i 

June 2022 

TABLE OF CONTENTS 

ADMINISTRATIVE LAW JUDGE DECISIONS 

06-03-22 IMI AGGREGATES, LLC LAKE 2021-0122 Page 411

06-08-22 IMI AGGREGATES, LLC PENN 2021-0084 Page 428

06-09-22 CONSOL PENNSYLVANIA COAL 

COMPANY, LLC 

PENN 2021-0084 Page 450

06-17-22 SEC. OF LABOR O/B/O ALVARO 

SALDIVAR v. GRIMES ROCK INC. 

WEST 2021-0265-

DM 

Page 473

ADMINISTRATIVE LAW JUDGE ORDERS 

06-16-22 SEC. OF LABOR O/B/O MOSES 

ORTIZ v. MARIO SINACOLA & 

SONS EXCAVATING, INC. 

CENT 2021-0184- 

DM 

Page 489

06-17-22 GRIMES ROCK, INC. WEST 2021-0178 Page 497

06-22-22 PERRY COUNTY RESOURCES KENT 2022-0024 Page 501
ii 

Review Was Granted In The Following Case During The Month of June 2022 

Secretary of Labor obo Juan Smitherman v. Warrior Met Coal, LLC, Docket No. 

SE 2021-0153-D (Judge Moran, February 14, 2022) 

Review Was Denied In The Following Cases During The Month of June 2022 

Secretary of Labor v. Consol Pennsylvania Coal Company, LLC, Docket No. 

PENN 2021-0019 (Judge Moran, April 29, 2022) 

Secretary of Labor v. GMS Mine Repair, Docket No. WEVA 2021-0431 

(Judge Lewis, May 13, 2022) 
ADMINISTRATIVE LAW JUDGE DECISIONS
44 FMSHRC Page 410
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 

 

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. 

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 

44 FMSHRC Page 411
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

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 

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. 

44 FMSHRC Page 412
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. 

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. 

44 FMSHRC Page 413
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. 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. 

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. 

44 FMSHRC Page 414
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. 

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. 

44 FMSHRC Page 415
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 

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 

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.”). 

44 FMSHRC Page 416
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). 

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

5

 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 under-carriage 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. 

44 FMSHRC Page 417
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 twoway 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 

44 FMSHRC Page 418
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 

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. 

44 FMSHRC Page 419
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. 

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.” 

44 FMSHRC Page 420
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 

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. 

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). 

44 FMSHRC Page 421
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. 

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 

44 FMSHRC Page 422
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 

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 

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). 

44 FMSHRC Page 423
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 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 

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)). 

44 FMSHRC Page 424
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 

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 

44 FMSHRC Page 425
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 

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. 

 /s/ John T. Sullivan 

John T. Sullivan

 Administrative Law Judge 

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.

44 FMSHRC Page 426
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) 

44 FMSHRC Page 427
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9987 / FAX: 202-434-9949 

June 8, 2022 

DECISION AND ORDER 

Appearances: Matthew R. Epstein, Office of the Solicitor, U.S. Department of Labor, 

 Philadelphia, Pennsylvania, for the Petitioner 

 Kenneth Polka, CLR, U.S. Department of Labor, MSHA, Mt. Pleasant, 

 Pennsylvania, for the Petitioner 

 Patrick W. Dennison, Esq., Fisher & Phillips LLP, Pittsburgh, 

 Pennsylvania, for the Respondent 

Before: Judge Young 

SUMMARY 

Citation No. 9204245, 30 C.F.R. § 75.1725(a): Failure to maintain machinery in safe 

operating condition. A horizontal keeper pin, used to retain a vertical breakaway (“shear”) pin, 

was missing from an operational headgate shield. 

Facts p. 4 (Slip Op.) 

Fact of violation Affirmed p. 5 

S&S Affirmed p. 8 

Negligence Low p. 11 

Penalty $383.00 p. 12 

Citation No. 9204250, 30 C.F.R. § 75.503: Failure to maintain electrical face 

equipment in permissible condition. 120-volt area light globes were cracked on an operational 

continuous miner located in a crosscut. 

Facts p. 12 

Fact of violation Affirmed p. 13 

S&S Affirmed p. 14 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

CONSOL PENNSYLVANIA COAL 

 COMPANY, LLC, 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

 Docket No. PENN 2021-0084 

 A.C. No. 36-07230-534033 

 

 Mine: Bailey Mine 

44 FMSHRC Page 428
Negligence Low p. 18 

Penalty $355.00 p. 18 

Citation No. 9204257, 30 C.F.R. § 75.1200-1(d): Failure to plot a drill hole that 

penetrated the coalbed being mined. Operator had not accurately marked an alleged gas well 

through which it inadvertently cut. 

Facts p. 19 

Fact of violation Affirmed p. 19 

Negligence None p. 20 

Penalty $100 p. 21 

I. INTRODUCTION 

This case is before me upon petition for assessment of civil penalty filed by the Secretary 

of Labor (“Secretary”) pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 

1977, as amended (“Mine Act” or “Act”), 30 U.S.C. § 815(d). At issue are three citations under 

section 104(a), issued to Respondent, Consol Pennsylvania Coal Company, LLC (“Consol” or 

“Respondent”).1

 The parties presented testimony and documentary evidence at a video 

conference hearing on February 1, 2022, and filed post-hearing briefs. 

Consol owns and operates the Bailey Mine, located in Greene and Washington counties, 

Pennsylvania. Jt. Stips. 1, 2; S. Post-Hr’g Br. at 1, 2 (Apr. 13, 2022) (“S. Br.”). The mine is an 

underground coal mine and is subject to the jurisdiction of the Mine Act and the Commission. Jt. 

Stips. 3, 4; S. Br. at 1–2. Citation No. 9204245 alleged that Respondent failed to ensure the 

presence of a keeper pin, risking a gate shield pin becoming a projectile. Citation No. 9204250 

alleged that Respondent failed to maintain 120-volt area light globes in permissible condition, 

risking methane ignition. Citation No. 9204257 alleged that Respondent failed to accurately plot 

a drill hole on its mine map. For reasons set forth below, I AFFIRM all three citations. I 

MODIFY the degree of negligence for Citation No. 9204257 from “low” to “none.” 

II. STANDARDS 

A. Violation 

 The Secretary must prove the elements of an alleged violation by a preponderance of the 

evidence. See Jim Walter Res., Inc., 28 FMSHRC 983, 992 (Dec. 2006); RAG Cumberland Res. 

Corp., 22 FMSHRC 1066, 1070 (Sept. 2000). Mine operators are generally strictly liable for 

mandatory safety standard violations. See Freeman United Coal Mining Co. v. FMSHRC, 108 

F.3d 358, 361 (D.C. Cir. 1997); Nally & Hamilton Enters., Inc., 33 FMSHRC 1759, 1764 (Aug. 

2011). 

1

 This docket included seven section 104(a) citations. One was bifurcated and 

consolidated with Docket No. PENN 2021-0117. See Order Granting Mot. to Bifurcate and 

Consolidate at 1 (Jan. 19, 2022). Three were settled by the parties and approved prior to hearing. 

See Decision Approving Partial Settlement at 1–2 (Feb. 4, 2022). 

44 FMSHRC Page 429
B. Gravity 

 The likelihood contemplated is that of the expected resulting injury. The severity 

evaluation assumes the occurrence of the hazard. See Consolidation Coal Co., 18 FMSHRC 

1541, 1550 (Sept. 1996) (comparing S&S inquiry, which focuses on “the reasonable likelihood 

of serious injury,” with gravity inquiry, which focuses on “the effect of the hazard if it occurs”) 

(emphasis added). 

The Secretary defines a severity assessment of “lost workdays or restricted duty” as 

“[a]ny injury or illness which would cause the injured or ill person to lose one full day of work 

or more after the day of the injury or illness, or which would cause one full day or more of 

restricted duty.” 30 C.F.R. § 100.3(e) (2022).2

C. Significant and Substantial (“S&S”) 

 A violation is properly designated as 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)). The four 

elements required for an S&S finding are expressed as follows: 

(1) [T]he underlying violation of a mandatory safety standard; (2) the violation was 

reasonably likely to cause the occurrence of the discrete safety hazard against which 

the standard is directed; (3) the occurrence of the hazard would be reasonably likely 

to cause an injury; and (4) there would be a reasonable likelihood that the injury in 

question would be of a reasonably serious nature. 

Peabody Midwest Mining, LLC, 42 FMSHRC 379, 383 (June 2020) (integrating the refinement 

of the second Mathies step in Newtown Energy, Inc., 38 FMSHRC 2033, 2037 (Aug. 2016)). 

 An S&S determination must be based on the assumed continuation of normal mining 

operations. See Consol Pa. Coal Co., 43 FMSHRC 145, 148 (Apr. 2021) (citing U.S. Steel 

Mining Co., 6 FMSHRC 1573, 1574 (Jan. 1984)) (“A determination of ‘significant and 

substantial’ must be based on the facts existing at the time of issuance and assuming continued 

normal mining operations, absent any assumption of abatement or inference that the violative 

condition will cease.”). 

D. Negligence 

 Judges may use a traditional negligence analysis, rather than relying upon Part 100 

definitions. Brody Mining, LLC, 37 FMSHRC 1687, 1701–02 (Aug. 2015) (citing Jim Walter 

Res., Inc., 36 FMSHRC 1972, 1975 n.4 (Aug. 2014); Sellersburg Stone Co. v. FMSHRC, 736 

2 The inspector’s characterization of the gravity of the violation, in conformance with Part 

100 for purposes of penalty assessment, is not binding on the Commission, but I recite it here 

because it may be useful in evaluating the enforcement decisions made by the agency.

44 FMSHRC Page 430
F.2d 1147, 1151–52 (7th Cir. 1984)) (“Part 100 regulations apply only to the proposal of 

penalties by MSHA and the Secretary of Labor; under both Commission and court precedent, the 

regulations do not extend to the independent Commission, and thus the MSHA regulations are 

not binding in any way on Commission proceedings.”). The reasonably prudent person standard 

should be that of one “familiar with the mining industry, the relevant facts, and the protective 

purposes of the regulation.” Brody Mining, LLC, 37 FMSHRC at 1702. 

E. Penalty 

 The Commission considers the following factors, from Section 110(i) of the Act, in 

assessing penalties under the Act: 

[T]he operator’s history of previous violations, the appropriateness of such penalty 

to the size of the business of the operator charged, whether the operator was 

negligent, the effect on the operator’s ability to continue in business, the gravity of 

the violation, and the demonstrated good faith of the person charged in attempting 

to achieve rapid compliance after notification of a violation. 

30 U.S.C. § 820(i) (2006). 

III. CITATION NO. 9204245 

A. Factual Findings 

 This citation was issued by Inspector Walter Young on March 1, 2021. Ex. GX-1, DOL 

001. He assessed the gravity as “reasonably likely,” “lost workdays or restricted duty,” “S&S,” 

and one person affected. Id. He assessed negligence as “low.” Id. The description read: 

The Operator failed to maintain the company number 3 gate shield located on the 

8L Longwall Working Section (006-0 MMU), inby the number 27 crosscut in safe 

operating condition. The Horizontal Keeper Pin to retain the vertical (breakaway) 

pin in place was missing. This condition will permit the vertical breakaway pin or 

pieces of the vertical breakaway pin to become airborne and injury [sic] person 

when its fails. Multiple persons are in the area when the shearer cuts out at the 

headgate and during times when the headgate pan line is pushed. The Operator 

immediately removed the shield from service until the condition could be corrected. 

Id. While taking a methane reading during a spot inspection, Inspector Young noticed that a 

horizontal keeper pin was missing from the clevis3

 on a headgate shield. Tr. 31, 32. Gate shields 

3 The clevis is a housing connected to the pan line of the shield and contains the shear pin 

where it connects to the relay bar, which moves the pan line. The clevis has two “ears,” or tabs, 

on the top and the bottom, and there are holes in those tabs, through which the horizontal 

retaining pins are inserted and then secured with an “r-clip” locked through a hole near the end 

of the pin, though a bolt may sometimes be used. Tr. 31–33. 

44 FMSHRC Page 431
have more tonnage capacity than line shields and exert more than 30 tons of pressure. Id. at 38, 

41. He described the purpose of the pin as keeping the vertical shear pin in place if it breaks as 

designed, enabling it to safely fall out the bottom of the clevis. Id. at 33, 36; see Ex. GX-3, DOL 

021. Shear pins break and need to be replaced frequently. Tr. 47.4

 Inspector Young; Justin Jones, Consol’s former safety inspector; and James Denham, its 

maintenance supervisor, all acknowledged that the vertical shear pin is intended to break at 

designated points to protect the whole shield system. See id. at 44, 52, 107–08, 142; Ex. GX-2, 

DOL 020. Inspector Young concluded that a shear pin can work its way up out of the clevis 

under pressure from shield operation, and without the keeper pin, it can become a projectile. Tr. 

33–34, 42. He testified that he personally observed a miner injured—he suffered a face 

laceration—by such occurrence at a headgate, and that others have been hit without injury. Id. at 

42. 

 Messrs. Jones and Denham contend that the shear pins only break under adverse 

conditions—shield twisted or hung up on a rock, uneven bottoms, or muddy conditions. Id. at 

109, 144. Neither has seen or heard of a broken shear pin becoming a projectile. Id. at 109, 110, 

111, 146–47. Neither are aware of any injury reports describing such an occurrence, and Mr. 

Jones testified that he searched and found none since 2007. Id. at 111, 113, 147. 

 Messrs. Jones and Denham testified, and Inspector Young acknowledged, that miners 

typically operate these shields manually from two shields away—seven-to-eleven feet from the 

possible pin hazard. Id. at 68, 116, 149. Inspector Young contended that a miner could be struck 

within eight feet, enabling injuries such as lacerations or eye injuries. Id. at 66. He also described 

the area surrounding gate shields as a transition area—a walkway where many people stand 

while operating the shields. Id. at 42, 45. 

B. Disposition 

1. Violation 

 The cited standard states, “Mobile and stationary machinery and equipment shall be 

maintained in safe operating condition and machinery or equipment in unsafe condition shall be 

removed from service immediately.” 30 C.F.R. § 75.1725(a) (2022). The Secretary argues the 

machinery was not maintained in safe operating condition because Respondent failed to safely 

secure the shear pin. S. Br. at 7. Respondent, however, argues the missing keeper pin does not 

itself make the machinery unsafe. Resp’t’s Post-Hr’g Br. at 5 (Apr. 13, 2022) (“Resp’t Br.”). It 

refers to several other standards, argued as comparable to the cited standard, to support its 

assertion. The cited cases, however, are either inapposite or unnecessary to the decision here. 

First, Respondent asserts that “more than mere presence of a condition [is required] to 

constitute a violation despite strict liability.” Id. The compared provisions are significantly 

4 Shear pins are hollow and have indentations, or grooves, near each end to enable them 

to break as intended. Tr. 31–32, 50–52. 

44 FMSHRC Page 432
different. Section 75.323 requires ventilation system adjustments or work stoppages when a 

stated level of methane is present. See 30 C.F.R. § 75.323(b)(1)(ii)–(iii) (2022); Resp’t Br. at 5 

n.3. The standard here does have a similar mitigating action requirement, but it also requires that 

machinery be maintained in safe operating condition—it does not only require action when an 

unsafe operating condition exists.5 The provision and cited cases are, therefore, inapposite to my 

decision here. 

 Next, Respondent compares the cited standard with Section 56.11001 to argue that a 

violation does not occur simply because an unsafe condition exists. See Resp’t Br. at 6. First, a 

Section 56.11001 violation does in fact occur where an unsafe condition exists, and the cited 

cases do not support contention to the contrary.6 The authority, if applied to a Section 75.1725 

violation, would actually support a violation finding where the Secretary demonstrates an 

improper method of maintaining machinery—e.g., not having all the components present and 

serviceable. This authority is, therefore, inapposite to my decision here. 

 Finally, Respondent cites multiple ALJ decisions on Section 75.202(a) [roof fall 

protection] to argue that the provision here should be analyzed as a performance-based 

standard—requiring evaluation of the reasonableness of the operator’s efforts. See id. These 

decisions do not control my decision here. More importantly, they are unnecessary because there 

is Commission precedent that directly supports the evaluation of “unsafe operating condition” 

based on a reasonably prudent person standard. 

 The Commission has established that the standard for a Section 75.1725(a) violation is 

whether a reasonably prudent person would recognize the hazard, stating: 

[I]n deciding whether machinery or equipment is in an unsafe operating condition, 

the alleged violative condition is 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. 

5 Compare Spartan Mining Co., 30 FMSHRC 699, 711 (Aug. 2008) (“The standard 

imposes two duties upon an operator: (1) to maintain machinery and equipment in safe operating 

condition, and (2) to remove unsafe equipment from service.”) (emphasis added), with Jim 

Walter Res., Inc., 19 FMSHRC 1761, 1767 (Nov. 1997), and Amax Coal Co., 17 FMSHRC 48, 

51 (Jan. 1995) (ALJ) (requiring action upon a finding of excessive methane, not methane 

prevention itself). 

6

 The Commission in Lopke Quarries, Inc. required evidence that the asserted safe means 

of access actually was utilized, not only that it existed in addition to an allegedly unsafe access. 

23 FMSHRC 705, 707 (July 2001). The Commission in Henna Mining Co. held that an operator 

“could show that a cited area is not a ‘means of access,’” demonstrating that existence of unsafe 

access would be adequate to prove a violation. 3 FMSHRC 2045, 2046 (Aug. 2006). 

44 FMSHRC Page 433
Spartan Mining Co., 30 FMSHRC at 711 (citing Ala. By-Prods. Corp., 4 FMSHRC 2128, 2129 

(Dec. 1982)). 

The Commission has affirmed a violation of this standard for missing components. See 

Martinka Coal Co., 15 FMSHRC 2452, 2456 (Dec. 1993) (affirming a Section 75.1725(a) 

violation for missing belt rollers where substantial evidence from two witnesses showed the 

components were missing). The Commission has also found a violation of another unsafe 

condition standard by comparing it to the identical language in Section 75.1725(a). See So. Ohio 

Coal Co., 13 FMSHRC 912, 915–16, 916 n.2 (June 1991) (quoting Ala. By-Prods. Corp., 4 

FMSHRC at 2129) (“Substantial evidence supports the judge’s finding that the two broken track 

pads presented an unsafe condition.”). 

 In Martinka Coal Co., a belt structure was missing rollers, causing the belt to rub against 

the structure. 15 FMSHRC at 2456. The Commission affirmed the violation because of the 

presence of combustible accumulations and an ignition source. Id. In So. Ohio Coal Co., the 

Commission found it sufficient that the inspector and operators testified that the condition—

broken track pads—was unsafe. 13 FMSHRC at 916. It concluded that “safe operating 

condition” means that a machine can be used safely by miners. Id. at 915. 

 Therefore, whether missing or broken components are involved, there still must be a 

danger posed to miners by use of the cited machinery. The Commission recently affirmed two 

Section 75.1725(a) violations as S&S against this operator where cables were found to be in bad 

condition and posed a risk of snapping or dropping loads. Consol Pa. Coal Co., 43 FMSHRC at 

150–51, 153–54. There, a cable was found to not be connected as designed—merely wrapped 

around the reel. Id. at 150. 

 Here, the circumstances are sufficiently similar. The headgate shield clevis was missing a 

component—the horizontal keeper pin. The Secretary has presented credible evidence that the 

shear pins, which are designed to break, have been projected from the clevis upon breaking. The 

inspector noted one known injury where he was present and multiple reports from other miners 

of the hazard occurring without causing injury. 

 Respondent challenges an unsafe finding by arguing that it is unlikely that the pin would 

be projected. See Resp’t Br. at 6–7. Respondent borrows from its S&S argument a further 

assertion that an injury is unlikely because of likely miner distance from the hazard and lack of 

reports about injuries from projectile shear pins. Id. at 7–8. 

 I find that Inspector Young’s testimony is credible and reject the operator’s contentions. 

Respondent attempted to rebut the noted occurrence with testimony from Mr. Jones that he could 

not find any such reports going back to 2007. Tr. 111. Inspector Young, however, has been a 

MSHA inspector since 2006. Id. at 24. Thus, the event, which occurred while he was a foreman, 

id. at 61, would have occurred prior to the earliest year checked by Respondent. 

In summary, the machinery was missing a component. That component is intended to 

prevent the shear pin from moving upward out of the clevis. There is credible testimony that 

shear pins can move upward and can be projected when broken under heavy pressure. I need not 

44 FMSHRC Page 434
address here whether there is a confluence of factors making an injury reasonably likely. It is 

sufficient for purposes of the violation finding that a dangerous condition could be created by use 

of the cited machinery with a missing component. I therefore affirm the violation. 

2. Gravity 

 a. Likelihood 

 The Secretary asserts that the hazard is reasonably likely. I have found that credible 

evidence exists to support that the hazard—a projectile shear pin—could occur. See supra

Section III.B.1. I therefore affirm the determination of likelihood in my penalty assessment. 

 b. Severity 

 The Secretary asserts that the severity of the contemplated injury is lost workdays or 

restricted duty. If an injury-causing hazard—a projectile shear pin contacting a miner—occurred, 

it could reasonably result in an injury that would cause a miner to miss at least a full day of 

work. Inspector Young testified to an event that caused a face laceration. Further, I find credible 

that an object projected with such force could cause a laceration or damage to an eye. I therefore 

affirm the severity as characterized by the inspector.

 c. Number of Persons Affected 

 The inspector assessed that only one miner would be affected by the hazard. I agree that 

only one miner is likely to be contacted by a piece of a shear pin projected from the clevis. I thus 

affirm the inspector’s enumeration of persons who could be affected. 

3. S&S 

I affirm the S&S designation for the following reasons. 

a. Step 1: The violation has been established.

 A missing component from machinery, and the attested possibility that the component 

intended to be controlled by the missing component could cause an injury, is sufficient to 

constitute an underlying violation of a mandatory safety standard for the purposes of Mathies

Step 1. See supra Section III.B.1. 

b. Step 2: The violation was reasonably likely to result in the discrete 

safety hazard against which the regulation is directed—a shear pin 

breaking under headgate pressure and becoming a projectile. 

Mathies Step 2 is a two-step process: (1) determine the specific hazard the standard is 

aimed at preventing; and (2) determine whether a reasonable likelihood exists that the hazard 

against which the mandatory standard is directed will occur. Newtown Energy, Inc., 38 

FMSHRC at 1868. This finding must be based on “the particular facts surrounding the 

violation.” Northshore Mining Co., 38 FMSHRC 753, 757 (2016). 

44 FMSHRC Page 435
Here, the standard requires that machinery be maintained in a condition that enables its 

safe use by miners. See So. Ohio Coal Co., 13 FMSHRC at 915. The hazard the standard aims to 

prevent is one resulting from the dangerous operation of the cited machinery. The Secretary 

provided a plausible specific hazard posed by the missing component. Therefore, the specific 

hazard here is the shear pin becoming a projectile. 

The remaining issue is whether a reasonable likelihood exists that the shear pin will 

become a projectile under pressure from the headgate. Respondent is correct that the likelihood 

of hazard should be based upon the “particular facts surrounding the violation.” Resp’t Br. at 9 

(citing Newtown Energy, Inc., 38 FMSHRC at 2038). I find that the hazard is reasonably likely to 

occur. 

 The Secretary provided credible testimony that shear pins have broken and become 

projectiles. Regarding particular facts, the standard here was cited on a headgate shield. Inspector 

Young testified that the observed injury-causing hazard occurred while the miner was pushing 

out the headgate. Tr. 42. 

 I acknowledge that multiple Respondent witnesses testified that they have not seen this 

happen, and more importantly, that if it were to occur, it would require adverse conditions. The 

Commission recently vacated an S&S finding at Step 2 because exposure to a hazard was not 

likely. See Consol Pa. Coal Co., Docket No. PENN 2019-0008, 2022 WL 489572, at *6–7, *9 

(Feb. 10, 2022) (reasoning that contact with a damaged cable would require it to be knocked 

down from its hanging hooks, but there was no evidence that it could be easily knocked to the 

floor). This supports a failure at Step 2 if nothing in the record establishes the likelihood that the 

conditions enabling a projectile pin will occur. That is not the case here, however. 

 I find that an event that has occurred in the past is reasonably likely to occur, as a matter 

of logic and common sense. See United Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985) 

(accepting testimony that the mine had experienced methane ignitions in the past to conclude that 

“evidence supports a finding that there was a reasonable likelihood that the hazard . . . could 

result in the occurrence of an ignition”); Consolidation Coal Co., 6 FMSHRC 34, 38 (Jan. 1984) 

(affirming an S&S finding because evidence of bad roof and testimony of past roof falls made 

the occurrence of the hazard reasonably likely) (emphasis added). The inspector has not relied 

upon conjecture of speculation but on a previous event with which he was personally familiar. 

I credit Inspector Young’s testimony that he has witnessed such an occurrence at a 

headgate shield, and that there have been other reports of projectile pins.7

 Also, assuming 

continued mining operations, it is possible that adverse conditions could present with a keeper 

pin still absent. Crediting testimony about the occurrence of the hazard in the past gives rise to 

7 Inspector Young testified about another miner being injured at the Bailey Mine by a 

piece of shear pin, but he could not remember the miner’s name. Tr. 60–61. He acknowledged 

that he is only aware of one reportable accident, involving the miner he did name. Id. at 63. I find 

Inspector Young to be a credible witness and credit his account of one other known minor injury 

caused by the hazard at issue.

44 FMSHRC Page 436
the potential that those conditions will converge again in the future. I therefore find that the 

hazard was reasonably likely at Step 2.8

c. Step 3: It is reasonably likely that projectile shear pin contact with a 

miner would cause an injury—laceration or eye damage. 

Mathies Step 3 asks whether the hazard, not the violation itself, is reasonably likely to 

cause an injury. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280–81 (Oct. 2010). In evaluating the 

likelihood of injury, judges must assume the occurrence of the hazard. See Newtown Energy, 

Inc., 38 FMSHRC at 2037. 

 One only reaches Step 3 of the Mathies analysis after determining that the hazard is 

reasonably likely to occur. I thus assume the occurrence of the hazard—a shear pin breaking 

under the pressure of the headgate and becoming a projectile. The Secretary provided testimony 

that such a pin could contact a miner and cause a laceration. This alone is insufficient for a 

finding that an injury is reasonably likely to occur. Respondent correctly asserts that Commission 

precedent requires more than a finding that there is a “potential” that an injury “could” occur. 

Resp’t Br. at 8 (citing Wolf Run Mining Co., 32 FMSHRC 1669, 1677 (Dec. 2010); Texasgulf 

Inc., 10 FMSHRC 498, 500–01 (Apr. 1988)). As with Step 2, I must evaluate whether an injury 

is reasonably likely to occur based on the surrounding circumstances. 

 The Secretary is correct that Respondent cannot rely on safety measures or miner 

precaution—e.g., helmets and protective clothing—to defend at Step 3. See S. Br. at 9 (citing 

Sec’y of Lab. v. Consolidation Coal Co., 895 F.3d 113, 116, 118 (D.C. Cir. 2018)). There must, 

however, be evidence on the record that miners would be in the area during operations to be 

injured by the hazard. See Consol Pa. Coal Co., 43 FMSHRC at 152, 153 (demonstrating that 

miners worked at the site of the cited equipment, and that others worked nearby). The record 

must also demonstrate that one or more miners would have been at risk of injury from the 

discrete hazard. See Peabody Midwest Mining, LLC, 42 FMSHRC at 387–88 (acknowledging 

that evidence established that more miners than could be accommodated by refuge chambers 

would be present on section at shift change, but finding that the absence of evidence of any 

mining activities or other possible ignition source during shift change negated potential for 

injury). 

 The Secretary’s brief did not focus on the possibility that other miners beyond the miner 

moving the shields could have been exposed to the hazard. See S. Br. at 11 (relying mostly on 

8

 I stress that my decision is narrow and is based on the record facts presented to me at 

hearing in this case. Those facts, involving the same mine and general circumstances as a prior 

incident testified to by the inspector, suggest a greater likelihood that shear pins will fail and be 

ejected at the headgate than in the main mining line. Curiously, this seems to be at variance with 

a case involving the issue tried shortly before the case at bar. See Consol Pa. Coal Co., LLC, 44 

FMSHRC 161, 167 (March 2022) (ALJ) (focusing on reduced likelihood that pins will be 

ejected at headgate shields). I have issued my decision based on the record facts as presented to 

me.

44 FMSHRC Page 437
the average distance between the miner using the remote and the shield being moved). However, 

Inspector Young testified in two places about the presence of miners. First, he testified that gate 

shields are in transition areas that are in a walkway, but he specified in the same sentence that it 

is “where people stand whenever they push and pull these shields.” Tr. 42. This testimony does 

not explicitly provide that there are miners other than the shield operator exposed to the hazard. 

 Inspector Young later explained: 

[T]here’s [sic] a whole lot of people exposed, especially at the head gate [sic] when 

they cut out. People just don’t run off the base and cut out and come back on to the 

face. The shields are pulled, the guys are standing up in the transition area and 

underneath the gate shields, and these shields – and then the pan line is pushed, and 

these guys come in and cut out. 

Id. at 45. This testimony identifies other miners present during shield operation. Therefore, I 

assume the presence of both the shield operator and other miners while the shield is operated 

during continued normal mining operations. 

 I accept Mr. Denham’s testimony that miners are usually further away—possibly ten 

meters—while operating gate shields because they are usually moving multiple shields. Id. at 

149. All witnesses nevertheless testified that miners at this mine generally operate shields 

manually from two shields away at a distance of seven-to-eleven feet. 

 Combining the likelihood that a miner would be within the shorter testified distance, the 

testimony that a projected pin has flown eight feet to injure a miner, and the lack of contrary 

testimony to the inspector’s claim that other miners are in the area during shield operation, I find 

that an injury is reasonably likely to occur. 

d. Step 4: It is reasonably likely that such an injury would be of a 

reasonably serious nature. 

 An inspector’s conclusion that a possible injury is of a reasonably serious nature has been 

held sufficient for Mathies Step 4. See Consol Pa. Coal Co., 43 FMSHRC at 149 (finding it 

sufficient that the inspector characterized the potential injury as “serious” and noted potential 

injuries). The Commission also does not require a specific type of injury for it to be considered 

serious. See S&S Dredging Co., 35 FMSHRC 1979, 1981–82 (July 2013). 

 Here, the Secretary provided credible, undisputed testimony that the hazard could result 

in lacerations or eye damage. Respondent focused on the likelihood of the hazard and injury 

occurring, see Resp’t Br. at 11–14, only making conclusory statements that any resulting injury 

44 FMSHRC Page 438
would not be of a serious nature, see id. at 13, 14. I find it is reasonably likely that an injury that 

could include lacerations or eye damage would be reasonably serious.9

4. Negligence 

 I find that the negligence was properly characterized by the inspector as “low.” Those 

charged with inspecting the shields are familiar with the mining industry and relevant facts. They 

should have been familiar with the protective purpose of ensuring the keeper pins were present. I 

therefore find that a reasonably prudent person in their position should have known about the 

violative condition and acted to remedy it. 

 The Secretary argues that this is a result of moderate negligence because the operator 

knew that these pins commonly break and failed to remedy a violation that it should have 

assumed. See S. Br. at 11–12. Respondent argues that no negligence was demonstrated because 

no one knew about a broken pin. See Resp’t Br. at 14. I disagree with both. 

The inspector appropriately noted that these pins consistently break, and that the 

condition could have occurred between the last inspection and the violation. I credit the 

inspector’s explanation, and I agree to a limited degree with the Secretary—this is a condition 

Respondent must work to continually remedy to maintain the machinery in a safe operating 

condition. I therefore affirm the negligence finding. 

5. Penalty 

The Secretary has entered Respondent’s violation history [MSHA Directorate of 

Assessments, Assessed Violation History Report] into evidence. See Ex. GX-12. Its history 

consists of twenty-nine repeat violations during the inspection period. I have reviewed 

Respondent’s general and repeat violations, and I find that the Secretary has properly considered 

Respondent’s violation history in his calculation. I agree that the Secretary has properly 

evaluated the size of the mine in his calculation. Neither party has stated that payment of this 

penalty will affect Respondent’s ability to continue in business, and the minimal penalty amounts 

do not support such a conclusion. 

 The proposed penalty of $383.00 was based, in part on the negligence [low] and gravity 

[reasonably likely] assessed in the citation. I have affirmed the reasoning underlying the 

Secretary’s assessments. The citation was terminated immediately by installation of a keeper pin. 

Thus, Respondent demonstrated good faith in achieving rapid compliance following citation. 

Having affirmed the citation as issued, in consideration of the six factors in Section 110(i) of the 

Act, I assess a penalty of $383.00, as proposed by the Secretary. 

9 Regarding the likelihood that a miner would be wearing a protective “AirstreamTM” 

helmet, which includes a face shield, I note that the miner injured in the incident described by 

Inspector Young had an AirstreamTM helmet but had his face shield lifted when he was struck by 

a piece of a shear pin. Tr. 69. 

44 FMSHRC Page 439
IV. CITATION NO. 9204250 

A. Factual Findings 

 This citation was issued by Inspector Young on March 3, 2021. Ex. GX-4, DOL 022. He 

assessed gravity as “reasonably likely,” “lost workdays or restricted duty,” “S&S,” and one 

person affected. Id. He assessed negligence as “low.” Id. The description read: 

The Company Number 33, Continuous Miner (s/n- 033K, 2G-4022A) located 

approximately 130 feet inby the number 39 crosscut, in the number 3 entry on the 

9L Working Section (007-0 MMU) was not maintained in permissible condition. 

Four 120 A.C. volt area light globes were cracked. The 2 area lights inby the side 

bolters contained one or more cracks which ranged from 1.5 to 3 inches in length, 

but the body of the globes could not be distorted by hand pressure. The double 

ended area light (2 globes) directly below the rib bolter on the operators [sic] side 

were badly damaged by being covered with cardboard and had overheated. These 

light globes contained numerous, large spider web like [sic] cracks going in 

multiple directions, one contained a hole measuring 0.25 inches wide by 0.375 

inches long. Both of these lights could easily be distorted by hand pressure from 

the heat damage done to them from them being unnecessarily be [sic] covered with 

the cardboard. This condition permits the ambient mine atmosphere to freely enter 

the explosion proof electrical lighting fixtures. Additional confluence of factors are 

included in citation number 9204251 for the methane monitor not being maintained 

in proper operating condition and methane being liberated in this working section 

were used in determining this condition to be Significant and Substantial. The 

Operator immediately removed the machine from service until the conditions could 

be corrected. this [sic] mine liberates 10,835,416 cubic feet of methane every 24 

hours. 

Id., DOL 022–23. He visited the mine for an E02 spot inspection because Bailey Mine liberates 

more than ten million cubic feet of methane every twenty-four hours, and it was on a five-day 

Section 103(i) inspection regimen. Tr. 28, 71, 76. Ventilation was working properly that day. Id.

at 93. 

Inspector Young found 120-volt light globes with cracks and holes. Id. at 73. He noted 

that the damage could have occurred since the last required exam several days prior. Id. at 82. He 

simultaneously noted that the section was liberating methane, obtaining a reading of 0.25 percent 

in the Number 3 Entry. Id. at 77. Methane typically increases when the continuous miner begins 

cutting coal, and the miner was inby a crosscut for operation. See id. at 94–95; Ex. GX-4, DOL 

022. 

He also issued a citation for an improperly calibrated methane monitor on the continuous 

miner with the violative globes. See Tr. 78; Ex. GX-5. The miner was deenergized in a test when 

the monitor read 1.5 percent. Tr. 88–89, 122–23. Inspector Young testified, and Mr. Jones 

acknowledged, that the monitor should have read 2.5, but only read 1.7, when the miner shut 

down. Id. at 89, 123. 

44 FMSHRC Page 440
No witnesses were aware of any electrical faults within the enclosure at the time of 

inspection. Id. at 133, 176. Respondent provided photographic evidence—taken of the 

continuous miner outside the mine, several months after the citation—that the lights in the cited 

globes were likely LED rather than fluorescent or incandescent. Id. at 164, 166, 174; Ex. R-7, 

CONSOL 0038, 0041. Inspector Young acknowledged that he did not know what type of lights 

were in the globes, only that they were 120-volt. Tr. 87. 

John Baker, Consol’s electrical engineer, testified that LED lights are more efficient but 

still radiate heat. Id. at 160, 163. He recognized that, while close, the circuit in question is not 

intrinsically safe per the graph provided by Respondent. Id. at 170–72; Ex. R-8, CONSOL 0042. 

On cross-examination, he admitted that the dot on the graph is on the “explosive side” of the 

curve, that one cannot predict when an electrical circuit will fail, and that the cited globe was 

“not mechanically intact”—i.e., not explosion proof. Tr. 174, 176–77. 

B. Disposition 

1. Violation 

 The cited standard states, “The operator . . . shall maintain in permissible condition all 

electric face equipment required by . . . [§] 75.504 to be permissible which is taken into or used 

inby the last open crosscut of any such mine.” 30 C.F.R. § 75.503 (2022). Permissibility 

requirements “ensure that ignitions occurring within enclosures on mining equipment which 

contain electrical circuits will not escape into the mine atmosphere.” Knox Creek Coal Corp., 36 

FMSHRC 1128, 1131 (May 2014). 

 Respondent made only a cursory challenge to the violation finding. See Resp’t Br. at 16 

(“If a Violation Existed, the Citation was Improperly Designated as S&S . . . .”). The Secretary, 

nevertheless, still has the burden of proving the violation. The Secretary provided credible 

testimony that cracks and holes existed in the cited globes. Respondent’s electrical engineer 

acknowledged that such conditions make the globes “not mechanically intact.” He further 

testified that an enclosure must be mechanically intact in order to be explosion proof. 

 I credit the testimony of both witnesses and find that the cited enclosures were not 

mechanically intact. Therefore, they were not explosion proof. Because permissibility is meant to 

prevent ignitions within enclosures from escaping, these enclosures were not permissible. 

Finally, the offending continuous miner was taken and used 130 feet inby the described crosscut. 

I therefore affirm the violation. 

2. Gravity 

 a. Likelihood 

 The Secretary asserts that the hazard is reasonably likely. I have found that credible 

evidence exists to support the potential ignition in a light fixture penetrating a compromised 

globe. See supra Section IV.B.1. I therefore agree with the determination of likelihood. 

44 FMSHRC Page 441
 b. Severity 

 The Secretary characterized the severity of the contemplated injury as lost workdays or 

restricted duty. The Secretary provided credible testimony that such a hazard could cause 

external and internal burns, broken bones, or concussions. Tr. 81. I find that such injuries would 

reasonably result in an injury that would cause a miner to miss at least a full day of work. I 

therefore affirm the inspector’s characterization of severity. 

 c. Number of Persons Affected 

 The inspector assessed that only one miner would be affected by the hazard. While I 

think it likely that more than one miner would be working in the vicinity of the offending 

machine when the hazard was possible, see id. (“Usually it’s the bolters closest to the facing that 

take the brunt . . . .”) (emphasis added), I defer to the inspector’s judgment as to the number of 

persons affected. 

3. S&S 

 I affirm the S&S designation for the following reasons. 

a. Step 1: The violation has been established.

 The failure to maintain the mechanical integrity of light fixtures on equipment used inby 

the cited crosscut is sufficient to constitute an underlying violation of a mandatory safety 

standard for the purposes of Mathies Step 1. See supra Section IV.B.1. 

b. Step 2: The violation was reasonably likely to result in the discrete 

safety hazard against which the regulation is directed—ignition of the 

mine atmosphere. 

 A methane ignition outside of the enclosure is the discrete safety hazard against which 

the standard intended to protect. The reasonable likelihood of this hazard occurring requires two 

things: the reasonable likelihood that an explosion will occur in the violative enclosure, and the 

reasonable likelihood that the escape of that explosion will ignite the mine atmosphere. See Knox 

Creek Coal Corp. v. Sec’y of Lab., 811 F.3d 148, 164 (4th Cir. 2016) (quoting Texasgulf, Inc., 10 

FMSHRC at 501) (“When the Commission in Texasgulf required the consideration of a 

“confluence of factors” in making an S & S determination, it was specifically concerned with 

whether there was ‘a sufficient amount of methane in the atmosphere surrounding the 

impermissible gaps and ignition sources.”). 

i. There is sufficient evidence in the record to find that an 

explosion within the enclosure was reasonably likely. 

 The violative light fixture is a 120-volt system. Tr. 75, 87, 174. Even if an LED bulb was 

present, the circuit would not have been intrinsically safe. Id. at 172; Ex. R-8, CONSOL 0042. 

Electrical circuits do fail without warning, and one cannot predict when that will occur. Tr. 176, 

44 FMSHRC Page 442
177. In addition to the poor condition of the globes, there was credible testimony by the inspector 

that moisture, erosion, vibration, or just age can contribute to a failed circuit that can contribute 

to an ignition. Id. at 75; see also Knox Creek Coal Corp., 36 FMSHRC at 1134 (noting similar 

conditions and causes for failure that were sufficient for affirming an S&S designation). 

 The Secretary relied on the fact of violation and that even LED bulbs, if present, were 

acknowledged to not be intrinsically safe. See S. Br. at 12–13. Respondent correctly notes that 

the reasonable likelihood of an ignition within the light fixture is required, see Resp’t Br. at 17, 

but it fails to provide adequate evidence negating this likelihood. Respondent makes three 

assertions regarding the light fixture that I reject. 

 First, that there would have to be a failure in the light fixture on the nonprotected side of 

the light’s ballast. Id. There is sufficient evidence in the record to conclude that the circuit could 

fail in the normal course of operations. Further, such an argument would essentially negate the 

danger in any permissibility violation. The purpose of the standard is to prevent the effects of an 

ignition within an enclosure from reaching the outside atmosphere. A light fixture failure must 

be assumed to be able to ignite methane that naturally enters the enclosure. 

 Second, that there was no evidence of electrical issues with the lights. Id. at 18. This is 

similarly refuted by the requirement to assume continued normal mining operations. There is 

credible testimony from both parties that such circuits can and do fail. 

 Finally, that the LED lights allegedly present are nearly intrinsically safe—designed to be 

“near the energy level that could not ignite a methane concentration.” Id. Respondent’s own 

electrical engineer admitted, and the provided graph demonstrated, that even LED lights would 

not move the circuit to the intrinsically safe side of the line. Though “nearly” intrinsically safe, 

the evidence supports a conclusion that the lights in question, including LED lights, would 

provide a potential source for an ignition. 

 Even if the use of LED bulbs was sufficient to make an ignition unlikely, there is nothing 

in the record proving that LED bulbs were in fact present at the time of the citation. The picture 

evidence shows what does appear to be an LED fixture through the globes. Tr. 166; Ex. R-7, 

CONSOL 0041. That provided picture, however, was taken outside the mine, months after the 

citation was issued, and after the globes had been replaced. Tr. 174; Ex. R-7, CONSOL 0038, 

0041. No witness testified that LED bulbs were present at the time of the citation. 

ii. A preponderance of the evidence establishes that an 

atmospheric ignition was reasonably likely. 

 I have concluded that an ignition within the light fixture is reasonably likely, and the fact 

of impermissibility would allow such an explosion to escape the enclosure. Bailey Mine is a 

“gassy” mine that liberates more than ten million cubic feet of methane every twenty-four hours, 

and the mine and cited section were liberating methane at the time. Tr. 76–77; Ex. GX- 4, DOL 

023; see also Knox Creek Coal Corp., 811 F.3d at 164 (recognizing that a mine liberating more 

than 500,000 cubic feet of methane or other explosive gases during a twenty-four-hour period 

was considered “gassy”). 

44 FMSHRC Page 443
 In Knox Creek Coal Corp., the affirmed Commission decision did not disturb the judge’s 

finding that the designation of a mine as “gassy” was sufficient to find that an ignition was 

reasonably likely. See 811 F.3d at 154 (recognizing the judge’s finding that “an explosion could 

escape the enclosures and trigger a larger explosion in the ‘gassy’ mine atmosphere”); 36 

FMSHRC at 1131 (“[G]iven the gassy nature of the mine, sudden methane buildups in the 

explosive range could reasonably be expected to occur.”). 

 In addition to accepting the possibility of sudden methane buildups as sufficient for S&S, 

the ALJ’s decision in Knox Creek noted that methane accumulations above five percent had 

previously been detected. Docket No. VA 2010-89-R, 2010 WL 5619977, at *43 (Dec. 27, 2010) 

(ALJ). He further accepted testimony that “although methane could accumulate to an excessive 

range from places such as the floor or the rib[s], usually it came from the face [as] coal was cut.” 

Id. at *41. 

 Respondent asserts that the necessary confluence of events was not present. First, it 

provided testimony that there would have to be sufficient methane accumulation for a 

sufficiently long time, that it would have to occur quickly enough for the monitor to trip the 

miner, and that a simultaneous light fixture failure would have to occur. See Tr. 169–70; Resp’t 

Br. at 17. 

I have already addressed the reasonable likelihood of circuit failure, and thus do not 

accept this contention here. Next, it is true that nothing in the record provides that the explosive 

level was reached in the cited entry or other entries. See Tr. 76–77, 84–85, 93, 121–22, 124–28; 

Ex. GX-4, DOL 038–39; Resp’t Br. at 17. However, such accumulation does not need to be 

shown at or near the time of the violation. Per Knox Creek, it is sufficient that the mine is 

“gassy,” and that buildups within explosive range are reasonably likely to occur. 

As the Commission has consistently held, the S&S analysis must assume the continuation 

of normal mining operations. See Knox Creek Coal Corp., 811 F.3d at 156 (affirming that the 

judge failed to consider methane accumulation “as [it] would have existed had normal mining 

operations continued”); see also 36 FMSHRC at 1132 (citing Black Beauty Coal Co., 34 

FMSHRC 1733, 1740 (Aug. 2012); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 677–78 

(Apr. 1987)). In this context, we must assume a constant threat of explosive methane in a gassy 

mine. I therefore find a reasonable likelihood that methane levels will rise when the miner cuts 

coal during continued mining operations. 

Finally, I also consider that the methane monitor was shown to not be calibrated properly, 

and that more methane than detected would likely be present before it cut the miner’s power. See

Tr. 78, 123; Ex. GX-5. Taken together, there is sufficient evidence on the record to find that an 

ignition is reasonably likely to occur. 

c. Step 3: It is reasonably likely that ignition of the mine atmosphere 

would result in injury such as burns, broken bones, or concussions. 

 The reasonable likelihood of occurrence of the hazard has been established. Assuming an 

ignition occurs, I find that it is reasonably likely to result in an injury. An explosion is generally 

44 FMSHRC Page 444
reasonably likely to cause injury—burn or concussive—to nearby miners. The issue, therefore, is 

whether the record demonstrates that miners will be in vicinity of the hazard. 

 Respondent makes no specific assertions contesting Step 3; it only states broadly that 

“the Citation is not reasonably likely to result in a hazard that was reasonably likely to result in 

injuries of a reasonably serious nature.” Resp’t Br. at 18. The Secretary similarly provides little 

in support. See S. Br. at 13 (arguing that the failure of Respondent to dispute that “an LED bulb 

runs on 120 volts and is not intrinsically safe” satisfies Step 3). I find this assertion lacking in a 

Step 3 analysis because it is only relevant to the likelihood of the hazard occurring in Step 2. 

This nonetheless does not prohibit a finding that the violation meets the requirements for Step 3. 

 The Secretary provided credible testimony that miners would be working near the 

violative continuous miner during operation. I already credited his assessment that at least one 

miner—“bolter[] closest to the facing”—would be injured by an ignition. See supra Section 

IV.B.2.C. With no contrary testimony provided, this is sufficient to find that a miner would be 

injured if the hazard occurred. 

d. Step 4: It is reasonably likely that such an injury would be of a 

reasonably serious nature. 

 An inspector’s assessment of an injury as reasonably serious has generally been accepted. 

See supra Section III.B.3.d. Here, the Secretary has provided credible testimony that an ignition 

of the mine atmosphere could cause burns, broken bones, or concussions to miners, particularly 

the bolters working near the continuous miner. I find that such injuries are correctly 

characterized as of a reasonably serious nature. 

4. Negligence 

I find that the negligence was properly assessed as “low.” Those charged with inspecting 

for permissibility are familiar with the mining industry and relevant facts. They should have been 

familiar with the protective purpose of ensuring that light fixture housings (globes) are in 

permissible condition. I therefore find that a reasonably prudent person in their position should 

have known about the violative condition and acted to remedy it. 

The Secretary maintains that this violation was a result of low negligence because the 

damage could have occurred in the days since the last required electrical exam. S. Br. at 13. 

Respondent provided no argument against the negligence finding, though it did elicit testimony 

from Inspector Young that the next required exam could have been completed by the day 

following the citation. Tr. 90–91; Ex. GX-4, DOL 040. 

 The inspector appropriately noted that, while a foreman should have seen the lights’ 

condition, the damage could have occurred since the last exam. Tr. 82. I credit the inspector’s 

explanation. I therefore affirm his negligence finding. 

44 FMSHRC Page 445
5. Penalty 

 I have previously recognized the Secretary’s proper consideration of the operator’s 

business size and ability to continue in business. See supra Section III.B.5. These Section 110(i) 

considerations remain the same here. 

 Respondent’s history of violations is reflected in Exhibit GX-12. Its history consists of 

twenty-four repeat violations during the inspection period. Accordingly, this factor has already 

been properly considered and is of no consequence in my assessment. 

I affirm that the violation’s gravity was properly characterized by the inspector, so I find 

no reason to impose a higher penalty assessment based on that factor. See supra Section IV.B.2–

3. Respondent immediately abated the violation by replacing the light fixtures. See GX-4, DOL 

022. I therefore find that the operator demonstrated good faith in attempting to achieve rapid 

compliance after notification.

The proposed penalty of $383.00 was based, in part on the negligence [low] and gravity 

[reasonably likely] assessed in the citation. I have affirmed the reasoning supporting both 

determinations. Having affirmed the citation as issued, and considering all of the criteria relevant 

to this violation, I assess a penalty of $383.00.

V. CITATION NO. 9204257 

A. Factual Findings 

 This citation was issued by Inspector Young on March 22, 2021. Ex. GX-6, DOL 046. He 

assessed gravity as “unlikely,” “lost workdays or restricted duty,” non-S&S, and two persons 

affected. Id. He assessed negligence as “low.” Id. The description read: 

The Operator failed to plot all drill holes which penetrate the coalbed being mined 

on the 75.1200 map at the Bailey Mine. A [sic] alleged gas well was inadvertently 

cut through on the 10J Longwall Working Section (039-0 MMU) at the number 118 

shield at plus number 25+53 and was not shown to exist on the 75.1200 map. 

Id. Inspector Young visited the mine upon Respondent’s call that it cut through an uncharted gas 

well. Tr. 179. He issued the citation because the unplotted, intersected well was “a bore hole that 

penetrated the coal seam.” Id. at 184. 

 The location was not accurately marked on Respondent’s mine map. Id. at 187. Matthew 

Ruckle, Consol’s project engineer, explained, and Inspector Young acknowledged, that 

Respondent conducted a diligent search, using available maps and outside contractors to search 

the surface. See id. at 190, 193, 217, 226–27, 229; Ex. R-13, CONSOL 0070–74. The nearest 

plotted “did not find” (“DNF”) drill hole, nonetheless, was marked 273 feet away from the actual 

intersected hole. Tr. 185.

44 FMSHRC Page 446
B. Disposition 

1. Violation 

 The cited standard states, “Additional information required to be shown on mine maps 

under § 75.1200 shall include the following: . . . all drill holes that penetrate the coalbed being 

mined . . . .” 30 C.F.R. § 75.1200-1(d) (2022). Respondent did not contest the fact of violation in 

its post-hearing brief. See Resp’t Br. at 20 n.5 (contesting only the negligence designation 

because of the recent decision in Consol Pennsylvania Coal Co., 44 FMSHRC at 168, 173, 

which affirmed a citation for drill hole plotted 125 feet from its actual location). 

 The Secretary, nevertheless, still has the burden of proving the violation. An operator is 

liable for a violation of this standard if a drill hole is inaccurately plotted, regardless of the level 

of fault. See Musser Eng’g, Inc., 32 FMSHRC at 1272 (citing Spartan Mining Co., 30 FMSHRC 

at 706; Asarco, Inc., 8 FMSHRC 1632, 1634–36 (Nov. 1986), aff’d, 868 F.2d 1195 (10th Cir. 

1989)). The Commission in Musser affirmed the judge’s finding of violation, reiterating the level 

of inaccuracy found: 

To say that the operator’s map was inaccurate would be an understatement. If the 

operator’s map were accurate, the [mine] workings would not have been intersected 

because the [mine] really would have been approximately 450 feet away, as 

indicated on the operator’s map. 

Id. at 1270 (citing 28 FMSHRC 699, 706 (July 2006) (ALJ)). 

 First, I agree with the assessment that this was a drill hole that penetrated the coalbed 

being mined. Respondent intersected the hole during mining operations; the inspector testified 

that Respondent “mined past it, and the face opened up,” and that “[t]hey might as well have 

mined through it.” Tr. 209. 

 Finally, the Secretary provided credible testimony that the closest plotted suspected gas 

well was 273 feet from where the operator intersected the hole in question. This is sufficient 

inaccuracy to sustain a violation. I therefore affirm the citation. 

2. Gravity 

 a. Likelihood 

 The Secretary asserts that an injury is unlikely. The inspector assessed ignition as 

unlikely because legal gas check results were within safe limits. Tr. 186. With no contrary 

evidence provided, I affirm the inspector’s likelihood finding. 

 b. Severity 

 The Secretary provided credible testimony that the ignition or fire hazard, though 

unlikely, would result in burns, concussions, or broken bones. Id. at 190. I find that such injuries 

44 FMSHRC Page 447
would reasonably result in a miner missing at least one full day of work. I therefore affirm the 

severity found in the citation. 

 c. Number of Persons Affected 

 The citation found two miners would be affected by the hazard, noting that two people 

usually run the shear. Id. Respondent provided no contrary testimony. I therefore affirm the 

number of persons affected. 

3. Negligence 

I find that negligence was improperly assessed as “low.” Respondent is familiar with the 

mining industry and relevant facts, and it has explicit familiarity with the protective purpose of 

the regulation. See supra Section V.B.1. Therefore, I find that a reasonably prudent person in 

Respondent’s position should have known about the violative condition. 

 Respondent here did not rest its efforts on reviewing old maps that it could not 

reasonably conclude were accurate indicators of boundaries of previous mine workings. Contra 

Musser Eng’g, Inc., 32 FMSHRC at 1286 (affirming gross negligence where it was unreasonable 

for operator to rely on the maps used). Respondent used two third-party contractors—18 Karat, 

Inc. and Blue Mountain, Inc.—to search for the suspected gas wells. Tr. 226–29. Neither 

contractor found the holes in question, and they were marked as DNF. See id.; Ex. R-14, 15. 

Inspector Young even acknowledged that Respondent did the best it could to find the suspected 

wells. Tr. 193. 

 The Secretary relies on MSHA negligence definitions to argue for low negligence instead 

of no negligence. He acknowledges that there were “considerable mitigating circumstances,” but 

that the operator could have known of the violative condition. S. Br. at 14–15; see also 30 C.F.R. 

§ 100.3(d) (2022). 

An assessment of no negligence is supported, however, under a reasonably prudent 

person standard specific to miners. The Secretary did not provide testimony regarding further 

actions Respondent could have taken. I find that Respondent conducted its search using all 

available means. I therefore reduce the negligence finding from “low” to “none.” 

4. Penalty 

 I have previously recognized the Secretary’s proper consideration of the operator’s 

business size and ability to continue in business. See supra Section III.B.5. These Section 110(i) 

considerations remain the same here. 

 Respondent’s history of violations is reflected in Exhibit GX-12. Its history consists of 

only two repeat violations during the inspection period. Accordingly, this factor has already been 

properly considered and does not significantly affect my assessment. 

44 FMSHRC Page 448
 I affirm the violation’s gravity as assessed, so that factor also does not carry additional 

weight in my penalty assessment. See supra Section V.B.2. Respondent immediately abated the 

violation by updating its mine map. See GX-6, DOL 046–47. I therefore find that the operator 

demonstrated good faith in attempting to achieve rapid compliance after notification. 

 The proposed penalty was based, in part, on the negligence assessed. Because I find that a 

reduction in negligence is warranted, see supra Section V.B.3, I also find that a penalty reduction 

is appropriate. The proposed penalty was $125.00, based in part on the Secretary’s finding of 

moderate negligence. Because I find that the operator was not negligent, I assess a penalty of 

$100.00. 

VI. CONCLUSION 

 It is ORDERED that Citation Nos. 9204245 and 9204250 be AFFIRMED as issued. 

It is also ORDERED that Citation No. 9204257 be AFFIRMED with the assessed 

gravity, and that the level of negligence be MODIFIED from “low” to “none.” 

Finally, it is ORDERED that the Respondent pay the Secretary of Labor the assessed 

penalty of $838.00 within 30 days of the date of this decision.10

 /s/ Michael G. Young 

Michael G. Young 

Administrative Law Judge 

Distribution (First Class Mail and email): 

Matthew R. Epstein, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 1835 Market Street, 

Mailstop SOL/22, Philadelphia, PA 19103, epstein.matthew.r@dol.gov 

Kenneth J. Polka, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 

631 Excel Drive, Suite 100, Mt. Pleasant, PA 15666, polka.kenneth@dol.gov 

Patrick W. Dennison, Esq., Fisher & Phillips LLP, Six PPG Place, Suite 830, Pittsburgh, PA 

15222, pdennison@fisherphillips.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. 

44 FMSHRC Page 449
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9987 / FAX: 202-434-9949 

June 9, 2022 

AMENDED DECISION AND ORDER1

Appearances: Matthew R. Epstein, Office of the Solicitor, U.S. Department of Labor, 

 Philadelphia, Pennsylvania, for the Petitioner 

 Kenneth Polka, CLR, U.S. Department of Labor, MSHA, Mt. Pleasant, 

 Pennsylvania, for the Petitioner 

 Patrick W. Dennison, Esq., Fisher & Phillips LLP, Pittsburgh, 

 Pennsylvania, for the Respondent 

Before: Judge Young 

SUMMARY 

Citation No. 9204245, 30 C.F.R. § 75.1725(a): Failure to maintain machinery in safe 

operating condition. A horizontal keeper pin, used to retain a vertical breakaway (“shear”) pin, 

was missing from an operational headgate shield. 

Facts p. 4 (Slip Op.) 

Fact of violation Affirmed p. 5 

S&S Affirmed p. 8 

Negligence Low p. 12 

Penalty $383.00 p. 12 

Citation No. 9204250, 30 C.F.R. § 75.503: Failure to maintain electrical face 

equipment in permissible condition. 120-volt area light globes were cracked on an operational 

continuous miner located in a crosscut. 

1 This Decision and Order has been amended to correct page numbers in the Summary 

section found to be inaccurate due to clerical error. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

CONSOL PENNSYLVANIA COAL 

 COMPANY, LLC, 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

 Docket No. PENN 2021-0084 

 A.C. No. 36-07230-534033 

 

 Mine: Bailey Mine 

44 FMSHRC Page 450
Facts p. 13 

Fact of violation Affirmed p. 14 

S&S Affirmed p. 15 

Negligence Low p. 18 

Penalty $355.00 p. 19 

Citation No. 9204257, 30 C.F.R. § 75.1200-1(d): Failure to plot a drill hole that 

penetrated the coalbed being mined. Operator had not accurately marked an alleged gas well 

through which it inadvertently cut. 

Facts p. 19 

Fact of violation Affirmed p. 20 

Negligence None p. 21 

Penalty $100 p. 21 

I. INTRODUCTION 

This case is before me upon petition for assessment of civil penalty filed by the Secretary 

of Labor (“Secretary”) pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 

1977, as amended (“Mine Act” or “Act”), 30 U.S.C. § 815(d). At issue are three citations under 

section 104(a), issued to Respondent, Consol Pennsylvania Coal Company, LLC (“Consol” or 

“Respondent”).2

 The parties presented testimony and documentary evidence at a video 

conference hearing on February 1, 2022, and filed post-hearing briefs. 

Consol owns and operates the Bailey Mine, located in Greene and Washington counties, 

Pennsylvania. Jt. Stips. 1, 2; S. Post-Hr’g Br. at 1, 2 (Apr. 13, 2022) (“S. Br.”). The mine is an 

underground coal mine and is subject to the jurisdiction of the Mine Act and the Commission. Jt. 

Stips. 3, 4; S. Br. at 1–2. Citation No. 9204245 alleged that Respondent failed to ensure the 

presence of a keeper pin, risking a gate shield pin becoming a projectile. Citation No. 9204250 

alleged that Respondent failed to maintain 120-volt area light globes in permissible condition, 

risking methane ignition. Citation No. 9204257 alleged that Respondent failed to accurately plot 

a drill hole on its mine map. For reasons set forth below, I AFFIRM all three citations. I 

MODIFY the degree of negligence for Citation No. 9204257 from “low” to “none.” 

II. STANDARDS 

A. Violation 

 The Secretary must prove the elements of an alleged violation by a preponderance of the 

evidence. See Jim Walter Res., Inc., 28 FMSHRC 983, 992 (Dec. 2006); RAG Cumberland Res. 

Corp., 22 FMSHRC 1066, 1070 (Sept. 2000). Mine operators are generally strictly liable for 

mandatory safety standard violations. See Freeman United Coal Mining Co. v. FMSHRC, 108 

2

 This docket included seven section 104(a) citations. One was bifurcated and 

consolidated with Docket No. PENN 2021-0117. See Order Granting Mot. to Bifurcate and 

Consolidate at 1 (Jan. 19, 2022). Three were settled by the parties and approved prior to hearing. 

See Decision Approving Partial Settlement at 1–2 (Feb. 4, 2022). 

44 FMSHRC Page 451
F.3d 358, 361 (D.C. Cir. 1997); Nally & Hamilton Enters., Inc., 33 FMSHRC 1759, 1764 (Aug. 

2011). 

B. Gravity 

 The likelihood contemplated is that of the expected resulting injury. The severity 

evaluation assumes the occurrence of the hazard. See Consolidation Coal Co., 18 FMSHRC 

1541, 1550 (Sept. 1996) (comparing S&S inquiry, which focuses on “the reasonable likelihood 

of serious injury,” with gravity inquiry, which focuses on “the effect of the hazard if it occurs”) 

(emphasis added). 

The Secretary defines a severity assessment of “lost workdays or restricted duty” as 

“[a]ny injury or illness which would cause the injured or ill person to lose one full day of work 

or more after the day of the injury or illness, or which would cause one full day or more of 

restricted duty.” 30 C.F.R. § 100.3(e) (2022).3

C. Significant and Substantial (“S&S”) 

 A violation is properly designated as 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)). The four 

elements required for an S&S finding are expressed as follows: 

(1) [T]he underlying violation of a mandatory safety standard; (2) the violation was 

reasonably likely to cause the occurrence of the discrete safety hazard against which 

the standard is directed; (3) the occurrence of the hazard would be reasonably likely 

to cause an injury; and (4) there would be a reasonable likelihood that the injury in 

question would be of a reasonably serious nature. 

Peabody Midwest Mining, LLC, 42 FMSHRC 379, 383 (June 2020) (integrating the refinement 

of the second Mathies step in Newtown Energy, Inc., 38 FMSHRC 2033, 2037 (Aug. 2016)). 

 An S&S determination must be based on the assumed continuation of normal mining 

operations. See Consol Pa. Coal Co., 43 FMSHRC 145, 148 (Apr. 2021) (citing U.S. Steel 

Mining Co., 6 FMSHRC 1573, 1574 (Jan. 1984)) (“A determination of ‘significant and 

substantial’ must be based on the facts existing at the time of issuance and assuming continued 

normal mining operations, absent any assumption of abatement or inference that the violative 

condition will cease.”). 

3 The inspector’s characterization of the gravity of the violation, in conformance with Part 

100 for purposes of penalty assessment, is not binding on the Commission, but I recite it here 

because it may be useful in evaluating the enforcement decisions made by the agency.

44 FMSHRC Page 452
D. Negligence 

 Judges may use a traditional negligence analysis, rather than relying upon Part 100 

definitions. Brody Mining, LLC, 37 FMSHRC 1687, 1701–02 (Aug. 2015) (citing Jim Walter 

Res., Inc., 36 FMSHRC 1972, 1975 n.4 (Aug. 2014); Sellersburg Stone Co. v. FMSHRC, 736 

F.2d 1147, 1151–52 (7th Cir. 1984)) (“Part 100 regulations apply only to the proposal of 

penalties by MSHA and the Secretary of Labor; under both Commission and court precedent, the 

regulations do not extend to the independent Commission, and thus the MSHA regulations are 

not binding in any way on Commission proceedings.”). The reasonably prudent person standard 

should be that of one “familiar with the mining industry, the relevant facts, and the protective 

purposes of the regulation.” Brody Mining, LLC, 37 FMSHRC at 1702. 

E. Penalty 

 The Commission considers the following factors, from Section 110(i) of the Act, in 

assessing penalties under the Act: 

[T]he operator’s history of previous violations, the appropriateness of such penalty 

to the size of the business of the operator charged, whether the operator was 

negligent, the effect on the operator’s ability to continue in business, the gravity of 

the violation, and the demonstrated good faith of the person charged in attempting 

to achieve rapid compliance after notification of a violation. 

30 U.S.C. § 820(i) (2006). 

III. CITATION NO. 9204245 

A. Factual Findings 

 This citation was issued by Inspector Walter Young on March 1, 2021. Ex. GX-1, DOL 

001. He assessed the gravity as “reasonably likely,” “lost workdays or restricted duty,” “S&S,” 

and one person affected. Id. He assessed negligence as “low.” Id. The description read: 

The Operator failed to maintain the company number 3 gate shield located on the 

8L Longwall Working Section (006-0 MMU), inby the number 27 crosscut in safe 

operating condition. The Horizontal Keeper Pin to retain the vertical (breakaway) 

pin in place was missing. This condition will permit the vertical breakaway pin or 

pieces of the vertical breakaway pin to become airborne and injury [sic] person 

when its fails. Multiple persons are in the area when the shearer cuts out at the 

headgate and during times when the headgate pan line is pushed. The Operator 

immediately removed the shield from service until the condition could be corrected. 

44 FMSHRC Page 453
Id. While taking a methane reading during a spot inspection, Inspector Young noticed that a 

horizontal keeper pin was missing from the clevis4 on a headgate shield. Tr. 31, 32. Gate shields 

have more tonnage capacity than line shields and exert more than 30 tons of pressure. Id. at 38, 

41. He described the purpose of the pin as keeping the vertical shear pin in place if it breaks as 

designed, enabling it to safely fall out the bottom of the clevis. Id. at 33, 36; see Ex. GX-3, DOL 

021. Shear pins break and need to be replaced frequently. Tr. 47.5

 Inspector Young; Justin Jones, Consol’s former safety inspector; and James Denham, its 

maintenance supervisor, all acknowledged that the vertical shear pin is intended to break at 

designated points to protect the whole shield system. See id. at 44, 52, 107–08, 142; Ex. GX-2, 

DOL 020. Inspector Young concluded that a shear pin can work its way up out of the clevis 

under pressure from shield operation, and without the keeper pin, it can become a projectile. Tr. 

33–34, 42. He testified that he personally observed a miner injured—he suffered a face 

laceration—by such occurrence at a headgate, and that others have been hit without injury. Id. at 

42. 

 Messrs. Jones and Denham contend that the shear pins only break under adverse 

conditions—shield twisted or hung up on a rock, uneven bottoms, or muddy conditions. Id. at 

109, 144. Neither has seen or heard of a broken shear pin becoming a projectile. Id. at 109, 110, 

111, 146–47. Neither are aware of any injury reports describing such an occurrence, and Mr. 

Jones testified that he searched and found none since 2007. Id. at 111, 113, 147. 

 Messrs. Jones and Denham testified, and Inspector Young acknowledged, that miners 

typically operate these shields manually from two shields away—seven-to-eleven feet from the 

possible pin hazard. Id. at 68, 116, 149. Inspector Young contended that a miner could be struck 

within eight feet, enabling injuries such as lacerations or eye injuries. Id. at 66. He also described 

the area surrounding gate shields as a transition area—a walkway where many people stand 

while operating the shields. Id. at 42, 45. 

B. Disposition 

1. Violation 

 The cited standard states, “Mobile and stationary machinery and equipment shall be 

maintained in safe operating condition and machinery or equipment in unsafe condition shall be 

removed from service immediately.” 30 C.F.R. § 75.1725(a) (2022). The Secretary argues the 

machinery was not maintained in safe operating condition because Respondent failed to safely 

4 The clevis is a housing connected to the pan line of the shield and contains the shear pin 

where it connects to the relay bar, which moves the pan line. The clevis has two “ears,” or tabs, 

on the top and the bottom, and there are holes in those tabs, through which the horizontal 

retaining pins are inserted and then secured with an “r-clip” locked through a hole near the end 

of the pin, though a bolt may sometimes be used. Tr. 31–33. 

5 Shear pins are hollow and have indentations, or grooves, near each end to enable them 

to break as intended. Tr. 31–32, 50–52. 

44 FMSHRC Page 454
secure the shear pin. S. Br. at 7. Respondent, however, argues the missing keeper pin does not 

itself make the machinery unsafe. Resp’t’s Post-Hr’g Br. at 5 (Apr. 13, 2022) (“Resp’t Br.”). It 

refers to several other standards, argued as comparable to the cited standard, to support its 

assertion. The cited cases, however, are either inapposite or unnecessary to the decision here. 

First, Respondent asserts that “more than mere presence of a condition [is required] to 

constitute a violation despite strict liability.” Id. The compared provisions are significantly 

different. Section 75.323 requires ventilation system adjustments or work stoppages when a 

stated level of methane is present. See 30 C.F.R. § 75.323(b)(1)(ii)–(iii) (2022); Resp’t Br. at 5 

n.3. The standard here does have a similar mitigating action requirement, but it also requires that 

machinery be maintained in safe operating condition—it does not only require action when an 

unsafe operating condition exists.6

 The provision and cited cases are, therefore, inapposite to my 

decision here. 

 Next, Respondent compares the cited standard with Section 56.11001 to argue that a 

violation does not occur simply because an unsafe condition exists. See Resp’t Br. at 6. First, a 

Section 56.11001 violation does in fact occur where an unsafe condition exists, and the cited 

cases do not support contention to the contrary.7 The authority, if applied to a Section 75.1725 

violation, would actually support a violation finding where the Secretary demonstrates an 

improper method of maintaining machinery—e.g., not having all the components present and 

serviceable. This authority is, therefore, inapposite to my decision here. 

 Finally, Respondent cites multiple ALJ decisions on Section 75.202(a) [roof fall 

protection] to argue that the provision here should be analyzed as a performance-based 

standard—requiring evaluation of the reasonableness of the operator’s efforts. See id. These 

decisions do not control my decision here. More importantly, they are unnecessary because there 

is Commission precedent that directly supports the evaluation of “unsafe operating condition” 

based on a reasonably prudent person standard. 

 The Commission has established that the standard for a Section 75.1725(a) violation is 

whether a reasonably prudent person would recognize the hazard, stating: 

6 Compare Spartan Mining Co., 30 FMSHRC 699, 711 (Aug. 2008) (“The standard 

imposes two duties upon an operator: (1) to maintain machinery and equipment in safe operating 

condition, and (2) to remove unsafe equipment from service.”) (emphasis added), with Jim 

Walter Res., Inc., 19 FMSHRC 1761, 1767 (Nov. 1997), and Amax Coal Co., 17 FMSHRC 48, 

51 (Jan. 1995) (ALJ) (requiring action upon a finding of excessive methane, not methane 

prevention itself). 

7

 The Commission in Lopke Quarries, Inc. required evidence that the asserted safe means 

of access actually was utilized, not only that it existed in addition to an allegedly unsafe access. 

23 FMSHRC 705, 707 (July 2001). The Commission in Henna Mining Co. held that an operator 

“could show that a cited area is not a ‘means of access,’” demonstrating that existence of unsafe 

access would be adequate to prove a violation. 3 FMSHRC 2045, 2046 (Aug. 2006). 

44 FMSHRC Page 455
[I]n deciding whether machinery or equipment is in an unsafe operating condition, 

the alleged violative condition is 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. 

Spartan Mining Co., 30 FMSHRC at 711 (citing Ala. By-Prods. Corp., 4 FMSHRC 2128, 2129 

(Dec. 1982)). 

The Commission has affirmed a violation of this standard for missing components. See 

Martinka Coal Co., 15 FMSHRC 2452, 2456 (Dec. 1993) (affirming a Section 75.1725(a) 

violation for missing belt rollers where substantial evidence from two witnesses showed the 

components were missing). The Commission has also found a violation of another unsafe 

condition standard by comparing it to the identical language in Section 75.1725(a). See So. Ohio 

Coal Co., 13 FMSHRC 912, 915–16, 916 n.2 (June 1991) (quoting Ala. By-Prods. Corp., 4 

FMSHRC at 2129) (“Substantial evidence supports the judge’s finding that the two broken track 

pads presented an unsafe condition.”). 

 In Martinka Coal Co., a belt structure was missing rollers, causing the belt to rub against 

the structure. 15 FMSHRC at 2456. The Commission affirmed the violation because of the 

presence of combustible accumulations and an ignition source. Id. In So. Ohio Coal Co., the 

Commission found it sufficient that the inspector and operators testified that the condition—

broken track pads—was unsafe. 13 FMSHRC at 916. It concluded that “safe operating 

condition” means that a machine can be used safely by miners. Id. at 915. 

 Therefore, whether missing or broken components are involved, there still must be a 

danger posed to miners by use of the cited machinery. The Commission recently affirmed two 

Section 75.1725(a) violations as S&S against this operator where cables were found to be in bad 

condition and posed a risk of snapping or dropping loads. Consol Pa. Coal Co., 43 FMSHRC at 

150–51, 153–54. There, a cable was found to not be connected as designed—merely wrapped 

around the reel. Id. at 150. 

 Here, the circumstances are sufficiently similar. The headgate shield clevis was missing a 

component—the horizontal keeper pin. The Secretary has presented credible evidence that the 

shear pins, which are designed to break, have been projected from the clevis upon breaking. The 

inspector noted one known injury where he was present and multiple reports from other miners 

of the hazard occurring without causing injury. 

 Respondent challenges an unsafe finding by arguing that it is unlikely that the pin would 

be projected. See Resp’t Br. at 6–7. Respondent borrows from its S&S argument a further 

assertion that an injury is unlikely because of likely miner distance from the hazard and lack of 

reports about injuries from projectile shear pins. Id. at 7–8. 

 I find that Inspector Young’s testimony is credible and reject the operator’s contentions. 

Respondent attempted to rebut the noted occurrence with testimony from Mr. Jones that he could 

44 FMSHRC Page 456
not find any such reports going back to 2007. Tr. 111. Inspector Young, however, has been a 

MSHA inspector since 2006. Id. at 24. Thus, the event, which occurred while he was a foreman, 

id. at 61, would have occurred prior to the earliest year checked by Respondent. 

 In summary, the machinery was missing a component. That component is intended to 

prevent the shear pin from moving upward out of the clevis. There is credible testimony that 

shear pins can move upward and can be projected when broken under heavy pressure. I need not 

address here whether there is a confluence of factors making an injury reasonably likely. It is 

sufficient for purposes of the violation finding that a dangerous condition could be created by use 

of the cited machinery with a missing component. I therefore affirm the violation. 

2. Gravity 

 a. Likelihood 

 The Secretary asserts that the hazard is reasonably likely. I have found that credible 

evidence exists to support that the hazard—a projectile shear pin—could occur. See supra

Section III.B.1. I therefore affirm the determination of likelihood in my penalty assessment. 

 b. Severity 

 The Secretary asserts that the severity of the contemplated injury is lost workdays or 

restricted duty. If an injury-causing hazard—a projectile shear pin contacting a miner—occurred, 

it could reasonably result in an injury that would cause a miner to miss at least a full day of 

work. Inspector Young testified to an event that caused a face laceration. Further, I find credible 

that an object projected with such force could cause a laceration or damage to an eye. I therefore 

affirm the severity as characterized by the inspector.

 c. Number of Persons Affected 

 The inspector assessed that only one miner would be affected by the hazard. I agree that 

only one miner is likely to be contacted by a piece of a shear pin projected from the clevis. I thus 

affirm the inspector’s enumeration of persons who could be affected. 

3. S&S 

I affirm the S&S designation for the following reasons. 

a. Step 1: The violation has been established.

 A missing component from machinery, and the attested possibility that the component 

intended to be controlled by the missing component could cause an injury, is sufficient to 

constitute an underlying violation of a mandatory safety standard for the purposes of Mathies

Step 1. See supra Section III.B.1. 

44 FMSHRC Page 457
b. Step 2: The violation was reasonably likely to result in the discrete 

safety hazard against which the regulation is directed—a shear pin 

breaking under headgate pressure and becoming a projectile. 

Mathies Step 2 is a two-step process: (1) determine the specific hazard the standard is 

aimed at preventing; and (2) determine whether a reasonable likelihood exists that the hazard 

against which the mandatory standard is directed will occur. Newtown Energy, Inc., 38 

FMSHRC at 1868. This finding must be based on “the particular facts surrounding the 

violation.” Northshore Mining Co., 38 FMSHRC 753, 757 (2016). 

Here, the standard requires that machinery be maintained in a condition that enables its 

safe use by miners. See So. Ohio Coal Co., 13 FMSHRC at 915. The hazard the standard aims to 

prevent is one resulting from the dangerous operation of the cited machinery. The Secretary 

provided a plausible specific hazard posed by the missing component. Therefore, the specific 

hazard here is the shear pin becoming a projectile. 

The remaining issue is whether a reasonable likelihood exists that the shear pin will 

become a projectile under pressure from the headgate. Respondent is correct that the likelihood 

of hazard should be based upon the “particular facts surrounding the violation.” Resp’t Br. at 9 

(citing Newtown Energy, Inc., 38 FMSHRC at 2038). I find that the hazard is reasonably likely to 

occur. 

 The Secretary provided credible testimony that shear pins have broken and become 

projectiles. Regarding particular facts, the standard here was cited on a headgate shield. Inspector 

Young testified that the observed injury-causing hazard occurred while the miner was pushing 

out the headgate. Tr. 42. 

 I acknowledge that multiple Respondent witnesses testified that they have not seen this 

happen, and more importantly, that if it were to occur, it would require adverse conditions. The 

Commission recently vacated an S&S finding at Step 2 because exposure to a hazard was not 

likely. See Consol Pa. Coal Co., Docket No. PENN 2019-0008, 2022 WL 489572, at *6–7, *9 

(Feb. 10, 2022) (reasoning that contact with a damaged cable would require it to be knocked 

down from its hanging hooks, but there was no evidence that it could be easily knocked to the 

floor). This supports a failure at Step 2 if nothing in the record establishes the likelihood that the 

conditions enabling a projectile pin will occur. That is not the case here, however. 

 I find that an event that has occurred in the past is reasonably likely to occur, as a matter 

of logic and common sense. See United Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985) 

(accepting testimony that the mine had experienced methane ignitions in the past to conclude that 

“evidence supports a finding that there was a reasonable likelihood that the hazard . . . could 

result in the occurrence of an ignition”); Consolidation Coal Co., 6 FMSHRC 34, 38 (Jan. 1984) 

(affirming an S&S finding because evidence of bad roof and testimony of past roof falls made 

the occurrence of the hazard reasonably likely) (emphasis added). The inspector has not relied 

upon conjecture of speculation but on a previous event with which he was personally familiar. 

44 FMSHRC Page 458
I credit Inspector Young’s testimony that he has witnessed such an occurrence at a 

headgate shield, and that there have been other reports of projectile pins.8 Also, assuming 

continued mining operations, it is possible that adverse conditions could present with a keeper 

pin still absent. Crediting testimony about the occurrence of the hazard in the past gives rise to 

the potential that those conditions will converge again in the future. I therefore find that the 

hazard was reasonably likely at Step 2.9

c. Step 3: It is reasonably likely that projectile shear pin contact with a 

miner would cause an injury—laceration or eye damage. 

Mathies Step 3 asks whether the hazard, not the violation itself, is reasonably likely to 

cause an injury. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280–81 (Oct. 2010). In evaluating the 

likelihood of injury, judges must assume the occurrence of the hazard. See Newtown Energy, 

Inc., 38 FMSHRC at 2037. 

 One only reaches Step 3 of the Mathies analysis after determining that the hazard is 

reasonably likely to occur. I thus assume the occurrence of the hazard—a shear pin breaking 

under the pressure of the headgate and becoming a projectile. The Secretary provided testimony 

that such a pin could contact a miner and cause a laceration. This alone is insufficient for a 

finding that an injury is reasonably likely to occur. Respondent correctly asserts that Commission 

precedent requires more than a finding that there is a “potential” that an injury “could” occur. 

Resp’t Br. at 8 (citing Wolf Run Mining Co., 32 FMSHRC 1669, 1677 (Dec. 2010); Texasgulf 

Inc., 10 FMSHRC 498, 500–01 (Apr. 1988)). As with Step 2, I must evaluate whether an injury 

is reasonably likely to occur based on the surrounding circumstances. 

 The Secretary is correct that Respondent cannot rely on safety measures or miner 

precaution—e.g., helmets and protective clothing—to defend at Step 3. See S. Br. at 9 (citing 

Sec’y of Lab. v. Consolidation Coal Co., 895 F.3d 113, 116, 118 (D.C. Cir. 2018)). There must, 

however, be evidence on the record that miners would be in the area during operations to be 

injured by the hazard. See Consol Pa. Coal Co., 43 FMSHRC at 152, 153 (demonstrating that 

miners worked at the site of the cited equipment, and that others worked nearby). The record 

must also demonstrate that one or more miners would have been at risk of injury from the 

8 Inspector Young testified about another miner being injured at the Bailey Mine by a 

piece of shear pin, but he could not remember the miner’s name. Tr. 60–61. He acknowledged 

that he is only aware of one reportable accident, involving the miner he did name. Id. at 63. I find 

Inspector Young to be a credible witness and credit his account of one other known minor injury 

caused by the hazard at issue. 

9

 I stress that my decision is narrow and is based on the record facts presented to me at 

hearing in this case. Those facts, involving the same mine and general circumstances as a prior 

incident testified to by the inspector, suggest a greater likelihood that shear pins will fail and be 

ejected at the headgate than in the main mining line. Curiously, this seems to be at variance with 

a case involving the issue tried shortly before the case at bar. See Consol Pa. Coal Co., LLC, 44 

FMSHRC 161, 167 (March 2022) (ALJ) (focusing on reduced likelihood that pins will be 

ejected at headgate shields). I have issued my decision based on the record facts as presented to 

me.

44 FMSHRC Page 459
discrete hazard. See Peabody Midwest Mining, LLC, 42 FMSHRC at 387–88 (acknowledging 

that evidence established that more miners than could be accommodated by refuge chambers 

would be present on section at shift change, but finding that the absence of evidence of any 

mining activities or other possible ignition source during shift change negated potential for 

injury). 

 The Secretary’s brief did not focus on the possibility that other miners beyond the miner 

moving the shields could have been exposed to the hazard. See S. Br. at 11 (relying mostly on 

the average distance between the miner using the remote and the shield being moved). However, 

Inspector Young testified in two places about the presence of miners. First, he testified that gate 

shields are in transition areas that are in a walkway, but he specified in the same sentence that it 

is “where people stand whenever they push and pull these shields.” Tr. 42. This testimony does 

not explicitly provide that there are miners other than the shield operator exposed to the hazard. 

 Inspector Young later explained: 

[T]here’s [sic] a whole lot of people exposed, especially at the head gate [sic] when 

they cut out. People just don’t run off the base and cut out and come back on to the 

face. The shields are pulled, the guys are standing up in the transition area and 

underneath the gate shields, and these shields – and then the pan line is pushed, and 

these guys come in and cut out. 

Id. at 45. This testimony identifies other miners present during shield operation. Therefore, I 

assume the presence of both the shield operator and other miners while the shield is operated 

during continued normal mining operations. 

 I accept Mr. Denham’s testimony that miners are usually further away—possibly ten 

meters—while operating gate shields because they are usually moving multiple shields. Id. at 

149. All witnesses nevertheless testified that miners at this mine generally operate shields 

manually from two shields away at a distance of seven-to-eleven feet. 

 Combining the likelihood that a miner would be within the shorter testified distance, the 

testimony that a projected pin has flown eight feet to injure a miner, and the lack of contrary 

testimony to the inspector’s claim that other miners are in the area during shield operation, I find 

that an injury is reasonably likely to occur. 

d. Step 4: It is reasonably likely that such an injury would be of a 

reasonably serious nature. 

 An inspector’s conclusion that a possible injury is of a reasonably serious nature has been 

held sufficient for Mathies Step 4. See Consol Pa. Coal Co., 43 FMSHRC at 149 (finding it 

sufficient that the inspector characterized the potential injury as “serious” and noted potential 

injuries). The Commission also does not require a specific type of injury for it to be considered 

serious. See S&S Dredging Co., 35 FMSHRC 1979, 1981–82 (July 2013). 

44 FMSHRC Page 460
 Here, the Secretary provided credible, undisputed testimony that the hazard could result 

in lacerations or eye damage. Respondent focused on the likelihood of the hazard and injury 

occurring, see Resp’t Br. at 11–14, only making conclusory statements that any resulting injury 

would not be of a serious nature, see id. at 13, 14. I find it is reasonably likely that an injury that 

could include lacerations or eye damage would be reasonably serious.10

4. Negligence 

 I find that the negligence was properly characterized by the inspector as “low.” Those 

charged with inspecting the shields are familiar with the mining industry and relevant facts. They 

should have been familiar with the protective purpose of ensuring the keeper pins were present. I 

therefore find that a reasonably prudent person in their position should have known about the 

violative condition and acted to remedy it. 

 The Secretary argues that this is a result of moderate negligence because the operator 

knew that these pins commonly break and failed to remedy a violation that it should have 

assumed. See S. Br. at 11–12. Respondent argues that no negligence was demonstrated because 

no one knew about a broken pin. See Resp’t Br. at 14. I disagree with both. 

The inspector appropriately noted that these pins consistently break, and that the 

condition could have occurred between the last inspection and the violation. I credit the 

inspector’s explanation, and I agree to a limited degree with the Secretary—this is a condition 

Respondent must work to continually remedy to maintain the machinery in a safe operating 

condition. I therefore affirm the negligence finding. 

5. Penalty 

The Secretary has entered Respondent’s violation history [MSHA Directorate of 

Assessments, Assessed Violation History Report] into evidence. See Ex. GX-12. Its history 

consists of twenty-nine repeat violations during the inspection period. I have reviewed 

Respondent’s general and repeat violations, and I find that the Secretary has properly considered 

Respondent’s violation history in his calculation. I agree that the Secretary has properly 

evaluated the size of the mine in his calculation. Neither party has stated that payment of this 

penalty will affect Respondent’s ability to continue in business, and the minimal penalty amounts 

do not support such a conclusion. 

 The proposed penalty of $383.00 was based, in part on the negligence [low] and gravity 

[reasonably likely] assessed in the citation. I have affirmed the reasoning underlying the 

Secretary’s assessments. The citation was terminated immediately by installation of a keeper pin. 

Thus, Respondent demonstrated good faith in achieving rapid compliance following citation. 

10 Regarding the likelihood that a miner would be wearing a protective “AirstreamTM” 

helmet, which includes a face shield, I note that the miner injured in the incident described by 

Inspector Young had an AirstreamTM helmet but had his face shield lifted when he was struck by 

a piece of a shear pin. Tr. 69. 

44 FMSHRC Page 461
Having affirmed the citation as issued, in consideration of the six factors in Section 110(i) of the 

Act, I assess a penalty of $383.00, as proposed by the Secretary. 

IV. CITATION NO. 9204250 

A. Factual Findings 

 This citation was issued by Inspector Young on March 3, 2021. Ex. GX-4, DOL 022. He 

assessed gravity as “reasonably likely,” “lost workdays or restricted duty,” “S&S,” and one 

person affected. Id. He assessed negligence as “low.” Id. The description read: 

The Company Number 33, Continuous Miner (s/n- 033K, 2G-4022A) located 

approximately 130 feet inby the number 39 crosscut, in the number 3 entry on the 

9L Working Section (007-0 MMU) was not maintained in permissible condition. 

Four 120 A.C. volt area light globes were cracked. The 2 area lights inby the side 

bolters contained one or more cracks which ranged from 1.5 to 3 inches in length, 

but the body of the globes could not be distorted by hand pressure. The double 

ended area light (2 globes) directly below the rib bolter on the operators [sic] side 

were badly damaged by being covered with cardboard and had overheated. These 

light globes contained numerous, large spider web like [sic] cracks going in 

multiple directions, one contained a hole measuring 0.25 inches wide by 0.375 

inches long. Both of these lights could easily be distorted by hand pressure from 

the heat damage done to them from them being unnecessarily be [sic] covered with 

the cardboard. This condition permits the ambient mine atmosphere to freely enter 

the explosion proof electrical lighting fixtures. Additional confluence of factors are 

included in citation number 9204251 for the methane monitor not being maintained 

in proper operating condition and methane being liberated in this working section 

were used in determining this condition to be Significant and Substantial. The 

Operator immediately removed the machine from service until the conditions could 

be corrected. this [sic] mine liberates 10,835,416 cubic feet of methane every 24 

hours. 

Id., DOL 022–23. He visited the mine for an E02 spot inspection because Bailey Mine liberates 

more than ten million cubic feet of methane every twenty-four hours, and it was on a five-day 

Section 103(i) inspection regimen. Tr. 28, 71, 76. Ventilation was working properly that day. Id.

at 93. 

Inspector Young found 120-volt light globes with cracks and holes. Id. at 73. He noted 

that the damage could have occurred since the last required exam several days prior. Id. at 82. He 

simultaneously noted that the section was liberating methane, obtaining a reading of 0.25 percent 

in the Number 3 Entry. Id. at 77. Methane typically increases when the continuous miner begins 

cutting coal, and the miner was inby a crosscut for operation. See id. at 94–95; Ex. GX-4, DOL 

022. 

He also issued a citation for an improperly calibrated methane monitor on the continuous 

miner with the violative globes. See Tr. 78; Ex. GX-5. The miner was deenergized in a test when 

44 FMSHRC Page 462
the monitor read 1.5 percent. Tr. 88–89, 122–23. Inspector Young testified, and Mr. Jones 

acknowledged, that the monitor should have read 2.5, but only read 1.7, when the miner shut 

down. Id. at 89, 123. 

No witnesses were aware of any electrical faults within the enclosure at the time of 

inspection. Id. at 133, 176. Respondent provided photographic evidence—taken of the 

continuous miner outside the mine, several months after the citation—that the lights in the cited 

globes were likely LED rather than fluorescent or incandescent. Id. at 164, 166, 174; Ex. R-7, 

CONSOL 0038, 0041. Inspector Young acknowledged that he did not know what type of lights 

were in the globes, only that they were 120-volt. Tr. 87. 

John Baker, Consol’s electrical engineer, testified that LED lights are more efficient but 

still radiate heat. Id. at 160, 163. He recognized that, while close, the circuit in question is not 

intrinsically safe per the graph provided by Respondent. Id. at 170–72; Ex. R-8, CONSOL 0042. 

On cross-examination, he admitted that the dot on the graph is on the “explosive side” of the 

curve, that one cannot predict when an electrical circuit will fail, and that the cited globe was 

“not mechanically intact”—i.e., not explosion proof. Tr. 174, 176–77. 

B. Disposition 

1. Violation 

 The cited standard states, “The operator . . . shall maintain in permissible condition all 

electric face equipment required by . . . [§] 75.504 to be permissible which is taken into or used 

inby the last open crosscut of any such mine.” 30 C.F.R. § 75.503 (2022). Permissibility 

requirements “ensure that ignitions occurring within enclosures on mining equipment which 

contain electrical circuits will not escape into the mine atmosphere.” Knox Creek Coal Corp., 36 

FMSHRC 1128, 1131 (May 2014). 

 Respondent made only a cursory challenge to the violation finding. See Resp’t Br. at 16 

(“If a Violation Existed, the Citation was Improperly Designated as S&S . . . .”). The Secretary, 

nevertheless, still has the burden of proving the violation. The Secretary provided credible 

testimony that cracks and holes existed in the cited globes. Respondent’s electrical engineer 

acknowledged that such conditions make the globes “not mechanically intact.” He further 

testified that an enclosure must be mechanically intact in order to be explosion proof. 

 I credit the testimony of both witnesses and find that the cited enclosures were not 

mechanically intact. Therefore, they were not explosion proof. Because permissibility is meant to 

prevent ignitions within enclosures from escaping, these enclosures were not permissible. 

Finally, the offending continuous miner was taken and used 130 feet inby the described crosscut. 

I therefore affirm the violation. 

44 FMSHRC Page 463
2. Gravity 

 a. Likelihood 

 The Secretary asserts that the hazard is reasonably likely. I have found that credible 

evidence exists to support the potential ignition in a light fixture penetrating a compromised 

globe. See supra Section IV.B.1. I therefore agree with the determination of likelihood. 

 b. Severity 

 The Secretary characterized the severity of the contemplated injury as lost workdays or 

restricted duty. The Secretary provided credible testimony that such a hazard could cause 

external and internal burns, broken bones, or concussions. Tr. 81. I find that such injuries would 

reasonably result in an injury that would cause a miner to miss at least a full day of work. I 

therefore affirm the inspector’s characterization of severity. 

 c. Number of Persons Affected 

 The inspector assessed that only one miner would be affected by the hazard. While I 

think it likely that more than one miner would be working in the vicinity of the offending 

machine when the hazard was possible, see id. (“Usually it’s the bolters closest to the facing that 

take the brunt . . . .”) (emphasis added), I defer to the inspector’s judgment as to the number of 

persons affected. 

3. S&S 

 I affirm the S&S designation for the following reasons. 

a. Step 1: The violation has been established.

 The failure to maintain the mechanical integrity of light fixtures on equipment used inby 

the cited crosscut is sufficient to constitute an underlying violation of a mandatory safety 

standard for the purposes of Mathies Step 1. See supra Section IV.B.1. 

b. Step 2: The violation was reasonably likely to result in the discrete 

safety hazard against which the regulation is directed—ignition of the 

mine atmosphere. 

 A methane ignition outside of the enclosure is the discrete safety hazard against which 

the standard intended to protect. The reasonable likelihood of this hazard occurring requires two 

things: the reasonable likelihood that an explosion will occur in the violative enclosure, and the 

reasonable likelihood that the escape of that explosion will ignite the mine atmosphere. See Knox 

Creek Coal Corp. v. Sec’y of Lab., 811 F.3d 148, 164 (4th Cir. 2016) (quoting Texasgulf, Inc., 10 

FMSHRC at 501) (“When the Commission in Texasgulf required the consideration of a 

“confluence of factors” in making an S & S determination, it was specifically concerned with 

44 FMSHRC Page 464
whether there was ‘a sufficient amount of methane in the atmosphere surrounding the 

impermissible gaps and ignition sources.”). 

i. There is sufficient evidence in the record to find that an 

explosion within the enclosure was reasonably likely. 

 The violative light fixture is a 120-volt system. Tr. 75, 87, 174. Even if an LED bulb was 

present, the circuit would not have been intrinsically safe. Id. at 172; Ex. R-8, CONSOL 0042. 

Electrical circuits do fail without warning, and one cannot predict when that will occur. Tr. 176, 

177. In addition to the poor condition of the globes, there was credible testimony by the inspector 

that moisture, erosion, vibration, or just age can contribute to a failed circuit that can contribute 

to an ignition. Id. at 75; see also Knox Creek Coal Corp., 36 FMSHRC at 1134 (noting similar 

conditions and causes for failure that were sufficient for affirming an S&S designation). 

 The Secretary relied on the fact of violation and that even LED bulbs, if present, were 

acknowledged to not be intrinsically safe. See S. Br. at 12–13. Respondent correctly notes that 

the reasonable likelihood of an ignition within the light fixture is required, see Resp’t Br. at 17, 

but it fails to provide adequate evidence negating this likelihood. Respondent makes three 

assertions regarding the light fixture that I reject. 

 First, that there would have to be a failure in the light fixture on the nonprotected side of 

the light’s ballast. Id. There is sufficient evidence in the record to conclude that the circuit could 

fail in the normal course of operations. Further, such an argument would essentially negate the 

danger in any permissibility violation. The purpose of the standard is to prevent the effects of an 

ignition within an enclosure from reaching the outside atmosphere. A light fixture failure must 

be assumed to be able to ignite methane that naturally enters the enclosure. 

 Second, that there was no evidence of electrical issues with the lights. Id. at 18. This is 

similarly refuted by the requirement to assume continued normal mining operations. There is 

credible testimony from both parties that such circuits can and do fail. 

 Finally, that the LED lights allegedly present are nearly intrinsically safe—designed to be 

“near the energy level that could not ignite a methane concentration.” Id. Respondent’s own 

electrical engineer admitted, and the provided graph demonstrated, that even LED lights would 

not move the circuit to the intrinsically safe side of the line. Though “nearly” intrinsically safe, 

the evidence supports a conclusion that the lights in question, including LED lights, would 

provide a potential source for an ignition. 

 Even if the use of LED bulbs was sufficient to make an ignition unlikely, there is nothing 

in the record proving that LED bulbs were in fact present at the time of the citation. The picture 

evidence shows what does appear to be an LED fixture through the globes. Tr. 166; Ex. R-7, 

CONSOL 0041. That provided picture, however, was taken outside the mine, months after the 

citation was issued, and after the globes had been replaced. Tr. 174; Ex. R-7, CONSOL 0038, 

0041. No witness testified that LED bulbs were present at the time of the citation. 

44 FMSHRC Page 465
ii. A preponderance of the evidence establishes that an 

atmospheric ignition was reasonably likely. 

 I have concluded that an ignition within the light fixture is reasonably likely, and the fact 

of impermissibility would allow such an explosion to escape the enclosure. Bailey Mine is a 

“gassy” mine that liberates more than ten million cubic feet of methane every twenty-four hours, 

and the mine and cited section were liberating methane at the time. Tr. 76–77; Ex. GX- 4, DOL 

023; see also Knox Creek Coal Corp., 811 F.3d at 164 (recognizing that a mine liberating more 

than 500,000 cubic feet of methane or other explosive gases during a twenty-four-hour period 

was considered “gassy”). 

 In Knox Creek Coal Corp., the affirmed Commission decision did not disturb the judge’s 

finding that the designation of a mine as “gassy” was sufficient to find that an ignition was 

reasonably likely. See 811 F.3d at 154 (recognizing the judge’s finding that “an explosion could 

escape the enclosures and trigger a larger explosion in the ‘gassy’ mine atmosphere”); 36 

FMSHRC at 1131 (“[G]iven the gassy nature of the mine, sudden methane buildups in the 

explosive range could reasonably be expected to occur.”). 

 In addition to accepting the possibility of sudden methane buildups as sufficient for S&S, 

the ALJ’s decision in Knox Creek noted that methane accumulations above five percent had 

previously been detected. Docket No. VA 2010-89-R, 2010 WL 5619977, at *43 (Dec. 27, 2010) 

(ALJ). He further accepted testimony that “although methane could accumulate to an excessive 

range from places such as the floor or the rib[s], usually it came from the face [as] coal was cut.” 

Id. at *41. 

 Respondent asserts that the necessary confluence of events was not present. First, it 

provided testimony that there would have to be sufficient methane accumulation for a 

sufficiently long time, that it would have to occur quickly enough for the monitor to trip the 

miner, and that a simultaneous light fixture failure would have to occur. See Tr. 169–70; Resp’t 

Br. at 17. 

I have already addressed the reasonable likelihood of circuit failure, and thus do not 

accept this contention here. Next, it is true that nothing in the record provides that the explosive 

level was reached in the cited entry or other entries. See Tr. 76–77, 84–85, 93, 121–22, 124–28; 

Ex. GX-4, DOL 038–39; Resp’t Br. at 17. However, such accumulation does not need to be 

shown at or near the time of the violation. Per Knox Creek, it is sufficient that the mine is 

“gassy,” and that buildups within explosive range are reasonably likely to occur. 

As the Commission has consistently held, the S&S analysis must assume the continuation 

of normal mining operations. See Knox Creek Coal Corp., 811 F.3d at 156 (affirming that the 

judge failed to consider methane accumulation “as [it] would have existed had normal mining 

operations continued”); see also 36 FMSHRC at 1132 (citing Black Beauty Coal Co., 34 

FMSHRC 1733, 1740 (Aug. 2012); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 677–78 

(Apr. 1987)). In this context, we must assume a constant threat of explosive methane in a gassy 

mine. I therefore find a reasonable likelihood that methane levels will rise when the miner cuts 

coal during continued mining operations. 

44 FMSHRC Page 466
Finally, I also consider that the methane monitor was shown to not be calibrated properly, 

and that more methane than detected would likely be present before it cut the miner’s power. See

Tr. 78, 123; Ex. GX-5. Taken together, there is sufficient evidence on the record to find that an 

ignition is reasonably likely to occur. 

c. Step 3: It is reasonably likely that ignition of the mine atmosphere 

would result in injury such as burns, broken bones, or concussions. 

 The reasonable likelihood of occurrence of the hazard has been established. Assuming an 

ignition occurs, I find that it is reasonably likely to result in an injury. An explosion is generally 

reasonably likely to cause injury—burn or concussive—to nearby miners. The issue, therefore, is 

whether the record demonstrates that miners will be in vicinity of the hazard. 

 Respondent makes no specific assertions contesting Step 3; it only states broadly that 

“the Citation is not reasonably likely to result in a hazard that was reasonably likely to result in 

injuries of a reasonably serious nature.” Resp’t Br. at 18. The Secretary similarly provides little 

in support. See S. Br. at 13 (arguing that the failure of Respondent to dispute that “an LED bulb 

runs on 120 volts and is not intrinsically safe” satisfies Step 3). I find this assertion lacking in a 

Step 3 analysis because it is only relevant to the likelihood of the hazard occurring in Step 2. 

This nonetheless does not prohibit a finding that the violation meets the requirements for Step 3. 

 The Secretary provided credible testimony that miners would be working near the 

violative continuous miner during operation. I already credited his assessment that at least one 

miner—“bolter[] closest to the facing”—would be injured by an ignition. See supra Section 

IV.B.2.C. With no contrary testimony provided, this is sufficient to find that a miner would be 

injured if the hazard occurred. 

d. Step 4: It is reasonably likely that such an injury would be of a 

reasonably serious nature. 

 An inspector’s assessment of an injury as reasonably serious has generally been accepted. 

See supra Section III.B.3.d. Here, the Secretary has provided credible testimony that an ignition 

of the mine atmosphere could cause burns, broken bones, or concussions to miners, particularly 

the bolters working near the continuous miner. I find that such injuries are correctly 

characterized as of a reasonably serious nature. 

4. Negligence 

I find that the negligence was properly assessed as “low.” Those charged with inspecting 

for permissibility are familiar with the mining industry and relevant facts. They should have been 

familiar with the protective purpose of ensuring that light fixture housings (globes) are in 

permissible condition. I therefore find that a reasonably prudent person in their position should 

have known about the violative condition and acted to remedy it. 

44 FMSHRC Page 467
The Secretary maintains that this violation was a result of low negligence because the 

damage could have occurred in the days since the last required electrical exam. S. Br. at 13. 

Respondent provided no argument against the negligence finding, though it did elicit testimony 

from Inspector Young that the next required exam could have been completed by the day 

following the citation. Tr. 90–91; Ex. GX-4, DOL 040. 

 The inspector appropriately noted that, while a foreman should have seen the lights’ 

condition, the damage could have occurred since the last exam. Tr. 82. I credit the inspector’s 

explanation. I therefore affirm his negligence finding. 

5. Penalty 

 I have previously recognized the Secretary’s proper consideration of the operator’s 

business size and ability to continue in business. See supra Section III.B.5. These Section 110(i) 

considerations remain the same here. 

 Respondent’s history of violations is reflected in Exhibit GX-12. Its history consists of 

twenty-four repeat violations during the inspection period. Accordingly, this factor has already 

been properly considered and is of no consequence in my assessment. 

I affirm that the violation’s gravity was properly characterized by the inspector, so I find 

no reason to impose a higher penalty assessment based on that factor. See supra Section IV.B.2–

3. Respondent immediately abated the violation by replacing the light fixtures. See GX-4, DOL 

022. I therefore find that the operator demonstrated good faith in attempting to achieve rapid 

compliance after notification.

The proposed penalty of $383.00 was based, in part on the negligence [low] and gravity 

[reasonably likely] assessed in the citation. I have affirmed the reasoning supporting both 

determinations. Having affirmed the citation as issued, and considering all of the criteria relevant 

to this violation, I assess a penalty of $383.00.

V. CITATION NO. 9204257 

A. Factual Findings 

 This citation was issued by Inspector Young on March 22, 2021. Ex. GX-6, DOL 046. He 

assessed gravity as “unlikely,” “lost workdays or restricted duty,” non-S&S, and two persons 

affected. Id. He assessed negligence as “low.” Id. The description read: 

The Operator failed to plot all drill holes which penetrate the coalbed being mined 

on the 75.1200 map at the Bailey Mine. A [sic] alleged gas well was inadvertently 

cut through on the 10J Longwall Working Section (039-0 MMU) at the number 118 

shield at plus number 25+53 and was not shown to exist on the 75.1200 map. 

44 FMSHRC Page 468
Id. Inspector Young visited the mine upon Respondent’s call that it cut through an uncharted gas 

well. Tr. 179. He issued the citation because the unplotted, intersected well was “a bore hole that 

penetrated the coal seam.” Id. at 184. 

 The location was not accurately marked on Respondent’s mine map. Id. at 187. Matthew 

Ruckle, Consol’s project engineer, explained, and Inspector Young acknowledged, that 

Respondent conducted a diligent search, using available maps and outside contractors to search 

the surface. See id. at 190, 193, 217, 226–27, 229; Ex. R-13, CONSOL 0070–74. The nearest 

plotted “did not find” (“DNF”) drill hole, nonetheless, was marked 273 feet away from the actual 

intersected hole. Tr. 185.

B. Disposition 

1. Violation 

 The cited standard states, “Additional information required to be shown on mine maps 

under § 75.1200 shall include the following: . . . all drill holes that penetrate the coalbed being 

mined . . . .” 30 C.F.R. § 75.1200-1(d) (2022). Respondent did not contest the fact of violation in 

its post-hearing brief. See Resp’t Br. at 20 n.5 (contesting only the negligence designation 

because of the recent decision in Consol Pennsylvania Coal Co., 44 FMSHRC at 168, 173, 

which affirmed a citation for drill hole plotted 125 feet from its actual location). 

 The Secretary, nevertheless, still has the burden of proving the violation. An operator is 

liable for a violation of this standard if a drill hole is inaccurately plotted, regardless of the level 

of fault. See Musser Eng’g, Inc., 32 FMSHRC at 1272 (citing Spartan Mining Co., 30 FMSHRC 

at 706; Asarco, Inc., 8 FMSHRC 1632, 1634–36 (Nov. 1986), aff’d, 868 F.2d 1195 (10th Cir. 

1989)). The Commission in Musser affirmed the judge’s finding of violation, reiterating the level 

of inaccuracy found: 

To say that the operator’s map was inaccurate would be an understatement. If the 

operator’s map were accurate, the [mine] workings would not have been intersected 

because the [mine] really would have been approximately 450 feet away, as 

indicated on the operator’s map. 

Id. at 1270 (citing 28 FMSHRC 699, 706 (July 2006) (ALJ)). 

 First, I agree with the assessment that this was a drill hole that penetrated the coalbed 

being mined. Respondent intersected the hole during mining operations; the inspector testified 

that Respondent “mined past it, and the face opened up,” and that “[t]hey might as well have 

mined through it.” Tr. 209. 

 Finally, the Secretary provided credible testimony that the closest plotted suspected gas 

well was 273 feet from where the operator intersected the hole in question. This is sufficient 

inaccuracy to sustain a violation. I therefore affirm the citation. 

44 FMSHRC Page 469
2. Gravity 

 a. Likelihood 

 The Secretary asserts that an injury is unlikely. The inspector assessed ignition as 

unlikely because legal gas check results were within safe limits. Tr. 186. With no contrary 

evidence provided, I affirm the inspector’s likelihood finding. 

 b. Severity 

 The Secretary provided credible testimony that the ignition or fire hazard, though 

unlikely, would result in burns, concussions, or broken bones. Id. at 190. I find that such injuries 

would reasonably result in a miner missing at least one full day of work. I therefore affirm the 

severity found in the citation. 

 c. Number of Persons Affected 

 The citation found two miners would be affected by the hazard, noting that two people 

usually run the shear. Id. Respondent provided no contrary testimony. I therefore affirm the 

number of persons affected. 

3. Negligence 

I find that negligence was improperly assessed as “low.” Respondent is familiar with the 

mining industry and relevant facts, and it has explicit familiarity with the protective purpose of 

the regulation. See supra Section V.B.1. Therefore, I find that a reasonably prudent person in 

Respondent’s position should have known about the violative condition. 

 Respondent here did not rest its efforts on reviewing old maps that it could not 

reasonably conclude were accurate indicators of boundaries of previous mine workings. Contra 

Musser Eng’g, Inc., 32 FMSHRC at 1286 (affirming gross negligence where it was unreasonable 

for operator to rely on the maps used). Respondent used two third-party contractors—18 Karat, 

Inc. and Blue Mountain, Inc.—to search for the suspected gas wells. Tr. 226–29. Neither 

contractor found the holes in question, and they were marked as DNF. See id.; Ex. R-14, 15. 

Inspector Young even acknowledged that Respondent did the best it could to find the suspected 

wells. Tr. 193. 

 The Secretary relies on MSHA negligence definitions to argue for low negligence instead 

of no negligence. He acknowledges that there were “considerable mitigating circumstances,” but 

that the operator could have known of the violative condition. S. Br. at 14–15; see also 30 C.F.R. 

§ 100.3(d) (2022). 

An assessment of no negligence is supported, however, under a reasonably prudent 

person standard specific to miners. The Secretary did not provide testimony regarding further 

actions Respondent could have taken. I find that Respondent conducted its search using all 

available means. I therefore reduce the negligence finding from “low” to “none.” 

44 FMSHRC Page 470
4. Penalty 

 I have previously recognized the Secretary’s proper consideration of the operator’s 

business size and ability to continue in business. See supra Section III.B.5. These Section 110(i) 

considerations remain the same here. 

 Respondent’s history of violations is reflected in Exhibit GX-12. Its history consists of 

only two repeat violations during the inspection period. Accordingly, this factor has already been 

properly considered and does not significantly affect my assessment. 

 I affirm the violation’s gravity as assessed, so that factor also does not carry additional 

weight in my penalty assessment. See supra Section V.B.2. Respondent immediately abated the 

violation by updating its mine map. See GX-6, DOL 046–47. I therefore find that the operator 

demonstrated good faith in attempting to achieve rapid compliance after notification. 

 The proposed penalty was based, in part, on the negligence assessed. Because I find that a 

reduction in negligence is warranted, see supra Section V.B.3, I also find that a penalty reduction 

is appropriate. The proposed penalty was $125.00, based in part on the Secretary’s finding of 

moderate negligence. Because I find that the operator was not negligent, I assess a penalty of 

$100.00. 

VI. CONCLUSION 

 It is ORDERED that Citation Nos. 9204245 and 9204250 be AFFIRMED as issued. 

It is also ORDERED that Citation No. 9204257 be AFFIRMED with the assessed 

gravity, and that the level of negligence be MODIFIED from “low” to “none.” 

Finally, it is ORDERED that the Respondent pay the Secretary of Labor the assessed 

penalty of $838.00 within 30 days of the date of this decision.11

 /s/ Michael G. Young 

Michael G. Young 

Administrative Law Judge 

11 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. 

44 FMSHRC Page 471
Distribution (First Class Mail and email): 

Matthew R. Epstein, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 1835 Market Street, 

Mailstop SOL/22, Philadelphia, PA 19103, epstein.matthew.r@dol.gov 

Kenneth J. Polka, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 

631 Excel Drive, Suite 100, Mt. Pleasant, PA 15666, polka.kenneth@dol.gov 

Patrick W. Dennison, Esq., Fisher & Phillips LLP, Six PPG Place, Suite 830, Pittsburgh, PA 

15222, pdennison@fisherphillips.com 

44 FMSHRC Page 472
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th ST., SUITE 443 

DENVER, CO 80202-2500 

OFFICE: (303) 844-5266 / FAX: (303) 844-5268 

June 17, 2022 

DECISION AND ORDER 

 

Appearances: Karla Malagon and Jessica Flores, Office of the Solicitor, 

U.S. Department of Labor, Los Angeles, California, for the Complainant 

Mark Pachowicz, Pachowicz & Goldenring PLC, Ventura, California, 

for the Respondent 

Before: Judge Miller 

This case is before me upon a complaint of discrimination filed by the Secretary of Labor 

(“Secretary”) on behalf of Alvaro Saldivar against Grimes Rock Inc. (“Respondent”) under 

section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. 

(“Mine Act” or “Act”). Mr. Saldivar alleges that he was terminated for making safety complaints 

that are protected under the Mine Act. Both parties presented witnesses and evidence at the 

hearing that took place from January 25-27, 2022 and subsequently briefed the Court on issues of 

fact and law. For the reasons outlined below, I find that the Secretary has failed to prove a 

violation of section 105(c) of the Mine Act. 

I. FINDINGS OF FACT 

The findings of fact detailed below are based on the record as a whole and my careful 

observation of the witnesses during their testimony. My credibility determinations are based in 

part on my close observation of the witnesses’ demeanors and vocal intonations. In resolving any 

conflicts in testimony, I have taken into consideration the interests of the witnesses, corroboration 

or the lack thereof, and consistencies and inconsistencies in each witness's testimony and among 

the testimonies of the various witnesses. Any failure to provide detail on each witness’s testimony 

should not be deemed a failure to have fully considered it. The fact that some evidence is not 

discussed does not indicate that it was not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th 

Cir. 2000). 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of ALVARO SALDIVAR, 

 Complainant, 

 v. 

GRIMES ROCK INC, 

Respondent. 

 DISCRIMINATION PROCEEDING 

 Docket No. WEST 2021-0265-DM 

 MSHA Case No. WE MD 21-06 

 

 Mine: Grimes Rock Inc 

 Mine ID: 04-05432 

 

44 FMSHRC Page 473
Grimes Rock operates a small sand and gravel mine located in Fillmore, California. This 

surface mine falls under the jurisdiction of the Mine Act, and its miners are covered by the Act’s 

protections. See Jt. Stip. ¶ 1; 30 U.S.C. § 803. Alvaro Saldivar worked at Grimes Rock during 

two separate periods of employment. Grimes Rock first employed Saldivar as a welder in 2019. 

Jt. Stip. ¶ 7. Then, Grimes Rock re-hired Saldivar on October 5, 2020, and he continued working 

at the mine until he was terminated on January 15, 2021. Jt. Stip. ¶ 6. Saldivar’s second stint of 

employment at Grimes Rock is the focus of the present discrimination proceeding. 

Grimes Rock is owned by Russell Cochran and is managed by Ernesto Melendez, who 

oversees all operations at the mine. Melendez made the decision to rehire Saldivar in October 

2020, motivated in part by Saldivar’s high quality of work during his first term of employment. 

Tr. 389. Melendez testified that while there was no welder position available, he recognized the 

need for consistent servicing of the mine’s mobile equipment, and he hired Saldivar to fill the role 

of “lube guy.” Tr. 387. 

The parties dispute certain details about Saldivar’s precise title and role at Grimes Rock 

during the second period of his employment—Saldivar claims he was rehired as a “lube service 

technician and as an equipment operator” rather than a “lube guy”—but both sides largely agree 

as to what his duties were. Tr. 34. Grimes Rock rehired Saldivar to operate a lube truck that would 

carry oil and other automotive fluids around the mine and service its mobile equipment. However, 

at the time of Saldivar’s rehiring, the lube truck had not yet been acquired, and so Saldivar was 

asked to help with other jobs around the mine. Tr. 36, 388. He was tasked with operating a water 

truck to assist with dust control, as well as operating a motor grader to help flatten and grade the 

roads at the mine. Tr. 36, 388. Management also asked Saldivar to service mobile equipment in 

the absence of the lube truck. Both sides agree that plant manager Rene Garcia and plant 

supervisor Aureliano Ruiz oversaw Saldivar’s work, in addition to Melendez. Jt. Stip. ¶¶ 15,16. 

A. Saldivar’s training at Grimes Rock 

Saldivar’s training upon returning to Grimes Rock began with a text message. On October 

5, 2020, Ernesto Melendez texted Saldivar a link to an MSHA training video. See Sec’y Ex. 19. 

Melendez testified that he sent a link to the virtual training instead of conducting an in-person 

training because Grimes Rock offices were closed due to the COVID-19 pandemic. Tr. 391. On 

October 6, Saldivar signed and dated a certificate of training indicating that he completed the 

video training. Resp. Ex. E. Saldivar signed a similar form confirming additional training the next 

day. Both forms indicate that the type of training received was “New Miner” training. Resp. Ex. 

E. 

Saldivar began operating the Peterbilt water truck and motor grader within the first few 

weeks of returning to Grimes Rock. He testified that he was asked to operate these pieces of 

equipment before he was trained on them. Tr. 36-38. Saldivar said at hearing that he operated the 

equipment for one month without training, and that he requested training for this equipment in 

his preoperational inspection forms. Tr. 96, 100. Eventually, Grimes Rock enlisted electrician Vic 

Lester to train Saldivar on the water truck and motor grader. Saldivar characterized the training 

on the water truck as a “360 walk around” and described the training on the motor grader as 

“improper.” Tr. 98, 100. Vic Lester testified that water truck training involved the two men 

44 FMSHRC Page 474
entering the cab, reviewing the controls, and then allowing Saldivar to operate the truck while 

Lester sat in the passenger seat. Tr. 610. Saldivar disputed this. Tr. 168. Lester also testified that 

he trained Saldivar on the motor grader by showing him the equipment, getting in the cab together, 

instructing him on how to operate the handles and levers to control the blade, and reviewing what 

to watch for while operating the grader. Tr. 613. Lester’s testimony was corroborated by 

Melendez and Garcia, who testified that they witnessed Lester and Saldivar operating the 

equipment together. Tr. 396, 401, 465. Ruiz testified that Saldivar told him that he had been 

trained by Lester. Tr. 511. No information regarding the timing of the training is contained in the 

record. 

Within the first few weeks of returning to Grimes Rock, Saldivar was also asked to begin 

servicing mobile equipment at the mine. This task included replenishing the fuel, checking the 

fluids, greasing the pinpoints, and performing other routine service on equipment such as the 

excavators, bulldozers, front loaders, and a backhoe at the mine. Tr. 38-39. Saldivar claimed that 

Grimes Rock only provided instruction on servicing the mobile equipment after he complained 

about the lack of training on his preoperational inspection forms. Tr. 96. Jordan Van Wie from 

Quinn Company led a training session that Saldivar described as a “360 walk around” of the 

equipment and a basic demonstration on how to “check fluids.” Tr. 96, 101. Van Wie, a certified 

instructor of equipment maintenance, testified that he spent two or three hours showing miners 

the basic service techniques on four different pieces of equipment. Van Wie did not say if the 

training was before or after Saldivar made a complaint. Tr. 676, 679-80. 

On occasion, Saldivar would have to move mobile equipment to the location where the 

grease and fluids were kept in order to service the equipment. According to Saldivar, he was 

directly ordered to move the equipment in this manner. Tr. 40. Saldivar testified that he was not 

trained on how to operate the heavy equipment, such as the backhoe. Tr. 40. He claimed that he 

directly requested training on the backhoe from Melendez and Garcia, but that the only training 

he received was a “360 walk around” of the equipment. Tr. 95-96. Melendez testified that neither 

he nor anyone else at the mine trained Saldivar regarding operation of the backhoe because 

Saldivar “was not an operator, there was no need for him to be on a backhoe.” Tr. 405. According 

to Melendez, Grimes Rock equipment operators parked the mobile equipment on flat surfaces and 

“[t]here is no need to move any of the equipment” to service it, beyond maybe moving it “four 

feet.” Tr. 434-35. 

B. Saldivar’s first disciplinary action 

Three weeks after resuming work at Grimes Rock, Saldivar received his first disciplinary 

writeup. On October 27, Rene Garcia issued Saldivar a disciplinary form because the “water truck 

again for the third time was found with no coolant and very low on engine oil.” Sec’y Ex. 2. 

Saldivar testified that, on that date, he had likely not yet received the Quinn Company training on 

equipment maintenance, and that the training he did receive lacked adequate instruction on how 

to service the water truck. Tr. 106. 

44 FMSHRC Page 475
C. The water truck tires, incident, and disciplinary action 

Saldivar noticed issues with the tires of the Peterbilt water truck early in his second stretch 

of employment at Grimes Rock. He testified that some tires were “bald,” “cracked,” and had 

“wires exposed.” Tr. 43. Saldivar claimed that he verbally reported these issues to Melendez and 

Garcia and that he also informed management of the issues on his preoperational inspection 

sheets. Tr. 43-45. Melendez denied being told about balding tires. Tr. 412. Melendez testified that 

when a miner reports worn tires on a preoperational inspection form, Melendez will inspect the 

tires and make a “business decision” about whether they need to be replaced. Tr. 429. 

On the evening of December 10, 2020, Saldivar was involved in an incident while driving 

the Peterbilt water truck. Saldivar operated the water truck that evening for dust-control purposes. 

He sprayed the roadside as he traveled downhill on the main mine road connecting the plant on 

top of the hill and the scales below. Saldivar turned the truck around at the bottom of the hill and 

returned uphill toward the plant. Saldivar testified that, as he drove up the steep grade, the truck’s 

tires lost traction and the truck started sliding back downhill. Tr. 49. Saldivar sensed that he had 

lost control of the vehicle, and he tried to steer the truck into a nearby row of cinderblocks to stop 

the truck’s slide. He succeeded, and the truck collided with the cinderblocks. The collision caused 

damage to a tire and a rim on the water truck. See Sec’y Ex. 6. Saldivar immediately radioed the 

night manager of the plant, Aureliano Ruiz, and informed him of the incident. Tr. 54-55. Ruiz 

told Saldivar to try to drive the truck up the hill in first gear and park it at the plant so that Ruiz 

could inspect the damage. Tr. 54-55, 247. Saldivar was able to get the truck to the plant safely in 

first gear. Tr. 247. 

The next morning, Saldivar informed Melendez about the incident via text message. See

Sec’y Ex. 5. He detailed how he lost control of the truck and damaged a rim and a tire. Melendez 

responded by saying, “You need to be careful we will write you up on it.” Sec’y Ex. 5. When 

Saldivar arrived at work the next morning, Rene Garcia issued him a discipline form for damaging 

company property. See Sec’y Ex. 3. Melendez testified that he “investigated” the water truck 

incident before authorizing the discipline form, but he and Saldivar agreed in their testimony that 

Melendez did not contact or interview Saldivar before the discipline was issued, apart from the 

single text message. Tr. 71, 358-59. Later that day, Melendez hired Pinky’s Tire Service to replace 

the tire and rim on the water truck. Both Melendez and the tire technician testified that no tires 

had been replaced between October and December 10, that only a single tire was replaced on 

December 11, and that the remaining tires were in passable condition. Tr. 425-26, 597. 

D. Subsequent disciplinary actions 

After receiving the writeup about the water truck incident on December 11, Saldivar 

received his third disciplinary action the very next day. On December 12, Aureliano Ruiz issued 

Saldivar a writeup for arriving to work four hours late. See Sec’y Ex. 7. Ruiz issued this form on 

Rene Garcia’s behalf, after Garcia told Ruiz that Saldivar failed to show up on time. Tr. 502. Ruiz 

testified that Saldivar gave no excuse for his tardiness except that “he ran late, that’s it.” Tr. 505. 

To Saldivar, the timing of this discipline form was suspicious because he had been tardy in the 

past without receiving any admonishment. Tr. 79. Saldivar admitted that he was late to work 

about once a week but claimed that he had obtained permission for these instances. Tr. 176-77. 

44 FMSHRC Page 476
He also testified that he was late without permission “[m]aybe a couple of times.” Tr. 178. 

Melendez testified that Saldivar’s attendance record “wasn’t good.” Tr. 429. Oscar Nava, a former 

coworker of Saldivar at Grimes Rock, said that “everybody is late to work” at the mine. Tr. 316. 

On January 13, 2021, Saldivar noticed that the transmission fill tube on a dozer was 

missing its cap, and he reported the missing cap to Garcia and Melendez. Tr. 83; Sec’y Ex. 8. 

Saldivar was ultimately written up for the missing cap. Sec’y Ex. 8. According to Saldivar, he 

received the writeup in retaliation for reporting the unsafe condition. Tr. 84-85. Yet Rene Garcia, 

who issued the writeup, said both at hearing and on the disciplinary form that Saldivar admitted 

to having left the fill tube uncapped after being confronted by the dozer operator. Tr. 472; Sec’y 

Ex. 8. The dozer operator confirmed this at hearing. Tr. 659. Saldivar denied having made any 

such admission. Tr. 84. 

Saldivar’s fifth and final writeup came the next day. Saldivar testified that he was assigned 

to grade the roads on January 14, and he was using the backhoe to collect the material needed as 

“base” in order to perform the grading. Tr. 86. When he was operating the backhoe, one of the 

tires was flat and appeared to separate from the rim. Tr. 85; Sec’y Ex. 10. Garcia issued Saldivar 

a writeup for the damage incurred to company property when Saldivar was “not paying attention” 

and “drove the tire off the wheel” of the backhoe. Sec’y Ex. 9. Garcia testified that he issued the 

disciplinary form because Saldivar was not supposed to be operating the backhoe and could not 

account for the damage to the tire. Tr. 469. 

E. Saldivar’s termination 

On January 15, 2021, Melendez radioed Saldivar to meet him at the scale house, where 

he informed Saldivar that he was fired. Tr. 173. Melendez gave Saldivar his final check and had 

him sign a termination letter. The letter indicated that Saldivar’s employment was terminated due 

to “damaged company property and performance issues.” Sec’y Ex. 15. Melendez testified at 

hearing that the factors he considered in terminating Saldivar included “his attitude, attendance, 

damaging the company property, not [being] willing to listen to anybody, [and] thinking he can 

do what he pleases at the mine.” Tr. 432-33. Several employees of Grimes Rock testified that 

Saldivar’s attitude was an issue at the mine. Tr. 407-19, 660-61, 669. 

II. ANALYSIS 

Section 105(c)(1) of the Mine Act prohibits a mine operator from discharging a miner, 

discriminating against him, or interfering with the exercise of his statutory rights “because . . . he 

has filed or made a complaint under or related to this chapter, including a complaint notifying the 

operator . . . of an alleged danger or safety or health violation” or “because of the exercise of such 

miner . . . of any statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1). Congress intended 

for the protections of section 105(c) “to be construed expansively to ensure that miners will not be 

inhibited in any way in exercising any rights afforded” by the Mine Act. S. Rep. 95-181, at 36, 

reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legis. History of the Federal 

Mine Safety and Health Act of 1977, at 624 (1978). 

44 FMSHRC Page 477
A. The standard for discrimination 

For decades, the Commission and its courts adjudicated claims of discrimination brought 

under section 105(c) of the Mine Act using the Pasula-Robinette framework. Sec’y on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981); Sec’y on behalf of 

Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (Oct. 1980). This framework was 

recently abrogated by the United States Court of Appeals for the Ninth Circuit. Specifically, the 

Ninth Circuit found flaw in the causation aspect of the Pasula-Robinette standard. Now, 

discrimination claimants within the Ninth Circuit must prove that unlawful discrimination was a 

“but-for” cause of the alleged adverse action. Thomas v. CalPortland Co., 993 F.3d 1204, 1210 

(9th Cir. 2021). The Ninth Circuit did not announce how this new standard would interact with the 

rest of the Commission’s precedent regarding discrimination claims, and the Commission itself 

has not yet had the opportunity to opine on this matter. This Court must apply a test of 

discrimination that embeds a but-for causation standard and that also hews to the Commission’s 

robust body of discrimination case law. Accordingly, this Court will adopt the test for 

discrimination as applied in the matter of first impression that appeared before the courts of the 

Commission. See Thomas v. CalPortland Co., 43 FMSHRC 531, 538-40 (Dec. 2021) (ALJ).1

 

The test for discrimination under section 105(c) of the Mine Act is therefore whether the 

complainant has proven, by a preponderance of the evidence, an adverse action that would not 

have been taken but for his engagement in protected activity. 

In the absence of direct evidence of discrimination, a complainant may assert a prima facie 

case of discrimination under the Mine Act by showing that he engaged in protected activity and 

that the adverse action complained of was motivated in any part by that activity. This lower 

standard is not the ultimate standard of discrimination, but rather an evidentiary device that allows 

a miner to state a claim of discrimination using indirect evidence of discrimination, such as the 

operator’s knowledge of the protected activity, its hostility towards the protected activity, the 

coincidence in time between the protected activity and the adverse action, and disparate treatment 

of the complainant. Sec’y of Labor on behalf of Johnny Chacon v. Phelps Dodge Corp., 3 

FMSHRC 2508, 2510 (Nov. 1981). If the miner successfully states his prima facie case, he has 

established a rebuttable presumption of discrimination under the Mine Act. 

The mine operator then has an opportunity to rebut the miner’s prima facie case by 

producing evidence showing that no protected activity occurred or that the adverse action was not 

motivated by the protected activity. This is merely a burden of production, not of persuasion. An 

operator’s failure to produce any legitimate evidence in rebuttal to the prima facie case would 

result in a judgment in favor of the complainant. However, when an operator produces such 

1

 At the time of publication, only one court has had the opportunity to apply the new Ninth 

Circuit “but-for” standard after a hearing in a discrimination case. See Thomas, 43 FMSHRC at 

538-40. That decision engaged in a detailed discussion of how to apply the Ninth Circuit’s standard 

while preserving Commission precedent and honoring the intent of the legislators who drafted the 

Mine Act, who sought to encourage miners’ free engagement in protected activity. Furthermore, 

the decision clarified how burden-shifting and the prima facie case are consistent with the Ninth 

Circuit’s holding in Thomas. The test and the accompanying discussion are adopted here. 

44 FMSHRC Page 478
evidence, the presumption of discrimination is nullified, and the judge must weigh the conflicting 

evidence according to the substantive “but-for” standard. During this final phase, the complainant 

must have an opportunity to show that the operator’s explanation in rebuttal is pretextual. 

Throughout this entire process, the burden of persuasion never shifts to the mine operator. 

B. Saldivar’s claim of discrimination 

Under this newly articulated test, Alvaro Saldivar must prove that he suffered an adverse 

action and that the adverse action would not have been taken but for his protected activity. As an 

initial offering, Saldivar must first establish a prima facie case of discrimination. 

1. Saldivar’s prima facie case 

A prima facie case of discrimination requires a showing (i) that the complainant engaged 

in protected activity, (ii) that he suffered an adverse action, and (iii) that there is a motivational 

nexus between the protected activity and the adverse action. See Driessen v. Nevada Goldfields, 

Inc., 20 FMSHRC 324, 328 (Apr. 1998); Pasula, 2 FMSHRC at 2799. The burden on the 

complainant is not onerous. He must only produce “evidence sufficient to support a conclusion” 

that he was discriminated against. Driessen, 20 FMSHRC at 328. A miner has proven his prima 

facie case when he has “present[ed] evidence from which the trier of fact could infer retaliation.” 

Turner v. National Cement Company of California, 33 FMSHRC 1059, 1065 (May 2011). 

i. Protected activity 

Alvaro Saldivar engaged in at least two instances of protected activity. First, Saldivar 

engaged in protected activity when he lodged safety complaints about the condition of the tires on 

the water truck. Saldivar testified that he had issues with the water truck’s tires from the moment 

he was rehired. In his opinion, the tires were “bald” and “cracked” with “wires exposed.” Tr. 41-

45. He testified that he alerted management of the poor tire condition both verbally and on his 

preoperational inspection sheets. I find Saldivar’s testimony on this issue to be credible. Melendez 

denied that Saldivar made such complaints, but he did acknowledge his policy of allowing some 

wear and tear on the tires as part of his “business decision” regarding whether they need to be 

replaced. Tr. 429. Also, I find it suspicious that the mine failed to produce the preoperational 

inspection sheets when asked by the Secretary. Since they were not produced as requested, I credit 

the testimony of Saldivar that he did list his complaints on those sheets. Safety complaints like the 

ones made by Saldivar are quintessential protected activities under section 105(c)(1) of the Mine 

Act, which expressly protects a miner who makes a “complaint notifying the operator . . . of an 

alleged danger or safety or health violation.” 30 U.S.C. § 815(c)(1). 

Second, Saldivar’s complaints to management about inadequate task training also 

constitute protected activity under the Mine Act. Saldivar believed that he needed additional 

training on several pieces of equipment, and he testified that he made both verbal and written 

reports of poor training to Grimes Rock management. Again, I find Saldivar’s testimony on this 

point to be credible. While mine management generally denied that Saldivar made such reports, 

Melendez did admit at hearing that Saldivar had told him that he “need[ed] more practice” on the 

motor grader. Tr. 400. Proper task training is paramount under the Mine Act, see 30 U.S.C. § 

44 FMSHRC Page 479
825(a)(4), and inadequate training constitutes a major health and safety risk. Id. at § 814 (declaring 

that an untrained miner is a “hazard to himself and others.”). Making a report of inadequate training 

is therefore equivalent to making a report about unsafe working conditions, and it is protected 

activity under section 105(c) of the Act. Cf. Thomas, 43 FMSHRC at 542. Accordingly, Saldivar 

has established his engagement in at least two protected activities. 

ii. Adverse action 

The Commission has defined “adverse action” to mean “an action of commission or 

omission by the operator subjecting the affected miner to discipline or a detriment in his 

employment relationship.” Sec’y on behalf of Pendley v. Highland Mining Co., 34 FMSHRC 1919, 

1930 (Aug. 2012). Here, the parties agree that Saldivar was terminated by Grimes Rock on January 

15, 2021. Jt. Stip. ¶ 11. There is therefore no dispute that Saldivar suffered an adverse action as 

defined by the Commission. 

iii. Motivational nexus 

The next relevant inquiry is whether a motivational nexus exists between Saldivar’s 

complaints and his firing. Because “[d]rect evidence of motivation is rarely encountered,” the 

Complainant may initially show this motivational nexus with the four circumstantial indicia of 

discrimination described by the Commission in its case law: the operator’s knowledge of the 

protected activity, the operator’s hostility, timing, and disparate treatment. Chacon, 3 FMSHRC 

at 2510. The complainant need not establish all four indicators of discrimination, but rather each 

factor proven by the miner contributes cumulatively to his case of discriminatory motive. 

In this case, two factors are most persuasive: knowledge and timing. An operator’s 

knowledge of protected activity “is probably the single most important aspect of a circumstantial 

case.” Chacon, 3 FMSHRC at 2510. Management at Grimes Rock knew about Saldivar’s safety 

complaints. Saldivar testified that he repeatedly made complaints about the water truck tires and 

about his inadequate training to Melendez and Garcia, both verbally and in writing. Additionally, 

Melendez acknowledged at hearing that Saldivar had asked for additional practice on the motor 

grader before he would feel comfortable operating it. Tr. 400. 

Timing is another factor that weighs in favor of Saldivar. Coincidence in timing between 

the protected activity and the alleged adverse action can point toward discriminatory motive. The 

Commission has noted that it “applies no hard and fast criteria in determining coincidence in 

time” and that “[s]urrounding factors and circumstances may influence the effect to be given.” 

Hicks v. Cobra Mining Inc., 13 FMSHRC 523, 531 (Apr. 1991). Saldivar testified that he began 

making safety complaints within the first few weeks of returning to work at Grimes Rock on 

October 5, 2020. Tr. 96. By October 21, Saldivar had received the first in a series of disciplinary 

actions. Sec’y Ex. 2. These actions escalated until Saldivar was terminated on January 15, 2021. 

Therefore, at most three months elapsed between the first instances of protected activity and the 

adverse action, and disciplinary actions were progressively being issued during those three 

months. Under Commission case law, this temporal proximity can be an indication of 

discriminatory motive. See Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 1365 (Dec. 

44 FMSHRC Page 480
2000) (finding that timing weighed in favor of complainant when four months elapsed between 

protected activity and adverse action). 

Knowledge and timing are the two strongest factors supporting Saldivar’s claim of 

discriminatory motive, and these two factors alone can support a prima facie case. See Pero, 22 

FMSHRC at 1365. But the Secretary has also offered some evidence regarding the final two 

factors, hostility and disparate treatment. Saldivar testified at hearing that Melendez and Garcia 

acted “malicious” toward him “every time [he] would complain about something.” Tr. 211. He 

viewed the progressive disciplinary actions as evidence of management’s mounting hostility for 

him in response to his complaints. Tr. 211. Furthermore, the Secretary argues that mine owner 

Russell Cochran displayed animus toward Saldivar when he called Saldivar’s subsequent 

employer, Brett Jones. According to MSHA Special Investigator Troy VanWey, Jones told 

VanWey about how Cochran warned him to “be cautious” because “if [Saldivar] was willing to 

file [a discrimination] complaint against [Cochran], he could also file it against Mr. Jones as well.” 

Tr. 543. Cochran denied ever having such a conversation. Tr. 587. Finally, the Secretary also 

alleges that Saldivar was treated differently than other miners once he lodged his complaints. A 

fellow miner, Oscar Nava, recounted times when he was late or when he damaged company 

property, but he told the Court that he was never fired for this conduct. Tr. 319-21. According to 

the Secretary, no other Grimes Rock employee had been terminated for performance issues in the 

two years prior to Saldivar’s firing, except for an accountant. See Sec’y Br. at 16 (citing tr. 379). 

The Secretary has introduced enough circumstantial evidence to support a conclusion or 

inference of retaliation. See Turner, 33 FMSHRC at 1065; Driessen, 20 FMSHRC at 328. 

Accordingly, a successful prima facie case of discrimination has been shown. 

2. Grimes Rock’s rebuttal 

Grimes Rock now has an opportunity to rebut Saldivar’s prima facie case by producing 

evidence indicating either (i) that no protected activity occurred or (ii) that the adverse action was 

not motivated by the protected activity. The company has offered arguments and evidence 

addressing both issues. 

i. Grimes Rock’s argument that no protected activity occurred 

The first argument advanced as part of the operator’s rebuttal is that Saldivar never 

engaged in protected activity. Grimes Rock contends that Saldivar did not complain about the 

water truck tires, nor about his inadequate training at the mine. 

First, Grimes Rock denies that Saldivar reported the poor condition of the tires on the 

Peterbilt water truck. In its brief, Grimes Rock first points out the absence of documentary 

evidence (notes, text message, preoperational inspection forms) showing that Saldivar ever made 

such a report. While Saldivar testified that he had reported the unsafe tires, mine management 

directly denied this claim at hearing. Tr. 411. Grimes Rock failed to point out at hearing that the 

Secretary repeatedly asked for such documentation, including preoperational reports, and the 

mine failed to provide it. Grimes Rock has also introduced pictures and testimony indicating that 

at least some of the tires that Saldivar complained about were in relatively good condition. See

44 FMSHRC Page 481
Resp. Ex. J; tr. 425-26, 597. This evidence does not nullify Saldivar’s prima facie case, because 

a miner only needs a reasonable, good-faith belief about the existence a safety issue to support 

his protected activity. See Kelly Diede v. Summit Inc., 13 FMSHRC 1155, 1162 (July 1991) (ALJ) 

(“The fact that there may have been no objective underlying safety problem would not invalidate 

a miner's good faith reasonable safety complaint.”). 

Second, Grimes Rock denies that Saldivar ever complained about inadequate training. 

Again, it argues that the Secretary has failed to introduce any evidence of the complaints beyond 

Saldivar’s own testimony. But once again, Grimes Rock failed to produce the documents when 

asked by the Secretary. Furthermore, Grimes Rock argues that inconsistencies in Saldivar’s 

testimony about his level of training diminishes his credibility on this point. Resp. Br. at 3. Finally, 

the company questions whether the underlying safety issue (the lack of training) was legitimate, 

detailing the variety of training that Saldivar went through while employed at Grimes Rock. The 

evidence points to the fact that, while Saldivar received new miner training and perhaps other 

training, he did not receive adequate task training. Grimes Rock produced no evidence of task 

training records for Saldivar. 

ii. Grimes Rock’s argument that the adverse action was not motivated by the 

protected activity 

Grimes Rock also argues that its termination of Saldivar was unrelated to his safety 

complaints. Instead, the operator asserts that it fired Saldivar due to his poor work performance, 

poor attendance, poor attitude, and the damage he caused to company property. 

First, Grimes Rock claims that Saldivar’s poor work performance was one reason for his 

termination. The company points to Saldivar’s disciplinary actions as evidence of his 

unacceptable performance. Management issued the first writeup after Saldivar drove the water 

truck with low coolant and engine oil, risking damage to company equipment. The second writeup 

was issued in the wake of the water truck incident. Grimes Rock argues that Saldivar caused the 

incident by overwatering the road and driving up the slick road in second gear. See Resp. Br. at 

15-16. Rene Garcia issued two additional writeups: one for leaving the transmission fill tube of 

the dozer uncapped, and one for not paying attention while using the backhoe and causing damage 

to the tire. To Grimes Rock, these disciplinary forms stand as documentation of Saldivar’s 

careless performance on the job. 

The alleged performance issues extend beyond those documented on discipline forms. 

Rene Garcia testified that, on several other occasions, Saldivar failed to properly service the 

mine’s mobile equipment. Tr. 475. These instances included failures to replenish hydraulic fluids 

and to clean the air filters. Tr. 475. This testimony was supported by equipment operator Mauricio 

Garcia, who testified that the fluid levels on his dozer were “either way too low or they were way 

over the [proper] amount” after Saldivar had performed the lube service. Tr. 669. 

Second, Grimes Rock points to Saldivar’s poor attendance as a factor in the decision to 

terminate him. Saldivar admitted at hearing that he had been tardy on multiple occasions, and he 

was written up for being four hours late to work on December 12, 2020. Tr. 175; Sec’y Ex. 7. 

When asked about Saldivar’s overall attendance, Melendez said that “[i]t wasn’t good.” Tr. 429. 

44 FMSHRC Page 482
Saldivar missed days at work due to meetings with his probation officer, often with Melendez’s 

permission. Tr. 176-77. According to mine management, these frequent meetings had become 

quite disruptive to Saldivar’s work schedule. Melendez recounted telling Saldivar to have his 

probation officer contact Melendez so that he could relay that Saldivar would “end up losing his 

job due to attendance” if the meetings continued with the same frequency. Tr. 430. Melendez also 

said at hearing that Saldivar’s timecard revealed further attendance issues that went beyond the 

excused absences with his probation officer. Tr. 430. 

Third, the operator cites Saldivar’s poor attitude as a reason for his firing. Melendez 

testified that Saldivar butted heads with other employees. Tr. 409-14. According to Melendez, 

Saldivar did not take criticism well and would act more knowledgeable than his coworkers. Tr. 

409-14. Rene Garcia testified that other employees began to ask him whether anyone else could 

service their equipment because “they did not want to deal with Mr. Saldivar.” Tr. 474. Mauricio 

Garcia told the Court that he stopped asking Saldivar to correct his mistakes because Saldivar got 

so “bothered” if confronted about his errors. Tr. 669. When counseled by management, Saldivar 

“would get upset” and ignore the directives given to him. Tr. 410, 474. While the write-ups and 

the tardiness alone do not support a basis for terminating Saldivar, the testimony of a number of 

witnesses regarding Saldivar’s attitude and inability to get along with other miners is persuasive. 

Finally, Grimes Rock claims that it terminated Saldivar in part due to the damage he 

caused to company property. The company asserts that Saldivar’s carelessness resulted in tire and 

rim damage on the water truck and the backhoe. Other documented performance issues, like 

leaving the transmission fluid uncapped and failing to replenish fluids on mobile equipment, could 

have caused further damage, according to Grimes Rock. Melendez testified that he “hired 

[Saldivar] to make sure that we kept our equipment safe and good, and he was actually costing 

me more money [with] every [piece of] equipment he would touch.” Tr. 432. 

In sum, Grimes Rock has presented evidence rebutting the existence of the discriminatory 

motive behind the adverse action. The Respondent’s burden in making its rebuttal is merely one 

of production. Grimes Rock has introduced legitimate evidence that, if taken as true, would permit 

a factfinder to conclude that it did not discriminate against Saldivar. Accordingly, Grimes Rock 

has satisfied its burden of production and successfully rebutted the presumption of discrimination. 

3. Disposition 

Saldivar established a prima facie case, and Grimes Rock offered evidence in rebuttal. 

The rebuttable presumption of discrimination has dissipated. Now, the only inquiry remaining in 

this case is whether the Secretary has shown by a preponderance of the evidence that Saldivar’s 

engagement in protected activity was a but-for cause of his termination. 

In his brief, the Secretary argues that certain aspects of Grimes Rock’s asserted rationales 

for terminating Saldivar are illegitimate and pretextual. The opportunity to prove pretext is an 

important part of the complainant’s final burden in employment-discrimination cases. The 

complainant “must . . . have an opportunity to prove by a preponderance of the evidence that the 

legitimate reasons offered by the defendant were not its true reasons, but were a pretext for 

discrimination.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (under Title VII 

44 FMSHRC Page 483
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”)).2

 Indeed, “a plaintiff’s 

prima facie case, combined with sufficient evidence to find that the employer’s asserted 

justification is false, may permit the trier of fact to conclude that the employer unlawfully 

discriminated.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148 (2000) (under Title 

VII). 

The Commission has explained that “pretext may be found . . . where the asserted 

justification is weak, implausible, or out of line with the operator’s normal business practices.” 

Sec'y on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990) (internal 

citations omitted). In previous cases, the Commission has outlined the types of evidence that may 

show pretext: a complainant may demonstrate “either (1) that the proffered reasons had no basis 

in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they were 

insufficient to motivate discharge.” Turner, 33 FMSHRC at 1073 (emphasis omitted). 

Here, the Secretary offers three showings of pretext. First, he points to inconsistencies 

among Melendez’s statements about his reasons for terminating Saldivar. In the termination letter, 

Melendez told Saldivar that he was being fired for “damage [to] company property and 

performance issues,” but he did not mention attendance or attitude issues as a motivating factor. 

Sec’y Ex. 15. Then, in a later letter to MSHA, Melendez said “[t]he reason I terminated Alvaro 

was for damaging company property.” Sec’y Ex. 14. These inconsistencies allegedly shed doubt 

upon at least two of the operator’s stated rationales for firing Saldivar. Second, the Secretary argues 

that Melendez’s readiness to hire Saldivar after his first period of employment and, subsequently, 

to provide a positive reference for Saldivar shows management’s satisfaction with Saldivar’s work 

performance. Third, the Secretary asserts that the evidence of disparate treatment, discussed supra, 

demonstrates that two nondiscriminatory rationales are pretextual. 

None of the proffered theories of pretext are compelling. The inconsistencies in Melendez’s 

statements are minor, and they do not necessarily show that Melendez was dishonest. Perhaps 

Melendez should have been more thorough in his statements but failing to do so does not stand as 

evidence of discrimination. Similarly, pretext is not found in Melendez rehiring Saldivar. 

Melendez testified that Saldivar is a skilled welder. Rehiring him based on that performance, or 

even offering a positive reference based on his welding3

, is not inconsistent with firing him for 

poor performance in a different role. Finally, the alleged disparate treatment does not prove pretext. 

The Secretary notes that another Grimes Rock employee, Oscar Nava, also had attendance issues. 

Grimes Rock did not fire Nava for those attendance issues—but Melendez did demote him. 

Further, Nava was not a “similarly situated” employee when compared to Saldivar. Nava worked 

at Grimes Rock for five years and had been promoted multiple times during that tenure. Saldivar, 

2

 The Commission often looks to other federal anti-retaliation legislation like Title VII 

when addressing questions involving the anti-retaliation provision of the Mine Act. See, e.g., 

William Metz v. Carmeuse Lime, Inc., 34 FMSHRC 1820, 1830 (Aug. 2012); Turner 33 FMSHRC 

at 1065-66. 

3

 The evidence supporting the notion that Melendez gave Saldivar a positive reference is 

weak. 

44 FMSHRC Page 484
in contrast, worked for Grimes Rock for just three months and remained at an entry-level position. 

Both parties failed to provide evidence in the record to demonstrate how Grimes Rock routinely 

hires or fires employees, and on what basis. Without such evidence it is difficult to conclude that 

Saldivar was treated differently than others. All of the Secretary’s evidence regarding disparate 

treatment is unpersuasive because it fails to identify, with any specificity, true comparators that 

were treated differently than Saldivar.4 

The Secretary’s limited showing of pretext, particularly evidence regarding disparate 

treatment, cannot support a finding of discrimination on behalf of Saldivar. The Secretary’s case 

rests almost exclusively upon Saldivar’s testimony. While I find Saldivar to be a credible witness, 

the record is simply devoid of other testimonial or physical evidence substantiating Saldivar’s 

claims. I also find Melendez’s testimony to be credible. The two men rarely deviated in their 

recitation of the facts, but instead disagree on how to interpret those facts. The weight of the 

evidence in this case tilts in favor of the interpretation advanced by Melendez and Grimes Rock. 

The mine operator has established a reasonable nondiscriminatory rationale for firing 

Saldivar. His performance issues are well documented in the discipline forms, as well as in 

testimony from his coworkers and supervisors. Grimes Rock has introduced photographs and other 

documentation showing the property damage incurred by Saldivar, and the company has also 

elicited testimony from several mine employees attesting to Saldivar’s bad attitude at work. As for 

attendance, Saldivar admitted to a certain amount of tardiness, and his supervisors all testified to 

additional attendance issues. Given the testimony in the record, I find the attendance issue to be 

pretextual, thrown into the mix to support the allegation that Saldivar was terminated due to his 

performance. However, the other bases raised by Grimes Rock may have played a part in the 

firing. The record supports a conclusion that Saldivar was fired for legitimate reasons. 

By comparison, the Secretary’s case is limited. In many instances, the Secretary’s claim of 

discrimination relies upon uncorroborated witness testimony instead of tangible documentary 

evidence.5

 For example, there is little, if any, evidence beyond Saldivar’s own testimony that 

demonstrates Grimes Rock’s hostility toward his protected activity. 

4

 This includes the Secretary’s argument regarding the paucity of other miners who were 

terminated for performance issues. See Sec’y Br. at 16. Melendez testified that he did fire an 

accountant for poor work performance, see tr. 379, and the Secretary—who bears the burden of 

proof in this case—failed to identify any similarly situated employees whose performance issues 

did not lead to discipline. 

5

 The Secretary argues that it lacks documentary evidence in part because Grimes Rock 

withheld preoperational inspection sheets documenting Saldivar’s complaints. In his brief, the 

Secretary asserts that “[a]s a sanction for [Grimes Rock’s] spoliation of highly relevant evidence, 

the Court should infer that the missing reports reflected Mr. Saldivar’s protected activity of 

complaining about safety issues.” Sec’y Br. at 21. However, I credited Saldivar’s testimony in that 

regard, so there is no need to grant that inference. I accepted it in part due to the operator’s 

continued resistance to cooperate in the case and to provide relevant documents to the Secretary 

as requested. The mine operator’s behavior throughout the case, toward the Court and toward the 

Secretary’s counsel is clearly animus, but not necessarily against Saldivar. 

44 FMSHRC Page 485
I accept the Secretary’s view that Grimes Rock, through its owner, tried to influence 

Saldivar’s subsequent employer by relating that Saldivar had filed a discrimination complaint 

against Grimes Rock and by warning that he may do the same thing to the new employer. However, 

that is not enough to establish animus. The Secretary also characterizes as hostile the issuance of 

the five disciplinary writeups, but those disciplinary actions are more likely attributable to 

Saldivar’s poor performance at work. The Respondent has offered documentation and testimony 

supporting the allegations put forth in those discipline forms. In contrast, the Secretary offers very 

little evidence demonstrating that those writeups are marked by hostility or pretext. 

Finally, the Secretary argues that “Grimes [Rock] should not be able to violate the Mine 

Act by failing to provide the required training and then blame Mr. Saldivar” when his inadequate 

training led to accidents or property damage. Sec’y Br. at 16. The Secretary’s point is well taken. 

The fault for equipment damage should not be laid upon an untrained miner, and the Secretary 

alleges that Grimes Rock consistently neglected to provide its miners with the task training 

mandated by law. Based on my review of the record, the Secretary is likely correct. Unfortunately 

for the Secretary, that is not enough to negate the evidence supporting the operator’s reasons for 

termination. Ultimately, the Secretary has failed to adequately refute the mine’s legitimate 

nondiscriminatory rationale for firing Saldivar. 

This case is a close call. I recognize that the Complainant is at a disadvantage because “it 

is the employer who is in the best position to prove what [it] would have done,” Pasula, 2 

FMSHRC at 2800, but the Secretary must still satisfy his burden to show by a preponderance of 

the evidence that discrimination was a but-for cause of Saldivar’s termination. The evidence 

offered by the Secretary in this case does not satisfy that burden. I find that Saldivar was terminated 

for both protected activity and poor performance; however, the protected activity was not a butfor cause of his firing. 

In conclusion, I find that the Secretary has demonstrated a prima facie case of 

discrimination but has failed to adequately establish that the proffered reasons for terminating 

Saldivar were pretext. The Secretary did not show by a preponderance of the evidence that 

Saldivar’s protected activity was a but-for cause of his termination. Instead, the weight of the 

evidence suggests that Grimes Rock would have terminated Saldivar for legitimate reasons even 

in the absence of his complaints. Therefore, I find that the Secretary has not met the required 

burden of proof pursuant to section 105(c) of the Mine Act. Because the Secretary has not met his 

burden in this case, I need not reach the question of remedy. 

III. ORDER 

Accordingly, it is ORDERED that the complaint of discrimination brought by the 

Secretary of Labor on behalf of Alvaro Saldivar is hereby DISMISSED. The outstanding motions 

44 FMSHRC Page 486
filed by the Respondent in this case are summarily DENIED. The Order of Temporary Economic 

Reinstatement in the related case is terminated. 

 /s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

Distribution: (Electronic and Certified Mail) 

Karla Malagon, U.S. Department of Labor, Office of the Solicitor, 350 S. Figueroa Street, Suite 

370, Los Angeles, CA 90071, malagon.karla@dol.gov

Jessica M. Flores, U.S. Department of Labor, Office of the Solicitor, 350 S. Figueroa Street, 

Suite 370, Los Angeles, CA 90071, Flores.Jessica@dol.gov 

Peter Goldenring, Pachowicz & Goldenring PLC, 6050 Seahawk Street, Ventura, CA 93003, 

peter@pglaw.law 

Mark R. Pachowicz, Pachowicz & Goldenring PLC, 6050 Seahawk Street, Ventura, CA 93003, 

mark@pglaw.law 

Alvaro Saldivar, 1241 Lookout Drive, Oxnard, CA 93035, saldivarwelding@icloud.com 

44 FMSHRC Page 487

ADMINISTRATIVE LAW JUDGE ORDERS
44 FMSHRC Page 488
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th STREET, SUITE 443 

DENVER, CO 80202-2536 

303-844-3577 / FAX 303-844-5268 

June 16, 2022 

 

ORDER GRANTING THE SECRETARY’S MOTION TO ENFORCE ORDER 

DIRECTING TEMPORARY REINSTATEMENT OF MOSES ORTIZ & 

ORDER DENYING RESPONDENT’S MOTION FOR DISMISSAL AND SANCTIONS 

FOR PERJURY 

Before: Judge Manning 

 These matters are before me on an application for temporary reinstatement1 and a 

complaint of discrimination filed by the Secretary of Labor (“Secretary”) on behalf of Moses 

Ortiz pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Mine 

Act”), 30 U.S.C. § 815(c)(2), against Mario Sinacola & Sons Excavating, Inc. and its successors 

(“Sinacola”).

1

 On August 24, 2021, this court issued a Decision Approving Settlement Agreement and 

Order of Temporary Economic Reinstatement (“TR Order”). In lieu of physically reinstating 

Ortiz to his former position at Sinacola, the TR Order made clear the parties jointly agreed Ortiz 

would be temporarily economically reinstated. Under the terms of the Settlement Agreement 

submitted by the parties and approved by the court, Respondent agreed to pay the difference 

between Ortiz’s previous rate of pay at Sinacola and the lesser amount he was earning in a new 

job held at the time the parties filed the settlement agreement. The TR Order incorporated other 

terms of the economic reinstatement, as well as rights and responsibilities of the parties, and 

ordered the parties to comply with such. Notably, the Settlement Agreement explicitly stated it 

was to “remain in effect until a ‘final order’ of the Commission is entered regarding Ortiz’s 

underlying discrimination complaint.” Because the TR Order was not a final disposition of the 

application for temporary reinstatement, I retained jurisdiction over the case. 29 C.F.R. § 

2700.45(e)(4). 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of MOSES ORTIZ, 

 Applicant 

 v. 

MARIO SINACOLA & SONS 

 EXCAVATING, INC. AND ITS 

 SUCCESSORS, 

 Respondent 

 APPLICATION FOR TEMPORARY 

 REINSTATEMENT 

Docket No. CENT 2021-0184-DM 

MSHA Case No. SC-MD-2021-06 

DISCRIMINATION PROCEEDING 

Docket No. CENT 2022-0028-DM 

MSHA Case No. SC-MD-2021-06 

Midlothian Quarry and Plant 

Mine ID: 41-00071 

44 FMSHRC Page 489
On May 5, 2022, the Secretary filed a Motion to Enforce Order Directing Temporary 

Reinstatement of Moses Ortiz (“Sec’y Mot.”) in which he argued that Sinacola had failed 

tocomply with the TR Order. On May 12, Respondent filed a response to the Secretary’s motion 

and its own Requests for Dismissal and Sanctions for Perjury (“Resp. Mot.”). Subsequently, on 

May 24, the Secretary filed a reply to Respondents Request for Dismissal and Sanctions for 

Perjury. (“Sec’y Reply”).2 

SUMMARY OF THE PARTIES’ ARGUMENTS 

 The Secretary, in his motion, asserts that Respondent “failed to comply with the [TR 

Order] . . . to temporarily economically reinstate Moses Ortiz by failing to make payments for 

three (3) pay periods to date.” Sec’y Mot. 1. Accordingly, the Secretary moves the court to 

enforce its own order and require Sinacola to “pay the amount owed for any missed payments 

and continue to make the agreed payments to Mr. Ortiz until a final order is issued in the merits 

case.” Id. at 2. 

Respondent, in its response and request, moves the court to dismiss the underlying 

discrimination case and sanction Ortiz for material perjury and fraud on the Commission. Resp. 

Mot. 1. According to Respondent, Ortiz confessed during a deposition that his case is based on 

retaliation for prior criminal convictions and not on retaliation for safety complaints. Further, 

Ortiz made his only safety complaint to MSHA after he was terminated3

 and he cannot name 

anyone at Sinacola who has been fired for reporting safety concerns. Finally, Respondent argues 

that Ortiz failed to disclose three serious felony convictions on his 2010 job application and that 

Respondent would not have hired Ortiz had it known the truth. Consequently, Respondent, 

citing the “after-acquired evidence” doctrine and the Supreme Court’s decision in McKennon v. 

Nashville Banner Publishing Company, 513 U.S. 352 (1995), argues that Sinacola “cannot be 

forced to pay wages to an ex-employee who would never have been hired in the first place had 

he told the truth, nor can Ortiz be economically reinstated as the Motion to Enforce asks.”4 

Resp. Mot. 3-4. 

The Secretary, in his reply, argues that the “after-acquired evidence” doctrine is not 

applicable to the temporary reinstatement case. While the doctrine “can limit damages awarded 

and will generally render reinstatement and front pay inappropriate[,]” the Court in McKennon

2

 The Secretary’s motion was filed in the temporary reinstatement docket, i.e., CENT 

2021-0184-DM. Respondent filed its response to the Secretary’s motion in the underlying 

discrimination docket, i.e., CENT 2022-0028-DM. Because Respondent also requests that the 

discrimination case be dismissed and sanctions be imposed, I accepted the filing in both the 

temporary reinstatement docket and the discrimination docket. Accordingly, both the temporary 

reinstatement case and discrimination case are captioned on this order. 

3

 Respondent’s response focuses on two alleged safety complaints. First, a safety 

complaint made to MSHA regarding a supervisor allegedly not wearing a seatbelt. Second, a 

safety complaint made to someone not with MSHA regarding a hernia. 

4

 Respondent also argues Ortiz perjured himself during his deposition when he 

mischaracterized his felony convictions as minor misunderstandings. 

44 FMSHRC Page 490
was addressing permanent reinstatement as a remedy after a determination on the merits was 

made, not temporary reinstatement, as is at issue here.5

 Moreover, the Secretary, citing 

McKennon, asserts that even if after-acquired evidence can be considered, Respondent has failed 

to put forth sufficient evidence of wrongdoing of such severity that Ortiz in fact would have been 

terminated on those grounds alone. Sec’y Reply 3. The Fifth Circuit Court of Appeals has held 

that the pertinent inquiry is whether the employee would have been fired upon discovery of the 

wrongdoing, not whether the individual would have been hired in the first instance. Here, the 

only evidence Respondent submitted is an affidavit from its Vice President of Human Resources 

that Sinacola would not have hired Ortiz.6 

The Secretary further asserts that Ortiz’s discrimination complaint was not frivolously 

brought and that Ortiz’s protected activity need not have occurred in the form of a complaint to 

MSHA. According to the Secretary, Ortiz made numerous safety complaints to Respondent and, 

immediately before being terminated, told a member of mine management that “he could have 

contacted MSHA regarding his concerns ‘a long time ago.’” Sec’y Reply. 5. The Commission 

has long recognized that making a complaint to management and asserting that one may exercise 

their right to contact MSHA are both protected activities under the Mine Act.7 Based on the 

MSHA investigator’s findings regarding protected activity, the fact that termination was an 

adverse action under the Act and, given that some of these events occurred within a single 

conversation, there clearly was a nexus. When the Secretary finds that a miner’s discrimination 

complaint is not frivolously brought, the Mine Act requires the Commission to order the 

immediate reinstatement of the miner pending final order on the complaint. 

Additionally, the Secretary argues Respondent continues to harass and retaliate against 

Ortiz. The after-acquired evidence doctrine is well established. Respondent failed to meet its 

burden under the doctrine but nevertheless attempted to bring the convictions before the court to 

prejudice Ortiz. Sec’y Reply. 7. Further, Respondent “habitually refused to comply with the 

. . . [TR Order], having missed payments on at least 10 occasions since the Order was entered.” 

Sec’y Reply 7. Furthermore, despite alleging that Ortiz perpetrated a fraud on the court and 

perjured himself, Respondent presented no evidence of the type of egregious conduct necessary 

to establish fraud and failed to present evidence of any testimony under oath that Ortiz 

contradicted during his deposition. Sec’y Reply 8. 

5

 The Secretary cites the decision of my colleague, Judge Simonton, for the proposition 

that after-acquired evidence is irrelevant and inadmissible in a temporary reinstatement 

proceeding. Sec’y v. Small Mine Dev., 2020 WL 8180380, at *2 (December 18, 2020). 

6

 The Secretary asserts it is clear Respondent would not have terminated Ortiz based on 

the convictions or any information omitted from Ortiz’s employment application because 

Respondent had prior knowledge of that information but did not terminate Ortiz until after he 

lodged a safety complaint and stated he could contact MSHA. 

7

 The Secretary acknowledges that the friction between Ortiz and his supervisor likely 

began when the supervisor became aware of Ortiz’s criminal record in 2014 or 2015. However, 

the Secretary asserts that this history does not form the basis of the suit. 

44 FMSHRC Page 491
Given the above arguments, the Secretary avers there is no evidence the temporary 

reinstatement claim was frivolously brought. Accordingly, the Secretary asks the court to 

enforce the temporary economic reinstatement order of August 24, 2021, and require 

Respondent, in an expedited manner, to pay the amount owed for any missed payments and 

continue making those payments until a final order is issued in the merits case. Finally, the 

Secretary asks that Respondent’s response and request be stricken from the record given that it 

fails to come close to meeting the burden of proving perjury or fraud on the court, and only 

serves to further harass and retaliate against Ortiz. 

DISCUSSION AND ANALYSIS 

Both the temporary reinstatement proceeding, and the discrimination proceeding are 

captioned in this order. It is critical that the parties recognize the difference between these two 

proceedings. While the scope of the discrimination proceeding is broad and addresses the merits 

of the complaint of discrimination, the scope of the temporary reinstatement proceeding was, and 

is, narrow and limited to a determination whether the discrimination complaint was frivolously 

brought. See Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 

(Aug. 1987), aff'd, 920 F.2d 738 (11th Cir. 1990) (“JWR”). Moreover, unlike in a discrimination 

proceeding on the merits, in a temporary reinstatement proceeding a judge “may not resolve 

credibility disputes or make rulings on credibility.” Sec’y of Labor on behalf of Saldivar v. 

Grimes Rock, Inc., 43 FMSHRC 299, 301 (June 2021) (“Saldivar”). 

Although a hearing was not held on the application for temporary reinstatement,8

 the 

record supports that Ortiz’s complaint was not frivolously brought. The application for 

8

 Rather than go to hearing on the application for temporary reinstatement, the parties 

jointly entered into a settlement agreement in which Ortiz, in lieu of actual reinstatement, was 

“economically reinstated.” The Commission addressed economic reinstatement agreements in 

Sec’y of Labor on behalf of Gray v. North Fork Coal Corp. 33 FMSHRC 589 (Mar. 2011) 

(“Gray”), and stated as follows: 

[The operator] confuses the legal principles that apply to back pay 

awards if and when the miner succeeds in his discrimination 

complaint on the merits, with the legal principles governing the 

wholly separate temporary reinstatement proceeding. 

. . . 

[T]he purpose of temporary reinstatement is to put the miner back 

to work as soon as possible so that he or she can resume earning a 

living while the discrimination case is heard. . . . The temporary 

reinstatement provisions contemplate that the miner will provide 

the operator labor in return for wages and benefits. The issue of 

back pay usually does not arise since the miner is not compensated 

for the earlier period of time between termination and the judge's 

order temporarily reinstating him or her. . . . Conversely, if the 

operator chooses to pay the miner while foregoing the miner's 

 (continued...) 

44 FMSHRC Page 492
temporary reinstatement, the special investigator’s sworn declaration, and the Secretary’s 

discrimination complaint allege that in February and April of 2021 Ortiz made safety complaints 

and asserted to mine management his right to contact MSHA with safety concerns.9

 Notably, 

each of those filings allege Ortiz was terminated immediately after asserting his right to contact 

MSHA to mine management.10 The Commission has held that termination eight days after an 

operator gains knowledge of a protected activity can establish a motivational nexus for purposes 

of determining whether a complaint of discrimination is frivolously brought. A&K Earth 

Movers, Inc., 22 FMSHRC 323, 325-326 (Mar. 2000). Here, there is evidence that possibly only 

seconds or minutes elapsed between the time Ortiz asserted his right to contact MSHA and his 

8

 (...continued) 

labor, there is no right for the operator to seek reimbursement from 

the miner should the miner not eventually prevail on his or her 

discrimination claim. 

Consequently, we reject the notion that the considerations which 

shape back pay award amounts, also apply, as a matter of law, to 

the economic reinstatement order before us. Unlike back pay 

awards, Commission judges do not decide the terms of economic 

reinstatement agreements. The agreement which formed the basis 

of the judge's order was arrived at after negotiations between the 

parties. Moreover, we are cognizant of the fact that it was North 

Fork's decision to offer economic reinstatement in lieu of actual 

reinstatement that gave rise to the retroactive pay relief that North 

Fork now seeks to challenge. 

Gray at 592-593. (Internal citations omitted). 

9

 While Respondent does not explicitly argue that only complaints to MSHA can serve as 

protected activity, the Secretary’s reply directly addresses that argument and correctly states that 

protected activity can include, among other things, complaints to mine management and 

assertions by a miner that they may exercise their right to contact MSHA. See e.g., Saldivar 43 

FMSHRC 299, 307 (Safety complaints made to the operator are protected activity), Sec’y of 

Labor on behalf of Coffee v. Txoma Mining, LLC, 40 FMSHRC 615, 625 (Mar. 2018) (ALJ). 

10 The Secretary correctly points out that Ortiz, as a lay person, need only have a “mere 

belief” that he has been discriminated against, and need not know what specifically constitutes 

protected activity in order to trigger the Secretary’s investigation into the complaint in order to 

fully develop the possible claim of discrimination. Sec’y Reply 6 (quoting Hopkins County Coal, 

LLC, 38 FMSHRC 1317 (June 2016). Here, the Secretary’s investigation revealed at least two 

instances of potential protected activity by Ortiz, i.e., reporting the seatbelt issue to mine 

management and informing management that he could contact MSHA with his concerns. 

44 FMSHRC Page 493
termination. Given the temporal proximity of the alleged protected activity and adverse action, a 

nexus appears to exist that supports a determination that the complaint was not frivolous.11 

I find Respondent’s argument regarding after-acquired evidence unavailing and 

inapplicable in the context of temporary reinstatement proceedings. Both parties cite the 

Supreme Court’s decision in McKennon v. Nashville Banner Publishing Company, 513 U.S. 352 

(1995). In McKennon, unlike here, the Court was addressing the impact of the after-acquired 

evidence doctrine on remedies available after a determination on the merits of a discrimination 

complaint. There the Court found that although certain remedies, such as full reinstatement and 

front pay, may not be available to a discriminatee based on after-acquired evidence of 

wrongdoing by the individual, such evidence is not a complete bar to recovery. Here, there has 

been no hearing on the merits of the discrimination complaint and this court has issued only an 

order of temporary economic reinstatement based upon the parties’ jointly submitted Settlement 

Agreement. Given the unique, limited nature of temporary reinstatement proceedings, the Mine 

Act’s direction that miners be immediately reinstated pending final order on the complaint, 30 

U.S.C. § 815(c)(2), and the parties’ joint agreement to economically reinstate Ortiz pending final 

order on the complaint, I agree that any after-acquired evidence of wrongdoing “is irrelevant and 

inadmissible at this temporary reinstatement stage.” Sec’y of Labor v. Small Mine Dev., 2020 

WL 8180380, at *2.12 Sinacola has presented insufficient evidence or legal argument to merit 

overturning the August 24, 2021, Decision Approving Settlement Agreement and Order of 

Temporary Economic Reinstatement. 

With regard to Respondent’s motion to dismiss the discrimination proceeding, I find its 

arguments unavailing. Respondent’s motion would require the court to prematurely weigh 

evidence and make credibility findings. The parties are currently engaged in discovery and 

preparing for hearing. This order is not the appropriate time or place for the court to weigh 

evidence on whether Sinacola discriminated against Ortiz. Rather, during and after the August 2 

hearing, the court will weigh the evidence, make findings of fact and determine whether Ortiz 

was discriminated against and, if so, what the appropriate remedy may be. 

As stated above, Respondent maintains that Ortiz was discharged when it learned that he 

had previously been convicted of serious felonies and that Ortiz agreed with this conclusion 

during his April 8, 2022, deposition. I note that there appears to be a serious dispute of material 

fact between the parties regarding when Respondent became aware of Ortiz’s criminal record. 

11 The “not frivolously brought” standard reflects a Congressional intent that “employers 

should bear a proportionately greater burden of the risk of an erroneous decision in a temporary 

reinstatement proceeding.” JWR, 920 F.2d at 748, n.11. 

12 Although Respondent’s argument involving the after-acquired evidence doctrine fails 

in the context of the temporary reinstatement proceeding, Respondent is free to reassert that 

argument and present evidence at the hearing on the merits after the Secretary has been given an 

opportunity to establish a prima facie case. I note that the Fifth Circuit has held that “the 

pertinent inquiry . . . is whether the employee would have been fired upon discovery of the 

wrongdoing, not whether he would have been hired in the first instance.” Shattuck v. Kinetic 

Concepts, Inc., 49 F.3d 1106, 1108 (5th Cir. 1995). 

44 FMSHRC Page 494
Although Respondent asserts it would not have hired Ortiz had it known of his criminal record, it 

is unclear when Respondent became aware of that record. The Secretary asserts Respondent had 

prior knowledge of the criminal record, yet Ortiz was not terminated when management first 

became aware of the convictions. This dispute of material fact is an issue that must be addressed 

at the hearing on the merits. If Respondent had prior knowledge of the criminal record but failed 

to act on that knowledge, one could argue that a later termination allegedly based on that 

knowledge is pretextual. See JWR, 12 FMSHRC 1521, 1534 (Aug. 1990) (“pretext may be 

found ... where the asserted justification is weak, implausible, or out of line with the operator's 

normal business practices.”); see also Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 

148 (2000) (“a plaintiff's prima facie case combined with sufficient evidence to find that the 

employer's asserted justification is false, may permit the trier of fact to conclude that the 

employer unlawfully discriminated.”) 

Finally, I find that Respondent’s arguments regarding perjury and fraud on the court lack 

merit. I agree with the Secretary’s analysis and find that Respondent has failed to point to 

anything which could meet the high burden of proving a fraud on the court, i.e., an 

“unconscionable plan or scheme which is designed to improperly influence the court in its 

decision.” First Nat’l Bank of Louisville, 96 F.3d 1554, 1573 (5th Cir. 1996). Further, although 

Respondent may take issue with Ortiz’s failure to disclose these convictions on his application 

for employment, Ortiz appears to have been candid about the existence of his criminal record 

when asked about it, under oath, at his deposition. In addition, Ortiz claims that Respondent 

knew of at least one of his convictions for about six years prior to his termination. Based on the 

record developed in these cases to date, I find that it has not been established that Ortiz 

perpetrated fraud on the court. 

ORDER 

The Secretary’s Motion to Enforce Order Directing Temporary Reinstatement of Moses 

Ortiz is GRANTED. Respondent is ORDERED comply with all terms of parties’ settlement 

agreement in the temporary reinstatement case that was approved by this court by order dated 

August 24, 2021. Specifically, Respondent is ORDERED to pay Ortiz the money owed for 

payments under the agreement that were missed as set forth by the Secretary. Such payment 

shall be made as quickly as possible, but by no later than June 24, 2022. Further, Respondent is 

ORDERED to continue making payments under the terms of the settlement agreement as 

44 FMSHRC Page 495
ordered by this court until such time that a final order is issued in the discrimination case on the 

merits. Respondent’s Requests for Dismissal and Sanctions for Perjury is DENIED.

13

 /s/ Richard W. Manning 

 Richard W. Manning 

 Administrative Law Judge 

Distribution ( First Class Mail & email): 

Lacee Caitlyn Eakins, U.S. Department of Labor, Office of the Solicitor, 525 Griffin Street, Suite 

501, Dallas, TX 75202 (eakins.lacee.c@dol.gov) 

Harold Jones, Polsinelli, PC, 2950 N. Harwood Street, Suite 2100, Dallas, Texas 75201 

(hdjones@polsinelli.com) 

13 The Secretary, in his reply, requested that Respondent’s response be stricken from the 

record. The Secretary, in making this request, appears concerned that Ortiz will be prejudiced if 

the convictions are before the court. Given that I sit as the finder of fact in this matter, the risk of 

prejudice due to the existence of the convictions in the record is minimal at most. Accordingly, I 

decline to strike the Respondent’s response from the record. 

44 FMSHRC Page 496
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th ST., SUITE 443 

DENVER, CO 80202-2500 

OFFICE: (303) 844-5266 / FAX: (303) 844-5268 

June 17, 2022 

ORDER GRANTING SECRETARY’S MOTION TO ENFORCE 

 

This case is before me upon an application for temporary reinstatement filed pursuant to 

section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. 

(“Mine Act”), and 29 C.F.R. § 2700.45 et seq. The Secretary of Labor filed the application on 

behalf of Alvaro Saldivar seeking his reinstatement as a lube and water truck/equipment operator 

at the Grimes Rock mine pending the final disposition of Saldivar’s discrimination complaint. 

A hearing was held on May 11, 2021, and one week later this Court issued a Decision and 

Order of Reinstatement (“Reinstatement Order”) wherein Grimes Rock was ordered to reinstate 

Saldivar. Grimes Rock appealed under Procedural Rule 45(f), and the Commission affirmed the 

Reinstatement Order on June 11, 2021. While the appeal was pending, the parties independently 

agreed for Saldivar to be economically reinstated in lieu of actual reinstatement. The Court 

approved the agreement in its Decision Approving Settlement and Order of Temporary Economic 

Reinstatement (“Economic Reinstatement Order”) issued on May 28, 2021. 

Since the issuance of those orders, the Respondent has filed numerous motions in an effort 

to terminate or pause its payment obligations. Most recently, the Respondent has filed a Renewed 

Motion to Toll and Terminate Economic Temporary Reinstatement Order in which it argues that 

its obligation should be suspended altogether due to Saldivar’s changed circumstances following 

the hearing in this case. As explained in the Court’s January 7, 2022 Order Denying Respondent’s 

Motion to Toll Economic Reinstatement, the pertinent case law does not support the Respondent’s 

contention. Therefore, its payment obligations will not be suspended on the bases set forth in the 

motion. 

Meanwhile, the Secretary has submitted a related filing, a Motion to Enforce Court 

Ordered Settlement Agreement. The Secretary alleges that Grimes Rock is skirting its obligation 

to make Saldivar whole pending disposition of his discrimination case. The settlement agreement 

reached by the parties provided that Saldivar would receive the amount of his wages at Grimes 

Rock minus the amount he was making at his then-employer Wayne J. Sand & Gravel Inc. The 

agreement was silent as to what would happen if he moved on from that position, and the 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

on behalf of ALVARO SALDIVAR, 

 Complainant, 

 v. 

GRIMES ROCK, INC., 

Respondent. 

 APPLICATION FOR 

 TEMPORARY REINSTATEMENT 

 Docket No. WEST 2021-0178 

 

 

 Mine: Grimes Rock, Inc. 

 Mine ID: 04-05432 

44 FMSHRC Page 497
Respondent continued paying the diminished amount even after Saldivar left Wayne J. Sand & 

Gravel Inc. and was unemployed.

The purpose of temporary reinstatement, as codified in the Mine Act, is “to put the miner 

back to work as soon as possible so that he or she can resume earning a living while the 

discrimination case is heard.” North Fork Coal Corp., 33 FMSHRC 589, 592 (Mar. 2011). The 

Reinstatement Order in this case was issued to accomplish this goal for Saldivar. The later 

Economic Reinstatement Order simply “described how the parties proposed to implement relief 

ordered by the judge pursuant to the Mine Act.” Id. Accordingly, I cannot “ignore that statute in 

determining the construction, application, and effect” of the Economic Reinstatement Order and 

the agreement between the parties incorporated within it. Id. 

The Economic Reinstatement Order was issued in the shadow of the initial Reinstatement 

Order, which mandated full and total reinstatement for Saldivar at his previous rate of pay. I 

approved the parties’ settlement agreement insofar as it adequately made Saldivar whole while 

his discrimination case was pending. Ambiguity in the agreement must be interpreted to further 

the goal of the Mine Act and of the original Reinstatement Order. Obligations under the Economic 

Reinstatement Order can change when circumstances change, as evidenced by the tolling of the 

operator’s obligation upon Saldivar’s unavailability. See Order Granting Motion to Toll 

Temporary Reinstatement (April 19, 2022). 

Accordingly, I find that the Respondent is obligated to pay Saldivar the full amount 

ordered in the original Reinstatement Order offset by his pay from other employers for the period 

elapsed between May 18, 2021 and June 17, 2022, minus any periods of unavailability. The 

Secretary has agreed in his motion that those periods of unavailability include August 6 through 

November 14, 2021 and March 30 through May 17, 2022. Grimes Rock is not responsible for 

compensating Saldivar while he was unavailable during those periods of time. The company has 

argued in many repetitious filings that it is not responsible to pay Saldivar during his times of 

unavailability, and the Secretary has agreed to that assertion. In his motion seeking pay for 

Saldivar, the Secretary lists, in detail, the times Saldivar was available or unavailable for work, 

as well as the times that Saldivar mitigated the amount owed with alternative employment. Grimes 

Rock responded to the Secretary’s motion with some information about payments made to 

Saldivar, but did not supply any facts to dispute the times and amounts set forth by the Secretary. 

Hence, there are no facts in the record that contradict Saldivar’s availability to work for all times 

outside of the two above-listed periods of unavailability. If the Respondent had any factual

information refuting the Secretary’s calculations of economic reinstatement, it has had ample time 

to supply those facts. Grimes Rock files incessant motions, often duplicative and irrelevant, but 

nonetheless has had every opportunity to supply facts instead of conjecture in its constant filings. 

Grimes Rock claims that it should be entitled to a hearing on the issue of missed pay, 

asserting that it has the right to question whether Saldivar has been looking for work. Here again, 

Grimes Rock misunderstands the nature of temporary reinstatement. Instead of barraging the 

Court with countless “renewed” motions, the Respondent should take the time to understand the 

law, and to allow the Court time to address the important and underlying issue of discrimination. 

Every minute spent reading and digesting these tedious motions only sets back the time the Court 

44 FMSHRC Page 498
has to issue a final decision in this case. Accordingly, the Respondent’s motions to terminate the 

temporary reinstatement and its motion for a hearing are hereby denied. 

WHEREFORE, the Secretary’s Motion to Enforce Court Ordered Settlement Agreement 

is GRANTED. The Respondent is ORDERED to pay Saldivar the full wages as ordered in the 

Reinstatement Order during the periods of his availability to work between May 18, 2021 and 

June 17, 2022, offset by his wages earned from alternative employment during that period. The 

Respondent shall pay $9,723.081

 that is past due for the period before May 17, 2022, and is further 

obligated to pay a gross total of $2,810.862 for the period between May 17 and June 17, 2022. 

Future payment obligations under the Economic Reinstatement Order are hereby 

TERMINATED as of this date. The Respondent’s renewed motion is DENIED. 

 /s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

1

 The Secretary does not allege nonpayment before November 8, 2021. Calculations are 

based on the table below. Information in the table comes from both parties’ submissions in this 

case. The difference between the final amounts owed here and in the Secretary’s motion is 

accounted for by the April 1 check, as included in the Respondent’s response. 

Pay Period 

Begins With Amount Due Amount Paid Amount Owed

11/8/2021 $ 1,583.26 $ 1,068.39 $ 514.87 

11/22/2021 $ 3,166.53 $ 2,136.78 $ 1,029.75 

12/6/2021 $ 3,166.53 $ 2,136.78 $ 1,029.75 

12/20/2021 $ 3,166.53 $ 2,136.78 $ 1,029.75 

1/3/2022 $ 3,166.53 $ 2,136.78 $ 1,029.75 

1/17/2022 $ 3,166.53 $ 2,136.78 $ 1,029.75 

1/31/2022 $ 1,250.66* $ 1,250.66 $ 0.00 

2/14/2022 $ 3,166.53 $ 1,250.66 $ 1,915.87 

2/28/2022 $ 2,616.53* $ 2,136.78 $ 479.75 

3/14/2022 $ 3,166.53 $ 2,136.00 $ 1,030.53 

3/28/2022 $ 633.31 $ 0.00 $ 633.31 

TOTAL $ 28,249.47 $ 18,526.39 $ 9,723.08 

* Periods of mitigation. 

2

 This figure was calculated by subtracting the wages from Saldivar’s new employment 

(prorated for 22 workdays) from his previous wages from Grimes Rock (prorated for 23 days of 

availability). 

44 FMSHRC Page 499
Distribution: (Electronic Mail and Certified Mail) 

Karla Malagon, U.S. Department of Labor, Office of the Solicitor, 350 S. Figueroa Street, Suite 

370, Los Angeles, CA 90071, malagon.karla@dol.gov 

Jessica M. Flores, U.S. Department of Labor, Office of the Solicitor, 350 S. Figueroa Street, 

Suite 370, Los Angeles, CA 90071, Flores.Jessica@dol.gov 

Peter Goldenring, Pachowicz & Goldenring PLC, 6050 Seahawk Street, Ventura, CA 93003, 

peter@pglaw.law 

Mark R. Pachowicz, Pachowicz & Goldenring PLC, 6050 Seahawk Street, Ventura, CA 93003, 

mark@pglaw.law 

Alvaro Saldivar, 1241 Lookout Drive, Oxnard, CA 93035, saldivarwelding@icloud.com 

44 FMSHRC Page 500
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX 202-434-9949 

June 22, 2022 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

PERRY COUNTY RESOURCES, 

 Respondent 

 CIVIL PENALTY PROCEEDING(S) 

Docket No. KENT 2022-0024 

A.C. No. 15-19015-546383 

Mine: E4-2 

 

ORDER 

Before the Court is the Secretary’s Motion to Approve Settlement of the citations and 

order involved in this matter. The parties move to modify one of the citations, as stated below. 

The penalty would be reduced accordingly, from the original assessed amount of $1,470.00 to

$1,204.00. 

Citation/Order 

No. 

Originally 

Proposed 

Assessment 

Settlement 

Amount Modification 

KENT 2022-0024 

9282163 

 $302.00 $302.00 Admitted violation of 30 

C.F.R.§75.380(d)(1) involving primary 

escapeway on 1 West Mains 

No modification, paid as assessed

9282162 

 $336.00 $336.00 Admitted violation of 30 

C.F.R.§75.202(a), also involving primary 

escapeway on 1 West Mains 

No modification, paid as assessed but 

104(b) order issued and not in the record

9282123 

 $530.00 $264.00 Modified to “Low” negligence, 50% 

penalty reduction 

Yet another escapeway related violation, 

this time involving the secondary 

escapeway – directional lifeline not 

maintained

44 FMSHRC Page 501
9282125 

 $302.00 $302.00 Admitted violation of 30 C.F.R. §75.1722 

moving machine part tailpiece guard not 

maintained 

No modification, paid as assessed

Total $1,470.00 $1,204.00 18% Total Penalty Reduction 

 The Court reviewed the Motion and the draft Order submitted by the Secretary. Upon 

doing so, a problem was revealed. The record for this docket is not complete because the official 

record for Citation No. 9282162 is missing the documents regarding a section 104(b) order 

issued in connection with that citation. The Secretary may not elect to hide official documents in 

connection with Mine Act enforcement actions from public view. 

 

Before addressing the missing section 104(b) order, it is necessary to step back and 

examine the underlying section 104(a) citation. Citing a violation of 30 C.F.R. §75.202(a), that 

standard, titled “Protection from falls of roof, face and ribs,” requires that “[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 and coal or rock bursts.” 30 C.F.R. 

§75.202(a). 

 The MSHA inspector issued the Citation, No. 9282162, on October 25, 2021, and 

informed under the condition or practice section that “[t]he roof bolt plates are missing, due to 

rusting, on several roof bolts along the primary escapeway entry on the 1 West Mains. The 

missing plates extend from crosscut #5 to crosscut #22 in various locations. This condition 

exposes miners to hazards of roof fall dangers. Draw rock has fallen into the roadway in these 

locations. The weekly examiner travels this area one time a week.” (emphasis added). 

 In his evaluation, the Inspector marked the injury as reasonably likely to occur, resulting 

in lost workdays or restricted duty. Accordingly, he listed the violation as “significant and 

substantial.” The negligence was marked as “moderate.” Though originally the inspector marked 

the termination of the violation to be due the next day, October 26th, thereafter the operator 

requested additional time to abate the violation for “spot bolt[ing] the roof in the cited location,” 

with the delay needed to “get[] the bolt machine to the area.” The inspector granted the 

additional time, with the new termination date of October 29, 2021 by 3 p.m. 

 The record does not reveal whether the extended termination date was met, though one 

may presume it was not, because Exhibit A for this docket reveals that a section 104(b) order 

was issued. It is that information which is missing from the record and about which the Secretary 

has refused to supply it. The Court requested that the Secretary supply the missing documents 

related to the section 104(b) order. The Secretary’s non-attorney representative, a conference and 

litigation representative, (“CLR”), Gary W. Oliver, refused to supply the missing documentation. 

In an email, Mr. Oliver stated “[t]he (b) order requested is not related to the single violation 

modified in this settlement, Citation No. 9282123. The underlying violation to the (b) order, 

Citation No. 9282162 has been affirmed and as reflected to the Exhibit A, the good faith 

abatement discount was not given. Therefore there is no compromise of penalty for Citation No. 

9282162 requiring the court’s approval pursuant to Section 110(k). The Secretary requests an 

44 FMSHRC Page 502
order approving or denying the motion to approve settlement as filed.” E-mail from Gary W. 

Oliver, CLR, MSHA (May 31, 2022). 

The Court responded that it did not see the matter as the CLR did, informing that “each 

citation/order, being part of the docket, is within [the Court’s] authority to conduct an informed 

review. [The Court added] that it doesn’t speak well of MSHA to hide information under cover 

of a settlement. As [the Court] told [the CLR] in an earlier email today, the order is part of the 

public record. It should have been in the official record, yet it is not there. If [the CLR] do[es] 

not want the order to see the light of day, [the Court] think[s] that is an unwise course of action 

as the representative charged with protecting the safety and health of miners. As former Supreme 

Court Justice Louis Brandeis stated: ‘sunlight is said to be the best of disinfectants.’ 

If you refuse to comply, [the Court] will have no choice but to file a FOIA request and in [the 

Court’s] ruling on the motion to approve settlement [it would have] to take note of the agency’s 

unwillingness to provide public record information for this admitted violation.” June 14, 2022 

email from the Court to the parties. 

Thereafter, on June 13, Emily Toler Scott, an attorney for the Secretary, entered her 

appearance.1

DISCUSSION 

 The Court does not believe that the fact a violation is paid in full, with no modifications 

made to the issuing inspector’s evaluation, is the end of the matter. The principle behind this 

view is very basic, in carrying out its review responsibilities under 30 U.S.C. §820(k), the Court 

is obligated to be fully informed about the circumstances surrounding the issuance of a citation 

or an order. Citation No. 9282162 is part of this docket, but the documentary record concerning 

this admitted violation is incomplete. This is because a section 104(b) order was issued by the 

inspector in connection with that Citation, No. 9282162. The Secretary may not decide to 

selectively secrete such information from the Court, the public and especially from the miners it 

is charged to protect. From this Court’s perspective, such a stance is inimical to the spirit of the 

Mine Act. 

A Section 104(b) order is an important feature of the Mine Act. Section 104(b) of the 

Mine Act states: 

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

representative of the Secretary finds (1) that a violation described in a citation 

issued pursuant to subsection (a) has not been totally abated within the period of 

time as originally fixed therein ... and (2) that the period of time for abatement 

should not be further extended, he shall determine the extent of the area affected by 

the violation and shall promptly issue an order requiring the operator of such mine 

or his agent to immediately cause all persons, except those persons referred to in 

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

1 On behalf of the Secretary, on June 13, 2022, Attorney Toler Scott filed a Supplemental 

Motion to Approve Settlement or Motion to Certify for Interlocutory Review. That motion will 

be addressed in a separate order. 

44 FMSHRC Page 503
until an authorized representative of the Secretary determines that such violation 

has been abated. 

30 U.S.C. § 814(b). 

As the Commission has noted, such orders have significance in their own right. It has 

observed that: 

First of all, section 105(a), by its terms, does not distinguish between the different 

types of orders that can be issued under section 104. Absent any language in the 

statute suggesting that the Secretary cannot propose a penalty in connection with a 

section 104(b) order, we will not interpret the phrase “order under section 104” in 

section 105(a) to exclude section 104(b) orders. 

Secondly, contrary to her claim, the Secretary may indeed assess a separate 

penalty for the failure to abate a violation. Section 105(b)(1)(A) of the Mine Act 

provides in pertinent part: 

If the Secretary has reason to believe that an operator has failed to correct a 

violation for which a citation has been issued within the period permitted for its 

correction, the Secretary shall notify the operator by certified mail of such failure 

and of the penalty proposed to be assessed under section 110(b) by reason of such 

failure and that the operator has 30 days within which to notify the Secretary that 

he wishes to contest the Secretary’s notification of the proposed assessment of 

penalty.... 30 U.S.C. § 815(b)(1)(A). Consequently, section 110(b) of the Act and 

MSHA’s regulations authorize the Secretary to assess steep daily penalties. See 30 

U.S.C. § 820(b); 30 C.F.R. § 100.5(c) (“Any operator who fails to correct a 

violation for which a citation has been issued under section 104(a) of the Mine 

Act within the period permitted for its correction may be assessed a civil penalty 

of not more than $6,500 for each day during which such failure or violation 

continues.”). 

 Moreover, the fact that a withdrawal order has been issued increases the 

likelihood that such a penalty will be assessed. The legislative history of the Mine 

Act states that under section 105(b)(1)(A), like under section 105(a): 

[T]he Secretary is to similarly notify operators and miners’ representatives

when he believes that an operator has failed to abate a violation within the 

specified abatement period. In most cases, a failure to abate closure order will 

have been issued pursuant to Section [104(b)]. The notice of proposed penalty to 

operators in such cases shall state that a [104(b)] order has been issued and the 

penalty provided by Section [110(b)] of the Act shall also be proposed. This 

penalty shall be proposed in addition to the penalty for the underlying violation 

required by Section [110(a)] of the Act. S. Rep. No. 95-181, at 34-35 (1977), 

reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative 

History of the Federal Mine Safety and Health Act of 1977, at 622-23 (1978). 

In addition, even if no separate penalty for failure to abate a violation is assessed, 

the failure to abate allegation upon which a section 104(b) withdrawal order rests, 

44 FMSHRC Page 504
if established, increases the amount of the penalty that is ultimately assessed for 

the underlying violation. As Judge Zielinski recognized in his first decision, ‘the 

demonstrated good faith of the person charged in attempting to achieve rapid 

compliance after notification of a violation is one of the factors that the 

Commission must consider in fixing the amount of a civil penalty.’ 28 FMSHRC 

at 413 (quoting section 110(i) of the Mine Act, 30 U.S.C. § 820(i)). Thus, the 

sanction for a failure to abate is not only a withdrawal order, but, likely, a higher 

penalty when the Secretary eventually assesses a penalty for the original violative 

condition that allegedly was not abated in a timely fashion. See NAACO Mining 

Co., 9 FMSHRC 1541, 1545 (Sept. 1987) (‘Under sections 104(b) and 110(b), if 

the operator does not correct the violation within the prescribed period, the more 

severe sanction of a withdrawal order is required, and a greater civil penalty is 

assessed.’). 

UMWA v. Maple Creek Mining, 29 FMSHRC 583, 592-594 (July 2007) (emphases added). 

 Per the above decision, the Commission recognized the independent importance of 

104(b) orders may be the subject of a penalty in their own right, citing section 104(b)(1)(A).2 The 

legislative history, as also cited by the Commission, makes this plain: “[t]he notice of proposed 

penalty to operators in such cases shall state that a [104(b)] order has been issued and the 

penalty provided by Section [110(b)] of the Act shall also be proposed. This penalty shall be 

proposed in addition to the penalty for the underlying violation required by Section [110(a)] of 

the Act.” Id. at 593. (emphases added).

Though no additional reasons are needed to require disclosure of the (b) order in this 

matter, the record does not reveal if the Secretary met his obligation to notify the miners’ 

representatives when, as here, he believed that an operator has failed to abate a violation within 

the specified abatement period. 

This Court is well aware that its review of settlements is presently cabined within the 

terms of the Commission’s decisions in The American Coal Co., 40 FMSHRC 983 (Aug. 2018) 

(“AmCoal”) and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 2018) and that under those 

decisions the Court’s review role has become statistically perfunctory.3 However, there is still an 

obligation and duty to examine each citation and order within a submitted docket, even if the 

citation is not contested and paid as originally assessed. The responsibility to ensure that there is 

2 In that connection, as noted above, the Commission observed that in circumstances of 

such failures, the Secretary is to notify the operator of such failure and of the penalty proposed to 

be assessed under section 110(b) by reason of such failure. Under such circumstances the 

Secretary may assess steep, daily, penalties. Those penalties may now be up to $8,101.00 per 

day. 30 C.F.R. Part 100.5(c) (2021). 

 3 As Commission Chairman Arthur Traynor and Commissioner Mary Lu Jordan have 

noted, judges applying this precedent are able to approve 99.96% of settlement motions 

submitted for their review. See AmCoal I, 38 FMSHRC at 1977 n.7 (noting that in a five-year 

period from approximately 2011 to 2016, Commission Judges approved 38,501 settlements and 

denied only 17); Hopedale Mining, 42 FMSHRC 589, 604, n.2 (Aug. 2020) (Commissioners 

Jordan and Traynor, dissenting).

44 FMSHRC Page 505
a complete record is separate and apart from, and not mutually exclusive to, the review of 

violations that have settled, whether such settlements are for the full amount proposed or some 

lesser amount.4 

 Frankly, the Court is at a loss to understand why the Secretary of Labor is not in full 

support of providing the full record of the enforcement actions taken in connection with an 

admitted 104(a) citation. In this matter that involves hiding the inspector’s issuance of a 104(b) 

order in connection with that citation. The apparent decision to secrete such information from the 

Court, the public and especially from the miners it is charged to protect is perplexing and at odds 

with the admonition from several federal courts invoking Justice Louis D. Brandeis’ remark that 

“Sunlight is said to be the best of disinfectants.” See, for example, Argus v. U.S. Dept 

Agriculture, 740 F.3d 1172 (8th Cir. 2014), wherein Argus invoked the federal law meant to 

bring disclosure sunlight to the government bureaucracy, in its request to see spending 

information from the U.S. Department of Agriculture under the Freedom of Information Act, 5 

U.S.C. § 552. To the same effect as the Secretary has done here, the Department of Agriculture, 

with little explanation, refused disclosure. Reversing the lower court’s determination that the 

information sought was exempt from disclosure, the Eighth Circuit took note of Justice Louis D. 

Brandeis’ remark about the disinfecting benefit of sunlight. Id. at 1173, citing Other People’s 

Money 92 (1914). 

 For these reasons, the Court ORDERS the Secretary to disclose all documents pertaining 

to the issuance of the section 104(b) order associated with Citation No. 9282162. 

 /s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

Emily Toler Scott, Esq., Acting Counsel for Appellate Litigation, U.S. Department of Labor 

Office of the Solicitor, Division of Mine Safety & Health, 201 12th Street South, Suite 401 

Arlington, VA 22202, scott.emily.t@dol.gov 

Gary W. Oliver, Conference & Litigation Representative, U.S. Department of Labor, MSHA 

3837 S. US Hwy 25E, Barbourville, KY 40906, oliver.gary@dol.gov 

Gregory Q. Jensen, Perry County Resources, LLC, P.O. Box 606 Fishers, IN 46038, 

GQJ@AmericanResourcesCorp.com 

4 The 104(b) Order, presently hidden from the record, is of additional concern because 

five minutes after issuing Citation 9282162, the inspector issued another Citation, No. 9282163, 

citing a separate safety hazard in the same escapeway.

44 FMSHRC Page 506