued a second modification to the order [No. 8454817-

02] to allow maintenance on the longwall. (JX-18). 

24. On February 2, 2009, MSHA issued a third modification to the order [No. 8454817-

02 (sic)] to allow West Ridge to test the feasibility of remotely operating the longwall shearer. 

[JX-19]. 

25. On February 5, 2009, West Ridge sent a letter to [District Manager Davis], attaching 

for his review and approval a request for amendment to the roof control plan to allow for mining 

the remainder of Panel 13 using remote operation. (JX-20). 

31 FMSHRC 289 
26. On February 6, 2009, MSHA sent a letter to West Ridge denying the February 5, 

2009, requested amendments and noting several deficiencies. (JX-21) . 

. 27. On February 7, 2009, West Ridge sent a letter to [District Manager Davis], attaching 

for his review and approval a request for amendment to the roof control plan to allow for 

evaluation of the remote longwall mining system for Panel 13. (JX-22). 

28. On February 7, 2009, MSHA issued a fourth modification to the order [No. 8454817-

03 (sic)], which allowed for the implementation of the plan to retreat the longwall to a point 35 

feet inby crosscut 32 using remote longwall operation and which also stated that, during this 

time, the performance of the plan would be evaluated to determine feasibility and exposure. (JX23). . 

29. On February 7, 2009, MSHA also sent a letter to West Ridge approving the plan to 

allow for evaluation of the remote longwall mining system for Panel 13. (JX-24). 

30. On February 13, 2009, MSHA issued a fifth modification to the order [No. 8454817-

05] prohibiting further lorrgwaU retreat past crosscut number32 and referencing a letter from 

Allyn Davis to Darrell Leonard of February 13, 2009. (JX-25). 

31. On February 13, 2009, Allyn Davis also sent a letter to West Ridge indicating the 

results ofMSHA's evaluation and stating that the 103(k) order was being modified to preclude 

additional mining beyond crosscut 32. (JX-26). 

Because the language of Order No. 8454817 and some of the subsequent modifications 

are important to the disposition of this case, I have set them out below: 

Order No. 8454817 (January 31, 2009) states: 

A bounce/outburst of coal occurred at approximately 0700 hours 

on January 31, 2009, located at the tail gate area of the 7th West 

two-entry longwall section (MMU 003). This event involved the 

shearer between #134 and #144 shields. 

This order is issued to assure the safety of all persons at this 

operation, until examination and/or investigation of the 

bounce/outburst area is made to determine that the area is safe. 

This order will also prohibit any mining of coal on the 7th West 

section, until this investigation is complete. 

31 FMSHRC 290 
Modification No. 8454817-03 1 (February 2, 2009) states: 

This modification is to allow the operator to test the feasibility of 

remotely running the shearer from outby the bounce prone area. 

The operator may do the following: 

1. Install additional lighting 

2. Paint the cowl with reflective or fluorescent paint while the· 

shearer is at the headgate 

3. Tram the shearer up and down the face 

4. Perfomi any cleanup ·with the shearer that may be needed 

5. Install permissible cameras on the shearer from a safe location 

and at the tailgate. 

This order prohibits the mining of any coal on the 7th West section, 

except any necessary cleanup to facilitate tramming the shearer. 

Modification No. 8454817-04 (February 7, 2009) states: 

This order is modified to allow the implementation of the plan, 

dated February 7, 2009, to retreat the longwall to 35 feet inby 

crosscut 32. During this time, the performance of the plan will be 

evaluated to determine feasibility and exposure. 

Modification No. 8454817-05(February13, 2009) states: 

THIS ORDER IS MODIFIED TO PROHIBIT FURTHER 

LONGW ALL RETREAT PAST CROSSCUT NUMBER 32. This 

modification of the (k) order is based on an evaluation of the 

feasibility and exposure associated with the February 7, 2009, plan 

modification. Please see the attached letter from District Manager 

Allyn Davis to Mr. Darrell Leonard dated February 13, 2009. 

The letter from District Manager Davis dated February 13 states, in part, that MSHA had 

performed an evaluation of the February 7 plan and "the results make it clear that this method of 

mining presents unacceptable risks to miners." The letter goes on to state: 

Longwall panel 13 is mining under deep cover and in difficult 

geological conditions. Coal bursts continue to occur on the 

1 This modification was incorrectlynumbered-02 by the inspector. fu addition, Modification 

No. 8454817-03, discussed below should have been numbered -04. I have used the correct numbers 

in this decision. 

31 FMSHRC 291 
longwall face. fudeed, significant bounce activjty occurred last 

night and early this morning which indicates that conditions appear 

to be worsening. A log kept by West Ridge shows numerous 

instances of miners traveling inby shield No. 125, exposing them to 

the hazards of coal bursts. The February 7 modification provides 

no protection for miners performing necessary maintenance at the 

face, and does not provide for necessary examinations through the 

tailgate. The need to have access to the entire face during normal 

mining cannot be overlooked. The February 7 modification did not 

adequately address safe access to the tailgate, the ability to 

:frequently check the face and tailgate for hazards and methane, 

prevention of accumulations of combustible material, and routine 

maintenance. The continued exposure to miners of hazards under 

the February 7 modification is unacceptable. MSHA cannot allow 

the mine to continue operating under this modification. Therefore, 

the 103(k) order will be modified to preclude additional mining 

beyond crosscut 32. 

It is this final modification of the order prohibiting further mining of Panel No. 13 that is the 

subject of this litigation. 

The parties presented numerous witnesses and exhibits at the two day hearing. The 

Secretary called Peter Del Duca, a mining engineer in the roof control division ofMSHA's Coal 

District 9; Michael Gauna, a mining engineer in the roof control division ofMSHA's Technical 

Sμpport Directorate; Ronald Paletta, a .coal mine inspector from MSHA' s Price, Utah, office; 

Kevin Stricklin, Administrator of Coal Mine Safety and Health for MSHA; and Allyn Davis, 

District Manager for Coal District 9. West Ridge called Bruce Hill, President of West Ridge; 

Darrell Leonard, Mine Superintendent; Hubert Wilson, Safety Director at the mine; Ernie 

Martinez, a longwall production foreman at the mine; Adam Mann, an assistant shift foreman; 

Mike Allred, a longwall production coordinator; and Dr. Syd Ping, a professor of mining 

engineering at West Virginia University. 

Section 103(k) of the Mine Act gives the Secretary authority to issue what are known as 

control orders at the nation's mines. 30 U.S.C. § 813(k). That section provides:. 

In the event of any accident occurring in a coal or other mine, an 

authorized representative of the Secretary, when present, may issue 

. such orders as he deems appropriate to insure the safety of any 

person in the coal or other mine, and the operator of such mine 

shall obtain approval of such representative ... of any plan to 

recover any person in such mine or to recover the coal ... or return 

affected areas of the mine to normal. 

31 FMSHRC 292 
II. BRIEF SUMMARY OF THE PARTIES' ARGUMENTS 

A. West Ridt:e 

West Ridge argues that the Secretary's decision to modify the section 103(k) order to 

prohibit the company from mining Panel 13 inby crosscut 32 was unreasonable and was an abuse 

of the Secretary's discretion. The evidence shows that mining Panel 13 by remote control was 

very successful because it greatly reduced the exposure of miners to hazards presented by 

bounces. The parties reached agreement on February 7 that West Ridge would try to mine Panel 

13 by remote control under an amended roof control plan and that MSHA would evaluate the 

plan to determine feasibility and exposure. All of the credible evidence shows that the amended 

plan worked better than expected and that the exposure of miners to the hazards of bounces was 

greatly reduced. West Ridge employees were shocked when they learned that all mining in Panel 

13 had to stop. MSHA never evaluated the amended roof control plan that authorized remote 

mining and arbitrarily decided that, because the amended plan could not assure that there would 

never be any more bounces on the tailgate end of the face, mining should cease in Panel 13. 

On the morning ofFebruary 13, without any warning, MSHA initiated a conference call 

to advise West Ridge that it would not be permitted to mine past crosscut 32 in Panel 13. This 

call included high level MSHA officials such as Ed Clair and Kevin Stricklin. Three local 

MSHA inspectors had been closely monitoring the longwall section, yet MSHA initiated this 

conference call after the District Manager had a conversation that morning with only one of these 

three inspectors. He made no effort to contact the other inspectors or to evaluate the 

effectiveness of the remote mining system in an objective manner. 

The Secretary exceeded her authority when MSHA issued Modification No. 8454817-05. 

It was an unreasonable use of her power under section 103(k). The initial withdrawal order was 

issued on January 31 because an outburst had occurred between shields 134 and 144. The order 

was issued to assure the safety of all persons until an .. examination and/or investigation of the 

bounce/outburst area is made to determine that the area is safe." The company instituted 

significant technological changes to prevent future injuries. About 95 percent of face bounces 

occur when the shearer is cutting coal in the tailgate area. The changes instituted by West Ridge, 

with the approval ofMSHA, kept all miners out of the tailgate area as the shearer was cutting 

coal in that area. The area where the January 31 outburst occurred was 240 feet away in the gob 

by the time the fifth modification to the order was issued. As a consequence, the area cited in the 

order was safe. There was no legal justification to modify the order to prohibit further mining. If 

MSHA had a problem with the amended roof control plan, it should have sought further 

negotiations or issued a section 104( a) citation, rather than modify the 103(k) order in an illegal 

manner. 

B. Secretary of Labor 

31 FMSHRC 293 
The Secretary argues that she has plenary power to issue and modify section 103(k) 

orders. The Commission cannot and should not disturb her authority unless she has abused her 

discretion. It is not improper for MSHA to use her authority under section 103(k) to require a 

mine operator to implement a new roof control plan to ensure the safety of miners. There are no 

time limitations on the Secretary's use of modifications to section 103(k) orders. MSHA 

performed an evaluation of the amended plan and determined· that it did not adequately protect 

miner safety. On that basis, MSHA concluded that the subject modification to the order of 

withdrawal was necessary. MSHA is not required to interview everyone who was involved in 

the evaluation or to explain why it gave weight to some facts and not others. If some evidence 

supports MSHA's decision to issue a section 103(k) order or to modify an existing order, it acted 

reasonably and her decision cannot be overturned by the Commission. The inspector that the 

district manager interviewed on the morning of February 13 told him that the "energy level" 

along the face was increasing and that there were numerous bumps and bounces along the face 

during the graveyard shift of February 12-13. It was reasonable for MSHA to rely on this 

information, along with other information it received, when it decided to shut down the longwall. 

In short, MSHA exercised its professional judgment that the amended roof control plan could not 

safely be used in Panel 13. 

ID. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

A. Discussion of the Evidence. 

At the hearing, everyone agreed that, because the mine operates under deep cover, it is a 

bounce-prone mine. A mine operator must report a bounce to MSHA under section 50.10 if 

there is a "coal or rock outburst that causes withdrawal of miners or which disrupts regular 

mjning activity for more than an hour." (30 C.F.R. § 50.2(h)(9)). Including the bounce on 

January 31, 2009, West Ridge has experienced 15 reportable bounces since January l, 2003. 

(GX-1 & GX-2). All but two of these bounces have been on the tailgate side of the longwall. In 

addition to these reportable bounces, the mine experiences smaller events that need not be 

reported. These events may make noise and may include outbursts of coal, but they do not need 

to be reported if nobody is injured or if mining is not disrupted for at least an hour. If there is a 

violent outburst of coal or rock, mine personnel consider the event to be a bounce. If there is no 

oqtburst of coal or rock, or if coal merely sluffs off the face into the panline after a noise, it is not 

considered to be a bounce. 2 Because the mine is under deep cover, the longwall face frequently 

makes noises and coal falls from the face on a regular basis. Indeed, miners get worried if the 

face is too quiet because it may mean that the pressure is not being released from the coal which 

could portend a larger boUQ.ce in the future. 

2 The panline carries the freshly cut coal to the stage loader at the headgate where the coal 

is transferred onto a belt for transportation out of the mine. The panline is adjacent to the coal face. 

31 FMSHRC 294 
In general, MSHA had not taken any enforcement action following bounces at the mine 

because such events are to be expected. MSHA became quite concerned in late January 2009, 

however, because the mine experienced three reportable bounces within a seven-day period. 

Peter Del Duca of the District 9 office visited the mine following this bounce. He took 

photographs which showed that a large amount of coal was expelled from the face near Shield 

143.3 (GX-3). Because bounces are more common on the tailgate end of the longwall, West 

Ridge had built protective guards so that the face, shearer, and the panline are behind these 

guards. These guards consist of metal framing, called the pig pen, and three-quarter inch belting. 

(CX-16). The walkway used by miners working in the longwall are on the other side of these 

guards. The idea of the guarding is to protect miners from coal bursts. As Mr. Del Duca noted, 

however, employees can be injured by the concussion from the noise or movement of coal. In 

addition, ifthe ground shakes, a miner can be knocked off his feet. The photographs taken by 

Del Duca show that the belting prevented the coal that was expelled from the face from entering 

the walkway. The belting was severely deformed, however, and protruded into the walkway: 

(GX- 3b & 3c). 

Following the second bounce, Michael Gauna of MSHA Technical Support visited the 

mine. He took photographs of what he observed. (GX-11). He noted that the bounce damaged 

the cable tray. ( GX-11 d). The pig pens and belting material kept coal from entering the 

walkway. 

A miner suffered a fractured rib and a partially deflated lung when another bounce 

occurred on January 31. He was not hit by any coal. Rather, either the floor vibrated or the 

concussion from the burst knocked him down and he fell into a shield. After the third bounce, 

District Manager Davis quickly became convinced that the West Ridge Mine should not be 

permitted to continue mining Panel 13 and should move on to Panel 14. Kevin Stricklin agreed 

with Davis on this issue. A meeting was held among mine officials and District 9 personnel to 

discuss the situation. At this meeting, company management asked if the company could try to 

develop a system where the shearer could be operated by remote control when it was cutting coal 

at the tailgate end. The idea behind this proposal is that, because most of the bounces occur as 

the shearer is cutting coal at the tailgate, the company would try to develop a system in which the 

miners would not need to be in the tailgate area as coal is being cut. (Ordinarily, two miners 

walk along the entire length of the walkway as they operate the shearer.) West Ridge asked to 

test this remote system because it wanted to see if coal could be safely mined with the aim of 

using the system to mine all of Panel 13. As stated below, MSHA eventually granted the 

company's request, but it made no commitment that i! would be allowed to mine beyond crosscut 

32. MSHA preferred that the company remove the longwall equipment and proceed to Panel 14 

as soon as possible. In preparation for this experiment, MSHA issued Modification No. 

8454817-03. (JX-19). 

3 The shields provide roof support along the walkway in the longwall. The shields are 

numbered 1through148. The shields that are considered to be in the tailgate area are between 126 

and 148. 

31 FMSHRC 295 
The company's attempt to develop a system to mine the tailgate end of the face by remote 

control was a major undertaking that had never been attempted at any mine in the country. For 

example, it required changes be made by Joy Manufacturing Company in the program software. 

The shields normally move up a few at a time but a large number of shields had to move if it was 

operated remotely. The speed of the shearer had to be changed in the computer program to 

automatically slow it down in the tailgate area. fu addition, more lighting was installed, the cowl 

for the shearer was painted with a reflective paint, and cameras were installed. Bruce Hill 

testified that these modifications were made at great cost. 

In order for West Ridge to use the remote mining method, an amendment to the roof 

control plan had to be approved. The company submitted a plan to provide for remote mining on 

February 5. (JX-20). The plan included the elements that had been discussed at the meeting on 

February 2. When cutting the tailgate zone from shields 126 through 148, no miners would not 

be permitted to travel past shield 125. The shearer would travel at a speed of 20 feet a minute 

while in the tailgate zone and 32 feet a minute along other areas of the face. The shearer would 

be operated from shield 125 by radio remote control when coal was cut in the tailgate zone. Pig 

pens and belting guards would be installed all along the tailgate zone up to shield 145. A record 

book ("log book") would be kept at shield 125 to record such information as the name of any 

miner who traveled into the tailgate zone and the purpose for each trip. Any bounces were also 

to be recorded. No miners would be permitted in the tailgate zone for 30 minutes after the coal 

was cut. 

In a letter from District Manager Davis, dated February 6, 2009, MSHA rejected the 

proposed amendment to the roof control plan. One reason that the plan was not approved was 

that the 30-minute waiting period was too short. The rejection letter also stated that the "plan 

should state that the purpose of this plan is to evaluate the use of remote systems with the intent 

of reaching the next available crosscut to extract the longwall face." (JX-21). 

On February 7, the parties held a five-hour meeting at the district office to discuss the 

plan amendment. West Ridge repeatedly asked to be permitted to mine the remainder of Panel 

13, if the remote system performed well. Although MSHA personnel did not make any promises, 

it also indicated that, if the system worked, it might permit mining to continue beyond crosscut 

32. West Ridge submitted a new amended plan and it was approved on February7.4 (JX-22). 

The amended plan did not specifically state that the intent was to reach the next available 

crosscut so that the longwall equipment could be removed. The modification to the 103(k) order 

allowed the implementation of the February 7 plan to retreat the longwall to crosscut 32. It went 

on to state that, during this time, the performance of the plan would be evaluated to determine 

feasibility and exposure. (JX-23) .. 

4 Kevin Stricklin did not become aware of this amended plan until February 9 and he was 

surprised because he thought that the company had agreed to remove the longwall equipment from 

the face as soon as possible. · 

31 FMSHRC 296 · 
West Ridge started mining with the remote system on february 8. All of the West Ridge 

witnesses testified that the remote system operated better than they expected. They had been 

worried that operating the shearer would be difficult or impossible when it reached the very end 

of the tailgate near Shield 148. They also noted that miners were no longer exposed to the 

hazards associated with bounces because miners were prohibited from entering the tailgate area 

while the shearer was cutting coal there. MSHA sent three inspectors to the mine to monitor the 

longwall starting on February 10. Each inspector was on the longwall for his assigned shift for 

three days. The inspectors were Randy Gunderson, Jim Martin, and Ronald Paletta. Inspector 

Paletta worked the graveyard shift which started at 11 :00 p.m. Only Inspector Paletta testified at 

the hearing. 

On February 13, 2009, after he left the mine, Inspector Paletta called District Manager 

Davis. He told Davis that the longwall face was experiencing coal bursts, bounces, and bumps 

all along the face. He noted that there was a significant increase in the amount of energy being 

released along the face when compared to previous shifts. He prepared a memo on the subject. 

(GX-19). He was concerned that this increased activity would affect the ability of miners to exit 

the panel down the tailgate entry. 

Davis testified that he had previously received a copy of part of the log book that had 

been kept at shield 125. He testified that he was surprised by the number of times people had 

traveled into the tailgate zone after February 8. (GX-18; CX-18). He believed that this exposed 

miners to· the hazards that remote mining was designed to prevent. Men went into the tailgate 

zone to perform such work as cleaning rubble, making repairs, and performing examinations. 

Davis called Kevin Stricklin to discuss the matter and a conference call was initiated. The call 

involved a number of people including Stricklin, Davis, Ed Clair, Paletta, and Michael Gauna. 

The other two inspectors who monitored the performance of the remote mining system were not 

consulted by Davis or anyone else from MSHA. Paletta related that the number of bounces 

appeared to be increasing and that they were also occurring in areas that were not in the tailgate 

zone. Stricklin had also reviewed the fog book and he was concerned about the number of times 

miners went into the tailgate zone. He was also concerned about the number of bounces that had 

been occurring. At this point, it was agreed that the remote mining system was not adequately 

protecting miners and that no mining was to occur past crosscut 32 in Panel 13. 

Company witnesses testified that MSHA failed to properly evaluate the feasibility of the 

remote mining system and the exposure of miners to bounces. Several witnesses who worked the 

graveyard shift with Paletta directly contradicted his testimony. Ernie Martinez, a longwall 

production foreman, worked the same graveyard shifts as Paletta. He testified that there were no 

bounces during his shifts. There were some hits and noises but those always occur along the 

face. No coal was expelled from the face and there were no outbursts of coal. Coal would sluff 

off after a hit and fall· into a panline, but that is a regular occurrence. During the graveyard shift 

in the early morning of February 13, the shearer had stopped near shield 125. Paletta was sitting 

on the shield and Martinez was leaning on a piece of equipment. There was a loud noise which 

startled the group of men. The shearer was not operating so the area was otherwise quiet. Paletta 

31 FMSHRC 297 
testified that he.said to Martinez, "that was a good bounce," to which Martinez replied, "Yea, it 

was a good bounce." ( GX-19). Martinez denied this conversation and testified that when he 

asked the inspector to rate the little bump. from 1 to I 0 the inspector said it was a 2. 

Adam Mann, an assistant shift foreman, testified that nothing that happened on that same 

graveyard shift of February 13 was abnormal. He said that the conditions were not at all like the 

situation on January 24 when there was a major outburst. Mann could not recall any bounces at 

the headgate. On several occasions, Paletta would ask the person keeping the log book (tlie log 

book "umpire") if he had recorded a particular bump or bounce. Mann testified that Paletta 

would frequently tell the umpire to record events that were not even close to being bounces. 

Unless there is an outburst of coal, the event should not be considered a bounce. The log book 

shows that many more events were recorded as bounces when Paletta was the MSHA 

representative than when the other two inspectors were present. Mann believed that Paletta was 

very uncomfortable being on the longwall face and that he was jittery while he was there. Mike. 

Allred, a longwall production coordinator, testified he heard thumping on the graveyard shift, but 

no bounces. He admitted that there was a bounce on the day shift on February 13, after Paletta 

had left the mine. That bounce did not need to be reported to MSHA under section 50.10. 

West Ridge witnesses also testified that, as the longwall approached crosscut 32, it was 

traveling under a ridge in the mountain. (GX.,. l ). The longwall was in an area where the stresses 

would be the highest. Once the longwall retreated beyond crosscut 32, the cover would not be as 

deep and the stress would be reduced. Dr. Ping testified that he believes that there were several 

reportable bounces in late January because there was a roof overhang near the tailgate comer at 

the time. 5 In other words, the area in the gob near this comer was not caving completely. He 

attributed this overhang to the fact that, due to geologic conditions, Panel 11 was only partially 

mined. 6 1d. He testified that better caving is achieved if the gob covers a large area that is not 

interrupted by intrusions of unmined coal. He also testified that the area under a ridge is a . 

t11m.sition zone that puts stress on the tailgate side of the panel being mined and that, as mining 

progresses past this transition zone, the number of bounces. or bumps should decrease. 

Bruce Hill and other witnesses testified about the ongoing negotiations between MSHA 

and the company concerning the method of mining once Panel 14 has been mined. As stated 

above, each panel bring mined is adjacent to the previous one with yield pillars in between. This 

is known as panel-panel mining. It is apparent that MSHA wants the company to place a barrier 

of coal between each panel, in a system known as panel-barrier-panel mining. Although that is 

5 Dr. Ping is a well-recognized expert in ground control in coal mines. He has authored 

textbooks on coal mine ground control and longwall mining that are used in mining engineering 

courses. (CX-2). 

6 The coal seam at West Ridge has geologic faults and other structures that can interfere with 

mjning. There is also sandstone present, which can adversely affect ground control. 

31 FMSHRC 298 
not an issue in this case, Hill suggested that MSHA 's actions can only be understood by taking 

this dispute into consideration. 7 

Mr. Hill and other West Ridge witnesses testified that, during the negotiations over the 

amended roof control plan for Panel 13 to allow remote mining, the company made clear its 

objective to mine the remainder of Panel 13. The company would have only mined about half 

the panel if it could not retreat past crosscut 32. Although MSHA did not make any promises, 

District Manager Davis gave the impression that, if remote mining worked, West Ridge would be 

able to mine beyond crosscut 32. It was on this basis that Mr. Hill agreed to try the remote 

mining system. He testified that if MSHA had told him on February 7 that the company would 

not be permitted to mine beyond crosscut 32, it is likely that he would have taken steps to have 

the longwall equipment removed so that the company could begin mining Panel 14. (The 

company would have been required to have the roof control plan amended to allow the extraction 

of the longwall equipment). Hill testified that, because the roof in a coal mine deteriorates when 

mining stops, the company may not be able to safely remove the longwall equipment at the 

present time. At best, he believes that it will be able to remove some of the equipment near the 

headgate.8 

Mine Superintendent Leonard testified that West Ridge has taken extraordinary steps to 

protectthe safety of miners working in the longwall section. Indeed, Mr. Del Duca told him that 

no othercoal mine in the country is doing more. In addition to the actions discussed above, such 

as the installation of pig pens and belting in the tailgate zone, the company requires all of its 

miners working in the longwall to wear what it colloquially calls "riot gear." (CX-16). This gear 

includes a full face mask, chest protector, and knee, shin, and metatarsal protection. The · 

company prohibits anyone from entering the tailgate zone during production, it slows down the 

rate of production, and it does not allow anyone in the tailgate zone until 45 minutes after coal 

has been cut to allow the roof to settle. These provisions are in the amended roof control plan. 

West Ridge witnesses testified that Davis and Stricklin should not have been alarmed by 

the fact that miners traveled into the tailgate zone. The men entered the tailgate in accordance 

with the roof control plan to perform required tasks and conduct required MSHA examinations 

and tests. Company witnesses testified that 90 to 95 percent of all bounces occur when coal is 

being cut in the tailgate zone. As a consequence, with all of the protective measures taken. by the · 

7 West Ridge left a barrier of coal between Panels 13 and 14. Its witnesses stated that this 

barrier was placed there to better control water in the mine and ventilation of the panels. 

8 Because both parties to this proceeding asked that my decision be issued as quickly as 

possible, I wrote this decision before the expedited transcript had been prepared. As a consequence, 

I could not include page references to the transcript. 

31 FMSHRC 299 
company, miners who work in the tailgate zone 45 minutes or more after the coal is cut are not in 

serious danger.9 

Several West Ridge witnesses, including Leonard, Wilson, Mann, and Allred, testified 

that they discussed the remote mining system with Inspectors Gunderson and Martin. These 

discussions occurred between February 10 and February 13. The witnesses testified that these 

inspectors had a more positive attitude toward the safety of the remote mining process than 

Inspector Paletta. They also said that these inspectors were surprised and upset that they were 

not consulted before MSBA decided that remote mining was not safe. Hill and Leonard also 

testified that the objective of the test of remote mining was to see if miners could be protected 

from bumps, bounces, and outbursts by limiting their exposure and instituting the administrative 

controls discussed above. Measured by this standard, the test was a complete success. They 

strongly believe that MSHA wrongly rejected the idea of remote mining, as described in Hill's 

letter to Davis dated February 15, 2009. (CX-19). 

B. Analysis of the Issues. 

The parties do not-dispute that MSHA had the authority to issue the 103(k) order on 

January 31, 2009. There had been a reportable accident at the mine. The dispute concerns 

MSHA's authority to issue Modification No. 8454817-05. (JX-25). West Ridge argues that the 

original order was issued because of conditions that existed on January 31 in the tailgate area. 

As stated above, the longwaJ,l has mined well beyond the area of concern and the company has 

instituted significant changes that will prevent future injuries. As a consequence, MSHA was 

required to terminate the l 03(k) order and it did not have the authority to extend it to cover a new 

situation. 

Although it is true that the longwall had retreated past the area where the January 31 

bounce occurred, I find that it was within MSHA authority to keep the section l 03(k) order in 

force until it was satisfied that the hazards presented by bounces in the tailgate were fully 

addressed. The fact that mining had progressed beyond the area of the original accident does not 

end MSHA's responsibility to "insure the safety" of miners from the same conditions along the 

tailgate further inby. (Section l 03(k)). Section 103(k) allows MSHA to issue such orders as it 

deems appropriate following an accident until it is convinced that it can safely return the area to 

normal. This authority includes the power to issue modifications to the original order. The 

hazard presented in this case was not stationary, but retreated inby with the longwall along the 

tajlgate side. As a consequence, I do not agree with company's argument on this issue. 

West Ridge also argues that the dispute in this case is really about the mine's amended 

roof control plan. IfMSHA believed that the plan was not being followed or that it should be 

modified, it should have negotiated with West Ridge and, if such negotiations were not 

9 If miners must leave the travelway in the tailgate zone to work behind the pig pens and belt 

guards, special measures are taken that the company believes protects the miners. 

31 FMSHRC 300 
successful, it should have issued a citation under section 104( a). By unlawfully using a section 

103(k) order in this instance, the Secretary is denying the company the opportunity to litigate the 

issue on the merits. The Secretary's burden of proof is significantly reduced when litigating a 

section 103(k) order. 

As I stated at the hearing, I am troubled by the Secretary's use of a section 103(k) order to 

demand compliance with a roof control plan. MSHA, in essence, rejected the continued use of 

the amended roof control plan when it issued Modification No. 845481 7-05. It is important to 

note that MSHA did not consider the situation in Panel 13 to constitute an imminent danger 

because a section 107(a) order was not issued and MSHA allowed West Ridge to continue 

mining. MSHA used what it considers to be its plenary power under section 103(k) to force 

West Ridge to abandon Panel 13 without affording the company the opportunity to negotiate the 

issue or obtain meaningful review before the Commission. I recognize that the previous 

modification of the 103(k) order stated that it was only issued to allow remote retreat mining to 

35 feet inby crosscut 32. 10 That provision was included, however, with the caveat that the plan 

would be evaluated to determine feasibility and exposure. 

Congress granted-the Secretary wide discretion under section 103(k). The Commission 

has the authority to review section 103(k) orders but this authority is limited to determining 

whether MSHA acted reasonably under the circumstances. See e.g. Buck Mountain Coal Co., 15 

FMSHRC 539 (March 1993) (ALJ). I have no doubt that the MSHA officials who participated in 

the decision to halt mining in Panel 13 did so because they believed that the safety of the miners 

could not be adequately protected under the amended roofcontrol plan. The issue is whether it 

was reasonable for MSHA to modify the section 103(k) order rather than issue a section 104(a) 

citation and, if necessary, a 104(b) order in this case. MSHA believed that the hazard that caused 

the accident had not been mitigated. Davis and Stricklin were told by fuspector Paletta that 

bounces were continuing, miners had to enter the tailgate zone more often than originally 

believed, and miners might not be able to exit the tailgate entry in the event of an emergency. 11 

fu addition, the log book contained information that convinced Davis and Paletta that the 

conditions at the tailgate were too hazardous for miners. Thus, although I am troubled by 

MSHA' s use of its authority under section 103{k), I hold that it was reasonable for it to issue the 

subject modification to the order given the unpredictable nature of bounces and the fact that the 

previous modification only authorized mining up to crosscut 32. The legislative history of 

section I 03(k) is instructive. The Senate report states: 

The unpredictability of accidents in mines and uncertainty as to the 

circumstances surrounding them requires that the Secretary or his 

authorized representative be permitted to exercise broad discretion 

10 The "35 feet inby" language was included because mesh would have to be bolted to the 

roof along the face at crosscut 32 if the company were to attempt to remove the longwall equipment. 

11 Both designated escapeways were in the headgate entries. 

31FMSHRC301 
in order to protect the life or to insure the safety of any person. 

The grant of authority under section [103(k)] to take appropriate 

actions and ... to issue orders is intended to provide the Secretary 

with flexibility in responding to accident situations, including the 

issuance of withdrawal orders. 

(S. Rep. No. 95-181, at 29 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human 

Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 617 (1978). 

Based on the above, I reject West Ridge's argument that the Secretary was required to address 

this issue through a section 104(a) citation. 

I am also troubled by the fact that MSHA did not carefully evaluate the feasibility of the 

amended roof control plan to see whether it protected miners from being exposed to the hazards 

of bumps and bounces. A reasonably prudent person would interpret the term "evaluate" to 

include more than what occurred in this instance. Based on the input from one inspector, MSHA 

determined, in a conference call, that mining should not progress beyond crosscut 32. MSHA 

did not seek the input of the other two inspectors or evaluate the log book in an analytical 

manner. More importantly, MSHA did not seek any input from the company to obtain 

information that might address the concerns that MSHA had. As a consequence, West Ridge 

managers were honestly surprised when they were told that Panel 13 could not be mined beyond 

crosscut 32. (CX-19). February 13 was a Friday and the longwall reached that crosscut over the 

weekend. With the exception of some development mining using a continuous mining machine, 

the mine has been idle since that weekend and most miners have been :furloughed. 

As stated above, West Ridge devoted a considerable amount of energy, time, and money 

to try to develop a remote longwall system that would protect miners. MSHA knew about these 

undertakings and District Manager Davis seemed interested in seeing whether the system would 

work. It is rather surprising that MSHA would shut down the longwall in Panel 13 without a 

more thorough evaluation of the system. For example, both Davis and Stricklin reviewed the raw 

data in the log book and drew some important conclusions from the information provided 

withoutdiscussing this information with company officials. At the hearing, West Ridge 

employees testified that some of the conclusions dr:awn from this review of the raw data were 

erroneous and that other more logical conclusions could also be drawn from the data. 12 West 

Ridge was never given the opportunity to discuss the information in the log book with MSHA 

before it made the decision to issue the contested modification. MSHA did not discuss the issues 

with Inspectors Gunderson and Martin to see if they agreed with Paletta. West Ridge argues that 

the decision to disallow remote control mining really came from MSHA headquarters in 

.Arlington and that the decision was more politically based than the agency is willing to admit. It 

12 For example, an extraordinary number of the reported bounces occurred when Inspector 

Paletta was at the mine. In addition, miners were only in the tailgate zone when the shearer was n:ot 

operating. The company was never able to discuss with MSHA how these facts affect the safety of 

miners working on the longwall. 

31 FMSHRC 302 
is clear from Administrator Stricklin's testimony that he was not really in favor of the remote 

mining test and believed that the longwall equipment should have been removed from the panel 

at the earliest possible opportunity. 

I find that, although MSHA did not throughly evaluate the effectiveness of the remote 

longwall system or whether the system adequately protected miners, MSHA's decision to issue 

the subject modification was reasonable. The process that MSHA used in evaluating the 

effectiveness of the remote mining system was flawed, but MSHA's concerns were genuine. 

MSHA could have initially determined on February 7 that it would not consider testing a remote 

mining system in an amended roof control plan. For example, one reason that it ultimately 

determined that it would not permit West Ridge to continue operating in Panel 13 under the 

amended roof control plan was because, under section 75.362(d), :frequent tests for methane are 

required at the working face. This standard would require a miner to enter the tailgate zone on a · 

regular basis. Davis testified that MSHA failed to take this safety standard into consideration 

when the February 7 amended roof control plan was approved. 

In addition, although the evaluation was flawed, as described above, MSHA could have 

and likely would have issiied the same modification had Davis first discussed the matter with the 

other two inspectors and reviewed the log book with company management. MSHA officials 

relied heavily on the opinions of its own employees including Del Duca and Gauna, who have 

extensive roof control experience. They had both been to the mine and had observed firsthand 

what can happen if there is a coal outburst. Throughout the hearing, witnesses for both MSHA 

and the company testified that bumps, outbursts, and bounces are unpredictable. Stricklin, Davis, 

and other MSHA officials were concerned that a bounce could occur when a miner was in the 

tailgate area and he could be injured despite all of the administrative controls that West Ridge 

had in place. It is quite clear from the record that discussions with company officials would not 

have eased these concerns. West Ridge did not, during the period between February 8 and 13, 

ask the district manager how the amended plan would be evaluated but .it simply assumed that the 

plan would be approved if the company could get the remote mining system to operate. 

I also note that, if I were to determine that the Secretary exceeded her authority under 

section 103(k) and I vacate Modification No. 8454817-05 on that basis, Modification No. 

8454817-04 would remain in place. That modification only authorized West Ridge to mine up to 

crosscut 32, a point the longwall has now reached. I could only order MSHA to again evaluate 

the mine's experience under the February 7 roof control plan amendments to determine 

feasibility and exposure. I reject the argument of West Ridge that, ifl were to vacate the fifth 

modification, the mine would be authorized to resume mining Panel 13. I do not have the 

authority to review or approve roof control plans or to order MSHA to approve such plans. 

Commission administrative law judges have vacated orders when an official from the 

MSHA district office dictated that an order be issued when such official was not at the mine. See 

Jim Walter Resources, Inc., 29 FMSHRC 1043, 1047-48 (Nov. 2007) (ALJ) (citing Cumberland 

Coal Resources, LP, 28 FMSHRC 545, 555-56 (Aug. 2006) (imminent danger order). Although 

31 FMSHRC 303 
• 

Modification No~ 8454817-05 was issued by Inspector Martin, it is clear that he did so at the 

direction of the district office.13 In this instance, the matter at issue was directly rela~ed to ground 

control, an area in which district offices are intimately involved during the plan approval process. 

Thus, I find that the Secretary did not abuse her discretion when Davis, after consulting with Del 

Duca, Gauna, and Paletta, determined that the subject modification should be issued. Although 

Davis had not been to the mine in 2009, he relied on information provided by officials who were 

very familiar with ground control at the mine. 

In conclusion, I find that the Secretary acted reasonably when she issued Modification 

No. 8454817-05, given the broad discretionary authority granted the Secretary under section 

103(k) and the unpredictable nature of bounces, bumps, and outbursts at this mine. Despite the 

problems in the manner in which MSHA evaluated the amended roof control plan, noted above, 

the explanation provided by District Manager Davis for the subject modification in his letter of 

February 13 was reasonable. (GX-17). I recognize that reasonable people could disagree 

whether the amended roof control plan was adequately protecting miners from bounces. The 

company strongly believes that the plan worked better that expected. I only have jurisdiction to 

determine whether the Secretary acted reasonably when she issued the subject modification to the 

section 103(k) order. I cannot substitute my judgment for hers. On this basis, I find that the 

Secretary did not abuse her discretion and I affirm the modification of the order. 

IV. ORDER 

For the reasons set forth above, the Notice of Contest is DENIED, Modification 

No.8454817-05 is AFF1RMED, and this proceeding is DISMISSED. 

Djstribution: 

Richard W. Manning 

Administrative Law Judge:;--...-

Kevin N. Anderson, Esq., and Jason W. Hardin, Esq., Fabian & Clendenin, P.C., 215 State St., 

Suite 1200, Salt Lake City, Uf 84111-2323 (E-mail and Certified Mail) 

13 Although Inspector Martin was apparently unhappy that he was not consulted before the 

decision was made to halt mining in Panel 13, there.is no evidence that he ultimately disagreed with 

this decision. 

31 FMSHRC 304 
Daniel W. Wolff, Esq., Crowell & Moring, LLP, 1001 Pennsylvania Ave, Washington, DC 

20004-2595 (E-mail and Certified Mail) 

Timothy S. Williams, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 1600, Denver, CO 80202-5710 (E-mail and Certified Mail) 

Derek Baxter, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd, 22nd 

Floor, Arlington, VA 22209-2296 (E-mail and Certified Mail) 

RWM 

31 FMSHRC 305 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

· WOLF RUN MINING COMP ANY, 

Respondent 

February 26, 2009 

CIVIL PENALTY PROCEEDING 

Docket No. WEV A 2008-804 

A.C. No. 46-04168-142950 

Sentinel Mine 

ORDER GRANTING JOINT MOTION FOR FINAL 

DECISION REGARDING CITATION NO. 6606199 

AND 

DECISION APPROVING SETTLEMENT FOR 

CITATION NOS. 6606187 AND 6605283 

Before: Judge Feldman 

I. Background 

Safeguards, issued by Mine Safety and Health Administration (MSHA) inspectors 

pl,lI'suant to section 314(b) of the Federal Mine Health and Safety Act of 1977, as amended 

("the Act"), address conditions in a particular mine that pose hazards associated with the 

transportation of miners and materials. 30 U.S.C. § 874(b). Section 75.1403 of the Secretary's 

mandatory safety standards repeats verbatim section 314(b) of the Act. 30 C.F.R. § 75.1403. 

Section 75.1403-1 of the Secretary's regulations sets forth procedures for the issuance of 

safeguards. 30 C.F.R. § 75.1403-1. Sections 75.1403-2 through 75.1403-11 of the regulations 

describe the criteria by which MSHA inspectors are to be guided in issuing and enforcing 

safeguards on a mine-by-mine basis. 30 C.F.R. §§ 75.1403-2 through 75.1403-11. 

On June 27, 2000, the Secretary issued Notice of Safeguard No. 7095089 at the 

Sentinel Mine operated by Wolf Run Mining Company ("Wolf Run"). Safeguard No. 7095089 

cited the criteria in section 75.1403-S{j) that requires suitable crossing facilities where persons 

cross over or under moving conveyor belts. 

Citation No. 6606199, a subject in this proceeding, was issued at WolfRun's Sentinel 

facility on January 23, 2008. The citation alleged a violation of Safeguard No. 7095089 because 

a suitable crossing facility was not provided to enable miners to safely cross over a moving 

conveyor belt. The safeguard violation in Citation No. 6606199 affected one person, and it was 

designated as significant and substantial ("S&S") based on the Secretary's assertion that the cited 

31 FMSHRC 306 
condition was "reasonably likely'' to contribute to an accident that would result in a serious 

injury. 1 The safeguard violation was attributable to a moderate degree of negligence. 

The Secretary has proposed a civil penalty of $1,304.00 for Citation No. 6606199. 

II. WolfRun's Motion 

Section 104( d) of the Act specifies that only mandatory safety standards can be 

designated as S&S. 30 U.S.C. § 814(d)(l). Wolf Run asserts that safeguard violations citing 

safeguard criteria provisions cannot be designated as S&S because the safeguard criteria in 

sections 75.1403-2 through 75.1403-11 are not mandatory safety standards. Consequently, on 

November 25, 2008, Wolf Run filed a Motion for Partial Summary Decision concerning the S&S 

designation in Citation No. 6606199 based on its contention that neither the underlying 

Safeguard No. 7095089 allegedly violated, nor section 75.1403-5(j), are mandatory safety 

standards as contemplated by section 104( d)(l) of the Act. The Secretary filed her opposition to 

WolfRun's motion on December 15, 2008. 

ill. Order Denying WolfRun's Motion 

On December 18, 2008, I issued an Order Denying WolfRun's Motion for Partial 

Summary Decision. 30 FMSHRC 1198. As a general proposition, safeguards are "interim 

mandatory safety standards" under Title ill of the Act. Wolf Run relies on the statutory 

language in section 104( d) that only mandatory safety standards can be designated as S&S. 

However, WolfRun's reliance is misplaced because it fails to recognize the relevant dispositive 

term "mandatory safety standard" has different contextual meanings. Title I of the Act 

authorizes the Secretary to promulgate mandatory safety standards by means of notice and 

comment rulemaking proceedings. However, the statutory definition of ''mandatory safety 

standards" in section 3(1) of the Act includes the "interim mandatory safety standards" in 

Title ill. 30 U.S.C. § 802(1). Thus, safeguards may be enforced as mandatory safety standards 

even though they were not promulgated through a Title I rulemaking. 

Specifically, the Order determined that safeguard violations, issued after an initial 

notice of safeguard has been issued, are "mandatory safety standards," as defined by the Act, 

that can be properly designated as significant and substantial violations. Id. at 1205. 

The Order noted that the safeguard violation in Citation No. 6606199 was issued pursuant to 

section 75.1403 of the regulations that repeats section 314(b) of the interim safety standards in 

Title ill. Id. at 1200. Thus, WolfRun's motion was denied based on the statutory definition of 

"mandatory health and safety standards" in section 3(1) that includes "interim mandatory safety 

standards." Id. .at 1205. 

1 Generally speaking, a violation is S&S if it is reasonably likely that the hazard 

contributed to by the violation will result in an accident causing serious injury. Cement Division, 

National Gypsum, 3 FMSHRC 822, 825 (Apr. 1981 ). 

31 FMSHRC 307 
IV. The Parties' Stipulations 

The parties now have filed a February 19, 2009, Joint Motion for Final Decision 

with respect to Citation No. 6606199. The parties note that Wolf Run intends to see}\ review 

of my December 18, 2008, interlocutory Order regarding the propriety of designating safeguard 

violations as S&S because of conflicting decisions issued by Judge Zielinski. See Big Ridge, 

Inc., 30 FMSHRC 1172 (Nov. 24, 2008); Cumberland Resources LP, 30 FMSHRC 1180 

(Dec. 4, 2008). In an effort to expedite the appellate process, the parties have entered into 

stipulations resolving the issues of the fact of the violation, the gravity of the. violation, the 

applicability of the civil penalty criteria, and the appropriate civil penalty to be accessed for 

Citation No. 6606199. 

Specifically, the parties stipulate that while inspecting along the No. 5 coal conveyor belt 

on January 23, 2008, MSHA Inspector Jeffrey Maxwell issued Citation No. 660619 after he 

determined that someone had crossed under the return belt that was suspended 24 inches above 

the mine floor. There was no belt crossover provided at this location. To terminate the citation, 

the Wolf Run installed an aluminum crossover at the cited location. 

The parties further stipulate that the cited safeguard violation was serious in gravity, and 

that it was reasonably likely to contribute to a "lost work days or restricted duty'' injury for one 

miner. The parties agree that the cited violation was attributable to a moderate degree of 

negligence. 

With respect to the appropriate civil penalty, the parties stipulate, that Wolf Run is a large 

mine operator, and that the proposed penalty will not affect its ability to continue in business. 

It has neither been contended nor shown that the cited violation was not abated in a. timely 

manner, or that Wolf Run' s history of previous violations is an aggravating factor warranting an 

increase in the proposed penalty. Finally, the parties agree that the $1,304.00 civil penalty 

proposed by the Secretary for Citation No. 6606199 is appropriate. 

V. S&S Issue 

Consequently, the only outstanding issue is whether Citation No. 6606199 is properly 

designated as significant and substantial.. The case law concerning what constitutes an S&S 

violation is well settled. As a general proposition, a violation is properly designated as S&S 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 Division, National Gypsum, 3 FMSHRC at 825. In Mathies Coal Co., 

6 FMSHRC 1(January1984), the Commission 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 

31 FMSHRC 308 
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. 

6 FMSHRC at 3-4; see also Austin Power Inc. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988), 

affg 9 FMSHRC 2015, 2021(December1987) (approving Mathies criteria). 

In US. Steel Mining Co., Inc., 7 FMSHRC at 1129, the Commission explained its 

Mathies criteria as follows: 

We have explained further that the third element of the Mathies formula ''requires 

that the Secretary establish a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury." US. Steel Mining Co., Inc., 

6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance 

with the language of section 104(d)(l), it is the contribution of a violation to the 

cause and effect of a hazard that must be significant and substantial. US. Steel 

Mining Company Co., Inc., 6 FMSHRC 1866, 1868 (August 1984) (emphasis in 

original). 

The Commission subsequently reasserted its prior determinations that as part of any S&S 

finding, the Secretary must prove the reasonable likelihood of an injury occurring as a result of 

the hazard contributed to by the cited violative condition or practice. Peabody Coal Company, 

17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508 (April 1996). 

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, 7 FMSHRC 

at 1130. 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). 

Having previously determined that it is appropriate to designate safeguard violations as 

significant and substantial, the S&S analysis focuses on whether it is reasonably likely that the 

hazard posed by crawling under, or climbing over, a moving beltline will result in an accident 

causing serious injury. Obviously, being drawn into a moving belt and its rollers is reasonably 

likely to result in serious or fatal injuries. Thus, the circumstances surrounding the violation, as 

well as the parties' stipulation that it is reasonably likely that the hazard caused by the cited 

failure to provide a travelway over the beltline will result in a "lost work days or restricted duty" 

injury, provide a substantial basis for concluding the subject safeguard violation was properly 

designated as S&S. With respect to the penalty, I conclude that the parties' agreement to 

impose a $1,304.00 civil penalty is consistent with the criteria set forth in section l lO(i) of 

the Act. 30 U.S.C. § 820(i). 

31 FMSHRC 309 
VI. Settlement Approval for 

Citation Nos. 6606187 and 6605283 

The Secretary has filed a motion to approve settlement with respect to Citation 

Nos. 6606187 and 6605283. A reduction in civil penalty from $17,328.00 to $10,000.00 is 

proposed for these citations. Tue reduction in penalty apparently is based on the vagaries of 

litigation. I have considered the representations and documentation submitted in this matter and 

I conclude that the proffered settlement is appropriate under the criteria set forth in Section 11 O(i) 

of the Act. Accordingly, the parties' motion to approve their settlement terms for Citation 

Nos. 6606187 and 6605283 shall be granted. 

ORDER 

In view of the above, IT IS ORDERED that the safeguard violation in 

Citation No. 6606199 IS AFFIRMED as a significant and substantial violation. 

IT IS FURTHER ORDERED that Wolf Run Mining Company shall pay a 

civil penalty of $1,304.00 in satisfaction of Citation No. 6606199. 

Consistent with the parties' settlement terms, IT IS FURTHER ORDERED that 

Wolf Run Mining Company shall pay a civil penalty of$10,000.00 for Citation Nos. 6606187. 

and 6605283. 

Consistent with this decision and the parties' settlement tenns,IT IS ORDERED 

that Wolf Run Mining Company shall, within 40 days of the date of this decision, 

pay a total civil penalty of $11,304.00 in satisfaction of the three subject citations. 

Upon receipt of timely payment, the civil penalty proceeding in WEV A 2008-804 

IS DISMISSED. 

Jerold Feldman 

Administrative Law Judge 

31FMSHRC310 
Distribution: (Regular and Certified Mail) 

R. Herny Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 

401 Liberty Avenue, Pittsburgh, PA 15222 

Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630 East, 

The Curtis Center, 170 S. Indepenence Mall West, Philadelphia, PA 19106 

/rps 

31FMSHRC311 

ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMM,SSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W., Suite 9500 

UNITED TACONITE, LLC, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

UNITED TACONITE, LLC, 

Respondent 

Washington, DC 20001 · 

February 17, 2009 

CONTEST PROCEEDINGS 

Docket No. LAKE 2008-93-RM 

Citation No. 6154850; 11/20/2007 

Docket No. LAKE 2008-94-RM 

Citation No. 6154851; 11/20/2007 

United Mine 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2008-501-M 

A.C. No. 21-003403-154315 

United Mine 

DISCOVERY ORDER 

These consolidated contest and civil penalty matters concern citations related to an 

April 18, 2007, fatal drilling accident at the United Mine operated by United Taconite, LLC 

(''United Taconite"). The accident occurred when the drill, that was positioned on a slope, tipped 

on its side killing the operator. Atlas Copco Drilling Solutions, LLC ("Atlas Copco"), and its 

related companies, manufactured and provided to United Taconite, by lease and sale, the drill 

that is the subject of these proceedings. Atlas Copco is not a party in these proceedings. 

As a result of the accident, United Taconite was cited for an alleged violation of section 

56.14205, 30 C.F.R. §56.14205, of the Secretary's mandatory safety standards. This mandatory 

standard provides that: 

Machinery; equipment, and tools shall not be used beyond the design capacity 

intended by the manufacturer where such use may create a hazard to persons. 

United Taconite was also cited for an alleged violation of the Secretary's training 

regulations in section 48.27(a)(3), 30 C.F.R. § 48.27(a)(3). United Taconite has reported that 

Atlas Copco provided certain training to United Taconite employees. 

31FMSHRC312 
states: 

Commission Rule 56 governs the scope of discovery. 29 C.F.R. § 2700.56. This rule 

Parties may obtain discovery of any relevant, non-privileged matter that is admissible 

evidence or appears likely to lead to the discovery of admissible evidence. 

There is a personal injury action pending in the District Court, Sixth Judicial District, 

County of St. Louis, State of Minnesota, No. 69 VI-CV-08-145, which involves Atlas Copco, 

United Taconite and others. United Taconite's counsel in the personal injury action is separate 

from counsel in these proceedings. 

United Taconite and Atlas Copco have entered into a confidentiality agreement in the 

personal injury civil action concerning, inter alia, Atlas Copco's financial statements and other 

non-public or proprietary information including but not limited to, trade secrets, design 

specifications, product testing information and manufacturing processes and techniques. 

On December 17, 2008, United Taconite filed a motion requesting that I issue a confidentiality 

order incorporating the terms of its confidentiality agreement with Atlas Copco. As Atlas Copco 

is not a party in this matter, United Taconite's motion IS DENIED. 

With respect to the scope of discovery, IT IS ORDERED that United Taconite, during 

the course of deposition and written discovery, provide to the Secretary all relevant evidence 

that may be admitted in this proceeding, or that is likely to lead to the discovery of admissible 

evidence. Jn this regard, all relevant deposition testimony and evidence concerning the issues of 

training, and the design capacity and intended use of the drill in issue, whether or not considered 

subject to the confidentiality agreement in the civil proceeding, shall be provided to the 

Secretary. The Secretary should utilize the information obtained through discovery for trial 

preparation only, and this information should not be routinely disseminated. Only evidence that 

is admitted in the evidentiary hearing may be publically disclosed. 

IT IS FURTHER ORDERED that all deposition and written discovery shall be 

completed on or before April 17, 2008. The parties should initiate a telephone conference, 

on or before March 13, 2009, to select a n;mtually satisfactory hearing date and location. 

- Jerold Feldman 

,Administrative Law Judge 

31 FMSHRC 313 
Distribution: 

Suzzane Dunne, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street, 

Chicago, IL 60604 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 

401 Liberty Avenue, Pittsburgh, PA 15222 

R. Brian Hendrix, Esq., Patton Boggs LLP, 2250 M Street, NW, Washington, DC 20037 

/rps 

31FMSHRC314 

G:O' U.S. GOVERNMENT PRINTING OFFICE: 2009-35Q.058f74301