FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9900 / FAX: 202-434-9949

 

June 3, 2022 

 

DECISION AND ORDER

Appearances: Lydia J. Faklis, Esq., Office of the Solicitor, U.S. Department of Labor, 

Chicago, Illinois, for the Petitioner, 

Brad Wales, Safety Manager, IMI Aggregates, LLC, Greenfield, Indiana, 

for the Respondent, 

Donna V. Pryor, Esq., Husch Blackwell LLP, Denver, Colorado, for the 

Respondent.1

Before: Judge Sullivan 

I. INTRODUCTION

This case is before me upon a Petition for the Assessment of Civil Penalty filed by the 

Secretary of Labor (“Secretary”), on behalf of the Mine Safety and Health Administration 

(“MSHA”), against IMI Aggregates, LLC (“IMI” or “Respondent”), pursuant to section 105(d) 

of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). The 

Secretary seeks civil penalties totaling $298.00 for two alleged violations of mandatory safety 

standards. 

The parties presented testimony and documentary evidence during a virtual hearing via 

Zoom for Government on February 23, 2022. MSHA Inspector Jeffrey Cook testified on behalf 

of the Secretary and IMI maintenance employee Evan Young testified on behalf of the 

Respondent. Both parties subsequently filed post-hearing briefs on April 6, 2022.2

1 Mr. Wales conducted direct and cross-examination of witnesses on the Respondent’s behalf 

during the hearing in this case, while Ms. Pryor submitted Respondent’s post-hearing brief. 

2

 In this decision, the joint stipulations, transcript, Secretary’s exhibits, and Respondent’s 

exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Sec’y Ex. #,” and “Resp’t Ex. #” respectively. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner,

 v. 

IMI AGGREGATES, LLC,

 Respondent.

 CIVIL PENALTY PROCEEDING

 Docket No. LAKE 2021-0122 

 A.C. No. 12-02430-533325 

 

 

 Mine: Fall Creek Sand & Gravel
2

II. GENERAL FACTUAL AND PROCEDURAL BACKGROUND

IMI owns and operates crushed stone, sand, and gravel mines throughout Indiana, 

including the Fall Creek Sand & Gravel Mine (“Fall Creek”) in Fortville. On March 3, 2021, 

MSHA Inspector Jeffrey Cook conducted an EO-1 regular inspection of Fall Creek. He had 

previously inspected Fall Creek, though it had been several years since it was part of his assigned 

rotation of mines. Tr. 20, 60-61. 

Inspector Cook began his inspection at Fall Creek’s meeting shop area and continued to 

the haul roads, conveyors, plant, mobile equipment, and review of the mine’s paperwork. 

During his inspection, Inspector Cook issued two citations. Tr. 20-22. The first, Citation No. 

9443972, was issued because a stretch of roadway lacked a berm of at least mid-axle height of 

the largest vehicle that traveled on it. This alleged violation of 30 C.F.R. § 56.9300(b) was 

designated as significant and substantial (S&S). To abate the citation, IMI built a berm 

approximately 125 feet long on the edge of the relevant roadway before the end of the day. Tr. 

33-34; Sec’y Ex. 3, 5. 

The other issued citation, No. 9443973, was for inadequate guarding of a tail pulley and 

feed drive chain, in violation of 30 C.F.R. § 56.14107(a). Tr. 21-22, Sec’y Ex. 11, at 1. During 

his follow-up inspection on March 15, 2021, Inspector Cook issued Order No. 9443990 for IMI’s 

failure to abate the original citation, in violation of section 104(b) of the Mine Act, 30 U.S.C. 

§ 814(b). On March 29, MSHA Inspector Barry Hayes terminated both the citation and order 

after concluding that IMI had abated the violation by placing appropriate guards on the tail 

pulley and feed drive chain. Tr. 59. 

IMI contested the two penalties that MSHA assessed in connection with the violations, 

$159.00 and $139.00 respectively, and this case was docketed before the Commission. At issue 

are the two alleged violations and the associated findings, including whether the first violation 

was S&S, and if one or more of the violations is upheld, the penalty or penalties to be assessed. 

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Citation No. 9443972 for Alleged Violation of Section 56.9300 

1. Fact of Violation 

At Fall Creek, mobile equipment travels between the mine shop and either the plant or 

hopper on a particular roadway. At hearing, Inspector Cook testified that on the day of 

inspection, he saw pickup trucks, service trucks, and a Caterpillar 980G wheel loader travel on 

the roadway. The Caterpillar 980G wheel loader, the largest vehicle to utilize the roadway, was 

described as a “rubber-tired piece of equipment . . . used to move sand and dirt and rock . . . to 

load into the hopper to process.” Tr. 22, 24-25. Inspector Cook also noted that the Caterpillar 

980G was not carrying a load and was, in his estimation, moving five to ten miles per hour. Tr. 

61-62. 
3

While on the roadway, Inspector Cook noticed a section that he suspected should have a 

berm at its edge, given his view of the drop-off from the edge. Tr. 22; Sec’y Ex. 1 (providing a 

photo of section’s edge taken by inspector). At hearing, Inspector Cook defined a “berm” as “an 

earthen structure that helps redirect equipment away from an overturn hazard.” Tr. 23. He 

subsequently issued Citation No. 9443972, alleging that IMI violated section 56.9300(b), in that:

The Main Shop elevated roadway was not bermed to mid-axle height of the mobile 

equipment (Caterpillar 980G) that travels the roadway. The area not adequately 

bermed was approximately 125 feet long with a drop[-]off of approximately 32 

inches. This condition exposes miners to lost workday type injuries. There were 

several tire tracks along the edge of the unbermed roadway at the time of the 

inspection. Mine and [m]ine management have continuous access to this condition 

daily under continued mining operations.

Sec’y Ex. 5.

In designating the citation as S&S, Inspector Cook indicated that the Caterpillar 980G’s 

travel along the edge of the unbermed roadway was reasonably likely to cause an injury that 

could be reasonably expected to result in lost workdays or restricted duty of one miner, the 

equipment’s operator. Sec’y Ex. 11, at 1. Moreover, Inspector Cook categorized the violation as 

resulting from IMI’s moderate negligence. Id.

2. Analysis

Section 56.9300 provides in relevant part:

(a) Berms or guardrails shall be provided and maintained on the banks of roadways 

where a drop-off exists of sufficient grade or depth to cause a vehicle to overturn 

or endanger persons in equipment.

(b) Berms or guardrails shall be at least mid-axle height of the largest self-propelled 

mobile equipment which usually travels the roadway.

30 C.F.R. § 56.9300. “Berm” is defined to “mean[] a pile or mound of material along an 

elevated roadway capable of moderating or limiting the force of a vehicle in order to impede the 

vehicle’s passage over the bank of the roadway.” 30 C.F.R. § 56.2.

It is undisputed that the cited section of roadway did not have a berm, and, therefore, it 

logically follows that a berm greater than or equal to the 34-inch mid-axle height of the 

Caterpillar 980G was not present either.3 Tr. 82; Sec’y Ex. 1.

The Secretary contends that the drop-off from the roadway was of a sufficient depth or 

grade under section 56.9300(a) for the requirements of section 56.9300(b) to apply. Sec’y Br. 

3 It is also undisputed that the largest vehicle that utilizes the cited section of roadway is the 

Caterpillar 980G, and that it has a mid-axle height of 34 inches. Jt. Stip. 16; Tr. 28; Sec’y Ex. 

2.1. This measurement provided the basis under section 56.9300(b) for the height of the berm 

that IMI built to abate the citation. Tr. 90; Sec’y Ex. 3.
4

14-15. In contrast, IMI maintains that a berm was not required along the section of roadway in 

question because, from its edge, there was not “a drop-off of sufficient grade or depth to cause” 

any vehicle that traveled over it, including the Caterpillar 980G, “to overturn or endanger 

persons in equipment.” In its post-hearing brief, IMI further argued that the Secretary’s evidence 

submitted at hearing supporting the citation was insufficient to establish that a berm was required 

under section 56.9300(a). Resp’t Br. 5.

In Lakeview Rock Prod., Inc., 33 FMSHRC 2885, 2989 (Dec. 2011), the Commission 

held that an evidentiary hearing should decide any unresolved dispute over whether “a drop-off 

exist[ed] of sufficient grade or depth to cause a vehicle to overturn or endanger persons in 

equipment.” Id. Further, the Commission has long held that “[i]n an enforcement action before 

the Commission, the Secretary bears the burden of proving any alleged violation.” Jim Walter 

Res., Inc., 9 FMSHRC 903, 907 (May 1987); Wyoming Fuel Co., 14 FMSHRC 1282, 1294 (Aug. 

1992). The Commission has defined the Secretary’s burden as a preponderance of the evidence, 

“which simply requires the trier of fact ‘to believe that the existence of a fact is more probable 

than its nonexistence.’” RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); 

Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989).

The evidence presented on the cited section of roadway’s depth and grade of the drop-off, 

and the danger it posed to vehicles operating on the roadway, is as follows. At hearing, Inspector 

Cook described the slope away from the edge as being “steep,” and the drop-off to be “fairly 

abrupt” before it “smooth[ed] out into a ditch” three to four feet away. Tr. 30-31, 68-69; Sec’y

Ex. 1 (providing a picture of the edge, including the ditch). Inspector Cook explained that he 

positioned himself over the edge of the road and, holding a tape measure vertically, “eyeballed” 

the depth of the ditch to be 32 inches at that point along the road. He attributed his reluctance to 

go farther down the side due to the brush, muddy conditions, and his consequential inability to 

know what was in the ditch. Tr. 30-32, 62; Sec’y Ex. 1.1 & Resp’t Ex. 3.1 (including

annotations to show where the inspector stood along the edge). To measure the length of the 

roadway, that he believed was subject to the drop-off, he “stepped off” 125 feet. Tr. 29-32, 62.

Inspector Cook also testified to evidence of tire tracks in the mud along the edge (clearly 

shown in Sec’y Ex. 1), and how driving close to the edge of an inadequately bermed road could 

cause a vehicle to fall off the road either in whole or in part. He explained that, once one or 

more of its wheels goes over the edge of the cited road and onto a muddy slope of the observed 

depth and grade, a truck the size and design of the Caterpillar 980G may overturn. Tr. 36-39, 62-

63.

Evan Young, a maintenance mechanic who has worked at Fall Creek for four years, 

accompanied Inspector Cook during the inspection. Tr. 81, 86. In his testimony, Young

estimated that only 40 to 50 feet of the roadway at issue had a drop-off from its edge. Tr. 88-89. 

While Young confirmed that the inspector had attempted to measure the drop-off, he did not 

agree that it was 32 inches in depth. Tr. 82. Not having measured the drop-off himself, Young 

stated “if I had to guess, it was roughly two feet.” He also described the area beyond the 

roadway’s edge as “not straight up and down,” but rather “a slope.” Tr. 82-83. Additionally, 

Young testified that while it was possible for a Caterpillar 980G to overtravel the edge of the 

roadway, in his opinion, the vehicle would not “roll” over once on the slope. Tr. 79, 87.
5

I credit Inspector Cook over Young on the question of whether a Caterpillar 980G would 

overturn in this instance if it overtraveled the bermless side of IMI’s roadway, for a few reasons. 

First, the inspector is significantly more experienced in these matters than Young. At the time of 

hearing, Inspector Cook had approximately seven years of experience as a MSHA metal and 

nonmetal mine inspector in addition to having worked 11 years for a coal mine operator earlier in 

his career. Along with initial MSHA authorized representative training, Inspector Cook has 

partaken in annual trainings as well. He testified to conducting approximately 80 mine 

inspections per year, including regular inspections, spot inspections, health inspections, hazard 

inspections, among others. Tr. 18-20, 60. With his background, Inspector Cook made at least 

some effort to measure the drop-off alongside the cited section of IMI’s roadway. In contrast, 

Young disputed the measurement based strictly on his forced “guess” regarding the depth of the 

drop-off. Tr. 30-32, 62, 82-83.

As far as the grade and slope of the drop-off, the two witnesses’ accounts did not 

appreciably differ. While Young described the drop-off as not “straight up and down by any 

means,” there is no record evidence that only such drop-offs could result in a vehicle overturning 

off a roadway’s edge. MSHA updated its safety standards pertaining to loading, hauling, 

dumping, machinery, and equipment in 1988, after an increase in machinery and equipmentrelated injuries. See Safety Standards for Loading, Hauling, and Dumping and Machinery and 

Equipment at Metal and Nonmetal Mines, 53 Fed. Reg. 32496, 32500 (Aug. 25, 1988). Included 

in the revised standards was an update to then-section 56/57.9022, now section 56/57.9300, titled 

“Berms or guardrails.” By MSHA’s calculation, 90 fatalities had occurred across a 15-year 

period in instances in which a berm could have minimized the seriousness of mine roadway 

accidents. The rule adopted imposed berm or guardrail requirements when the drop-off is “of a 

sufficient grade or depth” to result in a vehicle overturning or otherwise endangering persons in 

the vehicle. 30 C.F.R. § 56.9300(a) (emphases added).

Young’s opinion that no vehicle, including the Caterpillar 980G, would roll over after

overtraveling the cited roadway section was based on his experience as both a mechanic and a 

miner. Tr. 83. However, he did not reference any specific experience of a vehicle remaining 

upright in such an overtraveling scenario. In contrast, Inspector Cook testified to witnessing the 

aftermath of a vehicle overtraveling a road’s edge that lacked a berm. In that instance, he 

recounted that a truck with an estimated 16-inch mid-axle height had overturned when it went off 

a roadway with a nine-inch drop-off. Tr. 37-38.

In arguing that the citation should be vacated, IMI cites Knife River Corp., N.W., 32 

FMSHRC 912, 915-16 (July 2010) (ALJ), where a Commission Judge found that the Secretary 

did not prove that the drop-off at issue was of sufficient depth or grade to lead to a vehicle 

overturning. Resp’t Br. at 6. Significantly, that case did not involve a standard mine roadway

missing an adequate berm or guardrail, but rather an elevated scale on which vehicles would stop 

to be weighed. The question was whether, on the far side of the 9-inch high “rubrail” built into 

the scale at its edge, there was a drop-off of sufficient depth or grade to result in a vehicle 

overturning in the event of overtravel.

In Knife River, the Judge vacated the citation because the Secretary failed to provide a 

sufficient explanation of what would occur in such an event—finding the Secretary’s testifying 
6

authority in the case to be “silent on information regarding how the height or grade of the scales 

considering all relevant factors such as their width, size of the trucks and the like would trigger” 

section 56.9300(a). Id. at 915. Given the lack of evidence of what would occur to a truck had 

the rubrail not prevented it from going over the edge of the scale, the Judge refused to draw 

inferences on her own from the photographs of the scales that the Secretary introduced. Id. at 

915-16.

Here, I have reviewed the photograph Inspector Cook took of the roadway section at 

issue. Sec’y Ex. 1. As the inspector admitted, the photograph is not nearly as clear and accurate 

as one would wish. Tr. 66. Shadows and brush somewhat obscure the details of the depth and 

grade of the drop-off. However, under the circumstances, the photograph provides sufficient 

additional support for Inspector Cook’s conclusion that there was a distinct risk that once a

Caterpillar 980G’s wheel or wheels overtraveled the muddy edge of the roadway, the vehicle 

would overturn. The grade and depth of the roadside drop-off shown in the photograph is 

generally consistent with the inspector’s testimony on the subject. Tr. 38-39.

Accordingly, I do not find that Knife River, a case involving an elevated scale, rubrail,

and drop-off, anywhere near analogous to the muddy roadway and drop-off presented in this 

case. The Secretary has carried his burden of proof with respect to the violation of section 

56.9300 and the citation is affirmed.4

3. S&S and Gravity of the Violation

A violation is S&S if, “based upon the particular facts surrounding the violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (citing Cement 

Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981)). In Mathies, the four elements or 

steps required for an S&S finding were expressed as follows:

(1) the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard -- that is, a measure of danger to safety -- contributed to by the violation; 

(3) a reasonable likelihood that the hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury in question will be of a reasonably 

serious nature.

Id. at 3-4 (footnote omitted).

4 Throughout the proceeding, IMI mentioned the undisputed fact that the section of relevant 

roadway did not have a berm during previous MSHA inspections, including prior ones conducted 

by Inspector Cook, and yet no citation had ever been issued. Jt. Stip. 15; Tr. 82; Resp’t Br. at 3. 

However, by this point it is axiomatic that the Secretary cannot be estopped from enforcing a 

regulation against an operator simply because the operator had not been cited for violating the 

regulation in the past. See, e.g., Cactus Canyon Quarries, Inc. v. Sec’y of Labor, 953 F.3d 790, 

793 (D.C. Cir. 2020). This of course includes the authority to enforce section 56.9300. See

Palmer Coking Coal Co., 22 FMSHRC 887, 890 (July 2000) (ALJ) (“[o]perator is in no worse 

position than if MSHA had cited the condition five years ago. It simply would have had to 

correct the condition and pay the civil penalty at that time.”).
7

More recently, the Commission restated Mathies Step 2 in terms of finding that “the 

violation was reasonably likely to cause the occurrence of the discrete safety hazard against 

which the standard is directed.” Newtown Energy, Inc., 38 FMSHRC 2033, 2037 (Aug. 2016).5 

Notably, an S&S determination is based on the facts existing at the time of citation issuance and 

assumes normal mining operations will continue. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 

(Jan. 1984); Black Beauty Coal Co., 34 FMSHRC 1733, 1740 (Aug. 2012) (“[t]he [S&S] 

evaluation is made in consideration of the length of time that the violative [berm] condition 

existed prior to the citation and the time it would have existed if normal mining operations had 

continued.”).

In its post-hearing brief, IMI did not take separate issue with the S&S designation. 

However, because IMI’s evidence was relevant to some of the Mathies elements, I will analyze 

whether the Secretary met his burden of proving that the section 56.9300 violation is S&S.

a. Mathies Step 1 & Step 2 

Step 1 of the Commission’s S&S analysis is satisfied above, as noted in my conclusion 

that the bermless section of IMI roadway constituted a violation. As for Step 2, the hazard posed 

by IMI’s failure to provide the berm—as required by the standard—is that a vehicle will 

overtravel the edge of the road, and become, in whole or part, subject to the 32-inch drop-off and 

slope down into the immediately adjacent ditch. See Black Beauty, 34 FMSHRC at 1741 (noting 

that MSHA berm standards anticipate danger of “loss of vehicle control near the edge of” an 

elevated roadway). As Inspector Cook explained, a berm maintains safety by redirecting 

equipment back into the roadway in the event of the equipment operator “hav[ing] a health issue, 

[being] distracted, lots of things can happen.” Tr. 38.6

At hearing, IMI hardly disputed that, absent an adequate berm on the pertinent roadway

section, a vehicle, including the Caterpillar 980G, could go off the road. For example, Young 

admitted that any vehicle using that section of roadway “can drive off there, they could have 

drove off it . . . .” Furthermore, he specifically agreed with the “possibility” that a Caterpillar 

980G could overtravel. Tr. 87.

In fact, the Secretary’s evidence raised the likelihood of vehicular overtravel beyond a 

“possibility” to a “reasonable likelihood.” Here, IMI’s operations included numerous vehicles 

using the road in question for two-way traffic each day, including the Caterpillar 980G, which 

Young estimated travels on the roadway four times a day. Tr. 24, 87-88. Significantly, this two5 As shown herein it makes no difference which version of Step 2 is applied in this case. See 

Consol Pa. Coal Co., 43 FMSHRC 145, 148-49 & n.6 (Apr. 2021).

6 In its Safety Standards for Loading, Hauling, and Dumping and Machinery and Equipment at 

Metal and Nonmetal Mines, MSHA explains that, when a roadway berm is required, it must be 

of at least the greatest mid-axle height of the equipment using the road to “(1) ensure undercarriage contact with the restraint, (2) alert the equipment operator of the hazardous situation, 

(3) moderate the force of the equipment, (4) provide corrective action, and (5) assist the operator 

in regaining control of the equipment.” 53 Fed. Reg. at 32501.
8

way traffic pattern apparently necessitated vehicular travel up to the very edge of the unbermed 

section of roadway, as evidenced by Inspector Cook’s photograph of tire tracks. Tr. 36; Sec’y 

Ex. 1. Given this evidence, I conclude that over time, without a berm to prevent vehicular 

overtravel, such was bound to occur. See LRock Indus., 39 FMSHRC 1429, 1434 (July 2017) 

(ALJ) (finding that absent a berm, “overtravelling . . . was reasonably likely to occur, given that 

there was frequent traffic in the area and tire tracks relatively close to the dropoff.”).

As for the consequences of a Caterpillar 980G falling off the roadway in such a fashion, 

the berm standard, by its terms, goes much of the way towards establishing Step 2 of the Mathies

analysis. A berm is only required under section 56.9300(a) when overtravel could take a vehicle 

into a “drop-off . . . of sufficient grade or depth to cause a vehicle to overturn or endanger 

persons in equipment.” I have already credited Inspector Cook over maintenance mechanic 

Young on the question of whether an IMI vehicle overtraveling the edge of the pertinent

roadway would result in a rollover, given the established slope and drop-off. Thus, Step 2 is 

satisfied as well.

b. Mathies Step 3 & Step 4

At hearing, there was a dispute over what injuries would likely occur in the event of a 

rollover as well as the nature of the injuries. I thus examine whether Steps 3 and 4 of the S&S 

test have been established.

Inspector Cook testified that if a Caterpillar 980G were to overturn off a roadway, the 

miner-operator could expect to suffer cuts, contusions, sprains, and strains which may result in 

lost workdays. Moreover, Inspector Cook categorized those injuries as serious in nature. Tr. 39. 

In contrast, Young disputed that overtravel would result in a rollover and further contested that a 

rollover of “[Caterpillar 980G] loader or haul truck or that sort of stuff” would result in any 

injury to the equipment operator. He based his opinion on the “safety belts and all the rollover 

protection” in the vehicle, as well as the roadway’s height. Tr. 89.

Inspector Cook was not as expansive in his explanation as he could have been regarding 

the consequences of a vehicular rollover in this instance. Cf. Acha Const., LLC, 38 FMSHRC 

3025, 3032-33 (Dec. 2016) (ALJ) (detailing testimony on injuries reasonably likely to result 

from lack of required berm). However, based on his much greater experience in these matters, 

including his familiarity with the consequences of vehicular rollover, I credit him over Young 

and find that there was both a reasonable likelihood that equipment rollover would result in an 

injury and that there was a reasonable likelihood that an injury suffered would be of a reasonably 

serious nature. See Wolf Run Mining Co., 36 FMSHRC 1951, 1958-59 (Aug. 2014) (“not[ing] 

that an inspector’s judgment is an important element in an S&S determination” as part of 

Mathies Step 3 and under Step 4 crediting inspector’s testimony regarding the severity of injuries 

that had resulted to miner in a similar situation); see also Consol Pa. Coal Co., 43 FMSHRC at 

149.

Moreover, even though a Caterpillar 980G may be equipped with rollover protection and 

seatbelts, redundant safety measures are not to be considered in determining whether a violation 

is S&S. See Cumberland Coal Res. v. FMSHRC, 717 F.3d 1020, 1029 (D.C. Cir. 2013); Knox 
9

Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 162 (4th Cir. 2016); Buck Creek, Inc. v. 

FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Brody Mining, LLC, 37 FMSHRC 1687, 1691 (Aug. 

2015); see, e.g., Acha, 38 FMSHRC at 3032 (determining berm standard violation to be S&S 

after refusing to consider equipment’s rollover protection and seatbelts because they were 

redundant safety measures). 

Accordingly, the Secretary has satisfied all four elements of the Mathies test. Therefore, 

I conclude that Citation No. 9443972 was appropriately designated as S&S. For the same 

reasons, I affirm Inspector Cook’s gravity designation as reasonably likely to result in lost 

workdays/restricted duty for the equipment operator.

4. Negligence 

The Commission “may evaluate negligence from the starting point of a traditional 

negligence analysis.” Brody Mining, 37 FMSHRC at 1702. This analysis asks whether an 

operator has met “the requisite standard of care—a standard of care that is high under the Mine 

Act.” Id. Considerations include “what actions would have been taken under the same 

circumstances by a reasonably prudent person familiar with the mining industry, the relevant 

facts, and the protective purpose of the regulations.” Id.; see also A.H. Smith Stone Co., 

5 FMSHRC 13, 15 (Jan. 1983). The Commission has explained that an ALJ “is not limited to an 

evaluation of allegedly ‘mitigating’ circumstances” and should consider the “totality of the 

circumstances holistically.” Id.; see also 30 C.F.R. § 100.3(d) (stating that operators must be 

“on the alert for conditions and practices in the mine that affect the safety or health of miners and 

to take steps necessary to correct or prevent hazardous conditions or practices.”).

As previously mentioned, various types of equipment traveled the roadway multiple 

times a day, every day at Fall Creek. Tr. 40, 88. The Caterpillar 980G, specifically, traveled the 

roadway at least four times a day. Tr. 88. Moreover, the lack of a berm was obvious, as seen in 

Inspector Cook’s photographs of the roadway. See Sec’y Ex. 1, 1.1. Inspector Cook also 

documented in his notes that Brad Wales, IMI’s safety manager, stated that Young oversaw the 

area and should have recognized the hazard associated with not having a berm. Sec’y Ex. 6 

(“Safety mgr. stated Evan was in charge of the area and should have recognized the hazard.”); 

see also Tr. 40 (“[Wales] said that [foreman] should have recognized the hazard.”). Given that 

the roadway lacked a berm for at least 45 feet and IMI’s own acknowledgement that it should 

have recognized the hazard, I affirm the level of negligence as moderate.

B. Citation No. 9443973 for Alleged Violation of Section 56.14107(a)

1. Fact of Violation 

Continuing his inspection, Cook observed a hopper discharge conveyor (hereinafter

“conveyor”), which he described is used to take “material from the hopper . . . to another part of 

the mine, to the plant.” Tr. 42. Inspector Cook noted that the conveyor beneath the hopper was 

surrounded by cattle gates, one on the left-hand side, one on the right-hand side, and one on the 

front side. On one of the gates was a sign that said, “Danger Falling Material” and a padlock. 

Tr. 41, 52-53; Sec’y Ex. 7, 7.1; Jt. Stip. 18. 
10

Below the conveyor was a feed drive chain and tail pulley. It is undisputed that neither 

was individually guarded. Tr. 44, 91; Sec’y Ex. 7.1, 9.1, 10.1. At hearing, Young testified that 

there are 20 to 30 other tail pulleys and like machinery components at Fall Creek, all of which 

were individually guarded, and had been since he started working there. Tr. 92-94.

Due to the lack of individual guarding, Inspector Cook issued another 104(a) Citation, 

No. 9443973, which alleged:

The tail pulley on the Hopper Discharge conveyor under the feed hopper was not 

guarded to prevent contact. The drive chain for the feed conveyor under the hopper 

was not guarded to prevent contact. There were cattle gates placed around the base 

of the hopper structure indicating area guarding but did not prevent access to the 

rotating machine parts. This condition exposes miners to permanently disabling 

injury hazards.

Sec’y Ex. 11.

Inspector Cook designated the citation as a non-S&S violation of 30 C.F.R. 

§ 56.14107(a) that was unlikely to cause an injury but could be reasonably expected to result in a 

permanently disabling injury had one occurred, which would affect one miner, and was a result 

of IMI’s moderate negligence. Sec’y Ex. 11. 

2. Analysis 

Section 56.14017(a) provides that “[m]oving machine parts shall be guarded to protect 

persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels, 

couplings, shafts, fan blades, and similar moving parts that can cause injury.” 30 C.F.R. 

§ 56.14017(a). It is undisputed that both the feed drive chain and tail pulley constitute “moving 

machine parts” under section 56.14107(a). See Moline Consumers Co., 15 FMSHRC 1954, 

1959-60 (Sept. 1993) (ALJ) (“standard is obviously intended to protect individuals from moving 

component parts rather than the machine itself.”).

In adopting section 56.14107(a), MSHA explained that it revised existing standards to 

“clarif[y] that the objective is to prevent contact with [hazardous moving] machine parts[,]” and 

that “[t]he guard must enclose the moving parts to the extent necessary to achieve this objective.” 

Safety Standards for Loading, Hauling, and Dumping and Machinery and Equipment at Metal 

and Nonmetal Mines, 53 Fed. Reg. 32496, 32509 (Aug. 25, 1988). Consequently, a Court 

interpreting the standard has held that “[b]oth the regulation and [this] explanation clearly 

require guards around moving parts,” and “[w]hen the meaning of a regulatory provision is clear 

on its face, the regulation must be enforced in accordance with its plain meaning.” Mainline 

Rock & Ballast, Inc., v. Sec’y of Labor, 693 F.3d 1181, 1185 (10th Cir. 2012) (quoting Walker 

Stone Co. v. Sec’y of Labor, 156 F.3d 1076, 1080 (10th Cir. 1998)).

To prove a violation of section 56.14107(a), the Secretary must show that an unguarded 

moving machine part “can cause injury.” The Commission has interpreted a similar guarding 
11

standard to require proof of “a reasonable possibility of contact and injury.” Thompson Bros. 

Coal Co., 6 FMSHRC 2094, 2096 (Sept. 1984); see also Nelson Quarries, Inc., 36 FMSRHC 

3143, 3146 (Dec. 2014) (ALJ) (interpreting section 56.14107(a) to require proof of reasonable 

possibility of injury). Here, there is no dispute that contact with either the tail pulley or the drive 

chain while in motion can cause injury.7

At issue is whether the feed drive chain and tail pulley were properly guarded to prevent 

injury as required by section 56.14107(a). The Secretary contends that both the feed drive chain

and tail pulley were not properly guarded because, even with the cattle gates and padlock, the 

moving machine parts were still accessible to miners who may need to enter the hazardous area 

near the exposed moving machine parts. Sec’y Prehrg. Rep. 5; Sec’y Br. 24-27. IMI, on the 

other hand, argues that it did not violate section 56.14107(a) because the tail pulley was 

sufficiently guarded by location, miners were unable to access the area without permission, and 

would not do so when the machinery was operating. Resp’t Prehrg. Rep. 4; Resp’t Br. 7-9.

In deciding whether to affirm or vacate the citation, I must first address whether IMI 

miners could complete their duties while remaining outside the cattle gates, thus establishing the 

cattle gates as adequate guarding, or whether there was any need for miners to get inside the 

gates and closer to the conveyor and its otherwise unguarded feed drive chain and tail pulley. 

Regarding a miner’s need to enter the enclosure to conduct maintenance, neither Inspector Cook 

nor Young were clear in their testimony. In response to my question on how often a miner 

would go inside the cattle gates, Young stated flatly “[n]ever.” However, he then qualified that 

answer with his explanation that “[a]ll of our grease lines and everything . . . they’re routed and 

attached to the cattle panel on the left-hand side. . . . [T]hat you can access by the cattle gate.” 

Tr. 94.

7 After observing the unguarded components, Inspector Cook concluded that a permanently 

disabling injury could have occurred if a miner encountered the machine parts while in motion. 

The inspector specified that permanently disabling entanglements, which cause amputations, 

cuts, and contusions, could occur because of the unguarded moving machine parts. He reiterated 

how dangerous such hazards can be and referenced a fatality that occurred two months prior 

because of an unguarded tail pulley. Tr. 44, 54-55; Sec’y Ex. 11. Young agreed with this 

assessment of the type of injuries that may result if a miner were to contact the unguarded 

moving machinery. Tr. 91.

Moreover, the application of safety standards does not require proof that the equipment at 

issue was operating at the time of the inspection. Here, both witnesses testified as to whether, in 

their opinion, the conveyor had been in use recently. Inspector Cook determined that the 

conveyor was recently used when he inspected the machinery based on the condition of the 

conveyor belt, describing it as clean and without rust on the rollers. Conversely, Young did not 

say that the conveyor ran recently, but rather that IMI was not running the machine at the time of 

inspection. Tr. 54, 94. I need not decide between these partially conflicting accounts. See MidContinent Coal & Coke Co., 3 FMSHRC 2502, 2504 (1981) (holding that a temporary 

interruption in mining activities in preparation for further mining and production did not suspend 

regulatory requirements); Crimson Stone v. FMSHRC, 198 F. Appx. 846, 850 (11th Cir. 2006) 

(finding that the inspector did not have to catch the dry plant conveyor operating with its guard 

torn off to justify a citation for the violation).
12

Inspector Cook initially testified that a miner would need to enter the cattle gates to be 

close to the tail pulley and feed drive chain to grease and otherwise maintain them. Tr. 46-49; 

Sec’y Ex. 8.1, 9.1. He later stated, however, that contact with the moving machine parts was 

unlikely, “[b]cause of the extended grease lines and the cattle gates being there,” and that he had 

seen no footprint evidence of miners having been there. Tr. 55. He nevertheless continued to 

maintain that a miner could enter the enclosure to conduct maintenance on the moving machine 

parts. Tr. 56.

However, I need not resolve the issue of whether maintaining the machinery would ever 

necessitate entry into the enclosure, because Young conceded that miners would at a minimum 

need to enter it for another maintenance responsibility—to clean up falling debris from the 

conveyor. Tr. 95; Sec’y Ex. 7.1 (providing photo of cattle gates that includes “Danger Falling 

Material” signage). Contact with unguarded moving machine parts while cleaning around the 

machinery has been recognized as a danger that guarding standards are designed to protect 

against. See, e.g., Dix River Stone Inc., 29 FMSHRC 186, 202 (Sept. 2016) (ALJ). 

Significantly, Inspector Cook explicitly testified to his familiarity with a fatality that resulted 

from a miner shoveling around an unguarded tail pulley as part of his maintenance duties. Tr. 

65.

IMI maintains that, under applicable MSHA guidance, the cattle gates nevertheless 

provided sufficient “area” guarding of conveyor components when miners were cleaning up 

debris. Resp’t Br. at 7-8; Resp’t Ex. 5, at 28 (U.S. Dep’t of Labor, MSHA, MSHA’s Guide to 

Equipment Guarding (Rev. 2004)). IMI relies on the gates, padlock, and testimony that miners 

were trained to follow IMI’s policy of not entering the gates without (1) prior permission; and 

(2) before doing so, locking and tagging out the power supply to the conveyor, located nearby, so 

that the conveyor and its components could not run. Resp’t Br. at 8-9; Tr. 64, 85, 90, 95.

The Secretary contends that such facts and operator policies are insufficient to establish 

compliance with section 56.14107(a). Drawing on his experience, Inspector Cook explained 

how a miner might not take the time to shut down the plant, but rather could run into the area

without doing so to quickly perform an assigned task. Tr. 55-56. The inspector opined that, as 

of the date of his inspection, a miner could have easily climbed over the cattle gates and been in 

position to contact the unguarded tail pulley and drive chain. Specifically, Inspector Cook stated 

that a miner could climb over the cattle gates on the left side and front side of the conveyor and 

could also crawl under the cattle gate on the right side. Tr. 52-53; Sec’y Ex. 7, 7.1. While 

Young disagreed that a miner would be able to fit under the right-side cattle gate, he agreed that 

a miner could climb over one of the gates, albeit in violation of IMI rules and the training it 

provides its miners. Tr. 90-91.

I find the foregoing evidence sufficient to establish a violation of section 56.14107(a) 

under reviewing court and Commission precedent. When analyzing the reasonable possibility of 

injury from unguarded moving parts, the Commission has long considered “all relevant exposure 

and injury variables, e.g., accessibility of the machine parts, work areas, ingress and egress, work 

duties, and as noted, the vagaries of human conduct.” Thompson Bros., 6 FMSHRC at 2096-97

(emphasis added). While the scenario outlined by the inspector here may be one that would be 

out of the ordinary, it is by no means so inconceivable as to take it out of the purview of the 
13

standard. See id. at 2096 (holding the guarding standard to protect against “contact stemming 

from inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness.”); 

see also Mainline, 693 F.3d at 1186 (ratifying Commission’s approach in Thompson and using it 

to interpret section 56.14107(a)).

Acknowledging the Commission’s stated concern regarding all possible “vagaries of 

human conduct” and that “momentary inattention or ordinary human carelessness” must be 

protected against, Commission Judges, in deciding whether a guarding standard has been 

violated, have refused to presume that miners will always follow operator rules and protocols, 

including lock and tag out policies. See, e.g., Climax Molybdenum Co., 38 FMSHRC 2453, 2460 

(Sept. 2016) (ALJ) (rejecting lock and tag out policy as relevant consideration because “‘[e]ven a 

skilled employee may suffer a lapse of inattentiveness, either from fatigue or environmental 

distractions,’ and enter the area without first shutting down” equipment) (quoting Great W. Elec.

Co., 5 FMSHRC 840, 842 (May 1983)); Dix River Stone Inc., 29 FMSHRC at 203 (rejecting 

evidence on miners always following lock and tag out policy because “the history of mining is 

replete with injuries and fatalities which occurred when previous practices that ‘always’ were 

implemented, were not.”); Teichert Aggregates, 39 FMSHRC 1098, 1101 (May 2017) (ALJ) 

(“pulley guarding needed to account for the unlikely event of a miner entering the area without 

following [lock and tag] out policy.”).8

While not binding Commission precedent, I find the reasoning in these cases persuasive 

and apply it to this case and its similar facts. Consequently, despite the evidence on miner 

adherence to IMI’s policies, such as on locking and tagging out power supplies and keeping the 

cattle gates locked, I conclude that there is a possibility that those policies would not prevent a 

miner from entering the enclosure and contacting moving machine parts.

Similarly, the cattle gates were not a sufficient physical deterrent under the standard. See 

Yaple Creek Sand & Gravel, 11 FMSHRC 1471 (Aug. 1989) (ALJ) (holding that a gate four to 

five feet from an unguarded drive chain assembly on a hopper feeder conveyor belt did not 

satisfy section 56.14107). Young conceded that, even when the gates were padlocked, a miner 

could enter the enclosure by climbing over one of them, given its height. Tr. 90-91. Thus, his 

testimony contradicts Respondent’s post-hearing brief that characterizes the area in question as 

“inaccessible.” See Resp’t Br. at 9 (citing Melgaard Constr. Co., 26 FMSHRC 720, 726 (Aug. 

2004) (ALJ)).

Commission Judges have held that applicable standards require moving machine parts to 

be guarded in locations that are climbing-accessible. See, e.g., Brown Bros. Sand Co., 17 

FMSHRC 578, 581 (Apr. 1985) (ALJ). Consequently, a barrier that can be easily defeated by 

climbing over it is not recognized as sufficient guarding under MSHA standards. See Teichert, 

39 FMSHRC at 1101 (finding a guarding violation where climbing over or through handrail 

would expose miner to moving machine parts). According to the MSHA guidance document 

8 See also Calco Inc., 15 FMSHRC 480, 484 (Mar. 1993) (ALJ) (refusing to consider lock and 

tag out policy, even though it was “uncontrovert[ibly] . . . always follow[ed]” because guarding 

standard does not recognize any such policy as an exception); Nelson Quarries, 36 FMSRHC at 

3146 (taking lock and tag out policy into account only in finding section 56.14107(a) violation

not to be S&S).
14

IMI submitted at hearing and relied heavily upon in its brief, barriers must be “difficult to 

defeat” and “prevent entry of a miner into an area containing moving machine parts” to be 

considered adequate “area guarding.” Resp’t Ex. 5, at 28. I find that was not the case with the 

cattle gates around the conveyor at the time IMI was cited for violating section 56.14107(a) and 

affirm the citation.9

3. Gravity

Inspector Cook designated the citation as “unlikely” to cause an injury, given the 

extended grease lines, positioning of cattle gates, and lack of footprints near the conveyor. Tr. 

55. If an injury did occur, Inspector Cook found that it could result in “one” miner suffering a 

“permanently disabling” injury. Sec’y Ex. 11; Tr. 54-55. Because the citation is marked as 

“unlikely,” it is not considered an S&S violation. 

Inspector Cook, given his experience, provided credible testimony that contact with an 

unguarded feed drive chain and tail pulley could result in entanglement hazards and result in 

amputations, cuts, and appendages. Tr. 18, 44. Inspector Cook specifically recalled a fatality 

two months prior during another inspection of an unguarded tail pulley. Tr. 18, 44. He noted 

that if an injury were to occur, it would likely impact one miner who would be performing 

maintenance. Tr. 65. Moreover, Young testified that there was no guard directly over the tail 

pulley or feed drive and admitted that if a miner were to get caught in either of the moving 

machine parts while conducting maintenance, he or she could experience a permanently 

disabling injury including amputated fingers, serious lacerations, and broken bones. Tr. 92.

Given the facts above, I affirm the assessed likelihood, severity, and number of persons 

affected.

4. Negligence 

In his determination, Inspector Cook found that IMI was moderately negligent because 

other tail pulleys around the mine were adequately guarded and that this particular tail pulley 

could have been readily guarded as well. Tr. 56. He also explained that while IMI took efforts 

to put up cattle gates, a padlock, and a sign, such efforts were insufficient. Tr. 56. During the 

testimony of IMI’s only witness, Young stated that, aside from the tail pulley and drive chain at 

issue, a lot of other pulleys at the mine were properly guarded, estimating the number to be about 

20 to 30. Tr. 93.

It is plausible that a reasonably prudent person familiar with the mining industry under 

the same circumstances, would have placed individual guards on the tail pulley and drive chain

9 As with the berm violation, IMI argues that the citation should be vacated because previous 

MSHA inspections had not resulted in a citation for a guarding violation with respect to the

conveyor. Tr. 86; Resp’t Br. at 8. The court in Mainline disposed of this contention, stating 

“MSHA cannot be estopped from enforcing its regulations simply because it did not previously 

cite the mine operator. . . . . ‘Those who deal with the [g]overnment are expected to know the 

law and may not rely on the conduct of government agents contrary to the law.’” 693 F.3d at 

1187 (quoting Emery Mining Corp. v. Sec’y of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984)).
15

to protect miners from the moving machine parts, just as IMI did on approximately 20-30 other 

tail pulleys and drive chains elsewhere at the plant. Moreover, because the tail pulley and drive 

chain at issue were visibly unguarded, as noted by both Inspector Cook and Young, it is evident 

that IMI was aware that the components at issue were not guarded separately. 

Considering the totality of the circumstances, I find that the inspector was correct in 

finding that IMI was moderately negligent. 

IV. PENALTY

Commission administrative law judges have the authority to assess civil penalties de novo

for violations of the Mine Act. Sellersburg Stone Co., 5 FMSHRC 287, 291 (Mar. 1983). The 

Act requires that the ALJ shall consider six statutory penalty criteria in assessing civil monetary 

penalties: 

(1) the operator’s history of previous violations, (2) the appropriateness of such 

penalty to the size of the business of the operator charged, (3) whether the operator 

was negligent, (4) the effect on the operator’s ability to continue in business, (5) the 

gravity of the violation, and (6) the demonstrated good faith of the person charged 

in attempting to achieve rapid compliance after notification of a violation. 

30 U.S.C. § 820(i). 

In the fifteen months preceding the issuance of Citation Nos. 9443972 and 9443973, 

MSHA issued seven violations to Fall Creek. See MSHA, Mine Data Retrieval System, 

https://www.msha.gov/mine-data-retrieval-system (last visited June 1, 2022). IMI, a relatively 

small operator, agreed in conjunction with the Secretary that the proposed penalty would not 

affect its ability to continue in business. Jt. Stip. 8.

A. Citation No. 9443972 

For Citation No. 9443972, the Secretary proposed a penalty of $159.00. I determined 

IMI’s negligence to be moderate. See discussion supra Part III.A.4. I also determined the 

gravity of the violation to be S&S, to affect one person, and to be reasonably likely to cause a 

lost workdays/restricted duty-type injury. See discussion supra Part III.A.3. Moreover, IMI 

demonstrated good faith by building a berm that was higher than 34 inches on the same day that 

it was cited. See Sec’y Ex. 3; Tr. 33, 90. Considering the six criteria set forth under section 

110(i) of the Mine Act in conjunction with the relevant facts, I hereby assess a penalty of 

$159.00 for Citation No. 9443972. 

B. Citation No. 9443973 

For Citation No. 9443973, the Secretary proposed a penalty of $139.00. I determined 

IMI’s negligence was moderate. See discussion supra Part III.B.4. I also determined the gravity 

of the violation to be non-S&S, to affect one person, to have an unlikely likelihood of injury, and 

if occurred, to result in a permanently disabling injury. See discussion supra Part III.B.3. After 
16

receiving the citation, IMI maintained that the cattle gates constituted sufficient guarding and did 

not remedy the issue, neither on the day as the initial inspection nor by the time of the 

subsequent inspection on March 15, 2021. This prompted MSHA to issue a 104(b) order for 

IMI’s failure to timely abate the alleged violation. Consequently, credit is not due to the 

Respondent for its abatement efforts with respect to the guarding violation. Tr. 56-57. 

Considering the six criteria set forth under section 110(i) of the Mine Act in conjunction with the 

relevant facts, I hereby assess a penalty of $139.00 for Citation No. 9443973. 

V. CONCLUSION AND ORDER

In light of the foregoing, it is hereby ORDERED that Citation Nos. 9443972 and 

9443973 are AFFIRMED. Respondent IMI Aggregates, LLC, is hereby ORDERED to pay a 

penalty of $298.00 within 30 days of the date of this decision.10 Accordingly, this case is 

DISMISSED.

 

 John T. Sullivan

 Administrative Law Judge 

Distribution (First Class Mail and E-mail): 

 

Lydia J. Faklis, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., 

Room 844, Chicago, IL 60604 (faklis.lydia.j@dol.gov) 

Brad Wales, Safety Manager, IMI Aggregates, LLC, 8032 N. SR 9, Greenfield, IN 46140 

(brad.wales@irvmat.com) 

Donna V. Pryor, Esq., Husch Blackwell LLP, 1801 Wewatta St., Suite 1000, Denver, CO 80202 

(donna.pryor@huschblackwell.com) 

10 Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. 

Numbers.