February 2012 

TABLE OF CONTENTS 

COMMISSION DECISIONS AND ORDERS 

2-15-2012 

2-15-2012 

2-27-2012 

CONSHOR MINING, LLC 

NORTH AMERICAN DRILLERS, LLC 

FARRELL-COOPER MINING COMPANY 

KENT 2008-562 

LAKE 2008-2-R 

CENT 2009-834 

Page 349 

Page 352 

Page 366 

2-27-2012 TWIN RIDGE DEVELOPMENT, INC. KENT 2012-66 Page 369 

2-27-2012 

2-29-2012 

2-29-2012 

BIG RIDGE, INC. 

E.R. JAHNA INDUSTRIES, INC. 

ALVIN J. COLEMAN & SON, INC. 

LAKE 2011-699-R 

SE 2010-780-M 

YORK 2010-77-M 

Page 372 

Page 375 

Page 378 

ADMINISTRATIVE LAW JUDGE DECISIONS 

2-01-2012 SECRETARY OF LABOR o/b/o 

RICHMOND TEDDY JENKINS vs. 

CHIEFTAIN SAND AND PROPPANT, LLC 

CENT 2012-254-DM Page 381 

2-06-2012 SECRETARY OF LABOR o/b/o 

CHUCK E. MOSBY vs. MULZER 

CRUSHED STONE, INC. 

LAKE 2012-261-DM Page 391 

2-07-2012 

2-08-2012 

TITAN CONSTRUCTORS, INC. 

SECRETARY OF LABOR o/b/o 

LANCE CARTER vs. KINO 

AGGREGATES, INC., and 

NOBLE PLANT 

WEST 2010-53-M 

WEST 2010-1400-DM 

Page 403 

Page 417 

2-10-2012 

2-13-2012 

2-14-2012 

2-21-2012 

2-27-2012 

2-29-2012 

BLACK BEAUTY COAL COMPANY 

WILLIAMS BROS. COAL CO., INC. 

OIL-DRI CORPORATION OF GEORGIA 

EUREKA ROCK, LLC 

EMERALD COAL RESOURCES, LP 

BLACK PANTHER MINING, LLC 

LAKE 2008-378-R 

KENT 2010-544 

SE 2008-793-M 

WEST 2010-73-M 

PENN 2011-79 

LAKE 2011-34 

Page 436 

Page 451 

Page 458 

Page 476 

Page 482 

Page 498 

i 
ADMINISTRATIVE LAW JUDGE ORDERS
 

2-15-2012 TODD DESCUTNER WEST 2011-523-DM Page 517 

 vs. NEWMONT USA LIMITED 

2-28-2012 THE AMERICAN COAL COMPANY LAKE 2009-35 Page 521 

2-29-2012 SPIRO MINING, LLC CENT 2011-1193 Page 526 

ii 
Review was granted in the following case during the month of February 2012: 

Secretary of Labor, MSHA v. Excel Mining, LLC., Docket No. KENT 2009-1368. (Judge 

Melick, December 27, 2011) 

Jim Walter Resources, Inc., v. Secretary of Labor, MSHA, Docket Nos. SE 2011-477-R, 

SE 2011-478-R. (Judge Moran, January 3, 2012) 

Newmont USA Limited v. Secretary of Labor, MSHA, Docket Nos. WEST 2010-652-RM, 

(Judge Lewis, January 5, 2012) 

Secretary of Labor, MSHA v. State of Alaska, Department of Transportation, Docket No. 

WEST 2008-1490-M. (Judge Feldman, January 10, 2012) 

Review was denied in the following cases during the month of February 2012: 

Secretary of Labor, MSHA v. Excel Mining, LLC., Docket Nos. KENT 2008-1481-R, KENT 

2009-33. (Judge Gill, January 5, 2012) 

Secretary of Labor, MSHA v. Mach Mining, LLC., Docket No. LAKE 2009-495, et al. 

(Judge Manning, January 18, 2012) 

iii 
iv
 
COMMISSION DECISIONS AND ORDERS
 
34 FMSHRC Page 348
 

 

 

34 FMSHRC Page 349

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

February 15, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: 

v. : Docket No. KENT 2008-562 

: Docket No. KENT 2008-782 

CONSHOR MINING, LLC : 

: 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006). On January 19, 2012, Administrative Law Judge Jerold Feldman issued a 

Certification of Interlocutory Ruling pursuant to Commission Procedural Rule 76, 29 C.F.R. 

§ 2700.76(a)(1)(i). In his order, the judge certified for interlocutory review by the Commission 

his ruling in his Order of November 28, 2011, that a violation that is not attributable to reckless 

conduct may not be deemed flagrant under 30 U.S.C. § 820(b)(2) based on the operator’s history 

of prior similar violations. Unpublished Order at 2-3 (Jan. 19, 2012). 

Commission Rule 76(a) provides that interlocutory review is a matter of sound discretion 

of the Commission, and that the Commission may grant interlocutory review upon a 

determination that the judge’s interlocutory ruling involves a controlling question of law and 

immediate review will materially advance the final disposition of the proceeding. 29 C.F.R. 

§ 2700.76(a). 
 

34 FMSHRC Page 350

Upon consideration of the judge’s certification, we hereby grant review of the judge’s 

order of November 28, 2011, with regard to the issue of whether a violation not deemed 

attributable to reckless conduct may be deemed flagrant under 30 U.S.C. § 820(b)(2) based on 

the operator’s history of prior similar violations. Conshor Mining, LLC and the Secretary of 

Labor are hereby ordered to file initial briefs on or before 30 days from the date of this order. 

Response briefs by both parties will be due 30 days following service of the last initial brief. 

Initial briefs shall not exceed 35 pages; response briefs shall not exceed 25 pages. Reply briefs 

will not be filed. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 
 

34 FMSHRC Page 351

Distribution:

Jonathan R. Ellis, Esq. 

Steptoe & Johnson, PLLC 

Eighth Floor, Bank One Center 

P.O. Box 1588 

Charleston, WV 25326-1588 

Jeffrey K. Phillips, Esq. 

Steptoe & Johnson, PLLC 

1010 Monarch Street, Suite 250 

Lexington, KY 40591-0810 

Christian P. Barber, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

618 Church Street, Suite 230 

Nashville, TN 37219-2456 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Administrative Law Judge Jerold Feldman 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 
 

 

 

34 FMSHRC Page 352

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

February 15, 2012 

SECRETARY OF LABOR :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 :

 : Docket Nos. LAKE 2008-2-R 

v. : LAKE 2008-98 

:

NORTH AMERICAN DRILLERS, LLC : 

Before: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners 

DECISION 

BY: Jordan, Chairman; Duffy and Young, Commissioners 

These consolidated contest and civil penalty proceedings arise under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”). The 

Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued a citation to 

North American Drillers, LLC (“North American”) alleging a violation of the company’s shaft 

sinking plan when the operator used a non-permissible pump to remove water from a shaft.1 

The Secretary of Labor subsequently vacated the citation and filed a motion to dismiss the 

penalty and contest proceedings. North American filed an opposition to the Secretary’s motion 

and requested declaratory relief regarding whether dewatering an otherwise completed mine 

shaft constitutes “excavation” under 30 C.F.R. § 77.1914(a) in violation of the plan’s terms. 

Administrative Law Judge Gary Melick granted the Secretary’s motion and did not address 

North American’s request for declaratory relief. 

North American filed a petition for discretionary review challenging the judge’s 

dismissal and his failure to grant or consider its request for declaratory relief. It requested that 

the Commission grant declaratory relief in its favor. We granted North American’s petition for 

review. For the reasons stated herein, we affirm the judge’s decision. 

1

 “Permissible mine equipment” is defined as equipment that has been formally approved 

by MSHA after having passed inspections, the explosions test, and other requirements specified 

by it. See Am. Geological Institute, Dictionary of Mining, Mineral, and Related Terms 399 

(2d ed. 1997). 

Ex. 5 Deliberative
34 FMSHRC Page 353

I.
 

Factual and Procedural Background
 

North American is a contractor specializing in large diameter shaft drilling and 

construction for various commercial industries, including coal mining. On January 8, 2007, 

North American submitted a shaft sinking plan to MSHA to construct the Flannigan Portal 

Ventilation Shaft at American Coal Company’s Galatia Mine in Harrisonburg, Illinois. PDR at 

2; S. Br. at 2. After receiving MSHA approval, North American began construction of the shaft 

in March 2007. Id. 

North American employs the “blind drilling” method of excavation, which differs 

significantly from the conventional “shaft construction” method. PDR at 2; N. Am. Opp’n to 

Mot. to Dismiss at 4. The latter requires drilling, shooting with explosives, and removing 

material through a mucking process. PDR at 2; N. Am. Opp’n at 4, Ex. E, at 38. The 

conventional method also requires that individuals work in the shaft during excavation. PDR at 

2; N. Am. Opp’n at 4, Ex. E, at 38-39. In contrast, blind drilling consists of drilling, lining, and 

grouting while the shaft is filled with water, and is accomplished without the use of blasting and 

drilling. PDR at 2; N. Am. Opp’n at 4-6, Ex. E, at 30-35. Because all of the work is performed 

from the surface, blind drilling eliminates the need for individuals to work in the shaft. N. Am. 

Opp’n at 4, Ex. E, at 31. The final step of the process entails pumping water out of the shaft 

using a submersible pump. N. Am. Opp’n at 6. The motor and all electrical components of the 

pump remain below the water level in the shaft at all times during the dewatering process, 

thereby making “unlikely” the possibility of an electrical spark from the pump. N. Am. Opp’n at 

6, Ex. E at 76. The water remains above the electrical components at all times, and if it drops 

below a certain level, the pump will not function. N. Am. Opp’n Ex. E at 78, 81-82. 

On August 30, 2007, North American had completed drilling, lining, and grouting the 

Flannigan Shaft and was in the final process of pumping the water out of the shaft. N. Am. 

Opp’n at 6, Ex. E at 67-72, E-2. MSHA Inspector Dean Cripps arrived at the Flannigan 

construction site and observed North American utilizing a non-permissible pump below the 

shaft’s collar. PDR at 5; N. Am. Opp’n at 7. As a result of his observations, Inspector Cripps 

issued Citation No. 6666927 to North American, alleging a violation of 30 C.F.R. § 77.1900-1, 

which requires that operators comply with their MSHA-approved shaft plans.2

 PDR at 5; N. Am. 

Opp’n Ex. E-1; S. Br. at 2. The “Condition or Practice” section of the citation reads as follows: 

2

 30 C.F.R § 77.1900-1 provides: 

Compliance with approved slope and shaft sinking plans. 

Upon approval by the Coal Mine Health and Safety District Manager of a slope or shaft 

sinking plan, the operator shall adopt and comply with such plan. 

Ex. 5 Deliberative
34 FMSHRC Page 354

A non-permissible submersible pump is being used below the collar of the
 

Flannigan air shaft construction. The approved shaft and slope sinking
 

plan requires all electric equipment used below the collar be permissible.
 

N. Am. Opp’n Ex. E-1. The approved January 8, 2007, shaft plan reads in pertinent part: 

Paragraph 3(d)(vii): 

The finished shaft will be dewatered using a submersible pump, which
 

will be removed prior to underground personnel mining within 100' of the
 

shaft bottom.

 Paragraph 10(b): 

As per 30 C.F.R. § 77.1914, no non permissible electrical equipment shall
 

be utilized below the shaft collar during excavation.3
 

N. Am. Opp’n Ex. B at 14-15. The alleged violation was abated on September 5, 2007, after 

North American removed the non-permissible pump from the shaft. Pet. for Assess. Ex. A. 

North American contested both the citation and the associated civil penalty. The contests 

were consolidated, the parties conducted discovery, and the matter was set for hearing before 

Judge Melick. 

On April 3, 2009, the Secretary filed a Motion to Dismiss, stating that “MSHA is 

vacating the citation at issue in this matter based upon further review of the evidence.” S. Mot. 

to Dismiss at 1. North American opposed the motion and requested that the matter proceed to 

hearing, that an order be entered dismissing this matter with prejudice, or that declaratory relief 

be granted in the form of a ruling on the use of the term “excavation,” as applied to the 

requirements of section 77.1914(a). N. Am. Opp’n at 2, 11. In a letter dated April 2, 2009, 

counsel for North American memorialized a March 30, 2009, conversation in which he alleges 

that counsel for the Secretary announced that MSHA would cite North American in the future 

under the same regulation and the same facts despite the decision to vacate the citation at issue. 

N. Am. Opp’n at 7, Ex. C. Upon receipt of the letter, the Secretary’s counsel called counsel for 

3 30 C.F.R § 77.1914(a) provides: 

Electrical Equipment. 

(a) Electric equipment employed below the collar of a slope or shaft during 

excavation shall be permissible and shall be maintained in a permissible 

condition. 

Ex. 5 Deliberative
 

34 FMSHRC Page 355

North American and disputed the letter’s characterization of the March 30 conversation. S. Br. 

at 19 n.6. 

The judge issued two orders of dismissal in the proceedings. The first order dismissed 

North American’s penalty proceeding with prejudice based on MSHA’s vacatur of the 

underlying citation. Unpublished Order dated April 9, 2009. The second order dismissed North 

American’s proceeding contesting the citation. Unpublished Order dated April 9, 2009. In 

dismissing the contest proceeding, the judge reasoned that MSHA’s vacatur of Citation No. 

6666927 had rendered that proceeding moot. As support, the judge relied on RBK Construction, 

Inc., 15 FMSHRC 2099, 2101 (Oct. 1993), in which the Commission held that the Secretary has 

unreviewable discretion to vacate citations. The judge did not address North American’s request 

for declaratory relief. 

II.
 

Disposition
 

A. Jurisdiction 

The threshold issue before us is whether the Commission maintains the requisite 

jurisdiction to consider North American’s challenge. The Secretary argues that section 105 of 

the Act, 30 U.S.C. § 815, only grants the Commission jurisdiction over “extant” enforcement 

actions brought by the Secretary and, because she has unreviewable discretion to vacate a 

citation, the Commission is without jurisdiction to consider North American’s request for 

declaratory relief. S. Br. at 8-11, citing RBK, 15 FMSHRC at 2101; Cuyahoga Valley Ry. Co. v. 

United Transp. Union, 474 U.S. 3, 7-8 (1985); Kaiser Coal Corp., 10 FMSHRC 1165, 1169-70 

(Sept. 1988); and Reich v. Contractors Welding of Western New York, Inc., 996 F.2d 1409, 

1412-13 (2nd Cir. 1993). The Secretary further contends that the Commission must defer to her 

reasonable interpretation of sections 105(a) and 105(d) in determining whether the Commission 

has jurisdiction over these proceedings. S. Br. at 6-7. North American responds that because 

section 105(d) of the Act grants operators the right to contest the issuance of a citation or order, 

and sections 105(a) and 105(d) confer jurisdiction upon the Commission to hear an operator’s 

contest, no unilateral action by the Secretary can divest the Commission of jurisdiction. N. Am. 

Reply Br. at 3-4. 

The Secretary misframes the issue. The question presented is not whether the Secretary’s 

exercise of discretion to vacate a citation is reviewable, but rather whether the Secretary’s 

exercise of that discretion automatically terminates or revokes this Commission’s jurisdiction in 

its entirety after it has been properly invoked. We hold that it does not. 

The Commission has acknowledged that it lacks authority to overturn a decision by the 

Secretary to withdraw or vacate a citation under the Mine Act. RBK, 15 FMSHRC at 2101, 

citing Cuyahoga, 474 U.S. at 7-8; Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879 (June 

1996). The Commission and the courts have also recognized that under the Mine Act, Congress 

intended to delegate such enforcement authority to the Secretary, not the Commission. 

Ex. 5 Deliberative
 

34 FMSHRC Page 356

Mechanicsville, 18 FMSHRC at 879; Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 161 

(D.C. Cir. 2006); Speed Mining, Inc. v. FMSHRC, 528 F.3d 310, 319 (4th Cir. 2008). 

Consequently, our decision in RBK directly overruled our holding in Youghiogheny & Ohio 

requiring that “adequate reasons” must exist to justify the Secretary’s vacation of a citation and 

subsequent motion to dismiss. Youghiogheny & Ohio Coal Co., 7 FMSHRC 200, 203 (Feb. 

1985) (“Y&O”). 

Although the Commission lacks authority to review the Secretary’s decision to vacate a 

citation, our jurisdiction over the proceeding does not automatically terminate upon vacatur. 

After an operator has contested a citation, section 105(d) authorizes the Commission to “issue an 

order, based on findings of fact, affirming, modifying, or vacating the Secretary’s citation, order, 

or proposed penalty, or directing other appropriate relief.” 30 U.S.C. § 815(d) (emphasis 

added). Thus, section 105(d) unambiguously sets forth a broad grant of Commission authority to 

direct “other appropriate relief.” This statutory grant authorizes the Commission to retain 

jurisdiction to properly address any remaining legal and procedural requirements after the 

vacatur of a citation or order, such as questions of mootness or the appropriateness of declaratory 

relief. As the Commission has concluded, if it were to be deprived of jurisdiction when the 

Secretary vacates a citation, there would be no room for the Commission to ensure that cases 

over which its jurisdiction had been properly invoked could be dispensed with on terms that are 

in accordance with the Act.4 Climax Molybdenum Co., 2 FMSHRC 2748, 2750 (Oct. 1980), 

aff’d sub nom. 703 F.2d 447 (10th Cir. 1983); see also Mid-Continent Res., Inc., 12 FMSHRC 

949, 957 (May 1990). Because we conclude that the relevant language of the Mine Act is 

unambiguous, we need not reach the Secretary’s argument that her interpretation is entitled to 

deference under Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).5 

4

 We reject the Secretary’s assertion that because the rationale in Climax and its 

successors is based largely on precedent overruled by RBK, the Climax line of cases is “no 

longer good law.” S. Br. at 14 n.5. We read RBK to narrowly hold that the Secretary has 

unreviewable discretion to vacate a citation and that the Commission is, therefore, without 

authority to overturn that decision. We further note that, following the Supreme Court’s decision 

in Cuyahoga, the Occupational Safety and Health Review Commission (“OSHRC”) similarly 

concluded that the Secretary cannot unilaterally deprive it of jurisdiction simply by withdrawing 

a citation. See, e.g., General Electric Co., 12 O.S.H. Cas. 1597 (BNA) (1985); Asbestos 

Abatement Consultation & Eng’g, 15 O.S.H. Cas. (BNA) 1252 (1991). 

5

 Even if we were to reach the argument, we would conclude that the Secretary is 

mistaken in arguing that her interpretations of the Commission’s authority to administer 

sections 105(a) and (d) are entitled to deference. Such deference is warranted only where 

Congress has delegated the authority to administer a statutory provision to the agency seeking 

deference. We have held that Congress charged the Commission with administering sections 

105(a) and 105(d). See Marfork Coal Co., 29 FMSHRC 626, 632 (Aug. 2007) (“The 

Commission is clearly charged with administering the provisions of section 105(a) and 105(d), 

(continued...) 

Ex. 5 Deliberative
34 FMSHRC Page 357

See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (holding that deference to an 

agency’s interpretation of a statute may not be applied “to alter the clearly expressed intent of 

Congress”) (citations omitted). 

We further conclude that the Secretary’s reliance on Kaiser Coal is misplaced. See S. Br. 

at 9. In Kaiser Coal, we determined that, absent an extant enforcement action, we lacked 

jurisdiction over an application for declaratory relief. 10 FMSHRC at 1166. However, the 

present case is readily distinguishable from Kaiser Coal, in that the latter involved an operator 

that withdrew its section 105(d) contest as a condition of settlement and later filed a request for 

declaratory relief after the order terminating the proceeding had become final. Conversely, in 

the instant case, there has been no settlement or withdrawal of the contest, nor has there been an 

interruption of the Commission’s jurisdiction, which procedurally is terminated only by its final 

order. North American’s request for declaratory relief was filed well before the judge dismissed 

the proceedings, and was renewed by its timely filed petition for discretionary review. 

We find the Secretary’s reliance on Contractors Welding, 996 F.2d at 1409, similarly 

unavailing. Contractors Welding involved a settlement agreement reached while the parties’ 

case was pending on appeal. Id. at 1411. The settlement was conditioned on the Secretary 

vacating the related citation and OSHRC vacating its previous decision. Id. OSHRC, however, 

vacated the portion of the decision that affirmed the citation, but sought to preserve its analysis 

as valid precedent. Id. at 1412. The Second Circuit held that OSHRC’s action constituted an 

advisory opinion for which it had no authority, thus violating its appellate mandate. Id. at 1412-

14. Factually, Contractors Welding bears little similarity to the instant case. 

In summary, based on the plain language of section 105(d), we conclude that once an 

operator has properly contested a citation pursuant to section 105 of the Act, the Secretary 

cannot, by vacating the citation, automatically divest the Commission of jurisdiction. Climax, 2 

FMSHRC at 2750; Mid-Continent, 12 FMSHRC at 957. Accordingly, we hold that the 

Commission retains jurisdiction to properly address the operator’s questions of mootness and the 

appropriateness of declaratory relief. 

5

(...continued) 

which set forth the procedures for contesting, before the Commission, the enforcement actions of 

the Secretary and the manner in which hearings shall be conducted before the Commission.”). 

The Secretary essentially confuses issues involving the breadth of her enforcement discretion – a 

prosecutorial function – with issues involving a Commission judge’s authority to manage a case 

and determine whether any relief is appropriate – a purely judicial function. See S. Br. at 7-8, 

n.3. 

Ex. 5 Deliberative
34 FMSHRC Page 358

B. Mootness 

North American argues that because the Secretary has indicated that she will cite North 

American in the future under the same regulation and facts, it was plain error and an abuse of 

discretion for the judge to dismiss the proceedings as moot. N. Am. Br. at 13-15. It further 

contends that it will suffer collateral consequences in the form of continuing legal costs when it 

challenges MSHA’s future unsupportable citations issued under section 77.1914(a). Id. at 15-16. 

The Secretary counters that North American was cited for violating its plan for the Flannigan 

Shaft and, because construction of the Flannigan Shaft is complete, North American cannot be 

cited for violating that plan again. S. Br. at 20-21, Attach. 3 at 2. 

The Commission has recognized that concepts of mootness must be applied with care in 

the administrative setting. Mid-Continent,12 FMSHRC at 955. However, while the article III 

constitutional requirement of “case or controversy” does not literally apply to federal 

administrative agencies like the Commission, “an agency receives guidance from the policies 

that underlie the ‘case or controversy’ requirement of article III . . . . An agency acts within its 

discretion in refusing to hear a case that would be considered moot if tested under the article III 

‘case or controversy’ requirement.” Id. (quoting Climax, 703 F.2d at 451). 

A case is moot when the issues presented no longer exist or the parties no longer have a 

legally cognizable interest in the outcome. Climax, 703 F.2d at 451-52 (finding issues moot and 

denying declaratory relief after the Secretary vacated the citations); Brent Roberts, 20 FMSHRC 

1245, 1248 (Nov. 1998) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)) (finding 

issues moot after Secretary withdrew his proposed revocations of certifications and filed an 

unopposed motion for dismissal); Mid-Continent, 12 FMSHRC at 956 (holding enforcement 

action concluded and denying declaratory relief after Secretary vacated underlying citation and 

withdrawal order and sought dismissal of penalty proceeding). However, when there is a 

substantial likelihood that an allegedly moot question will recur, the issue remains justiciable. 

Mid-Continent, 12 FMSHRC at 955. Administrative orders also remain justiciable if they are 

short term orders capable of repetition, yet evading review. See, e.g., Climax, 2 FMSHRC at 

2752. Additionally, voluntary cessation of a challenged practice does not render a case moot 

unless there is no reasonable expectation that the wrong will be repeated. Greater Yellowstone 

Coalition v. Tidwell, 572 F.3d 1115, 1121(10th Cir. 2009); see Reich v. OSHRC, 102 F.3d 1200, 

1201 (11th Cir. 1997). 

The Secretary’s vacatur of the citation, along with the judge’s dismissal of the civil 

penalty with prejudice, eliminated the possibility that North American would be held liable for 

the alleged violation of its shaft plan for the Flannigan Shaft. Therefore, we conclude that these 

proceedings lack a live “case or controversy” as to Citation No. 6666927. 

Nonetheless, North American contends that there is a substantial likelihood that it faces 

recurrent harm because the Secretary has allegedly declared that she will continue to enforce 

section 77.1914(a) (the permissibility regulation) against North American in the future under 

identical circumstances. N. Am. Br. at 14, 16, 18. Here, the Secretary sought to enforce section 

Ex. 5 Deliberative
34 FMSHRC Page 359

77.1900-1 (the plan compliance regulation), and although she freely admits that she will cite 

North American in the future under section 77.1900-1 if it is found to be in violation of its shaft 

plan, the Secretary is within the bounds of her authority to do so. Shaft plans are mine-specific 

and are thus designed to address the unique conditions of a particular mine. See Jim Walter Res., 

Inc., 9 FMSHRC 903, 907 (May 1987). Therefore, whether North American is cited in the 

future for use of a non-permissible pump below the shaft collar will have to be considered in the 

context of the specific language of the plan in question. Jim Walter Res., Inc., 28 FMSHRC 579, 

589 (Aug. 2006). Thus there is not a substantial likelihood that the question before us will 

reoccur, causing North American additional harm. Hence, resolution of whether North 

American violated the shaft plan for the Flannigan Shaft, which requires that “no nonpermissible electrical equipment shall be used below the shaft collar during excavation,” is not 

determinative of whether North American will violate some other plan for failure to use 

permissible equipment. See N. Am. Opp’n Ex. B, at 15 (emphasis added). 

North American further submits that the vacated citation is a “short-term order, capable 

of repetition, yet evading review.” N. Am. Br. at 14-15. We are not persuaded by this argument 

since there is no indication in the record that the Secretary makes a practice of citing operators, 

only to subsequently vacate the citations. See Climax, 703 F.2d at 452. Here, the Secretary 

chose to vacate the citation based on her review of the specific circumstances surrounding the 

alleged violation. The possibility of future citations being vacated under similar circumstances is 

purely speculative. We likewise find unavailing North American’s argument that it will suffer 

collateral consequences in the form of continuing legal costs. The Commission has found that 

the inconvenience of having to commence more than one suit is not “a hardship sufficient to 

justify review when the issues are not otherwise fit for judicial resolution.” ASARCO, Inc., 20 

FMSHRC 1001, 1008 (Sept. 1998) (citations omitted). 

Additionally, North American argues that the Secretary’s vacatur of the citation does not 

render its contest proceeding moot because the Secretary’s “prosecutorial discretion” is wholly 

unrelated to an operator’s statutory right to “initiate and maintain a contest to the validity of the 

citation’s initial issuance under 105(d) of the Mine Act.” N. Am. Br. at 8-10; see PDR at 8 

(emphasis added). This assertion cannot be reconciled with the Tenth Circuit’s holding in 

Climax, in which the court held that the issues before a Commission ALJ were rendered moot by 

the government’s vacation of a citation. 703 F.2d at 452. 

Here, North American has presented no extraordinary condition that warrants the 

conclusion that this case is not moot. The Secretary has chosen to forego prosecution by 

vacating the underlying citation, and the judge has dismissed the citation with prejudice. It 

would be counter-productive and procedurally burdensome for the Commission to allow the 

operator to pursue a contest proceeding that is devoid of live controversy. It also serves no 

purpose to force the Secretary to continue litigating the merits of a citation that she has 

determined to be legally or otherwise unworthy of prosecution. The Secretary’s power to vacate 

would be nullified if an operator were allowed to continue litigating the merits of a citation 

simply because it filed a section 105(d) contest. Accordingly, we conclude that the issue 

involved is moot. 

Ex. 5 Deliberative
34 FMSHRC Page 360

C. Declaratory Relief 

We now turn to the question of whether North American would be entitled to declaratory 

relief, assuming arguendo that the case was not moot. North American submits that the judge 

erred by not granting its request for declaratory relief because the Commission’s authority to 

grant such relief is well established. N. Am. Br. 17-18. It seeks a declaration that its shaft 

sinking plan only barred the use of non-permissible electrical equipment below the shaft collar 

“during excavation,” and that it was not engaged in “excavation” when it was dewatering the 

shaft. Id. at 5, 16. 

In rejecting an operator’s contention that the Commission was required to grant 

declaratory relief, the Tenth Circuit explained that the “Commission’s power to grant declaratory 

relief is clearly discretionary, see . . . 5 U.S.C. § 554(e). . . . [T]he Commission is not required to 

grant declaratory relief unless a failure to do so would be an abuse of discretion.” Climax, 703 

F.2d at 452 n.4; see Mid-Continent, 12 FMSHRC at 953-54. 

The primary purpose of declaratory relief is “to save parties from unnecessarily acting 

upon their own view of the law.” Mid-Continent, 12 FMSHRC at 954 (quoting Beaver Creek, 11 

FMSHRC at 2430). For a Commission judge to grant declaratory relief, the complainant must 

show that there is an actual, not moot, case or controversy between the parties under the Mine 

Act; that the threat of injury to the complainant is real, not speculative; and that the issue as to 

which relief is sought is ripe for adjudication. Id. Moreover, “when there is a substantial 

likelihood that an allegedly moot question will recur, the issue remains justiciable and 

declaratory judgment may be rendered to define the rights and obligations of the parties.” Id. at 

955 (quoting 10B Charles Alan Wright et al., Federal Practice and Procedure Civil § 2757 (3d. 

ed. 2011)). 

North American has failed to make the necessary showing for declaratory relief. As 

stated, supra, there exists no live controversy between the Secretary and North American as to 

Citation No. 6666927, and no substantial likelihood that North American faces recurrent harm in 

the form of another citation predicated on the phrase “during excavation.” 

Even if the Commission were to declare that dewatering under the blind drilling method 

did not constitute “excavation,” it would not follow that North American would be free to use 

non-permissible pumps to dewater shafts in the future. Since issuance of the citation in question, 

the Secretary has required North American to include language in its shaft sinking plans similar 

to that in this plan, modified so as to exclude the term “excavation” but, nonetheless, requiring 

the use of permissible equipment. N. Am. Reply Br. at 11; Sec’y Br. at 22 n.7, Attachs. 4, 5. 

The modified provision states that: “The finished shaft will be dewatered in such a way as to be 

compliant with 30 C.F.R. § 77.1914(a). If electrical equipment is used below grade to dewater 

the shaft it will be permissible.” S. Br. at 22 n.7, Attachs. 4, 5 (emphasis added). 

Ex. 5 Deliberative
34 FMSHRC Page 361

This modified language demonstrates that the Secretary’s ability to enforce her policy 

regarding permissible pumps is not contingent upon the act of excavating or use of the term 

“excavation.” The language also significantly diminishes the likelihood that subsequent disputes 

will arise over the term “excavation” as it relates to non-permissible pumps, because the 

permissibility requirement is clearly uncoupled from the act of excavation. Indeed, counsel for 

North American acknowledged at oral argument that since issuance of the subject citation, North 

American has not been cited again for violation of its shaft plans. Oral Arg. Tr. at 20-21. 

In short, although North American ostensibly seeks to challenge the meaning of 

“excavation,” it appears that the actual issue for which it seeks relief is the broader question of 

whether MSHA may properly require the use of permissible pumps to dewater mine shafts when 

the blind drilling method is employed. However, as we have noted, in other situations the 

Secretary has required the use of permissible pumps in a shaft plan without using the term 

“excavation.” Thus, if North American were to prevail in establishing that dewatering does not 

entail “excavation,” it would have no effect on the Secretary’s enforcement of the Act, or on 

North American’s ability to use equipment it prefers. Because “[o]ne of the most important 

considerations that may induce a court to deny declaratory relief is that the judgment sought 

would not settle the controversy between the parties,” 10B Federal Practice and Procedure 

Civil, supra, § 2759, such relief is not appropriate here. 

It is well established that “absent bad faith or arbitrary action, the Secretary retains the 

discretion to insist upon the inclusion of specific provisions as a condition of the plan’s 

approval.” C.W. Mining Co., 18 FMSHRC 1740, 1746 (Oct. 1996); see also Monterey Coal Co., 

5 FMSHRC 1010, 1019 (June 1983). The Secretary’s action in disapproving such a proposed 

mine plan may be overturned only if it is “arbitrary and capricious.” Emerald Coal Res., 29 

FMSHRC 956, 966 (Dec. 2007). If North American wishes to challenge MSHA’s policy as 

arbitrary and capricious by proving that non-permissible pumps in blind drilling provide at least 

the same level of protection to miners as permissible pumps, there are suitable means to do so. 

In particular, North American could refuse to adopt the plan provision and accept a technical 

violation. See id. at 972; S. Br. at 28. This would better facilitate North American’s intended 

challenge and afford it more appropriate relief. North American has not instituted such a 

challenge here, and the factual record has not been developed in this regard. See Hollis v. 

Itawamba County Loans, 657 F.2d 746, 750 (5th Cir. 1981) (stating that in exercising their 

discretion to grant declaratory relief, courts may take into consideration the adequacy of the 

record for the determination they are required to make). 

As the Tenth Circuit has noted, “[t]he Commission may reasonably choose to reserve its 

use of declaratory relief for special cases in order to conserve its administrative resources.” 

Climax, 703 F.2d at 453. We choose to do so here. Because rendering an interpretation of 

6

 North American argues that permissible pumps are no safer than non-permissible 

pumps when dewatering a finished shaft, particularly when blind shaft drilling is utilized. N. 

Am. Br. at 21-22, Exs. 5(D) at 17, 5(E) at 37, 75-76. 

Ex. 5 Deliberative
34 FMSHRC Page 362

“excavation” would contribute little toward North American’s ultimate goal of abolishing or 

even circumventing MSHA’s prohibition, we conclude that a grant of declaratory relief in these 

proceedings would not be an efficient use of judicial resources. Accordingly, we deny North 

American’s request for declaratory relief. 

III.
 

Conclusion
 

For the reasons discussed above, we hold that the judge did not err in dismissing the 

proceedings as moot. We also find that the judge did not abuse his discretion in refusing to 

consider or grant North American’s request for declaratory relief in the first instance. 

Accordingly, we affirm the judge’s decision. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

Ex. 5 Deliberative
34 FMSHRC Page 363

Commissioners Cohen and Nakamura, concurring: 

We join the majority opinion and agree with our colleagues that the vacatur of the 

citation does not deprive the Commission of jurisdiction to consider the issues of mootness and 

declaratory relief. We also agree with our colleagues that the issue presented by North American 

– involving the phrase “during construction” in the shaft drilling plan – is moot, and that the 

Commission should not grant declaratory relief. 

We write separately in order to address more fully North American’s central assertion 

that an operator has the statutory right “to initiate and maintain a contest to the validity of the 

citation’s initial issuance under 105(d) of the Mine Act.” N. Am. Br. at 8 (emphasis added); 

N. Am. R. Br. 3-4, 6-9; Oral Arg. Tr. 5, 11, 25, 29. North American contends that section 

105(d) gives an operator the right to make a challenge “that is not just to the paper that it’s 

written but the facts under which that citation was first issued.” Oral Arg. Tr. 5. North 

American insists that the Secretary’s vacatur of the citation does not affect its right to challenge 

the “issuance” of the citation: 

Thus, the fact that Congress provided a right to “contest the 

issuance of a citation” in Section 105(d), while providing a more 

limited right to “contest the citation” in Section 105(a) is 

clear evidence that Section 105(d) allows an operator to contest 

the issuance of the citation itself, and North American cannot be 

divested of this right, nor the Commission divested of jurisdiction 

to hear North American’s exercise of its right, by the Secretary’s 

unilateral decision to vacate the citation. 

N. Am. R. Br. 7-8. 

North American’s argument is based on a misreading of the statute. Contrary to North 

American’s assertion, section 105(d) does not provide a right to contest the issuance of a 

citation, as distinct from the citation itself. Rather, as discussed at the oral argument (Oral Arg. 

Tr. 12-19), section 105(d) sets forth the Commission’s jurisdiction in detail. It contains three 

separate types of jurisdiction involving contests filed by an operator, set out in three parallel 

clauses: 

1. “the issuance or modification of an order under section 104;” 

2. a “citation or a notification of proposed assessment of a penalty 

under subsection (a) or (b) of this section;” and 

3. “the reasonableness of the length of abatement time fixed in a 

citation or modification thereof issued under section 104.” 

See 30 U.S.C. § 815(d). The word “issuance” in section 105(d) is followed by the words “or 

modification of an order issued under section 104.” This relates to withdrawal orders based on 

failure to abate a violation, certain unwarrantable failure violations, S&S violations issued when 

Ex. 5 Deliberative
34 FMSHRC Page 364

an operator has been found to have a pattern of violations, respirable dust violations, and training 

violations. 

Thus, the statute does not state that an operator may contest “the issuance of a citation,” 

but rather “the issuance or modification of an order issued under section 104.” The right to 

contest a citation is contained in the second provision of section 105(d), which gives an operator 

the right to contest a “citation or a notification of proposed assessment of a penalty issued under 

subsection (a) or (b) of this section.” This is the provision under consideration in this case, and 

it does not mention the “issuance” of a citation. 

Nevertheless, North American argues that the word “issuance” in section 105(d) modifies 

all three provisions. Oral Arg. Tr. 13, 18. However, this reading of the statute makes no sense. 

The word “issuance” must refer to some specific action by the Secretary. Looking at the third 

provision, it makes no sense to say that the Secretary could issue “the reasonableness of the 

length of time set for abatement.” Plainly, the word “issuance” applies only to an order issued 

under section 104, as stated in the first provision of section 105(d). 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

Ex. 5 Deliberative
 

34 FMSHRC Page 365

Distribution:

Robert H. Beatty, Jr., Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

Ex. 5 Deliberative
34 FMSHRC Page 366

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

February 27, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. CENT 2009-834 

v. : A.C. No. 34-01728-193433 

: 

FARRELL-COOPER MINING COMPANY : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On June 27, 2011, the Commission received from FarrellCooper Mining Company (“Farrell-Cooper”) a motion seeking to reopen a penalty assessment 

proceeding and relieve it from the order of default entered against it. 

On December 2, 2010, Chief Judge Lesnick issued an Order to Show Cause which by its 

terms became an Order of Default if the operator did not file an answer within 30 days. This 

Order to Show Cause was issued in response to Farrell-Cooper’s failure to answer the 

Secretary’s April 28, 2010 Petition for Assessment of Civil Penalty. 

Farrell-Cooper asserts that it filed a timely response to the Show Cause Order on 

December 28, 2010. The Secretary does not oppose the request to reopen, and notes that the 

Denver Regional Solicitor’s Office received the answer on January 10, 2011. Moreover, MSHA 

states that its records show that the operator sent a check dated May 19, 2011, in response to a 

delinquency notice mailed on May 11, 2011. 

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Having reviewed Farrell-Cooper’s request and the Secretary’s response, in the interest of 

justice, we conclude that Farrell-Cooper was not in default under the terms of the Show Cause 

Order, as it timely complied with the Order. Accordingly, this case is remanded to the Chief 

Administrative Law Judge for further proceedings pursuant to the Mine Act and the 

Commission’s Procedural Rules, 29 C.F.R. Part 2700. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

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34 FMSHRC Page 368

Distribution: 

Gary Geralds 

Mining Development Services 

30181 West CR 1253 D Road 

Stigler, OK 74462 

geralds@cwis.net 

Sarah White, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1999 Broadway, Suite 800 

Denver, CO 80202-5708 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001

 February 27, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH : Docket No. KENT 2012-66

 ADMINISTRATION (MSHA) : A.C. No. 15-19199-258836 B294 

: 

: Docket No. KENT 2012-67 

: A.C. No. 15-19068-256038 B294

 : 

: Docket No. KENT 2012-68 

v. : A.C. No. 15-18694-242102 B294

 :

 : Docket No. WEVA 2012-70 

: A.C. No. 46-09002-252812 B294 

: 

TWIN RIDGE DEVELOPMENT, INC. : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On October 4, 2011, the Commission received from Twin 

Ridge Development, Inc. (“Twin Ridge”) four motions seeking to reopen four penalty 

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

Mine Act, 30 U.S.C. § 815(a).1 The Secretary does not oppose the requests to reopen. 

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

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

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

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

1

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

consolidate docket numbers KENT 2012-66, KENT 2012-67, KENT 2012-68, and KENT 2012-

70, all captioned Twin Ridge Development, Inc., and involving similar procedural issues. 

29 C.F.R. § 2700.12. 

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

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

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

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

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

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

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable 

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

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

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

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

Having reviewed Twin Ridge’s requests and the Secretary’s responses, in the interests of 

justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for 

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

Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for 

assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

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34 FMSHRC Page 371

Distribution: 

Edsel Preece, President 

Twin Ridge Development, Inc. 

8320 S. Kentucky, Rte. 321 

Hager Hill, KY 41222 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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34 FMSHRC Page 372

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

February 27, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: 

v. : Docket No. LAKE 2011-699-R 

: 

BIG RIDGE, INC. : 

: 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006)(“Mine Act”). On February 21, 2012, Big Ridge, Inc. (“Big Ridge”) filed 

with the Commission a document entitled “Precautionary Petition for Discretionary Review.” 

Big Ridge seeks review of an order issued by Administrative Law Judge John Lewis on January 

20, 2012, in which he denied reconsideration of his November 29, 2011 order denying Big 

Ridge’s motion to dismiss. In his January 20, 2012 order, he ruled that Order No. 8424291 

issued to Big Ridge under section 103(j) of the Mine Act, 30 U.S.C. § 813(j) and subsequently 

modified to a section 103(k) order, 30 U.S.C. § 813(k), was valid. 

We have determined that the judge’s January 20, 2012, decision is not a final decision 

ending his jurisdiction over this matter. In his order, the judge did not explicitly affirm Order 

No. 8424291 as reasonable, nor did he dismiss Big Ridge’s notice of contest. Dec. at 2. He also 

ordered the parties to provide a status update within two weeks of the date of his order, which 

further indicates that the judge did not intend the order to be final. Id. Consequently, his 

decision is interlocutory in nature. As a result, Big Ridge’s precautionary petition is not a valid 

petition for discretionary review of a final decision under section 113(d) of the Mine Act, 

30 U.S.C. § 823(d). 
 

34 FMSHRC Page 373

For the foregoing reasons, the precautionary petition filed by Big Ridge is denied. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 
 

 

34 FMSHRC Page 374

Distribution: 

Suzanne F. Dunne, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

230 S. Dearborn St., 8th Floor 

Chicago, IL 60604 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Arthur M. Wolfson, Esq. 

Jackson Kelly PLLC 

Three Gateway Center, Suite 1340 

401 Liberty Avenue, 

Pittsburgh, PA 15222 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center, Suite 1340 

401 Liberty Avenue 

Pittsburgh, PA 15222 

Administrative Law Judge John Lewis 

Federal Mine Safety & Health Review Commission 

875 Greentree Road, Suite 290 

Pittsburgh, PA 15220 
34 FMSHRC Page 375

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

February 29, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. SE 2010-780-M 

v. : A.C. No. 08-01021-218131 

: 

E.R. JAHNA INDUSTRIES, INC. : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On August 19, 2011, the Commission received from E.R. 

Jahna Industries, Inc. (“Jahna”) a motion seeking to reopen a penalty assessment proceeding and 

relieve it from the order of default entered against it. 

On March 17, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show 

Cause which by its terms became an Order of Default if the operator did not file an answer 

within 30 days. This Order to Show Cause was issued in response to Jahna’s failure to answer 

the Secretary’s August 19, 2010 Petition for Assessment of Civil Penalty. 

Jahna filed a timely response to the Show Cause Order which included a typographical 

error in the case docket number. The Secretary does not oppose the request to reopen. 

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34 FMSHRC Page 376

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

we conclude that Jahna was not in default under the terms of the Show Cause Order, as it timely 

complied with the Order. Accordingly, this case is remanded to the Chief Administrative Law 

Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 

29 C.F.R. Part 2700. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

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34 FMSHRC Page 377

Distribution: 

Dwight R. Graves, Safety Mngr. 

E.R. Jahna Industries, Inc. 

202 E. Stuart, Ave. 

Lake Wales, Florida 33859 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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34 FMSHRC Page 378

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

February 29, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: Docket No. YORK 2010-77-M 

v. : A.C. No. 27-00050-202337 

: 

ALVIN J. COLEMAN & SON, INC. : 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On August 22, 2011, the Commission received from Alvin J. 

Coleman & Son, Inc. (“Coleman”) a motion seeking to reopen a penalty assessment proceeding 

and relieve it from the order of default entered against it. 

On March 15, 2011, Chief Administrative Law Judge Lesnick issued an Order to Show 

Cause and Order of Default in response to Coleman’s failure to answer the Secretary’s January 

6, 2010 Petition for Assessment of Civil Penalty. The judge ordered the operator to file its 

answer within 30 days or it would be in default. 

Coleman asserts that it submitted a timely answer to the Secretary’s Petition for 

Assessment and did not receive the Order to Show Cause. The Secretary does not oppose the 

request to reopen and notes that the Philadelphia Regional Solicitor’s Office indicated that the 

operator’s answer was timely received by the MSHA Warrendale, PA District Office on 

February 1, 2010. The answer indicates that it was also sent to the Commission. 

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Having reviewed Coleman’s request and the Secretary’s response, in the interest of 

justice, we conclude that the Order of Default should be vacated because Coleman timely filed 

an answer to the petition. Accordingly, this case is remanded to the Chief Administrative Law 

Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 

29 C.F.R. Part 2700. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

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Distribution: 

Judson S. Ludeking 

Contractors Risk Mngmt., Inc. 

P.O. Box 211 

Concord, NH 03302-0211 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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ADMINISTRATIVE LAW JUDGE DECISIONS 
 

34 FMSHRC Page 381

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19TH Street, Suite 443 

Denver, CO 80202-2500 

303-844-3577/FAX 303-844-5268 

February 1, 2012 

SECRETARY OF LABOR, : TEMPORARY REINSTATEMENT

 MINE SAFETY AND HEALTH : PROCEEDING

 ADMINISTRATION (MSHA), :

 on behalf of RICHMOND TEDDY JENKINS, : Docket No. CENT 2012-254-DM 

Applicant : MSHA No. SC MD 12-03 

: 

v. : Garland Pit 

: 

CHIEFTAIN SAND AND PROPPANT, LLC, : Mine I.D. 03-01985 

Respondent : 

DECISION AND ORDER GRANTING TEMPORARY REINSTATEMENT 

Appearances: Karla S. Jackson, Esq., and Michael Schoen, Esq., Office of the Solicitor, 

U. S. Department of Labor, Dallas, Texas, for Applicant;
 

Thomas E. Reddin, Esq., Winstead PC, Dallas, Texas, for Respondent.
 

Before: Judge Manning 

This case is before me on an application for temporary reinstatement brought by the 

Secretary of Labor on behalf of Richmond Teddy Jenkins against Chieftain Sand and Proppant, 

LLC (“Chieftain”) under section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 815(c)(2) (the “Mine Act”). The application was filed by the Secretary on or about 

January 3, 2012 and Chieftain requested a hearing within 10 days of receipt of the application. 

The application alleges that Chieftain discriminated against Jenkins when he was made to 

operate defective equipment. He filed his complaint of discrimination with MSHA on 

November 9, 2011, and he was terminated from his employment on November 26, 2011. The 

application states that the Secretary has determined that the underlying discrimination complaint 

filed by Jenkins was not frivolously brought. A hearing in this temporary reinstatement 

proceeding was held in Texarkana, Texas. Chieftain produces sand that is principally used by 

the oil and gas industry in hydraulic fracturing. The pit and associated facilities are located near 

Garland, Arkansas. For the reasons set forth below, I find that the applicant established that 

Jenkins’ discrimination complaint was not frivolously brought. 

I. SUMMARY OF THE EVIDENCE 

Jenkins testified that he was hired by Chieftain on March 12, 2011. He performed many 

tasks for Chieftain including basic utility work, maintenance work, and operating mobile 

equipment. On October 27, 2011 he was operating a front-end loader (“loader”). Jenkins 

testified that both of the side windows on the loader were missing. The window on the left had 

been missing for a considerable length of time. (Tr. 38). The window on the right had fallen out 

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about two months prior to October 27. (Tr. 38, 43). He testified that he did not remove any of 

the windows. (Tr. 40). Jenkins testified that when he told management that the window on the 

right side had fallen out, he was told to place the window in the shop in a safe location. (Tr. 41­

42). A cold front had come through the area on or just before October 27 and it was also raining 

on that day. Jenkins testified that he was cold and wet. At some point on October 27, 2011, he 

stopped operating the loader and parked it. (Tr. 18, 46). He told his immediate supervisor, 

Michael Coleman, that he could not continue to operate the loader in these conditions. (Tr. 109). 

Coleman testified that he has operated the loader in the rain. (Tr. 106, 118). The seat is 

located in the center of the cab. (Tr. 105). Unless it is a blowing rain, the operator does not get 

particularly wet. He characterized the rain on October 27 as a “misting rain,” but he admitted 

that it was cold that day. (Tr. 109-10). Coleman testified that Jenkins removed the windows 

from the loader earlier that year.1 (Tr. 108). Coleman also testified that one of the windows was 

still in the shop and Jenkins could have replaced it. (Tr. 120). Jenkins was ordered to either 

operate the loader or clean up spilled sand with a shovel. (Tr. 44, 91). After some discussion, 

Jenkins and Coleman agreed that he could shovel sand that had accumulated around the sand 

storage bins. Jenkins testified that he made one more “pull” with the loader and then started 

shoveling. (Tr. 18-19, 44). Jenkins testified that he believed that operating the loader without 

side windows in the cold rain was a safety issue. (Tr. 22). Coleman testified that Jenkins never 

raised any safety issues when they discussed his operation of the loader on October 27. (Tr. 

110). 

Jenkins called MSHA sometime after October 27 to complain about the loader. (Tr. 23, 

62). He talked to Steve Medlin about the windows on the cab of the loader. (Tr. 70-71, 82). In 

the meantime, on November 3, Jenkins was issued a warning notice by Chieftain. The notice 

alleged that Jenkins’ job performance violated company policy in three ways. First, the notice 

states that he “refused to operate the equipment he normally would operate” with the result that 

“another employee was called in to perform his job duties.” (Ex. R-4). Second, the notice states 

that Jenkins “went to perform other job functions that he was not requested to do without 

notifying his supervisor and was uncooperative when asked what he was doing.” Id. Finally, the 

notice stated that he “disregarded and/or refused to follow company policy on transition of duties 

from his shift to next shift employees.” Id. The warning notice alleges that he left work early 

without notice and that he could face termination of employment if he continued to disregard 

company policy. Jenkins refused to sign this warning notice. (Tr. 22, 54). 

Conard Riggs, the operations manager at Chieftain, testified that he was the author of the 

warning notice. He testified that neither he nor any member of management considered Jenkins’ 

complaint about the windows to be a safety complaint. (Tr. 128, 152-55, 167). Jenkins did not 

phrase his verbal complaint to Coleman in those terms and management considered the issue to 

be one of comfort rather than safety. He testified that the second element of the warning notice 

1
 It should be noted that the cab on the loader is not air-conditioned, but there is a small 

fan in the cab to provide ventilation. (Tr. 117). 

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was included because Jenkins did not start shoveling as he was directed, and instead performed 

other tasks of an unrelated nature. (Tr. 155). The third element of his discipline notice was 

issued because Jenkins left work early without permission. Id. It is a practice at Chieftain for 

employees to leave after the arrival of the next shift so that any problems or concerns can be 

communicated to the oncoming shift. Riggs testified that he would not have written up the 

warning notice if the only issue was Jenkins’ refusal to continue operating the loader that day for 

reasons of safety. (Tr. 157). If he had started shoveling and worked the entire shift, no 

discipline notice would have been issued. Riggs testified that Jenkins refused to sign the notice 

solely because of the third element on the notice. (Tr. 156). 

Steve Medlin came to the pit on November 9 to investigate Jenkins’ hazard complaint. 

(Tr. 73). There were two items on the anonymous written hazard complaint that he gave to mine 

management, one about the windows and another raising concern about the brakes on the loader. 

Id. Medlin tested the brakes and determined that they were fully functional. (Tr. 76). He issued 

a citation for the missing windows. Jenkins testified that he participated in this investigation 

with Inspector Medlin and that the company knew that he called in the safety complaint. (Tr. 24, 

63-64). 

Jenkins also filed his complaint of discrimination with MSHA on November 9. In the 

body of the complaint, Jenkins wrote “Name calling – made to operate equipment (defective).” 

(Ex. R-1).2

 On the first page of the complaint, the form asks the following question: “Has the 

Discriminatory Action Resulted in your being suspended, laid off, or discharged?” Mr. Jenkins 

checked the box marked “No.” (Tr. 28). At the hearing, Jenkins admitted that he did not have to 

operate the subject loader at any time after he complained about its condition on October 27. 

(Tr. 21, 52-53, 113). Another employee operated the loader for a few days, but then it was 

taken out of service to be repaired. (Tr. 111-12). 

On November 26, 2011, Jenkins was terminated from his position at Chieftain. The 

notice of termination states, as follows: “Teddy was witnessed smoking in Conex3 under shop 

labeled no smoking, Conex houses flammable materials, building is clearly labeled no smoking, 

Teddy has been hazard trained for no smoking areas, as well as safety meetings, termination.” 

(Ex. R-6 emphasis in original). Richard Binger, the plant manager, told Jenkins that he was 

2

 Jenkins admitted that the allegation of “name calling” is not part of this case. (Tr. 51-52). 

Jenkins alleges that an independent contractor who had been performing work at the pit called him 

names earlier in 2011. Jenkins, who is African-American, filed a complaint with the Equal 

Employment Opportunity Commission (“EEOC”) that included this allegation. 

3

 The “Conex” is a large freight container with doors that open at the back. (Ex. R-5). It 

resembles a tractor trailer without wheels, but it is larger. Such containers are often called 

intermodal containers because they can ride on flatbed rail cars and be carried on ships. The Conex 

was sitting on the ground at Chieftain and was used as a storage shed. 

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terminated. (Tr. 31). Jenkins testified that Binger told him that he had a witness who saw him 

smoking in the Conex. Jenkins was told to leave the property after this discussion. 

Jenkins admitted at the hearing that he was smoking in the vicinity of the Conex on 

November 26, but he denied that he smoked inside the Conex. (Tr. 66, 80). He also admitted 

that the area where he was smoking was posted with no smoking signs and that flammable 

materials were stored in the Conex. (Tr. 58). He testified, however, that many people smoked in 

the vicinity of the Conex and that cigarette butts were in the area. (Tr. 64-66). He told Medlin 

that the stated reason for his termination was the fact that he was smoking in a non-smoking 

area. (Tr. 58-59, 79, 92). 

Inspector Medlin testified that, when he conducted his investigation, he was concerned 

that, if rain water entered the cab of the loader, the foot pedals could become wet and slippery, 

making the vehicle unsafe to operate. He was also concerned about noise and dust exposure 

because the loader operator would be unable to close the windows. (Tr. 74-75, 82-83). He 

inspected all three front end loaders at the pit and only one had windows missing. Medlin met 

with Riggs and reviewed the citation with him. When Jenkins called Medlin after he had been 

terminated from employment, he asked for reinstatement but he did not file an amended 

complaint of discrimination. (Tr. 35-36, 51, 81). When Medlin traveled to the pit on December 

8, 2011 as part of his special investigation of the discrimination complaint, he interviewed 

Coleman and Binger, but he never asked them why Jenkins was terminated. (Tr. 92, 95-96, 113, 

163). 

Paul Thetford, a plant operator, testified for Chieftain. He stated that the Conex contained 

gasoline, hydraulic fluid, grease and other flammable materials. (Tr. 133). He testified that he 

saw Jenkins open the door to the Conex, walk into the Conex with a lit cigarette in his mouth, 

grab a blue bag and a pie pan, and walk back out with a lit cigarette. (Tr. 133-34, 138). Thetford 

testified he was about ten feet away from the door of the Conex talking to Robert Glass, a 

contract welder, when he observed Jenkins. He reported these events to Mr. Binger, but he did 

not talk to Jenkins about it. (Tr. 141-42). Thetford told Medlin during his investigation that he 

observed Jenkins enter the Conex with a lit cigarette. (Tr. 136). Riggs testified that Robert 

Glass told him that he saw Jenkins smoking in the Conex. (Tr. 161). The employee break area 

is immediately adjacent to the Conex. He estimated the break area to be about 30 feet away. 

(Tr. 142-43). Employees are allowed to smoke in this area as long as the doors to the Conex are 

closed, but no smoking is ever allowed inside the Conex. (Tr. 135). There are two “No 

Smoking” signs on the Conex, one on the outside of the door on the left and one inside the door 

on the right. (Ex. R-5). 

Riggs testified that some violations of company policies are so severe that an employee 

who violates such a policy is immediately terminated. (Tr. 158-59). Smoking in the Conex is 

one of the offences that will automatically lead to termination. Riggs testified that two other 

employees were immediately terminated for violations of safety policies in the months prior to 

the termination of Jenkins. Jacob Johnson was terminated on August 7, 2011 because he 

bypassed safety features on 480-volt electrical starters. (Tr. 162-63; Ex. R-7). Virgil 

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Humphries was terminated on November 11, 2011 because he removed a handrail on a dredge to 

repair a pump and he failed to replace the handrail after he completed the repairs. (Tr. 163; Ex. 

R-8). Humphries was terminated after MSHA issued a citation for the missing handrail. Riggs 

admitted that Chieftain did not have a written document that memorialized its company policies, 

but he testified that the policies were discussed with employees including Jenkins. All 

employees had attended safety meetings in which it was stated that smoking was prohibited in 

the Conex at any time and that smoking was prohibited in the vicinity of the Conex if the door 

was in the open position. (Tr. 171). On the other hand, Thetford testified that he could not recall 

receiving any training or instructions concerning smoking policies. (Tr. 147). 

II. ARGUMENTS OF THE PARTIES 

The Secretary contends that the evidence clearly establishes that the discrimination 

complaint was not frivolously brought and that all one has to do is connect the dots. On October 

27, the company disciplined Jenkins for complaining about the safety of operating the loader in 

the rain without functioning side windows. Jenkins filed a hazard complaint with MSHA as a 

result. Second, Jenkins discussed this issue with Inspector Medlin on November 8. Third, 

Medlin inspected the pit on November 9 as a result of Jenkins’ hazard complaint, Jenkins 

participated in the inspection, and Medlin issued a citation for the condition of the windows. 

The Secretary maintains that Chieftain had no objective, written policy prohibiting smoking in 

and around the Conex. Finally, when Jenkins was called to the office to discuss the smoking 

incident, the termination notice had already been drafted; no discussion was permitted. 

Chieftain argues that Jenkins never filed a complaint of discrimination alleging that he 

was terminated from his employment because of his protected activity. His discrimination 

complaint, filed before he was terminated, simply alleges that he was required to operate a 

defective loader. The facts show, however, that after Jenkins complained about the loader he 

was not required to operate it again. Chieftain also contends that MSHA did not investigate the 

termination aspect of the discrimination complaint. When Medlin conducted his investigation he 

questioned employees about the events of October 27, 2011, but he never asked employees about 

the events of November 26, 2011. The evidence shows that Jenkins committed an obvious and 

serious safety violation that justified his termination. Other employees had likewise been 

terminated for committing safety violations. When confronted about the safety violation, 

Jenkins did not deny the infraction. Finally, Chieftain argues that Jenkins filed an amended 

complaint with the EEOC that alleges that he was “disciplined and discharged in retaliation for 

filing an EEOC charge.” (Ex. R-3). Chieftain maintains that his MSHA discrimination 

complaint is entirely inconsistent with the allegations in his EEOC complaint. Chieftain 

maintains that the evidence establishes that there is no causal connection between his actions on 

October 27 and his termination on November 26. 

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III. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW
 

Section 105(c)(2) of the Mine Act prohibits discrimination against miners for exercising 

any protected right under the Mine Act. The purpose of the protection is to encourage miners “to 

play an active part in the enforcement of the [Mine] Act” recognizing that, “if miners are to be 

encouraged to be active in matters of safety and health, they must be protected against any 

possible discrimination which they might suffer as a result of their participation.” S. Rep. No. 

181, 95th Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977 at 623 (1978) (“Legis. Hist.”). 

Section 105(c)(2) provides, in pertinent part, that the Secretary shall investigate each 

complaint of discrimination “and if the Secretary finds that such complaint was not frivolously 

brought, the Commission, on an expedited basis upon application of the Secretary, shall order 

the immediate reinstatement of the miner pending final order on the complaint.” The 

Commission established a procedure for making this determination at 29 C.F.R. § 2700.45. 

Subsection (d) provides that the “scope of a hearing on an application for temporary 

reinstatement is limited to a determination as to whether the miner’s complaint was frivolously 

brought.” 

“The scope of a temporary reinstatement proceeding is narrow, being limited to a 

determination by the judge as to whether a miner’s discrimination complaint is frivolously 

brought.” Secretary of Labor on behalf of Price v. Jim Walter Resources, Inc., 9 FMSHRC 

1305, 1306 (Aug. 1987), aff’d sub nom. Jim Walter Resources Inc. v. FMSHRC, 920 F.2d 738 

(11th Cir. 1990). Courts and the Commission have equated the “not frivolously brought” 

standard contained in section 105(c)(2) of the Mine Act with the “reasonable cause to believe 

standard” at issue in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987). It has also been 

equated with “not insubstantial.” Jim Walter Resources, 920 F.2d at 747. Congress indicated 

that a complaint is not frivolously brought if it “appears to have merit.” (Legis. Hist. at 624-25). 

The first issue that must be addressed is whether I have the authority to order temporary 

reinstatement in this instance because Jenkins did not file a complaint alleging that he had been 

discharged for his alleged protected activity. Section 105(c)(2) provides, in pertinent part, that 

any “miner . . . who believes that he has been discharged, interfered with, or otherwise 

discriminated against by any person in violation of this subsection may . . . file a complaint with 

the Secretary alleging such discrimination.” Mr. Jenkins filed such a complaint on November 9, 

2011, alleging that he was “made to operate” defective equipment. He implicitly alleged that his 

refusal to operate the loader was protected activity. Although he did not directly communicate 

his safety concern to management, for purposes of this temporary reinstatement proceeding it 

can be assumed that his refusal was based at least in part on his concerns over his safety. He did 

not specifically state what adverse action was taken against him in his discrimination complaint. 

Once he shut down the loader, he was not required to operate that loader again. One can easily 

imply, however, that the adverse action was the written warning notice issued to him on 

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November 3, 2011. Under a section entitled “Consequences of Further Infractions,” Riggs had 

written “You can face termination of employment if you continue to disregard company policy 

and standards.” (Ex. R-4). As a consequence, it is clear that the company considered the three 

infractions included in the warning notice to be serious. At the time Jenkins filed his complaint, 

he had not been terminated from his employment. 

Section 105(c)(2) requires that the Secretary start her investigation of the discrimination 

complaint within 15 days of receipt and then it provides that “if the Secretary finds that such 

complaint was not frivolously brought, the Commission, on an expedited basis upon application 

of the Secretary, shall order the immediate reinstatement of the miner pending final order on the 

complaint.” (Emphasis added). First, it must be noted that this provision is only relevant if the 

miner had been discharged from his employment. In this instance, at the time Jenkins filed his 

discrimination complaint, he had not been discharged and he indicated that fact on MSHA’s 

discrimination complaint form. The second point to note is that the issue is whether the 

complaint filed by the miner was frivolously brought and not whether the Secretary’s application 

for temporary reinstatement was frivolously brought. For reasons that I cannot understand, 

Jenkins did not amend his discrimination complaint to include his termination after he was 

discharged and, indeed, it appears that Medlin advised him that he was not required to do so. It 

is not uncommon for a miner to file amended discrimination complaints if the alleged adverse 

action becomes more severe.4 Jenkins testified, however, that he asked Medlin if he could be 

temporarily reinstated. 

In Sec’y on behalf of Dixon et al v. Pontiki Coal Corp., 19 FMSHRC 1009 (June 1997), 

the Commission addressed a similar issue. In that case, a single miner filed a discrimination 

complaint with the Secretary. Based upon her investigation, the Secretary determined that she 

should file a discrimination proceeding on behalf of this miner and a number of other miners for 

the same discriminatory conduct by the mine operator. The operator maintained that, under 

section 105(c)(2), the Secretary is limited to filing discrimination proceedings before the 

Commission only on behalf of those who filed an initiating complaint. Id. at 1016. The 

Secretary argued that “section 105(c)(2) permits her to file a complaint alleging all 

discrimination her investigation may have uncovered. . . .” Id. After reviewing the language of 

the Mine Act, the Commission concluded that the Secretary’s interpretation was reasonable. Id. 

at 1017. The Commission also noted that the Secretary’s interpretation was consistent with 

Commission precedent that has recognized that “it is the scope of the Secretary’s investigation, 

rather than the initiating complaint, that governs the permissible ambit of the complaint filed 

with the Commission.” Id. at 1017-18 (emphasis in original). 

On the basis of this Commission decision, I hold that, for the purposes of this temporary 

reinstatement proceeding, the failure of the applicant to amend his complaint of discrimination to 

4

 See, for example, Sec’y on behalf of Pollock v. Kennecott Barney’s Canyon Mining, 22 

FMSHRC 419 (March 2009) (ALJ), in which four discrimination complaints were filed as events 

unfolded. 

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include an allegation that he was terminated from his employment because of his protected 

activity is not fatal to his request for temporary reinstatement so long as the scope of the 

Secretary’s investigation included such an allegation. I find that, although the Secretary’s 

investigation has been rather cursory at this point, Inspector Medlin did include this issue in his 

investigation. In his declaration dated January 3, 2012, Inspector Medlin stated that: 

Mr. Jenkins has asserted to me that he was discriminatorily 

terminated from his employment by respondent on, or about, 

November 26, 2011 because he engaged in such protected activity. 

Mr. Jenkins has asserted that this constitutes an act of 

discrimination under the Mine Act. This assertion does not appear 

to me to be frivolous. 

(Ex. A ¶4e to Application for Temporary Reinstatement). Medlin interviewed Jenkins on this 

issue and took Jenkins at his word. As stated above, Medlin did talk to Thetford about the 

smoking issue and he also received a written statement from Chieftain. (Tr. 101). Consequently, 

I concluded that have I have jurisdiction to order that Jenkins be temporarily reinstated, if the 

Secretary has met her burden of proof. 

I find that the Secretary presented sufficient evidence to establish that the complaint of 

discrimination was not frivolously brought. I find that Jenkins engaged in protected activity 

when he refused to drive the loader in the cold rain without side windows being present. The 

fact that Chieftain did not recognize his complaint as safety related is a factor to be considered 

but it is not determinative. Jenkins also suffered an adverse action about four weeks later when 

he was terminated from his employment. The key issue is whether there was any kind of causal 

nexus between these two events. The Commission has frequently acknowledged that it is often 

difficult to establish a “motivational nexus between protected activity and the adverse action that 

is the subject of the complaint.” Sec’y of Labor on behalf of Baier v. Durango Gravel, 21 

FMSHRC 953, 957 (Sept. 1999). 

Smoking in the Conex with the door closed presented a very real and serious hazard to 

anyone working in the vicinity. Immediately terminating the employment of someone who 

smokes in the Conex is a reasonable and creditable action by an employer. Chieftain presented 

credible evidence that Jenkins was smoking in the Conex on the day that he was terminated and 

that Jenkins did not specifically deny doing so when confronted by management. Jenkins 

testified that he was not smoking in the Conex but only in the vicinity of the Conex, as other 

employees have been permitted to do. As a consequence, there is a conflict in the testimony. 

The Commission has held that the judge should not undertake to resolve disputes of fact or 

credibility that arise in a temporary reinstatement hearing. Sec’y of Labor on behalf of Albu v. 

Chicopee Coal Co., 21 FMSHRC 717,719 (July 1999); Sec’y of Labor on behalf of Stahl v. A & 

K Earth Movers, Inc., 22 FMSHRC 323, 325-26 (2000). A temporary reinstatement hearing is 

held for the purpose of determining “whether the evidence mustered by the miners to date 

established that their complaints are nonfrivolous, not whether there is sufficient evidence of 

discrimination to justify permanent reinstatement.” Jim Walter Resources, 920 F.2d at 744. 

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If I assume that Jenkins was not actually smoking in the Conex but was only smoking in 

an area where other employees frequently smoke, then the reason given for his termination could 

well be mere pretext and one could conclude he was actually terminated, at least in part, for 

complaining about operating the “defective” loader. I find that his testimony was not inherently 

unworthy of giving any credit. Based on the evidence presented, I cannot hold “that things could 

not have happened the way the [applicant] alleges that they did. . . .” A & K Earth Movers Inc., 

22 FMSHRC 233, 237 (Feb. 2000) (ALJ); aff’d 22 FMSHRC 323 (March 2000). Chieftain’s 

evidence indicates that it may well have a valid defense to Jenkins complaint but, as set out 

above, the purpose of a temporary reinstatement proceeding is to determine whether the evidence 

presented by the Applicant establishes that his complaint is not frivolous. 

Chieftain maintains that, because it did not require Jenkins to operate loader after he 

complained about its condition and that it took the loader out of service to be repaired, there can 

be no question that Jenkins’ alleged protected activity was unrelated to his subsequent 

termination. Chieftain argues that it did not exhibit any hostility toward the protected activity. 

The Commission has held that a showing of hostility toward the protected activity is not required 

to support an order for temporary reinstatement. A & K Earth Movers, 22 FMSHRC at 325 n. 2. 

In addition, Jenkins also participated in the MSHA investigation conducted by Medlin as a result 

of his hazard complaint during which Chieftain received a citation for the missing windows. 

Chieftain knew of this participation. It is not unforeseeable that his participation precipitated a 

desire on the part of mine management to look for a reason to terminate Jenkins’ employment. It 

is somewhat curious that, if Thetford saw Jenkins walk into the Conex with a lit cigarette, why 

he did not immediately tell Jenkins to get out in order to protect his own safety. Thetford was 

only a few feet away from the Conex. Instead, Thetford did not say a word to Jenkins or try to 

get him out of the Conex, but immediately went to Binger to tell him what happened, seemingly 

knowing that it would get Jenkins in trouble. 

Chieftain argues that, because Jenkins never stated in his complaint filed with MSHA 

that he believes his termination was because of his safety activities and then set forth, under oath, 

an entirely different reason for his termination in a complaint before the EEOC, there can be no 

merit to his MSHA complaint.5 (Tr. 14). I find that this is a compelling argument which raises 

serious questions about Jenkins’ credibility. The two complaints appear to be inconsistent. 

Nevertheless, Jenkins may be unsure exactly why he was terminated and may have filed the 

EEOC complaint to protect his rights and to avoid any potential laches argument. This issue will 

need to be considered if a formal complaint of discrimination is filed by the Secretary. I am 

5
 Because this proceeding does not involve the EEOC complaint, little evidence was 

admitted at the hearing on this issue. In his EEOC complaint, Jenkins alleges that, starting in July 

2011, an independent contractor employee performing work at the pit hurled racial epithets at 

Jenkins and also threatened him. (Ex. R-3). He admitted that this contractor no longer worked on 

the property starting around September 2011. (Tr. 52-53). In his complaint, Jenkins states that he 

was “disciplined and discharged in retaliation for filing an EEOC charge, in violation of Title VII 

of the Civil Rights Act of 1964, as amended.” (Ex. R-3). 

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bound by the Commission’s decision in Pontiki Coal Corp. in which the Commission held that it 

is the scope of MSHA’s investigation that “governs the permissible ambit of the complaint.” 19 

FMSHRC at 1016. 

IV. ORDER 

For the reasons set forth above, Chieftain Sand and Proppant, LLC is hereby ORDERED 

to immediately reinstate Richmond Teddy Jenkins to the position he held immediately prior to 

his termination on November 26, 2011, at the same rate of pay and benefits for that position, or 

to a similar position with the same or equivalent duties, at the same rate of pay and benefits. The 

Secretary SHALL COMPLETE as quickly as possible her investigation of the underlying 

discrimination complaint. I retain jurisdiction over this temporary reinstatement proceeding. 29 

C.F.R § 2700.45(e)(4). On or before February 27, 2012, counsel for the Secretary shall advise 

me and the parties, in writing, whether the Secretary has determined that Chieftain violated 

section 105(c) of the Mine Act.6 

/s/ Richard W. Manning 

Richard W. Manning 

Administrative Law Judge 

Distribution: 

Karla S. Jackson, Esq., and Michael Schoen, Esq., Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202-5036 (Email Jackson.Karla@dol.gov 

and Certified Mail) 

Thomas E. Reddin, Esq., Winstead PC, 1601 Elm Street, 5400 Renaissance Tower, Dallas TX 

75270-4701 (Email treddin@winstead.com and Certified Mail) 

RWM 

6

 Under section 105(c)(3), the Secretary is required to complete her investigation within 90 

days of receipt of the complaint of discrimination. Because Jenkins was not terminated until 

November 26, 2011, for purposes of this order only, I have calculated the 90 day period to begin on 

that date and expire on February 27, 2012. 

Ex

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

7 PARKWAY CENTER, SUITE 290
 

875 GREENTREE ROAD
 

PITTSBURGH, PA 15220
 

TELEPHONE: (412) 920-7240
 

FACSIMILE: (412) 928-8689
 

February 6, 2012 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

: 

: 

TEMPORARY REINSTATEMENT

PROCEEDING

 ADMINISTRATION (MSHA), 

on behalf of CHUCK E. MOSBY, 

Complainant 

:

: 

: 

: 

Docket No. LAKE 2012-261-DM 

MSHA Case No.: NC-MD-12-01 

v. : 

: 

MULZER CRUSHED STONE, INC., 

Respondent 

: 

: 

Mine: Rockport Plant 

Mine ID 12-01389 

AMENDED DECISION AND ORDER 

REINSTATING CHUCK E. MOSBY 

Appearances: Edward V. Hartman, Esq., U.S. Department of Labor, Office of the Solicitor, 

 Chicago, Illinois, representing the Secretary of Labor (MSHA) on behalf of 

Chuck E. Mosby

 Donna Vetrano Pryor, Esq., Patton Boggs LLP, Denver, Colorado, representing 

Mulzer Crushed Stone, Inc. 

Before: Judge Andrews 

Pursuant to section 105 (c)(2) of the Federal Mine Safety and Health Act of 1977 

(AAct@), 30 U.S.C. '801, et. seq., and 29 C.F.R. '2700.45, the Secretary of Labor (ASecretary@) 

on January 6, 2012, filed an Application for Temporary Reinstatement of miner Chuck E. 

Mosby (AMosby@) to his former position with Mulzer Crushed Stone, Inc., (AMulzer@ or 

ARespondent@) at the Rockport Plant pending final hearing and disposition of the case. 

On December 8, 2011, Mosby filed a Discrimination Complaint alleging, in effect, that 

his termination was motivated by his protected activity.1 In the Secretary=s application, she 

1

 Under the Act, protected activity includes filing or making a complaint of an alleged danger, or 

safety or health violation, instituting any proceeding under the Act, testifying in any such 

proceeding, or exercising any statutory right afforded by the Act. See Sec’y of Labor on behalf 

of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds sub 

nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981). 

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represents that the complaint was not frivolously brought, and requests an Order directing 

Respondent to reinstate Mosby to his former position as a machinist. 

Respondent filed a request for hearing on January 17, 2012. An expedited hearing was 

held in Jeffersonville, Indiana on January 26, 2012. The Secretary presented the testimony of 

the complainant Mosby, and the Respondent did have the opportunity to cross-examine the 

Secretary=s witness, and present testimony and documentary evidence in support of its position. 

29 C.F.R. '2700.45(d). At the hearing, the parties agreed that any temporary reinstatement 

should be economic only. 

For the reasons set forth below, I grant the application and order the temporary 

economic reinstatement of Mosby. 

Discussion of relevant law 

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising 

any protected right under the Mine Act. The purpose of the protection is to encourage miners 

Ato play an active part in the enforcement of the [Mine Act]@ recognizing that, Aif miners are to 

be encouraged to be active in matters of safety and health, they must be protected against any 

possible discrimination which they might suffer as a result of their participation.@ S. Rep. No. 

181, 95th Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 623 (1978). 

In adopting section 105(c), Congress indicated that a complaint is not frivolously brought 

if it Aappears to have merit.@ S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In 

addition to Congress= Aappears to have merit@ standard, the Commission and the courts have also 

equated Anot frivolously brought@ to Areasonable cause to believe@ and Anot insubstantial.@ Sec'y 

of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 

920 F.2d 738, 747 & n.9 (11th Cir. 1990). 

Temporary Reinstatement is a preliminary proceeding, and narrow in scope. As such, 

neither the judge nor the Commission is to resolve conflicts in testimony at this stage of the case. 

Sec=y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). The 

substantial evidence standard applies.2 Sec’y of Labor on behalf of Peters v. Thunder Basin Coal 

Co., 15 FMSHRC 2425, 2426 (Dec. 1993). A temporary reinstatement hearing is held for the 

purpose of determining Awhether the evidence mustered by the miners to date established that 

2

 ASubstantive evidence@ means Asuch relevant evidence as a reliable mind might accept as 

adequate to support [the judge=s] conclusion.@ Rochester & Pittsburgh Coal Co., 11 FMSHRC 

2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)). 

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their complaints are nonfrivolous, not whether there is sufficient evidence of discrimination to 

justify permanent reinstatement.@ Jim Walter Resources, 920 F.2d at 744. 

In order to establish a prima facie case of discrimination under section 105(c) of the Act, 

a complaining miner must establish (1) that he engaged in protected activity and (2) that the 

adverse action complained of was motivated in any part by that activity. Sec’y of Labor on 

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev�d on other 

grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec=y of 

Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981). 

However, in the instant matter, Mosby need not prove a prima facie case of 

discrimination with all of the elements required at the higher evidentiary standard needed for a 

decision on the merits. Rather, the same analytical framework is followed within the Areasonable 

cause to believe@ standard. Thus, there must be Asubstantial evidence@ of both the applicant=s 

protected activity and a nexus between the protected activity and the alleged discrimination. To 

establish the nexus, the Commission has identified these indications of discriminatory intent: (1) 

hostility or animus toward the protected activity; (2) knowledge of the protected activity; and (3) 

coincidence in time between the protected activity and the adverse action. Sec=y of Labor on 

behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). The 

Commission has acknowledged that it is often difficult to establish a Amotivational nexus 

between protected activity and the adverse action that is the subject of the complaint.@ Sec=y of 

Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept.1999). The 

Commission has further considered the disparate treatment of the miner in analyzing the nexus 

requirement. Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 

2510 (Nov. 1981), rev=d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). 

The evidence 

On December 3, 2011, Mr. Mosby executed a Summary of Discriminatory Action, filed 

with his Discrimination Complaint of December 8, 2011. In this statement he wrote that on 

November 28, 2011, he was terminated from his job after eleven years of employment. He 

stated he was accused of lying to the company by Kevin Fulkerson, a maintenance Supervisor, 

who had gone through his toolbox and confiscated a personal notebook. Mosby wrote that he 

kept these notes regarding anything he spoke to the company about, from suggestions of 

improvement or efficiency, to violations, including times he had talked to management about 

safety violations or even EPA violations. He reported that a week or so before he was 

terminated he told his foreman, Joe Beckhort [sic], about an oxygen cylinder that had the cap 

missing and was not tied down; it had been removed from a welding cart. He stated that Joe 

Beckhort [sic] listened, noted it, and said he would take care of it, but the next day the problem 

had not been fixed. Mosby also recalled an incident about nine months before his termination 

when, following a three-day lay-off, he was asked in a very intimidating manner by Safety 

Director Brian Peter if he had anything to report him. Mosby wrote that, at the time, he was 

scared of losing his job, and said no. He ended the summary statement by concluding that 

because of finding his notebook, they were accusing him of lying. (Exh. S-2). 

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Submitted with the application was the January 5, 2012 Declaration of Thomas J. Pavlat, 

a Special Investigator employed by the Mine Safety and Health Administration. Mr. Pavlat 

stated that he had investigated the discrimination claim of Chuck E. Mosby against Mulzer 

Crushed Stone, Inc. He had determined the following: 

c. On or about November 8, 2011, the affected miner, Chuck 

E. Mosby, engaged in protected activity by reporting to his 

immediate supervisor, Joe Beckort, that an oxygen cylinder at 

Respondent=s worksite was missing a cap and was not properly 

secured. 

d. On November 28, 2011, after returning to work from the 

Thanksgiving holiday, Mr. Mosby was terminated by respondent. 

(Exh. S-3). The Special Investigator concluded that evidence exists that Mulzer Crushed Stone, 

Inc., Adecided to discharge Mr. Mosby based, in part, on his making an internal safety 

complaint,@ and determined that the discrimination complaint was not frivolously brought. (Id.) 

The Respondent disputes that there is any nexus between Mosby=s safety complaint 

regarding the oxygen cylinder and any adverse action, namely his subsequent termination. 

Instead, Mulzer contends that Mosby was terminated in accordance with its progressive 

disciplinary policy. Mosby had already received verbal discussions regarding his behavior and 

a three-day layoff. Moreover, Respondent argues that Mosby did not engage in protected 

activity by keeping a log of safety issues that he neither reported nor corrected. 

Stipulation of Facts 

During the hearing, the parties entered the following six stipulations on the record: 

I. Mulzer Crushed Stone, Inc., did business and operated a mine known as 

the ARockport Plant@ and was an operator as defined in Section 3(d) of the 

Mine Act, 30 U.S.C. Section 802(d). 

II. Mulzer=s operation is located at or near Rockport, Indiana, and is a mine, 

the products of which enters commerce or the operations of products 

which effect commerce, all within the meaning of Section 3(b) and 4 of 

the Mine Act, 30 U.S.C. Section 802(d) and 803. 

III. The affected miner, Mr. Chuck Mosby, worked for Respondent in its 

 Rockport Plant as a maintenance employee, and is a miner within the 

meaning of Section 3(g) of the Mine Act, 30 U.S.C. Section 802(g). 

IV. On or about 7 or 8 November, 2011, Mr. Mosby reported to his immediate 

supervisor, Joe Beckort, that a compressed gas cylinder was missing a cap 

and was not properly secured. 

V. On November 28th, 2011, upon returning to work from the Thanksgiving 

holiday, Mr. Mosby was terminated by Mulzer Crushed Stone, Inc. 

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VI.	 This temporary reinstatement proceeding is subject to the jurisdiction of 

the Federal Mine Safety and Health Review Commission, and its 

designated Administrative Law Judge pursuant to Sections 105 and 116 of 

the Mine Act. 

Testimony of Chuck E. Mosby 

Chuck Mosby, the Complainant, testified that he began working in a machine shop after 

graduating high school in 1982. (TR 16).3

 He began working as a machinist in the maintenance 

department for Mulzer Crushed Stone=s Rockport, Indiana facility in November, 2000. (TR 14-

15). In that capacity, he stated that he worked in a machine shop, operating lathes, milling 

machines, drill presses, and any other necessary machine to complete maintenance tasks. (TR 

15). Mosby stated that on November 7, 2011, he observed an unsecured oxygen cylinder 

without a permanent cap. (TR 21). He described the cylinder as four to five feet tall, and 

approximately eight inches in diameter, with a valve on top. (TR 20). The cylinder is used for 

cutting metals or welding, and contains a high amount of pressurized gas. (Id.) He opined that 

the situation presented a safety hazard affecting those working in the area because if the 

cylinder would fall over and knock the valve off, the tank would become a projectile. (TR 21). 

According to Mosby, gas cylinders are supposed to be secured with a tie, strap or chain, 

whether they are stored or moved, to prevent tipping or falling. (TR 22). Upon observing the 

gas cylinder, Mosby stated that he reported to his supervisor, Joe Beckort, that the cylinder was 

standing unsecured and needed to be strapped. (TR 22-23). Mosby said he saw the cylinder 

again towards the end of his shift on the following day in the same location, but did not make 

any further report to anybody. (TR 23-24). 

Mosby then stated that he clocked in on Monday, November 28, 2011, his first day of 

work after the Thanksgiving holiday, and was called to the office by Kevin Fulkerson, the 

maintenance superintendent. (TR 24-25). The meeting included Fulkerson, Mike Hughes, 

superintendent of the Rockport yard, and Joe Beckort, Mosby=s shop supervisor. (TR 25). 

Mosby testified that he was fired during that meeting, and believed his termination was due to 

his complaint about the gas cylinder. (TR 25-26). 

On cross-examination, Mosby admitted that he did not resolve the situation regarding 

the gas cylinder, but reported it to his supervisor, which he believed fulfilled his obligations 

under the employee manual. (TR 29-30, 32-33). He added that it would have taken him 

approximately ten to fifteen minutes to resolve the situation himself, but he was never told to do 

so. (TR 33, 54). In further describing his work, Mosby stated that his duties varied, and he did 

whatever the foreman asked him to do, and he was to complete his tasks expeditiously to move 

on to the next assignment, rather than look for violations and correct them on his own. (TR 50-

51). 

3

 The abbreviation ATR@ is used to reference the hearing transcript.

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Mosby also testified about notes he kept in a calendar book regarding safety issues, or 

other issues that bothered him. (Exh. R-C; TR 34-45). He made observations of safety hazards, 

some of which he reported, and others he did not. (TR 37-44). Mosby acknowledged that he 

had been disciplined for his actions, including kicking an empty plastic trash can, and being 

accused of not properly maintaining a piece of equipment. (TR 46-47). 

Testimony of Jeff Mulzer, Vice President 

Jeff Mulzer, Vice President for Administration with Mulzer Crushed Stone, testified on 

behalf of the Respondent. Mulzer stated that he made the determination to terminate Mosby=s 

employment after consulting with Gloria Allen, Director of Human Resources, and Brian 

Peters, Director of Safety. (TR 58). He likewise spoke with Mr. Fulkerson, but neither 

Fulkerson or Joe Beckort were part of the final determination regarding Mosby=s termination. 

(TR 59). He was unable to recall any discussion regarding unsecured gas cylinders prior to the 

issue being raised at the hearing. (Id.) Mulzer stated that the decision to terminate Mosby was 

in accordance with the company=s progressive disciplinary system, in which an escalating 

pattern is used to correct employee behavior. (TR 60-61). 

Mulzer recalled notes regarding verbal warnings, and he likewise had recollection that 

Mosby was given a three-day layoff recently, which factored into the decision to terminate 

Mosby=s employment. (TR 61). Noting that he did not have a calendar in front of him, he was 

unable to recall when the decision to terminate Mosby occurred, but stated that it was after they 

reviewed his notebook. (TR 62-67, 73). He initially testified on cross-examination that he did 

not touch Mosby=s notebook, but spoke with Athe people who did the investigation.@ (TR 67). 

Mulzer later testified that he was involved in finding the notebook, after determining, in 

consultation with Ms. Allen, that it was reviewable since it was stored in a company toolbox on 

company property. (TR 69-70). According to Mulzer, they reviewed the information written in 

the notebook, looked at the items recorded and determined which had been reported and which 

had not, and considered Mosby=s work history. (Id.) Mulzer noted that he was aware of 

Mosby=s Areputation for being bombastic@, and that he Aunderstood that he was somebodyYto 

complain whenever he wanted to.@ (TR 68). 

Testimony of Thomas J. Pavlat 

Thomas Pavlat, a special investigator for the Mine Safety and Health Administration 

(AMSHA@) in the North Central District=s Peru, Illinois office, testified for the Respondent. 

Pavlat stated that he made an initial determination of the case, based on information he had 

received by late December, 2011. (TR 89-90). Based on that information, he determined that 

Mosby=s claim was not frivolously brought, and issued a declaration to that effect on January 5, 

2012. (TR 90, Exh. S-3). In making that determination, Pavlat stated that his investigation was 

limited to conversation with Mosby. (TR 90-91). After making the initial determination, Pavlat 

testified that he continued his investigation, interviewed several witnesses, collected documents, 

and completed an analysis of this information, which contributed to the letter of January 20, 

2012, notifying Mosby of the MSHA decision on his discrimination claim. He further testified 

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that based on the evidence gathered during this subsequent investigation on the merits of the 

case, he then felt the claim was frivolously brought. (TR 92-93, 102-103, Exh. R-D). 

Exhibits 

The Secretary submitted three exhibits into the record at the hearing and they were duly 

admitted into evidence. (TR 18). Exhibit S-1 is the Application for Temporary Reinstatement, 

filed by the Secretary on January 6, 2012. The Secretary concluded, after an initial 

investigation, that the discrimination complaint was not frivolously brought. 

Exhibit S-2 includes Mosby=s complaint to MSHA regarding his dismissal. Mosby 

completed MSHA Form 2000-124, entitled ADiscrimination Report@, on December 3, 2011, and 

Discrimination Complaint, MSHA Form 2000-123, which was filed by Mosby on December 8, 

2011. In the handwritten December 3, 2011 Report, Mosby wrote that he was terminated from 

employment after Kevin Fulkerson accused him of lying to the company. Mosby further noted 

that Fulkerson went through his toolbox and confiscated his personal notebook, which he had 

used to make personal notes, suggestions, or notes regarding safety or EPA violations to 

Apeople and management@. In addition, Mosby noted that he informed Beckort about the 

oxygen cylinder being unsecured and missing a cap. He noted that the problem had not been 

fixed as of the next day, and that he kept the notebook, in part, because he had experienced 

Aproblems for several years getting the company to take my problems seriously.@ He concluded 

the report by noting that he had not reported anything to Brian Peter when asked nine months 

prior because he felt intimidated and was scared of losing his job. 

The December 8, 2011 Complaint was filed by Mosby with the Indianapolis Field 

Office in MSHA=s North Central District. It identifies Mulzer Crushed Stone as the Respondent 

Organization, and Kevin Fulkerson, Maintenance Superintendent, as the person responsible for 

the discriminatory action. 

Exhibit S-3 is the Declaration of Thomas J. Pavlat, signed January 5, 2012. In the 

declaration, Pavlat stated that he had investigated Mosby=s discrimination claim, and at that 

point in his investigation, Pavlat determined that on or about November 8, 2011, Mosby 

engaged in protected activity by reporting the oxygen cylinder=s condition to his immediate 

supervisor, Beckort. He likewise noted that Mosby was terminated upon reporting for work on 

November 28, 2011. Based on the information he had, Pavlat concluded that evidence existed 

that Mulzer decided to discharge Mosby Abased, in part, on his making an internal safety 

complaint.@ He concluded, A[t]hus, it is my determination that the discrimination complaint 

filed by Chuck E. Mosby was not frivolously brought.@ 

Respondent likewise entered four exhibits into the record at the hearing and they were 

duly admitted into evidence. (TR 31-32, 35). Exhibit R-A is an AAcknowledgement of 

Receipt@, purportedly a page from Mulzer=s published employee manual. It is signed by Chuck 

Mosby and a company representative. Exhibit R-B includes the cover page, pages 9-10, and 

33-34 of the 2007 Edition AEmployee Manual@ for Mulzer Crushed Stone, Inc., Materials 

Transport, Inc., and Shamblin Stone, Inc. 

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Exhibit R-C includes seventeen side-by-side pages of the calendar books used by Mosby 

to record his notes, suggestions and observations of safety complaints. The exhibit consists of 

selected pages from 2007 and 2010 date books. The book contains numerous entries, including 

observations of safety violations. Mosby noted that the book itself is not always indicative of 

the dates of the incidents; rather, it was a spare notebook which he utilized for the previously 

stated purpose, and if the entry had a date handwritten with it, that was the date of the 

occurrence. (TR 49). 

Exhibit R-D is the letter dated January 20, 2012, from MSHA=s North Central District 

Manager to Mosby. The letter advises Mosby that MSHA=s review has determined that Afacts 

disclosed during the investigation do not constitute a violation of Section 105(c). Therefore, 

discrimination, within the confines of the Mine Act, did not occur.@ 

The record includes significant discussion about the relevance of Pavlat=s investigation 

and determinations subsequent to his January 5, 2012 declaration, which may have been relied 

upon in the January 20, 2012 letter. (TR 78-88, 93-101). Pavlat=s testimony reflects a change in 

his position after a further in depth evaluation of the circumstances. However, the January 20, 

2012 letter is neither signed by him, nor does it state that the claim was frivolously brought. 

Rather, the letter reflects that the Secretary will not proceed with a discrimination case on 

Mosby=s behalf, under Section 105(c)(2) of the Mine Act. The letter further advises Mosby of 

his right to proceed with an action on his own behalf, under Section 105(c)(3) of the Mine Act. 

The Commission has noted that the Secretary=s decision Anot to proceed with the 

discrimination complaint does not transform that complaint into a frivolous action.@ Secretary 

of Labor on behalf of Mark Gray v. North Fork Coal Corp., 33 FMSHRC 27, 41 (Jan. 2011). 

The Commission further explained that, A[t]o the contrary, not only does the Secretary=s 

negative determination not reduce the complaint into a frivolous claim, the Commission has 

explicitly acknowledged that it >may find discrimination where the Secretary has not= and the 

>the Secretary=s determination not to prosecute [a] discrimination caseYis not probative=@ of 

whether discrimination occurred. Id., quoting Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 

1112, 1117 (July 1995). 

Accordingly, Exhibit R-D, and the information contained therein, may be relevant to the 

consideration of Mosby=s underlying complaint. It is not relevant, however, to the matter 

presently at issue, namely whether the claim was frivolously brought. As such, it is not 

considered in this decision. 

Findings and conclusions 

Protected activity 

On about November 7 or 8, 2011, Mosby advised his supervisor, Joe Beckort, of the 

presence of an oxygen cylinder which was standing unsecured, and uncapped. Section 

105(c)(1) states, in relevant part: 

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No person shall discharge or in any manner discriminate againstYor otherwise 

interfere with the exercise of the statutory rights of any minerYin any coal or 

other mine subject to this chapter because such minerYhas filed or made a 

complaint under or related to this chapter, including a complaint notifying the 

operator or the operator's agentYof an alleged danger or safety or health 

violation in a coal or other mine. 

30 USC ' 815(c)(1)(Emphasis added). By notifying his supervisor of the unsecured, uncapped 

gas cylinder, I find that Mosby engaged in protected activity. 

Moreover, Mosby stated that he believed his suggestions or safety complaints were 

neither acted upon nor respected. His aggravation led him to a discussion with a counselor, who 

suggested Mosby record his thoughts in a diary-like log book. Mosby followed this suggestion 

and began making what he described as observations of safety issues or violations, or 

suggestions to improve efficiency. Mosby asserted that this log was never intended to be used to 

attack the company, but rather, was his personal book designed to prevent him from becoming 

upset. 

The Respondent argues that keeping a log book is not protected activity, citing Collins v. 

Federal Mine Safety and Health Review Com'n, 42 F.3d 1388 (6th Cir.), 1994 WL 683938 

(C.A.6) (unpublished). The only similarity between Collins= and Mosby=s circumstances is that 

each of them kept their respective safety logs private; however, their reasons for doing so 

diverged greatly. In Collins, for example, the Claimant knowingly violated the law, and kept a 

record of his activities solely to protect himself and his job, if ever confronted with his 

violations. (1994 WL 683938 at 4). The Court considered Collins= motivation in determining 

that Agranting relief would frustrate the congressional purpose of encouraging miner 

participation.@ (Id.) 

Mosby did not use the log as a means to cover any violative actions. Instead, Mosby 

used his log to identify violations or suggestions, and compile them in written form to avoid the 

aggravation of being ignored by the company. Although he stated that he never showed the log 

to anyone, or even told anyone about its existence, he acknowledged that some of the items 

found in the log were raised with supervisors, while others were not. 

After considering the circumstances of this case, I find Mosby further engaged in 

protected activity by keeping the safety log, and reporting some of the safety conditions 

contained therein to company personnel. 

Nexus between the protected activity and the alleged discrimination 

Having concluded that Mosby engaged in protected activity, the examination now turns 

to whether that activity has a connection, or nexus to the subsequent adverse action, namely 

Mosby=s November 28, 2011 termination. 

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Respondent has cited Secretary of Labor on behalf of Ronald A. Markovich v. Minnesota 

Ore Operations, in which the Administrative Law Judge noted that timing of a discharge may 

be evidence of a nexus with protected activity, but Athat is not always the case.@ 18 FMSHRC 

1250, 1256-1257 (July 1996)(ALJ). As the ALJ further observed, the Commission has 

recognized that a nexus between protected activity and a subsequent adverse action is rarely 

supplied exclusively by direct evidence. Phelps Dodge Corp., 3 FMSHRC at 2510. More 

often, the determination of a nexus is made by the trier of fact drawing an inference from 

circumstantial evidence. Id. The Commission has identified several circumstantial indicia of 

discriminatory intent, including: (1) hostility or animus toward the protected activity; (2) 

knowledge of the protected activity; (3) coincidence in time between the protected activity and 

the adverse action; and (4) disparate treatment of the complainant. See, e.g., CAM Mining, LLC, 

31 FMSHRC at 1089; see also, Phelps Dodge Corp., 3 FMSHRC at 2510. 

Hostility or animus towards the protected activity 

Mosby did not recall being treated differently by Beckort after raising the issue with the 

gas cylinder. Moreover, in deciding to terminate Mosby, Jeff Mulzer stated that he and Beckort 

did not directly speak about this incident; however, it is unclear from the record whether 

Beckort spoke to any of the other individuals who contributed to the decision. Moreover, 

Mulzer was uncertain about who alerted him to the presence of Mosby=s log book of safety 

issues, including that it Acould=ve been Beckort.@ (TR 70). The safety log listed a number of 

observations by Mosby regarding safety concerns and suggestions. Mosby did not always 

report his safety concerns, believing that his observations were not respected or acted upon. In 

addition, Mulzer acknowledged that he was aware of Mosby=s reputation to be Abombastic@ and 

AsomebodyYto complain whenever he wanted to.@ Considering the record as a whole, I find that 

Respondent had hostility or animus towards Mosby=s protected activity. 

Knowledge of the protected activity 

Mosby informed his supervisor, Beckort, about a safety violation. As the shop 

supervisor, and Mosby=s direct supervisor, he was a representative of the operator. Thus, the 

Respondent was aware of the safety complaint. Moreover, Jeff Mulzer testified that he received 

information regarding the existence of Mosby=s safety log. He acknowledged that he was 

involved in finding the notebook. At first he said that he did not touch the notebook, but only 

spoke to those who investigated the situation. Later, however, he stated that Awe@ determined 

that they could rightfully access Mosby=s toolbox, take the notebook, and review the 

information. The record is clear that whether Mr. Mulzer was personally involved, or relied on 

information provided by Respondent=s employees after their investigation, Respondent was 

aware of the presence of the notebook and the information contained therein. 

Accordingly, I find sufficient evidence that the Respondent had knowledge of Mosby=s 

protected activity. 

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Coincidence in time between the protected activity and the adverse action 

In the present matter, the time between Mosby=s protected activity, namely his 

November 7-8, 2011 safety complaint regarding the unsecured and uncapped oxygen cylinder, 

and his actual termination, on November 28, 2011, was approximately twenty days. According 

to Mulzer, the decision to terminate Mosby was made on either November 25, 26 or 27. 

Moreover, the record is entirely unclear as to when Mosby=s notebook was obtained and 

reviewed by the Respondent=s employees. 

As the Commission has noted, A[a] three week span can be sufficiently close in time@, 

especially when there is evidence of intervening hostility, animus or disparate treatment. CAM 

Mining, LLC, 31 FMSHRC at 1090. Likewise, in All American Asphalt, a 16-month gap 

existed between the miners= contact with MSHA and the operator=s failure to recall miners from 

a layoff; however, only one month separated MSHA=s issuance of a penalty resulting from the 

miners= notification of a violation and that recall failure. Sec’y of Labor on behalf of Hyles v. All 

American Asphalt, 21 FMSHRC 34 (Jan. 1999). The Commission stated AWe >appl[y] no hard 

and fast criteria in determining coincidence in time between protected activity and subsequent 

adverse action when assessing an illegal motive. Surrounding factors and circumstances may 

influence the effect to be given to such coincidence in time.=@ Sec’y of Labor on behalf of Hyles 

v. All American Asphalt, 21 FMSHRC 34, 47 (Jan. 1999)(quoting Hicks v. Cobra Mining, Inc., 

13 FMSHRC 523, 531 (Apr. 1991). 

The time between Mosby=s most recent safety complaint until the termination was 

approximately twenty days. The record is unclear about when Mosby=s safety log was 

discovered, but it may have been in that intervening twenty-day period. Moreover, although 

Mosby was terminated on November 28, 2011, the decision to terminate him was made one to 

three days prior. Thus, I find that the time span between the protected activities and the adverse 

action is sufficient to establish a nexus. 

Disparate Treatment of Mosby 

Mosby acknowledged two previous instances of discipline for his behavior or actions at 

the worksite, including a verbal discussion and a three-day layoff. In describing the 

Respondent=s progressive disciplinary process, Mr. Mulzer indicated that the typical pattern 

included, Aa verbal warning, maybe multiple verbal warnings, written warning, possibly one of 

those three-day layoff[s], and then maybe a final warning or not, and then termination.@ (TR 

60). On cross-examination, Mulzer added that following the progressive policy depends on the 

circumstances and the Aseriousness of the incident and the situation.@ (TR 62). 

Both Mosby and Mulzer identified at least one verbal warning, and Mulzer believed the 

file may have included notes of multiple verbal conversations. Neither identified a written 

warning having been issued to Mosby. Likewise, Mosby was not afforded the tentative final 

warning. Although Mulzer noted that the Respondent=s progressive disciplinary policy can be 

altered for serious situations, he offers no insight as to why Mosby was not afforded each step 

of the identified policy. 

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Accordingly, I find Respondent disparately treated Mosby, because he was treated 

differently than provided for by the Respondent=s disciplinary policy. 

Having considered the four factors above, I find that the Secretary has established a 

nexus between Mosby=s protected activity and the Respondent=s subsequent adverse action. 

Conclusion 

In concluding that Mosby=s complaint herein was not frivolously brought, I give 

significant weight to the evidence of record that he had a history of and engaged in a number of 

protected activities including the most recent complaint regarding the unsecured and uncapped 

oxygen cylinder. I also conclude that Respondent showed animus toward Mosby=s alleged 

protected activities and that there was a close connection in time, approximately three weeks, 

between his first alleged protected activity and his November 28, 2011 discharge. That time 

may be less, depending upon the time the safety log was discovered and reviewed. 

Respondent asserts that its discharge of Mosby was based on his unprotected activities, 

such as violating the company=s policy on reporting or resolving safety violations. In addition, it 

asserts that their decision was made in accordance with its established escalating disciplinary 

plan. Although Mulzer may, in any subsequent proceedings, prevail on the merits, I find that 

Respondent=s evidence on this record is not sufficient to demonstrate that Mosby=s complaint of 

discrimination was frivolously brought. To the contrary, since the allegations of discrimination 

have not been shown to be lacking in merit, I find they are not frivolous. 

ORDER 

Based on the above findings, the Secretary’s Application for Temporary Reinstatement 

is granted. Accordingly, Mulzer Crushed Stone, Inc., based upon agreement of the parties, is 

ORDERED to provide immediate4

 economic reinstatement to Chuck E. Mosby, at the same 

rate of pay for the same number of hours worked, and with the same benefits, as at the time of 

his discharge. 

/s/ Kenneth R. Andrews 

Kenneth R. Andrews 

Administrative Law Judge 

Distribution: (Certified Mail) 

Donna Vetrano Pryor, Esq., Patton Boggs LLP, 1801 California Street, Suite 4900, Denver, CO 

Edward Hartman, Esq., and Matthew Scheff, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 S. Dearborn Street, Suite 844, Chicago, IL 60604 

4

 This amendment reflects the statutory language of 105(c)(2), however the effective date for 

temporary reinstatement remains February 2, 2012, the date of the original Decision and Order. 

Ex

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80202 
34 FMSHRC Page 403

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19th Street, Suite 443 

Denver, CO 80202-2500 

303-844-3577/FAX 303-844-5268 

February 7, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS

 MINE SAFETY AND HEALTH :

 ADMINISTRATION, (MSHA), : Docket No. WEST 2010-53-M 

Petitioner : A.C. No. 26-02567-196388-01 

: 

v. : Docket No. WEST 2010-54-M 

: A.C. No. 23-02567-196388-02 

TITAN CONSTRUCTORS, INC., : 

Respondent : Titan Constructors Products 

DECISION 

Appearances: Tyler P. McLeod, Esq., Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, for Petitioner; 

Mark Wray, Esq., Law Offices of Mark Wray, Reno, Nevada, for 

Respondent. 

Before: Judge Manning 

These cases are before me on petitions for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), 

against Titan Constructors (“Titan”) pursuant to sections 105 and 110 of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Mine Act”). The parties introduced 

testimony and documentary evidence at a hearing held in Henderson, Nevada. In lieu of filing 

post-hearing briefs, the parties presented oral argument at the hearing. 

Prior to the hearing, the Secretary submitted a Motion for Partial Summary Decision and 

Memorandum of Points and Authorities on October 25, 2011. Titan submitted its Response to 

Secretary’s Motion for Summary Decision and Supporting Points and Authorities on November 

9, 2011. By Order dated November 10, 2011, I denied the Secretary’s Motion for Partial 

Summary Decision because there were genuine issues of fact in dispute. 29 C.F.R. § 

2700.67(b)(1). The hearing was held on December 11, 2011. 

Titan owned and operated a portable crusher that had been moved to several locations in 

eastern Nevada. In addition, Titan owned and operated a concrete batch plant. In 2007, Titan 

moved the portable crusher to the property where the concrete batch plant is located.1 These 

cases involve nineteen section 104(a) citations, one section 104(d)(1) citation, and four 104(d)(2) 

1 At the hearing, Titan often referred to this property as the “Ready Mix Property” and 

the adjacent area where the pit and crusher were located as the “Steptoe Valley Pit.” 

Ex. 5 Deliberative
34 FMSHRC Page 404

orders of withdrawal. The parties have settled two orders and eleven citations. (GX-10)2

. The 

remaining nine citations and two orders allege violations that occurred in or in relation to the 

shop that is in the same building as the batch plant. Titan stipulated that, in the event the court 

should find that the shop was subject to jurisdiction of the Mine Act, it would withdraw its 

contest as to the charging documents. (JX-1, ¶ 3). As a consequence, the sole issue before me is 

whether this shop area inspected by the U.S. Department of Labor’s Mine Safety and Health 

Administration (“MSHA”) was subject to the jurisdiction of the Mine Act. 

I. BASIC LEGAL PRINCIPLES 

Section 4 of the Mine Act provides, in part, that “each coal or other mine . . . shall be 

subject to the provisions of this Act.” 30 U.S.C. § 803. Section 3(h)(1) of the Act, in pertinent 

part, defines “coal or other mine” as: 

(A) an area of land from which minerals are extracted . . . (B) 

private ways and roads appurtenant to such area, and (C) lands, 

excavations, underground passageways, shafts, slopes, tunnels and 

workings, structures, facilities, equipment, machines, tools, or 

other property . . . on the surface or underground, used in, or to be 

used in, or resulting from, the work of extracting such minerals 

from their natural deposits in nonliquid form, or . . . used in or to 

be used in, the milling of such minerals, or the work of preparing 

coal or other minerals . . . . In making a determination of what 

constitutes mineral milling for purposes of this Act, the Secretary 

shall give due consideration to the convenience of administration 

resulting from the delegation to one Assistant Secretary of all 

authority with respect to the health and safety of miners employed 

at one physical establishment. 

30 U.S.C. § 802(h)(1). 

In order to effectuate the “convenience of administration,” MSHA and OSHA entered 

into an interagency agreement, which attempts to delineate the areas of authority and to provide 

a procedure for resolving general jurisdictional questions between the two agencies 

(“Interagency Agreement”). 44 Fed. Reg. 22,827 (April 17, 1979). 

The legislative history of the Act indicates that the Act’s definition of a mine is to be 

broadly interpreted. The Senate Committee responsible for drafting the Mine Act remarked: 

2

 The following abbreviations are used in this decision: GX= government exhibit; JX = 

the parties’ joint stipulation of fact; Tr.=transcript of the hearing; Sec’y MSD = Secretary’s 

Motion for Partial Summary Decision; Titan RMSD = Titan’s Response to Secretary’s Motion 

for Partial Summary Decision. 

Ex. 5 Deliberative
34 FMSHRC Page 405

“What is considered to be a mine and to be regulated under this Act [shall] be given the broadest 

possible interpretation, and it is the intent of this Committee that doubts be resolved in favor of 

inclusion of a facility within coverage of the Act.” S. Rep. No. 95-181, at 14 (1977), reprinted in 

Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine 

Safety and Health Act of 1977 (“Legis. Hist.”) at 602. 

II. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW
 

On August 5 and 6, 2009, MSHA Inspector James Fitch inspected Titan’s facilities and 

issued eleven citations and orders related to the area on the property that he referred to in the 

citations as the shop. Titan contends that the shop area is not subject to Mine Act jurisdiction. 

By contrast, the Secretary maintains that the Mine Act, Commission precedent, and the 

Interagency Agreement establish that MSHA had jurisdiction over the shop at the time of the 

contested inspection. 

A. Background Summary of Testimony 

Inspector Fitch has worked for MSHA since January 2001 and is currently a supervisory 

inspector. (Tr. 11). Fitch testified that he began working in the mining industry in 1980 and 

worked in the industry until the present inspection, stopping a few times to serve in the Army 

and to work as a car salesman. (Tr. 12-14). Fitch had never inspected the Titan facilities before; 

however, he testified that MSHA inspected Titan in 2008 and that he reviewed the prior 

inspection report and field notes before performing his inspection. (Tr. 17, 20-22). 

On August 5, 2009, Inspector Fitch arrived at the site and pulled up in front of the shop 

area. (Tr. 22). He described the structure as large, with bay doors and a man door, and assumed 

that the structure contained an office. Id. When he arrived, he noticed a conveyor belt lying 

beside the main road, old equipment including a trailer, and in front of the shop, he saw one or 

two vehicles. (Tr. 24). Facing the shop area, to the left, was a small friction crane, several 

stockpiles, and a road leading from the shop area back around the stockpiles. (Tr. 25). He did 

not see any other structures or buildings. Id. At this point, Shane Cooper, Titan’s president, 

arrived and they went into the office and talked a bit. (Tr. 26; Tr. 151). Fitch stated that he 

thought he was in the office because it was a small, enclosed space inside the same building but 

separated by walls, doors, and a window. (Tr. 27). He noted that the room contained a table, 

computer, shelves, and chairs and explained that there were no other areas in the structure that 

looked like an office. Id. Fitch testified that mines are required to have an office. Id. 

Upon exiting the office into the shop area, Fitch stated that there was a first-aid kit, eyewash bottles and a fire extinguisher and off to the left was a batch plant. (Tr. 28). To the right, 

at a back wall of the shop, were bolt pins, shelves with equipment, parts, V-belts, and some tires 

located in the front right of the shop. (Tr. 28). Fitch observed that the tires belonged to haul 

trucks. Id. He also saw a fabrication table, a cabinet containing hand tools, drills, grinders, 

cords, parts, scrap metal, trash, and a “curious” square wooden structure that was the shop 

Ex. 5 Deliberative
34 FMSHRC Page 406

restroom. (Tr. 28-29). Fitch testified that mines are required to have a bathroom. (Tr. 29). He 

explained that the front left corner of the building was the office and behind that and to the left 

was the batch plant, which appeared to be portable. (Tr. 29). Fitch stated that the batch plant 

was not subject to MSHA jurisdiction pursuant to the Interagency Agreement. (Tr. 30). 

After leaving the shop area, Fitch inspected the working portion of the mine site and 

returned to the shop the next day. (Tr. 32). He estimated that the shop and the plant area are less 

than 500 yards apart. (Tr. 34). Fitch issued his first citation for two unsecured acetylene bottles 

standing in front of the bay doors and explained that he believed he had jurisdiction to do so due 

to the proximity of the shop to the plant and the large haul truck down for maintenance in front 

of the shop. (Tr. 38-39). He testified that he believed three people worked on the mining 

operations: Kenny, Shane, and Zach Cooper. (Tr. 44-45). 

Fitch testified that the equipment he observed at the site included a generator, an 

electrical control trailer, two screens, a feed hopper, at least five conveyors, a log washer, an 

electrical distribution panel, a Caterpillar loader, a broken-down Caterpillar loader, possibly a 

backhoe, and a friction crane. (Tr. 45). The record contains photos of the site, as described by 

Fitch, which appear in the record at GX-2. (Tr. 46-49). Fitch also described many of the items 

needed to maintain this equipment and testified that these items were stored in the shop area. 

(Tr. 49-50). Fitch testified that except for the tires and the batch plant, which he did not consider 

to be part of the mining operations, the rest of the materials inside the shop could have easily 

been used on the mine site and anyplace else. (Tr. 51-52). 

Referencing the photos taken in support of each of the eleven citations from the shop, 

Fitch stated that the 55 gallon barrels of oil, some parts on the shelves, V-belts, nuts and bolts, 

oil and lubricants, acetylene tanks, parts to the haul truck, a man-basket which was missing from 

the shop, and the restroom are all items that could be used in a mining operation and/or are 

required by the safety standards. (Tr. 52-62). 

Inspector Fitch related the citations to the photos as follows: messy workplace (Citation 

No. 6357687), spilled oil on the shop floor (Citation No. 6357689), acetylene cylinders in front 

of shop bay doors (Citation No. 6357679), an unapproved, flammable storage can (citation 

6357685), a missing, required man-basket (Citation No. 6357686), “no smoking signs” not 

posted (Citation No. 6357688), two unlabeled jerry cans (Citation No. 6357690), an extension 

cord with a missing ground prong (Citation No. 357691) and a head grinder with missing guard 

(Citation No. 6355701)3

. (Tr. 53-61; GX-3). 

Inspector Fitch also discussed citations that were issued outside of the shop area for 

guarding violations; specifically, Citation Nos. 6357681, 6357695, 6357697, 6357698, and 

6357700. (Tr. 63-69). He explained that in order to abate these citations, guards for the 

3

 Citation Nos. 6357692 (continuity/resistance testing) and 6357693 (Haz/com 

program/chemicals in shop) were not enumerated in this portion of Inspector Fitch’s testimony. 

Ex. 5 Deliberative
34 FMSHRC Page 407

referenced parts needed to be fabricated. He assumed that the fabrication work necessary to 

abate these citations would have been performed in the shop, although Citation No. 6357698 

might be repaired in the field. (Tr. 66-68). Fitch testified that the workers he observed had 

access to all of the referenced shop areas and explained that there was no lock on the door. (Tr. 

70). He also stated that no one told him that the shop area was not used in connection with the 

mining operation and that during a previous inspection, MSHA issued a citation for an 

uninspected fire extinguisher. (Tr. 70-72). This citation is now closed and became a final order 

on February 6, 2010. (Tr. 74, GX-6). 

On cross-examination, Fitch testified that he knew that the portable crusher had only 

operated five days since the last MSHA inspection in 2008, and that, when he looked at the area 

of the shop where the tires and batch plant were located, he knew that those were not within his 

jurisdiction. (Tr. 85). He considered the rest of the area to be within his jurisdiction because it 

could have been used for mining and was likely to be so used. Id. 

Fitch testified that he did not know when the portable crusher was moved to the Ready 

Mix Property. The storage areas and the tools in the shop made him believe that the area was to 

function as a shop. (Tr. 85-86; 94). He admitted that the proximity of the shop to the portable 

crusher could have been a contributing factor in why he issued the shop citations. (Tr. 88-89). 

Fitch remarked that, if an item was used strictly for the batch plant, then it would be part of the 

batch plant only. (Tr. 97-100). Fitch stated that, if the portable crusher did not exist on the 

property, then MSHA would not have jurisdiction. (Tr. 103). 

Fitch explained that he wrote the citations for the shop instead of leaving it to OSHA 

because he saw conditions that violated MSHA’s safety standards.4

 He determined that miners 

could easily and probably did go into the building to use the restroom, to get parts, and to repair 

mining equipment. (Tr. 107). Fitch testified that the three main things that he thought made the 

shop part of a mine were the existence of the office in the building, the existence of the restroom, 

and the existence of tools, lubricants, and parts that could easily be used for a mine site. (Tr. 

112). Fitch admitted that he did not know objectively whether a particular tool or a part was 

used on the portable crusher but that he suspected they had been. (Tr. 114). 

Inspector Fitch testified that the location of the shop in relation to the crushing plant 

made it more likely that a person would go to the shop for a part or to work on equipment, than 

drive to Ely, Nevada, to do so. (Tr. 115). He noted that the company did not offer any proof 

during his inspection that the shop was used solely for the construction business. (Tr. 117). 

Fitch stated, that if the portable crusher were ever moved to a different location and no mining 

equipment were used or repaired at the Ready Mix Property, MSHA would no longer inspect 

that shop. (Tr. 124). He stated that he believed the haul truck outside of the building was 

4

 The Occupational Safety and Health Administration has approved Nevada as a “state 

plan” state. As a consequence, safety inspections of the batch plant would be conducted by the 

State of Nevada, hereinafter designated as “NVOSHA.” 

Ex. 5 Deliberative
34 FMSHRC Page 408

purchased for use in the mine, although he admitted that no one told him this directly. (Tr. 125­

126). Fitch testified that the mine was not operating that day and stated that the things he saw in 

the shop could also be used for purposes other than mining. (Tr. 127, 133-134). 

Fitch stated that nothing in the shop indicated what items in the shop area were for the 

mining operation and what items were for the batch plant. (Tr. 141-43). Fitch noted that 

MSHA’s policy would be that once a piece of equipment enters the mine property itself, it is 

subject to MSHA’s jurisdiction if it had been used at the mine. Id. Fitch testified that what he 

termed “daily job briefings” were kept in the office. (Tr. 146). 

Shane Cooper, President of Titan, testified that he and his brother Kenny are the 

principals of Titan and explained that the Ready Mix Property is a parcel of 40 acres with a 60­

by-110 foot steel, prefabricated metal building with a batch plant. (Tr. 152). Cooper testified 

that the property is seven miles north of Ely, that the batch plant and shop were on the property 

when his family bought it but the portable crusher was not at that location. (Tr. 154-155). 

Cooper testified that the office and the computer inside it were specifically constructed for the 

batch plant. (Tr. 156). He stated that the records for the portable crusher are kept at his home 

rather than in the batch plant office. (Tr. 157). 

Cooper testified that during the inspection, he had to leave and go home to get the 

records requested by Inspector Fitch. (Tr. 159). Cooper stated that Titan Constructors 

purchased the Ready Mix Property out of bankruptcy in October 2007. (Tr. 160-162). The 

portable crusher was moved in 2006 from an unrelated location near Ruth, Nevada, first to his 

home and then to the Ready Mix Property in 2007. (Tr. 165-166). Cooper testified that he 

would use the restroom facilities in the building on a day when Titan was using the portable 

crusher. (Tr. 168). He admitted that employees could easily use a bolt or oil from the shop for 

the portable crusher. He could not state that there has never been anything in the shop that has 

been used on the portable crusher. (Tr. 167-168). 

Cooper stated that the shop building is subject to the jurisdiction of NVOSHA. (Tr. 168). 

He admitted that Titan can build guards for the portable crusher in the shop and use the shop to 

fabricate other parts for the crusher. In addition, the oxygen acetylene carts and the welder can 

be moved over to the crusher for use in repair work. (Tr. 169). He testified that the building was 

custom fabricated for the batch plant itself. (Tr. 171). Cooper stated that everything in the shop 

is related to the construction industry, that the trucks are used to haul aggregates, equipment, and 

for installing underground water and sewer mains, and that the dump truck has never operated in 

any capacity because it had and still has a damaged engine. (Tr. 174-176). 

Cooper testified that Titan has a 40-foot van that typically accompanies the portable 

crusher when it is moved around. (Tr. 181). He explained that the van is essentially a shop van 

and that it contains steel benches, a table, shelving, nuts, bolts and hand tools. (Tr. 184-185). 

He parked this van at his home when the crusher was moved to the Ready Mix Property. On 

cross-examination, Cooper admitted that the Steptoe Valley Pit is the same parcel of land as the 

Ready Mix Property and that the portable crusher has been located at the property since about 

Ex. 5 Deliberative
34 FMSHRC Page 409

2007. (Tr. 186-187). He testified that Titan does use the shop tools and the stored materials, 

nuts and bolts for the portable crusher, which is why Titan did not need the van on the property. 

(Tr. 188). 

Cooper testified that Titan kept the daily job briefings, as required by MSHA regulations, 

in the batch plant office and that they were produced for Inspector Fitch. (Tr. 190). He also 

noted that the top of the daily job briefing form indicates that the job location is the Steptoe 

Valley pit. (Tr. 190, GX-11). Cooper reviewed the daily job briefings and testified that one 

listed work procedure was “built guards for stacker.” (Tr. 191-192, GX-11). He testified that 

this work was performed at the Ready Mix shop and also that the welder and torches have been 

moved to the stacker. (Tr. 192). Cooper noted that on the form under “recognized hazards” it 

says, “hot steel, cutting, welding.” (Tr. 193). He admitted that the welding tools are kept at the 

Ready Mix Shop or in the van that goes with the portable crusher. Id. 

Cooper testified that he was not aware that MSHA regulations require a mine office and 

stated that Titan did not have one. (Tr. 194-194). He testified that the computer is used for the 

batch plant, not for any mining purposes, and that it is specific to the batch plant. (Tr. 194). He 

testified that Titan sells aggregates used in road building to the Nevada Department of 

Transportation. (Tr. 195). In terms of the equipment associated with the crushing operations, 

Cooper testified that Titan has a couple of screens, conveyor belts, stackers, a loader, and a 

rubber tire backhoe. (Tr. 196). 

Cooper testified that customers come onto the property with their own trucks to be loaded 

with aggregate and that the loads were generally sold by volume. (Tr. 197). He stated that there 

is no separate scale house. (Tr. 198). 

B. Summary of the Parties’ Arguments 

The Secretary argues that Titan used the shop in its mining operation and that miners 

accessed the shop. Consequently, the Secretary submits that the shop constituted a “structure” or 

a “facility” used in the mining process, as contemplated by Section 3(h)(1), which subjected it to 

MSHA’s jurisdiction. (Sec’y MSD 6). 

The Secretary points out that the shop was only 350 feet away from the pit and within 

walking distance to it. (Sec’y MSD 8). The Secretary also notes that the shop served several 

functions, including storage, repair, and fabrication of mining equipment, maintenance and the 

keeping of records, and also included toilet facilities for the miners. (Sec’y MSD 9). The 

Secretary argues that simply by location, Titan’s miners had access to the shop, even if only to 

use the restroom facilities. Id. The Secretary further contends that the shop was used to some 

degree by miners to support the mine process, including storing tools and equipment, repairing 

and fabricating items for the mine, and keeping and maintaining mine records. Id. 

The Secretary argues that the Interagency Agreement establishes MSHA jurisdiction over 

the shop and cites the provision of the Agreement which provides “[t]he consideration of these 

Ex. 5 Deliberative
34 FMSHRC Page 410

factors will reflect Congress’ intention that doubts be resolved in favor of inclusion of a facility 

within the coverage of the Mine Act.” (Sec’y MSD 10). Thus, the Secretary reasons, both work 

locations and work functions are important factors in determining jurisdiction. Id. The 

Secretary points out that Inspector Fitch observed a haul truck from the pit, that functioned to 

haul material from the mine at the Titan shop, undergoing maintenance. (Sec’y MSD 11). In 

addition, Inspector Fitch found supplies and equipment stored throughout the shop, all of which 

functioned to keep equipment at the mine in working condition. Id. Consequently, because the 

shop was used for mining, any doubts about jurisdiction should be in favor of inclusion of the 

facility under the Mine Act. Id. 

During closing arguments, the Secretary argued that, although the shop building was not 

originally built to support a sand and gravel operation, the fact of the matter is that there is a 

sand and gravel operation located there. (Tr. 200). The Secretary argued that the miners are 

Titan employees who work at the crusher operation and who, by necessity, access the shop. The 

use of the shop by these miners essentially opens the door for MSHA to inspect the facility and 

to issue citations for violations. Id. 

In response, Titan argued that the shop area is used for the batch plant located inside of it 

and that Titan is a construction company which, in addition, operates a portable crusher. (Titan 

RMSD 2). Titan contended that there is no mine office in the shop and that mining-related 

records are kept in the owner’s home, not in the shop. Id. Titan submitted that the haul truck 

parked outside the bay doors has never been used by Titan in any capacity and was never used in 

a pit operation. Id. Titan further argued that no materials are used in interstate commerce, the 

parts and tools in the shop could be used for anything on the Ready Mix Property but are used 

for Titan’s vehicles and construction equipment. It further argues that there is no proof that 

miners use the toilet located in the shop. Id. 

Titan contended that the Ready Mix Property contains a shop building that was 

constructed for the batch plant within it and that the shop tools and equipment were used for the 

batch plant years before the portable crusher was moved to the Ready Mix Property. Id. Titan 

also argued that the bay doors are configured for ready mix trucks and semi-trucks, not for 

portable crushers and that the shop was never considered part of a “mine” before the 2009 

inspection by Inspector Fitch. 

Titan argued that the standards for determining whether a shop can be part of a mine 

cannot be so expansive that they amount to no standards at all and cites “National Cement Co. 

of California/Tejon Ranchcorp,”5

 in which the Commission observed that although the definition 

of a mine was to be given a “very broad meaning,” that “does not mean that section 3(h)(1)(B) 

5

 Sec’y of Labor v. Nat’l Cement Co. of Cal., 30 FMSHRC 668 (2008). 

Ex. 5 Deliberative
34 FMSHRC Page 411

should be read contrary to common sense.”6

 (Titan RMSD at 3). Titan argued that where the 

Secretary is urging a “standard” that is so broad that it amounts to no standards at all, the 

Secretary is exceeding the bounds of her jurisdiction. Id. 

Titan contended that none of the factors cited by the Secretary from the Interagency 

Agreement support MSHA jurisdiction in this case. Id. Specifically, Titan stated that the 

processes employed at Titan’s shop is a concrete batch plant, unrelated to the portable crusher, 

that two people operate the portable crusher, and that no people operate the shop. Id. at 4. 

Finally, Titan argued that there is no evidence as to NVOSHA’s inability to enforce safety 

precautions at the shop. Id. 

During closing arguments, Titan stated that the net drawn by MSHA is cast far and wide 

and that this case is an example of that. (Tr. 202). Titan argued that the shop is not part of the 

mine, that NVOSHA has jurisdiction, and that the Interagency Agreement specifically says that 

batch plants are under OSHA’s jurisdiction. (Tr. 203). Titan contended that if the Secretary’s 

arguments are adopted and the Mine Act is construed to mean that inspectors can inspect 

anything if it “might” be used in a mine, such a construction is inconsistent with Congressional 

intent. (Tr. 203-304). 

Titan argued that its witnesses were credible but MSHA displayed its bias when its 

inspector testified falsely concerning the location of the company documents related to the 

crushing operations and the usage of the cited truck in the pit. (Tr. 204). Titan emphasized that 

in the Bokus case, cited below, the Commission did not reach the issue of whether the garage in 

that case constituted a mine but limited its holding to items that the Secretary proved were 

actually used in mining operation. (Tr. 205). 

Titan argued that the entire property on which a portable crusher is used should not 

become a mine as that term is defined in the Mine Act. (Tr. 207). Titan further argued that the 

shop building is, and always has been, a batch plant, that everything inside it is there for the 

batch plant, and that the Commission’s decisions are consistent with Titan’s arguments. (Tr. 

208). 

C. Discussion and Analysis 

Titan contends that the shop area of its facility is not subject to Mine Act jurisdiction 

because it is used for the batch plant located inside the same building. More specifically, Titan 

argues that, because the shop was originally constructed for the batch plant and that the shop 

tools and equipment were used for the batch plant years before the portable crusher was moved 

to the Ready Mix Property, NVOSHA, not MSHA, has jurisdiction. I disagree. 

6

 Id. at 678. 

Ex. 5 Deliberative
34 FMSHRC Page 412

As stated above, section 3(h)(1) of the Mine Act defines a “mine,” in pertinent part, to 

include “structures, facilities, equipment, machines, tools, or other property . . . used in or to be 

used in, . . . the work of extracting . . . minerals . . . or . . . the milling of such minerals, or the 

work of preparing . . . minerals . . . .” 30 U.S.C. § 802(h)(1). The Secretary promulgated the 

Interagency Agreement as a guide to be used when determining whether certain operations and 

facilities fall under the purview of MSHA or OSHA. Appendix A of the Interagency Agreement 

specifically provides that concrete ready mix or batch plants, whether or not located on mine 

property, are subject to OSHA jurisdiction. 44 Fed. Reg. 22,827 (April 17, 1979). 

The Secretary did not argue in this case that MSHA has jurisdiction over Titan’s batch 

plant or any supplies, equipment, machines, tools or other property that are used exclusively for 

the batch plant. The Mine Act does not directly address the situation raised in which “structures, 

facilities, equipment, machines, tools or other property” that are used for a facility that is not 

subject to the jurisdiction of the Mine Act, are also used or available for use in a mine. 

Commission precedent establishes that when equipment or facilities are available for use by 

miners, such equipment and facilities must comply with MSHA safety standards. See, e.g., W.J. 

Bokus Indus.,16 FMSHRC 704 (Apr. 1994); Beylund Constr., 31 FMSHRC 1410 (Nov. 2009) 

(ALJ) (citing Ideal Basic Indus., Cement Div., 3 FMSHRC 843 (1981)). Thus, the Secretary need 

only establish that the items were available for use in mining. 

Titan’s president, Shane Cooper, testified that Titan used tools and materials from the 

shop, such as nuts and bolts, for its portable crusher. (Tr. 188). There is no question that the 

portable crusher falls under MSHA’s jurisdiction and it has a mine ID number. In addition, the 

record further establishes that miners working on the crusher used the shop tools, including a 

welder, torches, and an oxygen acetylene cart to fabricate guards for the crusher, and utilized the 

restroom that is located in the shop. (Tr. 169, 191-192; GX-11). That the shop was originally 

designed for a batch plant and is predominantly used for the batch plant, does not mitigate the 

fact that some mining-related activity occurs at the shop. As described above, the evidence 

shows that items related to the portable crusher are located in the shop and that miners have 

access to these shop items and use them for the portable crusher. 

In resolving close jurisdictional questions, the legislative history of the Act provides 

additional guidance. The Senate Committee that drafted the Mine Act noted that what is 

considered to be a mine and to be regulated under the Act should be given the broadest possible 

interpretation. Legis. Hist. at 602. Moreover, the Committee further commented that 

jurisdictional doubts should be resolved in favor of inclusion of a facility within the coverage of 

the Act. Id. This expansive, encompassing definition of what constitutes a mine reflects the 

Act’s purpose of protecting the health and safety of those who work in the coal mining industry. 

30 U.S.C. § 801. 

When the portable crusher was located on property near Ruth, Nevada, without a readily 

available shop, the company’s shop van was located on that property for use by miners. When 

Titan moved the portable crusher to the Ready Mix Property, it elected to allow miners to use the 

existing batch plant shop rather than bring the van to the Ready Mix Property. (Tr. 185). In 

Ex. 5 Deliberative
34 FMSHRC Page 413

doing so, Titan subjected at least part of its shop to Mine Act jurisdiction. The van was parked 

at Shane Cooper’s home. (Tr. 185). Moreover, Cooper admitted that Titan used tools in the shop 

when repairing the crusher, fabricated parts for the crusher in the shop, and used miscellaneous 

supplies, such as nuts and bolts stored in this shop, for the crusher. (Tr. 184-189). That is why 

the shop van was not brought to the Ready Mix Property. 

By allowing miners working on the crusher to access the shop to get supplies, to fabricate 

and repair parts, and to use the restroom facilities, Titan opened the shop to MSHA jurisdiction. 

The shop ceased to be used exclusively for the batch plant and instead became a facility used for 

both mining-related and non-mining-related operations. 

Titan next states that “[t]wo people operate the portable crusher and no people operate
 

the shop.” (Titan RMSD at 4). This is irrelevant. Commission precedent establishes that both
 

work locations and work functions are important in determining jurisdiction. Calmat Co. of
 

Ariz., 27 FMSHRC 617, 621; W.J. Bokus Indus., 16 FMSHRC 704 (Apr. 1994). As the shop
 

tools and facilities were used in, could be used in, and were available for use in Titan’s mining
 

operation, they are covered by the Mine Act. 

Finally, Titan submits that “there is literally no evidence as to OSHA’s alleged inability 

to enforce safety precautions in the shop.” (Titan RMSD at 4). The Secretary has admitted that 

it has no jurisdiction over the concrete batch plant and anything in the shop that relates strictly to 

the batch plant. Nevertheless, MSHA, not OSHA, is charged with regulating the safety and 

health of the nation’s mining operations. MSHA has the expertise to oversee the safety and 

health hazards associated with the mining processes at Titan’s facility. Because miners had 

access to the shop, used shop tools and equipment to fabricate and repair mine equipment, and 

had access to and utilized the shop restroom facilities, I find that the Secretary established Mine 

Act jurisdiction over those areas of the shop that are used for the mining operation. 

Titan also raised a commerce clause issue, arguing that the products from the crusher do 

not enter into interstate commerce. The Secretary maintains that the evidence demonstrates that 

the products produced in Titan’s mining operation substantially affect interstate commerce. The 

Mine Act defines “commerce” as: “trade, traffic, commerce, transportation, or communication 

among the several States, or between a place in a State and any place outside thereof . . . or 

between points in the same State but through a point outside thereof.” 30 C.F.R. § 802(b). I find 

that the record establishes that the materials produced by Titan’s crushing operation were 

supplied to the Nevada Department of Transportation under highway maintenance contracts. (Tr. 

180). As all manner of vehicles, private and commercial, from all over the United States, traverse 

the roads in Nevada, Titan’s products are effectively used by these interstate vehicles. To argue 

that materials sold to a state for its roads do not affect interstate commerce defies common sense. 

Thus, I find that Titan’s mining operation substantially affects interstate commerce within the 

meaning of the Act. 

As set forth above, I find that the Secretary established Mine Act jurisdiction over those 

parts of the shop that were used or reasonably could be expected to be used by Titan’s employees 

Ex. 5 Deliberative
34 FMSHRC Page 414

for the mining operations. Moreover, as previously noted, Titan stipulated that if I were to find 

its shop was subject to the jurisdiction of the Mine Act, it would withdraw its contest as to the 

charging documents. (Ex. JX-1). On the basis of this stipulation, I affirm the citations and 

orders. 

III. SETTLED CITATIONS 

The parties presented a settlement offer at the hearing for those citations that issued at the 

crusher. The proposed settlement is as follows: 

Citation/Order No. Modification to Citation Proposed Penalty Amended Penalty 

WEST 2010-53-M 

6357684 Modify to 104(a) 

High Negligence 

$2,000 $1,000 

6357699 Modify to 104(a) 

High Negligence 

$2,000 $807 

6357702 Modify to 104(a) 

Moderate Negligence 

$2,000 $500 

WEST 2010-54-M 

6357680 No Change $100 $100 

6357681 Modify to Moderate 

Negligence 

$100 $100 

6357682 Modify to Moderate 

Negligence 

$100 $100 

6357683 Modify to Moderate 

Negligence 

$161 $100 

6357694 No Change $100 $100 

6357695 Modify to Law 

Negligence 

$100 $100 

6357696 Modify to Low 

Negligence 

$100 $100 

6357697 No Change $100 $100 

6357698 Modify to Low 

Negligence 

$100 $100 

6357700 Modify to Unlikely 

Non S&S 

$362 $300 

TOTAL $3,507 

Ex. 5 Deliberative
34 FMSHRC Page 415

IV. APPROPRIATE CIVIL PENALTIES 

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. Titan is a very small operation that, based on information at MSHA’s 

website, worked 164 hours in 2009 and 385 hours in 2010. The operation is currently idle. It had 

a history of about 12 citations in the 15 months prior to August 5, 2009. Titan did not assert that 

the penalties proposed by the Secretary would have an adverse effect on its ability to continue in 

business. The gravity and negligence findings are set forth above or in the citations. 

V. ORDER 

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties as stipulated by the parties: 

Citation/Order No. 30 C.F.R. § Penalty Amount 

WEST 2010-53-M 

6357687 56.20003(a) $2,000.00 

6357689 56.4102 2,000.00 

WEST 2010-54-M 

6357679 56.16005 243.00 

6357685 56.4402 100.00 

6357686 56.15001 108.00 

6357688 56.4101 243.00 

6357690 47.41(a) 100.00 

6357691 56.12025 100.00 

6357692 56.12028 243.00 

6357693 47.31(a) 100.00 

6357701 56.14107(a) 100.00 

Total penalty citations/orders issued in shop: $5,337.00
 

GRANT TOTAL DUE: $8,844.00
 

Ex. 5 Deliberative
34 FMSHRC Page 416

For the reasons set forth above, the citations and orders are AFFIRMED or MODIFIED 

as set forth in this decision. Titan Constructors, Inc., is ORDERED TO PAY the Secretary of 

Labor the sum of $8,844.00 within 40 days of the date of this decision.7 

/s/ Richard W. Manning 

Richard W. Manning 

Administrative Law Judge 

Distribution: 

Tyler P. McLeod, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 

800, Denver, CO 80202-5708 

Mark Wray, Esq., Law Offices of Mark Wray, 608 Lander Street, Reno, NV 89509 

RWM 

7

 Payment should be sent to the Mine Safety and Health Administration, U.S. Department 

of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

Ex. 5 Deliberative
 

34 FMSHRC Page 417

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

7 PARKWAY CENTER, SUITE 290
 

875 GREENTREE ROAD
 

PITTSBURGH, PA 15220
 

TELEPHONE: (412) 920-7240
 

FACSIMILE: (412) 928-8689
 

February 8, 2012 

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION, (MSHA), : Docket No. WEST 2010-1400-DM 

Petitioner : MSHA Case No. WE-MD-10-05 

on behalf of LANCE CARTER, : 

Complainant : 

v. : Mine: Dantoni Mine

 : Mine ID: 04-05545 

KINO AGGREGATES, INC., and : 

NOBLE PLANT, : 

Respondents : 

DECISION 

Appearances: Isabella M. Finneman, Esq., Katherine M. Kasameyer, Esq., U.S. Department of 

Labor, Office of the Solicitor, 90 7th Street, Suite 3-700, San Francisco, 

California 94103

 Kurt D. Hendrickson, Esq., Knox Lemmon Anapolsky & Schrimp LLP, 300 

 Capitol Mall, Suite 1125, Sacramento, California 95814 

Before: Judge John K. Lewis 

This case is before me upon a complaint of discrimination brought by the Secretary of 

Labor (“Secretary”) on behalf of Lance Carter (“Carter”), a miner, against Kino Aggregates, 

Inc., a corporation (“Kino Aggregates”) and Noble Plant, an individual, pursuant to § 105(c) of 

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

Complainant Carter alleges that he had been unlawfully discharged by Respondents, 

Kino Aggregates and Noble Plant, in December 2009, during a Mine Safety and Health 

Administration (“MSHA”) inspection, due to Mr. Carter having engaged in protected activities, 

including raising various safety complaints regarding Respondents’ facility. Respondents allege 

that Mr. Carter was not, in fact, fired in December 2009, but voluntarily relinquished his 

employment by walking off the job. Additionally, Respondents allege that Mr. Carter was not 

recalled after a pre-planned lay-off due to his past poor work performance. 

For reasons set forth below I find in favor of Complainant. 

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I. Procedural History 

On February 8, 2010, Carter filed a complaint with MSHA alleging discrimination under 

Section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2).1

 After investigating the allegations, 

the Secretary decided there was sufficient evidence of discrimination to file a complaint on Mr. 

Carter’s behalf on May 21, 2010, pursuant to section 105(c)(1) of the Mine Act, 30 U.S.C. § 

815(c)(1).2

 A hearing was held in Sacramento, California on November 2 and 3, 2011, at which 

both the Secretary and Respondents presented evidence and testimony. Subsequent to the 

hearing both parties submitted briefs which have been received and considered in rendering this 

decision. 

II. Summary of the Testimony 

A. Lance Carter 

Kino Aggregates is owned by Respondent, Noble Plant, and the facility is essentially a 

river bed rock quarry. Kino Aggregates’ main customer, DeSilva Gates, is a highway 

construction business whose hot plant that manufactures asphalt lies adjacent to the Kino 

1

 Section 105(c)(2) of the Mine Act states, in relevant part: 

Any miner...who believes that he has been discharged, interfered with, or 

otherwise discriminated against by any person in violation of this subsection may, 

within 60 days after such violation occurs, file a complaint with the Secretary 

alleging such discrimination. Upon receipt of such complaint, the Secretary shall 

forward a copy of the complaint to the respondent and shall cause such 

investigation to be made as [s]he deems appropriate...if upon such investigation, 

the Secretary determines that the provisions of this subsection have been violated, 

[s]he shall immediately file a complaint with the Commission, with service upon 

the alleged violator and the miner,...alleging such discrimination or interference 

and propose an order granting appropriate relief. 

2

 Section 105(c)(1) of the Act, in pertinent part, provides: 

No person shall discharge or in any manner discriminate against or cause to be 

discharged or cause discrimination against or otherwise interfere with the exercise 

of the statutory rights of any miner, representative of miners or applicant for 

employment in any coal or other mine subject to this Act because such miner, 

representative of miners or applicant for employment has filed or made a 

compliant under or related to this Act, including a complaint notifying the 

operator or the operator’s agent, or the representative of the miners at the coal or 

other mine of an alleged danger or safety or health violation in a coal or other 

mine... 

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Aggregates facility. (See inter alia Tr. 20, 25-27, Vol. I; GX 1). 3 construction business whose 

hot plant that manufactures asphalt lies adjacent to the Kino Aggregates facility. 

Before his employment at Kino Aggregates, Mr. Carter had worked for Matthew Ready 

Mix for about twelve years at its Orville Plant. He was initially in charge of computers. In his 

final three years he was head of maintenance, being responsible for Occupational Safety and 

Health Administration (“OSHA”) compliance and highway truck safety compliance. He was 

also involved in the design and set-up of computer-controlled machinery, as well as the training 

of operators. He reportedly doubled production for Matthew Ready Mix during this period. (Tr. 

15, Vol. I). 

After working for Matthew Ready Mix, Mr. Carter worked for Baldwin Contracting 

(“Baldwin”), providing “modern technology to their rock plants.” (Tr. 16, Vol. I). Mr. Carter 

was also a plant foreman for Baldwin, being responsible for MSHA compliance. Id. He later 

worked as a mechanic for Lone Star Company and a quarry manager for Eagle Aggregates. Id. 

At Eagle Aggregates Mr. Carter “built the plant from flat ground” and “started the MSHA 

process from zero.” Mr. Carter testified he received eighty hours of training from MSHA. (Tr. 

16-17, Vol. I). 

In approximately July 2007, Mr. Plant hired Mr. Carter to work at Kino Aggregates. (Tr. 

17, Vol. I). At the time of Mr. Carter’s hiring, Kino Aggregates only had a small plant in 

operation and Mr. Carter was initially hired as a union mechanic. Much of its machinery and 

“MSHA infrastructure” was being removed due to the dissolution of a partnership between Mr. 

Plant and Candy Vargas. (Tr. 18-19, Vol. I). Mr. Plant asked Mr. Carter to design a new plant; 

Mr. Carter designed the facility’s electrical and water systems, decided upon necessary 

machinery, and negotiated for and arranged the purchase of such equipment. (Tr. 20-21, Vol. I). 

By June 1, 2008, Kino Aggregates was in full production. (Tr. 21, Vol. I). During “the 

busy season” the plant usually ran five to six days per week at ten hours a day. (Tr. 22, Vol. I). 

Due to the muddy conditions during the winter time, it was difficult to separate quarried 

materials into their various sizes. Kino Aggregates shut down for “winter maintenance and upgrades” because it was not cost effective to process materials during the winter months. (Tr. 22, 

Vol. I). 

At Kino Aggregates Mr. Carter “carried the MSHA program.” (Tr. 28, Vol. I). He 

conducted all MSHA training, documented all safety meetings and was responsible for all 

aspects of the MSHA safety program. (Tr. 28-31, Vol. I). However, while Mr. Carter had 

complete “administrative responsibility” for MSHA related matters, all decisional authority 

rested with Mr. Plant. (Tr. 28, 30, 34-35, Vol. I). 

3 The abbreviation “Tr.” refers to trial transcript. The abbreviation “GX” refers to government 

exhibits. 

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During this time period, Mr. Carter expressed safety complaints about the lack of regular 

plant clean-up schedules and procedures. The build up of dirt and rock created, inter alia, the 

hazard of miners stumbling on walkways. (Tr. 37-38, 50-54, Vol. I). Mr. Carter also voiced 

concerns regarding inadequate dust control at the plant. Despite the obvious danger of respirable 

disease posed by crushed rock dust containing silica, Mr. Carter was unable to persuade 

Respondent to install an effective dust control system. Besides the danger of silicosis, excess 

dust also created the danger of mechanical and electrical breakdown. (Tr. 46-52, Vol. I; GX P1). 

Additionally, Mr. Carter raised safety concerns regarding the inadequate foundations 

upon which various plant machines were positioned. The affected machinery could fall over, 

posing another hazard to miners. (Tr. 58-62, Vol. I). Mr. Carter also complained of the safety 

dangers associated with an untrained worker – Allen Reiss. Although designated a “night 

watchman” Mr. Reiss was involved in all aspects of the plant’s operations including the 

operation of machinery. (Tr. 60-71, Vol. I). Mr. Carter was prohibited by Mr. Plant from giving 

safety training to Mr. Reiss, based, in part, upon Mr. Plant’s fears that the union would learn of 

Mr. Reiss’ existence. (Tr. 61-61, Vol. I). The issue of inadequately trained miners was a 

constant source of friction between Mr. Carter and Respondent. (Tr. 67-69, Vol. I; GX P-1). 

By approximately April 2008, Mr. Carter had concluded that he would not be able “to do 

what was necessary to stay in (safety) compliance.” (Tr. 34, Vol. I). “So as to avoid personal 

liability” Mr. Carter informed Mr. Plant that he would no longer be able to be responsible for 

any aspect of compliance with safety rules and wrote a letter to MSHA indicating such. (Tr. 34, 

Vol. I). 

Mr. Carter believed that he would not be able to perform necessary safety functions 

because Mr. Plant had ignored his various safety concerns in the past. For example, in order to 

clear debris, miners were required to climb to the top of the plant “scalper.” However, there 

were no access ways, no ladders, and no walkways. A miner would be required “to climb steel” 

with no place to tie a safety apparatus. (Tr. 36, Vol. I). The scalper had a series of straight metal 

pieces that shook at high frequency and looked like a cattle guard at a 90/ angle. As it was 

sometimes muddy and very slippery, a miner could easily lose his balance and slip or fall while 

swinging a sledge hammer to loosen debris. Mr. Carter once slipped, tumbling about ten feet 

into the “primary crusher,” suffering bruises. (Tr. 43-45, Vol. I; GX P-1). 

On December 16, 2009, Mr. Carter went to work but was experiencing increasing lung 

pain which he attributed to the dusty conditions at the facility. Mr. Carter radioed James Potts 

that he would be leaving work early due to pulmonary problems. Mr. Potts said “Okay.” (Tr. 

90-91, Vol. I). Mr. Carter also called off the next day, Friday, December 17, 2009. (Tr. 93, Vol. 

I). Either James or Melissa Potts took his call and again said “Okay.” (Tr. 93, Vol. I). On 

Monday, December 21, 2009, Mr. Carter telephoned Ms. Potts, again calling off due to illness 

and requesting permission to see a physician. (Tr. 94-97; GX P-2). The physician reportedly 

diagnosed Mr. Carter as suffering from “irritant bronchitis from excessive dust.” (Tr. 98). 

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On December 22, 2009, Mr. Carter returned to work, filled out a time card and handed 

his physician’s note to Mr. Potts. Id. That day Mr. Carter noticed that an MSHA inspector – 

Bill Berglof – was on the premises and Mr. Carter began accompanying Inspector Berglof 

around the facility. 

After approximately four hours, Mr. Carter over heard Noble Plant – who had been 

following the inspection – speaking on his cell phone. Mr. Plant reportedly said: “We’ve got an 

MSHA inspection going on here, and Lance is pointing out every little thing.” (Tr. 101, Vol. I). 

In response to a remark that Mr. Carter had reportedly turned Kino Aggregates into MSHA, Mr. 

Plant stated: “I know. He cut his own throat real bad.” (Tr. 101, Vol. I). 

As the MSHA inspector walked to the next site, Mr. Carter approached Mr. Plant who 

again upbraided Mr. Carter for having called MSHA and the union, and for “pointing out 

problems.” (Tr. 101, Vol. I). At the end of the conversation, Mr. Plant told Mr. Carter: “Well, 

as far as I’m concerned, you don’t work here anymore.” Mr. Carter asked: “Are you laying me 

off...right now or at the end of the day?” Mr. Plant responded: “Right now. Just go.” (Tr. 102, 

Vol. I). Mr. Carter testified that Mr. Plant never called him back to work after this episode, 

resolving any uncertainty that this was an actual final work termination as opposed to a 

temporary lay-off. (Tr. 106, Vol. I). 

After this conversation, Mr. Carter applied for unemployment compensation, (Tr. 105, 

Vol. I), and signed up on the union out-of-work list (Tr. 108, Vol. I; GX P-4). He worked in 

various temporary jobs after Kino. (Tr. 108-114). At the hearing, Mr. Carter testified that he 

had been working as a crane operator for approximately one month, beginning this job in 

September 2011, and expecting such to last until March 2012. (Tr. 14, 114-115, Vol. I). Among 

his forms of income, Mr. Carter received an inheritance after his father’s death of $30,000 in 

cash, and a rental home with a fair market value of $120,000. (Tr. 119, Vol. I). 

Mr. Carter testified that, due to various financial commitments and his marital breakup, 

he would never have voluntarily left his employment at Kino Aggregates. (Tr. 118, Vol. I). 

B. William Berglof 

At the hearing William Berglof testified that he had been working as an MSHA inspector 

in December 2009. (Tr. 134, Vol. I). On December 22, 2009, he had gone to Kino Aggregates 

to perform both an EO1 and health inspection. (Tr. 136-137, Vol. I). He met James Potts who 

later introduced him to Lance Carter. Mr. Potts indicated that Mr. Carter would accompany 

Inspector Berglof on his inspection. (Tr. 138). At a certain point Adam Plant also arrived on the 

scene and instructed Mr. Carter that he should go talk to Noble (Bud) Plant. (Tr. 139, Vol. I). 

When Inspector Berglof passed near Noble Plant’s truck, Inspector Berglof over heard Mr. Plant 

tell Mr. Carter “you didn’t have to call MSHA.” (Tr. 141, Vol. I). Later, Inspector Berglof 

asked Adam Plant where Mr. Carter had gone and was told by Adam Plant: “I think grandfather 

fired him, but I don’t know for sure.” (Tr. 142, Vol. I). 

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Inspector Berglof indicated that he had written several citations during his inspection, 

some in the presence of Mr. Carter and some in the presence of Adam Plant. (Tr. 143, Vol. I). 

C. Adam Plant 

At the hearing, Adam Plant testified that he was employed at Kino Aggregates since June 

2003. (Tr. 145-146, Vol. I). The grandson of Noble Plant, Adam Plant was the current plant 

operator. (Tr. 147, Vol. I). Mr. Plant acknowledged that Lance Carter had “designed and built” 

the facility. (Tr. 152, Vol. I). Mr. Carter was also responsible for “all the MSHA training and 

everything” and “was the one responsible for safety on site.” (Tr. 157, Vol. I). Mr. Plant also 

indicated that Mr. Carter had unsuccessfully attempted to repair a secondary crusher in 2009. 

(Tr. 160-164, Vol. I). 

Adam Plant had not spoken with Mr. Carter from December 16, 2009, to December 21, 

2009, but, due to Mr. Carter’s return of various work items, including a truck, truck keys, and 

cell phone, Mr. Plant believed that Carter had quit his employment on December 21, 2009. (Tr. 

169-171, Vol. I). 

However, on December 22, 2009, Adam Plant observed Mr. Carter and Inspector Berglof 

performing an inspection. (Tr. 172-173, Vol. I). At some point, Mr. Carter left the inspection 

and walked by Noble Plant’s truck. Adam Plant did not see Carter stop at the truck nor did he 

hear any words exchanged between Noble Plant and Mr. Carter. (Tr. 172-173, Vol. I). 

D. Melissa Potts 

At the hearing Melissa Potts, granddaughter of Noble Plant, testified that she had worked 

at Kino Aggregates since April 2004, and had been employed in various positions. Her present 

job was that of office manager, which included payroll and book-keeping duties. (Tr. 182-185, 

Vol. I). As office manager, she also reviewed time cards which were located in the scale house 

next to the time clock. (Tr. 185, Vol. I). The position of office manager also covered other 

administrative duties. If somebody wanted to go home sick, and could not find Noble Plant, the 

employee would advise Ms. Potts. (Tr. 186, Vol. I). Further, Ms. Potts was the individual who 

would approve doctor visits if Mr. Plant was not available. (Tr. 193, Vol. I). 

Ms. Potts further testified that, due to adverse weather conditions impeding plant 

operations, Kino employees were usually laid off in December. (Tr. 187, Vol. I). 

She did not directly speak to Mr. Carter on December 16, 17, 18 or 19. However, James 

Potts, her husband, who was hunting on plant property, did telephone her on December 19, 2009, 

informing her that Mr. Carter had dropped off his pick-up truck, keys, and cell phone next to the 

scale house. (Tr. 191, Vol. I). On December 21, 2009, Mr. Carter called Ms. Potts, requesting 

permission to make a physician visit. (Tr. 192, Vol. I). 

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On the morning of December 22, 2009, Ms. Potts observed Mr. Carter in the scale house. 

However, she had no discussions with him. (Tr. 153, Vol. I). At approximately 11:30 a.m. Mr. 

Carter returned to the office, informing Ms. Potts that “he couldn’t stand” her grandfather. Ms. 

Potts was unsure of Mr. Carter’s exact words but he informed her that he was no longer going to 

work at Kino Aggregates, he was quitting, and thought he had a job at DeSilva Gates. (Tr. 194, 

Vol. I). 

Ms. Potts indicated that all of her and her husband’s income derived from working for 

her grandfather. (Tr. 197, Vol. I). 

E. James Potts 

At the hearing James Potts, husband of Noble Plant’s granddaughter, Melissa, testified 

that he had been employed at Kino Aggregates since 2004, and was now working as a loader 

operator. (Tr. 208). 

On December 16, 2009, Mr. Carter had called Mr. Potts over the CB radio, informing 

him that he “was going home sick.” (Tr. 210, Vol. I). On December 19, 2009, while duck 

hunting on the plant premises, Mr. Potts noticed that Noble Plant’s 2002 Powerstroke – which 

Mr. Carter usually drove – was parked with the keys and Mr. Carter’s cell phone inside. Mr. 

Carter’s welder and various tools were missing. (Tr. 213, Vol. I). Mr. Potts opined that Carter, 

by December 21, 2009, was no longer employed by Kino Aggregates. (Tr. 217, Vol. I). 

F. Noble Plant 

At the hearing Noble (Bud) Plant testified that he was the owner/president of Kino 

Aggregates. (Tr. 225, Vol. II). Kino Aggregates centered upon crushing aggregates to the 

specifications of ready-mix plants, principally DeSilva Gates. (Tr. 228, Vol. II). 

When Mr. Plant initially hired Mr. Carter, Mr. Carter advised Mr. Plant that he could 

handle MSHA compliance issues. Mr. Plant entrusted Mr. Carter with the responsibility that 

Kino was in MSHA compliance. (Tr. 239-240, Vo. II). Mr. Carter had been given authority to 

resolve safety issues that the plant. (Tr. 241, Vol. II).

 In the summer of 2009, the HP 300 (the secondary plant crusher) seized up and Mr. 

Carter unsuccessfully attempted to repair it. (Tr. 248-249, Vol. II). Eventually, the machine had 

to be shipped out for repair at over $40,000 in costs. (Tr. 250, Vol. II). Despite being 

unsatisfied with Mr. Carter’s machine repair attempts, Mr. Plant felt that Mr. Carter “could run 

the plant fairly” and planned to “bring (him) back during the off-season.” (Tr. 252, Vol. II). 

There was an off-season at Kino Aggregates because, usually, the plant shut down in 

December. Inclement weather made materials too wet to crush properly and presented various 

safety hazards. (Tr. 243, Vol. II). On December 16, 2009, Carter had telephoned Plant asking 

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what part he was going “to play in the winter shut down and maintenance and repairing the 

crushing plant.” (Tr. 253, Vol. II). Plant asked that Carter discuss the question after the shift 

was over. (Tr. 254, Vol. II). However, Carter left the plant premises on December 16 before 

again talking to Plant. During the next few days Plant did not communicate with Carter. By 

December 18, 2009, Plant was uncertain regarding Carter’s employment status and “just figured 

he quit.” (Tr. 258, Vol. II). 

On December 22, 2009, the day of the MSHA inspection, Carter “punched in” for work. 

Plant was telephoned by his wife who informed him that Carter was participating in the MSHA 

inspection. (Tr. 264). Although he observed Carter and inspector Berglof from his pick-up 

truck, Plant did not drive over to the pair; but, after speaking with his wife, sent his grandson 

Adam “to follow those guys around and see what was going on.” (Tr. 265-266, Vol. II). Mr. 

Plant indicated that a bad back required him to use a pick-up truck to conduct his plant 

management duties. (Tr. 226, Vol. II). At some point Carter walked away from the inspector 

and passed Plant’s truck. However, Plant did not speak to Carter. (Tr. 266-267, Vol. II). 

It was company policy to pay anybody who punched in on the pay clock and so Carter 

was paid for his hours on December 22, 2009, despite that Plant no longer considered Carter an 

employee. 

Plant denied that he had terminated Carter for participating in the MSHA inspection on 

December 22, 2009, explaining: “He had already quit. How could I terminate him or fire him? I 

never talked to him.” (Tr. 269, Vol. II). Stating that Kino Aggregates was a union shop, 

governed by a union contract, and that Carter was a union member, Plant indicated that he had 

never terminated Carter according to union guidelines or otherwise. (Tr. 233-237, Vol. II). 

Plant had “no idea” whether Carter had complained to MSHA or the union about safety 

conditions at Kino. (Tr. 270, Vol. II). Nevertheless, it had been Mr. Plant’s “policy for fifty 

years” to pay individuals if they filed unemployment compensation claims and never to contest 

such. (Tr. 229, Vol. II). 

On cross examination Mr. Plant conceded that he did not know whether Mr. Carter had 

called in sick on December 17, 18, or 19. (Tr. 275, Vol. II). He also confirmed telling Mr. 

Carter to bring his truck to the facility to repair an oil leak for which the company would pay. 

(Tr. 275-276, Vol. II). Mr. Plant further conceded that Mr. Carter had communicated to him 

complaints about inadequate clean-up at the facility. (Tr. 277, Vol. II). 

Mr. Plant “definitely thought he (Mr. Carter) was a good employee.” (Tr. 287, Vol. II). 

Although he was curious as to why Mr. Carter decided to quit, Mr. Plant did not call Mr. Carter 

to find out the reason for such. (Tr. 287, Vol. II). 

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G. Diane Watson 

At the hearing Diane Watson testified that she was a supervisory special investigator for 

the Western District of MSHA. (Tr. 289, Vo. II). She had previously conducted a 110(c) 

investigation for Kino Aggregates in 2006. In February 2010, she revisited Kino to investigate 

the training of an individual who was being exposed to mine hazards – Allen Reiss. (Tr. 290-

291, Vol. II). She questioned Noble Plant who indicated that Mr. Reiss was a night watchman 

who sometimes operated a forklift and other equipment. Mr. Plant was unaware of any training 

that Mr. Reiss had undergone. Mr. Plant’s granddaughter, Melissa Potts, was unable to find any 

training records. (Tr. 291-292, Vol. II). 

Ms. Watson had never seen training records of Mr. Reiss previously admitted by 

Respondent. (See inter alia Tr. 292-293, Vol. II; GX P-10). 

III. Findings of Fact and Conclusions of Law 

Under established Commission law, a complainant establishes a prima facie case of a 

violation of section 105(c) if a preponderance of the evidence proves (1) that the complainant 

engaged in a protected activity and (2) that the adverse action complained of was motivated in 

any part by the protected activity. Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 329 

(Apr. 1998); Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 

2799 (Oct. 1980), rev’d on other grounds, sub nom. Consolidation Coal Co. v. Marshall, 63 F. 

2d 1211 (3rd Cir. 1981). 

The mine operator may rebut the prima facie case by showing either that no protected 

activity occurred or that the adverse action was in no part motivated by the protected activity. 

Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 818 n. 20 

(Apr. 1981). If the mine operator cannot rebut the prima facie case, it may defend affirmatively 

by proving that it would have taken the adverse action based upon the miner’s unprotected 

activities alone. Driessen, 20 FMSHRC at 328-29; Pasula, 2 FMSHRC at 2800. In analyzing a 

business justification as an affirmative defense for an adverse action, the Commission has held 

that: 

The proper focus, pursuant to Pasula, is on whether a credible justification 

figured into motivation and, if it did, whether it would have led to the adverse 

action apart from the miner’s protected activities...[T]he narrow statutory 

question is whether the reason was enough to have legitimately moved that 

operator to have disciplined the miner. (Citations omitted). 

Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 

1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). 

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In evaluating whether a complainant has proven a casual connection between protected 

activities and adverse action, the following factors are to be considered: (1) knowledge of the 

protected activity; (2) hostility or animus towards protected activity; (3) coincidence in time 

between protected activity and adverse action; and (4) disparate treatment. Chacon, 3 FMSHRC 

at 2516-17. The nexus in time between the protected activity and the adverse action can, 

standing alone, establish a sufficient basis upon which to find improper motive to terminate. 

Sec’y of Labor on behalf of Clay Baier v. Durango Gravel, 21 FMSHRC 953 (Sept. 1999). The 

ultimate burden of persuasion is with the Complainant. Pasula, 2 FMSHRC at 2800. 

I find that, for reasons discussed infra, the Complainant has carried his burden of proving 

that Respondent discharged him in violation of the anti-discrimination provisions of section 

105(c) of the Act. 

A. Protected Activities 

The clear preponderance of the evidence establishes the first element of a prima facie 

case of a violation of section 105(c). At hearing Respondent’s witnesses, including Noble Plant, 

conceded that Mr. Carter’s duties included all aspects of health, safety, and MSHA compliance 

issues. (See inter alia Tr. 239-241, Vol. II). I accept as true Mr. Carter’s contentions that 

throughout his tenure at Kino he continually voiced complaints of possible danger, safety, or 

health violations, ranging from inadequate clean-up to hazardous machine conditions to 

untrained personnel. 

As outlined in the summary of Complainant’s pleadings, as documented in Mr. Carter’s 

written notes (GX P-1), testimony supra, and as persuasively argued in the Secretary’s post 

hearing brief – the total evidences establishes a prima facie showing that Mr. Carter had engaged 

in protected activity and/or had been perceived by Respondents to have engaged in protected 

activity. 

B. Adverse Action Motivated by Protected Activity 

The record further establishes a prima facie case as to the second prong of Driessen: that 

the adverse action complained of was motivated in any part by the protected activity. Driessen 

20 FMSHRC 324 (Apr. 1998). 

I find Mr. Carter’s description of his confrontation with Noble Plant on December 22, 

2009 to be credible. I credit Mr. Carter’s testimony that he had over heard Noble Plant stating 

that Mr. Carter had “cut his own throat” for “pointing out every little thing” during the MSHA 

inspection. (See also Tr. 101, Vol. I). 

Given the Complainant’s credible testimony that he had been verbally dismissed by 

Noble Plant on December 22, 2009, and given the testimony of Inspector Berglof that he had 

overheard Noble Plant reprimanding Mr. Carter on December 22, 2009 – “you didn’t have to call 

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MSHA” (Tr. 141, Vol. I)4 – there is believable direct evidence that Complainant’s December 

2009 discharge was motivated by his protected activity. 

C. Circumstantial Evidence 

Even assuming arguendo the direct evidence above cited is deemed insufficient to 

establish discriminatory motivation, there is abundant circumstantial evidence establishing such. 

I essentially concur with the arguments and supporting case law advanced by the Secretary in her 

post-hearing brief that there is sufficient circumstantial evidence to establish that Mr. Carter’s 

termination was motivated by Mr. Carter’s protected activity and/or Noble Plant’s suspicion or 

belief that Mr. Carter had engaged in protected activity. 

Circumstantial evidence must be relied upon in cases involving 105(c) complaints 

because “[d]irect evidence of discriminatory motivation is not often encountered; more typically, 

the only available evidence is indirect.” Chacon, 3 FMSHRC at 2510. The Commission has 

enumerated some of the circumstantial indica of discriminatory motivation: 1) knowledge of the 

protected activity; 2) hostility or animus toward protected activity; and 3) coincidence in time 

between the protected activity and the adverse action. Sec. of Labor on behalf of Baier v. 

Durango Gravel, 21 FMSHRC 953, 957 (Sept. 1999); Chacon, 3 FMSHRC at 2511. 

The Commission has held that “an operator’s knowledge of the miner’s protected activity 

is probably the single most important aspect of a circumstantial case.” Baier, 21 FMSHRC at 

957 (quoting Chacon, 3 FMSHRC at 2510). The Commission has also held that “discrimination 

based upon a suspicion or belief that a miner has engaged in protected activity, even though, in 

fact, he has not, is proscribed by section 105(c)(1).” Elias Moses v. Whitley Dev. Corp., 4 

FMSHRC 1475, 1480 (Aug. 1992). 

Noble Plant suspected or believed that Mr. Carter had filed a complaint with MSHA, and 

further believed that such complaint was the cause of the December 22, 2009 inspection. Mr. 

Plant’s rebuke of Mr. Carter, “you didn’t have to call MSHA,” demonstrates that Mr. Plant 

suspected or believed that Mr. Carter engaged in a protected activity and clearly expressed a 

hostility or animus toward that protected activity. (Tr. 141, Vol. I). 

Further, the proximity in time between Mr. Carter’s protected activity and termination 

establishes a causal connection. Courts have held that a short proximity of time between the 

protected activity and the adverse action can be evidence of discriminatory motivation. See 

Donovan v. Stafford Construction Co., 732 F.2d 954, 960 (D.C. Cir. 1984) (termination two 

weeks after protected activity was “itself evidence of an illicit motive”). The Commission has 

stated that there are not any “hard and fast criteria in determining coincidence in time between 

protected activity and subsequent adverse action when assessing an illegal motive.” Secretary of 

4

 At trial Noble Plant, an older gentleman, who had hearing difficulties, spoke in a loud tone, 

supporting both Complainant’s and Berglof’s testimony that they were able to over hear Noble 

Plant. 

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Labor on behalf of James Hyles v. All American Asphalt, 21 FMSHRC 34, 47 (Jan. 1999) 

(citation and internal quotation marks omitted). Nevertheless, the Commission found temporal 

propinquity where about a month passed between MSHA’s issuance of a penalty and the 

operator’s denial to recall from temporary layoff the four complaints who had alerted MSHA of 

the violations which induced the penalty. Id. at 47. The Commission focused on the proximity 

between the issuance of the penalty and the adverse action, even though the four complaints’ 

actual protected activity of alerting MSHA occurred approximately sixteen months before the 

adverse action, because the Commission found that the issuance of the penalty was the “straw 

that broke the camel’s back.” Id.; See also Pamela Bridge Pero v. Cyprus Plateau Mining 

Corp., 22 FMSHRC 1361 (2000) (four months between safety complaints and termination was 

sufficient to establish proximity). 

In the instant case, Noble Plant’s termination of Mr. Carter on December 22, 2009, was 

in extreme temporal proximity to Mr. Carter’s perceived protected activity. Mr. Plant believed 

that Mr. Carter had complained to MSHA about Kino Aggregate’s safety practices; Mr. Carter 

suffered the adverse action only a few hours after the beginning of the MSHA inspection. This 

creates a strong inference of discrimination. The MSHA inspection on December 22, 2009, 

which produced numerous citations and orders issued to Kino Aggregates, was the “straw that 

broke the camel’s back,” Mr. Carter having lodged multiple complaints to Mr. Plant over a 

variety of safety issues over his two-and-one-half-year employment by Kino Aggregates. The 

December 22, 2009 inspection forced Mr. Plant to resolve the safety and health issues that Mr. 

Carter had been complaining about for months. The close temporal proximity establishes that it 

was not simply by chance that Mr. Carter was fired mid-inspection. Rather, Respondents’ belief 

or suspicion that Mr. Carter’s engaged in protected activity directly caused his termination. 

Therefore, I find a prima facie case of discrimination under § 105(c) has been established. 

Respondents’ defenses are unsupported by the record and are contradictory, inconsistent, 

and pretextual in nature. 

Respondents inter alia contend that no discrimination claim may be made because no 

adverse action had actually ever occurred. The Complainant voluntarily withdrew from 

employment in December 2009, and was never, in fact, fired by Respondent. Respondent’s 

contention necessarily rests upon the credibility of witnesses who appeared at hearing and the 

weight this Court chooses to give to such. It is black letter law that the Administrative Law 

Judge, as trier-of-fact, must assess the credibility of all witnesses and determine the weight their 

testimony deserves.5 

At hearing, Mr. Carter credibly testified that given, inter alia, his strained finances, he 

would never have voluntarily quit his employment at Kino Aggregates. (Tr. 118, Vol. I). 

Evidence presented regarding Mr. Carter’s spotty and less remunerative employment after 

December 2009, is further supportive of Mr. Carter’s contentions. (Tr. 115-116, Vol. I). All of 

5

 A Judge’s credibility determinations are entitled to great weight and may not be overturned 

lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992). 

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Respondent’s witnesses, including Noble Plant, acknowledged the vitally significant role Mr. 

Carter had played in the design, fabrication, and over all operation of Kino Aggregates. 

Respondents argue that Complainant “abandoned his job out of frustration” on December 

16, 2009 (or thereafter), and that therefore he was not a “miner” as defined under 30 U.S.C. 

§ 802(g) so as to be entitled to discrimination protections afforded by the Miner Act. (See 

Respondent’s post-hearing brief at pp. 16-17). 

I found the Complainant’s explanations regarding having taken sick leave due to 

respiratory problems on December 16, 2009, to be much more credible than the assertions of 

Respondents. (See also Doctor’s First Report of Occupational Injury or Illness at GX P-6 which 

further supports Complainant’s testimony). 

I further reject any conclusion that Mr. Carter had voluntarily quit on December 22, 

2009. 

I find it incredible that such a valued employee as Mr. Carter could simply walk off the 

job one day without explanation – and Noble Plant, the mine operator, would not speak to or 

later contact Mr. Carter to ascertain why. (See also Tr. 287, Vol. II). The only credible 

explanation for Noble Plant’s failure to question Mr. Carter regarding his sudden departure was 

that Mr. Plant had, in fact, fired Mr. Carter on December 22, 2009, and thus, had no reason for 

further inquiry. 

I specifically find that Noble Plant verbally fired Mr. Carter on December 22, 2009, due 

to Complainant’s actual or perceived protected activities and further find that Mr. Carter had not 

voluntarily relinquished his employment on December 22, 2009. 

In addition to alleging that Mr. Carter had voluntarily quit his employment, Respondents 

also contend that Mr. Carter had not been asked to return to work after the winter lay-off due to 

his poor work performance. 

Although the Respondents deny that Complainant was actually discharged in December 

2009, I find that the Respondents’ failure to recall Mr. Carter after winter lay-off due to his 

alleged past poor work performance, to have constituted a de facto discharge for protected work 

activity and was, therefore, a discriminatory adverse action. 

A mine operator may affirmatively defend against a prima facie case establishing that 

any adverse action was also motivated by unprotected activity, and that it would have taken the 

adverse action for the unprotected activity alone. Robinette, 3 FMSHRC at 8118, n. 20; See also 

Jim Walter Resources, 920 F.2d at 750, citing Eastern Associated Coal Corp. v. FMSHRC, 813 

F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) 

(specifically approving the Commission’s Pasula-Robinette test). 

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I find the late raised claim of Mr. Carter’s discharge based upon poor work performance 

is both inconsistent with Respondents’ own witness testimony and blatantly pretextual in nature. 

As noted supra, Noble Plant himself, the only individual who had the power to discharge 

employees, denied that he had fired Mr. Carter in December 2009. (See inter alia Tr. 289-287, 

Vol. II). Noble Plant “definitely thought he (Carter) was a good employee” (Tr. 287, Vol. II), 

“could run the plant fairly” and had planned to bring (Carter) back during the off-season. (Tr. 

252, Vol. II). Thus, Respondents’ affirmative defense is vitiated by Noble Plant’s own 

testimony. 

Over the Secretary’s strenuous objection, Respondents were permitted for the first time 

to raise business justification as an affirmative defense in this matter. (See TR. 160-163, Vol. I; 

see also Respondents’ earlier pleadings, including past answer(s) containing no specific 

allegation of poor work performance/discharge and Respondents’ bench memoranda contending 

that Complainant voluntarily quit his employment in December 2009). 

Though permitting the Respondents to raise the within poor work performance defense at 

hearing, after a careful review of the record, including Noble Plant’s denials of discharge and 

favorable descriptions of work performance, I am constrained to agree with the Secretary that 

such defense is pretextual.6 

The Commission’s inquiry into an operator’s business justification is limited to whether 

the reasons are plausible, whether they actually motivated the operator’s actions, and whether 

they would have led the operator to act even if the miner had not engaged in protected activity. 

Likewise, the Commission may not impose its own business judgment as to an operator’s action. 

Pendley v. FMSHRC, 601 F.3d 417 (6th Cir. 2010). 

Whether Complainant was discharged in December 2009 for poor work performance or 

whether Complainant was not recalled after the winter lay-off, the record simply does not 

support a business justification defense for Respondents’ actions. 

Noble Plant’s equivocal testimony on point has already been cited. Respondents’ 

argument that Mr. Carter would have been laid off in 2009 due to the usual pre-planned winter 

lay-off (Tr. 253, Vol. II), is undermined by Noble Plant’s testimony that he had planned to bring 

Mr. Carter back during the off-season. (Tr. 252, Vol. II). 

I specifically find that Mr. Carter’s unsuccessful attempts to repair a crushing machine in 

the summer of 2009 do not constitute a plausible business reason for Mr. Carter’s discharge in 

December 2009, or Respondents’ decision to not recall Mr. Carter over half-a-year later. In fact, 

such repair attempts lead me to conclude that Mr. Carter was a multi-skilled employee who 

reasonably attempted complex repairs in-house to avoid unnecessary expenses for Respondents. 

6

 See also the Secretary’s arguments and supporting case law in post-hearing brief as to the 

pretextual nature of Respondents defenses, said rationale which I fully adopt. 

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Further, none of Respondents’ other witnesses, Adam Plant, Melissa Potts, or James 

Potts, offered any compelling testimony regarding alleged poor work performance.7 

Respondents argue that Adam Plant’s testimony should be given the “most weight.” (See 

Respondents’ post hearing brief at p. 23). In assessing witness credibility and the weight to be 

accorded testimony, the Administrative Law Judge must consider any possible bias or 

underlying interest in the outcome which might motivate a witness not to tell the whole truth. 

Like all the witnesses presented by Respondents, Adam Plant had a family relationship to Noble 

Plant and worked for the family business. Adam, in fact, replaced Mr. Carter as Kino 

Aggregates’ new Plant Manager. As grandson of Respondent and employee/replacement 

manager of Respondents’ Dantoni Mine, Adam Plant had an underlying familial bias and 

economic interest in the outcome of the case. Thus, Adam Plant is less than a wholly 

disinterested witness and I find he is less than fully credible. 

Ultimately, the undersigned is required to resolve directly opposing testimony as to a 

critical fact question: did Mr. Carter have a confrontation with Noble Plant on December 22, 

2009 at Mr. Plant’s pick-up truck during which Mr. Plant fired Mr. Carter? 

Noble Plant denied that any conversation had taken place and Adam Plant denied ever 

witnessing such. Yet Inspector Berglof – who I found to be the most disinterested witness – 

testified, under oath, that he had in fact seen and heard Noble Plant castigating Mr. Carter for 

having called MSHA. (See Tr. 104-141, Vol. I). Inspector Berglof’s testimony is credible and 

has essentially corroborated Mr. Carter’s testimony. 

The Respondent’s business justification defense(s) do appear “flimsy” and 

“unsupported,” suggesting that Respondents “seized upon a pretext to mask” their discriminatory 

motivation. NLRB v. Interstate Builders, Inc., 351 F.3d 1020, 1034 (10th Cir. 2003) (quoting 

NLRB v. Dillon Stores, Division of Dillon Cos., Inc., 643 F.2d 687, 693 (10th Cir. 1981)). See 

Johnson v. Paradise Valley Unified School District, 251 F.3d 1222, 1228 (9th Cir. 2001) (“In 

appropriate circumstances, the trier of fact can reasonably infer from the falsity of the 

explanation that the employer is dissembling to cover up a discriminatory purpose.”) (quoting 

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 134 (2000), cert. denied, 534 U.S. 

1055 (2001)). The Commission has similarly rejected pretextual explanations which the 

operator “seized upon” as an excuse to carry out a discriminatory design. Secretary of Labor on 

behalf of Robert Ribel v. Eastern Associated Coal Corp., 7 FMSHRC 2015, 2021 (Dec. 1985). 

The record is replete with explanations and/or non-explanations of Respondents’ 

witnesses that undermine their ultimate credibility, contradicting common sense, logic, and life 

experience. A critical employee suddenly walks off the work premises, never to return, but 

Noble Plant never enquires why. Respondents allege Complainant’s voluntary withdrawal 

and/or discharge due to poor work performance but do not report such, as required, to the state of 

7

 All of said witnesses had a familial relationship to Noble Plant, were employed by Noble Plant, 

and all, including Noble Plant, would have an underlying interest in the outcome of the case. 

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California employment department. (See also GX P-7). Moreover, if Allen Reiss had in fact 

been provided MSHA training by Noble Plant prior to Mr. Carter’s discharge in December 2009, 

why were Respondents unable to produce supporting documents during Supervisory Investigator 

Diane Watson’s visit to Dantoni Mine in February 2010? (See also Watson testimony at Tr. 

290-294, Vol. II; Secretary’s post-hearing arguments regarding Respondents’ possible 

fabrication of documents). 

IV. Conclusion 

I find that Respondents have failed to establish any affirmative defense to 

Petitioner/Complainant’s discrimination claims. I further conclude that Petitioner’s and 

Complainant’s claims of discrimination under § 105(c) have met the requisite proof to be 

granted. 8 

A. Damages 

Pursuant to the statutory relief provided at 30 C.F.R. § 815(c), Complainant is entitled to 

“rehiring or reinstatement” in his former position of plant operator at Respondents’ Dantoni 

Plant. 

B. Duty to Mitigate 

The Mine Act provides that a miner who has been discharged is required to mitigate his 

damages by making reasonable efforts to find employment. Sec. of Labor v. Gabel Stone Co., 23 

FMSHRC 1222 (2001), aff’d Gabel Stone Co. v. FMSHRC, 307 F.3d 691 (8th Cir. 2002). A 

discharged worker’s efforts at reemployment however, are not to be judged by the “highest 

standard of diligence.” NLRB v. Arduini Mfg. Corp., 394 F.2d 420 (1st Cir. 1968). Moreover, a 

discriminatee’s alleged failure to mitigate damages is an affirmative defense. James Keys v. 

Reintjes of the South, Inc., 21 FMSHRC 1127 (Oct. 1999). See NLRB v. Mooney Aircraft, Inc., 

366 F.2d 809 (5th Cir. 1966) (Failure to mitigate damages by refusal to search for alternative 

work or by refusal to accept substantially equivalent employment is an affirmative defense.) 

At hearing, the Complainant credibly described his good faith efforts to find new 

employment. (Tr. 108-115, Vol. I). In its cross-examination, Respondents failed to 

affirmatively prove that Complainant was somehow derelict in fulfilling his duty to mitigate 

damages. 

8

 Given the within holding of actual unlawful termination, I decline to address, in full, the issue 

of whether there was a constructive discharge of Complainant. However, there exists compelling 

evidence, whether utilizing a subjective or objective standard, that Complainant faced intolerable 

work conditions. Dolan v. F&E Erection Co., 22 FMSHRC 171, 174-81 (Feb. 2000). 

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C. Pain, Suffering, and Emotional Distress 

In prior pleadings Petitioner has requested damages for pain, suffering, and emotional 

distress associated with Respondents’ unlawful termination. I find no documentary or 

testimonial evidence to support said damage claims and deny such. 

D. Other Damages 

Section 105(c)(3) provides that when a discrimination complainant’s claim is granted the 

Administrative Law Judge may grant “such relief as it deems appropriate.” 

Given the within findings that Complainant did not voluntarily quit employment and was 

in fact, discharged for unlawful discriminatory reasons, Respondents are ordered to expunge 

and/or purge any negative personnel file references regarding Complainant’s alleged resignation 

and/or discrimination complaint. Respondents are further ordered to post a notice at Dantoni 

Mine that they will not violate § 105(c)(1) of the Act. 

E. Back Pay, Interest, and the Secretary’s Proposed Civil Penalties 

Pursuant to § 105(c), this Court finds that as further relief the Complainant is entitled to 

“back pay and interest” since December 22, 2009. I further find that Respondents are entitled to 

deduct Complainant’s interim net wages received from other employment since December 22, 

2009 from the gross pay that Complainant would have otherwise received from Respondents. 

The Respondents, however, are not entitled to a deduction for any unemployment compensation 

benefits received by Complainant. 

The parties have not agreed as to the actual gross amount that Complainant would have 

received from Respondents since December 22, 2009. (See different amounts suggested by the 

Secretary and Respondents in their post-hearing briefs). While an Administrative Law Judge has 

broad discretion in fashioning an appropriate remedy so as to make the discriminatee “whole,” I 

find an insufficient record as to the issue of Complainant’s outstanding gross pay since 

December 22, 2009. I therefore retain jurisdiction of this matter for purposes of establishing the 

amount of monetary damages, including back-pay and interest, owed to Complainant. 

If the parties cannot reach an agreement as to such, I shall hold further proceedings, 

including evidentiary hearing, if necessary, to determine an appropriate remedial amount. 

Pending its disposition of the within monetary damages claim(s), I shall also withhold ruling on 

the Secretary’s proposed civil penalty of $15,000. 

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ORDER 

It is hereby ordered that Petitioner’s and Complainant’s discrimination claims under 

Sections 105(c)(1) and 105(c)(2) are granted. 

It is further ordered that Complainant be reinstated to his former position of plant 

operator at Respondents’ Dantoni Mine. 

It is ordered that Respondents expunge from their personnel records any negative 

references to Complainant’s alleged resignation in December 2009, and further purge their 

personnel records of any negative references to Complainant’s within discrimination action. 

It is ordered that Respondents post a notice at Dantoni Mine that they will not violate 

§ 105(c)(1) of the Mine Act. 

It is further ordered that Complainant’s claims for pain, suffering, and emotional distress 

damages be denied. 

I find that Complainant has met his duty to mitigate damages. 

I further find that the record is insufficient as to the gross pay that Complainant would 

have earned from Respondents since his discriminatory discharge on December 22, 2009. I 

therefore maintain jurisdiction of this matter for purposes of establishing the actual amount of 

monetary damages, including back pay and interest, for which Respondents are now liable. 

With reference to such, Respondents are entitled to deduct the actual net interim earnings 

received by Complainant from other employers since December 22, 2009. Respondents, 

however, are not found to be entitled to any deductions for unemployment compensation benefits 

received by Complainant since December 22, 2009. 

The parties are ordered within thirty days of the date of this order to advise the 

undersigned whether they have agreed as to specific monetary damages owed to Complainant. If 

the parties cannot agree, an evidentiary hearing regarding such shall be scheduled. 

I shall further withhold ruling on the Secretary’s proposed civil penalty of $15,000 

pending disposition of the within monetary relief claim. 

/s/ John Lewis 

John Lewis 

Administrative Law Judge 

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Distribution: (Certified Mail) 

Isabella M. Finneman, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7th Street, 

Suite 3-700, San Francisco, CA 94103 

Kurt D. Hendrickson, Esq., Knox Lemmon Anapolsky & Schrimp LLP, 300 Capitol Mall, Suite 

1125, Sacramento, CA 95814 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

February 10, 2012 

BLACK BEAUTY COAL COMPANY, : CONTEST PROCEEDINGS
 

Contestant :

 : Docket No. LAKE 2008-378-R

 : Order No. 6672656; 04/05/2008 

v. :

 : Docket No. LAKE 2008-379-R

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 : 

:

 : 

Citation No. 6672658; 04/08/2008 

Docket No. LAKE 2008-380-R

 ADMINISTRATION (MSHA),

Respondent

 : 

:

Citation No. 6672659; 04/08/2008 

: 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 : 

:

CIVIL PENALTY PROCEEDINGS

 ADMINISTRATION (MSHA),

Petitioner

 : 

: 

Docket No. LAKE 2008-643 

A.C. No. 12-02010-160151 

: 

v. : Docket No. LAKE 2009-72

 : A.C. No. 12-02010-165822

 : 

BLACK BEAUTY COAL COMPANY,

Respondent

 : 

: 

Air Quality No. 1 

DECISION 

Appearances:	 Matthew M. Linton, Esq., Office of the Solicitor, U.S. Department of Labor, 

MSHA, Denver, Colorado, for the Petitioner; 

Arthur M. Wolfson, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania, 

for the Respondent. 

Before: Judge Feldman 

These consolidated contest and civil penalty proceedings concern Petitions for the 

Assessment of Civil Penalty filed pursuant to section 110(a) of the Federal Mine Safety and 

Health Act of 1977, as amended (“the Mine Act”), 30 U.S.C. § 820(a), by the Secretary of Labor 

(“the Secretary”) against the respondent, Black Beauty Coal Company (“Black Beauty”). 

The petitions sought to impose a total civil penalty of $377,931.00 against Black Beauty for 

34 alleged violations of Part 75 of the Secretary’s mandatory safety regulations governing 

underground coal mines. 30 C.F.R. Part 75. These matters were heard on July 12 through 

July 14, 2011, in Evansville, Indiana. The parties’ post-hearing briefs are of record. Prior to the 

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hearing the parties settled 29 of the 34 citations and orders in issue. The parties settled three 

additional citations as a consequence of settlement conferences after the presentation of evidence 

related to these citations at the hearing. 

This Decision formalizes a bench decision that granted the Secretary’s motion for 

summary decision with respect to Citation No. 6672658 in Docket No. LAKE 2008-643 that 

concerns an alleged non-significant and substantial (non-S&S) violation 30 C.F.R. § 50.12.1 

Citation No. 6672658 was issued as a consequence of Black Beauty’s failure to obtain the 

permission of the Mine Safety and Health Administration (MSHA) District Manager before 

resuming normal mining operations after a mine accident was reported. This Decision also 

disposes of remaining Order No. 6681047 in Docket No. LAKE 2009-72 issued for an alleged 

inadequate on-shift examination conducted during a midnight maintenance shift that the 

Secretary attributes to an unwarrantable failure. 

I. Settlement Agreements 

a. Docket No. LAKE 2008-643 

Docket No. LAKE 2008-643 contains 20 citations/orders for a total proposed 

civil penalty of $207,516.00. Prior to the hearing, the parties agreed to settle 18 of the 

citations/orders for a total civil penalty of $143,493.00. The settlement terms are of record 

and were approved at the hearing. (Joint Ex. 1). At the hearing the Secretary agreed to vacate 

Citation No. 6672659. As discussed below, the bench decision imposed a civil penalty of 

$500.00 for remaining Citation No. 6672658. Consequently, the total civil penalty assessed in 

Docket No. LAKE 2008-643 is $143,993.00. 

b. Docket No. LAKE 2009-72 

Docket No. LAKE 2009-72 contains 14 citations/orders for a total proposed 

civil penalty of $170,415.00. Prior to the hearing, the parties agreed to settle 11 of the 

citations/orders for a total civil penalty of $59,862.00. The settlement terms are of record 

and were approved at the hearing. (Joint Ex. 1). At the hearing, the parties agreed to modify 

Order No. 6672674 to a 104(a) citation to reflect that the cited violation was not attributable 

to an unwarrantable failure. Black Beauty agreed to pay a civil penalty of $7,000.00 for 

Citation No. 6672674. At trial, the parties also agreed to settle Order No. 6676919 by deleting 

the S&S designation. Black Beauty agreed to pay a reduced civil penalty of $14,000.00 for 

Order No. 6676919. Remaining Order No. 6681047, adjudicated in this Decision, shall be 

vacated. Thus, the total civil penalty assessed in Docket No. LAKE 2009-72 is $80,862.00. 

1 Generally speaking, a violation is S&S if it is reasonably likely that a hazard 

contributed to by the violation will result in an accident causing serious injury. Cement Division, 

National Gypsum, 3 FMSHRC 822, 825 (April 1981). 

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II. Bench Decision – Citation No. 6672658
 

In Docket No. LAKE 2008-643
 

At approximately 8:05 p.m. on Sunday, April 5, 2008, roof bolter Harold (“Jesse”) 

Driskill was struck by a fallen slab of rock measuring seven feet long by 47 inches wide. 

The fallen rock was approximately nine inches thick. The rock pinned Driskill against the mine 

floor and the roof bolter. The fallen material hit Driskill in the head and slid down his body. 

Driskill stood up with assistance, walked to a mantrip, and was taken to the surface where he 

was transported to a hospital by ambulance. (Gov. Exs. 15, 18, 19). 

Section 50.10(b) of the Secretary’s regulations requires a mine operator to immediately 

notify MSHA, within 15 minutes, once the mine operator knows of an accident that involved an 

injury that had a reasonable potential to cause death. 30 C.F.R. § 50.10. Black Beauty timely 

reported the accident on the MSHA telephone hotline at 8:23 p.m., shortly after the occurrence 

of the accident. The accident was reported before the nature and extent of Driskill’s injuries 

were known. 

Ron Stalhut, the MSHA Field Office Supervisor in Vincennes, Indiana, learned of the 

accident at approximately 9:41 p.m. at which time MSHA official Michael Rennie issued a 

verbal 103(k) order that prohibited Black Beauty from resuming normal mining operations at the 

accident site.2

 At that time, Stalhut dispatched MSHA inspector Sylvester DiLorenzo for the 

purposes of securing the accident site and initiating an accident investigation. DiLorenzo arrived 

at the accident site at approximately 10:50 p.m. at which time he determined that normal mining 

operations had resumed that had resulted in the alteration of the accident scene. 

As a result of DiLorenzo’s observations, Citation No. 6672658 was issued citing 

a violation of section 50.12 that requires preservation of evidence at an accident site. 

Specifically section 50.12 provides: 

Unless granted permission by a MSHA District Manager, no operator may alter 

an accident site or an accident related area until completion of all investigations 

pertaining to the accident except to the extent necessary to rescue or recover an 

individual, prevent or eliminate an imminent danger, or prevent destruction of 

mining equipment. 

30 C.F.R. § 50.12. (Emphasis added). 

2

 Verbal 103(k) order was reduced to writing in Order No. 6672656 which is the subject 

of the contest in Docket No. LAKE 2008-378-R. Section 103(k) of the Mine Act authorizes 

MSHA to issue such orders, as deemed appropriate, requiring prior approval before the 

resumption of normal mining activities at an accident site. 30 U.S.C. § 813(k). 

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Under section 50.2 of the Secretary’s regulations the definition, in pertinent part, of 

“accident” is “[a]n injury to an individual at a mine which has a reasonable potential to cause 

death.” After presentation of the evidence, the Secretary moved for summary decision on the 

issue of the fact of the violation of section 50.12. (Tr. 278). This decision formalizes the bench 

decision issued at trial: 

The circumstances in this case were set in motion by Steve Elliott, the 

responsible person designated in Black Beauty’s emergency response plan. 

Elliott was required to determine, within 15 minutes of the 8:05 p.m. accident, 

whether Driskill’s injuries were life threatening. Erring on the side of caution, 

without knowing the extent of Driskill’s injuries, Elliott notified MSHA at 8:23 

p.m. DiLorenzo arrived at the accident site at approximately 10:50 p.m., at which 

time normal mining operations had resumed. Terry Courtney, the second shift 

manager in charge at the time of the accident, and Rick Carie, acting 

superintendent, advised DiLorenzo that information from the hospital reflected 

that Driskill had escaped serious injury. Consequently, normal mining 

operations had resumed. 

Since Black Beauty resumed mining without the permission of the MSHA District 

Manager, DiLorenzo issued Citation No. 6672658, alleging a non-S&S violation 

of section 50.12. 

Medical records in an Indiana Worker’s Compensation Report reflect that 

Driskill suffered abrasions to the arm and rib cage. Based on medical advice, 

Driskill was cleared to return to work on April 7, 2008, two days following the 

accident, without significant physical restrictions. Although Driskill apparently 

experienced pain and discomfort, the evidence reflects that his injuries were not 

life threatening. 

Turning to the fact of the violation, the plain language of section 50.12 

prohibits a mine operator from altering an accident site by resuming operations, 

unless such permission is granted by the MSHA District Manager. The report of 

an accident, rightly or wrongly, is the condition precedent to the application of the 

provisions of section 50.12. Having reported an accident, Black Beauty’s 

unilateral decision to resume operations constituted a violation of section 50.12. 

However, it is a mitigating factor that Black Beauty had correctly 

determined that the scene was not an “accident site” in that serious injury was not 

sustained. Consequently, the negligence attributable to Black Beauty should be 

reduced from the high degree asserted in Citation No. 6672658 to a low degree of 

negligence. The Secretary initially proposed a civil penalty of $2,678.00. In 

view of the reduction in the negligence, a civil penalty of $500.00 shall be 

assessed. 

(Tr. 308-25). 

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At the hearing, I requested the parties to address in their briefs whether section 50.12 is a 

reporting violation, and if so, whether it could properly be designated as S&S. However, as the 

citation did not allege that the citation was S&S, I decline to address this question, which I now 

view as moot. 

III. Order No. 6681047 

In Docket No. LAKE 2009-72
 

There are two production shifts at Black Beauty’s mine. The day production shift 

begins at 7:00 a.m. and ends at 3:00 p.m., and the afternoon production shift is from 

3:00 p.m. until 11:00 p.m. The remaining shift is the midnight maintenance shift from 

11:00 p.m. until 7:00 a.m. (Tr. 85). 

During the course of an inspection conducted on the morning of September 11, 2008, 

MSHA inspector Glenn Fishback observed what he deemed to be obvious and extensive 

accumulations of combustible materials in the form of loose coal, coal fines, and float coal dust, 

which were allowed to accumulate along the energized 2 Main East conveyer belt header inby to 

the number 48 crosscut. It required approximately 20 employees shoveling each shift and the 

application of six 3,500 pound tanks of rock dust for a period of 18 hours to correct the affected 

area. As a result of his observations, Fishback issued 104(d)(2) Order No. 6681046 citing 

a violation of section 75.400 that prohibits the accumulation of combustible materials. 

(Gov. Ex. 33; Appx. I). 

The violation was attributed to an unwarrantable failure.3 The cited condition in 

Order No. 6681046 was designated as unwarrantable based on the extensive nature of the 

accumulations,4 Black Beauty’s history of section 75.400 violations, and prior meetings 

with mine management advising that greater cleanup efforts were required. (Gov. Ex. 33; 

Appx. I). The disposition of Order No. 6681046 is not in issue in this proceeding.5 

3

 As a general matter, an unwarrantable failure occurs when a violation is caused by 

aggravated conduct rather than ordinary negligence. Emery Mining, 9 FMSHRC 1997, 2001 

(Dec. 1987). 

4

 While the accumulations were apparently extensive, 104(d)(2) Order No. 6681046 

uncharacteristically delineates the cited accumulations, in great detail, into their component 

parts. (See Appx. I). 

5

 Order No. 6681046 was issued at the same time as Order No. 6681047, a subject in 

these proceedings. A decision on the merits in Order No. 6681046 is currently pending before 

Judge Manning as a result of a hearing conducted in LAKE 2009-304. 

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As a result of the conditions noted in 104(d)(2) Order No. 6681046, Fishback issued 

104(d)(2) Order No. 6681047 citing an S&S violation of the on-shift provisions in 30 C.F.R. 

§ 75.362(b) that was attributed to an unwarrantable failure. The Secretary proposes a civil 

penalty of $53,858.00. Order No. 6681047 states: 

An inadequate onshift examination was conducted for the 2 main East belt 

conveyor for the 4:30 AM to 7:30 AM examination on 9/11/2008. Obvious and 

extensive accumulations of combustible materials in the form of loose coal, 

coal fines, and float coal dust were observed by MSHA on this date. The 

accumulations of combustible materials were cited today in 104(d)(2) Order No. 

6681046. The examination record for the 4:30 AM to 7:30 AM examination of 

the 2 Main East belt showed no hazards listed. 

(Gov. Ex. 32). 

Section 75.362(b) provides: 

During each shift that coal is produced, a certified person shall examine for 

hazardous conditions along each belt conveyor haulageway where a belt conveyor 

is operated. This examination may be conducted at the same time as the preshift 

examination of belt conveyors and belt conveyor haulageways, if the examination 

is conducted within 3 hours before the oncoming shift. 

(Emphasis added). 

Addressing the propriety of Order No. 6681047 requires a discussion of the Secretary’s 

preshift and on-shift examination requirements. An on-shift examination for hazardous 

conditions in each section where persons work must be conducted at least once during each 

shift. 30 C.F.R. § 75.362(a)(1). During production shifts, on-shift examinations must also be 

performed for hazardous conditions along each belt conveyor haulageway where a belt is 

operated. 30 C.F.R. § 75.362(b). 

A preshift examination for hazardous conditions must be performed within three hours 

of the beginning of the subsequent eight hour shift. 30 C.F.R. § 75.360(a)(1). The preshift 

examination requires examination of roadways, travelways and track haulageways where persons 

will be working or traveling during the oncoming shift. 30 C.F.R. § 75.360(b)(1). On-shift and 

preshift examinations may be conducted at the same time if the examination occurs within 

three hours before the oncoming shift. Thus, an on-shift examination of belt haulageways during 

a production shift may be conducted at the same time as a preshift examination for the upcoming 

maintenance shift provided that examinations are conducted within three hours of the beginning 

of the maintenance shift. 30 C.F.R. § 75.362(b). 

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Order No. 6681047 alleges that: “[a]n inadequate onshift examination was conducted 

for the 2 main East belt conveyor for the 4:30 AM to 7:30 AM [midnight maintenance shift] 

examination on 9/11/2008.” Although the on-shift provisions of section 75.362 require that, at 

least once during each shift, examinations for hazardous conditions must be conducted in each 

section where anyone is assigned to work during that shift, an on-shift examination of belt 

entries is not required during non-production shifts. 30 C.F.R. § 75.362(b). Thus, Black Beauty 

asserts that an on-shift examination of the 2 main East belt conveyor during the September 11, 

2008, midnight maintenance shift was not conducted because it was not required. 

Rather, the most relevant examination of the belt haulageway was during the 

on-shift/preshift examination during the afternoon production shift on September 10, 2008. 

However, the Secretary’s case, as articulated in Order No. 6681047, is based on an inadequate 

on-shift examination from 4:30 a.m. to 7:30 a.m. during the September 11, 2008, midnight shift 

rather than an alleged inadequate belt examination between 3:00 p.m. and 11:00 p.m. during 

the preceding production shift on the afternoon and night of September 10. Thus, as noted, 

Black Beauty argues that Order No. 6681047 must be vacated because the cited on-shift 

examination that is the basis for the alleged violation of section 75.362(b) was not required. 

The Secretary attempts to rebut the claim that an on-shift examination of the belt entry 

was not required by relying on the testimony of Black Beauty’s superintendent Gary Campbell. 

Campbell testified, based on his review of the examination records, that certain sections of the 

conveyor belts were operated during the midnight shift on September 11, 2008, for splicing or 

other maintenance. (Tr. 573-74). While these repaired belt sections had to be preshifted for 

hazardous conditions in preparation for the day shift, the Secretary has failed to demonstrate that 

an on-shift examination of the belt haulage system under section 75.362(b) was required given the 

non-production status of the mine. 

Significantly, the Secretary does not explicitly contend, nor does any documentary 

evidence reflect, that coal was produced on the midnight shift on September 11, 2008. While 

Fishback testified that Black Beauty “ran [coal] all three shifts” when Fishback was formerly 

employed by Black Beauty, Fishback stated he could not recall whether the midnight shift 

was producing coal on September 11, 2008, “because its been so long ago.” (Tr. 458-60). 

Fishback conceded on-shift examination of belt haulageways is not required during 

maintenance shifts. (Tr. 460). 

While it may be reasonable to assume that the extensive accumulations noted in 

Order No. 6681046 existed when the on-shift examination was conducted on the afternoon of 

September 10, 2008, the Secretary has not sought to amend Order No. 6681047. Nor was any 

significant evidence presented by the Secretary at trial regarding the nature and extent of the 

conditions in the 2 main East belt haulageway on September 10, 2008, or, concerning the 

circumstances underlying the September 10 afternoon on-shift examination. Thus, the central 

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question is whether, at this late post-trial and post-briefing date, the Commission, on its own, 

should consider Order No. 6681047 as amended to conform to the Secretary’s regulatory 

requirements. Namely, whether Order No. 6681047 should be considered amended to cite an 

inadequate on-shift exam violation of section 75.362(b) during the September 10, 2008, 

afternoon production shift. 

The Commission, on several occasions, has addressed the issue of the propriety of 

allowing post-hearing amendment of a citation to include a new theory of a violation. As a 

general proposition, the Commission and its Judges are guided by the Federal Rules of Civil 

Procedure. 29 C.F.R. § 2700.1. Although the Commission’s Rules do not address amendment 

of pleadings, the Commission has noted that it relies on Fed. R. Civ. P. 15 when resolving such 

issues. Cumberland Coal Resources, LP, 32 FMSHRC 442, 447 (May 2010) (split decision), 

citing Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990). 

Fed. R. Civ. P. 15(b)(2) provides: 

When an issue not raised by the pleadings is tried by the parties’ express or 

implied consent, it must be treated in all respects as if raised in the pleadings. 

A party may move – at any time, even after judgment – to amend pleadings to 

conform them to the evidence and to raise an unpleaded issue. But failure to 

amend does not affect the result of the trial of that issue. 

The Commission has distinguished permitting the Secretary’s post-trial amendment when 

the mine operator knew, or should have known, that a new theory was being advanced from 

instances when amendments are denied due to prejudice. For example, in Cumberland the 

Commission stated: 

Accordingly, in our jurisprudence we have considered Rule 15(b) in several 

contexts. Compare Consolidation Coal Co., 20 FMSHRC 227, 235-37 (Mar. 

1998) (concluding that the Secretary could not amend a citation post-hearing to 

include a new theory of violation regarding the cited standard because the trial 

record did not reflect that the operator understood, or should have understood, 

that the new theory was being litigated) with Faith Coal Co., 19 FMSHRC 1357, 

1362 (Aug. 1997) (permitting a citation to be amended after hearing to correct a 

numbering error by the Secretary because the operator fully understood the 

gravamen of the correct standard, knowingly litigated the citation on that basis, 

and suffered no prejudice). 

Cumberland, 32 FMSHRC at 447. 

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Thus, the dispositive question is whether the issue of the adequacy of the on-shift 

examination of the 2 main East belt haulageway during the afternoon production shift on 

September 10, 2008, “was tried with the express or implied consent of the parties.” (Id. at 

32 FMSHRC at 447). An examination of the record evidence reflects that the Secretary’s 

focus was on the adequacy of the September 11, 2008, maintenance shift examination, 

rather than the September 10, 2008, afternoon production shift examination. 

For example, Fishback testified that the most recent examination, which covered 

4:30 a.m. to 7:30 a.m. on September 11, 2008, just hours before Fishback inspected the beltline, 

did not identify any hazardous accumulations anywhere along the 2 Main East beltline. 

(Sec’y Br. at 3 citing Tr. 409-10, Gov. Ex. 42 p. 213). In this regard, the Secretary asserts: 

“Fishback testified that it was ‘not possible’ for even one fifth of the accumulations he observed 

to develop in the time between the 4:30 a.m. to 7:30 a.m. examination [on September 11, 2008] 

and his [11:00 a.m.] inspection [later that morning].” (Sec’y Br. at 4 citing Tr. 442). In addition, 

the Secretary argues: “Indeed, Black Beauty offered [the] testimony of mine examiner 

Andrew Herndon that it only performed a ‘pre-shift’ examination from 4:30 a.m. to 7:30 a.m. 

on September 11, 2008 because this was a ‘non-production’ shift.” (Id. citing Tr. 687). 

Finally, the Secretary notes: “[a]s a result, Herndon testified that he never looked beyond the 

dump points, drives, and transfer points during the midnight shift on September 11, 2008, 

because he was only required to do a more limited ‘pre-shift exam.’” (Id.) 

In the final analysis, it has been neither contended, nor shown, that the Secretary’s theory 

of the case was based on an inadequate on-shift examination during the afternoon production 

shift on September 10, 2008. Thus, Order No. 6681047 must be vacated because Black Beauty 

was not required under section 75.362(b), the cited mandatory standard, to conduct an on-shift 

examination of the belt haulageway during the September 11, 2008, midnight maintenance shift. 

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ORDER 

In view of the above, IT IS ORDERED that: 

(1) Black Beauty Coal Company shall pay a civil penalty of $500.00 in 

satisfaction of Citation No. 6672658 in Docket No. LAKE 2008-643. 

(2) Consistent with the parties’ approved settlement terms, Black Beauty Coal 

Company shall pay a total civil penalty of $143,993.00 in satisfaction of the 20 

citations/orders that are the subject of LAKE 2008-643. 

(3) 104(d)(2) Order No. 6681047 in Docket No. LAKE 2009-72 

IS VACATED. 

(4) Consistent with the parties’ approved settlement terms, Black 

Beauty Coal Company shall pay a total civil penalty of $80,862.00 

in satisfaction of the 14 citations/orders that are the subject of 

LAKE 2009-72. 

(5) Consequently, Black Beauty IS ORDERED to pay within 45 days of the date 

of this decision, a total civil penalty of $224,855.00 in satisfaction of the citations/ 

orders in issue in Docket Nos. LAKE 2008-643 and LAKE 2009-72. 

(6) Upon timely receipt of the total $224,855.00 civil penalty, the captioned 

contest and civil penalty matters ARE DISMISSED.

6 

/s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

6 Verbal 103(k) Order No. 667256 issued on April 5, 2008, in response to the 

Black Beauty’s accident report concerning Driskill’s injuries, is the subject of the contest in 

Docket No. LAKE 208-378-R. Order No. 667256 was not included in the parties’ settlement 

agreement because a civil penalty was not proposed. Nevertheless, the contest in Docket No. 

LAKE 208-378-R is dismissed as moot in view of the disposition of Citation No. 6672658 

that normal mining operations could not be resumed without prior MSHA approval. 

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Distribution: (Certified and Electronic Mail) 

Matthew Linton, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, 

Suite 800, Denver, CO 80202 

Arthur Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty 

Ave., Pittsburgh, PA 15222 

/jel 

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Appendix I
 

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34 FMSHRC Page 451

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE 

601 NEW JERSEY AVENUE, N.W., SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9917 / FAX 202-434-9949
 

February 13, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : DOCKET NO. KENT 2010-544

 Petitioner, : A.C. No. 15-19039-207936 

:

 v. : 

: 

WILLIAMS BROS. COAL CO., INC., : Mine: Coal Hollow Mine

 Respondent. : 

DECISION 

Appearances: C. Renita Hollins, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for Petitioner; 

Ken Fletcher, CLR, MSHA District 12, Beaver, West Virginia, for Petitioner; 

Mr. Huford Williams, Williams Bros. Coal Co., Inc., Mouthcard, Kentucky, pro 

se for Respondent. 

Before: Judge L. Zane Gill

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

of Labor, acting through the Mine Safety and Health Administration, against Williams Bros. 

Coal Company at its Coal Hollow Mine, pursuant to sections 105 and 110 of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act” or “Act”). This case 

involves a single 104(a) C violation of the standard found at 30 CFR § 75.1506(a) with a total 

proposed penalty of $1,657.00. The parties presented testimony and documentary evidence at 

the hearing held in Pikeville, KY, on October 18, 2011. At the conclusion of the presentation of 

evidence, the Court issued a bench decision1

 finding a violation of the standard with “low” 

negligence and with gravity assessed as reasonably likely to result in a fatality that could affect 

up to ten miners. The Court imposed a fine of $100.00 to be paid within 30 days of the issuance 

of this written decision. This written decision adopts and adapts the bench decision in 

compliance with Commission Rule 2700.69(a). The bench decision is incorporated into this 

written decision to the extent it is consistent with it. 

1 29 CFR §2700.69(a). 

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FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Williams Bros. Coal Company, (“the company”) operates an underground bituminous coal 

mine, the Coal Hollow Mine (the “mine”) near Meta, Kentucky. The mine is subject to regular 

inspections by the Secretary’s Mine Safety and Health Administration (“MSHA”) pursuant to 

section 103(a) of the Act and spot inspections. 30 U.S.C. § 813(a). The parties stipulated that 

the company is the operator of the mine, that the mine’s operations affect interstate commerce, 

and that the mine is subject to the jurisdiction of the Mine Act. (Joint Response to Prehearing 

Order, ¶ 2). 

In 2007, in the aftermath of the Sago mine disaster, the company was required to purchase 

and install a safe haven refuge shelter by December 31, 2009. The company was required to 

specify which type of refuge unit it would install and include that information in its emergency 

response plan (“ERP”) for MSHA approval. (Tr. 36:19-38:19) It was also required, as a 

minimum, to provide MSHA with a purchase order (“PO”) from a vendor showing a delivery 

date prior to December 31, 2009. (Tr. 100:12-101:20; 118:1-5) On August 31, 2007, the 

company obtained a purchase order (“PO”) from the A.L. Lee, Co. indicating a projected 

delivery date of April 21, 2009. (Tr. 29:15-2; Exhibit R-1c) Before the delivery date arrived, the 

company fell on hard times and shut down operations at the mine. The mine was closed from 

April 2009 until September 2009; it reopened after Labor Day 2009. (Tr. 100:12-101:20)2 

The April 21, 2009 delivery date came and went while the mine was shut down. Shortly 

after the company resumed mining operations, it presented MSHA with an amended proposed 

ERP on September 9, 2009, which specified a second delivery date of November 5, 2009, but did 

not change the type of refuge unit. MSHA approved the amendment on October 30, 2009. (Tr. 

60:2-13; Exhibit S-4) The refuge unit was not delivered by the November 5, 2009 deadline. (Tr. 

122:3-125:4) 

Inspector Keith Preece (“Preece”) traveled to the mine on November 16, 2009, to conduct a 

regular E01 inspection. (Tr. 23:17-25:4) He discovered that the mine lacked a safe haven 

shelter required by the mine’s Emergency Response Plan (“ERP”). He was aware from prior 

dealings and discussions with the company that they had committed to MSHA that a shelter 

would be delivered to the mine on the two dates mentioned above. Preece wrote the citation in 

question here because, despite committing twice to have a refuge unit in place, the company had 

not complied. (Tr. 28:23-29:21) 

Shortly before the November 5, 2009 deadline, Huford Williams decided to substitute a 

Carbonoks refuge unit for the A.L. Lee unit specified in the ERP. (Tr. 101:24-102:17) He was 

2

 The company obtained another PO for a Chem-Bio refuge unit and submitted it to 

MSHA for approval and substitution in the ERP in place of the unit from A.L. Lee, Co. The 

company abandoned having the Chem-Bio PO substituted for the A.L. Lee, Co. PO before it was 

approved by MSHA. As a result, the substitution was never finalized. (Tr. 30:5-22; 110:7­

111:21; 120:15-121:4) 

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convinced that the Carbonoks unit was safer. (Tr. 104:11-107:7) He executed a contract to 

purchase the Carbonoks unit on November 16, 2009. (Exhibit R-2b; Tr. 108:8-23) Given the last 

minute nature of his change of mind, Mr. Williams was not able to take delivery of the 

Carbonoks unit before Preece’s inspection, nor was he able to get the ERP amended to include 

the Carbonoks unit prior to its delivery. (Tr. 103:18-104:2) It was delivered on or about 

November 20, 2009. (Tr. 73:4-13) Training was required (Tr. 62:18-23), which was completed 

on about November 23, 2009. (Tr. 73:14-20) Mr. Williams submitted the paperwork to amend 

the ERP to include the Carbonoks unit on November 25, 2009. (Exhibit S-5) The MSHA office 

approved the amendment to the ERP to substitute the Carbonoks unit on December 3, 2009. 

(Exhibit S-5) Inspector Preece terminated the citation on December 9, 2009. (Tr. 73:14-74:4; 

Exhibit S-1) 

DISCUSSION 

The Citation 

On November 16, 2009, MSHA Inspector Preece issued Citation No. 8236579 to the 

company for a violation of Section 75.1506(a) of the Secretary’s regulations. The citation 

alleges that: 

The operator has not provided the refuge alternative and 

components the MSHA has accepted in the currently approved 

Emergency Response Plan (ERP). The ERP Plan approved on 

September 14, 2007, shows that an A.L. Lee shelter would be used 

at this mine. The distance from the portal to the face is 

approximately 2,400 feet. Delivery dates of 4-21-2009 and 11-05­

2009 have passed and operator has not provided the refuge 

alternative. 

The inspector found that a fatal injury was unlikely to occur, that ten persons could be 

affected, and that the violation was the result of high negligence on the part of the operator. The 

Secretary proposed a civil penalty in the amount of $1,657.00. (Exhibit S-1 and S-6) 

The Violation 

The company does not dispute that no safe haven shelter was in place on the date of the 

inspection, or that the two delivery dates had come and gone prior to the inspection. It argued 

that: (1) It changed its mind about which unit to use for valid reasons which it felt resulted in a 

better and safer unit ultimately being used; (2) It was unable to take delivery of the Carbonoks 

unit by the second delivery date due to factors beyond its control; and (3) It was unfair, under 

these circumstances, for Preece to issue a citation. The company argued that the delivery 

deadlines expected by MSHA were unnecessarily rigid, particularly considering the fact that the 

Carbonoks unit the company ultimately installed (within four days of the citation) (Tr. 53:3-15) 

cost considerably more than the A.L. Lee unit (Tr. 107:23-108:7) and, at least in its estimation, 

was a qualitatively better product. (Tr. 111:23-112:14) 

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It is clear that there was a violation of the standard. It avails the company nothing that it 

could not install the unit prior to the second delivery date because those delays are directly 

attributable to its general delay and its decisions to substitute safe haven units. MSHA did not 

care which of the three units the company considered was ultimately installed. (Tr. 55:16-21) 

The comparative strengths and weaknesses of the three units the company considered is not 

important to the legal analysis here. The change of mind did not occur until after the first 

promised delivery date had come and gone and within days of the second deadline. The 

company emphasized the substitution issue only at the last minute and in such a way that it 

appeared to MSHA (and the Court) to be a less-than-convincing excuse for missing the deadline. 

There is no evidence that MSHA exceeded its authority or acted arbitrarily in ultimately forcing 

the issue by citing the company for a violation of 30 CFR § 75.1506(a). I find that the company 

did not have a safe haven unit in place on the date of the inspection, nor did it have any legal 

excuse relieving it of its obligation to do so. 

Negligence 

Section 110(i) of the Mine Act requires that in assessing penalties the Commission must 

consider, among other criteria, “whether the operator was negligent.” 30 U.S.C. § 820(I). Each 

mandatory standard thus carries with it an accompanying duty of care to avoid violations of the 

standard. An operator's failure to meet the appropriate duty can lead to a finding of negligence if 

a violation of the standard occurs. 

Negligence “is conduct, either by commission or omission, which falls below a standard 

of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. § 

100.3(d). “A mine operator is required [...] to take steps necessary to correct or prevent 

hazardous conditions or practices.” Id. “MSHA considers mitigating circumstances which may 

include, but are not limited to, actions taken by the operator to prevent or correct hazardous 

conditions or practices.” Id. Reckless negligence is when “[t]he operator displayed conduct 

which exhibits the absence of the slightest degree of care.” Id. High negligence is when “[t]he 

operator knew or should have known of the violative condition or practice, and there are no 

mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew or should 

have known of the violative condition or practice, but there are mitigating circumstances.” Id. 

Low negligence is when “[t]he operator knew or should have known of the violative condition or 

practice, but there are considerable mitigating circumstances.” Id. No negligence is when “[t]he 

operator exercised diligence and could not have known of the violative condition or practice.” 

Id. 

Inspector Preece alleged high negligence. I disagree. Although the guidelines provided at 

30 CFR § 100.3 are not binding on the Court, they do provide an analytical framework to assess 

the degree of negligence evident in these facts. High negligence is appropriate in circumstances 

where the operator knew or should have known of the violative condition, and there are no 

mitigating circumstances. I find that there were mitigating circumstances in this case that should 

have been factored into the negligence assessment. The company was convinced that the 

comparative quality of the Carbonoks unit justified the delay. It is appropriate to consider the 

company’s point of view as a mitigating factor. It is also relevant and appropriate to consider as 

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evidence of mitigation the fact that mine operations were suspended for economic reasons 

shortly before the issuance of this citation. The combination of underlying economic distress 

and the additional cost of installing a refuge unit (Tr. 100:12-101:20) can be considered as 

evidence of the company’s good faith, which even when balanced against the procrastination 

underlying the missed deadlines, justifies a lower assessment of negligence. I conclude that the 

company exhibited low negligence. 

Gravity (“Seriousness”)3 

The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), is 

often viewed in terms of the seriousness of the violation. Sellersburg Stone Co., 5 FMSHRC 

287, 294-95 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal 

Co., 9 FMSHRC 673, 681 (April 1987). The gravity analysis focuses on factors such as the 

likelihood of an injury, the severity of an injury, and the number of miners potentially injured. 

Gravity is “often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 

18 FMSHRC 1541, 1549 (Sept. 1996). The seriousness of a violation can be examined by 

looking at the importance of the standard which was violated and the operator's conduct with 

respect to that standard, in the context of the Mine Act's purpose of limiting violations and 

protecting the safety and health of miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 

140 (Jan. 1990) (ALJ). The Commission has recognized that the likelihood of injury is to be 

made assuming continued normal mining operations without abatement of the violation. 

Consolidation Coal Co., 8 FMSHRC 890, 899 (June 1986). 

The citation categorizes the gravity of an event arising from this violation as potentially 

“fatal” for up to ten miners, but that such an event would be unlikely to occur. The evidence 

supports this taxonomy, and the company did not argue against it, other than to claim that there 

should have been no citation written at all. 

The company runs a single shift employing 11 miners. (Tr. 83:5-16) Preece testified that he 

based his gravity assessment in part on the fact that by regulation a refuge unit is only required 

where the distance from the mine portal to the working face is more than 2,000 feet, and that 

distance in this case was approximately 2,400 feet. (Tr. 42:4-21) He felt that the difference 

between the 2,000 foot minimum distance and the 2,400 foot actual distance was minimal and 

supported the “unlikely” designation. He also considered the fact that this mine liberates very 

little methane, which is presumably a major contributor to mine fires and explosions, which such 

a refuge unit is intended to address. (Tr. 43:4-22) I see no reason to second guess his thinking. 

I concur and conclude that this violation is properly classified as “unlikely” to cause a fatal 

injury to at least ten miners, as alleged. 

3

 The citation in this case does not allege that the violation was significant and substantial 

(“S&S’) or that it constituted an unwarrantable failure to comply with the standard in question. 

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Penalty 

The principles governing the authority of Commission administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges the authority to assess all civil 

penalties provided in [the] Act. 30 U.S.C. § 820(i). The Act delegates the duty of proposing 

penalties to the Secretary. 30 U.S.C. 815(a), 820(a). Thus, when an operator notifies the 

Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess 

the penalty. 29 C.F.R. § 2700.28. The Act requires, that in assessing civil monetary penalties, 

the Commission [ALJ] shall consider the six statutory penalty criteria: 

[1] the operator’s history of previous violations, [2] the appropriateness of such 

penalty to the size of the business of the operator charged, [3] whether the 

operator was negligent, [4] the effect 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). 

The allegations in the Secretary’s petition regarding the 30 CFR § 100.3 penalty
 

factors were not factually contested by the company at the hearing. (Exhibit S-6) I
 

accept the Secretary’s allegations regarding the operator’s size and that the violation was
 

abated in good faith. I have considered the history or past violations at this mine
 

summarized in Exhibit S-6, including citation for the standard discussed above. I have
 

discussed the negligence and gravity associated with this citation above. In addition, I
 

am moved by the evidence of last minute diligence to abate this violation. After
 

considering all of the penalty criteria, I assess a penalty of $100.00 for this citation.
 

ORDER 

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C.§820(i), I assess
 

a total penalty of $100.00. Williams Bros. Coal, Company is hereby ORDERED to pay
 

the Secretary of Labor the sum of $100.00 within 30 days of the date of this decision.
 

/s/ L. Zane Gill 

L. Zane Gill 

Administrative Law Judge 

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Distribution: (Certified and Electronic Mail) 

C. Renita Hollins, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue, 

North, Suite 420, Nashville, TN 37219 

Huford Williams, President, Williams Brothers Coal Company, Inc., 258 Cantrell Road, 

Mouthcard, KY 41548 

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 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, NW, SUITE 9500 

WASHINGTON, DC 20001-2021

 February 14, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA) : Docket No. SE 2008-793-M 

Petitioner, : A.C. No. 09-00114-153085-01 

: 

v. : Docket No. SE 2008-898-M 

: A.C. No. 09-00114-156246-02 

OIL-DRI CORPORATION OF GEORGIA, : 

Respondent. : Docket No. SE 2008-1012-M 

: A.C. No. 09-00114-159341 

: 

: Mine: Simpson 

DECISION 

Appearances: Brooke Werner McEckron, Esq., Office of the Solicitor, U.S. Department of 

Labor,61 Forsyth St., S.W., Room 7T10, Atlanta, GA 30303, for Petitioner; 

Larry R. Evans, Health and Safety Manager, Oil-Dri Corp. of America, P.O. Box 

380, 28990 Georgia Hwy 3 N, Ochlocknee, GA 31773, for Respondent 

Before: Judge Rae 

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

of Labor, acting through the Mine Safety and Health Administration, against Oil-Dri Corporation 

of Georgia, pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. §§ 815 and 820 (the “Mine Act” or “Act”). Docket SE 2008-898-M was initially 

assigned to Judge Paez while docket SE 2008-1012-M was assigned to Judge Barbour. On 

September 27, 2010, Judge Paez granted a motion to consolidate those two dockets. On June 24, 

2010 docket SE 2008-793-M was assigned to me by the chief judge. Thereafter, on November 

18, 2010, the chief judge assigned SE 2008-898-M and SE 2008-1012-M to me. Prior to the 

hearing, the Secretary vacated citation number 6084950 in docket SE 2008-898-M. Pursuant to 

my Notice of Hearing, the remaining six citations were heard in Valdosta, Georgia. The parties 

presented evidence and filed post-hearing briefs.1 

On August 19, 2011, I granted a motion made by the Secretary to amend citation 

numbers 6084953 and 6084954 contained in docket SE 2008-898-M to plead alternative theories 

of the violations as discussed below. 

1

 The Secretary’s exhibits are not in order as certain pre-marked documents were not offered at 

hearing. 

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The parties entered into written stipulations that were accepted by the Court and entered 

as Ct. Ex. A. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Oil-Dri Corporation of Georgia (“Oil-Dri”) operates the Simpson clay mine. The facility 

was inspected in early December 2007 by MSHA Inspector David Rosenau and again in June 

and December 2008 by Inspector James Ellison. They issued the six citations addressed herein. 

A. Significant and Substantial 

A violation is significant and substantial (“S&S”) if the violation is “of such a nature as 

could significantly and substantially contribute to the cause and effect of a coal or other mine 

safety or health hazard.” 30 U.S.C. §814(d)(1). There must be “a reasonable likelihood that the 

hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement 

Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). Under the National Gypsum 

definition, “the Secretary of Labor must prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard –that is, a measure of danger to safety – contributed 

to by the violations; (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.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984)(footnote omitted); see also, Buck 

Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 

861 F.2d 99, 103-104 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (De. 

1987) (approving Mathies criteria). 

In order to meet the requirements of the third, and most difficult to establish, element of 

the Mathias formula, the Commission has provided the following guidance: 

We have explained further that the third element of the Mathias formula “requires that the 

Secretary establish a reasonable likelihood that the hazard contributed to will result in an 

event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 

(August 1984). We have emphasized that, in accordance with the language of section 

104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be 

significant and substantial. U.S. Steel Mining Co., Inc. 6 FMSHRC 1866, 1868 (August 

1984); U.S. Steel Mining CO., Inc., 6 FMSHRC 1573- 1574 (July 1984). 

This evaluation is made in consideration of the length of time that the condition in 

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

operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel 

Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is S&S 

depends upon the surrounding circumstances of the violation. Texasgulf, Inc, 10 FMSHRC 498 

(Apr. 1988); Youghioghen & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

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B. Docket SE 2008-793-M 

1. Citation No. 6107482 dated 12-3-07 

This citation was issued by MSHA Inspector David Rosenau for a violation of 30 C.F.R 

§56.11002. He assessed the alleged violation as reasonably likely to result in a permanently 

disabling injury, significant and substantial, and the result of high negligence. The proposed 

penalty is $1,026.00. The narrative portion of the citation states: 

The warehouse east side loading dock adjacent to the rail line has no safety chain, 

curbing, or handrails for a length of 23 feet. The unguarded condition could 

allow persons or vehicles to travel off the edge. Persons and forklift equipment 

travel in the area 24 hours/day and a fall off the 4 foot high concrete deck could 

be expected to cause serious debilitating injury. It was stated the area was 

formerly used as a railcar loading position but has been unprotected for an 

extended period. The condition is obvious to any observer and supervisory 

personnel are in the area throughout the week. 

Ex. S-1. 

The standard cited requires that elevated walkways, ramps and stairways be of substantial 

construction, provided with handrails and be maintained in good condition. 

Respondent alleges that the loading dock was not a walkway as docks are designed for 

use primarily by forklifts to load over-the-road trucks, not for persons to travel to and from 

appointed work areas. They go on to state that the Secretary conceded the invalidity of the 

citation and changed her theory to a violation of 30 C.F.R. §56.11012 pertaining to travelways. 

From there, they cite the decision in Secretary of Labor v. Magma Copper Company,1 FMSHRC 

837 (July 1979)(ALJ) in which Judge Koutras found the intent of the standard (§56.11012) was 

to protect miners who use a travelway on a regular and frequent basis to move to and from their 

regular duty stations or in and about the mine. (Post Hearing Brief For Oil-Dri.) The Respondent 

is incorrect in their statement that the Secretary changed her position with respect to this alleged 

violation. The Secretary did not seek to amend this citation and has continued to maintain that 

the facts support a finding that the area was an elevated walkway in violation of 30 C.F.R. §56. 

11002. (Sec’y of Labor’s Post Hearing Brief at pg. 15). 

In support of her position, the Secretary cites Secretary of Labor v. Alan Lee Good, 23 

FMSHRC 995 (Sept. 2001) which defined a walkway or passageway as “a way that allows 

passage to or from a place or between two points.” Id. at 999. 

Addressing the facts of this case, Inspector Rosenau, an MSHA inspector since 1999, 

testified that on December 3, 2007, he observed a concrete loading dock on the east side of the 

operator’s warehouse that was unprotected by a chain or other safety device to prevent persons 

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or forklifts from traveling over the edge of the deck. The deck was measured by him to be 23 

feet in length and four feet above the railroad tracks at ground level. (Tr. 94.) He was told by a 

company representative, Tony Brannen, who accompanied him on the inspection, that the 

loading area was used daily by persons on foot as well as by forklift drivers. The area is a 

warehouse and there is movement of materials and pallets within the area. (Tr. 95.) 

Rosenau determined that the area was an elevated walkway because he was told that 

persons and forklifts travel through this area of the warehouse daily. (Tr. 102.) He said he also 

cited the condition as an unprotected elevated ramp because there is a ramp out of view in the 

photograph on which forklifts traveled to access the bridge that connects the two buildings 

depicted in the photograph. (Tr. 103, Ex. S-3.) There is a water fountain and telephone call box 

to the south end of the open edge of the loading dock which Rosenau felt supported a finding 

that it is an area designated for people to travel on foot. (Tr. 95-96, Ex. S-3.) 

Bobby Lee Battle, Safety Coordinator for Oil-Dri, initially testified that the loading dock 

was rarely accessed by people. He then went on to say, however, that the loading docks are for 

the purpose of loading tractor trailers. There is commonly forklift traffic on them. It is 

uncommon for people to walk in this area and those who would be there would be the supervisor 

or lead person of that warehouse or the forklift driver. (Tr. 146-47.) He further acknowledged 

that the company has a policy that individuals on foot have to give way to the forklifts. (Tr. 146-

47.) Additionally, the Respondent stipulated prior to hearing that miners travel a portion of the 

loading dock on foot. (Ct. Ex. A.) 

The loading dock was used as a means for miners to go to or from one area of the mine to 

another. Brannen’s comments to Rosenau on the day of the inspection are more credible than 

Battle’s attempt to minimize the frequency with which the cited area was accessed. All of these 

factors lead me to the conclusion that the area was accessed by persons on foot in the regular 

performance of their duties in the mine. I therefore find that the area was a travelway within the 

meaning of the standard and the violation has been established. 

S&S and Negligence 

Inspector Rosenau found the gravity of the violation to be S&S; that is it was reasonably 

likely, given the conditions, that a person could fall off the edge of the deck and suffer 

reasonably serious injuries such as bruises and broken bones. Should a forklift travel off the 

edge, there is a reasonable likelihood of more serious injuries of a permanently disabling nature 

from a forklift pinning the operator beneath it. (Tr. 104-06.) 

He found the negligence to be high because the company has been cited for the same 

standard in the past and because Oil-Dri demonstrated a low standard of care. Furthermore, 

there was no physical evidence to suggest that this area has ever been protected by any warning 

signs, flags, handrails or chains. (Tr. 106-07.) 

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I concur with Rosenau’s S&S determination. Under normal continued mining operations, 

it was reasonably likely that the unguarded edge posed a hazard of a person falling off the edge 

of the dock and suffering reasonably serious injuries. I find that the nature of the injuries likely 

to occur would be broken bones and contusions or possibly a head injury. Because this 

mandatory standard pertains to a walkway used by pedestrians rather than mobile equipment, I 

have not taken into consideration the likely injuries involving a forklift accident. 

With regard to negligence, I find mitigation in the fact that the docks had been inspected 

numerous times in the past by MSHA inspectors, none of whom had indicated the need for the 

chain or handrails across the raised deck. (Tr. 146-47.) I assess the negligence as moderate. 

1. Citation No. 6107485 dated 12-4-07 

This citation was written by Rosenau for an alleged violation of 30 C.F.R. §56.11012. He 

assessed this condition as reasonably likely to cause a permanently disabling injury to one 

person, S&S and the result of high negligence. The proposed penalty is $1,026.00. The 

narrative portion of the citation reads as follows: 

The access ladder to the top of the corrugated bin located in the LVM drier area does not 

have a safety chain or gate across the top of the handrails that surround the top of the bin 

deck. This condition could allow a person to fall back through the opening while 

working on the top of the bin. The height of the ladder is at least 15 feet. A fall from this 

height could result in serious injury or death. It was stated persons access the top deck of 

the bin every 3-4 weeks for service. 

Ex. S-4. 

The mandatory standard requires that openings above, below or near a travelway through 

which persons or materials may fall shall be protected by rails, barriers or covers. (Tr. 109-10.) 

Inspector Rosenau testified that the corrugated material is an outer covering around a bin 

designed to provide additional strength to the bin wall. (Tr. 110.) The bin deck is the roof of the 

bin which was accessed by ladder surrounded by a cage. The top of the cage has a vertical rail 

that ascends from the top rung of ladder to the horizontal handrail that runs around the bin deck. 

( See Photo. Ex. S-6.) Rosenau stated that the standard would require a chain between the two 

vertical rails to prevent a fall through the opening of the cage. (Tr. 110-11.) This area was 

approximately 15 feet above the ground. (Tr. 111.) Rosenau’s field notes taken 

contemporaneously with the inspection indicate that Battle and McCabe told him at the time he 

observed the condition, that the bin deck was accessed every three to four weeks. (Tr. 111, Ex. 

S-7 at pg 39.) 

Rosenau determined that the ladder was a travelway because it was used to access the bin 

deck at least occasionally which is sufficient to find it fit within the definition of a travelway. 

There did not appear to be any other means of access to the top of the bin than the cited ladder. 

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(Tr. 115.) The top rung of the ladder was approximately one foot above the level of the 

bin deck. A person exiting the ladder onto the bin deck could potentially trip over the rung and 

fall onto the bin deck, or if backing onto the ladder, could trip backwards and fall down the 

ladder. The ladder was exposed to the elements thus increasing the potential for a slip and fall. 

(Tr. 116.) A chain across the opening of the ladder would prevent such a fall. (Tr. 117.) There 

did not appear to be any type of welded fasteners to suggest that there had ever been a chain 

installed. (Tr. 117.) 

Respondent refutes the interpretation that the top of the ladder is a travelway or that an 

opening above, below or near a travelway existed. They contend “the transition point from a 

ladder or stairs to an upper or lower surface is merely a continuance of a way for a person to go 

from one place to another, and thus ...not an ‘opening.’” To require the installation of a chain 

would impose an additional obstacle making travel unsafe. They cite to Rosenau’s testimony that 

neither a staircase to the top of the bin nor a ladder into a haul truck requires a safety chain nor 

therefore this standard is inconsistent with other MSHA standards and OSHA standards. (Post 

Hearing Brief for Oil-Dri.) 

Addressing this last point first, Rosenau explained that a stairway leading to the top of 

the bin would not have to be equipped with a handrail; the difference being that a stairway 

allows for gradual assent which does not require the use of both hands to climb. A ladder, on the 

other hand, requires vertical assent where a person hangs onto the upper rung and pulls himself 

up requiring three –point contact. (Tr. 126-27.) Rosenau acknowledged that ladders leading to 

the cab of a large haul truck do not require rails nor does a ladder less than 20 feet tall require a 

back guard. (Tr. 129.) Although this ladder does have a back cage, Rosenau was of the opinion 

that a person standing on the bin deck could lose their balance and fall face first down the ladder 

without any protection from the back cage absent a chain across the top. (Tr. 130.) Regardless 

of the reasons why mandatory standards may vary or seem inconsistent with one another or why 

OSHA may have different standards than MSHA, the issue here is not whether a handrail is 

needed alongside a stairway or ladder but whether the ladder was a travelway with an opening at 

the top as Rosenau described that required a chain across it to prevent a fall. I note, however, that 

as stated below, Battle testified that another ladder he did believe was a travelway did have a 

chain across it in compliance with this mandatory standard. 

Turning to the issue of whether the ladder was a travelway, Battle testified that, contrary 

to his statement to Roseau at the time of the inspection that the top of the bin was accessed every 

three to four weeks, no work was performed on top of the bin. Since the installation of bin 

indicators, there was no reason to use the ladder to access the area. (Tr. 150.)There is a work 

area above the corrugated bin where the head pulley and conveyor are located. It is accessed by 

a second higher ladder at the top of the bins which is a travelway and has a ladder with a chain 

across it. (Tr. 150-51.) However, there is no barricade to prevent anyone from climbing the 

cited ladder to access the top of the bin and then the secondary ladder to the conveyor. Battle 

admitted that employees do go to the top of the bin, but he didn’t know why. (Tr. 157.) 

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Brannen testified conversely that the top of the bin is a “travelway,” not a work area; 

however, he admitted that if work had to be performed on the tank, it would be a work area. (Tr. 

180.) He further explained that the cited ladder was used as a travelway to the top of the bin from 

which the secondary ladder to the conveyor was in turn accessed. (Tr. 178.) He stated that the 

secondary ladder has a chain because it leads to a work area where people are moving around. 

On a travelway, such as the cited ladder, there is no need for a chain, he claimed. (Tr. 178-79.) 

Despite Brannen’s characterization of the ladder as a travelway, Respondent refutes the 

interpretation that the top of the ladder is a travelway. They again cite Magma Copper Mine, 

Supra, in support of their theory that this is not a travelway. (Post Hearing Brief For Oil-Dri.) It 

is difficult to discern how a ladder which is a “way for a person to go from one place to another” 

as described by the Respondent, is substantially different than Judge Koutras’ definition of a 

travelway being a placed used “for movement to and from [one’s] regular duty stations.” The 

ladder in question is a travelway to the bin deck which is a work place in and of itself at times, 

and which is also a travelway to another ladder which in turn leads to an area that Battle and 

Brannen confirmed is a work area. Their argument, then, is that because this ladder is one 

segment of the travelway leading from the ground to the conveyor head pulley two levels up, it is 

no longer a travelway – just a “continuance of a way for a person to go from one place to 

another.” They offer no authority on point in support of this odd contention. 

The term “travelway” as it relates to section 56.11012 is defined in section 56.2. That 

section states “[t]ravelway means a passage, walk or way regularly used and designated for 

persons to go from one place to another.” 30 C.F.R. §56.2. Judge Manning in his Essroc Cement 

decision cites to Alan Lee Good d/b/a Good Construction, 23 FMSHRC 995, 1000 (Sept. 2001) 

in stating that for an area to qualify as a travelway, “[t]he weight of the evidence must establish 

the area is regularly used and designated for persons to go from one place to another.” 33 

FMSHRC 459, 463 (Feb. 2011)(ALJ). In Watkins Engineers and Constructors, the Commission 

determined that a breezeway was a walkway because it was the “designated way for accessing 

the bag house area” and it was the “only available route.” 24 FMSHRC 669, 678 (July 2002). 

The evidence in this case leads me to the following conclusions: 1) the cited ladder was 

the way to go from the ground level to the corrugated bin top and also to the secondary ladder to 

the upper level where the conveyor head pulley was located. It was so defined by the 

Respondent’s own witness, Brannen, 2) it was designated as the means by which to access the 

upper work area as there was no other access to the upper ladder according to the uncontradicted 

testimony of Rosenau, 3) it was used regularly, and 4) there was an opening at the top of the 

travelway through which persons could fall. This is corroborated by the statements made by 

Battle and McCabe to Rosenau during the inspection that the ladder was used every three to four 

weeks which I find sufficiently frequent to be considered regular use. The mandatory standard 

has been violated. 

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S&S/Negligence 

In Rosenau’s opinion, it was reasonably likely that this condition posed the discrete 

hazard, under continued normal mining conditions, of a miner tripping, slipping or losing his 

balance and falling from the top of the ladder. Such a fall which would be reasonably likely to 

result in permanently disabling injuries or death due to the height involved. (Tr. 118-19.) He 

based his finding of high negligence on the fact that the company had two similar violations in 

the past, although not at this location. (Tr. 119.) 

I concur with Rosenau’s opinion given the height of the ladder and the fact that it is 

exposed to the elements increasing the risk of slipping from the roof of the bin, that the violation 

is S&S. I further concur with his opinion that it was the result of high negligence. The condition 

was openly and obviously a dangerous one. Management described this ladder as a travelway to 

the secondary ladder which had a chain across it. Brannen testified that because this ladder was a 

travelway, it did not require a chain across the opening. This evidences cognizance of the need 

for the chain and the callous disregard for protecting the miners from danger. 

C. Docket SE 2008-898-M 

1. Citation No. 6084953 dated 6-6-08 

This alleged violation of 30 C.F.R. §56.11001 was issued by Inspector James Ellison. 

Ellison accessed this non-significant and substantial violation as low in gravity which would be 

unlikely to result in an injury. An injury would be in the nature of lost workdays or restricted 

duty affecting one person. This alleged violation involved a moderate degree of negligence. 

The proposed penalty is $100.00. The citation reads as follows: 

Safe access was mot (sic) maintained in the walkway adjacent to the CV26 conveyor belt. 

A material spill had occurred which covered the width of the walkway for about 6’ 

long (sic) to a depth of about 8 inches deep (sic). The walkway is inclined and the spill 

covered below (sic) an overhead conveyor with restricted headroom. Material spills 

expose persons to the hazard of trip and fall injuries. 

Ex. S-9. 

This mandatory standard states that a safe means of access shall be provided and 

maintained to all working places. 

The Secretary amended her pleadings with respect to this citation including mandatory 

standard section 56.20003 as an alternate theory of the violation. 30 C.F.R. §56.20003 provides 

workplaces, passageways, storerooms, and service rooms shall be kept clean and orderly. 

Ellison has a master’s degree in occupational safety and has been a safety manager for a 

cement mine where he worked for 32 years. He was an MSHA inspector from 2002 until his 

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retirement in 2011. On June 6, 2008, during a regular inspection, Ellison observed clay material 

covering the width of a walkway below an overhead conveyor belt.2

 The material was estimated 

by him to be approximately six feet in length and three feet in width and as much as eight inches 

deep in some areas. He gauged the depth of the spill by using his 9x12 inch notebook as a 

reference and observed that the material covered over one-half the 12” notebook. (Tr. 20-21, 

Photo. Ex. S-11.) He determined that the cited area was a working place as well as a walkway 

because another conveyor belt runs alongside the entire length of this walkway. That conveyor 

has throughing idlers, or rollers, that support the upper strand of the belt. It also has return idlers 

which support the belt as it returns on the lower side. The belt requires maintenance when the 

roller bearings wear out and require replacement or when the carrier rollers need to be cleaned, 

lubricated, or replaced. The belt also needs to be inspected. The walkway provides the platform 

from which to perform this work. ( Tr. 25.) 

The spill of material on the walkway would pose a danger of tripping resulting in a foot 

injury and lost workdays or restricted duty, Ellison testified. (Tr. 26-27.) Because there were 

access points at either end of the walkway enabling a miner to reach the portions of the belt not 

directly adjacent to the spilled material, Ellison felt it would be unlikely to cause an injury. (Tr. 

27.) Further, it would be unlikely that more than one person would be injured at the same 

moment. (Tr. 28.) 

Oil-Dri contests the violation of §56.11001. Citing Judge Barbour’s decision in 

Millington Gravel Company, 21 FMSHRC 1065(Sept. 1999)(ALJ), they assert that it is 

necessary to prove the area involved was a means of access to a working place and that the 

means of access was not safe. The fact that there were points of access on either end of the 

walkway both of which were safe and allowed for passage up to the point where the spill was 

located leads to the conclusion that the standard has not been violated. Additionally, they argue 

that the evidence must prove that the area is a place where work is being performed at the time of 

the inspection to meet the regulatory definition contained in the mandatory standard. They cite 

to Standard Slag Company, 2 FMSHRC 3312 (Nov. 1980)(ALJ) in support of this proposition. 

(Post Hearing Brief For Oil-Dri.) 

I find Millington Gravel supports the Secretary’s position with respect to this violation. 

Judge Barbour determined that a hole in an upper walkway was a violation of the same 

mandatory standard as cited here. Although the adjacent walkway let to an area that was used as 

a working place once every two years or so when sifting screens required replacement, that did 

not detract from the characterization as “a place where there was a reasonable possibility of a 

miner using the area involved as a way to reach or leave a working place.” Millington Gravel at 

1068. Ellison credibly testified that this walkway was used to service and inspect the adjacent 

conveyor belt. There was no other point from which the conveyor could be serviced. A miner 

would be required to walk the entire length of the walkway including the area where the spill 

was located, to inspect the belt or service the rollers and bearings located adjacent to the spill. I 

do not find Battles’ or Brennan’s testimony that the conveyor belt never needed maintenance 

2

 The Respondent stipulated that the cited area was an inclined walkway. (Ct. Ex. A pg. 3) 

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credible.(Tr. 135, 158, 171, 187.) Instead, I find Ellison’s testimony that the belt rollers do need 

lubrication, cleaning and replacement as well as regular inspections credible. 

Standard Slag Company involved a situation where the alleged work platform was used 

with far less frequency than here. The inspector in that case could not say how frequently the 

area was used. The uncontroverted testimony from the operator’s witness was that the cited area 

was not used for years at a time. Judge Koutras found the area was not being used as a work 

place at the time of the inspection or at any other relevant time. Here, Ellison credibly testified 

that when the conveyor needed to be serviced in the area of the spill or when the belt needed to 

be inspected, access to the cited area would be required as there was no other means of access 

thus making use of the walkway more frequent. 

I find the Secretary has met her burden of proving a violation of both 30 C.F.R. 

§56.11001 and §56. 20003. 

Negligence 

Ellison opined that the condition was the result of moderate negligence because although 

it was visible, there was no evidence that it had been reported to management. (Tr. 28.) It was 

not possible to determine the exact length of time the condition was present. (Tr. 72.) I concur 

with his findings. I also find the gravity is low. 

1. Citation No. 6084954 dated 6-9-08 

Ellison issued this citation under 30 C.F.R. §56.14112(a)(1) the narrative of which 

states: 

The guard for the drive belts, driven pulley, and fan shaft on the small Griffin dust 

collector located at the top of the dust silo was not maintained in a manner that would 

prevent persons from contacting the moving drive belts, the driven pulley, and therotation 

fan drive shaft. Sections of the expanded metal guarding material were missing which 

exposed the moving shaft, drive belts and driven pulley. Persons working in this area 

were exposed to injury from contact with the moving machine parts. 

Ex. S-12. 

The gravity of this alleged violation was determined to be unlikely to result in a lost 

workday or restricted duty type of injury and not significant and substantial and affecting one 

person. The negligence was assessed as moderate and the proposed penalty is $100.00. 

The relevant section of the mandatory standard provides: “guards shall be constructed 

and maintained to withstand the vibration, shock, and wear to which they will be subjected 

during normal operation and not create a hazard by their use.” 

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I granted the Secretary’s motion to plead 30 C.F.R. §56.14107(a) in the alternative. This 

mandatory standard requires “[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.” 

The evidence presented by Ellison is that on the day of the inspection he observed that a 

section of the metal guard on this dust collector located at the top of the dust silo had been cut 

away where a lubricating device had been inserted. The resulting 5”x 8” opening was 

sufficiently large for one hand or two hands held together to fit through and come into contact 

with moving parts on the dust collector. (Tr. 32-36.) Pinch points were present where the drive 

belts contacted the drive pulley, which the inspector opined, could result in the amputation of a 

finger or a crush injury. (Tr. 38, Photo. Ex. S-14.) Based upon the condition of the remainder of 

the guard, it appeared that the guard was of sufficient construction and had not been damaged 

due to an accident. It also appeared to have been missing for a lengthy period of time as the 

surrounding metal had rusted. (Tr. 39.) Ellison stated that miners walk within two feet of the 

dust collector which is in a working area of mine due to the fact that maintenance had to be 

performed on a periodic basis. (Tr 42.) 

Brannen confirmed that the guard was not damaged in an accident and Battle 

acknowledged that the opening was large enough for a hand to fit through and come into contact 

with moving parts. (Tr. 162, 139.) Respondent, however, maintains that the guard had always 

been in the condition as Ellison observed it. Therefore, the allegation that the guard was missing 

must fail. They further aver that the narrative portion of the citation alleges that the absence of 

the guard failed to protect persons from contacting the moving parts. Purposeful maintenance is 

not encompassed in this mandatory standard; rather, the standard seeks to prevent only 

inadvertent or accidental contact resulting from stumbling, falling, in attention or carelessness. 

Therefore, because the only contact with this fan is intentionally made by maintenance personnel 

and it was in an area on top of a silo with no tripping hazards were present, the citation must be 

dismissed.(Post Hearing Brief For Oil-Dri.) 

I find both of these arguments to be without merit. With regard to the proposition that 

there had never been a guard so there could not be a failure to maintain it, this argument ignores 

the fact that mandatory standard 56.14112(a) requires that a guard shall be constructed in 

addition to being maintained. Mandatory standard 56.14107(a) imposes a requirement that 

moving machine parts be guarded. Under either standard, the operator has the burden of 

constructing a guard if one is not present where exposure to moving parts is present. It was 

obvious to Ellison that a guard was needed as cited. Ellison testified that it was also obvious that 

a guard had been cut away in order to install the automatic lubricating device on top. The metal 

appeared to have been cut with a torch which resulted in paint being worn away. There is also 

what appears to be a mounting bolt hole which would have held the missing guard in place. (Tr. 

36.) The Respondent offered no evidence other than Battle’s self-serving statement that there 

had never been a guard in support of their position.(Tr. 140.) I do not find his testimony to be 

credible in light of Ellison’s observations. I do find Ellison’s testimony credible that there had 

been a guard and Oil-Dri failed to maintain it. 

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There was no evidence presented by the Secretary to establish that the guard did not 

withstand the vibration, shock or wear of the dust collector as required by Section 56.14112(a). 

In fact, Ellison testified that from the remaining portion of the guard, it appeared to have been 

very well constructed, but removed. This theory of the violation fails. 

The Secretary has met her burden of proving a violation of 30 C.F.R. §56.14107. This 

standard seeks to prevent injuries that can occur from any type of inattentiveness, carelessness, 

accident or negligence by requiring that all moving parts be guarded. It is a strict liability 

standard and does not provide exceptions such as argued by Oil-Dri that it was not required 

because only intentional contact with this equipment was made. Ellison’s testimony established 

that a guard was needed, that the moving parts were exposed and that such exposure could cause 

a serious injury to a miner. 

Negligence 

Moderate negligence was assessed by the inspector because Ellison found no evidence 

that the condition had been reported to management. I do not agree with this assessment as it 

was apparent to Ellison that the condition had been present for a sufficiently long period of time 

for the metal to have rusted. Additionally, the oiler had been added to the machine which would 

have been directed by management. It appeared that the portion of the guard that was removed 

was done for the purpose of installing the oiler. The evidence established, however, that the area 

was infrequently accessed and it was located in a remote area on top of the dust silo. Only 

miners servicing the equipment would be in contact with it and that would be infrequent. These 

facts provide sufficient mitigation to reduce the negligence to moderate. 

2. Citation No. 6084958 dated 6-11-08
 

Ellison issued this citation which reads:
 

A drop off (sic) of about 4” existed at the West (sic) end of the concrete slab for the 

outside storage area at building #6. Forklifts use this area of the slab as a travelway to 

access the storage racks. Fork lift (sic) tire tracks were observed within 5 feet of the 

drop off (sic). Unprotected drop offs (sic) which could cause the mobile equipment being 

used to overturn exposes the operators to the hazards of injuries associated with powered 

haulage accidents. 

Ex. S-15. 

The citation was written as unlikely to produce permanently disabling injuries and not 

S&S, affecting one person and the result of a moderate degree of negligence. The proposed 

penalty is $100.00. 

The section of the cited mandatory standard, 30 C.F.R. §56.9300(a), requires berms or 

guardrails 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. 

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The photograph taken by Ellison of the cited condition depicts a cement slab running 

north-south alongside of which is an area of overgrown weeds. The ground was estimated by 

Ellison to be about four feet below the cement slab creating a drop-off of the same elevation. 

(Ex. S-17.) Ellison testified that this area is outside of Building 6 and it is used by forklifts as a 

travelway to the storage racks located to the right of the slab.(Tr. 45, Ex. S-17 pg. 2.) While he 

was conducting his inspection, Ellison observed a forklift travel from the area just north of 

building #6, up a ramp and onto the slab and then over to the storage racks. The ramp used by 

the forklift to access the slab was more gradual than the drop-off from the edge but was of the 

same elevation change – four feet. (Tr. 45-6.) Ellison also observed forklift tire tracks within 

five feet of the edge of the drop-off as recorded in his inspection notes. (Tr. 44, Ex. S-16.) 

Ellison determined that this slab area was a roadway or travelway (the terms being 

interchangeable in this particular instance) because he observed it being used as such while he 

was there. Also, it was paved and prepared for mobile equipment to travel upon it. (Tr. 49.) He 

estimated the weight of a forklift as ranging from one ton up to eight or ten tons which could 

cause a permanently disabling or fatal injury should it travel off the edge of the slab and 

overturn. (Tr. 47-48, 51-52.) Forklifts are normally equipped for only one occupant which 

formed the basis of his determination that one person would be affected if an accident occurred. 

(Tr. 52.) Because there was an alternate route to access the rack area, and because in the lengthy 

time in which the condition had existed there had never been an accident, he determined that 

such an injury was unlikely to occur. (Tr. 50-51.) The violation was abated by construction of a 

berm. (Ex. S-17.) 

Oil-Dri contests the violation on the basis that the concrete slab was a storage area rather 

than an elevated roadway. They argue that such an overly broad interpretation would be 

tantamount to a finding that every area in which a vehicle could be operated would be defined as 

a roadway. (Post Hearing Brief For Oil-Dri.) They cite cases in which they concede that scales 

and bridges have been found to be roadways, but cite no authority concluding that a concrete 

area that provides access for mobile equipment to travel to and from a storage facility is not a 

roadway. 

Oil-Dri’s contention that the standard must be read narrowly is incorrect. In Secretary of 

Labor v. Pappy’s Sand & Gravel, 20 FMSHRC 647 (June 1998)(ALJ) the judge found that a 

levee over which heavy equipment was dumping soil to raise its height it was an elevated 

roadway necessitating a berm despite the evidence that once the levee was completed, it was 

intended that grass would be planted on it. It would no longer be used for vehicular travel. The 

ALJ relied on the dictionary definition of the term “roadway” which included a “thoroughfare” 

which is defined as a place through which there is passing. Consequently, as soon as the area 

was traveled by the trucks, the levee became a roadway at least during the period of time in 

which it was being constructed. A similar result was reached by the Commission in Secretary of 

Labor v. El Paso Rock Quarries, Inc., 3 FMSHRC 35 (Jan. 1981) where the ALJ was instructed 

to consider a bench an elevated roadway because it was used to carry explosives to the top of the 

quarry. In Secretary of Labor v. Capitol Aggregates, Inc., 4 FMSHRC 846 (May 1982), the 

Commission interpreted an elevated ramp used by a front-end loader to access the coke hopper 

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as an elevated roadway. Judge Miller found that the fact that a rubber-tired truck was seen 

traveling on a bench was sufficient evidence that the bench was a roadway. See Secretary of 

Labor v. Black Beauty Coal Company, 32 FMSHRC 356 (March 2010)(ALJ). 

I find these cases provide a myriad of examples of how broadly the definition of an 

elevated roadway is meant to be applied to effectuate the purpose of the standard and the Act as 

a whole. Ellison saw a forklift use the area cited as a means by which to travel from one part of 

the mine to another while he was conducting his inspection. Other tire tracks were visible in the 

area indicating that the area had been used in the same manner before. It stands to reason that 

with the slab being adjacent to storage racks, and having a ramp connecting the slab with the rest 

of the mine; vehicles would use the slab as the thoroughfare by which to travel between these 

areas. The thoroughfare or means by which the forklifts traveled is a roadway within the 

meaning of the mandatory standard. The citation was properly issued. 

Negligence 

Ellison assigned moderate negligence to this condition because it had never been reported 

to the company despite the fact that it had existed for some time. Additionally, there had never 

been an accident due to the condition. The forklift operators were aware of it and “had learned 

how to handle it.” (Tr. 52.) 

I find the violation to be serious but agree with the inspector that there were sufficiently 

mitigating circumstances to support a finding of moderate negligence. 

D. Docket SE 2008-1012-M 

1. Citation No. 6084951 dated 6-23-08 

This alleged violation of 30 C.F.R. §56. 14100(b) was issued for the following condition: 

The Show Box 3000 lbs (sic) cable hoist located on the 4th floor of the mill building was 

not maintained is (sic) a safe condition to prevent exposure to hazards by persons using 

the hoist. Two legs of the four part 3/8” wire rope hoist line were kinked near the hoist 

drum on the fourth floor of the mill building. This 4 part hoist is used to lift equipment, 

tools and machine parts to work floors during maintenance operations in the mill 

building. The continued use of damaged wire rope hoisting cable exposes persons to the 

hazard of hoisting accidents and injuries from falling objects. 

Ex. S-19. 

This non-S&S citation records the gravity of the condition as unlikely to result in injury 

but such injury would be of a permanently disabling nature. One person was affected and it 

resulted from moderate negligence. The proposed penalty is $100.00. 

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The cited standard requires defects on any equipment, machinery, and tools that affect 

safety shall be corrected in a timely manner to prevent the creation of a hazard to persons. 

Ellison testified that two legs of the wire rope hoisting cable in question were kinked near 

the drum. (Tr. 54.) The condition is pictured in Ex. S-21. Upon closer inspection of the cables, 

he could see that the left leg was damaged horizontally across the wire rope where the metal 

stands had been damaged and appear to have rusted. The rust on inner wires of the rope 

indicated to him that the condition had been present for at least a couple of weeks although it 

was difficult to be sure because environmental factors would affect how quickly the metal rusts. 

(Tr. 66.) 

It was possible to tell with the aid of a magnifying glass that there was a void area inside 

the bent portion of the rope indicating that the wires had separated. (Tr. 59-62.) The 

significance of a kink in a wire rope is that the individual wires that make up the rope cease to 

function independently of one another and cannot take the load put upon them. The wires often 

break, reducing the overall strength of the cable. Should a sufficient number of wires break, a 

catastrophic failure of the cable can result. For this reason, once a wire rope is kinked, it should 

be removed from service. (Tr. 56-57.) 

Ellison stated that during his tenure as a maintenance foreman or manager for 14 years 

with Holcim, he was responsible for inspecting wire ropes for such damage and removing them 

from service. (Tr. 54-55.) He completed a training class with wire rope manufacturer Denver 

Wire Rope Company in 1992. He was instructed in this course that if a kink is present the rope 

must be removed from service. He is also familiar with the American National Standards 

Institute (“ANSI”) which has the same requirements. (Tr. 62-63.) He determined, based upon 

the visible kinks in two of the legs of this rope, that it posed a danger of failure when lifting a 

heavy load. Such failure could result in the load being hoisted falling and striking a miner 

working around or near the hoist. Permanently disabling or fatal injuries would result. (Tr. 57, 

65-66, 84.) He determined that the likelihood of such an event was unlikely because the hoist 

was used once or twice a year. (Tr. 66.) 

Oil-Dri contests this alleged violation contending that the definition of a kink is a “pulled 

out twisted loop” under ANSI standards which is not the condition cited here. Further, they 

contend that safety would not be affected during continued use as 30 C.F.R. §56.16009 requires 

persons to stay clear of suspended loads, and finally, that management was not under an 

obligation to correct the defect because they were not aware of it and had no reason to be. (Post 

Hearing Brief For Oil-Dri.) 

Addressing their last argument first, the Respondent is correct in stating that there was no 

evidence presented that would establish the operator had any knowledge of the cited condition or 

that their lack of knowledge was unreasonable. They cite Judge Hodgdon’s decision in 

Secretary of Labor v. Lopke Quarries, Inc., 22 FMSHRC 899 (July 2000)(ALJ). That decision 

was reviewed and affirmed by the Commission in Secretary of Labor v. Lopke Quarries, Inc., 23 

FMSHRC 705 (July 2001), stating that because the Secretary failed to establish when the defect 

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occurred, it could not be determined whether the operator’s failure to be aware of it and correct it 

was unreasonable. In this case, Ellison testified that the condition could have existed for a 

couple of weeks but he could not be sure as humidity and other environmental conditions would 

affect the rate at which the metal rusted. Furthermore, he testified that he reduced the level of 

negligence because he could find no evidence that management was aware of the defect. No 

evidence was presented to determine whether the operator should have known of the defect at 

the time of the inspection. For instance, there was no indication as to how often the hoist was 

required to be inspected. Brannen testified that the hoist is used once or twice a year and Ellison 

said in order to see the separated wires inside the rope, he used a magnifying glass. In light of 

these factors, I do not find a basis upon which to find that the operator should have known of the 

defect triggering the requirement to correct it in a timely manner. 

The citation is VACATED. 

II. PENALTIES 

The Mine Act delegates the duty of proposing penalties under the Mine Act to the 

Secretary. 30 U.S.C. §§815(a) and 820(a). When an operator challenges the Secretary’s 

proposed penalties, the Secretary petitions the Commission to assess them. 29 C.F.R. §2700.28. 

Once petitioned to assess the penalties, the Commission delegates to the administrative law 

judges the authority to assess civil penalties de novo for violations under the Act. Section 

110(i), 30 U.S.C. §820(i). The administrative law judge is required by the Act to consider the 

following six statutory criteria in her assessment of the appropriate penalty: 

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

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

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

the violation, and (6) the demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. 30 U.S.C. §820(I). 

The penalty assessment for a particular violation is within the sound discretion of the 

administrative law judge so long as the six statutory criteria and the deterrent purpose of the Act 

are given due consideration. Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983), aff’d, 

736 F.2d 1147 (7th Cir. 1984); Cantera Green, 22 FMSHRC 616, 620 (May 2000). 

I have discussed the gravity and negligence involved in each citation within the body of 

the discussion of each above. I have given the additional statutory criteria consideration as well 

as the deterrent purpose of the Act in assessing the penalties below. The parties entered into 

stipulations of fact with regard to the proposed penalty for each citation. They are that the 

proposed penalties are appropriate to the size of the Respondent’s business, will not affect the 

operator’s ability to remain in business and that the Respondent promptly abated each of the 

cited violations in good faith. (Ct. Ex. A.) I accept those stipulations. 

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Having considered the six statutory criteria and the stipulated facts, I assess the following 

penalties: 

Docket No. SE 2008-793-M 

1. Citation No. 6107482 - $ 500.00 

2. Citation No. 6107485 - $1,026.00 

Docket No. SE 2008-898-M 

1. Citation No. 6084953 - $100.003 

2. Citation No. 6084954- $100.00 

3. Citation No. 6084958- $100.00 

Docket No. SE 2008-1012-M 

1. Citation No. 6084951- Vacated 

A total of $1,826.00 is assessed for the violations that were heard and decided herein. 

II. ORDER 

Docket No. SE 2008-898-M, Citation No. 6084950 is VACATED upon request of the 

Secretary. I VACATE Docket No. SE 2008-1012-M, Citation No. 6084951. Based on the 

criteria in section 110(i) of the Mine Act, 30 U.S.C. §820(i), I assess a penalty of $1,826.00 for 

the remaining two violations under Docket No. SE 2008-793-M, and the three remaining 

violations under Docket SE 2008-898-M. Oil-Dri Corporation of Georgia is ORDERED TO 

PAY the Secretary of Labor the sum of $1,826.00 within 30 days of the date of this decision.4 

/s/ Priscilla M. Rae 

Priscilla M. Rae 

Administrative Law Judge 

3

 Although I found the Secretary proved a violation of both mandatory standards pled, I impose 

this penalty for only one violation, not both. 

4

 Payment should be sent to the Mine Safety and Health Administration, U.S. Department of 

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390 

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Distribution List: 

Brooke Werner McEckron, Esq., Office of the Solicitor, U.S. Department of Labor, 

61 Forsyth St., S.W., Room 7T10, Atlanta, GA 30303 

Larry R. Evans, Health and Safety Manager, Oil-Dri Corp. of America, P.O. Box 380 

28990 Georgia Hwy 3 N, Ochlocknee, GA 31773 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 721 19th St., Suite 443
 

Denver, CO 80202-2500
 Office: (303) 844-5266/Fax: (303) 844-5268 

February 21, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION, (MSHA), : Docket No. WEST 2010-73-M 

Petitioner, : A.C. No. 02-02683-195065 

: 

v. : 

: 

EUREKA ROCK, LLC, : 

Respondent. : Eureka Portable Screening Plant 

DECISION 

Appearances: Sarah T. White, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, 

Colorado, on behalf of the Petitioner; 

Thomas Mattics, President, Eureka Rock, LLC, Ashfork, Arizona, on behalf of 

the Respondent. 

Before: Judge Miller 

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

pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (the “Act”), charging Eureka Rock, LLC, (“Eureka”) with multiple violations of 30 

C.F.R. § 50.30(a). The Secretary proposes a total civil penalty of $448.00 for the alleged 

violations. A hearing was held in Phoenix, Arizona on January 24, 2012. 

I. BACKGROUND 

Eureka operates a quarry, which includes a crushing and screening operation in Prescott 

Valley, Arizona. The mine produces sized volcanic rock that is sold in the local region as 

landscaping stone, road base, and pipe bedding. Thomas Mattics, owner of Eureka Rock, 

operates the mine on his own, according to his testimony, and does not employ any additional 

workers. Mattics relies on his sole operator/owner status as justification for not complying with 

the requirements of 30 C.F.R. § 50.30(a). Mattics however, does not deny that he owns and 

operates the quarry and that trucks arrive at the mine to be loaded by Mattics. I find that Eureka 

is a mine as defined by the Act and is subject to the jurisdiction of the Commission. 

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II. VIOLATIONS 

At the outset, I note that, within the last five years, the Secretary issued multiple citations 

to Eureka Rock for failure to comply with 30 C.F.R. § 50.30(a). Some of the early citations were 

paid, others were contested and some of those contested by Eureka, were upheld and affirmed by 

ALJ Melick and a civil penalty was assessed against Eureka. Eureka Rock, LLC, 32 FMSHRC 

922 (July 2010) (ALJ). The general issue before me is whether Eureka Rock violated the cited 

standards as charged in this instance and, if so, the appropriate civil penalty for those violations. 

a. Fact of Violation - Citation Nos. 6453252, 6453253, 6453254, and 6453255 

Oscar Montano, MSHA Inspector, has been a mine inspector for more than six years and 

worked in the mining industry for sixteen years prior to joining MSHA. On June 29, 2009, 

Inspector Montano visited the Eureka Rock mine to conduct a routine inspection. While on site, 

Inspector Montano issued Citation Nos. 6453252, 6453253, 6453254, and 6453255 for alleged 

violations of 30 C.F.R. § 50.30(a). Citation No. 6453252 states, in pertinent part, that “[t]he 

operator failed to report on MSHA Form 7000-2 the correct total hours worked for the second 

quarter of 2008. The operator believes that he is not by definition an employee since he receives 

no salary/wages from this one person operation therefore, reports zero hours worked.” Citation 

Nos. 6453253, 6453254, and 6453255 are identical in all respects to Citation No. 6453252, but 

address the third quarter of 2008, fourth quarter of 2008, and first quarter of 2009, respectively. 

In each of the citations the Secretary alleges that there was no likelihood of an injury or 

illness, that no lost workdays would be suffered, that the violations were non significant and 

substantial, and that the violations were the result of the operator’s high level of negligence. 

Section 50.30(a) of the Secretary’s regulations reads as follows: 

Each operator of a mine in which an individual worked during any 

day of a calendar quarter shall complete a MSHA Form 7000-2 in 

accordance with the instructions and criteria in §50.30-1 and 

submit the original to the MSHA Office of Injury and Employment 

Information, P.O. Box 25367, Denver Federal Center, Denver, 

Colo. 80225, within 15 days after the end of each calendar quarter. 

These forms may be obtained from the MSHA District Office. 

Each operator shall retain an operator's copy at the mine office 

nearest the mine for 5 years after the submission date. 

30 C.F.R. § 50.30(a). 

The facts of this case are not in dispute. The Respondent does not contest that he failed 

to record the hours worked at the mine on MSHA form 7000-2 (the “form’). Instead, Mattics, 

the owner and operator of the mine, contends that he is the only person who works at the mine 

and he is not required to record the hours he works on the form since he is not an employee. He 

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argues that the back of the form refers only to “employees” and, since he is not an employee, but 

rather is the owner and sole operator of the mine, he is not required to record any hours worked. 

At hearing, Mattics agreed that the issue before me is identical to that which was 

addressed by ALJ Melick in his June, 2010 decision. Nevertheless, he asserts that he has not 

paid, and will not pay, any penalty assessed for these violations.1 Mattics has a history of 

refusing to properly fill out MSHA Form 7000-2, and, as a result, has received a number of 

“failure to abate” orders. He continues to assert that MSHA has no jurisdiction at his mine and 

that he is not required to fill out the section of the form which asks for the number of hours 

worked. Conversely, the Secretary argues that Mr. Mattics is an employee and must include his 

hours on the form. 

Mattics asserts that “you have to have some employees working before there is 

jurisdiction.” (Tr. 47) I find the Respondent’s arguments to be without merit. Section 50.30(a) 

requires mine operators to complete MSHA Form 7000-2 in accordance with the instructions set 

forth in Section 50.30-1. As pertinent to this analysis, Section 50.30-1 requires that mine 

operators fill out the relevant portion of MSHA Form 7000-2 with the “total hours worked by all 

employees during the quarter covered.” 30 C.F.R. § 50.30-1(g)(3). ALJ Melick, in addressing 

the Secretary’s identical argument in his own case, stated the following: 

The Secretary notes . . . that the term “employees” is 

defined in another subsection of the cited standard as including “all 

classes of employees (supervisory, professional, technical, 

proprietors, owners, operators, partners, and service personnel) on 

your payroll full or part time.” See 30 C.F.R. § 50.30-1(g)(2). The 

Secretary argues therefore that under the rules of regulatory 

construction, that definition applies as well to the term 

“employees” used in 30 C.F.R §50.30-1(g)(3)[.] The Secretary is 

clearly correct in this regard. Administrative regulations are 

generally subject to the same principles of construction as statutes. 

Miller v. United States, 294 U.S. 435, 442 (1935). In analyzing the 

rules of statutory construction, the Supreme Court of the United 

States has stated that the established canon of construction is that 

similar language contained within the same section of a statute 

must be accorded a consistent meaning”. Nat’l Credit Union 

Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 501 (1998). 

The Supreme Court has further held that “there is a natural 

1

 Mattics refused to appear at the hearing but his arguments were put on the record at the 

beginning of the hearing. (Tr. 3-11). No speaker phone was available so only one side of the 

conversation was recorded and preserved at the end of the transcript. (Tr. 44-49). Mattics knew 

of the hearing and had no intention of attending or presenting evidence, but instead of issuing a 

default decision, I called him while on the record to give him another opportunity to present his 

side of the case. Some of the facts in this decision are based upon that conversation. 

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presumption that identical words used in different parts of the 

same acts are intended to have the same meaning. Atlantic 

Cleaners & Dryers, Inc. v United States, 286 U.S. 427 (1932). 

Furthermore, in Morton Int’l Inc., 18 FMSHRC 533 (Apr 1996), 

this Commission held that “regulations should be read as a whole 

giving comprehensive, harmonious meaning to all provisions”. Id 

at 536. 

Therefore, as a matter of law, the definition of the term 

“employees” found in 30 C.F.R § 50.30- 1(g)(2) is applicable to 

the term “employees” found in 30C.F.R. § 50.30-1(g)(3)[.] 

Eureka Rock, LLC, 32 FMSHRC at 924. I find ALJ Melick’s analysis of the fact of violation 

issue in his case to be entirely consistent with my own analysis in the instant matter. 

Consequently, I also find that Mr. Mattics, as owner and sole operator of the mine, falls within 

the definition of “employee” as contemplated by Section 50.30-1, and, therefore, in accordance 

with the cited standard, is required to report his own hours on MSHA Form 7000-2. Given that 

Mr. Mattics does not dispute that he failed to record his hours on the form, and that each of the 

subject quarterly forms contains a zero in the space where Mr. Mattics should have reported his 

hours worked, Sec’y Exs. 8, 9, 10, and 11, I find that the Secretary has proven a violation of the 

cited standard. 

b. Negligence 

The Secretary alleges that the violations were the result of the Respondent’s high level of 

negligence. The Secretary asserts that Eureka Rock’s previous and repeated citations for failure 

to comply with 30 C.F.R. § 50.30(a) indicates a high level of negligence. Indeed, Eureka Rock 

does not dispute the repeat nature of these violations. While Inspector Montano issued the 

subject violations in June 2009, before ALJ Melick delivered his July 2010 decision ruling that 

Eureka Rock’s owner operator hours must be recorded, a look at the history of the Eureka mine 

consistently demonstrates violations of the quarterly reporting requirements as far back as 2001. 

In addition, a number of those citations were not terminated and, as a consequence, Eureka was 

issued multiple failure to abate orders. Sec’y Ex. 2. Moreover, in this case, Eureka refused to 

abate the violations and was issued a failure to abate order for each citation issued. Accordingly, 

I agree with the Secretary and find that the subject violations were properly assigned a high level 

of negligence.2 

2

 I note that, while the subject citations were issued before ALJ Melick’s July 2010 

decision, the Respondent’s Answer in the instant case was filed on April 15, 2011, after ALJ 

Melick’s decision and the Commissions’ subsequent denial of the Respondent’s Petition for 

Discretionary Review and Petition for Reconsideration. Notably, the Respondent states in his 

Answer in the instant case that the “Mine Safety and Health Administration has no authority 

from Congress to inspect a mine site whose only worker is solo. In the past, Eureka has believed 

this, now in the present, Eureka believes this, and in the future Eureka will always believe in 

this.” Sec’y. Ex. 18. 

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IV. PENALTY 

The principles governing the authority of Commission administrative law judge to assess 

civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the 

Mine Act delegates to the Commission and its judges the authority to assess all civil penalties 

provided in [the] Act. 30 U.S.C. § 820(i). The Act requires that in assessing civil monetary 

penalties, the Commission [ALJ] shall consider the six statutory penalty criteria: 

[1] the operator’s history of previous violations, [2] the 

appropriateness of such penalty to the size of the business of the 

operator charged, [3] whether the operator was negligent, [4] the 

effect 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). 

Eureka has a long history of Section 50.30(a) violations and has received multiple failure 

to abate orders related to such. I have addressed the negligence and agree that it was properly 

assessed at high. However, given Eureka Rock’s small size, and the low gravity of the 

violations, I find that a civil penalty of $200.00 for each of the citations is appropriate. 

V. ORDER 

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess a 

penalty of $200.00 each for Citation Nos. 6453252, 6453253, 6453254, and 6453255. Eureka 

Rock is hereby ORDERED to pay the Secretary of Labor the sum of $800.00 within 30 days of 

the date of this decision. 

/s/ Margaret Miller 

Margaret A. Miller 

Administrative Law Judge 

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Distribution: (U.S. First Class Mail) 

Sarah T. White, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 

800, Denver, Colorado, 80202-5708 

Thomas Mattics, Eureka Rock, LLC, 4525 North Cinnabar Dr., Prescott, AZ 86320 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: (412) 920-2682 

FAX: (412) 928-8689 

February 27, 2012 

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION, (MSHA), : Docket No. PENN 2011-79 

Petitioner, : A.C. No. 36-05466-237004-01

 : 

v. :

 : 

EMERALD COAL RESOURCES, LP, : 

Respondent. : Mine: Emerald No. 1 

DECISION 

Before: Administrative Law Judge John Kent Lewis 

Appearances: Jennifer K. Welsh, Esq., United States Department of Labor, 

Office of the Solicitor, Suite 630E, The Curtis Center, 170 S. 

Independence Mall West, Philadelphia, PA for the Secretary 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 

Suite 1340, 401 Liberty Avenue, Pittsburgh, PA for the Respondent 

STATEMENT OF THE CASE 

This civil penalty proceeding was held pursuant to the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 802 et seq. (2000), (the “Act”). This matter concerns an alleged 

violation of the mandatory safety standard 30 C.F.R. § 75.360(b)(3). Order No. 8007970 was 

served on Respondent on July 27, 2010. This alleged violation was found to be significant and 

substantial in nature, as well as an unwarrantable failure to comply with a mandatory safety 

standard. Respondent was assessed a penalty of $60,000.00. A hearing was held in Pittsburgh, 

Pennsylvania on November 9, 2011, and the parties participated fully therein. They later 

submitted post-hearing briefs. 

Order No. 8007967 was also contained in this docket. It was disposed of in a Decision 

Approving Partial Settlement issued by the undersigned on October 18, 2011. 

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STIPULATIONS AT HEARING 

The parties stipulated to the following facts at hearing: 

1.	 Emerald is an “operator” as defined by § 3(d) of the Federal Mine Safety and 

Health Act of 1977, as amended (hereinafter “the Mine Act”), 30 U.S.C. § 803(d), 

at the coal mine at which the Order at issue in this proceeding was issued. 

2.	 Operations of Emerald at the coal mine at which the Order was issued in this 

proceeding are subject to the jurisdiction of the Mine Act. 

3.	 This proceeding is subject to the jurisdiction of the Federal Mine Safety and 

Health Review Commission and its designated Administrative Law Judge 

pursuant to Sections 105 and 113 of the Mine Act. 

4.	 The individual whose signature appears in Block 22 of the Order at issue in this 

proceeding was acting in the official capacity and as an authorized representative 

of the Secretary of Labor when the Order was issued. 

5.	 A true copy of the Order at issue in this proceeding was served on Emerald as 

required by the Mine Act. 

6.	 Emerald demonstrated good faith in the abatement of the Order. 

7.	 The penalty that has been proposed will not affect Emerald’s ability to continue in 

business. 

8.	 The parties stipulate to the authenticity of their exhibits, but not to the relevance 

or truth of the matters asserted therein. 

9.	 Emerald utilizes in the working section at issue what is known as a “full face 

miner.” It mines the full width of the working face that is 16 feet wide. 

10. Such full face miner is equipped with an integral bolter. As the miner advances, 

two roof bolts are installed. With such bolts, a steel channel or strap is installed. 

The strap is held in place by the roof bolts. 

SUMMARY OF THE TESTIMONY 

Robert W. Newhouse (“Newhouse”) is a Supervisory Coal Mine Safety and Health 

Inspector with approximately forty-three years of experience in the mining industry. Tr. 19, 21. 

After several years as a miner, he became an inspector for the Mine Safety and Health 

Administration (“MSHA”) in 1977 and was promoted to supervisor in 1985. Tr. 20, 21. He 

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explained that, although he is the supervisor, he accompanies inspectors on inspections 

approximately forty times a year. Tr. 19, 20. Moreover, he stated that he has been in 

Respondent’s Emerald No. 1 Mine (the “Mine”) “many, many times” and is generally familiar 

with the requirements of Respondent’s roof control plan. Tr. 21. 

On the day in question, Newhouse accompanied MSHA inspector Shannon Boring 

(“Boring”) to Respondent’s Emerald No. 1 Mine to observe all of his inspections actions in order 

to ensure that Boring was conducting inspections correctly and enforcing the law correctly. Tr. 

29, 30. Newhouse also wanted to get a general idea of the condition of the mine. Tr. 30. When 

they arrived on the C-3 Section, they walked down the No. 2 Entry where Newhouse observed 

the deteriorated roof condition on the right hand side. Tr. 32. Newhouse testified that the straps 

had been hit with equipment, they were bent forward and they were twisted and pushed about ten 

inches from their original location. Tr. 35, 36. In clarifying the importance of the straps, 

Newhouse explained that Respondent uses a full-face miner with integral bolter mounted on it. 

Tr. 22. It cuts the full face, sixteen feet wide and proper height, in a straight direction without 

shifting. Tr. 22, 23. The machine is large enough that it leaves just enough room for personnel 

to walk up to operate the bolters. Tr. 23. The straps are installed to provide some measure of 

protection from roof falls until the miner is pulled from the entry and the center bolts are 

installed.1 Tr. 26-28. 

The roof above the area of straps was cracked and there was loose rock that both needed 

to be taken down and sitting on the straps that measured approximately twenty inches by twenty 

inches. Tr. 36, 37. Newhouse stated that putting this type of pressure on the straps resulted in 

tremendous pressure on the on the bolts and anchorage. Tr. 37. Due to the fact that the area had 

been mined on the previous day’s afternoon shift, the inspectors surmised that this was when the 

straps were hit. Tr. 39, 40. 

Boring issued Order No. 8007970 (“Order”), which stated: 

The preshift examination conducted on July 27, 2010, for the 08:01 A.M. shift in 

the C-3 Section (MMU 033-0) was not adequate. The hazard that is depicted in 

Order #80079692

 was not recorded in the preshift exam record book located on 

the surface. This exposes miners entering the section to unknown hazards, which 

constitutes more than ordinary negligence. The violation is an unwarrantable 

failure of an operator to comply with a mandatory standard. This order will not 

be terminated until mine management reviews the requirements of 30 CFR 75.360 

with all certified persons at this mine. 

1

 Bolts are typically to be installed at a maximum of a five foot center. Tr. 26. 

2

 Order No. 8007969 was also issued to Respondent on July 27, 2010. It was written due to the 

damage to the straps and unsupported roof as a result of this damage. Ex. GX-3. 

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Boring designated the Order as highly likely to result in a fatal injury. Ex. GX-4. 

Newhouse agreed with this designation because the area involved was eight to eight and a half 

feet with rocks approximately twenty inches by twenty inches in size. Tr. 58. Whether the rock 

is four inches or six inches thick, it was Newhouse’s opinion that it could cause serious or fatal 

injuries. Tr. 58. He testified that he further agreed with Boring’s designation of high negligence 

because the examinations are critical to safety, several safety meetings and discussions had been 

conducted with Respondent and Respondent itself had issued various publications and safety 

talks to educate its employees. Tr. 59; Ex. GX-4, GX-6, GX-7. Newhouse testified that the 

Order was written in light of the fact that the condition was obvious and Respondent was already 

on the D-series3

 and was designated for special assessment due to its history of roof falls, rock 

falls hitting miners, extensive violations of the roof control plan and miners walking under 

unsupported roof. Tr. 59, 60. This Order was abated when the requirements of 30 C.F.R. 

§ 75.360 were reviewed with all certified persons at this mine. Tr. 46; Ex. GX-4. 

Newhouse estimated4 that, depending upon when the straps were hit, six preshift and 

onshift examinations may have been conducted prior to the inspection. Tr. 49. He testified that 

30 C.F.R. § 75.360 generally requires that examinations be made for hazardous conditions, and 

any hazardous condition found must be corrected or dangered-off and notified in the record book 

on the surface. Tr. 52. However, during onshift examinations, hazards must be noted in the 

record book whether they are corrected or dangered-off. Tr. 53. The purpose of the 

examinations is to detect and record the hazards so that anyone entering the mine will be aware 

that the hazard exists. Tr. 52. He further stated that the condition first cited in Order No. 

8007969 was not noted until it was corrected while the inspectors were present. Tr. 56. 

In response to MSHA’s Rules to Live By Program, Newhouse testified that Respondent 

prepared a safety talk to present to its employees in which it acknowledged both minor and 

serious accidents had occurred and that several violations had been issued to the mine. Tr. 62, 

63. Although, under cross-examination, it was shown that violations of 30 C.F.R. § 75.202(a), 

such as that found in Order No. 8007696, are the fourth most cited nationwide and no violations 

of 30 C.F.R. § 75.360(b)(3), at issue here, had been issued to the mine in the previous fifteen 

months. Tr. 82; Ex. GX-9. To illustrate the seriousness of deteriorated roof conditions in the 

Emerald No. 1 Mine, Newhouse relayed a terrible, but survived, incident that occurred in 

September 2009, in which the foreman on the C-3 Section had walked back to observe mining 

activities when a large rock fell out from between the strap and drove his face onto a steel rod, 

which entered his lower jaw and exited near his eye socket. Tr. 75. The foreman did survive 

this injury. Tr. 75. It was revealed under cross-examination, however, that prior to the July 

2010 inspection, the most recent injury was a broken nose that was suffered in January 2010. Tr. 

81. 

3

 Once Respondent is placed on the D-series, it must complete a “clean” inspection before it can 

be removed. Tr. 59. 

4

 Newhouse admitted that he did not know precisely when the condition occurred. Tr. 90. 

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As previously discussed, Shannon Boring is a Coal Mine Safety and Health Inspector. 

Tr. 29, 97. Boring has about four and a half years of experience with MSHA and previously had 

worked for CONSOL as a roof bolter for several years. Tr. 97-99. He testified that, upon 

entering the area, he noticed the bent straps, but he decided to look at it later because, although 

he identified it as an obvious hazard, he did not feel that there was any imminent danger. Tr. 

101, 126. Instead, he continued forward to get the last opening reading. Tr. 101. In describing 

the straps, he explained that they were “bent ahead,” and there was unconsolidated rock, slips 

and cracks that were “gapped open” a little bit. Tr. 102. He also stated that he remembered a 

linear that went across the entry. Tr. 102. His notes indicated that the unsupported area was 

approximately nine feet by eleven feet. Tr. 111. 

In describing the damage to the straps, Boring testified that there were some nicks and 

one of the straps was nearly torn in half on the left-hand side. Tr. 104. It appeared to him that it 

had happened when the miners had started to turn the crosscut and the union representative, 

Justin Drew (“Drew”) agreed with this estimate. Tr. 105. Boring stated that Drew told him that 

he had started the turnout on the previous day shift and he had not hit any straps. Tr. 105. From 

this, Boring concluded that the straps had been hit during the afternoon shift. Tr. 105. However, 

when he reviewed the preshift examination books for July 25, 2010, and July 26, 2010, there was 

no record of any hazards or dangers present. Tr. 106. 

Boring argues that the roof condition was a hazard because it was deteriorated, cracked 

and loose rocks were hanging. Tr. 106, 107. He explained that the roof bolters pried some of the 

loose rock down before beginning to work and, when they installed the center roof bolt, the roof 

raised slightly. Tr. 107, 108. This indicated to Boring that the immediate roof was fractured. 

Tr. 108. In light of these observations, he issued Order No. 8007970 stating that the preshift 

examination was inadequate and exposed the miners to the unknown dangers of the roof 

condition that was present. Tr. 109. He explained that the standard requires that any hazards 

must be written down in the books and, at the very least, the midnight shift preshift examination 

for the day shift was inadequate, but it is possible that the afternoon preshift examination for the 

midnight shift may have been as well. Tr. 109. He later admitted, however, that he could not be 

certain precisely when the straps were hit or whether the condition of the roof had changed 

between the day shifts on July 26, 2010 and July 27, 2010. Tr. 118. 

On cross-examination, Boring acknowledged that pulling down unsecured rock is part of 

the duties as a roof bolter and the straps had, in fact, prevented the loose rock that was laying on 

them from falling to the ground. Tr. 113, 114. Although he stated that he considers the area to 

be unsupported until bolted, he further admitted that when mining with an integral bolter, the 

center area normally is not bolted until later. Tr. 117, 118. He stated that he believed that the 

center bolting was to be done during the day shift on July 27, 2010, but further questioning 

revealed that he was assuming this because the bolter was present. Tr. 124, 125. No one in the 

mine informed him whether this was the case. Tr. 125. 

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James Matthew Hindman (“Hindman”) is MSHA’s Roof Control Supervisor for District 

2 and he has held this position for four years. Tr. 130, 131. Prior to this position, he spent five 

years as an MSHA inspector and has a collective thirty-nine years of experience in various 

positions in the mining industry. Tr. 132. The responsibilities of his current position include 

reviewing all of the roof control plans and roof control addendums for the underground coal 

mines. Tr. 131. He supervises seven specialists who perform roof control inspections, six of 

which focus solely on roof control issues. Tr. 131. He stated that he began learning about roof 

control issues from the very first day in the mine because, not only is it the number one killer in 

a mine, but he also ran a roof bolter for approximately three years. Tr. 133. Over time, he 

developed a specialty in roof control issues and has testified in several hearings. Tr. 133. 

Because Hindman had a hand in approving the Mine’s roof control plan, he is generally 

familiar with its requirements. Tr. 133, 134. He explained that Respondent’s roof control plan 

requires that it, at a minimum, place a strap5 and two bolts for every five feet that the miners 

advance. Tr. 134. If roof conditions become poor, extra measures can be taken, such as 

shortening the strap spacing, using supplemental supports, etc. Tr. 134. He testified that any 

damage to a strap creates a wider space between it and the other straps, which could allow larger 

pieces of rock to fall between them. Tr. 136. He further stated that damage reduces their 

effectiveness because they should be as tight against the roof in order to prevent movement in 

the roof; although, he acknowledged that the strap is almost never in contact with the roof all the 

way across because the roof is not perfectly flat. Tr. 136, 147. Another concern is that damage 

to the strap could also cause bolts to lose their torque, allowing the roof to sag. Tr. 136, 137. He 

opined that, while the straps need to have been replaced, it would have been easy to back the 

miner out and put in a few bolts to adequately support the area. Tr. 142, 143. 

Hindman further opined that the mine’s roof was generally in poor condition for several 

reasons. Tr. 138. The first was a statement made in Respondent’s opening statement expressing 

the fact that it was bolting on three-foot centers, well above the minimum plan of five-foot 

centers. Tr. 138, 139. He testified that this is normally done when the roof is broken or cracks 

or breaks exist. Tr. 139. The second was mirrored statements made in the testimony of 

Newhouse and Boring. Tr. 139. Both testified that the temporary roof support actually raised 

the roof up. Tr. 139. This indicated to him that the roof was fractured and voids existed above 

the visible roof. Tr. 139. The final reason was testimony that the drill jumped while drilling the 

holes for the roof bolts. Tr. 107, 108, 139. This also suggested to Hindman that there were 

voids or breaks above the roof, but he also testified that it could have occurred from differences 

in the strata.6 Tr. 139, 155. Hindman stated that the Emerald No. 1 Mine has as much of a 

history of 

5 Although Newhouse generally described the straps as an extra preventative measure, Hindman 

clarified that Respondent’s plan actually requires them. 

6

 Specifically, Hindman stated that the drill could appear to “jump” if clay or another coal seam 

was hit because they are not as hard of materials as sandstone. Tr. 155. He testified that the 

existence of either is a defect in the roof. Tr. 155, 158, 159. 

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roof problems as any other mine, but it does have a personnel problem. Tr. 140. Specifically, it 

has a problem with miners walking under unsupported roof, which has caused injuries in the 

past. Tr. 140. However, he acknowledged under cross-examination that mine management had 

held meetings to express to the miners that this behavior would not be tolerated. Tr. 154. 

In response to the state of the straps at issue in Order No. 8007696, Hindman expressed 

his concern that the straps being pushed forward a foot or two is much more dangerous than a 

nick in a strap. Tr. 145. The straps are very strong, but pushing them exposes loose roof. Tr. 

145, 146. If miners were working in the area, he opined that there was a reasonable likelihood 

that a large piece of rock could fall and break the neck of or kill a miner. Tr. 146, 147. Previous 

testimony described the straps as having been bent into a “V” shape, and Hindman stated that 

this condition should have been obvious to a preshift examiner. Tr. 36, 146. However, he did 

generally admit that the condition of the roof would be evaluated at the time of the exam, and 

there is room for potential disagreement between people as to whether a hazard exists or not. Tr. 

156. 

As a final matter, Hindman was questioned about the use of eight or nine roof bolts to 

abate the condition. Tr. 158. He testified that this would be a lot of bolts and would tend to 

indicate to him that the roof was broken up. Tr. 158. However, he also admitted that, when a 

citation is issued, operators will sometime install more bolts than necessary in order to satisfy the 

inspector. Tr. 159. Hindman himself had no knowledge of where the bolts were installed nor 

could either Newhouse or Boring describe where they had been installed to explain the necessity 

of them. Tr. 159, 160. 

John Bonham Hayhurst II (“Hayhurst”) worked in various positions at the Mine from 

2003 until August 2009, when he left for other employment opportunities. Tr. 161-163. His 

positions included faceman, bolter, miner operator, face boss and a coordinator. Tr. 161-162. 

He was certified by Pennsylvania and received his mine foreman papers while working for 

Respondent. Tr. 163. On July 27, 2010, Hayhurst had worked the midnight shift as a bolter. Tr. 

164. He testified that, during that shift, he had center bolted the No. 2 entry and had made it 

“[j]ust almost to the Crosscut 2 to 1. Tr. 164, 165. The bolter was left in the No. 2 entry with 

the expectation that the next shift would finish center bolting and rib pin. Tr. 165. 

Hayhurst testified that he had conducted the pre-shift examination in preparation for the 

day shift7

, which consisted of checking the faces, the air in the last open crosscut return, the 

presence of methane, power centers, and chargers. Tr. 165; Ex. GX-5. He further stated that he 

checked the roof conditions and noticed that the two straps in question had been damaged and 

bent in the center, although not “tremendously.” Tr. 166. Generally, Hayhurst testified that if a 

strap is hit and cut in two, it is replaced. Tr. 166. If it is hit and not cut in to, the crew typically 

7

 This pre-shift examination would have taken place started around approximately five o’clock in 

the morning. 

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moves on. Tr. 166. In his opinion, he did not notice any loose rock, slips or cracks that 

presented a hazard, nor did he believe that the damage to the straps themselves presented a 

hazard. Tr. 167. He also stated that he did not see any material on the straps when he conducted 

his examination. Tr. 167. In determining whether a hazard exists, Hayhurst mostly relies on his 

experience as a miner and stated that the determination is quite often a judgment call. Tr. 168, 

169. Given his knowledge and experience in the industry, he did not believe that the area in 

question was a hazardous area during his on-shift8

 and pre-shift examinations. Tr. 171. 

In describing the conditions of the roof and straps, Hayhurst testified that the outside 

bolts were tight. Tr. 169. He stated that twisted or dislodged bolts can be determined by the 

existence of gaps between the bolt and the roof. Tr. 169. He recollected that the straps were 

spaced on approximately two and half foot centers because the top was slate rather than 

sandstone, and although management was not necessarily worried about the condition of the 

roof, it prefers to error on the side of safety due to the unpredictable nature of a slate roof.9 Tr. 

169, 170, 179. On cross examination, however, Hayhurst admitted the possibility that, even 

though the bolts appeared to be tight and solid, a bolt could lose torque even though it was not 

visibly dislodged. Tr. 174, 175. He further admitted that a significantly bent, but not broken, 

strap can prevent a hazard if the roof above it is bad. Tr. 174. 

Justin Michael Drew (“Drew”) is a mine examiner at Respondent’s Mine, where he has 

worked for nearly six years. Tr. 180, 181. Prior to working his position as mine examiner, he 

also worked as a faceman, bolter, miner operator and fire boss. Tr. 181. Collectively, he has 

approximately ten years of experience in the mining industry and, like Hayhurst, has his assistant 

foreman papers certified by Pennsylvania. Tr. 181, 182. In his position as mine examiner, he 

conducts pre-shift examinations to ensure that the mine is safe for the oncoming shift. Tr. 181. 

He is also a member of the United Mine Workers. Tr. 181. 

The day prior to the inspection, Drew was operating the continuous miner and recalled 

finishing up the 2 Straight and getting ready to make the turn from 2 to 1. Tr. 183. While 

making the turn and after putting two straps up, the temporary roof support that is on the miner 

went down and the miner had to be backed up so that it could be changed. Tr. 184. Although 

Drew did not know that he had hit the straps, he was later informed by miner operator at a 

meeting that the operator had noticed a nick in a strap when conducting the pre-operational 

examination of the continuous miner following Drew’s shift. Tr. 184. While Drew stated that it 

is common practice to replace a “completely” damaged or ripped out strap, he testified that he 

would not have replaced the strap that he allegedly hit. Tr. 184, 185. 

8

 Although the on-shift examination is not at issue in this alleged violation, it is significant that 

Hayhurst conducted both of these examinations and the adequacy of the pre-shift examination is 

now in question. 

9

 Because sandstone is a harder mineral than slate, roof bolts can be spaced farther apart without 

added worry of a roof fall. 

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The day of Boring’s inspection, Drew accompanied them as a representative of the union. 

Tr. 186. Contrary to Boring’s testimony that he traveled down the edge of the canvas on the lefthand side of entry when examining the face, Drew testified that they walked straight down the 

middle of the entry and, therefore, under the two damaged straps. Tr. 119, 186, 187. He noted 

that Newhouse called Boring back to look at the straps which Drew described as bent in a slight 

“V” that was displaced approximately six to eight inches. Tr. 187, 188. He did recall the 

presence of some rock outby the damaged straps that was pulled down, although he could not 

remember exactly who had actually pulled it down, how it was done or how hard of a job it was 

to remove. Tr. 189, 190. 

After the rock was removed, Drew testified that he examined the bolts and determined 

that they were undamaged. Tr. 190. He admittedly did not test the bolts though, even though he 

admitted to cracks in the roof in the area that the straps were damaged. Tr. 198. As Newhouse 

and Boring testified, Drew also observed the roof lift when the temporary roof support was 

placed against it while the straps were being bolted. Tr. 190. However, he stated that this is a 

typical occurrence. Tr. 190. Although he did not recall witnessing the jumping of the drill in 

this particular occurrence, he testified that it is not unusual for the steel to jump in the bolt 

drilling process due to cracks or gaps in the roof. Tr. 190, 191. 

Howard Campbell Springer, Jr., (“Springer”) is an assistant shift foreman at the Mine 

where he has worked for five years and is certified in Pennsylvania to be an assistant mine 

foreman. Tr. 200, 202. His responsibilities include checking on people in the mine, checking on 

equipment and generally helping run the shift. Tr. 200, 201. Prior to his current position, he had 

approximately thirteen and a half years of experience, including ten spent as a surveyor. Tr. 201. 

His entire eighteen and half years in the mining industry have included some responsibility to 

evaluate roof conditions, whether through his normal duties or through pre-shift or on-shift 

examinations. Tr. 202. 

On the day of the inspection, Springer testified that he was supervising his crew as they 

advanced the belt and the power in the C-3 section of the mine when he encountered Inspectors 

Newhouse and Boring in the No. 3 entry. Tr. 203, 204. He observed the damaged straps, but 

stated that they were intact and, in his opinion, they did not constitute a hazard. Tr. 204-206. He 

testified that in the course of mining, it is common practice to replace straps that are damaged 

badly enough and move on from the ones that are not. Tr. 205. He recalled that the straps were 

not replaced; rather, bolts were simply installed beside them. Tr. 206. Contrary to the testimony 

of Newhouse, Boring and Drew, Springer stated that he did not see the roof lift or the steel jump 

during the drilling and bolting process. Tr. 206. Also contrary to other testimony, he stated that 

the roof was not sagging in any way and the rock that was removed took considerable effort to 

pull down. Tr. 208, 209. 

Springer had conducted the on-shift examination in that particular area on the day of the 

inspection. Tr. 207. He stated that nothing was recorded in the on-shift examination book 

because he did not see anything that he deemed to be a hazard. Tr. 207. On cross-examination, 

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he admitted, however, that although he takes annual refresher training courses that also cover 

roof control, he has never taken any formal classes on roof control. Tr. 212, 217. He testified 

that Newhouse instructed him to record the bent straps in the on-shift examination book, which 

Springer did even though he stated that he disagreed that a hazard existed and was told to write it 

down by State Inspector Bill Gardner. Tr. 207, 208, 214, 215. His objections, although noted in 

the examination records, were not voiced during the inspection for fear that questioning 

Newhouse could lead to harsher penalties.10 Tr. 208, 216; Ex. GX-5. 

Keith A. Mills (“Mills”) has been a shift foreman at the Mine for four years. Tr. 220. He 

has approximately thirty years of experience between mines in Pennsylvania and Illinois and he 

has also held positions as section foreman, assistant shift manager and production coordinator. 

Tr. 220, 221. He is currently certified in Pennsylvania, but has conducted pre-shift and on-shift 

examinations in both states. Tr. 221, 222. 

Although not present when Newhouse and Boring were conducting their initial 

examination, Mills testified to being present when the problem with the straps was being 

discussed, but before the bolting process had begun. Tr. 222. He observed the straps and 

acknowledged that they were, in fact bent; however, he did not believe that the condition was 

either abnormal or constituted a hazard that had to be recorded in the examination books. Tr. 

223. Like Springer, Mills testified that he did not observe the roof in the No. 3 entry to be 

sagging. Tr. 224. He stated that, in his opinion, the roof in the Wabash Mine in Illinois was 

considerably worse than that in the Emerald No.1 Mine. Tr. 225. 

On cross-examination, Mills disagreed that the straps were bent into a “V” shape, but 

agreed that they were bent. Tr. 226. He further stated that, although he did not believe that the 

straps were twisted, they were not lying flat and was flexion in the strap that was more severe at 

the end. Tr. 226, 227. He further agreed that cracks in the roof and rock resting on the straps 

would not be abnormal and that when bolters are concerned about the condition of the roof, they 

often place straps and bolts much closer than the five foot maximum. Tr. 227, 228. 

Gary Bochna (“Bochna”) is the Safety Rep at the Mine where he has worked in the 

Safety Department since 1980. Tr. 229. His current position requires him to take dust samples, 

accompany federal inspectors and other unspecified, safety-related jobs. Tr. 229. Prior to his 

work in the Safety Department, Bochna was a mine examiner for a very short period of time. Tr. 

230. 

10 Although Springer states that he was essentially threatened by Newhouse, this testimony was 

neither corroborated by any other witness who accompanied the inspectors that day nor was 

Newhouse’s alleged abuse of position raised at any other time prior to hearing by Respondent. 

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Bochna testified that he observed the nicked straps as well as the material that was being 

held by them. Tr. 232, 233. He stated that miners used a slate bar11 to bring down the loose 

material and it did not require substantial effort. Tr. 233. He testified that, if he had been 

conducting the pre-shift examination, he does not believe that he would have recorded the cited 

condition as a hazard.12 Tr. 234. He did, however, admit that some serious injuries have 

occurred in this mine due to roof falls. Tr. 236, 237. 

Norman David Moore (“Moore”) has worked at the Mine for almost ten years and is 

currently an electrician. Tr. 238. Prior to this assignment, he was a mechanic and a roof bolter. 

Tr. 238, 239. Further, Moore holds a position on the Safety Committee for the miner’s union in 

which he investigates accidents, accident reports and citations, accompanies inspectors through 

the mine and represents miners in safety disputes with the company. Tr. 239, 240. 

Moore testified that, after seeing the Order at issue here, he spoke with several miners on 

the morning and afternoon shifts and looked at the bent straps himself. Tr. 240. He agreed with 

many of the men that the condition, as it existed on July 27, 2010, was not a hazard. Tr. 241, 

244. He further stated that the men felt as if the number and spacing of the bolts suggested by 

the inspector were overkill for the condition.13 Tr. 243. He did not, however, see the condition 

in its original state, only after the rock had been scaled down and the roof had been bolted. Tr. 

245. Rather, he had discussed the condition with Dwayne Reckard, the miner operator who had 

nicked the straps during the afternoon shift and believed that they did not constitute a hazard. 

Tr. 240,248. He also admitted that, when safety is concerned, there really is no overkill. Tr. 

247. 

William B. Shifko (“Shifko”) has worked at the Mine since 1977 and his current position 

is Manager of Compliance, which he has held since 1992 except for a two year span as Safety 

Manager. Tr. 250, 251. In his position, he maintains records, informs others of alarming trends 

both in the mine and elsewhere, educates miners on full compliance with the regulations, 

occasionally accompanies inspectors and often prepares the facts for litigation, when needed. Tr. 

250, 251. Shifko has held his foreman papers since 1979 and testified that he had likely 

conducted thousands of pre-shift and on-shift examinations prior to his current position. Tr. 252. 

Shifko prepared the safety talks based on MSHA’s “Rules to Live By” program that were 

given to Respondent’s employees on April 5, 2010 and April 12, 2010. Tr. 253. During these 

safety talks, Shifko covered all of the regulations that were addressed by the program for both 

11 A slate bar is a tool used to scale down a roof. It is about six feet long and one end of it is flat 

while the other is pointed. 

12 This statement has somewhat little probative value, as Bochna acknowledges that he spent 

very little time as a mine examiner, specifically, as little as six months. Tr. 230. 

13 Moore explained that the bolters and miner operator generally decide the spacing of the bolts 

because they have the best knowledge of the roof conditions. Tr. 242. 

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the underground and surface mines. Tr. 254. He explained that a lot of new miners were hired 

in 2009 and that there had been problems in the Mine with someone walked under supported 

roof. Tr. 254. Because of this, he felt compelled to educate and train them in order to prevent 

injuries. Tr. 254. Although the talks addressed the fact that “far too many accidents” had 

occurred, Shifko stated that, in his opinion, one accident was too many and he takes any injury 

personally. Tr. 254, 255. 

Shifko testified that the last major injury occurred in 2009. Tr. 255. He did, however, 

state that there had been accidents that he considered to be minor, in which a miner was injured 

but not severely and the injury did not result in the loss of any work time. Tr. 256. He stated 

that these accidents were common in any underground mine and certainly were not exclusive to 

Respondent’s Mine. Tr. 256. Given this testimony, Shifko maintained that he would not have 

considered the nicked straps a hazard. Tr. 268. He did state, however, that if the straps were 

severed, he would likely rethink that answer. Tr. 268. 

LAW AND REGULATIONS 

30 C.F.R. § 75.360(b) states that “the person conducting the preshift examination shall 

examine for hazardous conditions, test for methane and oxygen, and determine if the air is 

moving in its proper direction at the following locations.” Subpart (3) continues “[w]orking 

sections and areas where mechanized mining equipment is being installed or removed, if anyone 

is scheduled to work on the sections or in the area during the oncoming shift. The scope of the 

examination shall include the working places, approaches to worked-out areas and ventilation 

controls on these sections and in these areas, and the examination shall include tests of the roof, 

face and rib conditions on these sections and in these areas.” 30 C.F.R. § 75.360(b)(3)(emphasis 

added). 

1A violation is properly designated as significant and substantial “if, based upon the 

particular facts surrounding that violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature.” Cement 

Division, National Gypsum Co., 3 FMSHRC 822,825 (Apr. 1981). The Commission later 

clarified that, in order to establish that a violation of a mandatory safety standard is significant 

and substantial under National Gypsum, the Secretary of Labor must show: (1) an underlying 

violation of a mandatory safety standard; (2) a discrete safety hazard contributed by the 

violation; (3) a reasonable likelihood that the hazard contributed to will result in injury; and (4) a 

reasonable likelihood that the injury in question will be of a reasonably serious nature (the 

“Mathies” Test). Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984). 

A finding of an “unwarrantable failure to comply with a mandatory safety standard” 

suggests more than ordinary negligence. Emery Mining Corporation, 9 FMSHRC 1997, 2000 

(1987). It is aggravated conduct that is “characterized by such reckless disregard, intentional 

misconduct, indifference or serious lack of reasonable care.” Lopke Quarries, Inc., 23 FMSHRC 

705, 711 (July 2001). Some aggravating factors include: the length of time the violation existed, 

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the extent of the violative condition, whether the operator has been placed on notice that greater 

efforts were necessary for compliance, the operator’s efforts in abating the violative condition, 

the obviousness of the violation, involvement of a supervisor in the conduct and the operator’s 

knowledge of the violation. Consolidation Coal Co. 22 FMSHRC 340, 353 (Mar. 2000). All of 

the relevant facts and circumstances must be considered when determining whether the actor’s 

conducted is aggravated, or whether the level of negligence should be mitigated. Id. 

ISSUES AT HEARING 

The significant issues at hearing were whether Respondent’s failure to record the 

condition noted in Order No. 8007969 resulted in an inadequate preshift examination that was 

both significant and substantial in nature and an unwarrantable failure to comply with a 

mandatory safety standard. 

CONTENTIONS OF THE PARTIES 

The Secretary contends that the condition of the straps with rock lying on top of them 

constituted an obvious hazard that was highly likely to result in a fatal injury. As such, 

Respondent should have noticed it during its pre-shift examination and recorded it in its pre-shift 

examination book in order to warn miners entering the mine for the immediate shift that a 

hazardous condition existed. She finally argues that Respondent’s knowledge of the condition 

and failure to record it was an unwarrantable failure to comply with a mandatory safety standard. 

In consideration of these arguments, the Secretary contends that Order No. 8007970 should be 

affirmed as written. 

Respondent argues that the nicked straps were not an obvious hazardous condition that 

must be recorded in the pre-shift examination book; rather, although it admits that reasonable 

minds may differ, it argues that this condition was based on a valid judgment call made by the 

pre-shift examiner. Following this argument, Respondent contends that there is no violation of 

30 C.F.R. § 75.360(b)(3), let alone a significant and substantial violation that is an unwarrantable 

failure to comply with a mandatory standard. Based on the foregoing, Respondent argues that 

Order No. 8007970 should be vacated. 

ANALYSIS AND CONCLUSIONS 

The Commission has determined that pre-shift examinations are fundamental in assuring 

a safe work environment for the miners. Enlow Fork Mining Co., 19 FMSHRC 5, 15 (Jan. 

1997); Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan. 1995). In Big Ridge, Judge Miller noted 

that “[t]he preshift examination is intended to prevent hazardous conditions from developing ... 

[t]he preshift examiner must look for all conditions that present a hazard.” 2011 WL 1621389 

(Mar. 2011)(FMSHRC). The determination of whether the preshift examination was adequate is 

based on whether a reasonably prudent person, familiar with the mining industry and the 

protective purpose of the safety standard herein, would have recognized this hazard needed to be 

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recorded in the preshift examination book. Utah Power & Light Co., 12 FMSHRC 965, 968 

(May 1990) aff’d 951 F.2d 292 (10th Cir. 1991); Consolidation Coal Co., 33 FMSHRC 283, 290 

(2011)(ALJ); Big Ridge, 2011 WL 1621389 (Mar. 2011)(FMSHRC). 

The undersigned finds that the pre-shift examination was inadequate and the violation is 

significant and substantial in nature. In pertinent part, the requirements of 30 C.F.R. § 

75.360(b)(3) state that a pre-shift examination must include tests of the roof conditions in an area 

where work is scheduled to be done. Here, the straps at issue were severely bent, arguably into a 

“V” shape. Tr. 35, 36, 102, 187, 188, 226, 227. Drew and Dwayne Reckard, through the 

testimony of Mills, acknowledged that these straps had been nicked at least a day prior to the 

Order at issue having been written. Tr. 184, 240. Although it is common place to ignore straps 

which have been simply nicked or lightly damaged, these straps were severely damaged, bent at 

least six inches and as much as ten inches forward and twisted, leaving deteriorating roof 

relatively unsupported. Tr. 35-37, 102, 106, 107, 187-189, 226, 227. The ALJ gives credence to 

the Secretary’s witnesses, above cited, as to the nature and extent of the roof damage. See also 

Tr. 146. The undersigned finds that, even without the fallen roof lying on the straps at the time 

of the pre-shift examination, the reasonably prudent person familiar with the mining industry, the 

nature of the roof conditions at the mine and the protective purpose of the safety standard would 

have recognized that this must be recorded in the examination book. 

The existence of this violation contributes to the likelihood of a roof fall. Because the 

center roof bolts cannot be installed until the full-face miner has been removed from the cut, the 

straps are inserted as a temporary security measure until the center bolts can be installed. If 

these bolts are severely bent or severed, they are incapable of performing this function. As the 

bolts are typically installed on a five foot center, a strap that is bent as much as five inches in the 

center leaves a significant area between itself and the previous strap. This, in turn, leaves a 

larger area that is unsupported until the roof bolts are installed. The combination of a larger area 

of unsupported roof and a strap damaged to the point of those described here could significantly 

increase the likelihood that a roof fall would occur. However, the undersigned does not agree 

that this is highly likely to result in an accident. The condition had existed for at approximately 

twenty-four hours in which mining continued and, later, an inspection began. Although the 

material on the straps was loose, inspector Boring stated he did not believe that he was in any 

imminent danger due to the condition. In fact, he continued down to the face before being called 

back by Newhouse. Also, though it did not take abnormal effort, the material still had to be 

pulled down by other miners. Under these circumstances, it is not highly likely that someone 

would have been injured as a result of the condition. For the foregoing reasons, the undersigned 

finds that a roof fall was reasonably likely to occur. 

The undersigned also finds that a roof fall is reasonably likely to cause an injury or 

illness and that this injury could be fatal in nature. If the roof were to fall while the miner was 

still in operation, it endangers, at the very least, the continuous miner operator as well as those 

miners who are operating the integral bolter as the machine moves through the cut. If the roof 

were to fall after the continuous miner has been removed, it endangers the lives of the roof 

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bolters as well as anyone moving through the area. The size of the fallen roof was measured at 

approximately twenty inches by twenty inches. Tr. 58. Regardless of the thickness of this 

material, a miner hit by it could at the very least suffer a painful bruise, contusion or gash and, at 

the very most, it could cost him his life. Respondent had a history of injuries due to roof falls at 

the mine to attest to this fact. Based on the foregoing, the undersigned finds that the violation at 

issue is significant and substantial in nature. 

However, the undersigned does not find that this violation constitutes an unwarrantable 

failure to comply with a mandatory safety standard. By its definition, an unwarrantable failure 

suggests more than ordinary negligence. All of the relevant facts and circumstances of each case 

must be examined to determine if an actor’s conduct is aggravated or whether mitigating 

circumstances exist. Consol, 22 FMSHRC at 353 (Mar. 2000). A judge may also determine, in 

his discretion, that some factors are not relevant or may determine that some factors are much 

less important than other factors under the circumstances. IO Coal Company, 31 FMSHRC 

1346, 1351 (Dec. 2009). In determining whether Respondent’s conduct was aggravated in the 

context of unwarrantable failure in this case, the undersigned finds that significant evidentiary 

questions remained unresolved as to when the straps at issue were bent and when the associated 

roof sections were damaged. In this case, the relevant aggravating factors of length of time that 

the violation existed and the operator’s knowledge/notice of such are critical factors. 

The Secretary cannot pinpoint with any accuracy how long the condition as cited existed. 

While there is testimony stating that the straps had been bent early the day before, there is no 

evidence in the record to suggest when the material fell onto the straps. This condition could 

have occurred simultaneously as the straps being hit or moments prior to the inspectors entering 

the mine. Without more evidence, there is simply not enough to imply aggravated conduct or 

greater than ordinary negligence on the part of Respondent. Further, given, inter alia, the 

admission of Secretary’s own witness, Robert Newhouse, that he could not determine at what 

time the violative condition had actually occurred, I decline to speculate regarding such in 

reaching a finding of unwarrantable failure. Tr. 90. 

Moreover, Hayhurst conducted his examination, observed the nicks straps and made a 

judgment call based on this observation.14 While all of the Secretary’s witnesses opined that this 

was the wrong judgment call, there was much discussion that reasonable minds could possibly 

differ on the issue. While the hazard seems obvious to the undersigned, he is aware that the 

conditions of a courtroom and an underground mine are materially different and, therefore, 

affords the examiner’s judgment some deference in the matter. 

14 It is noted here that Hayhurst testified that he did not see any cracks or loose material at this 

time. However, this testimony ran contrary to every other witness that testified on the issue of 

the roof conditions. Generally, the undersigned found Respondent’s witnesses to be less than 

forthcoming on several issues. Not only did they contradict one another throughout the hearing, 

but each had his own explanation as to why his particular explanation was correct, based on what 

he believed would be most helpful to Respondent’s case. 

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In summary, the undersigned finds that while Respondent did check the conditions of the 

roof on July 27, 2010, this examination was inadequate to ensure a safe working environment for 

miners. Although the facts are sufficient for a finding that the violation was reasonably likely to 

result in a fatal injury to a miner, there is not enough evidence in the record to show that the 

condition was highly likely to result in an accident. Further, while I find sufficient proof that 

Respondent’s actions were negligent in nature, I do not find persuasive proof of conduct so 

aggravated in nature so as to constitute unwarrantable failure to comply with a mandatory safety 

standard. 

ORDER 

In light of the foregoing, it is hereby ORDERED that Order No. 8007970 be 

MODIFIED from a 104(d)(2) order to a 104(a), reasonably likely, moderate negligence citation. 

Due to these modifications, it is further ORDERED that Respondent PAY the Secretary of 

Labor the sum of $9,100.00 within thirty (30) days of the date of this decision.15 Upon receipt of 

payment, this case is DISMISSED. 

/s/ John Kent Lewis 

John Kent Lewis 

Administrative Law Judge 

Distribution: (Certified Mail) 

Jennifer K. Welsh, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630E, The 

Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty 

Avenue, Pittsburgh, PA 15222 

/kmb 

15 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. 

DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 

63179-0390
 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

601 NEW JERSEY AVENUE, N.W., SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949
 

February 29, 2012 

SECRETARY OF LABOR, MINE : CIVIL PENALTY PROCEEDING 

SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. LAKE 2011-34 

Petitioner : A.C. No. 12-02394-233729 

:

v. :

 :

BLACK PANTHER MINING, LLC, : Mine: Oaktown Fuels Mine No. 1 

Respondent : 

AMENDED DECISION AND ORDER † 

Appearances:	 Edward V. Hartman, Esq., Office of the Solicitor, U.S. Department of 

Labor, Chicago, Illinois for Petitioner 

Drew Miroff, Esq., Ice Miller, Indianapolis, Indiana for Respondent 

Before: Judge McCarthy 

I. Statement of the Case 

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

of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), 

against Black Panther Mining, LLC (“Black Panther” or “Respondent”), pursuant to sections 105 

and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine 

Act”). In my view, as expressed in pre-hearing conference calls, this case should not have been 

tried, but MSHA refused to back off the unwarrantable failure designation. Accordingly, 

unnecessary time and resources were devoted to this litigation. 

A single section 104(d)(1) Order dated August 17, 2010 remains at issue.1 The condition 

†

 In response to Respondent’s unopposed motion to amend decision by interlineation, the 

decision of January 27, 2012 is hereby amended pursuant to 29 C.F.R. 2700.69(c) to correct an 

apparent clerical error in the parties’ Stipulated Fact No. 3. 

1

 The parties made a joint motion on the record to settle the two other citations in Docket 

No. Lake 2011-34. The parties agreed that Order No. 8429032 alleging a section 104(d)(1) 

unwarrantable failure to comply with 30 C.F.R. 75.361(a) would be modified to a section 104(a) 

citation, with moderate negligence and a reduced penalty of $460. The parties further agreed 

that section 104(d) Order No. 8429035 would be modified to a section 104(d)(1) citation with a 

(continued...) 

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or practice alleged to be a significant and substantial (S&S) and an unwarrantable failure 

violation of 30 C.F.R. § 75.1725(c)2 is as follows: 

Repairs or maintenance were being performed on the 2 Main South belt 

at crosscut number 2 without power removed from the drive motors and 

blocked against motion. The maintenance chief was observed with a 

chain hoist on two separate sections of belt frame ratcheting them 

together. Drive motors number 1 and number 2 were observed plugged 

into the power center at crosscut number 1 with the emergency stop 

switch for motor number 2 engaged. This violation is an unwarrantable 

failure to comply with a mandatory safety standard, and the 

maintenance chief has engaged in aggravated conduct constituting more 

than ordinary negligence. 

Pet. Ex. 1. The gravity is alleged to be reasonably likely to result in an injury or illness that could 

be reasonably be expected to result in lost workdays or restricted duty, with one person affected. 

Negligence is alleged to be high. The proposed penalty is $2,000, the statutory minimum under 

section 110(a)(3)(A). The Order was terminated when the work on the conveyor belt was 

completed before the situation could be addressed. 

Respondent admits operator, mine, authorized representative, and interstate commerce 

status, but denies the violation and concomitant gravity, negligence, S&S, and unwarrantable 

failure findings and the validity of the civil penalty. 

An evidentiary hearing was held in Indianapolis, Indiana on November 7, 2011, after 

repeated conference calls failed to settle this matter. The parties introduced testimony and 

documentary evidence, and witnesses were sequestered. At the conclusion of the hearing, based 

on the credible testimony from each of the Respondent’s witnesses and the inability of MSHA 

Inspector, Anthony DiLorenzo, to testify from firsthand knowledge as to how the power system 

1

(...continued) 

statutory minimum penalty of $2,000. I have considered the representations presented and 

conclude that the proposed settlement is appropriate under the criteria set forth in Section 110(i) 

of the Act. Accordingly, the joint motion to approve partial settlement in Docket No. Lake 

2011-34 is approved. See Tr. Tr. 25-26. 

2

 30 CFR 75.1725(c) provides: 

Repairs or maintenance shall not be performed on 

machinery until the power is off and the machinery is 

blocked against motion except where machinery motion is 

necessary to make adjustments. 

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worked, I granted a “directed verdict” vacating the citation. I found that the power was turned 

off and the machinery was blocked against motion when Respondent’s maintenance chief, John 

Vennard, made the repairs at issue. Tr. 212. 

On the entire record, including my observation of the demeanor of the witnesses,3

 and 

after considering the post-hearing briefs, I make the following: 

II. Factual Background 

A. Stipulated Facts 

The parties stipulated to the following facts. 

1. The Federal Mine Safety and Health Review Commission has jurisdiction over this 

proceeding. 

2. At all times relevant to these proceedings, Black Panther Mining, LLC's operations 

affected interstate commerce. 

3. At all times relevant to these proceedings, Black Panther Mining, LLC operated the 

Oaktown Fuels Mine No. 1, which is owned by Oaktown Fuels Mine No. 1, LLC and located in 

Knox County, Indiana. 

4. The Oaktown Fuels Mine No. 1 is an underground mine for the extraction of 

bituminous coal. 

5. Black Panther Mining, LLC began underground mining at the Oaktown Fuels Mine No. 

1 in April of 2007. 

6. If the citation and penalty proposed in this case are upheld, Black Panther Mining, 

LLC's ability to continue operations would not be threatened. 

7. Citation No. 8426631, which is the order at issue, was issued to Black Panther Mining, 

LLC on August 17, 2010, pursuant to section 104(d) of the Federal Mine Safety and Health Act 

of 1977. 

8. The subject citation was properly served upon an agent of Black Panther Mining, LLC. 

3

 In resolving conflicts in testimony, I have taken into consideration the demeanor of the 

witnesses, their interests in this matter, the inherent probability of their testimony in light of 

other events, corroboration or lack of corroboration for testimony given, and consistency or lack 

thereof within the testimony of witnesses and between the testimony of witnesses. 

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9. Maintenance chief, John Vennard, was performing maintenance on the 2 main south 

belt assembly at crosscut number 2 on August 17, 2010. 

10. At the time Mr. Vennard was performing maintenance on the 2 main south belt 

assembly, the belt's drive motors number 1 and number 2 were plugged into the power center at 

crosscut number 1. 

11. The emergency stop switch at the power center for drive motor number 2 was 

engaged. 

12. The emergency stop switch at the power center for drive motor number 1 was not 

engaged. 

B. The Inspection 

1. MSHA’s Witness 

On August 17, 2010, MSHA’s certified mine inspector, Anthony DiLorenzo,4

 visited 

Respondent’s mine with a trainee (T. Blair)5 to conduct an EO2 spot ventilation inspection. Tr. 

37, 41, 44; P. Ex. 2, p. 2. DiLorenzo and Blair were accompanied underground by Respondent’s 

safety director, Matt Dowell. DiLorenzo made contemporaneous notes during the inspection, but 

otherwise I find that DiLorenzo’s testimony and recollection was not very reliable. Tr. 43, 47, 

194; P. Ex. 2. 

DiLorenzo spent the majority of the inspection at the active section (MMU-003-004) of 2 

Main South in an area where the roof had recently fallen near cross cut 16. Thereafter, 

DiLorenzo, Blair, and Respondent’s safety technician trainee, Bobby Cox,6 walked the 2 Main 

South belt from the tail piece out-by the belt drive, checking ventilation stoppings and air flow, 

and looking for coal dust or rock dust on surfaces. Tr. 42-43, 194; P. Ex. 2, pp. 1 and 3. 

DiLorenzo’s notes reflect the belt was down at that time. P. Ex. 2, p. 7. 

DiLorenzo initially testified that while walking the belt he saw Respondent’s maintenance 

chief, John Vennard, shift maintenance foreman, Jason York, and unit mechanic, Greg Simmons, 

4

 DiLorenzo was an acting field office supervisor at the time. He started with MSHA in 

July 2007, became an authorized representative in August of 2008, and had slightly over 4 1⁄2 

years of previous mining experience. Tr. 37-38. 

5

 Blair did not testify to corroborate the testimony of DiLorenzo, the Secretary’s sole 

witness. 

6

 Cox did not testify, but was still employed by Respondent. Tr. 199. Dowell testified 

that Respondent spoke to Cox before trial, but Cox purportedly could not recall anything about 

the citation at issue. Tr. 200. 

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ratcheting two pieces of the belt frame back together, with a standard chain hoist or come-along, 

in order to slide a cotter pin back into the structure. According to DiLorenzo, they were working 

both sides of the belt. Tr. 44-46, 96. DiLorenzo’s notes indicate that Vennard was performing 

the work and York and Simmons were standing in the area watching. P. Ex. 2, p. 9; but see id. at 

11 noting “men working on belt.” Dowell was apparently still in the travel way entry when 

DiLorenzo made this observation. Tr. 46-47. I do not credit this testimony from DiLorenzo 

since he distanced himself from this testimony in subsequent testimony and the preponderance of 

the credible evidence indicates that Vennard and Simmons were performing the work and York 

was stationed at the belt master, as explained below. 

DiLorenzo testified with uncertainty that he probably walked within a yard of where 

Vennard was performing the work and probably asked how are you doing, what’s going on, but 

could not recall whether he had any conversation with or made eye contact with Vennard before 

heading towards the power center, as described below. Tr. 91-92. DiLorenzo observed that the 

chain hoist was attached to two separate sections of the belt stretcher (rail) and Vennard had his 

arm on the inside of the stretcher between the structure and the belt and was ratcheting the two 

sections of the rail together from outside the structure in order to insert a cotter pin that was 

missing. Tr. 55-56, 93-94, 95; see R. Ex. 7. 

DiLorenzo never saw anyone in contact with the belt. Tr. 96. According to DiLorenzo, 

York and Simmons were just observing, standing there waiting. Tr. 55-56. Based on his 

experience performing similar maintenance, DiLorenzo testified that it would take less than 30 

minutes to ratchet two frames back together. Tr. 57. 

Subsequently, DiLorenzo testified that York and Simmons were just in the area and he did 

not see them perform any actual work. Tr. 57. On subsequent questioning from the Court during 

cross examination as to which side of the belt he saw York on, DiLorenzo testified that at one 

point in time York was on the off side of the belt (i.e., opposite the belt master), but “they were 

not just all standing in one location, they were moving around to different forms.” Tr. 88-89. I 

do not credit this testimony about York’s location. Rather, I find consistent with the credible 

testimony of each of Respondent’s witnesses, as set forth below, that Vennard posted York at the 

belt master and York did not leave that area. Thereafter, on further cross, DiLorenzo conceded 

that he never saw York or Simmons perform any work on the structure. Tr. 112. 

DiLorenzo testified that he observed Vennard for about one minute, more or less, and 

recalled that Vennard’s arm was inside the belt frame (over the structure) for about 10-15 

seconds. Tr. 60, 92, 103. DiLorenzo testified that if the belt started while Vennard’s arm was 

inside the frame, the chain hoist possibly could have unlatched and whipped around striking 

Vennard, or Vennard could have been hit by the chain structure or the belt itself, likely causing 

cuts or lacerations to his arm. Tr. 59. 

DiLorenzo then continued walking out-by toward the belt drive and then walked toward 

the power center in cross cut 1. Tr. 48. He could not recall whether anyone was at the belt 

master when he walked to the power center. Tr. 58. He testified that the belt master in 2 Main 

South belt was about 120-150 feet away from the power center, which was located in cross cut 1 

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on the opposite side of the secondary escapeway. Tr. 58; see R. Ex. 8. DiLorenzo further 

testified that as he walked down the 2 Main South belt, he should have seen anyone who was 

posted at the belt master and would have annotated that in his notes. Tr. 58-59. His notes do not 

reflect that anyone was stationed at the belt master. P. Ex. 2. I give little weight to this 

testimony from DiLorenzo because his recollection was not impressive, particularly concerning 

where York was located, and the Secretary adduced no testimony concerning DiLorenzo’s 

practice, customary or otherwise, with regard to taking notes. 

Dowell rejoined DiLorenzo at the power center. Tr. 49, 110. At that location, DiLorenzo 

observed that the power cable for drive motor no. 1 and 2 were coupled into the power center, and 

the emergency stop (e-stop) for drive motor no. 2 was engaged, i.e., physically depressed to open 

the circuit, but the e-stop for drive motor no. 1 was not engaged. The belt was not running. Tr. 

48, 80-81; see R. Ex. 1 and 2.7

 Dowell confirmed that the power center circuit was open as one 

of the e-stops was engaged, and the manual off switch and e-stop at the belt master were also 

engaged. Tr. 203-05. Consistent with his training and experience, DiLorenzo testified that 

“power off” meant that the circuit breaker is open and the power couplings are removed from the 

power source. Tr. 49, 57, 65, 116. 

DiLorenzo rhetorically asked Dowell, “Am I seeing this correctly” or “Is this really what 

it appears to be?” DiLorenzo testified that it was obvious that the power cables were still coupled 

into the power center that was supplying power to the drive motors and only one circuit breaker 

was open. Tr. 50, 65. He could not recall what Dowell said, if anything, in response, but opined 

that Dowell’s facial expressions conveyed displeasure. Tr. 50. Dowell could not recall 

indicating any displeasure and does not recall arguing with DiLorenzo at this point. Tr. 206. 

When repeatedly asked by the Court what specific facial expressions he observed, DiLorenzo 

could offer nothing more than the opinion that Dowell was tight lipped. Tr. 51-53. DiLorenzo 

testified that he remained at the power center about 10-15 minutes. Tr. 92. 

DiLorenzo and Dowell then traveled from the power center back towards the belt line, 

which was about 90 feet away, where Vennard, York, and Simmons were stationed along the belt. 

 DiLorenzo testified that he intended to remove all miners from the area until the power to the belt 

drive motors was turned off according to DiLorenzo’s understanding of MSHA policy. By the 

time DiLorenzo arrived, however, the work had been completed. 

The whole sequence of events lasted less than 10 minutes, but DiLorenzo testified in 

response to a leading question that the condition need not last a long period of time for an injury 

7

 On cross examination, DiLorenzo conceded that if the e-stop was engaged on one drive 

but not on the other drive, the belt would not move. He further testified that if the belt was 

running and one of the e-stops was engaged, the belt would shut off. Tr. 80. DiLorenzo refused 

to concede, however, that if one attempted to restart the belt with only one circuit breaker open, 

the belt would not move. Rather, DiLorenzo opined, without verification or testing, that the belt 

could move because there was still one closed circuit to the second drive motor. Tr. 81-82, 105. 

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to occur because it would take just several seconds for someone to turn the belt back on. Tr. 55, 

66. DiLorenzo testified that Vennard was not in a position to prevent anyone from starting the 

drive motor no. 1 at the belt master. Tr. 59. 

DiLorenzo testified that he spoke with Dowell and Vennard about the alleged violative 

practice and the potential action that he would be taking after checking his references. P. Ex. 2, p. 

12; Tr. at 67-69, 97. DiLorenzo further testified that as he was leaving to return to the surface, 

the operator restarted the 2 Main South belt, but DiLorenzo did not see how this was done. Tr. 

73. 

Once DiLorenzo returned to the surface, he reviewed the CFR and any PIBs, PILs or PPLs 

applicable to the standard, including P. Exs. 3 and 5. Tr. 69-70; P. Ex. 2, p. 12. P. Ex. 3 is 

Program Policy Letter No. PO8-V-01, effective March 18, 2008 through March 31, 2010. That 

PPL had expired at the time the instant Order was written on August 17, 2010. P. Ex. 4 is 

Program Policy Letter No. P11-V-01, effective February 8, 2011 through March 31, 2013, which 

post-dated the Order and clarified PPL PO8-V-01 in a manner not material here. 

PPL PO8-V-01, MSHA’s interpretation of the cited regulation (Tr. 76), provides in 

relevant part, as follows: 

Purpose 

This Program Policy Letter covers the MSHA policy concerning the 

requirements of Section 75.1725(c), Title 30 of the Code of Federal 

Regulations (CFR), in order to prevent injuries while machinery repairs 

or maintenance are performed. This policy letter addresses the meaning 

of 30 C.F.R. § 75.1725(c), and identifies a number of methods for 

complying with the standard. 

Policy 

Section 75.1725(c) provides that "[r]epairs or maintenance shall not be 

performed on machinery until the power is off and the machinery is 

blocked against motion, except where machinery motion is necessary to 

make adjustments." 

"Machinery" includes hydraulic jacks or cylinders, belt conveyors, 

longwall conveyors, and other machinery used in coal mines. "Repair" 

means to fix, mend, or restore to good working order. "Maintenance" 

means the labor of keeping machinery in good working order and 

includes clean-up, clearing jammed material or conducting 

examinations on or in close proximity to machinery. 

Methods to comply with this standard to prevent inadvertent or 

unexpected motion include: 

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1.	 Opening the circuit breaker for the affected machinery, 

provided no energized parts or conductors are exposed, and 

placing the run selector switch for startup of the machinery in 

the "off" position. . . . 

2.	 Opening the circuit breaker at the power center that supplies 

power for the affected machinery (30 C.F.R. § 75.900) and 

disengaging the power cable coupler that supplies power to the 

machinery (30 C.F.R. § 75.903). 

3.	 Opening a manual visible disconnect switch, either within the 

circuit or onboard the machinery, (30 C.F.R. § 75.903) and 

securing the switch against re-energization. A control circuit 

start-stop switch does not constitute a manual disconnect. 

4.	 In cases such as steeply inclined belt conveyors and suspended 

loads, when removing the power alone will not ensure against 

unintentional or inadvertent movement, the machinery shall be 

physically blocked, in addition to removing the power by one of 

the three methods described above. Physical blocking may be 

achieved by the use of such devices as bars, chocks, or clamps.8 

Other methods may be appropriate in particular situations to prevent 

unintentional or inadvertent movement. What method(s) is appropriate 

depends upon the circumstances and type of machinery. The critical 

determination is whether the method(s) used would effectively prevent 

motion. . . . 

In addition, it is important to emphasize that restoring power 

prematurely while repairs or maintenance are ongoing places a miner 

performing that work in harm's way. Operators must prevent inattentive 

restarting and assure that repairs or maintenance have ceased before 

power is restored to the machinery. Preventive measures operators can 

take include locking and tagging out, clearance checks, or visible or 

audible alarms with built-in time delays before restart to warn the 

miner(s) performing the work so power will not be restored without the 

miner's knowledge. 

See P. Ex. 3, pp. 1-2. 

DiLorenzo conceded that the standard does not require lock out and tag out and there were 

other methods to comply. Tr. 98, 111. On the other hand, DiLorenzo testified that the belt was 

8

 DiLorenzo testified on cross that both paragraphs nos. 3 and 4 were inapplicable here 

because the belt drive was not equipped with a manual, visible, disconnect switch (paragraph 3) 

and the record fails to establish that the belt being repaired was a steeply inclined belt conveyor 

(paragraph no. 4). Tr. 83. 

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electrically powered equipment because it receives power from two electric drive motors at the 

power center, which turns gears and pulleys to move the conveyor belt. However, he did not 

write a violation under 30 C.F.R. 75.511 because mechanical work was being performed on the 

belt, not electrical work on the belt drive motors. Tr. 120-21. In response to another leading 

question on direct, DiLorenzo testified that Respondent was working on a belt frame that 

contained a belt that actually could be moved by drive motors. Tr. 122. He further testified that 

if someone turned the power switch at the belt master to the “on” position, that would cause the 

motor on the closed circuit to run. Tr. 123. 

After reviewing his references, DiLorenzo wrote the instant Order and gave it to Dowell 

and Respondent’s operations manager, Brad Rigsby, while explaining why he had written the 

Order. Tr. 7-71; P. Ex. 2, p. 12. Di Lorenzo conceded that he did not know or inquire about 

what Black Panther’s training was concerning the restarting of belts that had stopped. Tr. 99, 

100. DiLorenzo testified that even if he knew that Black Panther miners were trained not to 

restart a belt until they knew why it was stopped, he still would have written the unwarrantable 

failure order. In his view, Vennard, York, and Simmons just happened to be close to the belt 

master, but there could be other situations where work was performed farther away from the belt 

master where somebody could walk over and turn the untagged belt master switches on, despite 

training not to do so in situations when they did not know why the belt was down. DiLorenzo 

explained that not everyone does what they are trained to do. Tr. 100-01. 

DiLorenzo testified that he designated the violation as S&S because an injury was 

reasonably likely to occur. DiLorenzo arrived at this conclusion based on the fact that Vennard’s 

arm was inside the frame between the belt structure and the belt when power was not turned off, 

and nothing prevented the 2 Main South belt from being turned on, such as by a miner turning the 

switch at the belt master from “off” to “manual” or to “auto” (automatic) at the belt master. Tr. 

60-61, 72. 

In designating the violation as an unwarrantable failure, DiLorenzo at first described 

Vennard’s conduct as intentional and “extensive” because he was the maintenance chief and an 

agent of the operator, who had performed maintenance on equipment without the power being 

shut off and in front of subordinates.9 DiLorenzo also considered the fact that Vennard had 

previously given DiLorenzo the impression that he knew or should have known the regulations, 

including the fact that one could not perform maintenance on equipment without the power being 

off. Tr. 61, 64-65, 108-09. In this regard, DiLorenzo testified that around June or July of 2010, 

he sat in on a safety talk that Vennard gave to third-shift personnel about turning power off and 

locking and tagging out machinery or equipment during maintenance or repair work. DiLorenzo 

described this talk as one of the best references to lock out/tag out that he had ever heard. Tr. 62­

9

 On cross, however, DiLorenzo testified that he did not believe that Vennard was 

intentionally violating the standard. Tr. 111. 

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63, 104.10 DiLorenzo testified that during the talk, he recalled Vennard describing “power off” 

as being removed from the power source and locked out, although he did not recall Vennard 

speaking about belts, just equipment generally. Tr. 63, 104. DiLorenzo was not aware of any 

prior violations of 30 C.F.R. 75.1725(c) at this mine, nor was he aware of any notification by 

MSHA that Respondent needed to make greater efforts to comply with the standard. Tr. 66-67, 

109-10. 

On cross examination, DiLorenzo testified that in his opinion, paragraph no. 2 of the 

expired PPL was not complied with because only one of two circuit breakers was open and it was 

his understanding that if one of the two drive motors was engaged, the belt could still move. Tr. 

77, 102.11 DiLorenzo testified that when leaving for the surface, he observed the Respondent 

attempt to restart the 2 Main South belt after the repairs were made without closing the circuit 

breaker that was already open, and the “belt did attempt to start and move, shut down.” Tr. 77­

78, 102. DiLorenzo did not explain what attempt to start or move meant. I give no weight to 

this testimony as it was little more than assumption given DiLorenzo’s previous testimony that he 

did not see the belt or how the belt was restarted when he left the power center, and he did not 

inquire as to how the belt master or power center worked. Tr. 73, 116-17. In this regard, there is 

no evidence that DiLorenzo ever asked anyone from Respondent how the power center or belt 

master or any switches or drive motors at those locations actually operated. In fact, DiLorenzo 

conceded that he never investigated how the belt master worked, but agreed that if the belt master 

switch was off and the e-stop was engaged, the e-stop would have to be disengaged and the 

master switch turned on before the belt could start moving. Tr. 101-02. Thereafter, he testified 

that engaging the e-stop on the belt master opens the circuit and guards against movement, but 

does not assure that movement cannot be resumed. Tr. 105. DiLorenzo never tested his theory 

that unless the power cables were unplugged, the belt could start up because the cables were still 

energized. 

With regard to paragraph no. 1 of the expired PPL, DiLorenzo testified that such method 

was not complied with because the affected machinery was the 2 Main South belt, which had two 

different motors, but only one of those motors had the circuit breaker open. DiLorenzo disputed 

Respondent’s position that both motors needed to be engaged for the belt to move. Tr. 84. As 

noted above, DiLorenzo testified that Respondent attempted to start the 2 Main South belt with 

only one of the circuit breakers closed while he was present and the belt did move, “attempted to 

10 DiLorenzo conceded that he left the safety chat with the impression that Vennard knew 

his stuff about locking and tagging out, and about teaching his employees the proper way to do 

so in order to prevent unintentional or inadvertent movement, when necessary. Tr. 104. 

11 The option in paragraph 2 requires “[o]pening the circuit breaker at the power center 

that supplies power for the affected machinery (30 C.F.R. § 75.900) and disengaging the power 

cable coupler that supplies power to the machinery (30 C.F.R. § 75.903) (underscore added). 

DiLorenzo did not address the second part of the conjunctive guideline, but there is no dispute 

that the power cable couplers were not disengaged. 

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start,”12 but did not have enough power or torque to turn the belt with only one drive motor 

running. I have declined to credit this testimony. I note that DiLorenzo did not see who 

attempted to start the belt from the belt master with only one circuit breaker open at the power 

source while he purportedly stood at the power center with Dowell where the catheads were 

engaged. Tr. 85, 112 . DiLorenzo testified, without detail as to personal observation, that the 

second time Black Panther attempted to start the belt, they closed both circuits to drive motor 1 

and 2 and the belt ran normally. Tr. 113-14. In short, I find DiLorenzo’s testimony too vague 

and imprecise to establish that belt actually moved when Respondent “attempted” to restart it as 

DiLorenzo was headed for the surface. On redirect, DiLorenzo answered affirmatively in 

response to the following leading question from counsel for the Secretary: “My question was 

basically getting to the point that while you were at the power center, one of the circuits to belt 

number 2, belt drive motor number 2, was still open, and the circuit for belt drive number 1 was 

closed when you were at the power center and you saw the belt move?” Tr. 115. In addition, 

DiLorenzo testified that to the best of his recollection, he believed that Vennard closed the circuit 

at the power center by resetting the circuit breaker on that drive motor (Tr. 115), but York 

contradicted DiLorenzo. 179-180. I credit York, who credibly testified on questioning from the 

Court that once he was cleared by Vennard to start the belt, he went to the power center and 

released the e-stop for the no. 2 drive motor and then went back to the belt master, released the estop, turned the power on, and started the belt. See Tr. 179-80. 

I also note that DiLorenzo never went to the belt master and did not know whether the belt 

master was in the “on” or “off” position or whether the e-stop was engaged, which would open 

the circuit for the belt master and guard against belt movement. DiLorenzo insisted that someone 

could reset the e-stop and turn the belt back on. Tr. 86-88, 105. He conceded, however, that the 

belt master controls whether the belt moves or not, and if the e-stop is on and the belt master 

control switch is off, the belt will not move, unless someone turns on the switch. Tr. 88, 90. 

2. Respondent’s Witnesses 

Respondent’s witnesses conveyed a slightly different version of events surrounding the 

inspection. John Vennard has been Respondent’s maintenance chief since June 2006 after 

working in several maintenance positions since 2001, including a two-year stint as maintenance 

foreman. Tr. 133-34. Vennard maintains all electrical and mechanical aspects of underground 

coal mine equipment. Three shift foreman, including York, and 35 electricians, report to 

Vennard. Vennard teaches an 8-hour refresher training course for all mechanics, holds an 

electrical card, and performs on-the-job training, whenever necessary. Tr. 135. 

12 It is not clear that DiLorenzo could see or was looking at the belt when standing at the 

power center. See R. Ex. 8. He certainly could not see the belt master. Tr. 114. On 

questioning from the Court, he conceded that he assumed that somebody was attempting to start 

the belt at the belt master. Tr. 116-17. 

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Vennard testified that on August 17, 2010, he was leaving a continuous miner unit that 

was performing room and pillar mining when a belt examiner flagged him down because a belt 

was spilling coal. Tr. 137. Vennard examined the spillage area, walked to the belt master, 

turned the power switch from “auto” to “off”, engaged the e-stop button, and then went to the 

power center and hit the e-stop for one of the drive motors, but did not remember which one. Tr. 

138-39, 140.13 On his way back to the spillage area, Vennard encountered section foreman York 

and unit mechanic Simmons. Vennard instructed York to go to the belt master until Vennard 

flagged him to turn the belt back on. Tr. 138-39, 143.14 

After taking said precautions, Vennard then went to the spillage area to put the pin back in 

the belt structure. Vennard could not perform the task alone because the belt was loaded with 

coal and Vennard could not pick the structure up himself and replace the pin. Tr. 143. So 

Simmons went to the man-trip to retrieve a come-along (ratchet hoist). Vennard and Simmons 

then put the come-along on the belt structure, pulled the structure back together, and put the pin in 

it. There was no electrical work involved and Vennard testified that it was not possible to come 

in contact with the belt during the task, which was completed about 10-15 minutes after Vennard 

left the power center.15 

Vennard testified that York did not assist with the repair task and never left the belt 

master. Tr. 145. Dowell testified that he never saw York leave the belt master where they 

conversed. Tr. 201-02. York confirmed that Vennard explained to him that he had shut the belt 

down to re-pin the belt structure, that Vennard instructed York to stay at the belt until Vennard 

13 On cross, based on his experience reading MSHA PPLs, Vennard was asked for his 

understanding of how MSHA defines power off. He opined that power off meant either the 

circuit breaker was open or the power to that circuit was open. He further opined that if you are 

required to have a visual disconnect, one can remove the catheads and put a lock and tag on 

them, but power off is somewhat of a gray area. Tr. 164-65. 

14 York corroborated Vennard’s testimony that Vennard instructed York to post at the 

belt master until Vennard completed his work on the belt so the belt could be restarted. Tr. 177. 

York could see Vennard from the belt master, but not from the power center. Tr. 184. York 

testified that he has been posted at the belt master on other occasions, such as setting belt drives 

on new installations, and from that vantage point he has been able to observe the work being 

performed on various occasions. Tr. 185. 

15 Vennard testified that if he had been performing electrical work on the cables or at the 

power center, he would have used a physical log out and tag out mechanism. Tr. 157; cf. 163. 

Vennard further testified that he trained his shop that if the miners had any question in their mind 

as to whether lock out tag out applied or whether a piece of machinery could be turned on and 

could move or experience a power surge, then they should lock out and tag out and remove the 

cables. Tr. 169. 

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completed his work so no one could try to turn the belt on, that the whole job lasted about 5-10 

minutes, and that York never left the belt master until he was cleared to start the belt. Tr. 178, 

181-82, 188.16 

After completing the repair, Vennard proceeded down the belt line toward the belt master 

and told York to start the belt master, and then he turned right at crosscut one (towards the power 

center) and saw Inspector DiLorenzo with Dowell in the entry at the power center. Tr. 146-49, 

161-62.17 Vennard did not instruct DiLorenzo or Dowell to disengage the e-stop at the power 

center and does not recall when the belt started back up or where he was when the belt started 

back up, although he testified that he would not have left the area if the belt did not start back up. 

Tr. 162-63. Vennard could not recall who released the e-stop at the power center, which was 

necessary to start the belt back up. Tr. 161. On redirect, Vennard again could not recall whether 

he disengaged the e-stop at the power center. Tr. 170 On further questioning from the Court, he 

could not recall any details about the belt being started back up. Tr. 172. 

York testified that once he was cleared by Vennard to start the belt, he went to the power 

center and released the e-stop for the no. 2 drive motor and then went back to the belt master, 

released the e-stop, turned the power on, and started the belt. Tr. 179-80. York did not have any 

conversations with inspector DiLorenzo and does not recall seeing him, although York spoke with 

Dowell to ask what was going at some point when DiLorenzo was not with Dowell. Tr. 180, 188. 

Vennard testified that the belts shuts off if the power is turned off or the e-stop button is 

engaged, and with either action, the belt does not move. Tr. 140. Vennard further testified that 

he was familiar with 30 C.F.R. 75.1725(c) and believed that his actions complied with the 

standard by turning the power off and blocking the belt from motion. Moreover, there were no 

moving parts and Vennard did not come in contact with the belt or enter any pinch point area. Tr. 

151-52. 

In response to questioning from the Court, Vennard testified that it was not necessary to 

engage both e-stops at the power center because they feed through a series circuit and pushing 

one e-stop will shut down the circuit, which is monitored at the belt master and prevents the belt 

from moving. Tr. 142, 155.18 Vennard conceded that the power system was designed to run on 

16 With regard to training, Vennard testified that every belt drive has a mine phone and 

before starting a belt back up, a maintenance mechanic or foreman must call and find out why 

the belt is stopped. Tr. 149. Safety Director Dowell corroborated this testimony. Tr. 205. 

Typically, the miner who shuts the belt down is the miner who gives the order to start the belt 

back up. Tr. 151. 

17 Initially, on direct,Vennard did not remember where he went after telling York to 

restart the belt. Tr. 147. 

18 Vennard did not explain this to inspector DiLorenzo and DiLorenzo did not ask. In 

(continued...) 

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one motor, and in such case, the e-stop for that motor was controlling, but when both motors were 

being used, as in this case, one e-stop controls both motors. Tr. 155. When asked on cross why 

he stationed York at the belt master if engagement of one e-stop at the power center would ensure 

that the belt would not move, Vennard testified, “I think I positioned him there as much as not to 

turn it on as when I flagged him to turn it on. So we could get the belt back up and running.” Tr. 

160. “He was positioned there as much as not to let the belt start, as to get the belt started as fast 

as we could.” Tr. 165-66. Thereafter on cross, Vennard testified that he did not need to position 

York anywhere, but it was a hectic, moment and he was in a hurry to get the belt back up and 

running. Tr. 166, 169-170.19 On further aggressive cross examination concerning whether he 

was in a hurry and positioned someone there to protect him, but did not follow the standard, 

Vennard held tough and testified that he complied with the standard, which he acknowledged on 

redirect was designed to prevent motion or movement of equipment (Tr. 170), by turning the 

power off at the power center and removing power from the belt. Tr. 166-67. 

On further questioning from the Court, Vennard testified that the belt was blocked against 

motion during his repairs because the power was off and the belt could not move. Tr. 172. He 

testified that if the power had been on, the belt still would have been running. Tr. 173. He further 

acknowledged a difference between “power off” and “blocking against motion” and volunteered 

that one could actually put a belt block or tie on a belt to keep it from rolling, but such precaution 

was unnecessary in the circumstances of this case based on the type of machinery since the belt 

was loaded and was located on a flat surface without incline, and was not going to move with 

power off. Tr. 171-72, 174. The Secretary offered no probative evidence or persuasive argument 

to the contrary. 

Vennard also testified that it was not necessary to decouple the power cables for the two 

drive motors at the power source because there were three open circuits, the power was off, and 

the belt could not start. Tr. 157. Vennard testified and Dowell confirmed that in order for the 

belt to start moving again, one would have to release the e-stop at the power center, release the estop at the belt master, and then turn the switch back to the “on” position at the belt master. Tr. 

152, 208. He further testified that all three of these things needed to happen for the belt to move 

in any fashion or start back up. In fact, Vennard testified that he had tested this before and 

confirmed that such was the case. Tr. 153. Dowell also testified that in the past he had tried to 

start the belt when the e-stop to one motor at the power center was engaged and the belt would 

18(...continued) 

fact, Vennard testified, contrary to DiLorenzo’s suggestion otherwise (Tr. 91-92), that 

DiLorenzo never spoke to Vennard while underground, and Vennard did not see DiLorenzo until 

DiLorenzo was at the power center when Respondent began the process of starting the belt back 

up. Tr. 142. I credit this testimony of Vennard over the uncertain testimony of DiLorenzo cited 

above. 

19 York candidly conceded on cross that Respondent was in a hurry to get the belt back up 

and running to increase production, but testified on redirect that hurrying does not equate to 

sidestepping or short-cutting safety requirements. Tr. 188-89. 

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not move or even attempt to start up. Tr. 207. On cross, Dowell further opined that Vennard 

went above and beyond what 30 C.F.R. 75.1725(c) required by opening the circuits at the power 

center and belt master, turning the power off at the belt master, and stationing York at the belt 

master. Tr. 208. 

On questioning from the Court, Dowell opined that Vennard complied with the first 

paragraph of PPL PO8-V-01 concerning methods to comply with the standard to prevent 

inadvertent or unexpected motion, by opening three different circuits. Tr. 209. Dowell further 

opined that Vennard also complied with the second paragraph of PPL PO8-V-01 because when 

he hit the e-stop at the power center, he essentially disengaged the power cable couplers that 

supplied power to the drive motors for the belt because they could not function after the e-stop 

was engaged. Tr. 211. 

York also confirmed on cross that Respondent took three steps to ensure that power was 

off for the belt line, i.e. engaging the e-stop at the power center and the e-stop and power off 

switch at the belt master. Tr. 183. On cross, York also acknowledged that the belt master 

controls the starter on the motors, but if the power center circuit is open, which it was, one cannot 

start the motors. Tr. 182-83. 

York further testified that 30 C.F.R. 1725(c) requires equipment to be powered off and 

blocked from motion, and Respondent’s practice under Vennard’s leadership was to turn the 

power switch off and trip the circuit at the power center. Tr. 186. On questioning from the 

Court, York opined that “power off” meant turning the key on the belt master to “off “(switch off 

at the belt master) to separate the circuit between the belt master and the starter box at the power 

center for the motors. York further noted that Vennard took the initiative to engage the e-stop on 

the belt master as well as the e-stop on one of the two motors that were tied together in a series at 

the power center. Tr. 189-90. York also opined that “blocked against motion” typically 

concerned maintenance on mobile equipment or rubber-tired vehicles that have been parked or 

left idle. He confirmed that the belt on which Vennard was performing repairs could not move if 

the power was off and the circuit was open at the power center, and that even if the belt master 

was turned back on, the belt would not move with the e-stops engaged. Tr. 190-91. 

Respondent’s final witness was Matt Dowell, Respondent’s representative throughout the 

hearing. As noted, Dowell drove the man-trip from the active working section to the end of the 

belt flight line, while DiLorenzo walked the belt line. Tr. 44. Dowell testified that DiLorenzo 

asked Dowell to pick him up at the end of the belt flight. Tr. 194. Dowell apparently arrived 

first (Tr. 200) and parked in the secondary escapeway at cross cut 1 near the power center. 

Dowell then walked over to the 2 main south belt line, which was down, and then out-by to the 

belt master, where he spoke to York. York explained to Dowell that guys were working in-by 

the belt line, where lights were visible, and they were fixing a problem with the belt. Tr. 194-95, 

197, 200. 

Dowell then heard DiLorenzo holler for him from around the corner at the power center 

about 90 feet away. When Dowell arrived back at the power center, DiLorenzo asked Dowell 

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how come the belt was not locked and tagged out. Tr. 195, 200.20 Dowell testified that he did 

not respond to DiLorenzo’s inquiry, but noticed that the motor was engaged for one drive. Then 

DiLorenzo headed back over through cross cut 1 toward the belt area where Vennard and 

Simmons were completing their work. Tr. 195-97; see also R. Ex. 8. 

Dowell testified that he saw York again when DiLorenzo was questioning Dowell about 

why the catheads were not locked and tagged out. Tr. 202. I infer this is when York was headed 

toward the power center to open the circuit after Vennard flagged him following completion of 

the repair work. Dowell testified that DiLorenzo made some notes and then they proceeded 

outside. Tr. 202.21 

Dowell further testified that in the man trip on the way out, DiLorenzo was reading 

through his references and indicated that he had to check some sources once on the surface. Tr. 

202. Thereafter, DiLorenzo returned to Dowell’s office and indicated that he was issuing a 

104(d)(1) Order based on the PPL. Tr. 202. Dowell testified that operations manager Rigsby 

was present, but Rigsby did not testify. Tr. 203. Dowell testified that he questioned DiLorenzo 

about the Order, noting that the power was off. According to Dowell, DiLorenzo said that power 

off meant “locked out and tagged out in this instance.” I credit this testimony from Dowell. 

DiLorenzo’s contemporaneous notes confirm that he was viewing the alleged violation as a 

contravention of lock out and tag out requirements (P. Ex. 2, pp. 10 and 11), although DiLorenzo 

abandoned this theory at trial. Tr. 98, 111. 

3. The “Directed Verdict” 

At the close of Respondent’s case, I granted Respondent’s motion to dismiss (styled by 

Respondent as a motion for a directed verdict, see Tr. 124 and 212) and vacated the citation. I 

found, based on the credible testimony from each of Respondent’s witnesses and the inability of 

inspector DiLorenzo to testify from firsthand knowledge as to how the power system worked, that 

the requirements of 30 CFR 75.1725(c) were complied with because the power was turned off and 

the belt effectively was blocked against motion under the circumstances. Tr. 212-13. I reaffirm 

that decision in this written opinion. 

As Judge Gill noted when granting a contestant’s motion to dismiss at the close of the 

Secretary’s case in a slightly different context in Clintwood Elkhorn Mining Co., 32 FMSHRC 

1880, 1881 (Dec. 2010)(ALJ Gill), Fed. R. Civ. P. 52(c) allows the dismissal of a matter at the 

judge’s discretion when a party fails to prove a key element of their case. Fed. R. Civ. P. 52(c) 

provides: 

20 As noted above, it is undisputed that the cited standard does not require log out and tag 

out. 

21 Dowell does not recall seeing Blair or Cox at the power center. Tr. 201. Further, 

Dowell never saw DiLorenzo speak to Vennard, York or Simmons. Tr. 202. 

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If a party has been fully heard on an issue during a nonjury trial and the 

court finds against the party on that issue, the court may enter judgment 

against the party on a claim or defense that, under the controlling law, 

can be maintained or defeated only with a favorable finding on that 

issue. The court may, however, decline to render any judgment until the 

close of the evidence. A judgment on partial findings must be supported 

by findings of fact and conclusions of law as required by Rule 52(a).

 Thus, during a non-jury trial, Rule 52(c) authorizes the court to enter judgment at any 

time that it is appropriate to make a dispositive finding of fact on the evidence. In Clifford Meek 

v. Essroc Corporation, the Commission found that a ruling on a motion for involuntary dismissal 

under Rule 52(c) was at the judge’s discretion and found “no error by the judge and affirm[ed] his 

procedural determinations.” Clifford Meek v. Essroc Corporation, 15 FMSHRC 606, 614 (April 

1993). In Sec’y of Labor v. Martin County Coal Corporation and GEO /Environmental, the 

Commission found that a judgment on a partial finding was appropriate because the judge had 

heard the Secretary’s entire case. Sec’y of Labor v. Martin County Coal Corporation and 

GEO/Environmental, 28 FMSHRC 247 (May 2006). In addition, the Commission found in 

Martin County Coal that the judge does not need to address every point of evidence. Id. The 

judge must only include findings and conclusions on “material issues of fact [and] law.” Id., 

citing Fed. R. Civ. P. 52(c). 

 In this case, I heard all the evidence from both parties before finding at the close of the 

Respondent’s case that the Secretary failed to establish a violation of the cited standard by a 

preponderance of the evidence. As discussed below, the Secretary failed to prove the key factual 

elements for her case by a preponderance of the evidence. Specifically, the Secretary failed to 

establish that a repair was made on the belt structure when the power was on or when the belt was 

not blocked against motion. All credible evidence is to the contrary. 

I credit the testimony of Respondent’s witnesses that Vennard examined the spillage area, 

walked to the belt master, turned the power switch from “auto” to “off”, engaged the e-stop 

button, and then went to the power center and hit the e-stop for one of the drive motors. 

Although Vennard did not decouple the power cables or catheads at the power center, such 

method of compliance was unnecessary per the PPL since Vennard had already opened all circuit 

breakers for the affected machinery and turned the power switch off. In addition, Vennard 

instructed foreman York to go to the belt master until Vennard flagged him to turn the belt back 

on. Tr. 138-39, 143. I credit the testimony of Respondent’s witnesses that York never left the 

belt master until he disengaged the e-stop at the power center after being flagged by Vennard to 

restart the belt once the minor repair was completed. The Secretary made no specific argument as 

to how the belt was not blocked against motion and her sole witness conceded that a log out and 

tag out procedure was not required. Further, I credit Vennard’s testimony that the belt was 

effectively blocked against motion because the belt was loaded on a flat surface without incline 

and could not move with the circuits open and the power off. 

In short, I find that Respondent complied with 30 C.F.R. § 75.1725(c). Cf. Island Creek 

Coal Company, 22 FMSHRC 822 (2000). Accordingly, Order No. 8426631 is vacated. 

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ORDER 

For the reasons set forth in note 1 above, the joint motion to approve partial settlement in 

Docket No. Lake 2011-34 is APPROVED under the criteria set forth in Section 110(i) of the Act.

 Accordingly, Order No. 8429032 alleging a section 104(d)(1) unwarrantable failure to comply 

with 30 C.F.R. 75.361(a) is modified to a section 104(a) citation, with moderate negligence and a 

reduced penalty of $460, and Order No. 8429035 is modified to a section 104(d)(1) citation with a 

statutory minimum penalty of $2,000. 

Order No. 8426631 is VACATED. 

If it has not already done so, within 40 days of the date of this decision, Black Panther 

Mining, LLC is ORDERED to pay a total civil penalty of $2460 for the alleged violations that 

have been settled. Upon payment of that penalty, this proceeding is DISMISSED. 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

Distribution: (E-Mail and Certified Mail) 

Edward V. Hartman, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn 

Street, Room 844, Chicago, Illinois 60604 

Drew Miroff, Esq., Ice Miller, 1 American Square, Suite 2900, Indianapolis, Indiana 46282 

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ADMINISTRATIVE LAW JUDGE ORDERS
 

 

34 FMSHRC Page 517

 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

601 NEW JERSEY AVENUE, NW, SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9953 / FAX: 202-434-9949
 

February 15, 2012 

TODD DESCUTNER, : DISCRIMINATION PROCEEDING: 

Complainant, :

 : Docket No. WEST 2011-523-DM 

: WE MD 2010-18 

v. :

 : Mine: Leeville Mine 

: Mine ID: 26-02512 

NEWMONT USA LIMITED, :

Respondent. : 

RULING ON TIMELINESS OF COMPLAINT 

AND 

ORDER TO SHOW CAUSE 

This proceeding arises under section 105(c)(3) of the Federal Mine Safety and Health Act of 

l977, 30 U.S.C. § 815(c)(3). In the complaint, Todd Descutner alleges that he was unlawfully 

terminated from his job as a haul truck driver at Newmont USA Ltd’s (Newmont’s) Leeville Mine 

after “exercising [his] rights under the Mine Act.” Discrimination Complaint 2. To redress the 

alleged discrimination, Mr. Descutner asks for several remedies: The expungement of his work 

record, payment of back pay, payment of a pension, and damages due to the “pain and suffering.” 

Letter of Todd Descutner (January 13, 2011). 

After the matter was assigned to the court, Newmont filed an Amended Answer.1 In its 

Amended Answer Newmont denied the court’s jurisdiction asserting that “the complaint was not 

timely brought.” Newmont’s Amended Answer (November 22, 2011) at 2. In addition, Newmont 

denied that it discriminated against Mr. Descutner when it terminated him on or about June 9, 2010. 

Rather, the company claimed it “terminated [Mr.] Descutner for insubordination and for damaging 

equipment” and that the basis for Mr. Descutner’s termination was “unrelated to any alleged 

protected activity.” Id. 

Following the receipt of the Amended Answer, the court issued an order requesting that the 

parties submit additional information. The court stated: 

To rule on Newmont’s claim that the Commission is 

barred from entertaining the case because 

1

 On September 6, 2011, prior to the matter being assigned, Newmont filed a limited 

answer to Mr. Descutner’s complaint in which it denied “any and all claims of discrimination” 

made by Mr. Descutner. Respondent Newmont USA Limited’s Answer to Petitioner’s 

Discrimination Complaint (September 6, 2011) at 1.

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[Mr. Descutner’s complaint] was late filed, the court 

requires additional information. 

Mr. Descutner shall provide the court in writing 

with an explanation as to why his complaint with 

MSHA was not filed within the 60 days required by 

the statute. . . In other words, Mr. Descutner shall 

state the circumstances, if any, which justify why 

his complaint was late. 

Newmont shall provide the court with a written 

explanation as to the “material legal prejudice” it 

will suffer – assuming there is any – if Mr. 

Descutner’s claim goes forward. 

Order (December 2, 2011) at 2. 

After several delays, Mr. Descutner responded to the order by essentially claiming ignorance 

of the statute’s timeliness requirements and by citing his reliance on advice from unnamed officials of 

the Mine Safety and Health Administration (MSHA). Mr. Descutner stated: 

I was delayed . . . because no one ever told me 

how to go about protesting my termination. 

The union representative informed me there 

was no next step, so I had to do the whole case 

by myself until MSHA stepped in. I finally 

got in touch with MSHA and they let me know 

how to file a complaint. This was after months 

of trying to get my case heard by someone. I 

did speak with MSHA and they assured me my 

case was filed within the allotted times. I have 

done everything MSHA has asked of me. 

Letter of Todd Descutner to Administrative Law Judge David Barbour 

(January 26, 2012). 

For its part Newmont stated that, “To the extent Newmont has suffered any legal prejudice, it 

is limited to the potential fading of memories of witnesses.” Response to Order to Provide Additional 

Information (December 19, 2011) at 2-3. The company also noted that its in-house counsel who 

represented the company during MSHA’s special investigation of Mr. Descutner’s complaint to the 

agency had left the company. 

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TIMELINESS OF THE COMPLAINT 

The court finds that neither of the circumstances cited by the company are sufficient to defeat 

Mr. Descutner’s complaint. First, while it is true that memories of potential witnesses fade with time, 

Mr. Descutner’s complaint was filed at most 52 days late (see Order 2) and this hardly constitutes a 

delay that can be presumed to cause prejudicially faded memories. Moreover, the departure of its 

in-house counsel during or following the conclusion of MSHA’s investigation is not in itself 

prejudicial. Counsel presumably left his work product with the company, including his notes and/or 

recordings of his or others’ interviews of those with knowledge of the facts surrounding Mr. 

Descutner’s termination. Further, the company does not claim its former in-house counsel is 

unavailable for consultation if the case goes forward. 

Newmont also challenges Mr. Descutner’s excuse for his late filing. The company notes that 

it provided Mr. Descutner with training in miners rights and responsibilities, including the right to 

file a discrimination complaint with MSHA within 60 days of an alleged adverse action and that this 

training was most recently given to Mr. Descutner approximately six months prior to his discharge. 

Response to Order 3. It further notes that at that time Mr. Descutner was given a copy of MSHA’s 

pamphlet on miners’ rights, a publication that contains the Act’s timeliness requirements. Id. 

Although the court accepts all of Newmont’s assertions as true, it none the less finds that Mr. 

Descutner has established “justifiable circumstances” for the late filing of his complaint. In reaching 

this conclusion the court is especially mindful that Mr. Descutner is representing himself. Therefore, 

in the court’s view, the showing that Mr. Descutner needs to make to go forward is modest. Pro se 

litigants in Mine Act discrimination cases are frequently not learned in the Act and the rights it 

affords even in the face of required training, and the Commission has been loath to bar such persons 

from litigating when they have misapprehended applicable procedures or misunderstood the Act’s 

requirements. This is especially so since Mr. Descutner’s delay in filing was not lengthy. As 

Commission Administrative Law Judge Michael Lasher observed, “The 60-day statutory limitation is 

not a particularly long filing period in view of the lack of sophistication of the average Complainant 

and the complexity of some of the legal bases for bringing a discrimination action.” John C. Gross v. 

Leeco, Inc., 7 FMSHRC 219, 229 (February 1985) Further, while Judge Lasher also noted that, 

“[T]he placement of limitations on the time-periods during which a plaintiff may institute legal 

proceedings is primarily designed to assure fairness to the opposing party by preventing surprises 

through the revival of claims that have been allowed to slumber until evidence has been lost, 

memories have faded and witnesses have disappeared,” the court concludes that Newmont has not 

established that such factors are at issue here. For these reasons the court finds that Mr. Descutner’s 

complaint is not barred for untimeliness. 

SUFFICIENCY OF THE COMPLAINT 

The court’s finding that the complaint is not barred for untimeliness does not end the matter. 

There is still the issue of the complaint’s adequacy. 

In its Order the court observed that the complaint was lacking in necessary specifics. In the 

complaint he filed with MSHA, Mr. Descutner claimed that he “was terminated after exercising [his] 

rights under the Mine Act. Complaint to MSHA 4. In the complaint he filed with the Commission, 

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Mr. Descutner stated that “beyond the shadow of doubt” he was certain “that [his] rights under 

[section] 105 © were violated.” Complaint. Finding that Newmont and the court were “left to guess 

as to what [Mr. Descutner was] referring,” the court ordered Mr. Descutner to state how and when his 

rights were exercised and why he believed his termination was related to the exercise of those rights. 

Oder 2-3. The court summed up its order by stating, “In other words, [Mr. Descutner] must provide 

the court with a reasonably complete account of what . . . [he] believes happened and why.” Id. 3. 

The court’s order was issued on December 2, 2011, and Mr. Descutner was required to 

comply within 15 days of the order. He did not, and he still has not. He has submitted nothing to the 

court to amplify and make meaningful his contention that he “was terminated for exercising [his] 

rights under the Mine Act.” Complaint to MSHA at 4. 

The court recognizes that leeway in pleading that is traditionally given to pro se 

complainants. See e.g. Clyde Perry v. Phelps Dodge Morenci, Inc., 18 FMSHRC 1918, 1920 

(November, 1996). However, the requirement of Commission Rule 42 that a complaint contain “a 

short and plain statement of the facts setting forth the alleged . . . discrimination” is there for a 

reason. 29 C.F.R. § 2700.42. The Respondent can hardly make meaningful trial preparations if it is 

left to guess at the facts the Complainant is alleging. In addition, the court can not judge the legal 

sufficiency of the complaint in a vacuum. 

Because Mr. Descutner has failed to comply with the court’s order with regard to 

supplementing his complaint, he is ORDERED TO SHOW CAUSE within 15 days of the date of 

this order why his complaint should not be dismissed. 

/s/ David Barbour 

David Barbour 

Administrative Law Judge 

Distribution: (Certified Mail) 

Karen L. Johnston, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202 

Todd Descutner, 399 Parkchester Drive, Apartment B, Spring Creek, NV 89815 

/sa 

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34 FMSHRC Page 521

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

601 NEW JERSEY AVENUE, NW, SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949
 

February 28, 2012 

SECRETARY OF LABOR, MINE : CIVIL PENALTY PROCEEDING 

SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. LAKE 2009-35 

Petitioner : A.C. No. 11-02752-164722 

:

v. :

 :

THE AMERICAN COAL COMPANY, : Mine: Galatia Mine 

Respondent :

 : 

Appearances:	 Travis W. Gosselin, Esq., Office of the Solicitor, U.S. Department of 

Labor, Chicago, Illinois, for Petitioner 

Jason W. Hardin, Esq., and Mark E. Kittrell, Esq., Salt Lake City, Utah, 

for Respondent 

Before: Judge McCarthy 

STAY ORDER 

This case is before me on a petition for assessment of civil penalties filed by the 

Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration 

(“MSHA”), against American Coal Company, Inc. (“American Coal” or “Respondent”), 

pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§§ 815 and 820 (the “Mine Act”). 

This case involves two section 104(d)(2) orders issued to Respondent, American Coal 

Company ("American Coal"), for alleged violations of 30 C.F.R. 75.400 concerning float coal 

dust and loose coal accumulations. Both orders were assessed as “repeated” “flagrant” penalties. 

A hearing was held on August 23-24, 2011 in Evansville, Indiana. The parties introduced 

testimony and documentary evidence, and witnesses were sequestered. On October 19, 2011, 

the parties filed a Joint Motion for Extension of Time to File Post-Trial Briefs. I granted an 

extension of the briefing period until November 18, 2011. Thereafter, Reply Briefs were filed 

by the parties on December 2, 2011. 

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Recently, during the drafting of my decision, the Commission granted interlocutory 

review on the issue of whether a violation not deemed attributable to reckless conduct may be 

deemed flagrant under 30 U.S.C. § 820(b)(2) based on the operator’s history of prior similar 

violations. See Secretary of Labor v. Conshur Mining, LLC, Docket Nos. KENT 2008-562 and 

KENT 2008-762, Order dated February 15, 2012 (Attachment A). The instant matter presents 

the same issue of first impression, i.e., what is meant by a “repeated” “flagrant” violation. 

Accordingly, I conclude that it is not an efficient use of judicial resources to decide this matter at 

this time. Rather, I deem it prudent to stay this matter for six months or until the Commission 

decides Conshur Mining, whichever occurs sooner. At that time, I will revisit the stay or ask the 

parties to address whether a supplemental hearing or additional briefing is warranted in light of 

any Commission decision in Conshur Mining. 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

Distribution: (E-Mail and Certified Mail) 

Travis W. Gosselin, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn 

Street, Room 844, Chicago, Illinois, 60604 

Jason W. Hardin, Esq., and Mark E. Kittrell, Esq., Fabian & Clendenin, 215 South State Street, 

Salt Lake City, Utah, 84111 

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Attachment A 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

February 15, 2012 

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : 

: 

v. : Docket No. KENT 2008-562 

: Docket No. KENT 2008-782 

CONSHOR MINING, LLC : 

: 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006). On January 19, 2012, Administrative Law Judge Jerold Feldman issued a 

Certification of Interlocutory Ruling pursuant to Commission Procedural Rule 76, 29 C.F.R. 

§ 2700.76(a)(1)(i). In his order, the judge certified for interlocutory review by the Commission 

his ruling in his Order of November 28, 2011, that a violation that is not attributable to reckless 

conduct may not be deemed flagrant under 30 U.S.C. § 820(b)(2) based on the operator’s history 

of prior similar violations. Unpublished Order at 2-3 (Jan. 19, 2012). 

Commission Rule 76(a) provides that interlocutory review is a matter of sound discretion 

of the Commission, and that the Commission may grant interlocutory review upon a 

determination that the judge’s interlocutory ruling involves a controlling question of law and 

immediate review will materially advance the final disposition of the proceeding. 29 C.F.R. 

§ 2700.76(a). 

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Upon consideration of the judge’s certification, we hereby grant review of the judge’s 

order of November 28, 2011, with regard to the issue of whether a violation not deemed 

attributable to reckless conduct may be deemed flagrant under 30 U.S.C. § 820(b)(2) based on 

the operator’s history of prior similar violations. Conshor Mining, LLC and the Secretary of 

Labor are hereby ordered to file initial briefs on or before 30 days from the date of this order. 

Response briefs by both parties will be due 30 days following service of the last initial brief. 

Initial briefs shall not exceed 35 pages; response briefs shall not exceed 25 pages. Reply briefs 

will not be filed. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman
 

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner
 

/s/Michael G. Young 

Michael G. Young, Commissioner
 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner
 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner
 

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Distribution 

Jonathan R. Ellis, Esq. 

Steptoe & Johnson, PLLC 

Eighth Floor, Bank One Center 

P.O. Box 1588 

Charleston, WV 25326-1588 

Jeffrey K. Phillips, Esq. 

Steptoe & Johnson, PLLC 

1010 Monarch Street, Suite 250 

Lexington, KY 40591-0810 

Christian P. Barber, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

618 Church Street, Suite 230 

Nashville, TN 37219-2456 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Administrative Law Judge Jerold Feldman 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges
 

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

Washington, D.C. 20001
 

February 29, 2012
 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Docket No. CENT 2011-1193 

Petitioner, : A.C. No. 34-02105-262625 

: 

v. : 

: 

SPIRO MINING, LLC, : 

Respondent. : Mine: Calder Mine 

ORDER DENYING RECONSIDERATION 

ORDER DENYING RESPONDENT’S MOTION FOR CERTIFICATION OF 12/21/2011 

INTERLOCUTORY RULING 

This case is before me upon the Secretary’s Petition for the Assessment of Civil Penalty 

(“Petition”) pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine 

Act”), 30 U.S.C. § 815 (2010), whereby Spiro contests the proposed civil penalty and underlying 

violation issued to it at its Calder Mine. On December 22, 2011, I issued my Order Denying 

Respondent’s Motions to Dismiss (“Denial Order”), and I subsequently issued my Prehearing 

Order on December 23, 2011. 

After the issuance of these orders, Spiro filed its Motion for Consideration with attached 

Letter-Motion Seeking Reassurance or Recusal in MSHA v. Spiro Mining, LLC, CENT 2011-

1193 (collectively, “Motion for Consideration”).1 Spiro seeks my recusal from this matter, or 

alternatively, reconsideration of the Denial Order and reassurance of my impartiality. (Mot. 

Cons. 3.) The Secretary responded to Spiro’s Motion for Consideration, and Spiro filed a reply 

to the Secretary’s response. 

Additionally, Spiro filed a Motion for Certification of 12/22/2011 Interlocutory Ruling 

(“Motion for Certification”) seeking my certification for interlocutory review by the 

Commission of several issues related to the Denial Order. The Secretary responded to Spiro’s 

Motion for Certification, and Spiro filed a reply to the Secretary’s response. 

1

 This Order uses the following abbreviations in citations: Spiro’s Motions to Dismiss 

Action for Failure to State a Claim and for Lack of MSHA Jurisdiction is abbreviated as “Mots. 

Dismiss”; Spiro’s Letter-Motion Seeking Reassurance or Recusal in MSHA v. Spiro Mining, 

LLC, CENT 2011-1193, is abbreviated as “Mot. Cons.”; and Spiro’s Motion for Certification of 

12/22/2011 Interlocutory Ruling is abbreviated as “Mot. for Certification.” 

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As set forth below, both of Spiro’s motions are hereby DENIED. 

I. Respondent’s Motion for Consideration 

Spiro seeks reconsideration of my Denial Order, contending that I improperly dismissed 

its arguments (1) that the Secretary lacks subject matter jurisdiction in this case and (2) that the 

Secretary has failed to state a claim. (Mot. Cons. 2–3.) My Denial Order construed Spiro’s 

requests as a motion for summary decision under Commission Rule 67, as the Commission’s 

Rules do not provide a procedure analogous to Federal Rule of Civil Procedure 12. Spiro 

Mining, LLC, 34 FMSHRC __, slip op. at 1–3, No. CENT 2011-1193 (Dec. 22, 2011) (ALJ). 

The Commission “‘has long recognized that [] ‘summary decision is an extraordinary 

procedure,’’ and has analogized it to Rule 56 of the Federal Rules of Civil Procedure, under 

which ‘the Supreme Court has indicated that summary judgment is authorized only ‘upon proper 

showings of the lack of a genuine, triable issue of material fact.’’” Hanson Aggregates New 

York, Inc., 29 FMSHRC 4, 9 (Jan. 2007) (quoting Energy West Mining Co., 16 FMSHRC 1414, 

1419 (July 1994)). In reviewing the record on summary judgment, the Court must evaluate the 

evidence in “‘the light most favorable to . . . the party opposing the motion.’” Hanson 

Aggregates, 29 FMSHRC at 9 (quoting Poller v. Columbia Broad. Sys., 368 U.S. 464, 473 

(1962)). Any inferences “‘drawn from the underlying facts contained in [the] materials 

[supporting the motion] must be viewed in the light most favorable to the party opposing the 

motion.’” Hanson Aggregates, 29 FMSHRC at 9 (quoting United States v. Diebold, Inc., 369 

U.S. 654, 655 (1962)). 

A. Jurisdiction 

My Denial Order interpreted Spiro’s argument that “FMSHRC/MSHA and Mine Act 

jurisdiction lacks in cases, such as this, where at the citation’s issuance Calder Mine’s initial 

‘operations’ had not ever yet ‘produced products’ or ‘affected MSHA/interstate commerce’” 

(Mots. Dismiss 1) as contesting whether the Calder Mine is a “mine” under the Mine Act, Spiro, 

34 FMSHRC __, slip op. at 2–3. In its Motion for Consideration, Spiro now clarifies that it 

“never argued its business should not be considered . . . a ‘coal or other mine’ per Section 3 of 

the Mine Act.” (Mot. Cons. 2.) Rather, Spiro argues that the Secretary lacks jurisdiction 

because its Calder Mine has not affected interstate commerce. (Id.) 

Section 4 of the Mine Act states: “Each coal or other mine, the products of which enter 

commerce, or the operations or products of which affect commerce, and each operator of such 

mine, and every miner in such mine shall be subject to the provisions of this chapter.” 30 U.S.C. 

§ 803. It is well-established that the language of Section 4 demonstrates Congress’s intent to 

exercise its full authority under the Commerce Clause to regulate the mining industry. D.A.S. 

Sand & Gravel, Inc. v. Chao, 386 F.3d 460, 462–63 (2d Cir. 2004), cert. denied, 544 U.S. 1048 

(2005); United States v. Lake, 985 F.2d 265, 267–68 (6th Cir. 1993); Marshall v. Kraynak, 604 

F.2d 231, 232 (3d Cir. 1979), cert. denied, 444 U.S. 1014 (1980). Accordingly, the Mine Act 

has been held to apply to operations that sell their products even on a purely intrastate basis. 

D.A.S. Sand & Gravel, 386 F.3d at 463–64. Such operations may engage in activity affecting 

interstate commerce through purchasing mining supplies from a local dealer or consuming 

commercially produced electricity. Lake, 985 F.2d at 269. 

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Spiro’s Motion for Consideration contends that “a good faith argument may still exist to 

be made and heard in these regards for an extension, modification, or reversal of existing law.” 

(Mot. Cons. 2.) Spiro has yet to reveal the details of its good faith argument. Other than 

referencing the Mine Act, Spiro does not offer any legal citations or concrete factual support for 

its position, such as affidavits or other documentation. Consequently, Spiro has failed to 

demonstrate the absence of a genuine issue of material fact on the question of jurisdiction. 

Nonetheless, Spiro is welcome to introduce any legal arguments or evidence supporting its 

position at a hearing on this matter. 

B. Secretary’s Statement of a Claim 

Spiro also contends that my Denial Order improperly concludes that the Secretary has 

stated a proper claim. (Mot. Cons. 2–3.) As noted above, Spiro’s motion to dismiss for failure 

to state a claim was treated as a motion for summary decision. The Secretary’s citation narrative 

states verbatim: 

While I was issuing a citation to the Contractor for working men in the face of an 

order, Jon Marusich, drove up in his pickup and bumped me in the hip with his 

left front headlight. This was witnessed by two Spiro Mining, LLC, employees. 

Also another MSHA Inspector witnessed this act. This incident happened at the 

north end of the mining area on the north side of the sediment pond. 

(Petition, Ex. A.) My Denial Order summarized the content of MSHA’s Program Policy 

Manual, as well as related Commission precedent, which unambiguously emphasizes the 

seriousness and illegality of interfering with an MSHA inspector. Spiro, 34 FMSHRC __, slip 

op. at 3–4. The Order concluded that based on the record of this case, the Secretary had alleged 

interference with her duty to inspect the Nation’s mines. Id. at 4. Because Spiro failed to 

demonstrate the absence of a justiciable issue of fact, Spiro’s request for dismissal was denied. 

Id. 

As with its jurisdictional argument, Spiro’s Motion for Consideration does not cite legal 

authorities or offer factual information supporting its request for reconsideration.2 Rather, Spiro 

explains that “the way the Order infers and determines that an allegation of potential interference 

exists when that was not, but perhaps should have been, pled is of most concern to my client.” 

(Mot. Cons. 2 (emphasis in original).) Spiro argues that “a four corners reading of MSHA’s 

pleading and citation can support many diverse scenarios” and creatively suggests a few nonviolative conclusions that could be drawn from the citation narrative. (Id.) 

2

 Spiro’s argument that the Secretary failed to state a claim by not citing to a section of 

the Code of Federal Regulations may be dismissed summarily. (Mot. Cons. 2.) The Secretary is 

authorized to cite violations of the Mine Act itself in addition to any violations of regulations 

promulgated under the Mine Act. 30 U.S.C. § 814(a). As discussed in the Denial Order, the 

plain text of the citation alleges a violation of section 103(a) of the Mine Act. Spiro, 

34 FMSHRC __, slip op. at 3–4. 

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Here, Spiro overlooks the fundamental rule that in deciding any motion for summary 

decision this Court must evaluate the evidence, and any inferences that may be drawn from that 

evidence, in the light most favorable to the non-moving party. Unfortunately, Spiro offers only 

mere assertions in support of its position. Therefore, in evaluating the record of this case in the 

light most favorable to the Secretary, I must conclude that Spiro has not demonstrated an 

absence of a genuine issue of fact with regard to this citation. Of course, my conclusion does not 

deny Spiro the opportunity to prove its side of this case. Spiro may certainly introduce any legal 

arguments or evidence supporting its position at a hearing on this matter. 

C. Recusal 

The final issue raised by Spiro’s Motion for Consideration is my impartiality. Spiro 

takes issue with the Denial Order’s rejection of its arguments as “meritless” and my citation to 

Commission Rule 80 governing the standards of conduct in Commission proceedings.3 (Mot. 

Cons. 1–3.) Spiro also objects to my Denial Order’s citation to the procedural history of three 

dockets pending before Judge Andrews. (Id. at 1.) Spiro further suggests that the Denial 

Order’s analysis of the Secretary’s claim reveals judicial bias: “[T]he way the Order infers and 

determines that an allegation of potential interference exists . . . may indicate potential judicial 

bias existing in this case to predispose the tribunal’s rulings towards the government’s 

perspectives and away from fair considerations of Respondent’s positions that deserve equal, 

even-handed treatment.” (Mot. Cons. 2.) 

As for the role of the Administrative Law Judge, the Commission has stated: 

[A] judge is an active participant in the adjudicatory process and has a duty to 

conduct proceedings in an orderly manner so as to elicit the truth and obtain a just 

result. Among a judge’s specific obligations in this regard is a duty to admonish 

counsel, when necessary, during the course of proceedings . . . . 

Sec’y of Labor ex rel. Clarke v. T.P. Mining, Inc., 7 FMSHRC 989, 993 (July 1985) (citations 

omitted). The Commission has reviewed the question of whether an Administrative Law Judge 

properly decided not to recuse himself from a case in the face of accusations of bias for rebuking 

the Respondent’s counsel during the trial in a prior, unrelated proceeding. Medusa Cement Co., 

20 FMSHRC 144 (Feb. 1998). In Medusa Cement, the Commission found guidance in the 

Supreme Court’s decision Liteky v. United States, 510 U.S. 540 (1994). 20 FMSHRC at 148–49. 

In Liteky, the Court stated: 

First, judicial rulings alone almost never constitute a valid basis for a bias or 

partiality motion. . . . Almost invariably, they are proper grounds for appeal, not 

for recusal. Second, opinions formed by the judge on the basis of facts introduced 

or events occurring in the course of . . . current proceedings . . . do not constitute a 

basis for a bias or partiality motion unless they display a deep-seated favoritism 

3

 Spiro also objected to my Prehearing Order’s request that the Secretary’s counsel report 

the status of settlement negotiations and discovery to my Law Clerk, and it requested a joint 

status conference call. (Mot. Cons. 3.) On January 25, 2012, I issued an Amended Prehearing 

Order granting Spiro’s request. 

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or antagonism that would make a fair judgment impossible. . . . Not establishing 

bias or partiality, however, are expressions of impatience, dissatisfaction, 

annoyance, and even anger, that are within the bounds of what imperfect men and 

women, even after having been confirmed as federal judges, sometimes display. 

510 U.S. at 555–56 (citation omitted). 

As noted above, my Denial Order summarized and applied the law pertaining to Spiro’s 

arguments. Noting the dearth of legal or factual support in Spiro’s pleadings, the Denial Order 

concluded that Spiro’s arguments lacked merit. Spiro may certainly ask the Commission to 

review this decision. However, a run-of-the-mill denial of a request for summary decision is not 

a proper ground for recusal. 

My Denial Order also noted the Secretary’s citation to Judge Andrews’s Order Denying 

Respondent’s Motions to Dismiss for Failure to State a Claim, for Default Order and Dismissal 

Order, to Dismiss Multi-Defaulted Civil Penalty Petition and for “Judicial” Notice of Chronic 

Pattern of Lateness and Request for Dismissal (“Multi-Denial Order”) in CENT 2011-554, 

CENT 2011-563, and CENT 2011-610. Spiro, 34 FMSHRC __, slip op. at 4 n.1. My Denial 

Order further noted the Secretary’s citations to Judge Andrews’s denial of Spiro’s request for 

certification of interlocutory review and the Commission’s denials of Spiro’s Petition for 

Interlocutory Review and Petition for Reconsideration. Id. In the Motion for Consideration 

before me, Spiro explains that the decisions in Judge Andrews’s case following the Multi-Denial 

Order involved an issue different from the ones in this case. (Mot. Cons. 1.) 

With over 15,000 cases pending in the Commission’s Office of Administrative Law 

Judges and approximately 500 cases on my docket alone, my Denial Order sought to encourage 

Spiro to conserve the limited sources of this Commission by substantiating its positions with 

factual submissions and the discussion of relevant legal authorities. Unfortunately, the six 

pleadings submitted by the parties since the issuance of my Denial Order continue to raise a lot 

of sound and fury signifying nothing.4 Indeed, Spiro fails to advance its cause by not producing 

any evidence that would support the actions it wants this Court to take. Rather, Spiro attempts to 

cast doubt on the Court’s impartiality instead of accepting that it failed to meet its burden to 

prevail in its pretrial motions. This Court will not shirk from its responsibility to follow the law 

or to educate counsel on the law. Moreover, admonishing counsel not to waste this Court’s time 

with hollow arguments is a proper function of the Administrative Law Judge and not a reason for 

recusal. 

WHEREFORE, based on the foregoing, Spiro’s Motion for Consideration is DENIED. 

4

 Indeed, counsel for both parties spill a great deal of ink over whether they properly 

attempted to resolve their disagreements prior to filing their pleadings with me pursuant to 

Commission Rule 10. 29 C.F.R. § 2700.10. This ancillary issue is not germane to the 

substantive legal questions posed by Spiro. Both parties’ counsel are strongly encouraged to 

resolve such disagreements with each other instead of seeking the Court’s assistance. 

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II. Respondent’s Motion for Certification 

Spiro seeks certification for interlocutory review of the denial of its Motions to Dismiss, 

as well as the Commission’s review of its concerns of judicial bias. (Mot. for Certification.) 

Commission Rule 76 permits the Commission’s discretionary review of interlocutory 

Administrative Law Judge decisions. 29 C.F.R. § 2700.76. Review may be granted where “[t]he 

Judge has certified, upon his own motion or the motion of a party, that his interlocutory ruling 

involves a controlling question of law and that in his opinion immediate review will materially 

advance the final disposition of the proceeding.” Id. § 2700.76(a)(1)(i). 

The issues raised by Spiro involve controlling questions of law, as a decision in its favor 

may result in the dismissal of this case. However, other than general citations to the Mine Act 

and the Supreme Court decision United States v. Lopez, 514 U.S. 549 (1995), which did not 

concern the Mine Act, Spiro offers no concrete factual or legal support revealing the substance 

of its arguments. Indeed, as noted supra p. 2, the Supreme Court has twice denied certiorari in 

appeals from circuit court decisions passing upon the breadth of the Secretary’s subject matter 

jurisdiction under the Mine Act and the Commerce Clause. With no cognizable evidence 

demonstrating that the Commission would reach a different decision than the Denial Order, 

Spiro has failed to show that immediate review by the Commission would advance the final 

disposition of this proceeding. 

WHEREFORE, based on the foregoing, Spiro’s Motion for Certification is DENIED. 

/s/ Alan G. Paez 

Alan G. Paez 

Administrative Law Judge 

Distribution: 

Matthew P. Sallusti, Esq., U.S. Department of Labor, Office of the Solicitor, 525 South Griffin 

Street, Suite 501, Dallas, TX 75202 

Tony Joe Huffman, Esq., T.J. Huffman, Attorney at Law, P.O. Box 453, Spiro, OK 74959 

/jts 

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