SEPTEMBER AND OCTOBER 2009 

COMMISSION DECISIONS AND ORDERS 

09-09-2009 Peter J. Phillips v. A & S Construction Co. WEST 2008-1057-DM Pg. 975 

09-14-2009 Hanson Aggregates Midwest, Inc. KENT 2009-376-M Pg. 1006 

09-14-2009 Heritage Coal & Natural Resources, LLC. YORK.2009-143 Pg.1009 

09-17-2009 Barrick Goldstrike Mines, Inc. WEST 2009-932-M Pg. 1013 

09-20-2009 Pitlick & Wick, Inc. LAKE 2008-345-M Pg. 1016 

09-23-2009 Darby Sanders, formerly employed by 

Natural Materials, LLC. CENT 2009-420-M Pg. 1022 

09-23-2009 Luminant Mining Company, LLC. CENT 2009-155 Pg. 1026 .. 

09-23-2009 Bucyrus Field Services, fuc. CENT 2009-433 Pg.1039 

09-24-2009 August Winter & Sons, Inc. LAKE 2009-447-M Pg. 1032 

09-24-2009 Old Dominion Energy, fuc. VA 2009-270 Pg. 1036 

09-29-2009 A Mining Group, LLC. SE 2009-505-M Pg. 1040 

09-30-2009 Northern Lakes Concrete fuc. LAKE 2009-349-M Pg. 1043 

09-30-2009 The Banner Company, LLC. VA 2009-90 Pg. 1046 

10-08-2009 Sec. Labor o/b/o Robert Gatlin v. 

KenAmerican Resources, Inc. KENT 2009-1418-D Pg. 1050 

10-08-2009 Clean Energy Mining Company KENT 2009--925 .Pg. 1058 

10-08-2009 Taft Production Company WEST 2009-567-M ·,. Pg. 1061 

10-08-2009 Knife River WEST 2009-1083-M Pg. 1064 

10-13-2009 Riverton Investment Corporation WEVA 2008-1449-M Pg. 1067 

10-08-2009 Big River Mining, LLC. WEV A 2009-1669 Pg. 1070 

10-13-2009 KenAmerican Resources, fuc. KENT 2009-1060 Pg. 1074 

10-13-2009 Knox Creek Coal Corporation VA 2009-354 Pg.1078 

10-13-2009 Jacob Mining Company, LLC. WEV A 2009-1348 Pg. 1081 

10-22-2009 Sec. Labor o/b/o Lige Williamson v. 

CAM Mining, LLC. KENT 2009-1428-D Pg. 1085 

10-22-2009 Holcim (US), Inc. SE 2009-472-M Pg. 1094 

10-22-2009 Westside Trucking WEST 2009-650-M Pg. 1097 

10-26-2009 National Cement Co. Of California WEST 2004-182-RM Pg. 1100 

10-28-2009 Oldcastle Stone Products SE 2009-173-M Pg. 1103 

10-28-2009 B & H Transfer Company SE 2009-802-M Pg. 1107 

10-29-2009 Cessford Construction Company CENT 2009-787-M Pg. 1110 

10-30-2009 Liggett Mining, LLC KENT 2010-1 Pg. 1113 

10-30-2009 Hoover, fuc. SE 2009-600-M Pg. 1117 

10-30-2009 Moltan Company SE 2009-601-M Pg. 1120 

10-30-2009 Consolidation Coal Company VA 2009-314 Pg. 1123 

10-30-2009 U.S. Silver-Idaho, Inc. WEST 2009-1216 Pg. 1127 

10-30-2009 Pine Ridge Coal Company, LLC. WEVA 2009-1592 Pg. 1131 

i 

ADMINISTRATIVE LAW JUDGE DECISIONS 

09-04-2009 Sec. Labor o/b/o Charles Scott Howard v. 

Cumberland River Coal Co., Inc. 

09-08-2009 North Fork Coal Corporation 

09-09-2009 Cumberland Coal Resources, LP 

09-17-2009 Sec. Labor o/b/o Mark Gray v. 

North Fork Coal Corporation 

09-19-2009 Weatherton Contracting Co., Inc. 

09-24-2009 Nichols Construction, Inc. 

09-30-2009 Jayson Turner v. National Cement Co. 

· Of California 

09-30-2009 Sec. Labor o/b/o Lige Williamson v. 

CAM Mining, LLC. 

10-08-2009 Sidney Coal Company 

10-08-2009 Jim Walter Resources, Inc. 

10-16-2009 Mountain Coal Company, LLC. 

10-26-2009 Abundance Coal, Inc. 

10-29-2009 Johnson Paving Company, et al. 

10-26-2009 Sec. Labor o/b/o Lige_ Williamson v. 

CAM·Mining, LLC~ (on remand) 

ADMINISTRATIVE LAW JUDGE ORDERS 

09-01-2009 SCP Investments, LLC. 

09-10-2009 Billy Brannon v. Panther Mining, Inc. 

ii 

KENT 2009-1427-D 

KENT 2009-1429-D 

PENN 2009-189 

KENT 2009-1429-D 

CENT 2008-153-M 

VA 2007-17-R 

WEST 2006-568-DM · 

KENT 2009-1428-D 

KENT 2007-217-R 

SE 2007-264 

WEST 2007-409-R 

KENT 2010-5-R 

SE 2007-128-M 

KENT 2009-1428-D 

SE 2006-148-M 

KENT 2009-302-D 

Pg. 1135 

Pg. 1143 

Pg. 1147 

Pg. 1167 

Pg. 1169 

Pg. 1172 

Pg. 1179 

Pg. 1187 

Pg. 1197 

Pg. 1208 

Pg. 1220 

Pg. 1241 

Pg. 1246 

Pg. 1270 

Pg. 1273 

Pg. 1277 

CO:MMISSION DEOSIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

PETER J. PHILLIPS 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

September 9, 20009 

Docket No. WEST 2008-1057-DM 

A&S CONSTRUCTION COMPANY 

BEFORE: Jordan, Chairman; Duffy, Y olIDg, and Cohen, Commissioners 

DECISION 

BY THE COMMISSION: 

This temporary reinstatement proceeding arises under the Federal Mine Safety and Health. 

Act of 1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act" or "Act"). The case raises the question 

of whether an order of temporary reinstatement remains in effect after the Secretary of Labor has 

made a determination that facts revealed from an investigation by the Mine Safety and Health 

Administration ("MSHA") regarding a miner's discrimination complaint do not constitute a 

violation of section 105( c) of the Act. 1 Administrative Law Judge David Barbour concluded that 

1 Section 105( c) provides in part: 

(c)(l) 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 tights of any miner ... because such miner ... has 

filed or made a complaint lll.der or related to this Act .... 

(2) 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 he deems appropriate. Such investigation shall 

commence within 15 days of the Secretary's receipt of the complaint, and ifthe 

Secretary finds that such complaint was not frivolously brought, the Commission, 

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

31FMSHRC975 
such an order does not remain in effect after MSHA's determination that no discrimination 

occurred. Accordingly, he dissolved his earlier order temporanly reinstating Peter J. Phillips, an 

employee of A&S Construction Company ("A&S"), and dismissed the temporary reinstatement 

proceeding. 30 FMSHRC 1119, 1123 (Nov. 2008) (ALJ). Mr. Phillips filed a petition for 

discretionary review, challenging the judge's determination, which the Commission granted. For 

the reasons that follow, the judge's determination stands as if affirmed. 

I. 

Factual and Procedural Background 

No factual record has been developed in this case. The procedural background of the case,· 

is set forth in the judge's decision and is briefly summarized here. Mr. Phillips was discharged 

by A&S on September 13, 2007. Id. at 1119. On February 11, 2008, Mr. Phillips filed a 

reinstatement of the miner pending final order on the complaint. If upon such 

investigation, the-Secretary determines that the provisions of this subsection have 

been violated, 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. The Commission 

. shall afford ·mi opportunity for a heanng . . . and thereafter shall issue an order, .·" 

based upon findings of fact, affirming, modifying, or vacating the Secretary's 

proposed order, or directing other appropriate relief. Such order shall become 

final 30 days after its issuance. The Commission shall have authority in such 

proceedings to require a person committing a violation ofthis subsection to take 

such affirmative action to abate the violation as the Commission deems 

appropriate, including, but not limited to, the rehiring or reinstatement of the 

miner to his former position with back pay and interest. ... 

(3) Within 90 days of the receipt of a complaint filed under paragraph (2), 

the Secretary shall notify, in writing, the miner ... of his determination whether a 

violation has occurred. If the Secretary, upon investigation, determines that the 

provisions of this subsection have not been violated, the complainant shall have 

the right, within 30 days notice of the Secretary's determination, to file an action 

in his own behalf before the Commission, charging discrimination or interference 

in violation of paragraph (1 ). The Commission shall afford an opportunity for a 

hearing . . . and thereafter shall issue an order, based upon findings of fact, 

dismissing or sustaining the complainant's charges and, ifthe charges are 

sustained, granting such relief as it deems appropriate, including, but not limited 

to, an order requiring the rehiring or reinstatement of the miner of his former 

position with back pay and interest or such remedy as may be appropriate. Such 

order shall become final 30 days after its issuance .... 

30 U.S.C. § 815(c). 

31FMSHRC976 

_, 
complaint with MSHA alleging that his discharge was motivated by protected safety complaints 

in violation of section 105( c )(1) of the Mine Act. Id. MSHA conducted a preliminary special 

investigation of the complaint and determined that it was not frivolous. Id. The Secretary filed 

an application with the Commission seeking the temporary reinstatement of Mr. Phillips. Id. 

The parties agreed that a hearing on the Secretary's application was unnecessary and that Mr. 

Phillips should be economically reinstated.2 Id. On June 6, 2008, the judge ordered Mr. Phillips' 

economic reinstatement. Id. 

As part of the economic reinstatement, the judge ordered the Secretary to report on July 2, 

and August 1, 2008, regarding the status of her determination as to whether to bring a 

discrimination complaint on Mr. Phillips' behalf. Unpublished Order dated June 6, 2008. On 

·each of those aates,. counsel for the Secretary stated that the determination had not yet. been · ~· .. ·. · . , , ·· · 

made. 30 FMSHRC at 1120. 

Approximately three months later, on November 10, 2008, the Commission received a· 

notice that the Secretary did not intend to proceed under section 105( c )(2) of the Mine Act on 

Mr. Phillips' behalf. Id. Counsel for the Secretary stated that it was the Secretary's position that 

the order of temporary economic reinstatement must remain in effect until there is a final order of 

the Commission disposing of Mr. Phillips' case, including if Mr. Phillips decided to proce~d on· 

his· own behalf under section. 105( c )(3). Id.·. Attached to the Secretary's notice was a 

. '~ ~o'Vember 3, 2008, .letter to Mr, Phillips from MSHA stating that MSHA,had "determined that_ 

. ·. facts diselosed during the investigation do not constitute a violation ofSection 105(c)" and that 

"[t]herefore, discrimination, within the confines of the Mine Act, did not occur." Id. (citations 

omitted). 

On November 10, the Commission also received from A&S a motion to schedule a 

hearing to determine whether the order of temporary reinstatement should be rescinded in light of 

the Secretary's determination. Id. The judge scheduled the matter for oral argument. 

Following oral argument, the judge determined that an order of temporary reinstatement 

is no longer viable after the Secretary has determined that the facts underlying a miner's 

complaint do not constitute a violation of section 105( c ). Id. at 1121-23. The judge noted that 

the authority to issue an order ofreinstatement arises under section 105( c )(2), which provides 

that such an order remains in effect "pending final order on the complaint." Id. at 1121. He 

explained that the complaint referred to is the miner's complaint that is investigated by the 

Secretary, and that a final order on the complaint is made when the Secretary determines that the 

facts alleged in the miner's complaint do not constitute a violation of section 105(c). Id. The 

judge reasoned that if a miner wishes to proceed under section 105( c )(3), the miner must file a 

new complaint, which is separate from the Secretary's application for temporary reinstatement. 

2 The parties agreed that Mr. Phillips should receive the same pay and benefits he would 

have received prior to his discharge, as ifhe were still working. Unpublished Order dated 

June 6, 2008. 

31 FMSHRC 977 

I j' 

·,, .· 
; . '.· 

Id. at 1121-22. Accordingly, the judge dissolved the order of temporary reinstatement and 

dismissed the temporary reinstatement proceeding. Id. at 1123. 

On December 15, 2008, Mr. Phillips filed a petition for discretionary review challenging 

the judge's order with the Commission. In addition, on that same date, Mr. Phillips filed an 

action on his own behalf under section 105(c)(3), which has been docketed as WEST 

2009-286-DM, and assigned to Administrative Law Judge Richard Manning. On December 23, 

2008, the Commission granted Mr. Phillips' petition and stayed the judge's order dissolving the 

order of temporary economic reinstatement, pending the Commission's decision. The 

Commission granted the Secretary leave to participate as amicus curiae. 

' · · · A&S ·argues that the Commission should affirm the judge's order dissolving the" . '. '· - ... • ·: · · · . 

temporary reinstatement order. A&S Br. at 5. It contends that the plain language of the Mine 

Act supports the judge's determination that "pending final order on the complaint" refers to the 

miner's complaint investigated by the Secretary, and that a final order on the complaint is made 

when the Secretary makes a determination of no discrimination. Id. at 9-10. Drawing an analogy 

to sections 105 (a) and 105(b) of the Mine Act, A&S notes that a "final order" can arise from a 

notice issued by the Secretary under section 105 and need not be a final Commission order. A&S 

Resp. Br. at 3-5. · 

;. · : ,· Jn her amicus brief, the Secretary contends that thejudge erred in dissolving the ": t: .. 

teriipdrary reinstatement order. S. Br. at 8-24. She contends that the plain meaning of section /; 

105( c )(2) requires a temporary reinstatement order to remain in effect until there has been a final 

Commission order on the merits of the miner's underlying discrimination complaint, regardless 

of whether the complaint is litigated by the Secretary under section 105( c )(2) or by the miner 

under section 105(c)(3). Id. at 10-15, 24. The Secretary asserts that such a reading is also 

supported by the structure of the Mine Act, the legislative history, and the purpose of section 

105(c)(2). Id. at 15-24. Finally, she states that even if section 105(c)(2) does not have a plain 

meaning, the Commission should accept the Secretary's interpretation because it is reasonable 

and furthers the protection to miners contemplated by section 105(c)(2). Id. at 1, 23. 

II. 

Disposition 

A. Analytical Framework 

The question presented in this case is whether, under the provisions of section 105( c) of 

the Mine Act, a temporary reinstatement order remains in effect after the Secretary has 

determined that the allegations made by the miner in his or her discrimination complaint filed 

with MSHA do not constitute a violation of section 105( c )( 1) of the Mine Act. 

31 FMSHRC 978 
ill considering this question of statutory construction, we are mindful that our first inquiry 

is "whether Congress has directly spoken to the precise question at issue." Chevron US.A. Inc. 

v. Natural Res. Def Council, Inc., 467 U.S. 837, 842 (1984); Thunder Basin Coal Co., 18 

FMSHRC 5 82, 5 84 (Apr. 1996). If a statute is clear and unambiguous, effect must be given to its 

language. See Chevron, 467 U.S. at 842-43; accord Local Union 1261, UMWA v. FMSHRC, 917 

F.2d 42, 44 (D.C. Cir. 1990). Deference to an agency's interpretation of the statute may not be 

applied "to alter the clearly expressed intent of Congress." K Mart Corp. v. Cartier, Inc., 486 

U.S. 281, 291 (1988) (citations omitted). ill ascertaining the meaning of the statute, courts utilize 

traditional tools of construction, including an examination of the "particular statutory language at 

issue, as well as the language and design of the statute as a whole," to determine whether 

Congress had an intention on the specific question at issue. Id.; Local Union 1261, UMWA v. 

· ·FMSHRC, 917·F.2d at44; Coal Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C"Cir. 

1989). The examination to determine whether there is such a clear Congressional intent is 

commonly referred to as a "Chevron I" analysis. See Coal Employment Project, 889 F.2d at 

1131; Thunder Basin, 18 FMSHRC at 584; Keystone Coal Mining Corp., 16 FMSHRC 6, 13 

(Jan. 1994). 

If a statute is ambiguous or silent on a point in question, a second inquiry, commonly 

referred to as a "Chevron If' analysis, is required to determine whether an agency's interpretation 

.of a statute is a reasonable one. See Chevron, 467 U.S. at 843-44; Thunder Basin, 18 FMSHRC 

: ':at'584 n.2; Keystone, 16 .FMSHRC at 13; ·Deferenc.e.is-accmtded.to "an agency's interpretation of 

'the statute it is charged with administering when that interpretation is reasonable." -Energy West · 

Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron, 467 U.S. at 844). 

Where the statute is silent or ambiguous, the.agency's interpretation is entitled to affirmance as 

long as that interpretation is one of the permissible interpretations the agency could have 

selected. See Joy Techs., Inc. v. Sec '.:Y of Labor, 99 F .3d ·991, 995 (10th Cir. 1996) (citing 

Chevron, 467 U.S. at 843), cert. denied, 520 U.S. 1209 (1997); Thunder Basin Coal Co. v. 

FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995). 

The Commissioners are evenly divided regarding whether the judge correctly determined 

that a temporary reinstatement order no longer remains in effect after the Secretary has made a 

determination of no discrimination. Commissioners Duffy and Young would affirm in result the 

judge's dissolution of the temporary reinstatement order and dismissal of the temporary 

reinstatement proceeding. Chairman Jordan and Commissioner Cohen would reverse the judge's 

order. The effect of a split decision is to allow the judge's order dissolving the temporary 

reinstatement order and dismissing the temporary reinstatement proceeding to stand, as if 

affirmed.3 See Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff'd on other 

grounds, 969 F.2d 1501 (3d Cir. 1992). The separate opinions of the Commissioners follow. 

3 Because the judge's order stands as if affirmed, we hereby lift the stay we issued on 

December 23, 2008. Accordingly, the order of temporary economic reinstatement is hereby 

dissolved and this temporary reinstatement proceeding is hereby dismissed. 

31 FMSHRC 979 
B. Separate Opinions of the Commissioners 

Commissioners Duffy and Young, in favor of affirming in result the judge's order: 

1. Statutory Language 

The authoriJy to order temporary reinstatement is found in section 105( c )(2) of the Mine 

Act. Under the terms of section 105( c )(2), after the Secretary has filed an application stating that 

a miner's complaint of discrimination filed with MSHA was not frivolously brought, the 

Commission must order the "immediate reinstatement of the miner pending final order on the 

complaint." 30 U.S.C. § 815(c)(2) (emphasis added). In order to determine how long a 

. temporary reinstatement order may permissibly remain in effect, we must' consider what . ·. , . ·' 

Congress meant by "final order" and "complaint." We first consider what is meant by 

"complaint." 

Reading section 105( c )(2) in context, we conclude that the provision that a temporary 

reinstatement order remains in effect "pending final order on the complaint" clearly refers to the 

"complaints" filed under section 105(c)(2) and does not extend to the miner's "action" filed 

under section 105(c)(3). We base this conclusion on the usage of the term "complaint" in 

sections 105(c)(2) and 105(c)(3). · · . . :·;. •, 

\; . 

·More· specifically, section 105 ( c) refers to two complaints: the miner's complaint made 

to, and investigated by, the Secretary under section 105( c )(2); and the complaint filed by the 

Secretary with the Commission under section 105( c )(2) if, upon investigation, the Secretary 

determines that section 105( c )(1) has been violated. 

The legitimacy of the miner's complaint is determined by the Secretary in a two-phased 

process. First, the Secretary determines whether the miner's complaint has been "frivolously 

brought" through an initial investigation. 30 U.S.C. § 815(c)(2). If the complaint is not 

frivolous, the Secretary files an application with the Commission to temporarily reinstate the 

miner. Id. The standard of the initial determination, which requires only that a miner's 

complaint must appear to have merit, is set low so that a miner may be reinstated while the 

Secretary conducts a more thorough investigation. Sec'y of Labor on behalf of Bussanich v. 

Centralia Nlining Co., 22 FMSHRC 153, 157 (Feb. 2000) ("The Mine Act's legislative history 

defines the 'not frivolously brought' standard as indicating that a miner's 'complaint appears to 

have merit."') (citation omitted). Second, if, after further investigation, the Secretary determines 

that a violation of section 105( c) has occurred, the Secretary files a complaint with the 

Commission on the miner's behalf, which validates the initial finding of non-frivolousness and 

the miner's initial complaint of discrimination. In such circumstances, the Secretary is acting on 

the miner's complaint, which has merged with the Secretary's complaint. Temporary 

reinstatement continues until there is a final order on the miner's complaint as advanced by the 

Secretary in the section 105( c )(2) proceeding. 

31 FMSHRC 980 
This contrasts with the terms of section 105( c )(3). Under that section, if the Secretary, 

upon investigation, determines that section 105( c )(1) has not been violated, the miner has the 

right to file a new, separate "action" charging discrimination with the Commission. Section 

105(c)(3) also describes the time within which the Secretary must notify the miner of that 

negative detennination as being within 90 days after the receipt "of a complaint filed under 

paragraph (2)." 30 U.S.C. § 815(c)(3). We conclude that Congress's reference to the documents 

filed under section 105(c)(2) as "complaints" and to the filing of an "action" under section 

105(c)(3) was intentional. 1 See Russello v. United States, 464 U.S. 16, 23 (1983) (providing that 

where Congress uses a particular phrase in one section but omits it in another, the difference in 

language is presumed to be intentional). Therefore, based on the plain language of sections 

105( c )(2) and ( c )(3), a temporary reinstatement order remains in effect pending final order on the 

miner's complaint as advanced by the-Secretary under section 105(c)(2), but does not extend to· 

the pendency of an action under section 105( c )(3). 

We next consider what is meant by the term "final order" in section 105( c )(2). The term 

"order" is used in section 105( c) to refer to action by the Commission in terms of issuing an 

order of temporary reinstatement; issuing an order affirming, modifying, or vacating the proposed 

order set forth in the Secretary's complaint; or issuing an order dismissing or sustaining a miner's 

charges under section 105( c )(3). fu contrast, sections 105( c )(2) and 105( c )(3) consistently refer 

to the Secretary's conclusion regarding whether a violation of section 105( c )(1) had occurred as ·a .· 

"determination." ·Thus, the. Secretary's· conclusion regarding whether her investigation revealed . . 

·discrimination iS a "determination,'·' not an order. fu addition, although the Secretary may . 

include a proposed order for the Commission's consideration in her complaint filed under section 

105( c )(2), only the Commission inay issue an "order" under section 105( c ).2 

Furthermore, we find it instructive that section 105( c) describes when a Commission 

order becomes "final." Sections 105( c)(2) and 105( c )(3) explicitly provide that the "order" 

issued by the Commission becomes ''final 30 days after its issuance." 30 U.S.C. §§ 815(c)(2) & 

(c)(3) (emphasis added). Thus, it is clear from the language of the Act that "final order" in 

section 105(c)(2) refers to a final Commission order. 

1 We note that section 105(c)(3) refers to a "complainant." We conclude that the term is 

used in section 105(c)(3) as a matter of convenience, in order to avoid repetition of the lengthy 

description of the filing party- that is, any "miner, representative of miners or applicant for 

employment" whose complaint to the Secretary may have resulted in an investigation under 

section 105(c)(2). 30 U.S.C. §§ 815(c)(l) & (c)(2). 

2 We reject the operator's analogy to sections 105(a) and 105(b) to support its argument 

that a "final order" may arise from a notice issued by the Secretary under section 105 and need 

not be a final Commission order. A&S Resp. Br. at 3-5. Sections 105(a) and 105(b) are not 

analogous because they explicitly provide that a notice "shall be deemed a final order of the 

Commission." 30 U.S.C. § 815(a) and (b). No such language is set forth in section 105(c). 

31 FMSHRC 981 
,., ' :·1 

Considering the language discussed above regarding what is meant by "complaint," with 

the language regarding what is meant by "final order," we condude that a temporary 

reinstatement order remains effective pending the final order of the Commission on a complaint 

filed under section 105(c)(2). Therefore, ifthe Secretary determines that there has been no 

discrimination, the temporary reinstatement order would cease to be effective, and the judge 

should issue an order dissolving the temporary reinstatement and dismissing the temporary 

reinstatement proceeding.3 If the Secretary determines that there has been discrimination and 

files a complaint on the miner's behalf, the temporary reinstatement order would remain in effect 

until the judge's decision disposing of the merits of the complaint, or the Commission's decision 

or court's decision, in the event of appeal, becomes final by the passage of 30 days. 

·:Chairman Jordan argues that the terms ofsection'105(<>)(2) mandate that temporary. 

reinstatement remains in effect until there has been a final Commission order on the complaint 

the miner filed with the Secretary, and that such an order cannot issue in the temporary 

reinstatement proceeding. Slip op. at 17-18. We cannot agree with such reasoning as it proves 

too much. While the miner is, as Chairman Jordan states, "entitled" to file an action pursuant to 

section 105( c )(3) when the Secretary refuses to file a 105( c )(2) discrimination claim on his 

behalf, the miner is by no-means required to do so, and may chose not to file such an action. 

Nevertheless, under Chairman Jordan's reading of the statute, if temporary reinstatement had 

been previously ordered, it could not b.~ dissolved when a miner ·chooses not to proceed under 

seCtion 105 ( c )(3) because there was and never will be .a Corninission "final order'1 on the r,niner' s 

discrimination complaint filed with MSHA:' We cannot agree.that Congress intended·sucha 

result, and thus we reject that interpretation in favor of an one much more in keeping with how 

temporary reinstatement under section 105( c )(2) has worked in practice - it remains in place only 

as long as the Secretary is investigating and pursuing the miner's claim of discrirnination.4 

We are not troubled by concluding that a final order issued by the judge dissolving 

temporary reinstatement rests on a determination by the Secretary that there has been no violation 

of section 105(c), ratherthan on the judge's findings of fact developed from a record during a 

hearing. The Secretary was given authority by Congress to determine as an initial matter whether 

a violation of section 105( c )(1) has occurred, as is evident by statutory language that (1) requires 

the miner to file his or her complaint with the Secretary, and not with the Commission, 

3 This was, in fact, Commission procedure for more than 27 years. See n.8, infra. 

4 We cannot ignore the significance under section 105(c)(2) of the Secretary's refusal to 

file her complaint with the Commission, as such a complaint is an absolute prerequisite to further 

Commission action, including of course the issuance of any "final order" in the proceeding, 

under that standard. Because the Secretary's refusal to go forward and file such a complaint 

prevents the Commission from acting on a discrimination complaint under section 105( c )(2), it 

only makes sense to view an order dissolving temporary reinstatement under section 105( c )(2) as 

the "final order" referenced in that provision. 

31 FMSHRC 982 

,. 
(2) requires the Secretary to investigate that complaint "as [she] deems appropriate,"5 and 

(3) requires the Secretary to file with the Commission a complaint on behalf of the complaining 

miner, applicant for employment or representative of miners alleging discrimination and 

proposing an order "[i]fupon such investigation, the Secretary determines that the provisions of 

this subsection have been violated." 30 U.S.C. § 815( c )(2). If, however, the Secretary 

determines that no violation has occurred after administrative investigation and evaluation, the 

miner is still entitled to seek a hearing in a section 105( c )(3) proceeding. 

In fact, the language of section 105( c )(2) makes clear that the Commission is required to 

afford the opportunity for a hearing and issue an order based on findings of fact regarding the 

allegations of discrimination only in circumstances in which the Secretary has determined, upon 

·. · .. 'futtherinvestigation, that a violation of section 105( c) has=.occurted.; 'Under section 105( c )(2), the·, 

Commission must "afford an opportunity for a hearing ... and thereafter ... issue an order, 

based upon findings of fact, affirming, modifying, or vacating the Secretary's proposed order, or 

directing other appropriate relief." 30 U.S.C. § 815(c)(2) (emphasis added). The Secretary's 

proposed order is only before the Commission in circumstances in which the Secretary has filed a 

complaint after determining that her investigation reveals a violation of section 105( c ). 

Thus, it is apparent from the language ofthe statute that Congress intended a two-track 

. ·' system for discrimination complaints .under the ,Mine Act. .. Under Section 105( c )(2), th~ , , '· 

: ·.'·b0inplaintto the Secretaryismerged into; and subsumed:by, the Secretary's own complaint;for 

· redress of the· alleged discrimination. A complainant is required to bring the issue to the 

Secretary and may not initiate an action with the Commission. In the event the Secretary finds 

that the Act may have been violated, it is her obligation to file.a complaint with the Commission. 

There is clear continuity of action, and the "complaint" upon which the order for temporary 

reinstatement is based is the same "complaint" submitted by the Secretary. 6 The Secretary in that 

instance is the advocate for both the miner's private rights and the public interest. 

Conversely, ifthe Secretary finds that the Act was not violated, she has made a 

determination with legal effect and consequences. As the Act makes clear, a person whose 

5 The investigation by the Secretary is critical to vindicating public interest in whether 

the Mine Act has been violated. See Hatfield v. Colquest Energy, Inc., 13 FMSHRC 544, 545 

(April 1991) ("[T]he statutory scheme provides to miners a full administrative investigation and 

evaluation of an allegation of discrimination."). 

6 We note that while the Commission is required to issue an order "affirming, modifying, 

or vacating the Secretary's proposed order" under section 105(c)(2), the Commission is required 

under section 105(c)(3) to issue "an order, based upon findings of fact, dismissing or sustaining 

the complainant's charges." 30 U.S.C. §§ 815(c)(2) & (c)(3). The separate grounds that must 

serve as the basis for the Commission's orders under sections 105(c)(2) and 105(c)(3) do not 

support the Secretary's contention that the miner's discrimination complaint filed with MSHA is 

the basis for the Commission's order under both sections. S. Br. at 12, 24. 

31 FMSHRC 983 
complaint is investigated and found to be unsupported may proceed, but by "fil[ing] an action in 

his own behalfbefore the Commission." 30 U.S.C. § 815(c)(3) (emphasis added). This is 

necessary because once the Secretary has determined that a violation has not occurred, the 

original complaint - which was made to the Secretary, and not to the Commission - has no 

continuing legal status. A person wishing to bring the issues contained therein before the 

Commission must therefore initiate a new action. 

In that context; it is notable that section 105( c )(2) expressly provides for temporary 

reinstatement, while section 105(c)(3) does not. We agree with the judge's determination that 

the inclusion of this remedy in one subsection and omission in the other is presumptively 

intentional. See Russello v. United States, 464 U.S. at 23, While temporary reinstatement may 

· .· have been imposed on a finding that the· complaint was notfrivolouslymade, it is important to,·,· 

remember that this early determination is made before the Secretary has conducted the 

investigation commanded by the Mine Act. At the conclusion of the investigation, the Secretary 

must decide whether or not the Act has been violated. We rightly presume that the Secretary has 

faithfully performed her duty and, while that does not preclude the possibility that a violation of 

the Act may yet be found, it certainly stands in sharp contrast to the circumstances present when 

the initial complaint is filed, before there has been any exposition of the issue. 

...... __ ·::.:·· ; ·" 2 .. Legislative History and Statutory Structure. , .. ,., I: 

·~ I, • • '. : I • : 

The rationale for temporary reinstatement is evident from changes made to the antidiscrimination provisions of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. 

§ 801 et seq. (1976) (amended 1977) ("Coal Act"). Under the Coal Act, a minerwas responsible 

for pursuing his own discrimination case and filed the case at his own expense with his own 

counsel. See 30 U.S.C. § 820(b )(2) (1976) (amended 1977). Temporary reinstatement was not 

provided for under the Coal Act. Under section 105( c )(2) of the Mine Act, however, the 

Secretary has the exclusive duty to conduct the initial investigation, and retains effective legal 

control over the issues when she brings an action on a miner's behalf. Notwithstanding that the 

Secretary is directed in the Mine Act to complete her investigation within 90 days, Congress 

feared that a prolonged investigation under section 105(c)(2) of the Mine Act would impose an 

economic hardship on the miner since, unlike under the Coal Act, the miner was not in charge of 

his or her own case. To rectify the problem, Congress developed the remedy of temporary 

reinstatement in order to protect the miner from bureaucratic delay. 

Such reasons justifying temporary reinstatement do not apply in a section 105( c )(3) 

proceeding under the Mine Act. In a section 105( c )(3) proceeding, the miner brings his own 

action at his own expense and is in charge of his case. Miners proceeding under section 

105(c)(3) of the Mine Act are in much the same position they were in under the Coal Act. Under 

those circumstances, the need to account for harm caused by any bureaucratic delay does not 

exist. 

31 FMSHRC 984 
. -"; 

This readmg of the statutory language is supported by the Conference Report pertaining 

to section 105( c) of the Mine Act. The Conference Report provides in part: 

To protect miners from the adverse and chilling effect of 

loss of employment while such matters are being investigated, the 

Senate bill provided that ifthe Secretary determined that any such 

complaint was not frivolously brought, the Secretary seek 

teinporary reinstatement of the complaining miner pending final 

outcome of the investigation and the Commission order such 

reinstatement, after expedited proceedings. The House amendment 

contained no such provision. 'l·. · ... •I·', .. . .· ~ 

The Senate bill provided that upon completion of the 

investigation, if the Secretary found that there had been such 

discrimination, he immediately file a complaint with the 

Commission, with copies to the complaining party and the violator. 

The Commission, after affording the parties an opportunity for a 

hearing, could order appropriate relief .... 

Under the Senate bill, a complaining party could,-within 30 

days of an adverse determination by the Secretary, file an action 

with the Commission on his own behalf .... 

The conference substitute conforms to the Senate bill .... 

S. Conf. Rep. No. 95-461, at 52-53 (1977), reprinted in Legislative History of the Federal Mine 

Safety and Health Act of 1977 ("Legis. Hist."), at 1330-31 (emphases added). Thus, the 

Conference Report reveals that temporaiy reinstatement was a remedy fashioned to protect 

miners from the adverse effect of loss of employment during the Secretary's investigation. In 

addition, the Conference Report distinguishes between the initiating documents in section 

105(c)(2) as "complaints," and the initiating document under section 105(c)(3) as an "action." 

As the judge reasoned, the remedial provisions of sections 105( c )(2) and 105( c )(3) 

represent a balancing of interests by Congress. 30 FMSHRC at 1122. By providing temporary 

reinstatement under section 105( c )(2), Congress determined that operators should bear the greater 

economic burden during her investigation, and continuing once the Secretary has concluded that 

a miner's discrimination complaint has merit. However, ifthe Secretary determines that the 

miner's discrimination complaint does not have merit, i.e., that a violation of the Act has not 

31 FMSHRC 985 
occurred, the balance would tip in favor of the operator's interest in controlling its workforce.7 

As noted by the judge, the Eleventh Circuit stated that deprivation of an employer's right to 

control the makeup of its workforce is only a "temporary one that can be rectified by the 

Secretary's decision not to bring a formal complaint or a decision on the merits in the employer's 

favor." Jim Walter Res. v. FMSHRC, 920 F.2d 738, 748 n.11 (I Ith Cir. 1990) (emphasis in 

original). 

Our reading of.the Mine Act is also consistent with the Commission's historic reading of 

the statute, as embodied in its former procedural rule pertaining to temporary reinstatement. 

Rule 45(g) formerly provided that, "If, following an order of temporary reinstatement, the 

Secretary determines that the provisions of section 105( c )(1 ), 30 U.S.C. 815( c )(1 ), have not been 

· · · violated, the Judge shall be so notified and shall enter· an· order dissolving the order of , .. , 

reinstatement." 29 C.F.R. § 2700.45(g) (2005). The sentence requiring the judge to dissolve the 

order of reinstatement was in place from the inception of the Commission's rule implementing 

the temporary reinstatement provisions of the Mine Act in 1979 and remained unchanged until 

the Commission's rulemaking in 2006.8 In the absence of any compelling contrary argument, we 

are reluctant to overturn an interpretation which existed without challenge for almost 30 years. 

':~ •' ·, 

7 We note that section I 05( c )(3) proceedings can be lengthy in duration. See, e.g., Price 

v. Monterey Coal Co., 12 FMSHRC 1505 (Aug. 1990) (passage of approximately four-and-a-half 

years between the filing of an action by miner under section 105(c)(3) and issuance of the 

Commission decision). The duration can be increased by procedural delays ifthe miner is 

proceeding without benefit of counsel. See, e.g., Jaxun v. Asarco, LLC, 29 FMSHRC 616, 

617-21 (Aug. 2007); 31 FMSHRC 631 (May 2009) (ALJ) (passage of approximately three years 

between the filing of a 105( c )(3) action by an unrepresented miner and the issuance of the 

Commission decision disposing of merits). As a practical matter, if a miner remains temporarily 

reinstated dming a section 105(c)(3) proceeding, there is little incentive for the miner to advance 

the proceeding expeditiously. 

8 On June 29, 1979, the Commission adopted final procedural rnles that included Rule 

44(b ), entitled, "Dissolution of order," which provided in part, "If, following an order of 

reinstatement, the Secretary determines that the provisions of section 105( c )(1) have not been 

violated, the Judge shall be so notified and shall enter an order dissolving the order of 

reinstatement." 44 Fed. Reg. 38226, 38231(June29, 1979). The provisions of Rule 44(b) were 

later set forth in Rule 45(g), 29 C.F.R. § 2700.45(g). In August 2006, the Commission revised 

Rule 45(g) to delete the requirement that the judge dissolve the order of temporary reinstatement 

after the Secretary has made a determination of no discrimination. 71 Fed. Reg. 44190, 44198-

99 (Aug. 4, 2006). In the preamble, the Commission explained that the deletion "leaves open for 

litigation the issue of whether an order for temporary reinstatement remains in effect pending a 

miner's discrimination complaint under section 105(c)(3)." Id. at 44199. 

31 FMSHRC 986 
3. Conclusion 

In sum, we conclude that the language of sections 105( c )(2) and 105( c )(3) and relevant 

legislative history demonstrate that Congress directly spoke to the issue in this case: a temporary 

reinstatement order may not remain in effect after the Secretary has made a determination that no 

discrimination has occurred, and a temporary reinstatement order may not remain in effect during 

a section 105(c)(3) proceeding. 

Even if the Act were silent or ambiguous on the question at issue, however, we would 

reach the same conclusion. The Secretary (S. Br. at 23), along with Commissioner Cohen, would 

have us defer to the Secretary's interpretation of the Mine Act, but we fail to see how the 

· :,. · · Seeretary is owed deference on the question of whether temporary reinstatementshould,eontinue 

after the Secretary has made a determination of no discrimination. Deference under Chevron II is 

owed to an agency's interpretation when the statutory provision being interpreted is one the 

agency is "charged with administering." Energy West, 40 F.3d at 460 (D.C. Cir. 1994) (citing 

Chevron, 467 U.S. at 844). The Secretary, by declining to pursue a miner's claim of 

discrimination, essentially removes herself from the case. 

Once that occurs in future cases,9 it will certainly not be the Secretary that is 

. ·"administering" the Mine Act. The question of whether th~ miner was discriminated l;lgait)st can 

then only ta1ce place in a section 105(c)(3) proceeding, a proceeding that is essentiallyμ. pcivate. 

right of action. If any agency will be said to be "administering" the Mine Act at that point, it 

would be this Commission, which, among other things, will be charged with interpreting the 

discrimination provisions of section 105( c) to determine whether disc1imination occurred, the 

Secretary's determination notwithstanding. Consequently, we look not to the Secretary's 

interpretation of section 105( c) to see whether the temporary reinstatement protections in section 

105(c)(2) carry forward into section 105(c)(3) proceedings, but rather our own. 10 

9 In this case the Secretary has chosen to appear as an amicus to give her views on the 

legal question this case presents. Once the issue is resolved, we highly doubt the Secretary will 

be making appearances as an amicus in other section 105( c )(3) proceedings, given that such 

proceedings ta1ce place only after the Secretary has determined that there was no discrimination. 

1

° Commissioner Cohen would nevertheless have the Commission defer to the 

Secretary's interpretation of section 105(c), because the Secretary administers the overall Mine 

Act statutory scheme. Slip op. at 28. We cannot agree, because according such deference would 

run counter to the plain meaning of section 105( c ). First, under the terms of that section, the 

Secretruy discharges her responsibility when she determines that no discrimination occurred. 

Second, while the Secretary is free to interpret section 105( c )(1) to conclude under section 

105( c )(2) that an operator's action did not constitute discrimination, the very fact that Congress 

provided in section 105(c)(3) that the Commission could come to the opposite conclusion, and 

that the operator would be then subject to penalties for engaging in discrimination, suggests that, 

31 FMSHRC 987 
Commissioner Cohen asserts that we have mischaracte1ized the Secretary's role in this 

case. However, his description of the procedure under section 105(c), slip op. at 29-30, misstates 

the process by which the Secretary relinquishes her involvement in the case and simplifies the 

problem before us by assuming away the issue. Commissioner Cohen says that "[t]he fact that 

the Secretary has determined that a miner has not demonstrated discrimination in a particular 

case does not change the Secretary's interest in ensuring that miners who file section 105(c)(3) 

actions are entitled, as a class, to continue temporary reinstatement until a final order of the 

Commission." Id. at 29 (emphasis added). First of all, it is not the miner's responsibility to 

"demonstrate discrimination." Rather, it is the Secretary's duty to initiate an appropriate 

investigation to determine whether discdmination has occurred. 30 U.S.C. § 815(c)(2). Second, 

when the Secretary has made a determination that there has been no discrimination, there is no 

· 1 ·•· · · • basis;for her faterest in continuing temporary reinstatement. . The presumption of discrimination· .. , 

that underlies temporary reinstatement cannot exist in a section 105( c )(3) proceeding because the 

fact of violation is the ultimate issue we are called upon to decide. Third, Commissioner 

Cohen's assumption runs counter to the procedural posture of every section 105(c)(3) case 

brought before us. In that regard, we note that the end result of the investigation required by 

section 105( c )(2) is a finding by the Secretary either that (1) a violation of the law has occurred, 

in which case the procedure and her duty are outlined in the subsection, or (2) a violation has not 

· occurred, in which case the Secretary, through her own actions and determination, is no longer a 

·· . · , •party in the case .. Thus, the Secretary must initiate an investigation and must pursue the miner'.s 

-complaint if.she believes the anti -"discrimination provisions of the Act have been violated an4. 

··may only elect, in her sole discretion as the "enforcer of the Act,':~ .not to pursue the Miner's 

complaint when she has determined that the provisions of the Act have not been violated. 

In sum, the mere fact that the Secretary appears before us as an amicus does not 

determine the weight we afford her view; rather, it is the fact that she attained that status through 

what we must presume to be a scrupulous and diligent exercise of her authority, leading to a 

finding that the operator did not discriminate against the complainant and that it would therefore 

be inappropdate to continue with a public prosecution of the complaint. The cases cited by 

Commissioner Cohen, slip op. at 30 n.4, conferring deference or weight to an agency's 

interpretation, even as a nonp'arty, do not involve the agency's deliberate, negative determination 

on the question at issue and are therefore distinguishable. 

Finally, even if we were to consider deferring to the Secretary's interpretation of sections 

105( c )(2) and 105( c )(3), we would conclude that her interpretation is unreasonable because it is 

inconsistent with the statutory language, relevant legislative history, and the Commission's own 

experience with section 105( c )(3) cases, as discussed above. See Lancashire Coal Co. v. Sec '.Y of 

Labor, 968 F.2d 388, 393 (3d Cir. 1992) ("[W]e cannot conclude that the Secretary's 

interpretation is reasonable in this case insofar as it conflicts with the language of the statute."); 

cf Sec'y of Labor v. FMSHRC, 111 F.3d 913, 920 (D.C. Cir. 1997) (finding Secretary's 

in the area of discrimination proceedings, the Commission is not obligated to defer to the 

Secretary. 

31 FMSHRC 988 
interpretation reasonable where it was consistent with the statutory language, legislative history 

and legislative purpose). 

For the reasons discussed above, we would affirm in result the judge's dissolution of the 

order of temporary economic reinstatement and his dismissal of the temporary reinstatement 

proceeding. 

, . ... 

31 FMSHRC 989 
Chairman Jordan, in favor ofreversing the Judge's order: 

Under the Mine Act, a miner's temporary reinstatement remains in effect "pending final 

order on the complaint." 30 U.S.C. § 815(c)(2). Because the plain language of the statute 

mandates that temporary reinstatement continue until the Commission issues a final order 

regarding the merits of the miner's allegations of discriminatory conduct, I would reverse the 

judge's order dissolving the miner's temporary reinstatement in this case. 

A miner who alleges an illegal discharge may obtain temporary reinstatement in 

accordance with section 105( c ), which provides in relevant part: 

[a ]ny 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. Upon receipt of such 

complaint, the Secretary shall ... cause such investigation to be 

made as he deems appropriate. Such investigation shall commence 

within 15 days of the Secretary's receipt of the complaint, 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 th~ 

miner pending final order on the complaint .. 

30 U.S.C. § 815(c)(2) (emphasis added). 

Upon completion of her investigation, the Secretary makes a determination as to whether 

discrimination occurred. If the Secretary determines that the Act was violated, she must 

"immediately file a complaint with the Commission." Id. If the Secretary concludes that no 

violation occurred, she must notify the miner of that fact and the miner, pursuant to section 

105( c )(3), has the right to "file an action in his own behalf before the Commission, charging 

discrimination or interference in violation of paragraph (l)." 30 U.S.C. § 815(c)(3). The issue in 

this case is whether the temporary reinstatement remains in effect while the miner proceeds on 

his own behalf to litigate his or her discrimination claim before the Commission. 

As in other cases involving statutory interpretation, we must determine "whether 

Congress has directly spoken to the precise question at issue." Chevron U.S.A. Inc. v. Natural 

Res. Def Council, Inc., 467 U.S. 837, 842 (1984). The Supreme Court emphasized in Chevron 

that, "[i]fthe intent of Congress is clear, that is the end of the matter; for the court, as well as the 

agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. As 

demonstrated below, Congress intended the temporary reinstatement of a miner to continue until 

there is a final Commission order on the merits of the miner's claim that he or she was 

discriminated against because of safety activity. 

31 FMSHRC 990 
Section 105( c )(2) provides for temporary reinstatement "pending final order on the 

complaint." The Secretary's decision not to go forward on the miner's discrimination case is not 

a final order on the complaint. On this point I agree with my affirming colleagues, who state that 

"only the Commission may issue an 'order' under section 105( c ). " Slip op. at 7. Pursuant to the 

split enforcement scheme envisioned by Congress, it is the Secretary who investigates miners' 

complaints of discrimination and issues proposed orders, but it is only the adjudicatory body -

the Commission~ that issues final orders pertaining to the litigation. See 30 U.S.C. § 815(c)(2) 

and (c)(3). The word "order" appears in section 105(c) nine times, always referring to a 

Commission order (either an order granting temporary reinstatement, an order disposing of a 

complaint filed by the Secretary on behalf of a miner under section 105( c )(2), or an order 

disposing of an action filed by a miner under section 105( c )(3)). As my colleagues correctly 

point out, "the Secretary's conclusion regarding whether her investigation revealed , . ; · · 1. · " • · 

discrimination is a 'determination,' not an order." Slip op. at 7. 

The Mine Act sets forth the method by which the Commission issues a final order in a 

discrimination proceeding. If, after conducting her investigation, the Secretary decides that the 

Act has been violated, pursuant to section 105( c )(2) she is required to file a complaint with the 

Commission and to "propose an order granting appropriate relief." 30 U.S.C. § 815(c)(2). The 

Commission, after affording an opportunity for a hearing, is required to "issue an order, based 

. upon findings of fact, affirming, modifying, or vacating the. Secretary's proposed ord<:fr, or, . ._:, 

, directing other appropriate relief'' Id. The Commission's order 'ibecome[s] final 30 .days after '. 

itsissuance." Id. . ... 

If the Secretary notifies the miner of her determination that no violation of section 

105(c)(l) occurred, "the complainant," pursuant to section 105(c)(3), is entitled to "file an action 

in his own behalf before the Commission." 30 U.S.C. § 815(c)(3). The Commission is required 

to afford an opportunity for a hearing and to "issue an order based upon findings of fact, 

dismissing or sustaining the complainant's charges and, ifthe charges are sustained, granting 

such relief as it deems appropriate .... " Id. This Commission order "become[ s] final 30 days 

after its issuance." Id. 

Thus, in accordance with the plain meaning of the statute, there is no "final order on the 

complaint" until the Commission issues an order which either affirms, modifies, or vacates the 

Secretary's proposed order in accordance with section 105(c)(2), or dismisses or sustains the 

complainant's charges in accordance with section 105(c)(3). It is clear that a final order in either 

case must be based on the Commission's findings of fact and the Commission's determination of 

whether discriminatory conduct in violation of section 105( c )(1) occurred. 1 

1 My affirming colleagues contend that ifthe miner does not choose to go forward under 

section 105( c )(3), under my view of the statutory language there would never be a Commission 

final order on the discrimination complaint. Slip op. at 8. Since temporary reinstatement 

remains in effect "pending a final order on the complaint," the temporary reinstatement could 

never be dissolved. My colleagues claim this is not what Congress intended. I agree. A 

31FMSHRC991 
A miner who has been granted temporary reinstatement is entitled to remain in that status 

"pending final order on the complaint." 30 U.S.C. § 815(c)(2). There has been no final 

Commission order on Mr. Phillips' complaint, and, therefore, the statutory prerequisite that 

would justify dissolution of Mr. Phillips' temporary reinstatement order is lacking. Although my 

affirming colleagues appear to treat it as such, the judge's November 26, 2008 order dissolving 

Mr. Phillips' temporary reinstatement cannot constitute the prerequisite "final order on the 

complaint." To consider it in this manner would amount to a ruling that the final order on the 

complaint, necessary to dissolve the temporary reinstatement, is the order dissolving the 

temporary reinstatement. 

The judge did not dissolve Mr. Phillips' temporary reinstatement because of a final 

Commission order. The judge never considered the merits of Mr: 1Phillips.' claim; The sole basis 

of the judge's decision was the Secretary's determination that a violation of section 105( c) had 

not occurred, and her notification that she would not be filing a complaint on Mr. Phillips' 

behalf. According to the judge: "A final order on the miner's complaint is reached when the 

Secretary advises the miner, as she has done in this proceeding, that '[y]our complaint of 

discrimination under Section 105(c) has been investigated ... [and] MSHAhas determined that 

facts disclosed during the-investigation ... do not constitute a violation of section 105( c ). "' 30 

FMSHRC 1119, 1121 (Nov. 2008) (ALJ). 

'·) 

.. :'.Having agreed thatthe Secretary's deterinination regarding the results of her investigation 

does not constitute a final order under section 105( c ), ("the Secretary's conclusion ... is a 

'determination' not an order," slip op. at 7), my affirming colleagues nevertheless proceed to 

make the duration of the temporary reinstatement contingent on just this determination. Ignoring 

the statute's plain language, they conclude: "[I]fthe Secretary determines that there has been no 

discrimination, the temporary reinstatement order would cease to be effective, and the judge 

should issue an order dissolving the temporary reinstatement and dismissing the temporary 

reinstatement proceeding." Slip op. at 8. The statute requires a fmal order from the 

Commission, not a determination from the Secretary, in order to dissolve a grant of temporary 

reinstatement. My colleagues fail to realize that the judge lacked the necessary statutory 

prerequisite for dissolving the temporary reinstatement because no final order had been issued on 

Mr. Phillips' complaint. 

reinstatement that can never be dissolved can hardly be considered temporary. The requirement 

that temporary reinstatement remain in effect "pending final order on the complaint" necessarily 

implies that there is a possibility of obtaining a Commission final order on the discrimination 

complaint under section 105( c )(2) or 105( c )(3). In the event the miner foregoes that possibility, 

obviously the temporary reinstatement provision would no longer be applicable. 

31 FMSHRC 992 
My colleagues have been led astray by their narrow focus on section 105( c )(3)' s reference 

to the complainant's right to file an "action" in his own behalf before the Commission.2 They 

consider the reference to filing an "action" under section 105( c )(3) as an indication that there no 

longer exists a complaint that can be the subject of a Commission order. Since temporary 

reinstatement stays in effect pending the Commission's "final order on the complaint," initiating 

an "action" under section 105( c )(3) must, in their view, extinguish the miner's temporary 

reinstatement. My colleagues' position is untenable in light of the pertinent statutory language 

and the Commission case law. 

Much as my colleagues would like to erect an impenetrable analytical barrier between the 

miner's initial filing of a discrimination complaint to the Secretary and the miner's subsequent 

· action;before the Commission, neither•the statutory language northe Commission case:law .... 1' 

permit them to do so. Although section 105(c)(3) refers to an "action" before the Commission, 

the person who files this action is referred to as the "complainant." 30 U.S.C. § 815(c)(3) 

(emphasis added). Thereafter, the Commission is instructed to afford an opportunity for a 

hearing and to "issue an order based upon :findings of fact, dismissing or sustaining "the 

complainant's" charges." Id. (emphasis added). The reference to "complainant" is an 

acknowledgment that the proceeding under section 105(c)(3) involves the same alleged 

discriminatory conduct that prompted the miner's complaint to the Secretary under section 

105( c )(2). The statute does not direct the miner to file a complaint under section 105( c )(3) , .. 

because the miner has already filed a complaint. That is why the miner is referred to in section ·· , ,, , .. , , 

· 105( c )(3) as the "complainant." 

Commission rulings have made that fact clear. In Hatfield v. Co/quest Energy, Inc., 13 

FMSHRC 544 (Apr. 1991), the operator argued that the complainant's amended filing pursuant 

to section 105(c)(3) differed too substantially from his complaint filed with the Secretary. The 

Commission agreed that the proceeding under section 105( c )(3) must be based on the matter 

initially investigated by the Secretary under section 105( c )(2) or else "the statutory prerequisites 

for a complaint pursuant to§ 105(c)(3) have not been met." Id. at 546 (emphasis added). Accord 

Sec'y of Labor on behalf of Dixon v. Pontiki Coal Corp., 19 FMSHRC 1009 (June 1997). The 

Commission's reference to the section 105(c)(3) proceeding as a "complaint" in Hatfield was not 

an isolated occurrence. In Roland v. Sec'y of Labor, 7 FMSHRC 630 (May 1985), the 

Commission pointed out that "[ s ]hould the Secretary determine that no discrimination has 

occurred, the miner, pursuant to section 105(c)(3) ... may file a discrimination complaint on his 

own behalf before the Commission." 7 FMSHRC at 635 (emphasis added). 

Resort to the legislative history of the Mine Act merely underscores the strained nature of 

my colleagues' reading of the statute. Citing the Conference Report language that "[ u ]nder the 

Senate bill, a complaining party could, within 30 days of an adverse determination by the 

2 Section 105(c)(3) states that "the complainant shall have the right, within 30 days of 

notice of the Secretary's determination, to file an action in his own behalf before the 

Commission." 30 U.S.C. § 815(c)(3). 

31FMSHRC993 
Secretary file an action with the Commission on his own behalf," slip op. at 11 (emphasis 

added), my colleagues omit the sentence that follows, which states that: 

The Commission must afford an opportunity for a hearing, and 

thereafter, issue an order, based upon findings of fact, dismissing 

or sustaining the complaint, and granting such relief as may be 

appropriate. If the complainant prevailed in an action which he 

brought himself after the Secretary's determination, the 

Commission order would require that the violator pay all expenses 

reasonably incurred by the complainant in bringing the action. 

·.: ... '· · .. ·.; ·· ·s. Conf.'Rep. No;·95-461, at 52-53 (1977), reprinted in Senate Subcortnn. onLabor, Comm. on· .. 

., ~ 

' 

Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 1330 

(1978) ("Legis. Hist.") (emphases added). 

The Commission's Procedural Rules also demonstrate that the significance my colleagues 

place on the use of the word "action" in section 105(c)(3) (as opposed to the word "complaint" in 

section 105( c )(2)) is misplaced. Our rule clearly contemplates that a miner filing a claim under 

section 105(c)(3) does so by filing a "complaint." Procedural Rule 40(b), 29 C.F.R. 

·§:2700.40(b ), states: 

: . . :. ··.~ '. 

A discrimination complaint under section 105(c)(3) of the Act, 30 

U.S.C. 815(c)(3), may be filed by the complaining miner, 

representative of miners, or applicant for employment if the 

Secretary, after investigation, has determined that the provisions of . 

section 105(c)(l) of the Act, 30 U.S.C. 815(c)(l), have not been 

violated. 

Additional language in the Mine Act refutes the contention that Congress considered 

claims brought under section 105(c)(2) and (c)(3) to be such entirely separate proceedings, that 

they deemed it appropriate to provide temporary reinstatement pursuant to only one of them. 

Section 105( c )(3) states that "[p ]roceedings under this section shall be expedited by the Secretary 

and the Commission." 30 U.S.C. § 815(c)(3). This mandate, however, undeniably applies to 

section 105( c )(2) actions as well (otherwise the reference to the Secretary makes no sense). 

Indeed, the Commission has interpreted it in this manner. See Sec '.Y of Labor on behalf of Noe v. 

J & C Mining, LLC, 22 FMSHRC 705, 706 (June 2000) (stating, in a section 105(c)(2) case, that 

"the Commission will be expediting these proceedings as it is statutorily required to do"). 

Likewise, section 105( c )(3) refers to Commission orders issued "under this paragraph" being 

"subject to judicial review in accordance with section 106." 30 U.S.C. § 815(c)(3). Clearly, 

however, a Commission order issued under section 105(c)(2) is also subject to judicial review. 

My affirming colleagues contend that temporary reinstatement is designed to protect 

miners "from the adverse effect of loss of employment during the Secretary's investigation." 

31 FMSHRC 994 
• ~ ·r . . 

Slip op. at 11. Not only is this position contrary to the statutory language (which provides for 

temporary reinstatement pending final order on the complaint, riot pending the resolution of the 

Secretary's investigation), the literal application of this principle would result in the dissolution 

of the temporary reinstatement order upon conclusion of the Secretary's investigation, even ifthe 

Secretary determines that section 105( c )(1) was violated. That the temporary reinstatement 

provision was hardly viewed in the cramped fashion suggested by my colleagues is evidenced by 

the Senate Report, wherein the drafters explained that: 

The Committee feels that this temporary reinstatement is an 

essential protection for complaining miners who may not be in the 

financial position to suffer even.a short period of unemployment or 

·· · · reduced income pending the resolution ofthe.discrimination 

complaint. 

S. Rep. No. 95-181, at 37, Legis. Hist. at 625. 

Because, under section 105(c)(3), a miner "brings his own action at his own expense and 

is in charge of his case," slip op. at 10, my affirming colleagues have concluded that the need to 

account for harm due to "bureaucratic delay'' does not exist. Id. Underlying this statement is the 

. unsubstantiated notion that somehow a miner in a section 105( c )(3). proceeding will be ,able to 

· · control how quickly his or her case is resolved. , Their ,own reference to a section 105( c )(3 )'case 

that took four-and-a-half years to decide belies.this contention. Slip.op. at 11-12 n.7 (citingPrice 

v. Monterey Coal Co., 12 FMSHRC 1505 (Aug. 1990)). My affirming colleagues are concerned 

that, "if a miner remains temporarily reinstated during a section 105( c )(3) proceeding there is 

little incentive for the miner to advance the proceeding expeditiously." Slip op. at 12 n.7. Of 

course, the corollary to this concern is that when the complainant miner is not temporarily 

reinstated, there is every incentive for the respondent mine operator to delay the section 105( c )(3) 

proceeding. While both scenarios are problematic, the appropriate question for us to consider is, 

which one caused Congress greater concern? 

By making temporary reinstatement dependent on a determination that the miner's 

discrimination claim is "not frivolously brought," 30 U.S.C. § 815(c)(2), Congress "clearly 

intended that employers should bear a disproportionately greater burden of the risk of an 

erroneous decision in a temporary reinstatement proceeding." Jim Walter Res., Inc. v. FMSHRC, 

920 F.2d 738, 748 n.11 (11th Cir. 1990).3 While the employer's loss of its ability to control its 

3 My colleagues invoke the Court's observation that "deprivation of an employer's right 

to control the makeup of its workforce is only a "temporary one that can be rectified by the 

Secretary's decision not to bring a formal complaintor by a decision on the merits in the 

employer's favor." Slip op. at 12 (citing Jim Walter, 920 F .2d at 7 48 n.11 (emphasis in 

original)). However, it appears the Court's comment was prompted by prior Commission Rule 

44(f), 29 C.F.R. § 2700.44(f) (subsequently re-numbered as Commission Rule 45(g), 29 C.F.R. 

§ 2700.45(g)), id. at 741, rather than by an independent interpretation of the statute. 

31 FMSHRC 995 
''· 

workforce is not to be taken lightly, the legislative history of the Mine Act indicates that section 

105( c)' s prohibition against discrimination is to be "construed expansively to assure that miners 

will not be inhibited in any way in exercising any rights afforded by the legislation." S. Rep. No. 

95-181, at 36, Legis. Hist. at 624. Recognizing the important role that individual miners play in 

ensuring a safe and healthy working environment, Congress was also acutely aware that "mining 

often takes place in remote sections of the country where work in the mines offers the only real 

employment opportunity." S. Rep. No. 95-181, at 35, Legis. Hist. at 623. The temporary 

reinstatement provision was viewed as "an essential protection" for miners who might not be 

able "to suffer even a short period of unemployment." S. Rep. No. 95-181, at 37, Legis. Hist. at 

625. This Congressional balancing of equities applies equally to a section 105( c )(2) case brought 

by the Secretary, and to a section 105( c )(3) claim, brought by the miner on his own behalf after 

the Secretary declines to go forward.· · · ·· . >. ,,, ..• ;,·, ., · . ·. , ,, ··· 

Temporary reinstatement is imposed pursuant to a Commission order that the miner's 

discrimination claim was not frivolously made. The Secretary's decision not to proceed with the 

discrimination complaint does not transform that complaint into a frivolous action. To hold 

otherwise would require us to conclude that Congress implemented a statutory provision (section 

105(c)(3) of the Mine Act) devoted to the litigation of frivolous claims. To the contrary, not only 

does the Secretary's negative determination not reduce the c0mplaint to a frivolous claim, the 

.Commission has explicitly acknowledged that it "may find discrimination where the. Secr.etary. 

has nof~. and that "the Secretary's determination· riot to .prosecute [a J discrimination case· .. ·. : is · 

not probative of whether [the operator] discriminated against the miners." Fort Scott FertilizerCullor, Inc., 17 FMSHRC 1112, 1117(July1995). fudeed, there have been numerous cases in 

which the Secretary declined to file a complaint and the miner successfully proceeded on his own 

behalf. See, e.g., Ross v. Shamrock Coal Co., 15 FMSHRC 972, 974-76 (June 1993); Meekv. 

Essroc Corp., 15 FMSHRC 606, 612-13 (Apr. 1993)); Womackv. Graymont Western US, Inc., 

25 FMSHRC 235, 261-63 (May 2003) (ALJ); Adldns v. Ronnie Long Trucking, 21 FMSHRC 

171, 176-77(Feb.1999)(ALJ); Paulv.NewmontGoldCo., 18FMSHRC 181, 191 (Feb.1996) 

(ALJ). 

Consequently, since the Secretary's decision not to go forward on Mr. Phillips' behalf 

does not vitiate the previous non-frivolous finding regarding his complaint, the temporary 

reinstatement, which is based on that nonfrivolous finding, must remain in effect "pending final 

order on the complaint."4 Balancing the equities does not require the opposite conclusion. 

Requiring the temporary reinstatement to remain in effect pending the miner's litigation under 

section 105(c)(3) is no more inequitable than the Commission's determination that a temporary 

reinstatement order remains in effect pending appeal to the Commission, notwithstanding the fact 

that a Commission judge concluded, subsequent to a hearing on the merits, that no discrimination 

4 fu Jim Walter, the Eleventh Circuit explained that the basis for a temporary 

reinstatement order and the underlying merits of a miner's claim are "conceptually different," and 

it ruled that the temporary reinstatement order was a collateral order completely separate from 

the merits of the action. 920 F.2d at 744. 

31 FMSHRC 996 
occurred. See Sec ·'.Y of Labor on behalf of Bernardyn v. Reading Anthracite Co., 21 FMSHRC 

947, 949 (Sept. 1999). In Bernardyn, the Commission recognized that the statutory language, 

providing for temporary reinstatement "pending final determination on the merits of the 

complaint," required this result. 21 FMSHRC at 950.5 

"j .. 

In conclusion, in passing the Mine Act, Congress created two different mechanisms for 

bringing discrimination complaints, under which either the Secretary or the claimant may 

prosecute the case. Under either procedure, the same underlying complaint (filed initially with 

MSHA) is at issue. The statute clearly states that a temporary reinstatement order remains in 

effect pending a final Commission order on this complaint. Here, there has been no such final 

order on the miner's complaint. Accordingly, I would reverse the judge's decision. 

{,fl/Ljiordan,~------

~.£~ 

! • 

5 I recognize that in Bernardyn, the Commission refers to prior Procedural Rule 45(g), 29 

C.F.R. § 2700.45(g) (1999), which provided for dissolution of a temporary reinstatement order if 

the Secretary determined that discrimination did not occur, as a "gap filling provision designed to 

deal with a situation not addressed by the statute - the status of a temporary reinstatement order 

following a determination by the Secretary that there has been no violation of section 105(c)." 21 

FMSHRC at 950. I believe this comment, which is dictum, to be incorrect since I have 

concluded that the referenced situation is addressed by the statutory language "pending final 

order on the complaint" and requires the maintenance of temporary reinstatement until there is a 

final determination by the Commission on the merits of the miner's claim of discrimination. 

31 FMSHRC 997 
Commissioner Cohen, in favor of reversing the Judge's order: 

This case presents the question of whether a temporary reinstatement order remains in 

effect after the Secretary determines that the anti-discrimination provisions of the Mine Act, 30 

U.S.C. § 815(c), have not been violated. The relevant Mine Act language states that, after a 

determination that a discrimination complaint was not "frivolously brought," the Commission 

"shall order the_ immediate reinstatement of the miner pending final order on the complaint." 30 

U.S.C. § 815(c)(2). The resolution of this issue involves identifying the proper interpretation of 

"final order" and "complaint" in this section of the statute. Although I agree with my colleague, 

Chairman Jordan, that a temporary reinstatement order stays in effect pending resolution of a 

discrimination complaint filed with the Mine Safety and Health Administration ("MSHA"), I 

reach this conclusion by way of a different analysis, and therefore write separately, as I.find that 

the statutory language at issue is ambiguous. 

The first inquiry in statutory construction is ''whether Congress has directly spoken to the 

precise question at issue." Chevron U.S.A. Inc. v. Natural Res. Def Council, 467 U.S. 837, 842 

(1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If a statute is clear and 

unambiguous, effect must be given to its language. See Chevron, 467 U.S. at 842-43; accord 

Local Union No. 1261, UMWA v. FMSHRC, 917F.2d42, 44 (D.C. Cir. 1990).1 If, however, the 

statute is ambiguous or silent on a point in question, a second inquiry, commonly referred to as a 

, · ·:chevron IF' analysis, is required to determine whether an agency's interpretation of a .statute is a 

reasonable one. See Chevron, 467 U.S. at 843-44; ThunderBasin, 18 FMSHRC at 584 n.2; 

Keystone, 16 FMSHRC at 13. Under Chevron II, deference is accorded to "an agency's 

interpretation of the statute it is charged with administering when that interpretation is _ · 

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

Chevron, 467 U.S. at 844). The agency's interpretation of the statute is entitled to affinnance as 

long as that interpretation is one of the permissible interpretations the agency could have 

selected. See Joy Technologies, Inc. v. Secretary of Labor, 99 F.3d 991, 995 (10th Cir. 1996), 

cert. denied, 520 U.S. 1209 (1997) (citin$ Chevron, 467 U.S. at 843); Thunder Basin Coal Co. v. 

FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995). 

The operator contends that the plain meaning of the Mine Act requires that the temporary 

reinstatement order be dissolved if the Secretary does not file a complaint on behalf of the miner. 

A & S Br. at 7. My colleagues Commissioners Duffy and Young agree with the operator. On the 

other hand, the Secretary asserts that the plain meaning of the statute mandates that a temporary 

reinstatement order remain in effect until the Commission issues a final order on the merits of the 

miner's underlying discrimination complaint. S. Br. at 10. My colleague Chairman Jordan 

agrees with the Secretary. The parties' insistence that the statutory language is clear, coupled 

1 The examination to determine whether there is such a clear Congressional intent is 

commonly referred to as a "Chevron F' analysis. See Thunder Basin, 18 FMSHRC at 584; 

Keystone Coal Mining Corp., 16 FMSHRC 6, 13 (Jan. 1994). 

31 FMSHRC 998 
. . ~ 

with their equally emphatic contentions proposing contradictory interpretations of that language, 

suggests that the Mine Act is actually ambiguous on this question. 2 

In order to determine whether Congress' intention as to the question at issue can be 

gleaned from the "plain meaning" of the statutory language, we employ the "traditional tools of 

statutory construction." Natural Res. Def Council, Inc. v. Browner, 57 F.3d 1122, 1125 (D.C. 

Cir. 1995) (quoting Chevron, 467 U.S. at 843 n.9). These include examination of the statute's 

text, legislative history, and structure, as well as its purpose. See Bell Atlantic Telephone 

Companies v. FCC, 131F.3d1044, 1047 (D.C. Cir. 1997). As the D.C. Circuit recognized in 

Bell Atlantic, a court utilizes the text, history, and purpose of a statute to determine whether they 

convey a plain meaning that requires a certain interpretation. Id. at 1049 (emphasis in original). 

.·, ·. I;.,,, ,1 •• 

Statutory language is considered ambiguous if reasonable minds may differ as to its 

meaning, and when, as in this case, it is open to two or more constructions. 73 Am. Jur. 2d 

Statutes § 114. Consequently, we must determine "whether the language of [the] statute is 

susceptible to more than one natural meaning." Taing v. Napolitano, 567 F.3d 19, 23 (1st Cir. 

2 As one federal court judge declared, when wrestling with the meaning of a term in 

environmental law: ·, ... ;: 

(·. 

· Despite the fact that both parties argue that the meaning of 

"toxicity'' is clear, they come to different conclusions as to whether 

[a particular chemical] meets the definition .... What emerges 

clearly from this dialogue between the parties is not the meaning of 

"toxicity," but that its meaning is both ambiguous and ill-defined. 

The Fertilizer Institute v. Browner, No. CN. A. 98-1067 (GK) 1999 WL 33521297, at *3 

(D.D.C. Apr. 15, 1999); see also Pugliese v. Pukka Dev., Inc., 550 F.3d 1299, 1304 (11th Cir. 

2008) (ruling that although both parties agreed that statutory language was plain and 

unambiguous, and argued that plain meaning supported their different interpretations, this 

indicated ambiguity); Toomer v. City Cab, 443 F.3d 1191, 1194-95 (10th Cir. 2006) (holding 

that when both parties argued that a statutory term was unambiguous and urge different meanings 

that are clear from the statute's plain language, the statute was ambiguous with respect to that 

term); Harris v. Sims Registry, No. 00 C 3028, 2001 WL 78448, at *3 (N.D. Ill. Jan. 29, 2001) 

(finding that when both parties asserted that a statutory text was not ambiguous but their 

interpretations differed, the term created ambiguity). But see Symposium, "Pernicious Ambiguity 

in Contracts and Statutes," 79 Chicago-Kent L. Rev. 859, 867 (2004) (citing Justice Thomas' 

view that "[a] mere disagreement among litigants over the meaning of a statute does not prove 

ambiguity; it usually means that one of the litigants is simply wrong" (citation omitted)); John v. 

United States, 24 7 F .3d 1032, 1041 (9th Cir. 2001) (stating that "statutory ambiguity cannot be 

determined by referring to the parties' interpretations of the statute. Of course their 

interpretations differ. That is why they are in court."). 

31 FMSHRC 999 
2009) (citation omitted). Here, the parties differ strenuously as to the "plain meaning" of the 

statute's text, its structure, its legislative history, and its purpose. 

As to the text, the parties disagree about the plain meaning of the words "final order" and 

"complaint" in the phrase "immediate reinstatement of the miner pending final order on the 

complaint" in section 105( c )(2), and offer several competing interpretations. The Secretary 

argues that the words refer to the Commission's final order on the miner's underlying complaint 

of discrimination. S. Br. at 10-15. A&S, echoing the judge, 30 FMSHRC at 1121, contends that 

the "final order" occurs when the Secretary's involvement ends, after the investigatory findings 

do not show a violation of section 105( c )(1 ). In its reply brief, A&S argues that a "final order" of 

the Commission can arise out of the Secretary's investigatory determination, just as a final order 

can arise out of an operator's failure to timely contest a proposed assessment by the Secretary 

under sections 105(a) and (b). A&S R. Br. at 3-5. A&S also states that the judge's order 

dismissing the case when the Secretary chose not to proceed constitutes a final order of the 

Commission. Id. at 4. 

Likewise, my colleagues disagree as to the "plain meaning" of the text. Commissioners 

Duffy and Young assert that the textual language means that the temporary reinstatement order 

remains effective pending the Commission's final order on the miner's discrimination complaint 

to the Secretary.under section 105( c )(2), and that this final order occurs when the judge, upon, 

notification by the Secretary of a determination of no discrimination .under section 105(c )(1);. 

issues an order dissolving temporary reinstatement and dismissing the temporary reinstatement 

proceeding. Slip. op. at 8. On the other hand, Chairman Jordan agrees with the Secretary that 

the textual language refers to the Commission's final order disposing of the miner's complaint of 

discrimination to MSHA. Chairman Jordan disputes Commissioners Duffy and Young, arguing 

that the fmal order on which the dissolution of temporary reinstatement is predicated cannot be 

the order which itself dissolves temporary reinstatement. Slip op. at 18. 

This brief summary of the different "plain meanings" which have been advanced in this 

case for the statutory text "reinstatement of the miner pending final order on the complaint" -

most of which have at least some justification - illustrates that the text actually does not have a 

plain meaning. 

Differences also emerge when the parties and my colleagues examine the structure of the 

statute. The Secretary argues that a finding that the complaint was not fii.volously brought, which 

triggers temporary reinstatement under section 105( c )(2), is different from a determination that 

the substantive discrimination provisions of section 105( c )(1) were not violated. The 

determination that a substantive violation has not occurred must be made by the Commission, not 

the Secretary, and case law establishes that a violation may have occurred even though the 

Secretary declined to file a complaint. The Secretary further asserts that 105( c )(2) and 105( c )(3) 

actions before the Commission have the same relationship to the miner's underlying 

discrimination complaint. S. Br. at 15-21. However, following the reasoning of the judge, 30 

FMSHRC at 1121-22, A&S argues that section 105(c)(2) and section 105(c)(3) embody different 

31 FMSHRC 1000 
kinds of complaints and procedures. Temporary reinstatement only occurs in the context of 

section 105( c )(2). Moreover, a miner does not face lengthy delays in a complaint under section 

105(c)(3), which the statute requires to be "expedited." A&S Br. at 7-11. Similarly, 

Commissioners Duffy and Young describe a two-track system where the miner's "complaint" in 

section 105(c)(2) is distinctly different from the miner's "action" in section 105(c)(3). 

Temporary reinstatement applies in section 105( c )(2) but not in section 105( c )(3). Their opinion 

concludes that if the Secretary makes a determination of no discrimination, the miner's original 

complaint has no legal status, and the miner must initiate a new "action," distinct from his 

original "complaint." Slip op. at 6-7. However, Chairman Jordan contends that the section 

105(c)(3) "action" is not inherently different from the section 105(c)(2) "complaint," because the 

statute describes the party bringing the section 105( c )(3) "action" as the "complainant,;~which 

refers ·back to the miner's ,complaint under-section 105(c )(2). She .points out that the : , " '··' i ., .. '· . . , , , 

Commission's Procedural Rule 40(b ), 29 C.F .R. § 2700.40(b ), refers to the "action" filed by a 

miner under section 105(c)(3) as a "discrimination complaint." Chairman Jordan also cites case 

law in which the Commission has held that the requirement in section 105(c)(3) that the 

proceedings be "expedited" also applies to cases before the Commission under section 105(c)(2). 

Slip op. at 20. 

The' parties and my colleagues also have different interpretations of the legislative history 

of the temporary reinstatement provision. The Secretary cites the Senate Report, which states 

>that Congress intended that section 105( c) ''be construed expansively to assure that miners will , ,1 

· ·" not be inhibited in any way in exercising any rights afforded by the legislation." S. Rep. No.· ·95-

181, at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legi,slative 

History of the Federal Mine Safety and Health Act of 1977, at 624 ("Legis. Hist."). The 

Secretary quotes the same report to the effect that upon determining that the complaint was not 

frivolously brought, she shall seek "an order of the Commission temporarily reinstating the 

complaining miner pending.final outcome of the investigation and complaint ... [as] an 

essential protection for complaining miners who may not be in the financial position to suffer 

even a short period of unemployment or reduced income pending the resolution of the 

discrimination complaint." S. Br. at 21-23 (citing S. Rep. No. 95-181, at 37, Legi,s. Hist. at 625 

(emphasis in Secretary's brief)). In contrast, Commissioners Duffy and Young cite the 

Conference Report, which states that the Conference Committee adopts the Senate version of the 

provision, which, according to the Conference Committee, provides that if the complaint was not 

frivolously brought, the Secretary shall "seek temporary reinstatement of the complaining miner 

pending the.final outcome of the investigation." Slip op. at 11 (citing S. Conf. Rep. No. 95-461, 

at 52-53 (1977), reprinted inLegis. Hist. at 1330-31 (emphasis added)). Thus, the Conference 

Report referred to temporary reinstatement until completion of the investigation (if the Secretary 

did not find discrimination), while the Senate Report spoke of temporary reinstatement until the 

resolution of the entire complaint. The legislative history can be interpreted quite differently 

depending on which report is quoted. 

The parties and my colleagues also interpret the purpose of the temporary reinstatement 

provision differently. The Secretary, S. Br. at 21-23, and Chairman Jordan, slip op. at 21-22, 

31FMSHRC1001 
emphasize the need to fully protect the miner who is unemployed because of alleged 

discrimination, and conclude that a viable allegation of discrimination continues past an adverse 

finding by the Secretary and until the conclusion of proceedings by the Commission. However, 

A&S, Br. at 8-9, and Commissioners Duffy and Young, slip op. at 11-12, echoing the decision of 

the judge, 30 FMSHRC at 1122-23, emphasize a balancing of the interests of the miner and the 

operator, which is best accomplished by limiting temporary reinstatement to the period of the 

Secretary's investigation ifthe investigation does not result in a finding of discrimination. 

fu view of these different and contrary interpretations of the statute's text, its structure, its 

legislative history, and its purpose, all set forth as having a "plain meaning" and all containing at 

least some plausibility, I have to conclude that in terms of the Chevron I analysis, the statute is 

: ambiguous. . ·. / . : ... " .... . . . ;• c\: ;, •' 

I also note that former Commission Procedural Rule 45(g), 29 C.F.R. § 2700.45(g) 

(1999), permitted the dissolution of a temporary reinstatement order upon the Secretary's 

decision not to proceed on the complaint. The Commission has described this as "a 'gap filling' 

provision designed to deal with a situation not addressed by the statute - the status of a 

temporary reinstatement order following a determination by the Secretary that there has been no 

violation of section 105( c )." Sec '.Y of Labor on behalf of Bernardyn v. Reading Anthracite Co., 

·. 21FMSHRC947, 949-50 (Sept 1999) (emphasis,added): I fail to see how the statutory 

· · ; ' langua:ge can be considered plain when we have · aeknowledged that it pertained to a situati~n. 

· that Congress did not address. · · · 

Since the relevant statutory language is ambiguous, it is necessary under Chevron II to 

determine whether the Secretary's interpretation is reasonable and should be accorded deference. 

As demonstrated by the analysis of Chairman Jordan, I find that the Secretary's interpretation -

that a temporary reinstatement order must remain in effect until there is a final Commission order 

on the miner's underlying discrimination complaint (whether it is litigated by the Secretary 

pursuant to section 105(c)(2) or by the miner under section 105(c)(3))- is reasonable, and 

therefore it is entitled to deference. See Secy of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 

(D.C. Cir. 2003). 

My other colleagues claim that deference to the Secretary's policy position is not 

appropriate in this case. They base this assertion on their view that the Secretary is not "charged 

with administering" section 105( c) after she makes a determination of no discrimination. Slip 

op. at 13. According to them, once the Secretary has made such a determination, "there is no 

basis for her interest in continuing temporary reinstatement." Id. at 14. This is due to the 

"presumption of discrimination that underlies temporary reinstatement [that] cannot exist in a 

section 105(c)(3) proceeding." Id. This position misapprehends the role of temporary 

reinstatement under the Mine Act, and the Secretary's interest in implementing it. 

Commissioners Duffy and Young state that Chevron deference is owed to an agency 

interpretation "when the statutory provision being interpreted is one the agency is charged with 

31FMSHRC1002 
administering," slip op. at 13 (citing Energy West, 40 F.3d at 460) (emphasis added), which in 

tum cited to Chevron, 467 U.S. at 844. However, both the D.c: Circuit inEnergy West and the 

Supreme Court in Chevron, did not parse an agency's statutory authority provision by provision 

when articulating the general principles underlying the deference doctrine, but instead spoke of 

"an agency's interpretation of the statute it is charged with administering," Energy West, 40 F.3d 

at 460 (emphasis added), and "an agency's construction of the statute which it administers," and 

the weight to be accorded to "an executive department's construction of a statutory scheme, 

Chevron, 467 U.S. 842,.844 (emphases added). 

Moreover, my colleagues' are incorrect in stating that temporary reinstatement is 

predicated on a "presumption of discrimination." The statutory language does not, in any way, 

describe a "'presumption of discrimination" as the basis for temporary reinstatement. Rather,· 

temporary reinstatement is based on a finding by the Secretary that the discrimination claim was 

not ":frivolously brought." The fact that the Secretary may later find that discrimination did not 

occur does not alter or diminish her finding that the complaint was not "frivolously brought." 

Since the Secretary was the entity who made the determination that the complaint was not 

frivolously brought, which triggers temporary reinstatement in the first place, it makes no sense 

to say that the Secretary is not "charged with administering" the temporary reinstatement 

provision of the Act. ...... 

v~-; Additkmally, my colleagues' basis for refusing to accord.deference to the Secretary is an 

unnecessarily restrictive view of the Secretary's role under the Mine Act. The fact that the 

Secretary has determined that a miner has not demonstrated discrimination in a particular case 

does not change the Secretary's interest in ensuring that miners who file section 105(c)(3) actions 

are entitled, as a class, to continued temporary reinstatement until a final order of the 

Commission. Because "enforcement of the [Mine] Act is the sole responsibility of the 

Secretary," Sec'y of Labor v. Twentymile Coal Co., 456 F.3d 151, 161 (D.C. Cir. 2006), she has 

an interest in ensuring that section 105( c) is interpreted in an expansive manner, as vigorous 

protection for miners who make safety complaints (such as the complaint in this case, regarding 

miners operating equipment while under the influence of alcohol, S. Br. at 3). As the Secretary 

noted herein, "Congress . . . recognized the important role that individual miners play under the 

Mine Act in ensuring a safe and healthy working environment." S. Br. at 21 (quoting S. Rep. 

No. 95-181, at 35, Legis. Hist. at 623). The unfettered right of miners to complain about safety 

issues without fear of economic penalty strengthens the Secretary's ability to effectively enforce 

the Act. 

The Secretary has recognized Congress' concern that "temporary reinstatement is an 

essential protection for complaining miners who may not be in the financial position to suffer 

even a short period of unemployment. .... " S. Br. at 22 (quoting S. Rep. No. 95-181, at 37, 

Legis. Hist. at 625). Anything that could potentially diminish some miners' willingness to do 

31FMSHRC1003 
so -including the prospect of being fired in retaliation and not having the right to temporary 

reinstatement- thwarts the Secretary's overarching mission to make our nation's mines safer.3 

Thus, the fact that the Secretary has determined that there has been no violation of section 

105 ( c )( 1) in a particular case does not decrease her interest in guaranteeing that miners may make 

health or safety complaints free of economic coercion. Consequently, the Secretary has real 

interest in ensuring that her view of the Mine Act's temporary reinstatement provision prevails.4 

Finally, by invoking the Secretary's "negative determination on the question at issue" to 

deny her deference, my colleagues confuse the issue at hand. Although the Secretary indeed 

declined to continue to represent Phillips in his discrimination claim, the "question at issue" here 

is whether temporary reinstatement should be continued notwithstanding that determination - a 

•· ·questionto which the Seeretaryhas responded with-a resounding "yes." ... , .. ' , 

Accordingly, I would reverse the order of the judge. 

t~ . 

. . . . . . .. 

. ~ . . ·~ . ·. :: · .. ' 

Robert F. Cohen, Jr., Commissioner 

; . ·, .i 

· 

3 As the Eleventh Circuit pointed out in Smith v. Bel/south Telecommunications, Inc., 

273 F.3d 1303 (11th Cir. 2001), a case involving the private right of action created for employees 

under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"), "[i]f 

former employees like Smith knew they would have no remedy if their former employers 

retaliated against them for their past use ofFMLA leave, it would tend to chill employees' 

willingness to exercise their protected leave rights and would work against the purpose of the 

FMLA." 273 F.3d at 1313. 

4 My colleagues also err in their assertion that Secretary should not be accorded 

deference because she is not a party to the section 105(c)(3) case and has chosen to participate as 

amicus. Slip op. at 13. See Community Bank of Arizona v. G. V.M Trust, 366 F.3d 982, 987 (9th 

Cir. 2004) (recognizing that interpretations of the Office of the Comptroller of Currency 

("OCC") of the National Bank Consolidation and Merger Act contained in amicus briefs were 

entitled to "great weight" if those interpretations were reasonable); see also Bank of America v. 

City & County of San Francisco, 309 F.3d 551, 563 (9th Cir. 2002) (stating that "that the OCC's 

construction of the National Bank Act comes to us in the form of an amicus brief does not make 

it 'unworthy of deference."' (citation omitted)). 

31 FMSHRC 1004 
Distribution: 

Jason P. Kane,Esq. 

Ranson & Kane, P.C. 

34 Briargate Blvd., Suite 201 

Colorado Springs, CO 80920 

Peter J. Phillips 

P.O. Box41 

Florence, CO 81226 

John Paul Ary, Owner 

A& S Construction Co. 

P.O. Box 566 

Canon City, CO 80212 

Darrell Fisher, Superintendent 

A & S Construction Co. 

P.O. Box 566 

Canon City, CO 80212 

Robin Rosenbluth, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2296 

Administrative Law Judge David F. Barbour 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1005 

. ; . ' . 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

HANSON AGGREGATES 

MIDWEST, INCORPORATED 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

September 14, 2009 

Docket No. KENT 2009-376-M 

A.C. No. 15-00049-164776 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On December 9, 2008, the Commission received from 

Hanson Aggregates Midwest, fuc. ("Hanson") a letter seeking to reopen a penalty assessment that 

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

U.S.C. § 815(a). 

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

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

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

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

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(May1993) ("JWR"). fu evaluating requests to 

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

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

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

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

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

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

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

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

31FMSHRC1006 
The record -revealed that the operator misplaced the proposed penalty assessment and 

promptly sought re-opening when it discovered the assessment. The Secretary states that she 

does not oppose the reopening of the proposed penalty assessment. 

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

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC I 007 
Distribution: 

Todd Ernst, ESH Mngr. 

Hanson Aggregates Midwest, Inc. 

7000 Dry Fork Rd. 

Cleves, OH 45902 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31FMSHRC1008 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

HERITAGE COAL & NATURAL 

RESOURCES, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

September 14, 2009 

Docket No. YORK2009-143 

A.C. No. 18-00781-178016 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (''Mine Act"). On June 15, 2009, the Commission received a request to 

reopen a penalty assessment issued to Heritage Coal & Natural Resources, LLC ("Heritage") that 

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

U.S.C. § 815(a). 

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

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

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

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

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

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

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

31FMSHRC1009 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

On March 3, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Assessment No. 000178016 to Heritage, proposing penalties for two citations 

and two orders MSHA had previously issued to the operator. Heritage, which neither paid nor 

contested the penalties, states that it would like to reopen the assessment because it had requested 

but never received a conference with MSHA on the citations and orders and the operator's 

alleged negligence. 

The Secretary opposes Heritage's request to reopen. She states that MSHA has no record 

of a request for a conference by Heritage, and that in any event a request for a conference does 

not toll the 30 days an operator has in which to contest proposed penalties. 

31FMSHRC1010 
Having reviewed Heritage's request and the Secretary's response, we conclude that 

Heritage has failed to provide an adequate explanation for its failure to timely contest Proposed 

Assessment No. 000178016. Accordingly, we deny without prejudice Heritage's request to 

reopen. The words ''without prejudice" mean Heritage may submit another request to reopen so 

that it can contest the citations, orders, and penalty assessments. 1 

Robert F. Cohen, Jr., Commissioner 

1 If Heritage submits another request to reopen, it must establish good cause for not 

contesting the citations, orders, and proposed penalties within 30 days from the date it received 

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

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

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

relief Heritage sh9uld include a full description of the facts supporting its claim of "good 

cause," including how the mistake or other problem involving a conference request prevented it 

from responding within the time limits provided in the Mine Act, as part of its request to reopen 

the case. In addition, Heritage should submit copies of supporting documents with its request to 

reopen the case. 

31FMSHRC1011 
Distribution: 

Melissa Whipkey, Office Mngr. 

Heritage Coal & Natural Resources, LLC 

208 West Mud Pike Rd. 

Rockwood, PA 15557 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31FMSHRC1012 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

September 17, 2009 

Docket No. WEST 2009-932-M 

A.C. No. 26-02246-162985 

BARRICK GOLDSTRIK.E MINES, INC. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On May 28, 2009, the Commission received from Barrick 

Goldstrike Mines, Inc. ("Barrick") a motion by counsel seeking to reopen a penalty assessment 

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

U.S.C. § 815(a). 

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

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

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

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

However, we have held that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become fmal Commission orders lmder 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 fmal order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

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

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

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

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

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

31FMSHRC1013 
On September 17, 2008, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued Proposed Assessment No. 000162985 for nine citations issued 

to Barrick in July 2008. In its motion, Barrick states that the nine citations arose from an 

inspection that resulted in the issuance of 29 citations. The operator states that 20 of the 29 

citations were assigned to a different case. Barrick explains that it faxed the forms for both 

cases, along with the forms for seven other cases, to its counsel for the filing of contests. It 

further states that, although it received notification that the facsimile transmissions had been 

successful, the form for Proposed Assessment No. 000162985 had not been successfully 

transmitted. The operator asserts that it did not learn of the error until it received a notice of 

collection action from the Department of Treasury. The Secretary states that she does not oppose 

the reopening of the proposed penalty assessment. · 

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

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1014 
Distribution: 

Michael T. Heenan, Esq. 

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

2400 N Street NW, 5th Floor 

Washington, DC 20037 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. 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 

31FMSHRC1015 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PITLICK & WICK, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

. WASHINGTON, DC 20001 

September 20, 2009 

Docket No. LAKE 2008-345-M 

A.C. No. 47-02043-140232 

Docket No. LAKE 2008-346-M 

A.C. No. 47-02940-140235 

Docket No. LAKE 2008-347-M 

A.C. No. 47-03245-140241 

Docket No. LAKE 2008-348-M 

A.C. No. 47-03367-140245 

BEFORE: Jordan, Chairman; Duffy, Young, and Coheri, Commis$ioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On April 14, 2008, and November 21, 2008, the Commission 

received from Pitlick & Wick, Inc. ("Pitlick") motions from counsel 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). 

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). 

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

31FMSHRC1016 
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). 

On November 7, 2008, the Commission denied without prejudice Pitlick's request on the 

basis that the operator had failed to provide "a sufficiently detailed explanation for its failure to 

timely contest the proposed penalty assessments." Pitlick & Wick, Inc., 30 FMSHRC 1006, 1008 

(Nov. 2008). On November 21, Pitlick promptly filed a second motion to reopen the penalty 

assessments with an affidavit that more fully explained the reason for its delay in contesting the 

a~sessments. The Secretary has not opposed the requests to reopen. 

Having reviewed Pitlick's request and the Secretary's response, in the interest of justice, 

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

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

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

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

Robert F. Cohen, Jr., Commissioner· 

31FMSHRC1017 
Distribution: 

Adele L. Abrams, Esq. 

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

4740 Corridor Place, Suite D 

Beltsville, MD . 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

· 1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. OfLabor 

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 

31FMSHRC1018 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WAYNE RAY, employed by 

OAK GROVE RESOURCES 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

September 22, 2009 

Docket No. SE 2009-171 

A.C. No. 01-00851-161298 A 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (''Mine Act"). On December 12, 2008, the Commission received from 

Wayne Ray a motion by counsel in which Mr. Ray seeks to reopen a penalty assessment under 

section llO(c) of the Mine Act, 30 U.S.C. § 820(c), that had allegedly become a final order of the 

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

Under the Commission's Procedural Rules, an individual charged under section 1 lO(c) 

has 30 days following receipt of the proposed penalty assessment within which to notify the 

Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the 

individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order 

of the Commission. 29 C.F.R. § 2700.27. 

On August 27, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 00161298A. Mr. Ray states that he did not learn of 

the proposed assessment until his counsel received a delinquency notice dated November 28, 

2008, indicating that the assessment had become a final order of the Commission. The Secretary 

confirms that the proposed assessment was never received by Mr. Ray and was returned to 

MSHA because delivery was refused by the law firm representing him. The Secretary submits 

that the assessment was addressed solely to Mr. Ray at the street address of the law firm and that 

delivery was refused "because the address did not indicate that the assessment was meant to be 

delivered to the law firm or to Mr. Ray's attorney." 

31FMSHRC1019 
Having reviewed Mr. Ray's request and the Secretary's response, we find the request to 

reopen to be moot because Mr. Ray never properly received the assessment and the proposed 

assessment has not become a final order of the Commission. 1 Since Mr. Ray is now aware of the 

proposed penalty assessment, he has 30 days from the date of this order to either contest or pay 

the proposed penalty. If the proposed penalty is timely contested by Mr. Ray, this case shall 

proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

Robert F. Cohen, Jr., Commissioner 

1 The Commission has previously stated that, in a section 110( c) proceeding, MSHA 

should send the proposed assessment to the individual at his home address or "in care of' counsel 

at counsel's address. E.g., Stech, employed by Eighty-Four Mining Co., 27 FMSHRC 891, 892, 

n.1 (Dec. 2005). 

31 FMSHRC 1020 
Distribution: 

F. Thomas Rubenstein, 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 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31FMSHRC1021 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMIN1STRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

September 23, 2009 

Docket No. CENT 2008-420-M 

DARBY SANDERS, Formerly Employed by 

NATURAL MATERIALS, LLC 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On November 4, 2008, Chief Administrative Law Judge 

Robert J. Lesnick issued to Darby Sanders, formerly employed by Natural Materials, LLC 

(''Natural Materials"), an Order to Show Cause for failure to answer the Secretary of Labor's 

petition for assessment of civil penalty against him. The case was subsequently assigned to 

Administrative Law Judge Gary Melick and, on February 6, 2009, Judge Melick entered an Order 

of Default against 

Mr. Sanders. 

On May 14, 2009, the Commission received a motion from Mr. Sanders requesting that 

the Commission reopen the penalty assessment proceeding and relieve him from the order of 

default. Mr. Sanders states that he was employed by Natural Materials from May 2005 until 

December 2007, when the company filed for bankruptcy, and that he remained in contact with 

the company throughout the first half of 2008. Mr. Sanders submits that he told Natural 

Materials that he had requested a hearing, and that the operator assured him that it would handle 

everything including setting a hearing date. Mr. Sanders explains that he moved from the area 

for work and had difficulty communicating with the operator because his letters were returned 

and the operator's phones were disconnected. Mr. Sanders later contacted former Natural 

Materials management officials and discovered that the operator was not, in fact, acting on his 

behalf. The Secretary did not respond to the request to reopen. 

31FMSHRC1022 
The judge's jurisdiction in this matter terminated when his decision was issued on 

February 6, 2009. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's 

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

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

§ 2700.70(a). If the Commission does not direct review within 40 days of a decision's issuance, 

it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(l). The judge's order 

became a final decision of the Commission on March 18, 2009. 

In evaluating requests to reopen final orders, the Commission has found guidance in Rule 

60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled 

to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable 

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

practicable by the Federal Rules of Civil Procedure"); Jim Walter Res., Inc., 15 FMSHRC 782, 

786-89(May1993) ("JWR"). We have also observed that default is a harsh remedy-and that, if 

the defaulting party can make a showing of good cause for a failure to timely respond, the case 

may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., 

Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

31 FMSHRC 1023 
Upon review of the record, it appears that Mr. Sanders may not have received the show 

cause order in a manner that permitted his timely response. Accordingly, in the interest of 

justice, we hereby vacate the Order of Default and remand this matter to Administrative Law 

Judge Gary Melick for further appropriate proceedings. See generally Oak Grove Res., LLC, 29 

FMSHRC 766, 767 (Sept. 2007) (vacating default when show cause order provided inadequate 

notice). 

omnuss1oner 

RoHert F. Cohen, Jr., CommissiM.er 

31 FMSHRC 1024 
Distribution: 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209~2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

· U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Darby J. Sanders 

4 71 Pin Oak Drive 

Ida Grove, Iowa 51445 

Nick Kinser 

1439 KAvenue 

Red Oak, IA 51566 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Com.mission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1025 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

September 23, 2009 

Docket No CENT 2009-155 

A.C. No. 41-03658-168100 

LUMINANT MINING COMP ANY, LLC 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On December 22, 2008, the Commission received from 

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

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

Mine Act, 30 U.S.C. § 815(a). 

Under section 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). 

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(May1993) ("JWR"). In evaluating requests to 

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

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

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

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

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

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

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

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

31 FMSHRC 1026 
Luminant's safety coordinator states that he discussed the proposed assessment with his 

supervisor, the safety director, and that he believed the proposed assessment would be forwarded 

to Luminant's counsel for filing a contest. However, it was apparently not forwarded to counsel. 

Lumiriant states that, because of this "internal miscommunication," it failed to timely request a 

hearing on the penalty. 

The Secretary opposes reopening the proposed penalty assessment because, among other 

things, she believes that Luminant' s excuse for failing to timely file a contest to the proposed 

penalty is "conclusory." 

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

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

whether good cause exists for Luminant' s failure to timely contest the penalty and whether relief 

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

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

Rules, 29 C.F.R.§ 2700. 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1027 
Distribution: 

Karen L. Johnston, Esq. 

Jackson Kelly PLLC 

1099 18th Street, Suite 2150 

Denver, CO 80202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1028 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

September 23, 2009 

Docket No. CENT 2009-433 

A.C. No. 41-04586-180077 Z8T 

BUCYRUS FIELD SERVICES, INC. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On May 18, 2009, the Commission received from Bucyrus 

Field Services, Inc. ("Bucyrus") a motion by counsel to reopen a penalty assessment that had 

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

§ 815(a). 

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

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

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

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

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(May1993) ("JWR"). In evaluating requests to 

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

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

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

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

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

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

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

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

31 FMSHRC 1029 
The record indicates that the operator submitted its contest of the proposed penalty for 

Citation No. 8455328 two days late due to confusion about the due date. 1 The Secretary states 

that she does not oppose reopening the proposed penalty assessment. 

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

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

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

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

penalty with respect to Citation No. 8455328 within 45 days of the date of this order. See 29 

C.F.R. § 2700.28. 

Robert F. Cohen, Jr., Commissioner 

1 The operator submits that its contest of the proposed penalty assessment was timely 

because the time for response was extended by five days under Commission Procedural Rule 

8(b). 29 C.F.R. § 2700.8(b) (providing in part that "[w]hen a party serves a pleading by a 

method of delivery other than same-day service, the due date for party action in response is 

extended 5 additional calendar days"). We reject the argument. Section 105(a) of the Mine Act 

requires that an operator notify the Secretary of a penalty contest "within 30 days from the receipt 

of the notification issued by the Secretary." 30 U.S.C. § 815(a). Similarly, the Secretary's 

regulations, 30 C.F.R. § 100.7(c), and the Commission's regulations, 29 C.F.R. § 2700.27, both 

plainly provide that to be timely, an operator's notice of contest must be submitted within 30 

days of receipt of the proposed penalty assessment. The extension allowed under Rule 8(b) 

applies to responsive pleadings and, as the Secretary asserts, a proposed penalty assessment is not 

a pleading. Moreover, since the 30-day time period for responding to a proposed assessment 

begins to run upon receipt by the operator, the method of service chosen by MSHA for delivering 

the proposed assessment does not reduce the operator's 30-day period. 

31 FMSHRC 1030 
Distribution: 

Christopher A. Brumley, Esq. 

Flaherty, Sensabaugh & Bonasso, PLLC 

200 Capitol Street 

P.O. Box 3843 

Charleston, WV 25338-:3843 

M. Scott Meachum, Esq. 

Flaherty, Sensabaugh & Bonasso, PLLC 

200 Capitol Street 

P.O. Box 3843 

Charleston, WV 25338-3843 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 251h 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 

31FMSHRC1031 

: . 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY _OF L~OR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

AUGUST WINTER & SONS, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

September 24, 2009 

Docket No. LAKE 2009-447-M 

A.C. No. 47-02918-175141Wl78 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On May 1, 2009, the Commission received from 

August Winter & Sons, fuc. ("Winter") a letter seeking to reopen a penalty assessment that had 

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

§ 815(a). 

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

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

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

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

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) (".!WR"). fu evaluating requests to 

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

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

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

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

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

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

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

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

31 FMSHRC 1032 
On January 21, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Penalty Assessment No. 000175141 to Winter, proposing a civil 

penalty for one citation. The operator's safety director states that he was not notified of the 

citation until April 24, 2009, "[d]ue to clerical issues" and, as a result of the delay, the operator 

was unable to timely contest the citation and proposed penalty. The Secretary opposes the 

request to reopen on the ground that the operator's statement that it failed to timely contest the 

proposed assessment due to "clerical issues" does not demonstrate circumstances that warrant 

reopenmg. 

31 FMSHRC 1033 
Having reviewed Winter's request to reopen and the Secretary's response, we agree with 

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

timely contest the proposed penalty assessment. Winter's conclusory statement that it failed to 

timely contest because of clerical issues does not provide the Commission with an adequate basis 

to reopen. Accordingly, we deny without prejudice Winter's request. See, e.g., BRS Inc., 30 

FMSHRC 626, 628 (July 2008); Eastern Associated Coal, LLC, 30 FMSHRC 392, 394 (May 

2008). The words "without prejudice" mean Winter may submit another request to reopen the 

case SO that it can contest the citation and penalty assessment. 1 

Robert F. Cohen, Jr., Commissioner 

1 If Winter submits another request to reopen the case, it must establish good cause for 

not contesting the citation and proposed assessment within 30 days from the date it received the 

proposed penalty assessment from MSHA. Under Rule 60(b) of the Federal Rules of Civil 

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

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

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

adverse party. Winter should include a full description of the facts supporting its claim of"good 

cause," including how the mistake or other problem prevented Winter from responding within 

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

submit copies of supporting .documents with its request to reopen the case. 

31 FMSHRC 1034 
Distribution: 

Gary Winter, Safety Dir. 

August Winter & Sons, Inc. 

2323 Roemer Rd. 

P.O. Box 1896 

Appleton, WI 54911 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31FMSHRC1035 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

OLD DOMINION ENERGY, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

September 24, 2009 

Docket No. VA 2009-270 

A.C. No. 44-07074-169050 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On May 8, 2009, the Commission received from Old· 

Dominion Energy, Inc. ("Old Dominion") a motion by counsel seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

31 FMSHRC 1036 
On November 13, 2008, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued Proposed Assessment No. 000169050 to Old Dominion, which 

proposed civil penalties for 24 citations. Old Dominion states that it intended to contest the 

penalties for Citation Nos. 6641802, 6641805, 6641806, 6641807, 6641808, 6641816, 6641817, 

and 6638021 and to pay the remaining penalties. 1 It further states that on November 25, 2008, it 

submitted its contest of the eight penalties to MSHA's Civil Penalty Compliance Office, and on 

December 10, 20_08, sent a check to MSHA for the remaining penalties. The operator submits 

that it became aware that the penalties had not been contested when it received a notice of 

delinquency from MSHA. It explains that funds from the payment it made were misapplied to 

some of the citations which it intended to contest, and other penalties which it intended to pay are 

shown as .delinquent. 

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

assessment. She notes, however, that while the payment was received at MSHA's payment 

processing center, there is no record that the penalty contest form was received by MSHA' s Civil 

Penalty Compliance Office. 

1 The operator's counsel has confirmed that the operator intended to contest the penalties 

associated with these citations, as the citation numbers are listed in the proposed assessment 

attached to Old Dominion's motion to reopen. Some of the citation numbers set forth in the 

motion were transposed. 

31FMSHRC1037 
Having reviewed Old Dominion's request and the Secretary's response, in the interests of 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1038 
Distribution: 

Melissa Robinson, Esq. 

Jackson Kelly PLLC 

1600 Laidley Tower 

P.O. Box 553 

Charleston, WV 25322 . 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra J aines, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 251

h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31FMSHRC1039 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

A MINING GROUP, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

September 29, 2009 

Docket No. SE 2009-505-M 

A.C. No. 08-01340-159339 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (''Mine Act"). On May 11, 2009, the Commission received from A Mining 

Group, LLC ("AMG") a motion by counsel seeking to reopen a penalty assessment that had 

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

§ 815(a). 

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

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

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

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

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(May1993) ("JWR"). In evaluating requests to 

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

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

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

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

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

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

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

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

31 FMSHRC 1040 
In an affidavit, the operator states that on May 21, 2008, it received Citation No. 7751269 

and that it timely contested the citation. In November 2008, it received a delinquency notice 

from the Department of Labor's Mine Safety and Health Administration ("MSHA"). AMG 

states that it attempted on numerous occasions to contact MSHA about the matter but was 

unsuccessful. The operator's counsel investigated the matter and determined that the operator 

had failed to contest Proposed Assessment No. 000159339, which proposed a civil penalty for 

Citation No. 7751269. AMG contends that it has no record of having received the proposed 

assessment. The Secretary does not oppose reopening the proposed assessment but notes that 

FedEx records indicate that the proposed assessment was received on August 13, 2008. 

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

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1041 
Distribution: 

Adele L. Abrams, Esq. 

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

4 7 40 Corridor Place, Suite D 

Beltsville, MD. 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson.Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

C~ef Adminjstrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1042 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

September 30, 2009 

Docket No. LAKE 2008-349-M 

A.C. No. 47-03165-140238 

Docket No. LAKE 2008-350-M 

A.C. No. 47-03191-140239 

NORTHERN LAKES CONCRETE, INC. Docket No. LAKE 2008-351-M 

A.C. No. 47-03330-140242 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On April 14, 2008, and November 21, 2008, the Commission 

received from Northern Lakes Concrete, Inc. ("Northern Lakes") motions by counsel seeking to 

reopen three penalty assessments that had become final orders of the Commission pursuant to 

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

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

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

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

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

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(May1993) ("JWR"). In evaluating requests to 

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

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

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

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

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

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

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

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

31 FMSHRC 1043 
On November 7, 2008, the Commission denied without prejudice Northern Lake's 

request on the basis that the operator had failed to provide "a sufficiently detailed explanation for 

its failure to timely contest the proposed penalty assessments." Northern Lakes Concrete, Inc., 

30 FMSHRC 1010, 1011(Nov.2008). On November 21, 2008, Northern Lakes promptly filed a 

second motion to reopen the penalty assessments with an affidavit that more fully explained the 

reason for its delay in contesting the assessments. The Secretary has not opposed the requests to 

reopen. 

Having reviewed Northern Lake's requests and the Secretary's response, in the interest of 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 1044 
Distribution: 

Adele L. Abrams, Esq. 

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

4740 Corridor Place, Suite D 

Beltsville, MD · 20705. 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31FMSHRC1045 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

THE BANNER COMP ANY, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

September 30, 2009 

Docket No. VA 2009-90 

A.C. No. 44-07181-159712 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On December 5, 2008, the Commission received from The 

Banner Company, LLC ("Banner") a motion by counsel to reopen a penalty assessment that had 

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

§ 815(a). 

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

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

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

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

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(May1993) ("JWR"). In evaluating requests to 

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

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

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

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

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

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

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

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

31 FMSHRC 1046 
The record indicates that the operator submitted its contest to the proposed penalty 

assessment one day late due to confusion about the due date. 1 The Secretary states that she does 

not oppose reopening the proposed penalty assessment. 

1 The operator submits that its contest of the proposed penalty assessment was timely 

because the time for response was extended by five days under Commission Procedural Rule 

8(b). 29 C.F.R. § 2700.S(b) (providing in part that "[w]hen a party serves a pleading by a 

method of delivery other than same-day service, the due date for party action in response is 

extended 5 additional calendar days"). We reject the argument. Section 105(a) of the Mine Act 

requires that an operator notify the Secretary of a penalty contest "within 30 days from the receipt 

of the notification issued by the Secretary." 30 U.S.C. § 815(a). Similarly, the Secretary's 

regulations, 30 C.F.R. § 100.7(c), and the Commission's regulations, 29 C.F.R. § 2700.27, both 

plainly provide that to be timely, an operator's notice of contest must be submitted within 30 

days of receipt of the proposed penalty assessment. The extension allowed under Rule 8(b) 

applies to responsive pleadings and, as the Secretary asserts, a proposed penalty assessment is not 

a pleading. Moreover, since the 30-day time period for responding to a proposed assessment 

begins to run upon receipt by the operator, the method of service chosen by MSHA for delivering 

the proposed assessment does not reduce the operator's 30-day period. 

31FMSHRC1047 
Having reviewed Banner's request and the Secretary's response, in the interests of justice, 

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

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

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

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

Micha 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 1048 
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 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1049 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of ROBERT GATLIN 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 8, 2009 

Docket No. KENT 2009-1418-D 

KENAMERICAN RESOURCES, INC. 

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

DECISION 

BY THE COMMISSION: 

This discrimination proceeding arises under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act"). On August 31, 2009, Administrative Law 

Judge Margaret Miller issued an order temporarily reinstating Robert Gatlin to employment with 

KenAmerican Resources, Inc. ("KeriAmerican") pursuant to section 105(c)(2) of the Mine Act, 

30 U.S.C. § 815(c)(2). On September 18, 2009, the Judge issued an order clarifying and adding 

to the temporary reinstatement order. KenAmerican filed a petition with the Commission 

seeking review of the Judge's September 18 order. In the petition, KenAmerican also moves the 

Commission to stay the effect of the September 18 order pending the Commission's review and 

decision. For the reasons that follow, we grant the petition, deny the motion for stay, vacate the 

September 18 order, and remand the matter to the Judge for further proceedings. 

I. 

Factual and Procedural Background 

The facts of this case are set forth in detail in the Judge's August 31 order. Mr. Gatlin 

was employed with KenAmerican from February 2009 until he was discharged on June 7, 2009. 

Mr. Gatlin was discharged on June 7 after he refused to work in a section ofKenAmerican's 

Paradise No. 9 Mine, which he believed to be unsafe. Mr. Gatlin filed a complaint with the 

Department of Labor's Mine Safety and Health Administration ("MSHA") alleging that the 

31 FMSHRC 1050 
discharge amounted to discrimination in violation of section 105( c) of the Mine Act. The 

Secretary filed an Application for Temporary Reinstatement on August 3~ 2009, and the Judge 

held a hearing on the application on August 20, 2009. 

The Judge concluded that the Secretary had made a sufficient showing of the elements of 

a prima facie discrimination case and that she met her burden of establishing that Mr. Gatlin's 

discrimination complaint had not been frivolously brought. 1 Aug. 31 Order at 8. More 

specifically, the Judge determined that the Secretary had presented evidence that Mr. Gatlin 

refused to work on June 7 because he had a good faith belief that the section he was assigned to 

was unsafe, and that Mr. Gatlin had expressed his concern to KenAmerican management. Id. at 

6. The Judge further found that there was sufficient evidence that KenAmerican did not address 

Mr. Gailin's concerns and terminated Mr. Gatlin for his work refusal. Id. at 7-8. Accordingly, 

the Judge ordered KenAmerican to temporarily reinstate Mr. Gatlin to his former po_sition 

effective as of the date of the order, noting that the operator could economically reinstate Mr. 

Gatlin if it chose to do so. Id. at 8. 

On September 11, 2009, the Secretary filed a Motion to Enforce Order of Temporary 

Reinstatement with the Judge. The Secretary stated in the motion that although KenAmerican 

had been ordered on August 31, 2009 to temporarily reinstate Mr. Gatlin, the operator had failed 

to do so, and was contending that Mr. Gatlin's position had been eliminated in a layoff. Mot. at. · ., · · .. 

1. The Secretary asserted that KenAmerican had an obligation to reinstate Mr. Gatlin regardless 

of whether it was economically beneficial for it to do so. Id. at 2. The Secretary requested that: 

the Judge immediately reinstate Mr. Gatlin to his former position pending the final hearing and 

disposition of the case. Id. 

On September 15, KenAmerican filed an opposition to the Secretary's motion with the 

Judge. The operator asserted that it had not failed to reinstate Mr. Gatlin, and that it considers 

Mr. Gatlin reinstated as of August 31. KA Resp. to Mot. to Enforce ("KA Resp.") at 1, 2. It 

explained that, as it had indicated in a teleconference with the Judge and the Secretary on 

September 3, KenAmerican intended to offer economic reinstatement to Mr. Gatlin. Id. at 1. 

The operator stated that while it was in the process of finalizing a Joint Motion to Approve 

Economic Reinstatement Agreement with the Secretary, an independent management decision 

was made to idle KenAmerican operations with a massive workforce reduction, and that counsel 

learned of the decision on September 10, 2009. Id. at 1-2. As of September 14, 2009, 290 of370 

employees were laid off because the Paradise mine was idled due to adverse mining conditions. 

Id. at 2. The operator states that Mr. Gatlin was among the employees subject to the layoff, and 

that his selection was made solely on the basis of skill level, performance, and years of service as 

related to operational needs. Id. KenAmerican contended that a bona fide economic 

retrenchment bars reinstatement, and that the reinstatement order should not be enforced because 

1 The scope of a hearing on an application for temporary reinstatement is limited to a 

determination of whether the miner's complaint was frivolously brought. 29 C.F.R. 

§ 2700.45(d). 

31FMSHRC1051 
there is no job to which Mr. Gatlin could be reinstated, and it would be inequitable for Mr. Gatlin 

to be paid while other, more senior, miners are out of work. Id. at 3-4. KenAmerican states that 

it made an offer to the Secretary to pay Mr. Gatlin from August 31 to September 18, the last pay 

date for laid-off employees.2 Id. at 2. KenAmerican attached to its opposition an affidavit 

supporting its factual allegations. 

On September 18, the Judge issued an order clarifying and adding to the August 31 

temporary reinstatement order ("Sept. 18 Order").3 The Judge concluded that Mr. Gatlin must be 

reinstated to his former position, at least temporarily, until the layoff can be reviewed with other 

aspects of the case. Sept. 18 Order at 2. She explained that "A temporary reinstatement order, 

such as the one issued here, requires the complaining miner to be re-employed, under any . 

circumstance, including changing circumstances at the mine:" Id. ·The Judge reasoned that to ·· 

determine otherwise would be to undermine the purpose of the temporary reinstat~ment and to 

grant the mine operator a defense that was not raised during the temporary reinstatement hearing. 

Id. Accordingly, the Judge ordered that the operator begin the economic reinstatement of Mr. 

Gatlin immediately without the need for further agreement or order. Id. 

In its petition, KeJJAmerican states that the Judge's Sept. 18 Order is contrary to law and 

is not supported by substantial evidence. Pet. at 3. KenAmerican maintains that the Secretary 

; ·.. has ndt disputed its submission.that due to economic reasons precipitated by adverse mining;, 

conditions, the Paradise Mine was idled, which necessitated a massive workforce reduction,.·. . 

including Mr. Gatlin, whose selection was based solely on skill level, performance and years, of· . 

service as related to operational needs. Id. at 4. It submits, therefore, that the "undeniable facts 

before the Judge are that [Mr.] Gatlin was laid off after his reinstatement as part of a massive 

workforce reduction and would have been in the same situation had there never been a prior 

termination or reinstatement." Id. at 5 (emphasis omitted). KenAmerican states that a change in 

circumstances does, in fact, make a difference in terms of whether a reinstatement is enforceable. 

Id. at 6. It explains that a miner cannot be reinstated to a position that no longer exists, and that 

it could not have raised such a defense at the temporary reinstatement hearing because the 

2 KenAmerican's counsel states that after learning of the layoff decision, he contacted 

counsel for the Secretary to verbally relay information about the layoff and to inform the 

Secretary that KenAmerican would pay Mr. Gatlin until the day of the workforce reduction. 

Rather than determining unilaterally that the workforce reduction justified terminating Mr. 

Gatlin's reinstatement, KenAmerican should have moved the Judge to modify the August 31 

Order. See Consolidation Coal Co., 14 FMSHRC 956, 970 (June 1992) ("[N]o operator is free 

to take the law into its own hands by deciding for itself what the law means and how it can best 

be applied."). 

3 The Judge stated that she lacks authority to enforce her own orders, and that if the 

Secretary believes that the temporary reinstatement order is not being fully enforced, the 

Secretary's remedy is to seek injunctive or other appropriate relief from a United States District 

Court. Sept. 18 Order at 1. She interpreted the Secretary's motion to be one for clarification. Id. 

31 FMSHRC 1052 
circumstances surrounding the layoff occurred one month after the hearing. Id. Accordingly, 

KenAmerican requests that the Judge's order be reversed and moves the Commission to stay the 

effect of the order pending its review and decision. Id. at 1, 8. 

The Secretary responds that KenAmerican has not established that changed circumstances 

warrant relief from the Judge's temporary reinstatement order. S. Resp. at 9-11. First, she 

argues that KenAmerican is estopped from arguing that changed circumstances warrant relief. 

Id. at 11-12. The Secretary explains that parties may be estopped from taking inconsistent 

positions in the same litigation. Id. at 11. She asserts that because KenAmerican chose to pay 

Mr. Gatlin money without receiving job services from him, it cannot now take the inconsistent 

position that it should be relieved from paying him because a layoff eliminated his job. Id. Ne:xt, 

the Secretaryargues inthe alternative that ifKenAmerican·is not estopped, the Commission,: ·· 

should remand the case to the Judge in order to give KenAmerican an opportunity to prove that 

changed circumstances warrant relief from the temporary reinstatement order. Id. at 12-16. The 

Secretary acknowledges that under Commission precedent, an operator may be able to convince a 

Judge that changed circumstances make compliance with a temporary reinstatement order 

impossible. Id. at 12. She states that the affidavit submitted by the operator is inadequate but 

that it should be provided an opportunity to make such a showing. Id. at 12-14. Finally, she 

asserts that the Commission should deny KenAmerican' s motion to stay because the operator . 

failed to adequately brief the issue and because it failed to establish the extraordinary ,, ... · 

circt.unstanceswarranting a stay. Id. at 16-19. ,,, 

' ' 

II. 

Disposition 

Under section 105(c)(2) of the Mine Act, "if the Secretary finds that [a discrimination] 

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

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

complaint." 30 U.S.C. § 815(c)(2). The Commission has repeatedly recognized that the "scope 

of a temporary reinstatement hearing is narrow, being limited to a determination by the judge as 

to whether a miner's discrimination complaint is :frivolously brought." See Sec'y of Labor on 

behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), ajf'd sub nom. Jim 

Walter Res., Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990). It is "not the judge's duty, nor is it 

the Commission's, to resolve the conflict in testimony at this preliminary stage of the 

proceedings." Sec'y of Labor on behalf of Albu v. Chicopee Coal Co., 21FMSHRC717, 719 

(July 1999). 

Here, KenAmerican has not challenged the Judge's determination that Mr. Gatlin's 

discrimination complaint was not frivolously brought. Rather, KenAmerican challenges the 

period of time for which it must economically reinstate Mr. Gatlin. fu such circumstances, the 

Commission reviews a ''judge's remedial order for abuse of discretion and to ensure that it 

effectuates the purposes of the Mine Act." Sec'y of Labor on behalf of Rieke v. Akzo Nobel Salt, 

31FMSHRC1053 
Inc., 19 FMSHRC 1254, 1258 (July 1997). Abuse of discretion may be found when "'there is no 

evidence to support the decision or if the decision is based on an improper understanding of the 

law.'" Id. at 1258 n.3 (citations omitted). 

We conclude that the Judge's decision is based on an improper understanding of the law.4 

The Judge abused her discretion when she determined that a temporary reinstatement order 

requires a miner to be employed under any circumstance, regardless of changes that occur at the 

mine after issuance of the temporary reinstatement order. Sept. 18 Order at 2. 

The Commission has recognized that the occurrence of certain events, such as a layoff for 

economic reasons, may toll an operator's reinstatement obligation or the time for which an 

·operator is required to pay back pay to a· discriminatee. 'See Simpson v. Kenta Energy, Inc., 11 

FMSHRC 1638, 1639 (Sept. 1989) (holding that back pay is due to a discriminatee from the date 

of the unlawful discharge until the time of reinstatement or "the occurrence of an event tolling 

the reinstatement obligation"); Wiggins v. E. Assoc. Coal Corp., 7 FMSHRC 1766, 1772-73 

(Nov. 1985) (concluding that back pay award ended upon date oflayoff). As a Commission 

Judge reasoned, "if business conditions result in a reduction in the work force the right to back 

pay is tolled because a discriminatee is entitled to back pay only for the period during which he 

would have worked but for the unlawful discrimination." Casebolt v. Falcon Coal Co., Inc., 6 

FMSHRC 485, 499 (Feb.1984) (ALJ) (citations omitted); see also NLRB v. Federal Bearings ;, 

Co., .109 F.2d 945 (2d Cir. 1940) (concluding that an employer should not be held in contempt 

for failing to reinstate a wrongfully discharged employee when depressed business conditions 

required a reduction in force). 

Thus, as noted by both parties (Pet. at 5; S. Resp. at 12), Commission precedent 

recognizes that a change in circumstances may be relevant to tolling economic reinstatement in a 

temporary reinstatement proceeding. See generally Sec '.Y of Labor on behalf of Shepherd v. 

Sovereign Mining Co., 15 FMSHRC 2450 (Dec. 1993) (remanding to Judge to determine effect 

of operator's layoff on Judge's temporary reinstatement order). We therefore hold that the Judge 

erred in concluding that a miner must remain temporarily reinstated notwithstanding changing 

circumstances at the mine. 

The Commission has also recognized in remedial contexts that an operator has the burden 

of establishing '"facts which would negative the existence of [back pay] liability to a given 

employee or which would mitigate that liability.'" See Simpson v. Kenta Energy, Inc., 11 

FMSHRC 770, 779 (May 1989) (citations omitted). The Commission has stated that, 

"[ s ]pecifically, the burden of showing that work was not available for a discriminatee, whether 

through layoff, business contractions, or similar conditions, lies with the employer as an 

4 We reject the Secretary's estoppel argument. We see no significant inconsistency 

between KenAmerican's agreement to economically reinstate Mr. Gatlin and its position that the 

operator's reinstatement obligation was subsequently tolled when Mr. Gatlin's job was 

eliminated. 

31 FMSHRC 1054 
affirmative defense to reinstatement and backpay." Id. fu such circumstances, the operator must 

make such a showing by a preponderance of the evidence. Id. 

Given this precedent, we vacate the Judge's Sept. 18 Order and remand for further 

proceedings. On remand, the Judge, upon request, shall expeditiously take further evidence and 

provide an opportunity for discovery, if appropriate, to determine whether the duration of 

temporary reinstatement set forth in the August 31 Order should be modified. More specifically, 

the Judge should-determine whether KenAmerican has proven by a preponderance of the 

evidence that the occurrence of the layoff is a legitimate reason for tolling Mr. Gatlin's economic 

reinstatement. Factors to be considered by the Judge include whether the layoff was unrelated to 

the August 31 Order and whether the layoff properly included Mr. Gatlin. 5 fu sum, in order to 

justify termination of economic reinstatement, XenAmerican must prove by a preponderance of , 

the evidence that Mr. Gatlin's inclusion in the layoff was entirely unrelated to his protected 

activities. 

Furthermore, we denyKenAmerican's motion to stay the effect of the Sept. 18 Order. 

The motion is moot given our vacating of that order. Because the terms of the August 31 Order 

remain in effect until such time, if any, that the period of reinstatement is modified by the Judge, 

Mr. Gatlin shall continue to receive economic reinstatement until such modification, if any. 

Thus, KenAmerican must continue to comply with the terms of the August 31 Order and pay Mr. 

Gatlin until the matter is resolved by the Judge,. ; · 

5 We note that although KenAmerican stated that it considered four factors (mining 

experience, skill level, performance, and years of service) in making the workforce reductions, it 

only asserted that three of these factors (excluding mining experience) were relevant to Mr. 

Gatlin's inclusion in the layoff. Pet. at 4; KA Resp. at 2. Moreover, in its submissions to the 

Judge and in the Petition to the Commission, KenAmerican has described only the fact that Mr. 

Gatlin had been its employee "shortly over six months." Pet. at 4; KA Resp. at 2. On remand, 

KenAmerican should explain how all of the factors it considered were applied to Mr. Gatlin or 

why any factor not applied was deemed irrelevant. 

31 FMSHRC 1055 
ID. 

Conclusion 

For these reasons, we grant KenAmerican's petition, vacate the Judge's September 18 

order, deny the motion for stay, and remand for further proceedings consistent with this decision. 

Robert F. Cohen, Jr., Conlliussioner 

31 FMSHRC 1056 
Distribution 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2247 

Marco M. Rajkovich, Esq. 

Rajkovich, Williams, Kilpatrick & True, PLLC 

2333 Alumni Park Plaza, Suite 310 

Lexington, KY 40517 

Administrative Law Judge Margaret A. Miller 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

1244 Speer Blvd., Suite 280 

Denver, CO 80204 

31 FMSHRC 1057 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 8, 2009 

Docket No. KENT 2009-925 

A.C. No. 15-10753-170921 

CLEAN ENERGY MINING COMP ANY 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On April 16, 2009, the Commission received from Clean 

Energy Mining Company ("Clean Energy'') a motion by counsel seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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(May1993) ("JWR"). In evaluating requests to 

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

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

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

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

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

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

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

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

31 FMSHRC 1058 
On Deceniber 10, 2008, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued Proposed Assessment No. 000170921. However, both the 

operator and the Secretary now agree that the proposed assessment was not received by Clean 

Energy and was returned to MSHA undelivered. The Secretary states that she "will mail the 

proposed assessment to ... the operator" again and that "Clean Energy will then have 30 days 

after receipt of the proposed assessment to either pay or contest the penalty." 

Having reviewed Clean Energy's request and the Secretary's response, we find the 

request to reopen to be moot because Clean Energy never properly received the proposed 

assessment and therefore it did not become a final order of the Commission. As stated above, 

once the Secretary mails the proposed assessment, Clean Energy will have 30 days from the date 

ofits receipt to either contest or pay the proposed penalty. If the proposed penalty is timely 

contested by Clean Energy, this case shall proceed pursuant to the Mine Act and the 

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

·ssioner 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1059 
Distribution: 

Sarah Ghiz Korwan, Esq. 

Dinsmore & Shohl, LLP 

P. 0. Box 11887 

900 Lee Street,_ Suite 600 

Charleston, WV 25339 

W. Christian Schumann, Esq. 

Office of the Solicitor 

· · U:S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

·. Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesriick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC I 060 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMJNISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 8, 2009 

Docket No. WEST 2009-567-M 

A.C. No. 04-02964-161991 

TAFT PRODUCTION COMP ANY 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On February 27, 2009, the Commission received from Taft 

Production Company ("Taft") a request to reopen a penalty assessment that had become a final 

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

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

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

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

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

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(May1993) (".!WR"). In evaluating requests to 

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

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

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

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

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

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

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

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

31FMSHRC1061 
Proposed Assessment No. 000161991 was issued by MSHA on September 9, 2008. Taft 

asserts that it has no record of having receiving the proposed assessment, and paid the proposed 

penalties in error when it received a notice of "outstanding balance" on another proposed 

assessment after Assessment No. 000161991 had become a final order. 

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

assessment. However, she produced a FedEx Tracking Report indicating that the penalty 

assessment was received by the operator on September 15, 2008, and signed for by S. Brandon. 

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

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

gciod cause exists for Taft's failure to timely contest the penalties arid whether relief from the 

final order should be granted. The Chief Administrative Law Judge should determine whether 

the operator actually received the proposed assessment on September 15, 2008 and, if so, 

whether the operator's failure to contest the assessment resulted from mistake, inadvertence, or 

excusable neglect. 

If it is determined that relief from the final order is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 1062 
Distribution: 

Larry R. Evans 

Corporate Safety Mngr. 

Taft Production Co. 

P.O. Box 380 

Georgia Hwy., 3 North . 

Ochlocknee, GA 31773 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra Jam es, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1063 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

KNIFE RIVER 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 8, 2009 

Docket No. WEST 2009-1083-M 

A.C. No. 35-03321-181085 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On July 7, 2009, the Commission received from Knife River 

a motion by counsel seeking to reopen a penalty assessment that had become a final order of the 

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

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

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

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

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

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

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

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

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

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

31 FMSHRC 1064 
Knife River states that it misunderstood the instructions on the assessment form and 

mailed the contest of the proposed penalties to the Commission~ rather than to the Department of 

Labor's Mine Safety and Health Administration ("MSHA"). Knife River further states that it 

was unaware of its error until it received a delinquency notice from MSHA and then immediately 

called MSHA and learned that it had sent the contest to the wrong address. 

The Secretary does not oppose Knife River's motion to reopen. 

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

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 1065 
Distribution: 

Adele L. Abrams, Esq. 

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

4 7 40 Corridor Place, Suite D 

Beltsville, MD _ 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1066 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MlNE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 13, 2009 

Docket No. WEVA2008-1449-M 

A.C. No. 46-00007-122557 

RIVERTON INVESTMENT CORP. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On July 9, 2008, the Commission received from Riverton 

Investment Corp. ("Riverton")1 a motion by counsel seeking to reopen a penalty assessment that 

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

U.S.C. § 815(a). 

On September 8, 2009, the Commission received a letter from counsel for the Secretary 

stating that Riverton had paid the penalty assessment at issue in full and requesting that 

Riverton' s pending request to- reopen the assessment be denied as moot. 

1 Riverton is identified on the legal identity report as the name of the operator of Essroc 

Cement, the mine involved with this proceeding. 

31FMSHRC1067 
Having reviewed Riverton's request and the Secretary's responses, we hereby deny 

Riverton's request to reopen as moot. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 1068 
Distribution: 

R. Brian Hendrix, Esq. 

Patton Boggs, LLP 

2550 M Street NW 

Washington, DC 2003 7 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1069 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BIG RIVER MINING, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 8, 2009 

Docket No. WEVA 2009-1669 

A.C. No. 46-09136-184534 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On July 6, 2009, the Commission received from Big River 

Mining, LLC ("Big River") a motion by counsel seeking to reopen a penalty assessment that had 

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

§ 815(a). 

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

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

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

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

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

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

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

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

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

31FMSHRC1070 
Big River states that, when it received the proposed penalty assessment, its safety 

director, who is responsible for reviewing proposed penalties, was absent from the office for 

training and personal reasons. Big River further states that, after the safety director returned to 

the office, for some unknown reason, he never received the proposed penalty assessment. Big 

River states that the safety director learned of the penalties only when he received another 

assessment and saw the penalties listed. 

The Secretary opposes reopening the proposed penalty assessment. The Secretary argues 

that Big River has made no showing of exceptional circumstances warranting reopening and that 

an operator's inadequate or umeliable internal processing procedures should not constitute an 

adequate justification. The Secretary also notes that Big River failed to timely contest 

assessments in two other dockets in which it sought to reopen final orders because proposed 

assessments were not in its files. 

31FMSHRC1071 
Having reviewed Big River's request and the SecretaI)'' s response, in the interests of 

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

whether good cause exists for Big River's failure to timely contest the penalty and whether relief 

from the final order should be granted. 1 If it is determined that relief from the final order is 

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

Rules, 29 C.F.R.§ 2700. 

Robert F. Cohen, Jr., Commissioner 

1 Oh remand, the judge should consider whether Big River has met the standard for relief 

in light of its prior failures to adequately track assessments after delivery to its office and 

warnings from the Secretary that she would oppose future motions to reopen ifBig River did not 

establish adequate procedures to ensure that assessments were timely contested. 

31 FMSHRC 1072 
Distribution: 

Justin A. Rubenstein, 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 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1073 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 13, 2009 

Docket No. KENT 2009-1060 

A.C. No. 15-17741-170925 

KENAMERICAN RESOURCES, INC. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On May 15, 2009, the Commission received from 

KenAmerican Resources, Inc. ("KenAmerican") a motion by counsel to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

penalty must notify the Secretary of Labor no later than 3 0 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). 

However, we have held that in appropriate circumstances, we possess jurisdiction to 

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

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

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

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

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

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

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

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

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). 

31FMSHRC1074 
KenAmerican states that, according to information obtained from the Civil Penalty 

Compliance Office of the Department of Labor's Mine Safety and Health Administration 

("MSHA"), Proposed Assessment No. 0001790925 was delivered to KenAmerican on 

December 18, 2008. The operator states that the employee who apparently received the delivery 

never forwarded the proposed assessment to any of her supervisors and then resigned on 

February 26, 2009. A mine foreman (and former Manager of Health and Safety) for 

KenAmerican explains in an affidavit that he became aware of the proposed assessment only 

after he received a delinquency notice from MSHA on March 12, 2009, and investigated the 

matter. 

The Secretary opposes KenAmerican's request to reopen. She asserts that the operator 

has made no showing of the exceptional circumstances that warrant reopening but rather an 

instance of inadequate or unreliable internal distribution procedures, and that the op~rator has 

failed to identify facts that, if proven on reopening, would establish a meritorious defense. 

31FMSHRC1075 
Having reviewed KenAmerican' s request and the Secretary's response, in the interests of 

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

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

Part 2700. This appears to be an isolated instance of an inadvertent error involving an employee 

who is no longer employed by KenAmerican rather than an indication of inadequate or unreliable 

internal distribution procedures. Upon discovering the delinquency, KenAmerican investigated 

the matter, filed its request to reopen within a reasonable time, and provided the Commission 

with a sufficiently detailed explanation for its failure to timely contest the proposed assessment 

which was supported by reliable documentation. Accordingly, consistent with Rule 28, the 

Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. 

See 29 C.F.R. § 2700.28.· 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1076 
Distribution: 

Noelle Holladay True, Esq. 

Rajkovich, Williams, Kilpatrick & True, PLLC 

2333 Alumni Park Plaza, Suite 310 

Lexington, KY 40517 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra Jam es, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 251

h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1077 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 13, 2009 

Docket No. VA 2009-354 

A.C. No. 44-06804-179669 

KNOX CREEK COAL CORPORATION 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On July 6, 2009, the Commission received from Knox Creek 

Coal Corporation ("Knox Creek") a request to reopen a penalty assessment that had become a 

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

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

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

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

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

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(May1993) ("JWR"). In evaluating requests to 

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

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

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

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

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

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

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

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

31 FMSHRC 1078 
Knox Creek states that it returned the assessment form to MSHA with the citations that it 

desired to contest noted on the form. Shortly after Knox Creek received a delinquency letter 

from MSHA, it submitted its request to reopen to the Commission. 

The Secretary does not oppose reopening the proposed penalty assessment but states that 

there is no record of the penalty contest form having been received by MSHA's Civil Penalty 

Compliance Office. The Secretary acknowledges receiving payment in this penalty assessment 

in an amount which, when subtracted from the total proposed assessment, leaves a balance which 

is the amount of money that Knox Creek claims to have contested. 

Having reviewed·Knox Creek's request and the Secretary's response, in the interests of 

·justice, we remand this matter to the Chief Administrative Law Judge for a determillation of 

whether good cause exists for Knox Creek's failure to timely contest the penalty and whether 

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

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

Rules, 29 C.F.R. § 2700. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 1079 
Distribution: 

Sue Mullins, HR Manager 

Knox Creek Coal Corp. 

P.O. Box 519 

Raven, VA 2463 9 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

11 oo· Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lespick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1080 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

JACOB MINING COMP ANY, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 13, 2009 

Docket No. WEV A 2009-1348 

A.C. No. 46-05978-176931 

Docket No. WEVA 2009-1349 

A.C. No. 46-05978-177402 

Docket No. WEVA 2009-1350 

A.C. No. 46-05978-171680 

Docket No. WEVA 2009-1351 

A.C. No. 46-05978-168598 

Docket No. WEV A 2009-1352 

A.C. No. 46-05978-165760 

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

ORDER 

BY THE COMMISSION: 

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

et seq. (2006) ("Mine Act"). On May 1, 2009, the Commission received from Jacob Mining 

Company, LLC ("Jacob") a letter seeking to reopen penalty assessments that had become final 

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

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

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

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

consolidate docket numbers WEVA 2009-1348, WEVA 2009-1349, WEVA 2009-1350, WEVA 

2009-1351, and WEVA 2009-1352, all captioned Jacob Mining Company, LLC, and involving 

the same procedural issues. 29 C.F.R. § 2700.12. Although Jacob also sought reopening of 

Assessment No. 000182191, the Secretary indicated in her response that she will treat that 

proposed assessment as being timely contested and proceed accordingly. 

31FMSHRC1081 
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). 

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"). Jn evaluating requests to 

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

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

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

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

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

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

failure to timely respond, the case may be reopened and appropriate proceedings on_ the merits 

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

The operator asserts that it failed to contest the proposed assessments in a timely manner 

because it "was unaware that [it] could contest the fine amounts." It also states that it is unable to 

pay the proposed penalties· and requests reopening so that the penalty amounts may be lowered. 

Ip response, the Secretary states. that the operator has failed to .make a showing of 

exceptional circumstances that warrant reopening. She asserts that Jacob has been in business 

since 2005, and that the proposed assessment forms set forth the procedure for contesting 

proposed penalties. The Secretary contends that, in any event, ignorance of the rules and law and 

inability to pay a penalty are not grounds for reopening a proposed penalty that has become final. 

She also notes that, if the operator wishes to set up a payment plan, it should contact MSHA' s 

Civil Penalty Compliance Office. 

31 FMSHRC 1082 
Having reviewed Jacob's request to reopen and the Secretary's response, we conclude that 

Jacob has not provided a sufficiently detailed explanation for its failure to timely contest the 

proposed penalty assessments. Jacob's conclusory statement that it was ''unaware that [it] could 

contest the fine amounts" (even though the assessment forms set forth contest procedures) does 

not provide the Commission with an adequate basis to reopen. In addition, Jacob's statement that 

it is unable to pay the full penalty amounts does not address the question of why it failed to timely 

contest the propos_ed assessments. Accordingly, we hereby deny the request for relief without 

prejudice. See FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007). The words "without 

prejudice" mean that Jacob may submit another request to reopen Assessment Nos. 000176931, 

000174402, 000171680, 000168598, and 000165760 so that it can contest the proposed penalties.2 

Robert F. Cohen, Jr., Commissioner 

2 If Jacob submits another request to reopen, it must establish good cause for not 

contesting the citations and proposed penalties within 30 days from the date it received the 

proposed assessments from MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, 

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

inadvertence, surprise, or excusable neglect on the part of the party seeking relief, or the 

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

Jacob should include a full description of the facts supporting its claim of "good cause," 

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

limits provided in the Mine Act, as part of its request to reopen. Jacob should also submit copies 

of supporting documents with its request to reopen. 

31 FMSHRC 1083 
Distribution: 

Jeff Wolford 

Jacob Mining Co., LLC 

P.O. Box 54 

Naugatuck, WV-25685 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Ffoor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1084 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMJNISTRA TION (MSHA), 

on behalf of LIGE WILLIAMSON 

v. 

CAM MINING, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 22, 2009 

Docket No. KENT 2009-1428-D 

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

DECISION 

BY THE COMMISSION: 

This temporary reinstatement proceeding arises under the Federal Mine Safety .and Health 

Act of 1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act"). On September 30, 2009, 

Administrative Law Judge Jerold Feldman issued a decision denying temporary reinstatement to 

Lige Williamson with CAM Mining, LLC ("CAM Mining") pursuant to section 105(c)(2) of the 

Mine Act, 30 U.S.C. § 815(c)(2). 31 FMSHRC _,slip op. at 9, 10, No. KENT 2009-1428-D 

(Sept. 30, 2009) ("Slip op."). On October 7, 2009, the Secretary of Labor filed a petition with the 

Commission seeking review of the judge's decision. CAM Mining filed a response to the 

Secretary's petition on October 15, 2009. For the reasons that follow, we grant the petition, 

reverse the judge's decision, and order the immediate reinstatement of Lige Williamson effective 

as of September 30, 2009. 

I. 

Factual and Procedural Background 

The facts of this case are set forth in detail in the judge's September 30 decision and the 

parties' pleadings. A summary of the most significant facts follows. Lige Williamson was 

employed at CAM Mining's Mine #28 from August 2007 until the day of his termination on May 

15, 2009. Slip op. at 2; Tr. 25. Williamson worked as a "floater" or utility man, performing 

tasks related to ventilation, until he was transferred to operate a shuttle car on or about April 27, 

31 FMSHRC 1085 
2009. Slip op. at 2, 3; Tr. 25, 39. Williamson began working on the 001 Section around the 

middle of April 2009 under the supervision of McArthur Swiney, section foreman. Slip op. at 3. 

The 001 Section was a "walking supersection," which meant that two continuous miners ran 

alternatively among the different entries on the face with a single split of air. Slip op. at 3; Tr. 

26-27. Previously, Williamson worked on the 002 Section, a "supersection," which had two 

continuous miners operating simultaneously with double splits of air. Slip op. at 3; Tr. 26. 

On or about April 20 or 21, Williamson noticed that both left-side and right-side shuttle 

cars were returning from the face with loads of coal at the same time. Slip op. at 3. He believed 

that both continuous miners were cutting coal at the same time, which was not permissible with 

the section's current ventilation. Id. He spoke with Swiney about the simultaneous operation of 

the miners, but Swiney did not respond. Id. Swiney later denied that Williamson made this 

complaint. Id. at 4. After this incident, Williamson alleges that Swiney began "do_gging" him 

and assigning him more onerous tasks. Id. at 3-4. Williamson, who has a history of heart 

trouble, testified that he began suffering chest pain that he attributed to the stress caused by 

Swiney's "dogging." Id. at 3. Williamson also testified that he visited a doctor for his chest pain 

on April 23 and was off work until he returned on April 27, as per his doctor's instructions. Id. 

When Williamson returned to work, he was transferred to operate the right-side shuttle car. Id. 

Williamson claims that Swiney began calling him "asshole" and gave him job assignments that 

were different from, and more difficult than, the assignments given to other shuttle car operators. 

Id. at 3-4; Tr. 39-40, 63-64, 67, 158, 160. Swiney testified that he never called Williamson 

"asshole" and denied dogging Williamson. Slip op. at 4. 

On May 5, 2009, MSHA issued Citation No. 8227386 to CAM Mining for a violation of 

section 75.370(a)(l), 30 C.F.R. § 75.3701(a)(l), which requires a mine operator to follow an 

approved ventilation plan. Id. The citation was issued because the 001 Section was operating on 

a single, rather than two distinct splits of air, as provided in the existing approved ventilation 

plan. Id. The citation was terminated on May 7, 2009, after CAM Mining submitted an updated 

ventilation plan conforming with its single split of air operation. Id. 

On May 13, 2009, Williamson was driving his shuttle car around a corner when he struck 

a dip in the floor and skidded across the intersection, hitting and cutting the water line and 

pinching the continuous miner power cable. Id. Williamson said that as he was attempting to 

reposition the shuttle car, Swiney approached him and began chastising him. Id. at 4-5. 

Williamson testified that Swiney had his finger in his face, swearing and calling me a 

"[g]oddamn dumbass." Id. at 5. Williamson rose from his seat in the shuttle car, approached 

Swiney, and began swearing and yelling at him. Id. Swiney claimed that Williamson pushed 

him against the rib. Id. Williamson denied touching Swiney. Id. Swiney called Danny Conn, 

mine foreman, to "come get" Williamson. Id.; Tr. 279. Swiney drove Williamson on the 

mantrip to the end of the track and waited for Conn. Slip op. at 5; Tr. 97-99, 102. When Conn 

arrived, Swiney told him he wanted Williamson off his section, that he didn't care what Conn did 

with him, and that Williamson had pushed him against the rib. Tr. 103, 279-80; CM Ex. 1. 

31FMSHRC1086 
Conn drove Williamson outside and told him to come back to the mine the next day to speak 

with Frank Smith, mine superintendent. Slip op. at 5. 

On May 14, Williamson met with Smith, who told him that he was being suspended for 

three days "with intent." Id. at 6. Williamson next heard from the company in the form of a 

termination letter dated May 15, 2009, and delivered to his home via certified mail on May 16. 

Id. The letter stajed that Williamson was discharged for insubordination. Id. 

Williamson filed a section 105(c) complaint with MSHA on May 29, 2009. The 

Secretary filed an application for temporary reinstatement on August 12, 2009. A hearing was 

held on September 2, 2009. 

In his decision, the judge found that Williamson's complaint was frivolously_ brought. Id. 

at 2, 9. The judge assumed that Williamson engaged in protected activity when he complained to 

Swiney about the improper simultaneous operation of the continuous miners, and that 

Williamson was the subject of adverse action when he was discharged on May 15. Id. at 2, 7. 

However, the judge determined that there was "no reasonable cause to believe there is a nexus" 

between the two events. Id: at 2. The judge based his determination on his finding that the 

Secretary failed to present any evidence that the operator was discriminatorily motivated when it 

terminated Williamson. Id. at 7. The judge relied on Williamson's admissions that he "cussed" 

Swiney on May 13 and believed that he would lose his job for doing so, to support the co11.clusion 

that there was no nexus between the protected activity and the adverse action. Id. at 8. 

Accordingly, the judge denied the Secretary's application for temporary reinstatement. Id. at 2, 

9. 

In her petition, the Secretary argues that the judge committed a series of legal errors that 

misconstrue the nature of temporary reinstatement proceedings. Pet. at 1. The Secretary asserts 

that the judge erred in finding that there was no evidence of retaliatory action by CAM Mining in 

response to Williamson's protected activity. Id. at 17-18. The Secretary explains that the judge's 

analysis is erroneous for several reasons: (1) the judge ignored his own factual findings 

pertaining to the operator's hostility or animus toward the protected activity; (2) the judge failed 

to find close proximity in time between the protected activity and the adverse action; (3) the 

judge placed improper weight on his finding that upper management had no knowledge of 

Williamson's safety complaint; and (4) the judge improperly analyzed the May 13 incident as 

part of the Secretary's prima facie case. Id. at 18, 20-29. The Secretary states that, under a 

correct application of the legal standard for temporary reinstatement, the record compels the 

conclusion that the miner's complaint was not frivolous, and she requests that the Commission 

vacate the judge's denial of temporary reinstatement and grant her application. Id. at 29-30. 

CAM Mining responds that the judge correctly determined that the Secretary's case was 

frivolously brought and that substantial evidence in the record supports the judge's decision. 

Resp. at 1. CAM Mining agrees with the judge that Williamson's complaint was too remote in 

time from his discharge. Id. at 26-29. CAM Mining asserts that the evidence supports the 

31 FMSHRC 1087 
judge's finding that Williamson's discharge was a justified business decision. Id. at 29. CAM 

Mining argues that the final decision makers had no knowledge of Williamson's alleged 

protected activity. Id. at 29-30. CAM Mining rejects the Secretary's reliance on circumstantial 

evidence to establish an unlawful motive in the face of direct substantial evidence establishing 

that Williamson was discharged for non-discriminatory reasons. Id. at 30-32. In sum, CAM 

Mining states that the judge correctly denied the Secretary's application for temporary 

reinstatement and asserts that the Commission should deny the Secretary's petition. Id. at 35. 

II. 

Disposition 

Under section 105(c)(2) of the Mine Act, "ifthe Secretary finds that [a disc]im.ination] 

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

of the Secretary, shall order the reinstatement of the miner pending final order on the complaint." 

30 U.S.C. § 815( c )(2). The Commission has repeatedly recognized that the "scope of a 

temporary reinstatement hearing is narrow, being limited to a determination by the judge as to 

whether a miner's discri:rriination complaint is frivolously brought." See Secy of Labor on 

behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 F.2d 738 

(1 Ith Cir. 1990). It is "not the judge's duty, nor is. itthe Comniission's, to resolve the confli~t in· 

testimony at this preliminary stage of the proceedings." Sec '.Y of Labor on behalf of Albu v. 

Chicopee Coal Co., 21FMSHRC717, 719(July1999). In reviewing ajudge's temporary 

reinstatement order, the Commission has applied the substantial evidence standard. 1 See id. at 

719; Secy of Labor on behalf of Peters v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 

(Dec. 1993). 

While an applicant for temporary reinstatement need not prove a prima facie case of 

discrimination, it is useful to review the elements of a discrimination claim in order to assess 

whether the evidence at this stage of the proceedings meets the non-frivolous test. In order to 

establish a prima facie case of discrimination under section 105( c) of the Act, a complaining 

miner bears the burden of establishing (1) that he engaged in protected activity and (2) that the 

adverse action complained of was motivated in any part by that activity. Secy of Labor on 

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev'd on other 

grounds, 663 F.2d 1211 (3rd Cir. 1981); Secy of Labor on behalf of Robinette v. United Castle 

Coal Co., 3 FMSHRC 803 (April 1981). 

1 When reviewing an administrative law judge's factual determinations, the Commission 

is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. 

§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable 

mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh 

Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 

U.S. 197, 229 (1938)). 

31 FMSHRC 1088 
We conclude that the judge made a number of errors in determining that Williamson's 

complaint was frivolously brought. Although the judge correctiy stated the legal standard to be 

applied in a temporary reinstatement proceeding, he applied an unduly restrictive standard in 

reviewing evidence pertaining to the Secretary's application. fustead oflimiting the scope of the 

proceeding to a determination of whether the miner's complaint was frivolously brought, the 

judge ignored relevant evidence, resolved conflicts in the testimony, and made credibility 

determinations in evaluating the Secretary's prima facie case, which he clearly should not have 

done at this stage in the proceeding. Chicopee Coal Co., 21 FMSHRC at 719. Rather, the judge 

should have evaluated the evidence of the Secretary's prima facie case and determined whether 

the miner's complaint of discrimination "appear[ ed] to have merit." Jim Walter Res., 920 F .2d at 

747. 

We first address the issues of Williamson's alleged protected activity and adverse action. 

We conclude that substantial evidence supports the judge's findings that Williamson engaged in 

protected activity and suffered adverse action. Slip op. at 3, 6-7. As to protected activity, 

Williamson testified that he informed his supervisor, Swiney, of his concern about the 

simultaneous operation of the two continuous miners on the section. Tr. 35-36, 153. Swiney 

testified that Williamson never made a safety complaint to him. Tr. 285. Although there is a 

conflict in the testimony, it need not be resolved at this stage of the proceedings. Chicopee Coal 

Co., 21 FMSHRC at 719. Rather, Williamson's 'testimony is.sufficient evidence to support the 

·judge's firiding.2 Substantial evidence also supports the finding that Williamson suffered adverse 

action when he was discharged on May 15, 2009. 

The heart of the issue is the judge's finding that the Secretary failed to carry her burden in 

demonstrating a nexus between the protected activity and the adverse action. In so concluding, 

the judge erred. 

The Commission has recognized that direct evidence of motivation is rarely encountered; 

more often, the only available evidence is indirect. 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). The Commission_has identified several circumstantial indicia of discriminatory 

intent: (i) hostility or animus toward the protected activity; (ii) knowledge of the protected 

activity, and (iii) coincidence in time between the protected activity and adverse action. Id. 

The judge ignored circumstantial evidence of motivation which the Secretary presented. 

The record contains evidence of Swiney' s alleged hostility or animus towards Williamson and 

2 In its response to the Secretary's petition, CAM Mining makes much of Williamson's 

inconsistent testimony about the details of his safety complaint and the fact that Williamson 

never raised his complaint to other management officials prior to his discharge. Resp. at 3-21. 

We find these arguments to be of no avail as to whether Williamson engaged in protected 

activity. Whether Williamson was correct in his belief that the continuous miners were operating 

simultaneously is irrelevant to whether he made the safety complaint to his supervisor. 

31 FMSHRC 1089 
disparate treatment of Williamson as compared to the other shuttle car operators. Williamson 

testified that Swiney "dogged" him, swore at him, and assigned him more difficult and onerous 

tasks as compared to other shuttle car operators, and that all this occurred after Williamson made 

the alleged complaint regarding the two continuous miners to Swiney. Tr. 35, 39, 40-43, 63-64, 

67-68, 158, 160. Although Swiney denied these allegations (Tr. 306, 310, 314-16),3 and despite 

Williamson's admission that the tasks in question were within his job description (Tr. 40), the 

judge need not resolve these disputes at this stage nor make credibility determinations. Chicopee 

Coal Co., 21 FMSHRC at 719. 

The judge also erroneously relied on upper management's lack of knowledge regarding 

Williamson's protected activity. First, Commission case law states that the Secretary need not 

prove that the operator has knowledge of the complainant's protected activity in a temporary 

reinstatement proceeding, only that there is a non-frivolous issue as to knowledge._ Chicopee 

Coal Co., 21 FMSHRC at 718. Second, the operator's alleged basis for Williamson's discharge 

was Williamson's altercation with Swiney, the individual who allegedly showed Williamson 

hostility, animus, and disparate treatment. Swiney allegedly had knowledge of Williamson's 

protected activity because Williamson testified that he made the safety complaint to Swiney. 

Moreover, the decision to terminate Williamson was based on Swiney's allegations of 

Williamson's misconduct. Swiney's incident report and notes stated that Williamson struck him 

and that Swiney did not want Williamson on his section. Slip op. at.5; CM Ex. 1, 2. ·Thus, there· 

may be a meritorious basis for imputing Swiney's.knowledge to the operator. See Wigl;ins v. 

Eastern Associated Coal Corp., 7 FMSHRC 1766, 1771 (Nov. 1985) ("[A]n operator cannot 

escape liability by pleading ignorance due to the division of company personnel functions."') 

(quoting Metric Constructors, Inc., 6 FMSHRC 226, 230 n.4 (Feb. 1984)). 

The judge also erred in failing to find proximity in time between the protected activity 

and adverse action, despite the span being a mere three weeks. Commission case law supports 

the position that the timing between the protected activity (Williamson's complaint to Swiney 

about the continuous miners on April 20 or 21) and the adverse action (Williamson's discharge 

on May 15) was sufficiently close. A three-week span can be sufficiently close in time given the 

evidence of intervening acts of hostility, animus, and disparate treatment. Secy of Labor on 

behalf of Hyles v. All American Asphalt, 21 FMSHRC 34, 37-38, 43-44 (Jan. 1999) (finding 

temporal proximity despite 16-month gap between miners' contact with MSHA and the failure to 

recall miners from layoff where only a month had passed from MSHA's issuance of penalty as a 

result of the miners' notification of the violations). Moreover, the judge ignored the proximity in 

time between the alleged protected activity and the alleged disparate treatment and hostility by 

Swiney, which Williamson said began soon after he complained to Swiney about the ventilation 

plan issue. Slip op. at 3. 

3 Even so, Swiney testified that during the May 13 incident, Williamson stated to him 

that Swiney had been on his "case for 2 or 3 days." Tr. 277. 

31 FMSHRC 1090 
Finally, the judge erred in his consideration of the evidence regarding the May 13 

incident. The judge based his conclusion that there was no nexus between Williamson's 

protected activity and the adverse action on his finding that Williamson was discharged for 

insubordination for the events of May 13. In doing so, the judge found no evidence of 

intervening retaliation, which, as previously stated, was erroneous, and relied in part on 

Williamson's statement that he believed he could lose his job for "cussing" out his foreman. Slip 

op. at 8. Contrary to the judge's characterization, Williamson's statement of his own belief does 

not establish the operator's motivation. Moreover, as the Secretary argues, Williamson's 

testimony is consistent with a theory that Swiney would use the May 13 exchange as a pretext for 

Williamson's discharge. Pet. at 28 n.22. 

Furthermore, we note that evidence that Williamson was discharged for unprotected 

activity relates to the operator's rebuttal or affirmative defense. In essence, the judg~ weighed 

the operator's rebuttal or affirmative defense evidence against the Secretary's evidence of a 

prima facie case. In doing so, the judge erred by assigning a greater burden of proof than is 

required. In a temporary reinstatement proceeding, the Secretary need not establish a prima facie 

case of discrimination by a preponderance of the evidence. Rather, the Secretary was required to 

prove only that a non-frivolous issue exists as to whether Williamson's discharge was motivated 

in part by his protected activity. Chicopee Coal Co., 21 FMSHRC at 719. Given Williamson's 

testimony of the hostility and animus he was shown by Swiney, we con9lude that there is cl~arly 

· a non-frivolous issue as to motivation. 

In sum, we thus conclude that substantial evidence supports that the Secretary's 

discrimination complaint is not frivolous. We intimate no view as to the ultimate merits of this 

case. 

31FMSHRC1091 
III. 

Conclusion 

For the foregoing reasons, we grant the Secretary's petition, reverse the judge's decision, 

and order the retroactive reinstatement of Lige Williamson effective as of September 30, the date 

of the judge's decision. 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1092 
Distribution: 

Mary Sue Taylor, 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 

C.T. Corporation System 

Agent for Service for Cam Mining, LLC 

4169 Westport Rd. 

Louisville, KY 40207 

Mark E. Heath, Esq. 

Spilman, Thomas & Battle, PLLC 

300 Kanawha Blvd. East 

P.O. Box273 

Charleston, WV 25321 

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 

31 FMSHRC 1093 

..·! 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

HOLCIM (US), INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 22, 2009 

Docket No. SE 2009-472-M 

A.C. No. 01-02343-173958-03 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On April 24, 2009, the Commission received from Holcim 

(US), Inc. ("Holcim") a motion by counsel seeking to reopen a penalty assessment that had 

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

815(a). 

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

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

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

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

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(May1993) ("JWR"). In evaluating requests to 

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

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

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

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

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

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

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

31 FMSHRC 1094 
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

The operator states that it intended to contest the proposed penalties for 24 citations in 

two assessments - 23 in one assessment and one penalty in the other assessment. It further 

states, however, that because of a misunderstanding between it and its counsel the single penalty 

in the second assessment was not contested on a timely basis. When the operator realized the 

mistake, it promptly sought reopening. The Secretary does not oppose the reopening of the 

proposed penalty: 

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

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

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

Part 2100. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment 

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

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 1095 
Distribution: 

William K. Doran, Esq. 

Ogletree, Deakins, Nash 

Smoak & Stewart, P.C. 

2400 N Street NW, 5th Floor 

Washington, DC 20037 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U:S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1096 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND. HEALTH 

ADMINISTRATION (MSHA) 

v. 

WESTSIDE TRUCKING 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 22, 2009 

Docket No. WEST 2009-650-M 

A.C. No. 45-03551-172177 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On March 26, 2009, the Commission received from Westside 

Trucking ("Westside") a letter requesting to reopen a penalty assessment that had become a final 

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

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

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

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

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

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(May1993) ("JWR"). In evaluating requests to 

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

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

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

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

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

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

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

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

31 FMSHRC 1097 
Westside' s owner states, among other things, that the employee who was responsible for 

handling all the company's paperwork suddenly left the company, leaving him unaware of the 

citations. He also states that the company is in dire financial circumstances. The Secretary states 

that Westside's assertions are "conclusory," but that Westside should be given an opportunity to 

respond further and show whether it is entitled to a reopening of the penalty assessment. 

Having r:eviewed Westside's request and the Secretary's response, in the interests of 

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

whether good cause exists for Westside's failure to timely contest the proposed assessment and 

whether relief from the final order should be granted. Specifically, the Judge should ascertain 

why Westside failed to return the proposed assessment form within 30 days of receiving it and. 

· which citations it wanted to contest. If it is determined that relief from the final order is 

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

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

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 1098 
Distribution: 

John Bredfield 

Westside Trucking 

10050 Barnes Drive 

Castle Rock, WA 98611 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1099 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 26, 2009 

NATIONAL CEMENT COMPANY 

OF CALIFORNIA, INC. 

Docket No. WEST 2004-182-RM 

and 

TEJON RANCHCORP 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). Previously, the Commission had rejected the interpretation 

the Secretary of Labor proffered on remand of the definition of "private ways and roads 

appurtenant" to areas of land from which minerals are extracted, as that term appears in section 

3(h)(l) of the Mine Act, 30 U.S.C. § 802(h)(l). However, in Sec'y of Labor v. National Cement 

Co. of California, 573 F.3d 788 (D.C. Cir. 2009), the court upheld the Secretary's interpretation 

as reasonable. 

31FMSHRC1100 
The court vacated the Commission's decision and remanded the case to the Commission 

for further proceedings in accordance with the court's opinion. ·573 F.3d at 797. Accordingly, 

this proceeding is remanded to Administrative Law Judge Jerold Feldman for proceedings on the 

merits of the citation. 

.;:!:-." 1',-i.-.· 

Robert F. Cohen, Jr., Commissio er 

31FMSHRC1101 
Distribution: 

Robin Rosenbluth, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

Margaret S. Lopez, Esq. 

Ogletree, Deakins, Nash, 

Smoak & Stewart, P.C. 

2400 N Street NW, 5th Floor 

Washington, DC 20037 

Thomas C. Means, Esq. 

Crowell & Moring LLP 

1001 Pennsylvania Avenue NW 

Washington, DC 20004-2595 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939-

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 

31 FMSHRC 1102 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 28, 2009 

Docket No. SE 2009-173-M 

A.C. No. 31-01125-164541 

OLDCASTLESTONEPRODUCTS 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On December 18, 2008, the Commission received from 

Oldcastle Stone Products ("Oldcastle") a motion by counsel seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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. § 270_0.l(b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

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

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

31FMSHRC1103 
On October 2, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued a proposed penalty assessment for 29 violations totaling $32,026 to Oldcastle. 

Oldcastle states that the violations at issue in the proposed penalty assessment it seeks to reopen 

were issued between August 5 and August 14, 2008, and that it provided its counsel with a copy 

of the violations on September 3, 2008. Counsel filed a Notice of Contest of Citation No. 

6105371, which has been docketed as SE 2008-992-RM and stayed before the Commission. 

Oldcastle claims that it received the proposed assessment on October 10, 2008, but that it did not 

realize that it needed to forward the assessment form to its counsel for a contest. It further 

explains that counsel became aware of the proposed assessment on December 11, 2008, when a 

state inspection revealed that the penalties were overdue. 

The Secretary opposes reopening the proposed penalty assessment, maintaining that 

Oldcastle has failed to establish the existence of"exceptional circumstances." Sp~cifically, the 

Secretary contends that ignorance of the law and MSHA's and the Commission's procedural 

rules is not a permissible ground for reopening. 

Oldcastle timely contested Citation No. 6105371, and the case has been docketed and 

stayed before a Commission administrative law judge pending issuance of the proposed penalty 

assessment by MSHA. Given these circumstances, it seems clear that Oldcastle intended to 

contest the proposed penalty for that citation. As to the remaining violations contained in the 

proposed assessment, the operator has neither demonstrated an intent to challenge those penalties 

nor provided an explanation for its failure to timely contest the proposed assessment, other than 

its general assertion of ignorance of the procedure.1 Oldcastle' s failure to explain the delay in 

contesting the proposed penalties does not provide the Commission with an adequate basis to 

reopen the remaining penalties in the proposed assessment. See, e.g., Petra Materials, 31 

FMSHRC 47, 49 (Jan. 2009). 

1 Oldcastle's motion to reopen states at one point that "[a]ll underlying citations/orders 

captioned above have been contested." Mot. at 2. However, in her opposition, the Secretary 

questions this statement and claims that "[t]he operator has furnished a copy of, and the Secretary 

is aware of, only one contest - the contest pertaining to Citation No. 6105371." Opp'n at 3, n.l. 

31FMSHRC1104 
Having reviewed Oldcastle's request and the Secretary's response, in the interests of 

justice, we hereby reopen the penalty assessed for Citation No. 6105371 and remand the matter 

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. 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. As to the remaining 28 penalties in Assessment No. 000164541, we deny 

without prejudice Oldcastle's request to reopen. 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1105 
Distribution: 

Adele L. Abrams, Esq. 

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

4740 Corridor Place, Suite D 

Beltsville, MD _20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief· 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31FMSHRC1106 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

B & H TRANSFER COMP ANY 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 28, 2009 

Docket No. SE 2009-802-M 

A.C. No. 09-00472-183080 PEU 

Docket No. SE 2009-803-M 

A.C. No. 09-00959-183082 PEU 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On August 10, 2009, the Commission received from B & H 

Transfer Company ("B & H") a letter seeking to reopen penalty assessments that may have 

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

§ 815(a). 1 

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

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (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 fmal order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

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

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

consolidate docket numbers SE 2009-802-M and SE 2009-803-M, both captioned B & H 

Transfer Co., and both involving similar procedural issues. 29 C.F.R. § 2700.12. 

31 FMSHRC 1107 
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). 

With respect to Proposed Assessment No. 000183080 PEU, both the operator and the 

Secretary now ~gree that the proposed assessment was timely contested. The Secretary asserts 

that MSHA misfiled the contest form and, as a result, the case was not processed properly. The 

Secretary submits that the error has been corrected and the contest is being considered timely and 

will follow the normal course of proceeding. As to Proposed Assessment No. 000183082 PEU, 

the Secretary states that the penalty contained therein was assessed against B & H in error and 

will be removed from its account. 

Having reviewed B & H's requests and the Secretary's response, we find tlie requests to 

reopen to be moot. B & H has properly contested Proposed Assessment No. 000183080 PEU, 

and therefore it did not become a final order of the Commission. This case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. With 

respect to Proposed Assessment No. 000183082 PEU, we also find the request to reopen to be 

moot because the penalty contained therein was assessed in error and has been or will be 

removed from the operator's account. 

Michael 

~>~~~ F.~, cmn1lli88i()llet'• 

Robert F. Cohen, Jr., Co;;:unissioner 

31FMSHRC1108 
Distribution: 

Tommy Cauthen 

Dir. Of Safety 

B& H Transfer Co. 

750 Sparta Rd. _ 

Sandersville, GA 31082. 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 251

h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31FMSHRC1109 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CESSFORD CONSTRUCTION 

COMPANY 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 29, 2009 

Docket No. CENT 2009-787-M 

A.C. No. 13-02360-178617 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On August 27, 2009, the Commission received from 

Cessford Construction Company ("Cessford") a letter seeking to reopen a penalty assessment that 

may have become a final order of the Commission pursuant to section lOS(a) of the Mine Act, 30 

U.S.C.§ 815(a). 

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

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

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

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

The Secretary submits that upon reviewing the records in this proceeding, she has 

discovered that the proposed penalty was timely contested and is the subject of an active civil 

penalty proceeding (Docket No. CENT 2009-339-M). In that proceeding, the Secretary has filed 

a penalty petition, and the operator has filed an answer. 

31FMSHRC1110 
Having reviewed Cessford' s request and the Secretary's response, we find the request to 

reopen to be moot. Cessford has properly contested the proposed penalty assessment and 

therefore it did not become a final order of the Commission. This case shall proceed pursuant to 

the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 1111 
Distribution 

Donald W. Smith, Safety Director 

Cessford Construction Company 

3808 Old Highway 61 

Burlington, IA 52601 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra Jam es, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

31FMSHRC1112 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

LIGGETT MINING, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 30, 2009 

Docket No. KENT 2010-1 

A.C. No. 15-18687-188524 

Docket No. KENT 2010-2 

A.C. No. 15-18854-188526 

Docket No. KENT 2010-3 

A.C. No. 15-19080-188530 

Docket No. KENT 2010-4 

A.C. No. 15-19234-188533 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On October 2, 2009, the Commission received from Liggett 

Mining, LLC ("Liggett") motions to reopen four penalty assessments that may have become final 

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

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

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

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

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

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'l In evaluating requests to 

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

consolidate docket numbers KENT 2010-1, KENT 2010-2, KENT 2010-3, and KENT 2010-4, 

all captioned Liggett Mining, LLC, and all involving similar procedural issues. 29 C.F.R. 

§ 2700.12. 

31FMSHRC1113 
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

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

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

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

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

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

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

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

Each of the four assessments was dated June 18, 2009, and received by Liggett. 

According to the motions, Liggett' s representative marked each of the assessments indicating 

· which penalties the operator was contesting and mailed the four notices separately, on June 27, 

2009, using certified mail. According to copies of the on-line records of delivery ~ubmitted by 

Liggett with its motions, the four envelopes were received by the Department of Labor's Mine 

Safety and Health Administration two days later. Nevertheless, Liggett received delinquency 

notices for the assessments dated September 10, 2009, which caused it to promptly file its 

motions to reopen. 

The Secretary of Labor states that, while she has no record of receiving the notices of 

contest, given the information provided by Liggett, she will accept the copies of the notices of 

contest included with Liggett's motions. The Secretary states in her letters dated October 9, 

2009, that she will file penalty petitions within 45 days of that date. 

31FMSHRC1114 
Having reviewed Liggett' s motions and the Secretary's responses, we find the requests to 

reopen to be moot. These cases shall proceed pursuant to the Mine Act and the Commission's 

Procedural Rules, 29 C.F .R. Part 2700, and, per her statements, the Secretary's penalty petitions 

shall be filed no later than November 23, 2009. 

Robert F. Cohen, Jr., Commissi~ner 

31FMSHRC1115 
Distribution: 

Jam.es Bowman, 

Liggett Mining, LLC, 

P.O. Box 99, 

Midway, WV 25878 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31FMSHRC1116 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

HOOVER, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 30, 2009 

Docket No. SE 2009-600-M 

.A.C. No. 40-03012-171882 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On June 11, 2009, the Commission received from Hoover, 

Inc., ("Hoover") a motion by counsel to reopen a penalty assessment that had become a final 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

31FMSHRC1117 
On December 21, 2008, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued Proposed Assessment No. 000171882 to Hoover, proposing 

penalties for six citations that had been issued to Hoover in October and November 2008. After 

receiving no response, MSHA sent Hoover a delinquency notice on or around March 19, 2009. 

Hoover promptly notified MSHA that it had no record of receiving the assessment and that the 

individual MSHA identified from the Federal Express records as having signed for the delivery, 

Jerry Rogers, had been on long-term medical leave since early December 2008. Hoover explains 

in its motion, which is supported by an affidavit, that it investigated the matter but never located 

the FedEx package or determined who signed for the delivery. Hoover had previously indicated 

to MSHA its intent to contest all six of the proposed penalties. 

The Secretary does not oppose Hoover's request to reopen the assessment, and includes 

with her response a signature page for the delivery which does not match the Federal Express 

record stating that the delivery was signed for by Rogers. 

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

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 1118 
Distribution: 

G. Summer, R. Bouldin, Jr., Esq. 

Bouldin & Bouldin, PLC 

122 North Church St. 

P.O. Box 811 

Murfreesboro, TN 77133 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 251h 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 

31FMSHRC1119 
· FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MOLTAN COMPANY 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 30, 2009 

Docket No. SE 2009-601-M 

AC. No. 40-02968-179454 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On June 12, 2009, the Commission received from Moltan 

Company ("Moltan") a request to reopen a penalty assessment that had become a final order of 

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

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

penalty must notify the Secretary of Labor no later than 3 0 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). 

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

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

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

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

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

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

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

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

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

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

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

31 FMSHRC 1120 
On March 17, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000179454 to Moltan, proposing penalties for 38 

citations and orders that had been issued to Moltan the previous month. Moltan explains that it 

did not respond to the assessment until May 27, 2009, because shortly after the assessment was 

received, the company's founder died, and new management assumed leadership. The employee 

who had received the assessment immediately left the company without informing anyone of the 

time sensitive nature of the assessment. Moltan states that, after company officials found the 

assessment in a pile of papers in the employee's former office, it promptly mailed the contest to 

MSHA, indicating its intent to contest 12 of the proposed penalties. MSHA rejected the filing as 

untimely, and Moltan promptly filed this request to reopen. The Secretary states that she does 

not oppose Moltan's request to reopen the assessment. 

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

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1121 
Distribution: 

Cheryl Followell 

Moltan Co., LP 

7125 Riverdale Bend Rd. 

Memphis, TN 38125-4442 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 251h 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 

31FMSHRC1122 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

· SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 30, 2009 

Docket No. VA 2009-314 

A.C. No. 44-04856-162333 

CONSOLIDATION COAL COMP ANY 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On June 8, 2009, the Commission received a motion by 

counsel for Consolidation Coal Company ("Consol") seeking to reopen a penalty assessment that 

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

U.S.C. § 815(a). 

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

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

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

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

On September 10, 2008, the Department ofLabor's Mine Safety and Health 

Administration ("MSHA") issued Proposed Assessment No. 000162333 to Consol, proposing 

civil penalties for 107 citations issued to the operator at its Buchanan Mine over the course of the 

preceding three months. Consol states that MSHA's records show that Consol received the 

package containing the assessment, but that the operator otherwise has no record of what 

happened to the assessment after that. Consol explains that the individual to whom the form was 

addressed, and to whom it would have been forwarded after its receipt, stopped working at the 

mine in November 2008. Consol further notes that the individual who was ultimately 

responsible for processing assessments at the time in question has no record or recollection of 

receiving the form. 

31FMSHRC1123 
The Secretary opposes Consol's request to reopen the proposed assessment. She argues 

that Consol's inadequate or unreliable internal distribution procedures do not constitute the 

exceptional circumstances required for reopening. The Secretary also states that the penalty 

assessment became a final Commission order on October 17, 2008, and that on December 10, 

2008, MSHA sent a delinquency notice to Consol informing the operator that it had failed to 

timely contest the proposed penalties. The Secretary asserts that Consol has failed to explain 

why it did not file its motion for reopening until nearly an additional six months had passed. 

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

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

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

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

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

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

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

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

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

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). 

We do not ·agree with the Secretary that this one instance necessarily establishes that · 

Consol's internal distribution procedures are inadequate or unreliable. However, in considering 

whether an operator has unreasonably delayed in filing a motion to reopen a final Commission 

order, we find relevant the amount of time that has passed between an operator's receipt of a 

delinquency notice and the operator's filing of its motion to reopen. See, e.g., Left Fork Mining 

Co., 31 FMSHRC 8, 11 (Jan. 2009). Although the Secretary's response raised the issue that 

Consol failed to explain why, after it was informed of the delinquency, it took as long as it did to 

request reopening, the operator did not file a reply providing an explanation. 1 

1 We encourage parties seeking reopening to provide further information in response to 

pertinent questions raised in the Secretary's response. See, e.g., Climax Molybdenum Co., 30 

FMSHRC 439, 440 n.1 (June 2008). Accordingly, where the Secretary raises the issue of the 

delay between receipt of a delinquency letter and the filing of the request to reopen, an operator 

who does not explain why, after it was informed of a delinquency, it took as long as it did to 

request reopening, does so at its peril. 

31 FMSHRC 1124 
Having reviewed Consol's request and the Secretary's response, we conclude that Consol 

has failed to explain the delay in responding to the delinquency notice and therefore has not 

provided the Commission with an adequate basis to reopen. See, e.g., Petra Materials, 31 

FMSHRC 47, 49 (Jan. 2009). Accordingly, we deny without prejudice Consol's request to 

reopen. 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC1125 
Distribution: 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center, Suite 1340 

401 Liberty A venue 

Pittsburgh, PA 15222 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. 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 

31FMSHRC1126 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

U.S. SILVER-IDAHO, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 30, 2009 

Docket No. WEST 2009-1216 

A.C. No. 01-00082-1874431 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On August 7, 2009, the Commission received from U.S. 

Silver-Idaho, Inc. ("U.S. Silver") a motion seeking to reopen a penalty assessment that had 

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

§ 815(a). 

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

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

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

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

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

1 The Assessment Case Number has been corrected to accurately reflect the Proposed 

Penalty Assessment at issue. 

31FMSHRC1127 
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). 

U.S. Silver states that it sent its contest form to the Department of Labor's Mine Safety 

and Health Administration ("MSHA") approximately one week after the 30-day deadline. The 

affidavit of U.S. Silver's safety superintendent indicates that, although the company has an 

established procedure for processing proposed assessments, he neglected to send the contest form 

to a company administrative assistant for mailing to MSHA until the deadline had passed. The 

. affidavit also notes that the company has now revised its procedure to more acclirately calendar 

assessments in an effort to avoid the same circumstance in the future. 2 When MSHA informed it 

of the mistake, U.S. Silver promptly filed a motion to reopen. Contests had already been filed for 

two of the citations at issue. -

The Secretary does not oppose the reopening of the proposed penalties. 

2 The revised procedure places deadlines to contest all MSHA assessments, detailed by 

mine name and case number, on both the paper and electronic calendars of both the safety 

superintendent and the administrative assistant. 

31 FMSHRC 1128 
Having reviewed U.S. Silver's request and the Secretary's response, in the interests of 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 1129 
Distribution: 

Mark N. Savit, Esq. 

Patton Boggs LLP 

1801 California Street 

Suite 4900 

Denver, CO 80202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. 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 

31FMSHRC1130 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

October 30, 2009 

Docket No. WEVA 2009-1592 

A.C. No. 46-07908-179891 

PINE RIDGE COAL COMP ANY, LLC 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (''Mine Act"). On September 9, 2009, the Commission received from Pine 

Ridge Coal Company, LLC ("Pine Ridge") a renewed motion by counsel to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

is deemed a final order ofthe~Commission. 30 U.S.C. § 815(a). 

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"). Jn evaluating requests to 

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

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

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

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

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

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

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

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

31FMSHRC1131 
On March 19, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000179891 to Pine Ridge for 22 citations MSHA 

had issued to the operator over the previous two months. However, the operator did not file a 

timely notice of contest. In its first motion to reopen, filed on June 22, 2009, Pine Ridge stated 

that it had intended to contest 12 of the proposed penalties, but because of a "clerical error" it 

failed to return the contest form to MSHA. The Secretary of Labor opposed reopening on the 

ground that the proffered ground for reopening did not rise to the level of exceptional 

circumstances. The Commission subsequently denied the request to reopen without prejudice 

because of Pine Ridge's failure to provide a sufficiently detailed explanation for its failure to file 

a timely contest. See Pine Ridge Coal Co., 31 FMSHRC _ , slip op. at 2, Docket No. WEV A 

2009-1592 (Aug. 26, 2009). 

· The renewed request to reopen from Pine Ridge includes an affidavit from its safety 

manager, who explains that the assessment was not processed as it normally would have been 

because it was misfiled in a stack of documents on his desk after he had marked it to indicate 

which penalties he wished to contest. The Secretary has not responded to Pine Ridge's renewed 

motion. 

Having reviewed Pine Ridge's requests, 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. 

31FMSHRC1132 
Distribution: 

Melissa Robinson, Esq. 

Jackson Kelly PLLC 

1600 Laidley Tower 

P.O. Box 553 

Charleston, WV 25322 . 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor, 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 1133 
31 FMSHRC 1134 
ADMINISTRATIVE LAW JUDGE DECISIONS . . 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

September 4, 2009 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION, 

on behalf of CHARLES SCOTT HOW ARD 

Complainant 

v. 

CUMBERLAND RNER COAL COMP ANY, INC., : 

Respondent 

DECISION 

AND 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. KENT 2009-1427-D 

BARB CD 2009-11 

Mine ID 15-18705 

Band Mill No. 2 

ORDER OF TEMPORARY REINSTATEMENT 

Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for Complainant, Secretary of Labor, 

Tony Oppegard, Esq., Lexington, Kentucky, and Wes Addington, Esq., 

Appalachian. Citizens Law Center, Whitesburg, Kentucky, for Charles Scott 

Howard, 

Willa B. Permutter, Esq., and Thomas P. Gies, Esq., Crowell & Moring, LLP, 

Washington, D.C., for Respondent. 

Before: Judge Zielinski 

This matter is before me on an Application for Temporary Reinstatement filed by the 

Secretary on behalf of Charles Scott Howard pursuant to section 105 ( c )(2) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2). Howard filed a complaint with the 

Secretary's Mine Safety and Health Administration (MSHA) alleging that his May 14, 2009, 

layoff was motivated by his protected activity. The Secretary contends that Howard's complaint 

is not :frivolous, and seeks an order requiring Respondent, Cumberland River Coal Company, 

Inc., to reinstate Howard as an employee, pending completion of a formal investigation and final 

decision on the merits of the discrimination complaint. A hearing on the application was held in 

Whitesburg, Kentucky, on August 26 and 27, 2009. 1 For the reasons set forth below, I grant the 

application and order Howard's temporary reinstatement. 

1 A malfunction in the· court reporter's tape recorder during the first day of the hearing 

resulted in the loss of approximately 15 pages of transcript. Tr. 59. The malfunction occurred 

during the testimony of Valarie Lee, Cumberland's manager of human resources. As noted in the 

body of this Decision, Lee's testimony was informative, but not particularly critical to the central 

issues in the case. The missing portion of the transcript has not compromised the fair and 

impartial disposition of this proceeding, and no party has so contended .. 

31 FMSHRC 1135 
Summary of the Evidence 

Howard was hired by Cumberland on March 21, 2005, and worked as an underground 

miner in a position classified as "Face." That job classification encompasses a variety of duties, 

including, continuous miner operator, ram car operator, scoop operator, roof bolter, and general 

laborer. Beginning in 2007, Howard engaged in a number of safety-related activities, and 

exercised other rights under the Mine Act. A listing of his claimed protected activities was 

submitted into evidence. Exhibit G-10. While Cumberland challenges the characterization of 

several of the claimed activities, it acknowledges that Howard engaged in numerous activities 

protected under the Act, including the filing of two discrimination actions with MSHA and the 

Commission, making safety complaints and testifying on safety issues before the United States 

Congress and MSHA. Tr. 322-23. Moreover, key management decision makers were well.aware · 

ofHoward's protected activities at all times pertinent to this proceeding. Tr. 311-~4, 322-47, 

465-67. 

The general downturn in the economy that began in 2008 resulted in reduced coal sales 

which, in turn, prompted Arch Coal, Inc., to reduce coal production at its subsidiary, 

Cumberland. Contract operations were curtailed and hours were reduced. However, 

Cumberland's coal inventory continued to grow, swelling in early 2009 to 224,000 tons, as 

compared to a normal inventory of 80,000 tons. Tr. 236-38. Gaither Frazier, Cumberland:',s 

·general manager, was instructed to reduce production to brihg'.it into line with projected sales. 

He instructed Cumberland's production manager Ricky Johnson, to develop plans to reduce 

Cumberland's production by 50,000 to 60,000 tons per month. Tr. 239. 

Johnson considered several options for restructuring Cumberland's operations to meet the 

production goal. He eventually proposed, and Frazier approved, a plan that called for closing one 

mine and reducing operations at several other facilities, which necessitated laying off both hourly 

and salaried personnel. Frazier's overriding concern was to achieve the production targets. 

While he was interested in keeping as many employees as possible, he was not concerned with 

keeping or eliminating a particular number of jobs or laying off a specific number of employees, 

and he did not give Johnson any instructions in that regard. Tr. 251, 433-34, 450. The final 

restructuring plan prepared by Johnson specified the various facilities that would continue to 

operate, and the numbers and types of positions that would be filled for each shift. Tr. 251, 450. 

Frazier approved the restructuring plan and the specific staffing levels proposed by Johnson. 

Tr. 298, 450. Manypositions were eliminated. However, some vacant positions at operations 

that were to continue were filled. As Johnson described it, there was a lot of fine tuning and a 

few extra positions were factored in. Tr. 450, 456. 

The next step in the process was to identify the specific employees who would fill the 

positions that were to remain, and those who were to be laid off. The collective bargaining 

agreement ("CBA") between Cumberland and the Scotia Employees Association ("union") 

specified that three factors were to be considered in any reduction of the working force. They 

were, in order; a) ability and individual skill to perform the essential functions of the job; b) 

company seniority; and c) experience and efficient service related to the qualifications of the job. 

31FMSHRC1136 

. ' 
Ex. G-4 at 8-9. An employee's qualifications for the first factor were determined by his job 

classification and/or whether he had performed a job under company supervision within the past 

seven years. Id. The CBA specified only two non-trainee job classifications for underground 

miners, "Maintenance," which required electrical certification, and "Face," which included 

virtually all other jobs associated with the production of coal. Ex. G-4, App. C. Other 

classifications are specified for different operations. Cumberland maintained a list of employees, 

by seniority, on which each employee was assigned a seniority number. Ex. G-3. Johnson and 

Valarie Lee, Cumberland's manager of human resources, examined the job classifications and 

qualifications of Cumberland's hourly employees, and their length of seniority, and wrote the 

names of employees who would fill the post-restructuring staffing plan into blank spaces on the 

plan. Ex. G-2. It was not necessary to consider the third factor, because no two persons in a 

·gi.venjob classification had the same length of seniority.· Tr. ,147-49, 452; ... 

Frazier had done rough estimates early in the process that reflected that 63 hourly 

employees might be laid off. Tr. 240-47; ex. G-11, G-12. When Johnson and Lee finished 

inserting employee names into the restructured operations staffing plan, there were 66 hourly and 

19 salaried employees for whom no positions existed, and who had to be laid-off. Employees 

were notified of the restructuring on Thursday, May 14, 2009. Friday was an idle day, and 

production resumed on Monday, May 18, 2009. Howard, whose seniority number was 125, was 

the most senior employee in the underground "Face" job classification to be laid off, and would ... 

·be the first to. he recalled in the event an underground,face positionwas filled. Eddie Bently, the.· 

president of the union, was given a copy of the layoff notices. The following week, he brought 

several errors to Cumberland's attention. Essentially, they consisted of individuals who qualified 

for a different job and had more seniority than a person who had been retained in that 

classification.2 Those "errors' were corrected, and the previously retained employees were 

"bumped," i.e., laid off. 

Two or three underground face employees left Cumberland's employment subsequent to 

the layoffs. However, Cumberland has determined not to fill those positions. The most recent 

vacancy occurred during the week of the hearing, and Cumberland advised, through counsel, that 

the position would not be filled on a permanent basis.3 Howard has not been recalled. 

2 One such employee, James Cress, Jr., testified at the hearing. He was carried on 

Cumberland's records as an underground face employee, and his seniority number was 179. He 

received a layoff notice on May 14, 2009. However, he was a certified electrician in the State of 

Kentucky, and had been working in a higher-paid "Maintenance" position for months prior to the 

layoff. Because he had more seniority than another maintenance employee who had been 

retained, he was placed into that maintenance position. 

3 Cumberland's witnesses offered several reasons why a particular position may not be 

filled. Positions vacated temporarily because a worker is injured are not typically filled. 

Cumberland also had built in some "extra" positions in the post-restructuring staffing plan, and 

expected one or two people who had been out on worker's compensation to return shortly. 

31FMSHRC1137 

. ,, 
On July 11, 2009, Howard filed a complaint of discrimination with MSHA, claiming that 

he had been laid off in retaliation for having engaged in protected activity. On August 4, 2009, 

the Secretary filed the instant Application for Temporary Reinstatement on his behalf. 

Findings of Fact and Conclusions of Law 

SectionJ05(c)(2) of the Act, 30 U.S.C. § 815(c)(2), provides, in pertinent part, that the 

Secretary shall investigate a discrimination complaint "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 has established a procedure for making this determination. 

Commission Rule 45( d), 29 C.F .R. § 2700A5(d); states:· · · ' .. · 

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 burden of proof shall be upon the Secretary to establish that the 

complaint was not frivolously brought. In support of [her] application for 

temporary reinstatement, the Secretary may limit [her] presentation to the 

testimony of the complainant.. The respondent shall have an opportunity to cross-

... ·: examine any witnesses called by the Secretary and may present testimony and. 

documentary evidence in support of its position:.that.the complaint was frivolously 

·brought. .. .: · 

"The scope of a temporary reinstatement hearing is narrow, being limited to a determination by 

the judge as to whether a miner's discrimination complaint is frivolously brought." Secy 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). 

In adopting section 105( c ), Congress indicated that a complaint is not frivolously brought, 

if it "appears 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). The 

"not frivolously brought" standard has been equated to the "reasonable cause to believe" standard 

applicable in other contexts. Jim Walter Resources, Inc., 920 F.2d at 747; Secy of Labor on 

behalfofBussanich v. Centralia Mining Company, 22 FMSHRC 153, 157 (Feb. 2000). 

While an applicant for temporary reinstatement need not prove a prima facie case of 

discrimination, it is useful to review the elements of a discrimination claim in order to assess 

whether the evidence at this stage of the proceedings meets the non-frivolous test. In order to 

establish a prima facie case of discrimination under Section 105 ( c) of the Act, a complaining 

miner bears the burden of establishing (1) that he engaged in protected activity and (2) that the 

adverse action complained of was motivated in any part by that activity. Secy 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); Secy of 

31FMSHRC1138 
Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981 ); Secy of 

Labor on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSBR.C 1842 (Aug. 1984); Sec '.Y of 

Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981 ), rev'd on other 

grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). 

Howard has engaged in numerous activities protected under the Act, including making 

safety complaints and filing discrimination actions with MSHA and the Commission, two of 

which are currently pending. Howard's protected activity was well-known to virtually all 

management officials at Cumberland. fu fact, when Lee realized that Howard's name appeared 

on the list of hourly employees to be laid-off, she expressed surprise. Tr. 179. She, Johnson and 

Frazier recognized that Howard, who had several "court cases" pending against Cumberland, 

would likely initiate proceedings to challenge his layoff .. • · Frazier called Bob Shanks, Aroh. : 

Coal's president of eastern operations, and advised him of the situation. Shanks recommended 

that Frazier let things fall where they were going to, i.e., that no "special consideration" should 

be given to Howard, and Frazier decided to allow the reduction in force to proceed as planned. 

Tr. 311-14, 349-50, 400, 413. It is not disputed that Howard suffered adverse action, having lost 

his job on May 14, 2009, pursuant to the reduction in force. Whether the Secretary has proven, 

by a preponderance of the evidence, that Howard's claim of discrimination is not frivolous turns 

on whether there is evidence that the adverse action was motivated, at least in part, by Howard's 

•:protected activity. . . , · 

The Commission has frequently acknowledged that it is very 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). Consequently, the Commission has held that "(1) knowledge of the protected activity; 

(2) hostility or animus towards the protected activity; and (3) coincidence in time between the 

protected activity and the adverse action" are all circumstantial indications of discriminatory 

intent.4 Id. 

Cumberland argues that there was a nine-month gap between Howard's last protected 

activity and the layoff, which is "surely insufficient coincidence in time to support a reasonable 

inference of impermissible motivation." Resp. Br. At 21-22. However, Howard engaged in 

protected activity much closer in time to the layoff. On January 21, 2009, Howard exercised his 

right under section 105 ( c )(3) of the Act, to file a discrimination complaint with the Commission. 

30 U.S.C. § 815(c)(3). The filing of "any proceeding under or related to this Act" is specifically 

4 Cumberland argues that there is no evidence of hostility toward Howard's protected 

activities. The Secretary contends that statements made by Frazier that he didn't like seeing a 

video that Howard had taken in Cumberland's mine and shown during an MSHA hearing, and a 

.purported refusal of Howard's request for a copy of the seniority list evidence such hostility. 

I place little weight on that factor, because there are reasonable explanations for both of the 

actions. The Secretary also contends that Cumberland's failure to recall Howard to fill positions 

vacated subsequent to his layoff further evidences improper motive. Little weight has been 

placed on that evidence, for the same reason. 

31 FMSHRC 1139 
identified as protected activity. 30 U.S.C. § 815(c)(l). Cumberland's attempt to dismiss that 

protected action as simply a continuation of his original complaint of discrimination to MSHA is 

unavailing. Howard also claims protected activities in January and March of2009, including the 

communication of a safety complaint by his attorney, the initiation of a grievance regarding that 

complaint, and the initiation of grievances regarding changes to Cumberland's safety policy. 

Cumberland challenges the characterization of those activities, and disputes that the attorney's 

communication constitutes protected activity by Howard. I find that the fact that the safety 

complaint was communicated through counsel does not alter its status as protected activity by 

Howard. Howard's filing of grievances regarding the incident and changes to the safety policy 

also appear to constitute activities protected by the Act. 

' ·· More importantly, Howard's·protected activities werernimerous and have extended over 

a considerable period of time. Two discrimination actions that he filed are currently pending 

before the Commission. Cumberland's managers were well aware of the bulk of Ills activities, 

and anticipated that he would freely raise safety issues, and institute discrimination complaints as 

to any suspected retaliatory conduct. His status as a miner who engaged in protected activity 

was, in essence, continuing in nature, such that it could be said that the layoff was almost 

contemporaneous with his protected activities. 

Cumberland further argues that no reasonable inference of improper motivation could,be 

drawn because the undisputed evidence establishes that the number of hourly miners laid off was · 

· arrived at without reference to their identities, and that personnel were placed into the available 

slots by "mechanically applying" the terms of the CBA. Resp. Br. at 16. I have little problem 

with the assertion that, once the post-restructuring positions were established, proper application 

of the CBA resulted in Howard's layoff. Nor, apparently, does Howard.5 However, it is not at 

all clear that the process by which those positions were established was as squeaky clean as 

Cumberland asserts. 

While there is no direct evidence to counter testimony that identities of miners were not 

considered in determining the positions that would be kept following the restructuring, there is 

circumstantial evidence that could give rise to a contrary inference and that Howard's layoff was 

motivated, in part, by his protected activity. Johnson developed the post-restructuring staffing 

plan, i.e., determined the numbers and classifications of positions that would be used to conduct 

each of the remaining operations. He had considerable discretion in performing that task. As 

5 There was a good deal of evidence introduced as to the interpretation and application 

of the CBA. While counsel for the Secretary and Howard repeatedly questioned the explanations 

offered by Lee, Howard's counsel eventually stated that Howard was not contending that there 

had been a mistake in application of the contract. Tr. 423. Lee had explained that because a 

previous reduction in force had resulted in the retention of union members with less seniority 

than those laid off, the contract had been modified to base retention largely on seniority in broad 

job classifications, relegating more subjective criteria to essentially tie-breaker status. Tr. 182-

89; ex. G-4, R-1. There is no evidence that the union has taken issue with Cumberland's 

interpretation of the agreement. 

31FMSHRC1140 
previously noted, he testified that there was a lot of fine tuning of the staffing plan and some 

extra positions were factored in. Frazier explained that there was no specified number of 

personnel required to be kept, or let go, and Cumberland could have terminated fewer hourly 

miners, preserving Howard's job. Tr. 412. 

Johnson testified that identities of miners were not considered in establishing the postrestructuring staffing plan. However, information as to miners' identities and their rank on the 

seniority list was readily available to him. While the process of determining exactly where the 

cut-off line for a given number of layoffs would fall on the seniority list can be complicated, it 

would have been feasible to arrive at a staffing plan that would dictate that Howard would not be 

retained.6 Frazier had made preliminary estimates that 63 hourly miners might be laid off. 

· ' Johnson~s staffing charts ·dictated that 66 miners be let go; There is no detailed explanation ·bf .. 

how the preliminary estimates of 63 were arrived at, or exactly how they differed from the 

eventual number of 66.7 Johnson did not preserve drafts, notes, or other paperwork he generated 

in arriving at the staffing plan. Tr. 454. 

Cumberland appears to overstate the Secretary's burden. It argues that "[t]o justify an 

order of temporary reinstatement ... the Secretary and Howard must ... show that the adverse 

action complained of was motivated in any part by [the protected] activity," citing Sec '.Y of Labor 

on behalf of Pendley v Highland Mining Company, LLC. Resp. Br. at 15 ~ Highland Mining 

involved a claim of discrimination, and the quoted language addressed the complainanf s burden · 

to establish a prima facie case. In this temporary reinstatement proceeding, however, theSecretary need not establish a prima facie case of discrimination in order to prove that the 

complaint was not frivolously brought. It is sufficient that the evidence establish that a .. · 

nonfrivolous issue exists as to whether Howard's layoff was motivated in part by his protected 

activity. Sec'y on behalf of Albu v. Chicopee Coal Company, 21FMSHRC717, 719(July1999). 

The record is not devoid of evidence from which it could be inferred that Howard's layoff 

was motivated, in part, by his protected activity. It is not necessary, or appropriate in this 

proceeding, to decide whether or not to draw such an inference. I find that the evidence 

discussed above establishes a nonfrivolous issue as to improper motivation. 

6 The process is complicated by potential movement between job classifications. Cress, 

who may have been erroneously classified on Cumberland's records, moved into a maintenance 

position, and avoided being laid off from an underground face position. Similarly, a maintenance 

worker whose position might be eliminated, and who was also qualified to be an underground 

face miner, could move to that job classification and "bump" a less senior face miner. 

7 Cumberland offers an explanation in its brief, pointing out that the pre- and postrestructuring staffing plans show that three additional electricians were retained at the Blue Ridge 

Mine. Ex. G-1, G-2. Resp. Br. at 17. However, it would seem that the retention of an additional 

three miners would have reduced the number affected, i.e., changed it from 63 to 60, not 

increased it. 

31FMSHRC1141 
I find that there is reasonable cause to believe that Howard may have been discriminated 

against as alleged in his complaint, and conclude that the Application for Temporary 

Reinstatement has not been frivolously brought. 

ORDER 

The Application for Temporary Reinstatement is GRANTED. Cumberland River Coal 

Company is ORDERED TO REINSTATE Howard to the position that he held prior to 

May 14, 2009, or to a similar position, at the same rate of pay and benefits, IMMEDIATELY 

ON RECEIPT OF THIS DECISION. 

· •.. ··1 •••.•• :. 

,\,. 

· Distribution:(Electronic and First Class Mail)· : . · 

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suit~ 230, Nashville, TN 37219-2456 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY 

41858 

Willa B. Perlmutter, Esq., Growell & Moring, LLP, 1001 Pennsylvania Ave., N.W. Washington, 

D.C. 20004-2595 

31 FMSHRC 1142 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

on behalf of MARK GRAY, 

Complainant 

v. 

Washington, DC 20001-2021 

September 8, 2009 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. KENT 2009-1429-D 

BARB CD 2009-13 

NORTH FORK COAL CORPORATION, 

Respondent 

.. Mine ID 15-18340 

No. 4Mine 

DECISION AND ORDER GRANTING APPLICATION FOR 

- TEMPORARYREINSTATEMENT 

Appearances: Derek Baxter, Esq,, and Matthew Babington, Esq., Office of the Solicitor, U.S. 

·.Department of Labor, Arlington, Virginia, on behalf of the Secretary; 

Tony Oppegard, Esq., Lexington, Kentucky, and Wes Addington, Esq., Appalachian 

Citizens Law Center, Whitesburg, Kentucky, on behalf of Mark Gray; 

StevenM. Hodges, Esq., Penn, Stuart & Eskridge, Abingdon, Virginia, on behalf of 

the Respondent. 

Before: Judge Melick 

This case is before me pursuant to Section 105 ( c )(2) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801: et seq., the "Act". North Fork Coal Corporation (North Fork) has 

requested a hearing on the Secretary's application for temporary reinstatement of Mark Gray filed 

August 13, 2009, pursuant to Commission Rule 45, 29 C:f .R. § 2700.45. Expedited hearings were 

thereafter held in Wise, Virginia. 

Commission Rule 45(d), 29 C.F.R. § 2700.45(d) limits the scope of these proceedings as 

follows: 

The scope of a hearing on ail application for temporary reinstatement is limited to a 

determination as to whether the miner's complaint was :frivolously brought. The burden of 

proof shall be upon the Secretary to establish that the complaint was not frivolously brought. 

In support of his application for temporary reinstatement, the Secretary may limit his 

presentation to the testimony of the complainant. The respondent shall have an opportunity 

31FMSHRC1143 
to cross-examine any witnesses called by the Secretary and may present testimony and 

documentary evidence in support of its position that the complaint was frivolously brought. 

The Commission has further held that it is "not the judge's duty ... to resolve ... conflict[ s] 

in testimony at this preliminary stage of proceedings." Secretary of Labor on behalf of Albu v. 

Chicopee Coal_ Co., Inc., 21FMSHRC717, 719(July1999). At a temporaryreinstatementhearing 

the judge must determine whether the evidence mustered by the miner to date establishes that his 

complaint is non:frivolous, not whether there is sufficient evidence of discrimination to justify 

permanent reinstatement. Jim Walter Resources Inc. 920 F.2d 738 at 744 (11th Cir. 1990). The 

Circuit Court further stated that the "not frivolously brought" standard is indistinguishable from the 

"reasonable cause to believe" standard under the whistleblower provisions of the Surfa,ce_ 

Transportation Assistance Act. In addition, it is equated with a criteria of "not insubstantial or 

:frivolous" and "not clearly without merit." Jim Walter Resources Inc., 920 F.2d at 745. 

In his report to the Department of Labor's Mine Safety and Health Administration (MSHA) 

filed June 15, 2009, Mr. Gray stated as follows: 

I feel I was terminated because I refused to roof bolt an entire cut-through of about 60 feet 

plus in depth. I also made safety complaints. I want my job back plus all benefits due m~. 

At hearings Mr. Gray testified that he has been a miner since 1981 and a roof bolter operator 

for 16 or 17 years. He began working for North Fork in 2007 as a roof bolter. He worked with a 

partner, Chris Sheeks, on a double headed Fletcher roof bolter. Sheeks would work one side of the 

bolter while Gray operated the other. In a statement to MSHA investigator Guy Fain, Jr., on July 

31, 2009, Gray explained that section foreman Tom Cornett had arrived at the mine only about two 

months before his discharge on May 15, 2009. Before that, his foreman, lmown _as "Moondog", had 

complained to Gray that the mine ventilation curtains were not being hung by Gray. According to 

Gray, Moondog would tell Gray to shut down the roof bolter and hang curtains. After Cornett took 

over as foreman, he "seemed to get mad" when Gray shut down the bolter to hang ventilation 

curtains. 

Gray explained that, while working on the roof bolter he would often find methane readings 

in the .9% to 1 % range and would therefore stop roof bolting and hang ventilation curtains, 

presumably to reduce the methane concentrations. According to Gray, Foreman Cornett, when 

observing this activity, expressed his dissatisfaction with Gray (presumably for holding up 

production by not working on the roof bolter) by just walking off "like he was upset" and by no 

longer talking to him (Tr. 28). 

Gray also testified at hearings that sometime in April 2009, he was roof bolting in the 01 

31 FMSHRC 1144 
section where normal cuts were 30 feet deep. His foreman, Tom Cornett, then asked him to bolt a 

deep cut of about 55 feet and he did. After bolting the deep cut he told Cornett that he would not 

bolt another one like that. Gray testified that it was illegal to take such deep cuts as it was not 

permitted in the roof control plan and that it was not safe. It had a "raggedy " top with mixed 

sandstone and slate which would not bond together. "It would fall out on me". According to Gray, 

three days later he was asked to take another deep cut of about 5 5 feet and he refused. Gray testified 

that it was not safe to do so with the "raggedy" top and that it was in violation of the mine roof 

control plan. According to Gray, after this exchange with Cornett their interactions changed and 

Cornett "wouldn't talk to me like he used to, or anything". 

·According to Gray, about a week later, on May 15, 2009, he was fired by second.shift' · ... · 

supervisor, Robert Estevez. Estevez purportedly told him only that he had been "complained about" 

and when asked who reported on him, Estevez replied only ''well it don't matter, you know, I'm 

gonna believe my section foreman before I would you". Gray testified that Estevez gave him no 

written notice nor any further explanation as to why he was discharged. Gray maintained that no one 

in management had ever complained about his work and that he had never received any verbal or 

written warnings. 

Consideririg the testimony and statements ofMr. Gray it is apparent' that he engaged in• 

protected activity when he told his foremen that he had to hang ventilation curtains and that he made 

protected safety complaints and engaged in a protected work refusal in refusing to roof bolt what he· 

perceived to have been a dangerous deep cut, one which was well in excess of the 40-foot cuts 

permitted by the mine's roof control plan. A work refusal is protected under the Act under 

conditions the miner reasonably and in good faith believes to be hazardous. See Miller v. FMSHRC, 

687 F.2d 194, 195-196 (71

h Cir. 1982). It is also apparent from the testimony of Mr. Gray that he 

communicated his reasons for the work refusal to his foreman. Gray's discharge on May 15, 2009, 

was the adverse action. fu addition there is evidence that the adverse action was motivated by the 

protected activity. There is evidence that Gray's foreman had knowledge of the protected activity 

and that he showed hostility towards the protected activity by demonstrating anger about that 

activity. fu addition, these was close proximity in time- -only one week and two weeks- -between 

the protected activity and the adverse action. Finally, there is evidence that Gray was given no 

reason for his discharge. See Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508(November1981); 

rev'd on other grounds sub. nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). 

While the Respondent presented a number of witnesses and witness statements to contradict 

the testimony of Mr. Gray and which could at a trial on the merits reflect upon the credibility of his 

testimony, as previously noted, it is not the judge's position to resolve conflicts in testimony at this 

preliminary stage of proceedings. At a temporary reinstatement proceeding the judge must determine 

only "whether the evidence mustered" by the miner to date establishes that his complaint is nonfrivolous," not whether there is sufficient evidence of discrimination to justify permanent 

31FMSHRC1145 
reinstatement. Jim Walter Resources Inc., 920 F.2d at 744. 

Under the circumstances, and within this framework of law, I have no difficulty in 

concluding that the complaint of Mark Gray in this case was not :frivolously brought. Whether the 

Secretary can establish a prima facie case of discrimination and whether the Respondent could 

affirmatively defend such a case are questions to be d~ferred for trial on the merits of any subsequent 

discrimination case. 

ORDER 

·North Fork Coal Corporation is hereby ordered forthwith to temporarily reinstate 

Complainant Mark Gray to the position he held as of the date prior to his discharge on May 15, 2009, 

(or to an equivalent position) at the same rate of pay, with the same hours and with the same benefits 

as he had as of the date prior to his discharge. 

Distribution: (By Certified Mail and Facsimile or E-Mail) 

Derek J. Baxter, Esq., and Matthew Babington, Esq.,Office of the Solicitor, U.S. Department of 

Labor, 1100 Wilson Blvd., 22nd, Floor West, Arlington, VA 22209-2247 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY 

41858 

Stephen Hodges, Esq., Penn, Stuart, & Eskridge, 208 E. Main St., Drawer 2288, Abingdon, VA 

24210 

/lh 

31FMSHRC1146 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 .NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 

TELEPHONE: 202-434-9964 /FAX: 202-434-9949 

September 9, 2009 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 2008-189 

A.C. No. 36-05018-136171 

v. 

CUMBERLAND COAL RESOURCES LP, 

Respondent 

Cumberland Mine 

DECISION 

Appearances: Paul A. Marone, Esq., Office of the Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for the Petitioner; 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, for the 

Respondent. 

Before: Judge Weisberger 

Statement of the Case 

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

the Secretary of Labor ("Secretary"), seeking the imposition of a civil penalty for the alleged 

violation by Cumberland Coal Resources, LP ("Cumberland") of 30 C.F.R. § 75.380(d)(7)(iv), 

at four separate locations. 1 Subsequent to notice, this case was heard in Pittsburgh, Pennsylvania. 

Following the hearing, each party filed proposed findings of fact, a brief, and a reply brief. 

I. Stipulations 

The parties stipulated as follows: 

1. Cumberland is an "operator" as defined in§ 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 citations at issue 

in this proceeding were issued. 

1

The petition also seeks the imposition of penalties for the alleged violation of various 

other standards. These citations were settled by the parties prior to the hearing (See III) (F), 

infra) 

31FMSHRC1147 
2. Operations of Cumberland were 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 Judges 

pursuant to Sections 105 and 113 of the Mine Act. 

4. At all material times involved in this case, the 

products of the subject Mine, or the operations or 

products thereof, affected commerce, within the · 

meaning and scope of Section 4 of the Mine Act, 30_ 

u.s.c. § 804. 

5. The individual whose signature appears in Block 22 

of the citations at issue in this proceeding was acting 

in his official capacity as an authorized representative 

of the Secretary of Labor when Citation Nos. 

7019884, 7019885, 7019887 and 7019889 were 

issued. 

6. Payment of the total proposed penalty of $39,161.00 

for the subject Citations will not affect Cumberland's 

ability to continue in business. 

7. The Citations Nos. 7019884, 7019885, 7019887 and 

7019889 are authentic copies of the subject Citations, 

with all appropriate modifications or abatements, if 

any, and may be admitted into evidence for the 

purpose of establishing their issuance. 

8. The Cumberland Mine (the "Mine") mined a total of 

7,515,984 tons of coal in 2006. 

9. Affiliated companies to Cumberland produced 

71,492,892 tons of coal in 2006. 

10. Cumberland was assessed 224 violations over 676 

inspection days during the 15 months preceding the 

issuance of the subject Citations. 

11. The Assessed Violation History Report reflecting the 

31FMSHRC1148 
history of violations of Cumberland is an authentic 

copy and may be admitted as a business record of the 

Mine Safety and Health Administration. 

12. True copies of the citations that are at issue in this 

proceeding were served 

on Cumberland as required by the Mine Act. 

13. Citation No. 7019884 was issued on December 6, 

2007, for an alleged violation of 30 C.F.R. § 

75.380(d)(7)(iv), and alleged as follows: 

The lifeline provided in the #1 entry (belt), secondary 

escapeway for the 5 Butt East Longwall (011-0) 

working section was not maintained in a usable 

condition for the entire length of the escapeway. The 

lifeline was hung from the mine roof with J hooks and 

could not be reached by a miner or pulled down in 

most areas. The lifeline was also hung above cables 

in several areas and could not be pulled down for use. 

14. Citation No. 7019885 was issued on December 7, 

2007, for an alleged violation of 30 C.F.R. § 

75.380(d)(7)(iv), and alleged as follows: 

The lifeline provided in the #2 track entry, primary escapeway 

for the 5 Butt East Longwall (011-0) working section was not 

located in such a manner for miners to use effectively to 

escape in the event of an emergency. The lifeline was hung 

from the mine roof directly over the longwall mule train, 

supply cars and mantrips for a distance of approximately 450 

feet. Cables and hoses were also hung under the lifeline at 

several locations. 

15. Citation No. 7019887 was issued on December 10, 

2007, for an alleged violation of 30 C.F.R. § 

75.380(d)(7)(iv), and alleged as follows: 

The lifeline provided in the #2 track entry, primary escapeway 

for the 8 Butt East (027-0) working section was not located in 

such a manner for miners to use effectively to escape. The 

lifeline was hung directly over top of 5 supply cars, rail car, 

and a personnel carrier from the end of the track outby for a 

31FMSHRC1149 
distance of approximately 120 feet. There was also no means 

provided to get on a lifeline where miners could enter the 

escapeway at man doors. The lifeline was hung 8 feet from 

the mine floor and could not be reached. Water line was hung 

under the lifeline at the #3 5 crosscut. This is the third citation 

issued for this condition this quarter. 

16. Citation No. 7019889 was issued on December 11, 

2007 for an alleged violation of 30 C.F.R. § 

75.380(d)(7)(iv) and alleged as follows: 

The lifeline provided in· the #2 track entry the primary 

escapeway for the 15 Butt East (029-0) working section was_ 

not installed in such a manner for miners to use effectively to 

escape. The lifeline was hung from the mine roof directly 

overtop of a rail truck, 8 supply cars and a mantrip. The 

distance of approximately 300 feet from the end of the track. 

17. At all relevant times herein, the average width of the 

belt and track entries in the Mine was sixteen (16) 

feet. 

18. At all relevant times herein, the average height of the 

mine roof in the belt and track entries in the Mine was 

seven and one-half (7Yz) feet. 

19. The 5 Butt East section of the Mine on December 6, 

2007 was a retreating longwall section. 

20. On December 6, 2007, portions of the lifeline in the 

#1 belt entry secondary escapeway for the 5 Butt East 

Longwall (011-0) working section of the Mine was 

hung from the mine roof with "J" hooks and high 

voltage hangers. 

21. The secondary escapeway for the 5 Butt East 

Longwall is the belt entry in a set of three entries 

which comprise the longwall headgate. Each entry is 

isolated by stoppings from the other entries. The belt 

entry contains a CO monitoring system which will 

detect low levels of carbon monoxides and provide 

alerts and alarms at 5 and 10 ppm of CO above 

ambient respectively. 

31FMSHRC1150 
22. The belt entry was ventilated with intake air that had 

not ventilated the longwall face. 

23. On December 7, 2007, the lifeline in the #2 track 

entry primary escapeway for the 5 Butt East Longwall 

(011-0) working section of the Mine was hung from 

the mine roof with Hilti fasteners. The fasteners are 

plastic and the tip at the end of the fasteners bends 

down when pressure is applied. 

24. The track entry of the 5 Butt East Longwall headgate 

was isolated from the belt by stoppings. 

25. The track entry of the 5 Butt East Longwall headgate 

contained intake air that had not ventilated the 

working section and was traveling in an inby 

direction. 

26. On December 10, 2007, the lifeline in the #2 track 

entry primary escapeway for the 8 Butt East section of 

the Mine was hung from the mine roof with Hilti 

fasteners. The fasteners are plastic and the tip at the 

end of the fasteners bends down when pressure is 

applied. 

27. The 8 Butt East section was a three entry longwall 

development section. Each entry was isolated by 

stoppings from the other entries. 

28. The track entry of the 8 Butt East section was isolated 

from the belt and No. 3 entries by stoppings. It 

contained intake air that had not ventilated the 

working section and was traveling in an inby 

direction. 

29. On December 11, 2007, the lifeline in the #2 track 

entry primary escapeway for the 15 Butt East section 

of the Mine was hung from the mine roof with Hilti 

fasteners. The fasteners are plastic and the tip at the 

end of the fasteners bends down when pressure is 

applied. 

30. The 15 Butt East section was a three entry longwall 

development section. Each entry was isolated by 

31FMSHRC1151 
. ' 

stoppings from the other entries: 

31. The track entry of the 15 Butt East section was 

isolated from the belt and No. 3 entries by stoppings. 

It contained intake air that had not ventilated the 

working section and was traveling in an inby 

direction. 

32. Requirements for lifelines in escapeways were first 

established as part of an emergency temporary 

standard issued on March 9, 2006, published at 71 

Fed. Reg. 12252. A copy of the rule and preamble are 

offered into evidence as Government Exhibit 20. 

Cumberland does not object to the admission ofthisexhibit. 

33. The requirement for lifelines in escapeways became a 

final rule on December 8, 2006, and was published at 

71 Fed. Reg. 71430. A copy of the rule and preamble 

are offered into evidence as Government Exhibit 21. 

Cumberland does not object to the admission of this 

exhibit. 

34. MSHA addressed policy issues with respect to 

lifelines in "Training Questions for Emergency Mine 

Evacuation, Emergency Standard Compliance Guide." 

A copy of such questions and answers are offered into 

evidence as Government Exhibit 22. Cumberland 

does not object to the admission of this exhibit. 

35. ~· MSHA also addressed policy issues with respect to 

lifelines in "Emergency Mine Evacuation, Emergency 

Standard Compliance Guide, Volume 2," dated April 

7, 2006. A copy of such questions and answers are 

offered into evidence as Government Exhibit 23. 

Cumberland does not object to the admission of this 

exhibit. 

36. MSHA also addressed policy issues with respect to 

lifelines in "Emergency Mine Evacuation, Emergency 

Standard Compliance Guide, Volume 3," dated June 

16, 2006. A copy of such questions and answers are 

offered into evidence as Government Exhibit 24. 

31FMSHRC1152 
Cumberland does not object to the admission of this 

exhibit. 

37. MSHA addressed policy issues with respect to 

lifelines in "Emergency Mine Evacuation Final Rule 

Questions and Answers, May 3, 2007." A copy of 

such questions and answers are offered into evidence 

as Government Exhibit 25. Cumberland does not 

object to the admission of this exhibit. 

38. A diagram of a sample portion of the # 1 belt entry, 

secondary escapeway of the 5 Butt East section, with 

approximate distances, is offered into evidence as 

demonstrative evidence as Joint Exhibit 1. 

39. A diagram of a sample portion of the# 2 track entry, 

primary escapeway of the 5 Butt East section, with 

approximate distances, is offered into evidence as 

demonstrative evidence as Joint Exhibit 2. 

40. A diagram of a sample portion of the #·.2 track entry, 

primary escapeway of the 8 Butt East section, with 

approximate distances, is offered into evidence as 

demonstrative evidence as Joint Exhibit 3. 

41. A diagram of a sample portion of the # 2 track entry, 

primary escapeway of the 15 Butt East section, with 

approximate distances, is offered into evidence as 

demonstrative evidence as Joint Exhibit 4. 

II. Findings of Fact and Discussion 

A. Interpretation of Section 75.380(d)(7)(iv) 

Section 75.380(d)(7)(iv), provides as follows: 

( d) Each escapeway shall be-

* * * 

(7) Provided with a continuous, durable directional linfeline 

or equivalent device that shall be-

* * * 

(iv) Located in such a manner for miners to use effectively to 

escape; 

31FMSHRC1153 
Thus, the regulation requires, as pertinent, that an excapeway shall be (1) 

provided with (2) a continuous durable directional lifeline or equivalent device 

that shall be (a) located in such a manner for miners to use (b) effectively to 

escape. 

Established Commission case law regarding the interpretation of a regulatory term was 

set forth in Phelps Dodge Tyrone, Inc, 30 FMSHRC 646, 651-52 (Aug. 2008) as follows: 

Where the language of a regulatory provision is clear, the 

terms of that provision must be enforced as they are written unless the 

regulator clearly intended the words to have a different meaning or 

unless such a meaning would lead to absurd results. Dyer v. United 

States, 832 F.2d 1062, 1066 (9th Cir. 1987) (citations omitted); se~ 

also Utah Power &Light Co., 11FMSHRC1926, 1930 (Oct. 1989) 

(citations omitted); Consolidation Coal Co., 15FMSHRC1555, 1557 

(Aug. 1993). If, however, a standard is ambiguous, courts have 

deferred to the Secretary's reasonable interpretation of the regulation. 

See Energy West Mining Co. v. FMSHRC, 40 F.3d. 457, 463 (D.C. 

Cir. 1994); accord Sec '.Y of Labor v. Western Fuels-Utah, Inc., 900 

F.2d 318, 321 (D.C. Cir. 1990) ("agency's interpretation ... is 'of 

controlling weight unless it is plainly erroneous or inconsistent with 

the regulation"') (quoting Bowles v. Seminole Rock & Sand Co., 325 

U.S. 410, 414 (1945) (other citations omitted)).5 

The "language of a regulation ... is the starting point for its 

interpretation." Dyer, 832 F.2d at 1066 (citing Consumer Prod. 

Safety Comm 'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). In 

the absence of a regulatory definition or technical usage of a word, 

the Commission would normally apply the ordinary meaning of the 

word. See Bluestone Coal Corp., 19 FMSHRC 1025, 1029 (June 

1997); Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996), aff'd, 

111 F.3d 963 (D.C. Cir. 1997)(table). 

5 The Secretary's interpretation of a regulation is reasonable 

where it is "logically consistent with the language of the regulation [] 

and ... serves a permissible regulatory function." General Elec. Co. 

v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citation omitted). The 

Commission's review, like the courts' review, involves an 

examination of whether the Secretary's interpretation is reasonable. 

Energy West, 40 F.3d at 463 (citing Secy of Labor on behalf of 

31FMSHRC1154 
Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432, 1439 (D.C. Cir. 

1989)); see also Consolidation Coal Co., 14 FMSHRC 956, 969 

(June 1992) (examining whether Secretary's interpretation was 

reasonable). 

The terms in the standard at issue are not defined in the regulations. Thus, reliance is 

placed on the common meaning of the operative term, "effectively". Webster's Third New 

International Dictionary, (2002 ed.) ("Webster's") defines "[E]ffective", when used as an adverb, 

as follows: "in an effective manner". "[E]ffectively" as an adjective, is defined as follows: "la: 

capable of brining about an effect: productive ofresults." 

In support of its position that the-Cited manner oflocation of the lifeline was in 

conformity with the terms of75.380(d)(7)(iv), Cumberland argues that "the essence of the 

standard is whether a lifeline would be available to aid a person to get out of the mirle in an 

emergency." (Cumberland's Proposed Findings of Fact and Post-Hearing Brief, at 25) 

("Cumberland's Brief'), and that the "determination of whether a violation exist depends upon 

whether the lifeline is located in a fashion that would permit miners to use it during escape." 

(Cumberland's Brief, at 26). 

On the other hand, the Secretary argues, in essence, that the regulatory standard, which 

requires that lifelines be located in a manner to use effectively to escape, is.not complied with if 

the lifelines location would have substantially hindered or impeded miners from using the lifeline 

quickly to escape in the event of an emergency. (See Secretary of Labor's Proposed Findings of 

Fact, Conclusions of Law, and Memorandum in Support, at 22. ("Secretary's Brief). I find the 

Secretary's argument to be reasonable, as it is supported by the regulatory scheme of the 

requirement for lifelines, its regulatory history, the regulatory context, and the sentence structure 

of the standard at issue. 

The sentence structure of the regulatory phrase at issue, the location of lifelines "in such a 

manner for miners to use effectively to escape;" Section 75.380 (d)(7)(iv), clearly indicates that 

the word "effectively," between the phrase "to use" and the phrase "to escape" is meant to 

modify the latter phrase. Thus, based on the common meaning of the term "effectively" as set 

forth above, I find that the clear meaning of the standard at issue is that the location of a lifeline 

shall be in such a manner for miners to use it to escape in "an effective manner." 

Further, it is significant to note that the requirements for lifelines and the manner of their 

location, Section 75,380(d)(7)(iv), are placed under Section 75.380, which sets forth the 

regulatory mandate for the provision of escapeways and all their requirements, including 

lifelines. Thus, any interpretation of the requirement relating to the manner of the location of 

lifelines must be consistent with Section 75.380 as a whole, and must be in harmony with and not 

in conflict with the objective of Section 75.380. (See American Coal Company, 29 FMSHRC 

941, 948 (Dec. 2007); Lodestar Energy, Inc., 24 FMSHRC 689, 692 (July 2002) (quoting Emery 

Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1414 (10th Cir. 1984)). 

31FMSHRC1155 
fu American Coal Company, the Commission held that an operator violates Section 

7 5 .3 80(b )( 1 )' s requirement to "provide" escapeways when its miners are "substantially hindered 

or impeded from accessing designated escapeways." 29 FMSHRC at 948 .. fu reaching this 

conclusion, the Commission set forth the following regarding the purpose and legislative history 

of escapeways which is equally applicable to the case as bar: 

There is no disputing that escapeways are needed for miners 

to quickly exit an underground mine and that impediments to a 

designated escapewaymaypreventminers from being able to do so. 

The legislative history of the escapeway standard state that the 

purpose of requiring escapeways is 'to allow persons to escape 

quickly to the surface in the event of an emergency.' S; Rep. No. 91-

411, at 83, Legis. Hist., at 209 (1975)." 29 FMSHRC at 948 

(emphasis added.) " 

Based on the regulatory scheme and legislative history it is manifest that (1) the purpose 

of escapeways is to allow miners to quickly escape, and (2) the requirements of lifelines are 

included in the same standard that mandates the provision of escapeways. Thus, it is not logical 

to accept an interpretation of Section 7 5 .3 80( d)(7)(iv) that would permit lifelines to be located in 

a manner that would not similarly achieve the purpose of allowing miners to escape quickly. 

Further, I take cognizance of the regulatory history of the requirements for lifelines. 

Section 75.380(d)(7)(iv) was first promulgated in an Emergency Temporary Standard ("ETS") 71 

Fed. Reg. 12252, (Mar. 9, 2006). The SUMMARY of the ETS recognized "the grave danger 

that [miners] face when they evacuate a mine after an emergency occurs." Id. The summary sets 

forth the following regarding the utility of the proper positioning and location oflifelines: "the 

proper positioning of the lifeline regarding height, accessibility, and location as determined by 

the mining conditions improves the ability of miners to effectively use lifelines to escape during 

emergency situations." (Id. at 12261)(emphasis added) This language is reiterated in the 

preamble to the final rule 7l Fed. Reg. 71430, 71437, Dec. 8, 2006, which promulgated Section 

75.380(d)(7)(iv), with the same wording as was set forth in the ETS. 

Accordingly, it is clear from the regulatory history of Section 75.380(d)(7)(iv), that the 

manner of the location of lifeline for miners "to use effectively to escape" is intended to mean a 

location which "improves the ability of miners to effectively use lifelines to escape during 

emergency situations." As set forth above, in such circumstances the need is for miners to escape 

quickly (see American Coal, 29 FMSHRC at 941 (Dec. 2007). I thus find, based on all the 

above, that the clear wording of75.380(d)(7)(iv), requires that lifelines must be located in a 

manner for miners to use "effectively" to escape, i.e., to achieve the results of a quick escape in 

an emergency. 

31FMSHRC1156 
B. The Citations at Issue 

1. Citation No. 7019884 

On December 6, 2007, MSHA special investigator, Thomas H. Whitehair II inspected the 

No. 1 belt entry, the secondary escapeway for the longwall section. He inspected the escapeway, 

outby from the number 44 crosscut to the number 7 crosscut, a distance of approximately 6,650 

feet. A lifeline, not under tension, was suspended from the roof. The height of the lifeline 

throughout the escapeway from the number 44 crosscut to the number seven crosscut was 

approximately seven feet eight inches. At more than two locations between the number 24 

crosscut and the number seven crosscut, the lifeline was located above cables that ran 

·perpendicular to the lifeline. 

Also, portions of the lifeline were suspended by four-inch long hooks shaped like the 

letter J ("J hooks").3 The J hooks were approximately 50 feet apart. The hooks, which were 

attached to the roof at the top, were open-sided and curved upward at the bottom to hold the 

lifeline. They were not pointed in the same direction throughout the escapeway. 

Whitehair, upon observing these conditions, issued Citation No. 7019884 alleging a 

violation of Section 75.380(d)(7)(iv). . . 

Cumberland argues, in essence, that the location of the lifeline cited by Whitaker, i.e. 

suspended along portions of its length from "J" hooks and hung at some location above cables, 

did not render the lifeline "ineffective."Cumberland's Brief at 27). In this connection, 

Cumberland asserts that "[i]t was possible to remove the lifeline from the J-hooks by either 

grasping or removing it with any number of available tools within the mine, such as a hammer, a 

cap piece, or a wedge." (sic) (Cumberland's Brief at 27). This assertion appears to be based upon 

testimony elicited from Whitehair on cross examination, wherein he conceded that miners carry 

tools like hammers, and they "possibly" could reach up and flip the lifeline out of the J-hooks 

with one of those tools. (Tr. 158). Also, Whitehair stated on cross examination that this 

"probably'' could be done with a cap piece. (Tr. 158). He was asked whether the lifeline could be 

flipped out of the other hooks once it was removed from "one of the hooks"and he testified that 

"I expect you could .... " (Tr. 158). However, significantly he testified as follows regarding the · 

delay in escaping resulting from the need to flip the lifeline from the J hooks: 

... I believe that anything that would delay the miners' escape 

by trying to flotate and flip a lifeline with a stick when you can't see 

what you are even doing to get on that lifeline, to me, it's not 

adequate and it can't be safely used to escape the mine. 

The lifeline should be readily available for a miner to be able 

to get on that lifeline and quickly escape. 

3

0ther portions were suspended by various hangers or clips. 

31FMSHRC1157 
* * * ... I think it would take considerable doing and a considerable 

amount of time to do it. 

I mean, you have to bear in mind that you are totally blind. 

You can't see. You have no sense of direction, you know, and all you 

are trying to do is blindly try to flip this out of a hanger, .... 

(Tr. 158-59). 

I accord considerable weight to this opinion, as it is based upon conditions attendant upon 

a fire or explosion necessitating the use of an escapeway and a lifeline, i.e., smoke and limited 

visibility. 

-

Cumberland also relies on the testimony of Michael A. Konosky, its Senior Safety 

Representative who was with Whitaker when the citations were issued. Konosky testified that if 

he came upon a cable below the lifeline he would "[l]eave it go, walk under the hose and grab it 

on the other side". (Tr. 205). He also opined that he could do that in smoke "[b ]ecause I know 

where its at. It ain't like you got to hunt for it. It would be right ... in the middle of [a four foot 

walkway between the rib and the structure]." (Id.). I find this testimony speculative regarding the 

action of miners in an emergency mine evacuation in conditions of fire and smoke. 

Further, I find that the need for miners escaping during an emergency to flip the lifeline· 

from the overhead open J-hooks in order to access the lifeline would certainly impede their 

escape in an emergency. fu the same fashion, the presence of cables below the lifeline in the 

entry at several locations prevents access to the lifeline on a "continuous" basis. Thus, miners 

would be delayed by losing contact with the lifeline at the point of its intersection with the cable, 

and then having to relocate it by feel would further hinder their escape especially in conditions 

where vision is obscured due to the presence of smoke. 

As set forth above, (see, supra. Section ill (A)), the regulatory purpose of the 

requirements oflifelines and escapeways is, to allow miners to quickly escape in an emergency. 

Also, applying, in this context, the plain meaning of the terms of Section 75.380(d)(7), as 

discussed above, I find that the suspension of the lifeline by numerous J-hooks, and its location 

above cables would not enable miners to use it "effectively" to escape. I thus find that it has 

been established that the cited location of the lifeline was violative of Section 75.380(d)(7)(iv). 

2. Citation No. 7019885 

On December 7, 2007, Whitehair inspected the lifeline in the No. 2 track entry of the 5 

Butt East longwall section from the last outby piece of track equipment in the entry at around the 

No. 38 crosscut, inby to the inby end of the lifeline, a distance of approximately 750 to 850 feet. 

This entry was the primary escapeway for the longwall section. The lifeline in the escapeway 

was located over various track equipment for a distance of 450 feet. The lifeline was hung in the 

31FMSHRC1158 
middle of the entry, and was positioned over the track equipment 12 to 24 inches from its edge 

on the walkway side. The various pieces of track equipment were all at least seven feet wide and 

between three and five feet high. In addition, at various locations along the cited lifeline, cables 

and waterlines, located approximately seven inches down from the roof, ran perpendicular and 

under the lifeline at issue. Upon observing these conditions, Whitehair issued Citation No. 

7019885, alleging a violation of Section 75.380(d)(7)(iv). 

Cumberland argues that the lifeline in the cited area was capable of being used 

effectively. Cumberland asserts, inter alia, that the lifeline could be accessed by standing on the 

track equipment, track rail, or the ballast. Also, Cumberland argues that the lifeline could be 

reached more easily at the inby end, and that there were pull-downs that hung down from the 

lifeline at various locations in the track entry.4 

Whitehair expressed his concerns regarding the location of the lifeline above-track 

equipment as follows: 

Tr. 101 

Q What effect if any did the equipment on the track have on the 

miner's abil~ty to use the lifeline in that escapeway? 

A Well, I had two concerns. My first concern was, if a miner or 

miners were using the lifeline in order to escape, obviously they 

would be in smoke so thick that they couldn't see or they wouldn't be 

using the lifeline, and the miners would get on the lifeline at the end. 

It would pull down like it's designed to do and they would be hastily 

trying to escape. 

At some point, the lead miner is going to run right into the end piece 

of equipment that is in the middle of the entry or close to the middle 

of the entry, and my belief was that he could very easily be injured, 

he could fall, he could rupture his breathing bag on his SCSR, and 

that was one concern. 

My other concern is that if the lifeline was pulled down on top of this 

equipment, that there were areas that the lifeline could snag, become 

entangled and prevent the miners from using it. 

4

N ot much weight was accorded this assertion in light of the fact that the record does not 

establish the existence of pull-downs along the lifeline in the cited area. The only evidence on 

this point consist of the testimony ofKonosky, who was with the inspector during the inspection 

of the cited area. Konosky indicated that he was not sure that the pull-downs were in place at the 

time of the inspection. 

31FMSHRC1159 
This testimony was not impeached on cross-examination, and therefore I accept it. 

Based on all the above, I conclude that the location of the lifeline above track equipment 

for approximately 500 feet, and water lines and cables at some points, would tend to impede or 

hinder the escape of miners in an emergency. As such, I find that the location of the lifeline 

herein was not positioned in such a manner for miners to use "effectively to escape." see Section 

75.380(d)(7)(iv). Thus, I find that the location of the lifeline in the entry at issue was not in 

conformity with Section 75.380(d)(7)(iv). 

3. Citation No. 7019887 

On December 10, 2007, Whitehair inspected the lifeline in the number two track entry, 

the primary escapeway for the Eight Butt East section of the mine. He examined tl).e lifeline inby 

from the No. 35 crosscut to the end. He indicated that the lifeline, which was hung from the 

mine roof approximately seven and a half feet above the floor, was located over various track 

equipment at a point approximately one to two feet in from the outer edge of the equipment, for a 

distance of approximately a hundred and twenty feet. In addition, at the No. 35 cross cut, the 

lifeline was located over a waterline that ran perpendicular to the lifeline. He issued a citation 

alleging a violation of 30 C.F.R. § 75.380(d)(7)(iv) . 

. - The location of the lifeline at issue herein was essentially the same, i.e. over track 

· · equipment and a waterline, as the location cited in Citation No. 719885. For the reasons set foiih 

above, (See, supra Section III (B)(2)), I find the location of the lifeline herein similarly to be not 

in conformity with Section 75.380(d)(7)(iv). Thus, I find that the location of the lifeline violated 

Section 75.380(d)(7)(iv). 

4. Citation No. 7019889 

On December 11, 2007, Whitehair inspected the lifeline in the No. 2 track entry, the 

primary escapeway for the Fifteen Butt East section of the mine. He indicated that the lifeline, 

which was hung approximately seven and a half feet above the floor, was located above track 

equipment for approximately three hundred feet. The lifeline was located at a one to two feet in 

from the outer edge of the equipment. He issued a citation alleging a violation of Section 

75.380(d)(7)(iv). 

Since the cited condition is essentially the same as that cited in Citation No. 7019885, I 

find, for the reasons set forth above, supra Section III(B)(2), that the location of the lifeline 

herein violated section 75.380(d)(7)(iv). 

C. Notice 

In essence, it is the position of the Cumberland that, prior to the issuance of the citations 

at bar, it had not been provided with any notice that the manner in which the cited lifelines were 

31FMSHRC1160 
located was not i:ri conformity with the requirement of Section 75.380( d)(7)(iv). In this 

connection, Cumberland cites the facts that these conditions had never before been cited in any 

inspection subsequent to the promulgation of Section 75.380(d)(7)(iv), that neither the regulatory 

history regarding the promulgation of Section 75.380(d)(7)(iv), nor its placement within 30 

C.F.R. Part 75 Subpart Dis instructive regarding what is to be considered an "effective" location 

for lifelines, and that the Secretary had failed to provide any definitive guidance regarding the 

subject of the placement oflifelines, or on how Section 75.380( d)(7)(iv) is to be applied. 

In evaluating whether an operator has received notice of the regulations of a mandatory 

standard the Commission has adopted a reasonably prudent person test. As set forth in Lodestar 

Energy, Inc., 24 FMSHRC 689, 694 (July 2002): 

The appropriate test for notice is "whether a reasonably prudent 

person familiar with the mining industry and the protective purposes " 

of the standard would have recognized the specific prohibition or 

requirement of the standard." Ideal Cement Co., 12 FMSHRC 2409, 

2416 (Nov. 1990). 

In Phelps Dodge Tyrone, Inc., 30 FMSHRC 646, 656, (Aug. 2008), the Commission5 

reiterated the following "reasonably prudent person" standards: 

· [T]he alleged violative condition is appropriately measured against 

the standard of whether a reasonably prudent person familiar with the 

factual circumstances surrounding the allegedly hazardous condition, 

including any facts peculiar to the mining industry, would recognize 

a hazard warranting corrective action within the purview of the 

applicable regulation. 

Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982); 

see also Asarco, Inc., 14 FMSHRC 941, 948 (June 1992). As the 

Commission stated in Ideal Cement Co., 12 FMSHRC 2409, 2416 

(Nov. 1990), "in interpreting and applying broadlyworded standards, 

the appropriate test is not whether the operator had explicit prior 

notice of a specific prohibition or requirement," but whether a 

reasonably prudent person would have ascertained the specific 

prohibition of the standard and concluded that a hazard existed. The 

reasonably prudent person is based on an "objective standard." U.S. 

Steel Corp., 5 FMSHRC 3, 5 (Jan. 1983). 

5 Although two of the four Commissioners filed a separate opinion regarding one of the 

matters at issue, all of the Commissioners were in agreement regarding, inter alia, the decision 

on the issue of notice. 

31FMSHRC1161 
In Lodestar, 24 FMSHRC 694-95, the Commission identified various factors that are 

relevant in deciding whether a party had notice of a regulation's requirements as follows: 

In deciding whether a party had adequate notice of regulatory 

requirements, a wide variety of factors are relevant, including the text 

of a regulation, its placement in the overall regulatory scheme, its 

regulatory history, the consistency of the agency's enforcement, and 

whether MSHA has published notices informing the regulated 

community with ascertainable certainty of its interpretation of the 

standard in question. See Island Creek Coal Co., 20 FMSHRC 14, 

24-25 (Jan. 1998); Morton Int'!, Inc., 18 FMSHRC 533, 539 (Apr. 

1996); See also Diamond Roofing Co. v. Occupational Safety and 

Health Review Comm., 528 F.2d 645, 649 (5th Cir. 1976); United 

States v. Hoechst Celanese Corp., 128 F.3d216, 224 (4th Cir. 1997). 

The parties stipulated that subsequent to the promulgation of Section 75.380(d)(7)(iv), 

Cumberland had not been previously cited for a violation of the standard until December 6, 2007, 

when Citation No. 7019884 was issued, even though the lifeline ha4 been located in the same 

manner since the promulgation of the standard. Also~ I note that the Secretary has not provided 

any express written guidance with regard to the specific manner of location of the lifeline to 

satisfy the requirements set forth in Section 75.380(d)(7)(iv). However, as set forth above, (See 

supra, Section III (A)), I take cognizance of the regulatory history of the mandate oflifelines, the 

regulatory context of the standard at issue, its sentence structure, and the common meaning of its 

terms. As discussed above, (See supra, Section III (A)), the combination of all these factors 

clearly establishes that the manner of the location of lifelines is to achieve the result of enabling 

miners to use the lifeline "effectively to escape," i.e., a quick escape in an emergency. Within 

the above context, I find that a reasonably prudent person would have recognized that the manner 

of the installation of the lifelines at issue was not in conformity with Section 75.380(d)(7)(iv). 

As such, Cumberland's argument regarding lack of notice is rejected. 

D. Significant and Substantial 

A "significant and substantial" violation is described in section 104(d)(l) of the Mine Act 

as a violation "of such nature as could significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is 

properly designated significant and substantial "if based upon the particular facts surrounding 

that violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature." Cement Division, National Gypsum Co., 

3 FMSHRC 822, 825 (Apr. 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission explained its 

interpretation of the term "significant and substantial" as follows: 

31FMSHRC1162 
fu order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

Secretary of Labor must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard--that is, a 

measure of danger to safety--contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in an 

injury; and ( 4) a reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

fu United States Steel Mining Col!lpany, Inc, 7 FMSHRC 1125, 1129 (Aug. 1985), the 

· Commission stated further as follows: · · 

We have explained further that the third element of the Mathies 

formula "requires that the Secretary establish a reasonable likelihood 

that the hazard contributed to will result in an event in which there is 

an injury." U. S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance with the language of 

section 104( d)(l ), it is the contribution of a violation to the cause and 

effect of a hazard that must be significant and substantial. U.S. Steel 

Mining Co., Inc., 6 FMSHRC 1866, 1868 (Al_lgust 1984); U.S. Steel 

Mining Co., Inc., 6 FMSHRC 1573, 1574~75 (July 1984). 

(Emphasis added) 

I find that the record establishes, as set forth above, (See, suvra, Section III(B), that 

Cumberland violated a mandatory standard, i.e., Section 75.380(d)(7)(iv), in four locations, and 

that these violations contributed to the hazard of miners not escaping quickly in an emergency 

with attendant increased risk of injuries due to a delay in escape. At issue is the third element of 

Mathies, which asks whether there is a reasonable likelihood that the hazard contributed to a 

violation will result in an injury, i.e., a reasonable likelihood of an injury-producing event. (See, 

U.S. Steel Mining Co., 7 FMSHRC, 1125). fu other words, the question iswhether there was a 

reasonable likelihood that the hazard contributed to by the violative conditions of the location of 

the lifelines, i.e., a delay in the evacuation in the event, of an emergency necessitating the use of 

such lifelines resulting in injury, is dependent upon the existence of a reasonable likelihood of an 

injury-producing event i.e., a fire or explosion. The Secretary has failed to adduce the existence 

of facts that, in normal mining operations, would have tended to establish that there was a 

reasonable likelihood of a fire or explosion. fudeed, Whitehair conceded on cross-examination 

that a fire or explosion that would lead to reduced visibility to the point where use of a lineline 

was necessary was not reasonably likely.6 

6

The Secretary asserts, in essence, that the third element of Mathies must be "viewed in 

the context of continuing mining operations and of an emergency necessitating use of the 

31FMSHRC1163 
Therefore, for all the above reasons, I find that the third element set forth in Mathias, 6 

FMSHRC 1 has not been established and thus that it has not been established that the violations 

were significant and substantial. 

E. Penalty 

I find, based on the parties' stipulations, that Cumberland produced over seven and a half 

million tons of coal at the subject mine, and that affiliated companies produced over 71 million 

tons of coal in 2006. The Secretary acknowledged that the fact that Cumberland was assessed for 

224 violations during 676 inspection days in the fifteen months prior to the violation at issue was 

evidence of a low history of violations. The parties stipulated that the proposed penalties will not 

affect Cumberland's ability to continue in business.· I find that the violations were abated in a . 

timely fashion, and as such Cumberland exhibited good faith. 

As set forth above, (See, supra, Section III (D), I found that the violations were not 

significant and substantial based on the lack of evidence that an injury-producing event was 

reasonably likely to have occurred. As such, an injury of a reasonably serious nature was not 

reasonably likely to have occurred. However, I note Whitehair's testimony that, in the event of a 

fine or explosion, due to the manner in which the lifeline was located, miners would either be 

delayed or prevented from using it to escape, which could result in a fatal injury due to carbon 

monoxide poisoning. (See Tr. 158) This opinion was not impeached or contradicted. Thus, 

within this context, I find that the level of gravity wa:s more than ·moderate. 

I take cognizance of the fact that I rejected Cumberland's claim that it did not have any 

prior notice that the manner in which the lifeline was hung constituted a violation of the standard 

at issue. (See supra, Section III (C)) However, this finding was made based on an application of 

the objective reasonable prudent person test which requires an analysis of the following factors: 

"the text of a regulation, its placement in the overall regulatory scheme, its regulatory history, the 

consistency of the agency's enforcement, and whether MSHA has published notices informing 

escapeway, and by analogy, the lifeline." (Secretary's Brief at 31 ). The Secretary cites the 

following cases in support of its position: Twentymile Coal Co., 29 FMSHRC 806 (Sept. 2007) 

(Judge Manning), Harlan Cumberland Coal Co., 19 FMSHRC 911at916-17(May1997) (Judge 

Barbour), and the dissenting opinion of two Commissioners in Manalapan Mining Co. Inc., 18 

FMSHRC 1375, 1386 (Aug. 1996), that ("the only logical way to evaluate the gravity or 

seriousness of a fire suppression violation is to consider the effect the violation would have in the 

event for its use arises)." I note that this dissenting opinion by only two Commissioners is not of 

any precedential value, and thus not binding. I choose not to follow it, as it is not in harmony 

with the express terms of the requirement of the third element in Mathies, 6 FMSHRC 1, as set 

forth in U.S. Steel 7 FMSHRC 1125. For the same reasons, I choose not to follow Twentymile 

Coal Co. 29 FMSHRC 806 and Harlan Cumberland Coal Co., 19 FMSHRC 911, also, both 

decisions were issued by fellow Commission judges, and are not binding. 

31FMSHRC1164 
the regulated community with ascertainable certainty of its interpretation of the standard in 

question." Lodestar Energy, Inc., 24 FMSHRC 689, 694-95 (July 2002). 

On the other hand, the level of an operator's negligence requires, inter alia, an analysis of 

the following factors: the extent of the violative condition, the length of time it had existed, the 

operator's efforts at abating the violative condition, whether the operator has been placed on 

notice that greater efforts are necessary for compliance, the operator's knowledge of the existence 

of the violation, and whether the condition is obvious or poses a high degree of danger. (See, 

Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987)). 

I note that the violative location of the cited lifelines was obvious, extensive, and had 

e:x:isted for a considerable period of time. Also, I note that Cumberland did not adduce evidence 

that it had not been aware of the manner of their location. However, I place considerable weight 

on evidence mitigating the level of Cumberland's negligence. In this connection, I note that 

although the mine had been inspected on various occasions subsequent to the promulgation of 

Section 75.380(d)(7)(iv), Cumberland had not been cited for the manner in which the lifeline was 

located until the first citation at issue herein was issued on December 6, 2007. Of most 

significance is the fact that the Secretary had not provided Cumberland with any express 

guidance setting forth specifically what manner of location of lifelines would be considered to be 

not in confonnity with the cited standard. 

Within this context, I find that the level of Cumberland's negligence in regard to all the 

citations at issue to have been low. 7 

7

The Secretary conceded that the level of Cumberland's negligence relating only to the 

first citation issued, No. 7019884, was low because it had previously not been cited for a 

violation of this standard which had been promulgated approximately a year before. The 

Secretary argues that once this first violation was cited on December 6, in essence, "Cumberland 

certainly knew or should have.Imown of the hazardous conditions of the other lifelines ... [and 

that its] continued failure to tcik:e any action to present, correct, or limit exposure to these hazards 

at least moderate negligence." (Secretary's Brief, at 34). However, the first citation, No. 

7019884, cited a violation of Section 75.380(d)(7)(iv), based on the allegation that the lifeline 

was hung from J-hooks and could not be reached by a miner or pulled down. Also, in several 

areas the lifeline could not be pulled down as it was hung over cables. It might be inferred that 

subsequent to the issuance of this citation other lifelines that extended over cables or waterlines 

(which would be considered by the issuing inspector to be violative of Section 75.380(d)(7)(iv), 

were hazardous as argued by the Secretary. However, such an inference would clearly not apply 

to the location oflifelines over various track equipment as alleged in Citations 7019885, 

7019887 and 7019889, conditions that had never before been cited, and for which it had not 

received any specific guidance from the Secretary. 

31FMSHRC1165 
Considering all of the above factors set forth in Section 1 lO(i) of the Mine Act, and 

placing considerable weight on the low level of the operator's negligence, I find a penalty of 

$3,000 is appropriate for each of the violations found herein. 

F. Citation Nos. 7025493, 7025495, 7025975, 7025976, 7025980, 7019883, 

7025981 and 7025182 

On April 24, 2009, the Secretary filed a motion to approve a partial settlement 

relating to the above docket numbers. The motion seeks the approval of a settlement 

agreement between the parties, which proposes that the total penalty for these citations be 

reduced to $2,935. 

·I have considered the representation of the parties and find. that the settlement is a fair 

resolution and consistent with the Mine Act. I approve the settlement and grant the motion. 

ORDER 

It is Ordered that, within thirty days of this Decision, Cumberland pay a total civil 

penalty of $14,935.00. 

Distribution: 

/(}. ~ ~ger Administrative Law Judge 

202-434-9940 

Paul A. Marone, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 

Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty 

A venue, Pittsburgh, PA 15222 

/lp 

31FMSHRC1166 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

on behalf of MARK GRAY, 

Complainant 

v. 

Washington, DC 20001-2021 

September 17, 2009 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. KENT 2009-1429-D 

BARB CD 2009-13 

NORTH FORK COAL CORPORATION, 

Respondent 

Mine ID 15-18340 

No.4Mine 

AGREED SUPPLEMENTAL ORDER GRANTING ECONOMIC TEMPORARY 

REINSTATEMENT 

This matter is before me upon an Application for Temporary Reinstatement, filed by the 

Secretary on August 13, 2009 ("tht:: Application"), pursuant to section 105( c )(2) of the F e.deral Mine 

Safety and Health Act of 1977, 30 U.S.C. § 815 (c)(2), for an order requiring North Fork Coal 

Corporation (''North Fork") to temporarily reinstate Mark Gray to his former position as dayshift 

bolter at its No. 4 Mine, or to a similar position at the same rate of pay. 

North Fork requested a hearing on the Application which I conducted in Wise, Virginia on 

September 2, 2009. By my Decision and Order dated September 8, 2009, I granted temporary 

reinstatement. 

Thereafter, the parties negotiated the terms of economic temporary reinstatement, the terms 

of which have been agreed upon by the Secretary, North Fork and the miner, Mark Gray and are as 

follows: 

1. North Fork shall economically reinstate Mark Gray, rather than place him back to 

work. This economic reinstatement begins on September 14, 2009. North Fork shall 

pay Gray the amount of $1,179.70 per week on the scheduled payday, less all 

appropriate and necessary deductions. This amount is based on Gray's hourly wage 

rate of $23.50 per hour, and the average of 40 hours ofregular time and 6.8 hours of 

overtime that he worked per week during the three months prior to his discharge. 

North Fork shall mail the paycheck to Gray's home address at P.O. Box 465, Grays 

Knob, Kentucky 40829, on the same day that paychecks are issued to North Fork's 

other miners. 

2. As a part of this economic temporary reinstatement, North Fork shall provide health 

31FMSHRC1167 
insurance to Mark Gray as an employee. North Fork also shall provide any and all 

other employment benefits, including production and safety bonuses, that he would 

receive or be entitled to as a North-Fork employee. 

3. Economic temporary reinstatement of Mark Gray shall continue pending final order 

on any discrimination complaint which may hereafter be filed, unless otherwise 

ordered upon motion of a party. 

WHEREFORE, it is ORDERED that North Fork ECONOMICALLY REINSTATE Mark 

Gray in accordance with this order. 

Gary Melick 

Administrative Law Judge 

(202) 434-9977 

Distribution: (By Certified Mail and Facsimile or E-Mail) 

__.,---·· 

Derek J. Baxter, Esq., and Matthew Babington, Esq.,Office of the Solicitor, U.S. Department of 

Labor, 1100 Wilson Blvd., 22nd, Floor West, Arlington, VA 22209-2247 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

Wes Addington, Esq.,· Appalachian Citizens Law Center, 31 7 Main Street, Whitesburg, KY 

41858 

Stephen Hodges, Esq., Penn, Stuart, & Eskridge, 208 E. Main St., Drawer 2288, Abingdon, VA 

24210 

/lh 

31FMSHRC1168 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

September 19, 2008 

WEATHERTON CONTRACTING CO., INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 2007-153-M 

A.C. No. 39-01401-109634 

Cedar Rapids Plant 

DECISION BASED ON THE RECORD 

Before: Judge Manning 

This case is before me upon a petition for assessment of civil penalty under section 

105(d) of the Federal Mine Safety and Health A~t of 1977, 30 U.S.C. § 801 et seq. (the Act). 

Weatherton Contracting was issued two citations on September 7, 2006, by MSHA fuspector 

Robert Lindeman under section 104(a) of the Act alleging violations of section 30 C.F.R. § 

56.5001(a)/.5005. Citation No. 7939675 alleges that the front-end loader operator was exposed 

to a shift-weighted average of2.63 mg/m3 ofrespirable silica dust. Citation No. 7939676 alleges 

that the crusher operator was exposed to a shift-weighted average of3.48 mg/m3 ofrespirable 

silica dust. The exposures in both citations exceeded the threshold limit value. Feasible 

engineering controls were not in use to control employee dust exposure and there was no 

respiratory protection program in place. Water sprays were not in use at the plant. fuspector 

Lindeman designated each citation as significant and substantial ("S&S") and the Secretary 

proposed a penalty of$124.00 for each citation. 

During a conference call, the safety director for W eatherton Contracting stated that the 

company does not dispute that the miners were overexposed to silica dust. It contends, however, 

that the violations should not have been designated as S&S. Weatherton has not received any 

other citations alleging an overexposure to silica dust. The parties asked me to decide this case 

based on the existing record and on their arguments. I agreed to this procedure and the 

previously scheduled hearing was canceled. 

The Secretary states that W eatherton Contracting has four portable crushing operations in 

South Dakota. Apparently complaints have been filed with the Environmental Protection 

Agency and the U.S. Forest Service by citizens in the area about the amount of dust produced by 

the operations. The Secretary states that Weatherton Contracting was not using water sprays to 

control dust at its crusher because the clay soil turns to slick mud with the application of water. 

31FMSHRC1169 
The Secretary agrees that, for this reason, it is difficult for W eatherton Contracting to control 

dust at its plants. 

The Secretary argues that Inspector Lindeman would testify that the sampling analysis 

indicated a 1 7% silica dust content. Both the loader and crusher operators were substantially 

overexposed to silica dust. During discovery the Secretary learned that the masks worn by 

employees at W eatherton Contracting are NIOSH approved but there was no indication that the 

employees had been fit tested. Inspector Lindeman would testify that fit tests are essential to 

ensure that the mask is working properly. He would also testify that the loader operator was not 

wearing any sort of mask and that the door for the loader was open during part of the shift. 

The Secretary argues that the inspector's S&S determinations should be affirmed. She 

maintains that the citations should be presumed to be S&S based on the logic of the 

Commission's decision in Consolidation Coal Co., 8 FMSHRC 890 (June 1986). ~Because the 

miners were not wearing fit-tested personal protective equipment, it can be assumed that they 

were breathing air that contained more than the permissible level of quartz dust. She also argues 

that the principles I set forth in Spencer Quarries, 28 FMSHRC 1005 (Nov. 2006) are applicable 

to the facts of this case. In addition, W eatherton Contracting did not have a program in place to 

monitor the exposure levels of its employees and, as a consequence, it would not have any way to 

determine if miners were being over-exposed to silica du~t. This fact, "in combination with-the \' ' I ' \ , • . ~ • ' • ; . . ' 

.. , :μ,on-use of a dust mask by the front-end loader opf?rator and· the failure to fit test employees, 

establishes that the overexposed miriers suffered a discrete health hazard and that ... · there "'as a 

reasonable likelihood that the hazard contributed to by the violation would result in an illness of 

a reasonably serious nature." (S. Submission at 3). 

W eatherton did not submit a formal written argument but, during the conference call, 

stated that the Secretary failed to establish that the violations were S&S. It asks that I modify the 

citations to delete the S&S determinations. 

I find that the Secretary established that the violations were S&S. Because the 

Commission's Consolidation Coal decision concerned the rather unique situation of underground 

coal mines, I decline to apply the S&S presumption to this case. A violation is classified as S&S 

"if based upon the facts surrounding the violation, there exists a reasonable likelihood that the 

hazard contributed to will result in an injury or illness of a reasonably serious nature." National 

Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 

(January 1984), the Commission set out a four-part test for analyzing S&S issues. Evaluation of 

the criteria is made assuming "continued normal mining operations." U.S. Steel Mining Co., 6 

FMSHRC 1573, 1574 (July 1984). The question of whether a particular violation is S&S must 

be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 

(April 1988). In the case of a citation alleging a violation of a health standard, the Secretary must 

establish: (1) the underlying violation of the health standard; (2) a discrete health hazard, a 

measure of danger to health, contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an illness; and ( 4) a reasonable likelihood that the illness in 

31FMSHRC1170 
question will be of a reasonably serious nature. The Secretary is not required to show that it is 

more probable than not that an illness will result from the violation. U.S. Steel Mining Co., 18 

FMSHRC 862, 865 (June 1996). 

The parties do not dispute that the violations occurred. I find that the record establishes 

that there was a reasonable likelihood that the hazard contributed to by the violation would result 

in an illness of a reasonably serious nature. The equipment operators were significantly 

overexposed to silica dust. Neither miner was wearing a fit-tested respirator. Weatherton 

Contracting did not have in place a program for monitoring the silica dust exposure levels of its 

employees so it had no way of knoWing whether they were being overexposed. Taking into 

consideration continuing mining operations, I find that the violations were S&S and serious. 

Section 1 lO(i) of the Mine Act sets out six criteria to be considered in deterrgining 

appropriate civil penalties. Weatherton Contracting's plant had a history of one violation in the 

two years prior to September 7, 2006. W eatherton Contracting is a small, intermittent operator 

that employed about 10 people and worked about 13,000 hours in 2006. The violations were 

abated in good faith. W eatherton Contracting did not establish that the penalties assessed will 

have an adverse effect on its ability to continue in business. The violations were the result of the 

company's moderate negligence. Based on the penalty criteria, I fmd that the Secretary's 

·proposed penalty of $124.00 for each citation is appropriate. ··.·· 

ORDER 

Accordingly, Citation Nos. 7939675 and 7939676 are AFFIRMED and Weatherton 

Contracting Co., Inc., is ORDERED TO PAY the Secretary of Labor the sum of$248.00 within 

40 days of the date of this decision. Payment should be sent to: U.S. Department of Labor, Mine 

Safety and Health Administration, P.O. Box 790390, St. Louis, MO 63179-0390. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

' 

Lydia Tzagoloff, Esq, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 

1600, Denver, CO 80202 (Certified Mail) 

Anna McLaughlin, Safety Director, Weatherton Contracting Co., P.O. Box 151, Beresford, SD 

57004-0151 (Certified Mail) 

RWM 

31FMSHRC1-171 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500 

Washington, DC 20001-2021 

NICHOLS CONSTRUCTION, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

NICHOLS CONSTRUCTION, INC., 

Respondent 

Before: Judge Melick 

September 24, 2009 

CONTEST PROCEEDING 

Docket No. VA 2007-17-R 

Citation No. 7316750;11/l 7/2006 

Buchanan Mine 

Mine ID 44-04856 PZF 

CNIL PENALTY PROCEEDING 

Docket No. VA 2007-24 

A.C. No. 44-04856-106332 PZF 

Buchanan Mine 

DECISION 

This case is before me upon a Petition for Civil Penalty filed by the Secretary of Labor, 

Mine Safety and Health Administration ("Secretary'') pursuant to Section 105(d) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. ("Mine Act"), charging Respondent 

Nichols Construction, Inc. (''Nichols") with one violation of30 C.F.R. § 50.10 and proposing a 

civil penalty of $60.00. The general issue before me is whether Nichols is an "operator" within 

the meaning of 30 C.F.R. § 50.2(c) and, if so, whether it violated 30 C.F.R. § 50.10 by failing to 

report the accident at issue within the specified time period. If a violation is found it will then be 

necessary to determine an appropriate civil penalty under the criteria set forth in Section 11 O(i) of 

the Mine Act. 

On May 4, 2006, Richard Cox, an employee of Nichols, was fatally electrocuted while 

clearing brush along a right-of-way beneath an electrical line at the Buchanan Mine No. 1 

Preparation Plant, operated by Consolidation Coal Company ("Consol"). On November 17, 

31FMSHRC1172 
2006, Citation No. 7316750 was issued to Nichols for a violation of30 C.F.R. § 50.10. 1 

A hearing was originally scheduled for August 13, 2009. However, on July 14, 2009, the 

parties submitted a Joint Motion to Cancel Hearing and to Submit Case on Stipulated Record and 

Briefs, which was granted July 17. The parties each filed their initial briefs on August 13, 2009, 

and their reply briefs on August 20. 

The parties stipulated to the following facts: 

1. Nichols Construction, fuc. (hereinafter ''Nichols") was a construction contractor 

performing electrical work for CONSOL Energy, Inc. at the Buchanan Mine site and 

property, which is a "coal or other mine["] as defined in section 102(h)(l) of the Federal 

Mine Safety and Health Act, 30 U.S.C. § 802(h)(l). 

2. Nichols was performing service or construction duties at the Buchanan Mine site and 

property at which the citation at issue in this proceeding was issued. 

3. MSHA Inspector Delmer Hess was acting in his official capacity and as an authorized 

representative of the Secretary of Labor when the citation involved in this proceeding was 

issued. 

4. A true copy of the citation that is at issue in this proceeding, along with all continuation 

forms and modifications, was served on Nichols Construction, Inc. or its agent as 

required by the Mine Act. 

5. An electrocution accident occurred at approximately 1:00 p.m., May 4, 2006, resulting in 

fatal injuries to Richard Cox, an employee of Nichols Construction, fuc., while 

performing work at the Buchanan Mine site and property. 

6. Nichols Construction, and Mr. Cox specifically, were performing brush clearing 

operations along the right of way beneath an electrical line operated by Consol. While 

clearing brush Mr. Cox came in contact with a guy wire for a pole that was not properly 

secured, contacted the energeized wire on the pole, and was subjected to an electrical 

shock. 

7. The accident site was located in the proximity of pole-mounted transformers providing 

power to an electric motor driven pump utilized to deliver water to the Consolidation 

Coal Company Buchanan Mine #1 Preparation Plant. The pump was located in a pumphouse adjacent to the pole on which the transformers were mounted. This area was a 

remote and normally unoccupied location. 

8. Shortly before 1 :00 p.m. Jason Jackson, a foreman for Nichols, made a call on a mobile 

radio to Nichols' Vansant, Virginia office to report the accident and request an 

ambulance. 

9. Christopher Ratliff, a Foreman employed by Nichols, received the mobile radio call from 

Jason Jackson. Ratliff telephoned "911" emergency assistance at 12:55:55 p.m. 

1 An identical citation was issued to Consol for the same accident involved in the case at 

bar. See Consolidation Coal Co., VA 2007-38. That citation was the subject of a previously 

approved settlement agreement. 

31FMSHRC1173 
requesting an ambulance, as noted in the Buchanan Sheriffs Office Call Report. 

Thereafter, Ratliff responded to the accident site. 

10. At approximately 1 :30 p.m., Christopher Ratliff attempted to contact Mike Hom, Chief 

Engineer for Consolidation Coal Company's Buchanan Operation. Hom did not answer 

the telephone and Ratliff left a message on the answering machine regarding the accident. 

Christopher Ratliff did not speak with Mike Hom on May 4, 2006. 

11. At approximately 1 :55 p.m., Christopher Ratliff arrived at Clinch Valley Medical Center 

(CVMC), Richlands, Virginia, in the ambulance with the victim. Mr. Ratliff was 

performing CPR on the victim while he was transported. 

12. At approximately 2:00 p.m., Christopher Ratliff contacted an electrician employed by 

Consol Energy who was working at the Consol Energy Buchanan Mine #1 Preparation 

Plant. 

13. At 2:15 p.m., S. Shoursky, M.D. pronounced the death of the victim at the CVMC 

Emergency Room, as stated in the Report of fuvestigation by Medical Examiner. 

14. At 3 :30 p.m., Christopher Ratliff contacted Kim Noah, Safety Supervisor for 

Consolidation Coal Company. Ratliff informed him of the accident, and requested the 

numbers for the state and federal mine safety offices. Mr. Noah informed Mr. Ratliff he 

(Noah) would make the notifications. 

15. Kim Noah contacted the MSHA Vansant Virginia Field Office by telephone at 3:45 p.m. 

and reported the accident to Linda Coleman, MSHA Health Department secretary, 

Vansant field office, Vansant (Oakwood), Virginia. 

16. Linda Coleman advised Kim Noah to contact Richard Salyers', Assistant District 

Manager, MSHA, in Norton, Virginia. 

17. Shortly after his conversation with Linda Coleman, Kim Noah contacted Richard Salyers, 

informing him of the accident. 

18. Neither Christopher Ratliff, Foreman, nor anyone else employed by Nichols, reported the 

fatal accident directly to MSHA. 

19. Joint Exhibit 1 is an authentic copy of Citation No. 7316750, with the abatement, and 

may be admitted into evidence for the purpose of establishing its issuance and not for the 

purpose of establishing the accuracy of any statements asserted therein. 

20. The gravity of this violation is low because it was not reasonably likely to result in a 

reasonably serious injury or illness, and it was not "significant and substantial." 

21. The failure to observe the standard was due to a moderate degree of negligence on the 

part of the operator. 

22. The violation involved in this matter was abated in good faith. 

23. The sixty dollar ($60.00) penalty proposed for this violation will not affect the ability of 

Nichols to remain in business. 

24. Nichols is a small operator. 

25. No citations or orders were issued to Nichols in the 24 month period preceding the 

accident. 

26. This violation meets the criteria for a single penalty assessment of $60.00 pursuant to 30 

C.F.R. § 100.4. 

27. Based on the factors set forth at Section 1 lO(i) of the Act, 30 U.S.C. § 820(i), including 

31FMSHRC1174 
the degrees of negligence and gravity, the size of the operator, the operator's history of 

violations, the operator's good faith in attempting to abate the violation, and the effect on 

the operator's ability to continue in business, ifthe citation is upheld the proposed penalty 

of $60.00 is reasonable and will serve the purpose of the Act in the event that a violation 

is found to have occurred. 

(Joint Proposed Stipulated Record). 

Nichols argues in its briefs that it is not an "operator" within the definition contained in 

Section 50.2( c )(1) and therefore is not subject to the reporting requirements of Section 50.10. 

Nichols bases this argument on the fact that Section 50.2(c)(l)'s definition of "operator" is a 

narrow definition that only applies to an entity that "operates, controls, or supervises a coal 

mine," and Nichols contends that it had no degree of ownership or control over mining 

operations at the Buchanan Mine. · 

Nichols also argues that, assuming arguendo that it is considered to be an "operator" and 

thus subject to Section 50.10, it nonetheless met its reporting obligations under the regulation by 

conferring with Consol shortly after the accident. Nichols argues that the record demonstrates 

that its foreman, Christopher Ratliff ("Ratliff') attempted to contact Consol several times 

immediately following the accident for the purposes of conferring and coordinating their 

notification to MSHA. Once Ratliff first spoke with a Consol employee, Kim Noah,·Safety 

Supervisor, Mr. Noah notified MSHA within 15 minutes of speaking with Ratliff. That, argues 

Nichols, meets the notification requirement of Section 50.10. 

The Secretary argues in her briefs that Nichols is an "operator" as defined in Section 

50.2(c)(l) because that definition of"operator"is identical to and incorporates the definition of 

"operator" contained in the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 

("Coal Act"), which includes construction contractors like Nichols. The Secretary cites to the 

Fourth Circuit's decision in Bituminous Coal Operators' Association, Inc. v. Secretary of the 

Interior, 547 F.2d 240 (4th Cir. 1977) to support the proposition that construction contractors, 

like Nichols, can be considered "operators" within the meaning of the Coal Act ifit supervises a 

specific area of a coal mine. It is the Secretary's contention that Nichols was supervising and 

exercising control over the area where the accident occurred. 

Furthermore, the Secretary argues, Nichols did not meet its reporting requirement as 

required by Section 50.10. It is the Secretary's position that Nichols had many opp01tunities to 

contact MSHA, and Nichols' delay in notification was not justified by its attempt to coordinate 

its compliance efforts with Consol. Furthermore, the Secretary argues, Nichols did not have to 

confer with Consol because Ratliff knew himself that it was a reportable accident. Therefore, the 

Secretary maintains that a $60.00 civil penalty should be imposed. 

30 C.F.R. § 50.10 states that "[t]he operator shall immediately contact MSHA at once 

without delay and within 15 minutes at the toll-free number, 1-800-746-1553, once the operator 

31FMSHRC1175 
knows or should know that an accident has occurred." Therefore, the threshold inquiry is 

whether Nichols qualifies as an "operator" within the definition contained in Section 50.2(c)(l) 

and thus subject to the requirements of Section 50.10. The Part 50 definition of "operator is, "(1) 

Any owner, lessee, or other person who operates, controls, or supervises a coal mine." 30 C.F.R. 

§ 50.2(c)(l). There is no dispute that this is the definition to be applied.2 

It is a well-established rule of construction that when the language of a regulatory 

provision is clear, the terms of that provision must be enforced as written unless the regulator 

clearly intended the words to have a different meaning or unless such a meaning would lead to 

absurd results. See Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987); see also Utah 

Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989); Consolidation Coal Co., 15 FMSHRC 

1555, 1557 (Aug. 1993). 

Here, there is no evidence of contrary intent on the part of the regulator, and enforcing the 

language as written would not lead to absurd results. Therefore, looking to the plain language of 

the Section 50.2(c)(l), it appears that Nichols meets the definition of an "operator" because it 

was exercising supervision and control over the work being done in this remote area of the mine 

site. From the stipulated record, I find that Nichols was exercising supervision and control over 

the work being performed at that particular area of the mine. Consol had no representative or 

foreman supervising the work and, to the contrary, Nichols had its own foreman present to 

supervise. Therefore, I find'that Nichols was an "operator" within the meaning of Part 50 ... 

Having determined that Nichols is an "operator" as enumerated in the Part 50 definition, 

the next question is whether Nichols violated the reporting requirements imposed by Section 

50.10. As stated above, Section 50.10 requires mine operators to "immediately contact MSHA at 

once without delay and within 15 minutes ... once the operator knows or should know that an 

accident has occurred." (Emphasis added.) 

An "accident" is defined as, "(1) A death of an individual at a mine; (2) An injury to an 

individual at a mine which has a reasonable potential to cause death." 30 C.F.R. § 50.2(h)(l), 

(2). With the benefit of hindsight, it is clear that this was an "accident" within the regulatory 

definition because the incident resulted in a death. Therefore, at 2: 15pm on the day of the 

incident, when Mr. Cox was pronounced dead, the incident was clearly a reportable accident 

within the meaning of Section 50.2(h)(l). 

However, a reportable accident could also stem from "[a ]n injury to an individual at a 

mine which has a reasonable potential to cause death." 30 C.F.R. § 50.2(h)(2). What exactly 

constitutes an injury with a "reasonable potential to cause death" is not defined in the regulations, 

2 Nichols also meets the statutory definition of "operator" contained in the Mine Act i.e. 

"any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or 

any independent contractor performing services or construction at such mine." 30 U.S.C. § 

802(d). 

31FMSHRC1176 
but the Commission has provided some guidance on this issue. The Commission has held that a 

miners' near electrocution, combined with an 18-foot fall in which he hit his head on a hard 

surface constituted a per se reasonable potential to cause death. Cougar Coal Co., 25 FMSHRC 

513, 520 (Sept. 2003). Also, the Commission has held that the very fact that CPR is necessary is 

sufficient to establish that a particular injury had a reasonable potential to result in death. Id. 

There is evidence in the stipulated record that Ratliff was performing cardio-pulmonary 

resuscitation (CPR) on Mr. Cox in the ambulance on their way to the hospital at between 12:55 

p.m and 1 :55 p.m. Under Cougar Coal, 25 FMSHRC at 520, the fact that CPR was performed is 

per se evidence that the injury had a reasonable potential to result in death. Therefore, it is clear 

that this was a reportable accident at the time that Ratliff was performing CPR on Mr. Cox. 

· The regulation requires that an accident be reported "immediately ... withou! delay." 

However, there is no definition of"immediately" contained within the regulations. The 

Commission has interpreted the immediacy requirement of Section 50.10 to afford the operator 

"a reasonable opportunity for investigation into an event prior to reporting to MSHA .... [This 

investigation] must be carried out by operators in good faith without delay and in light of the 

regulation's command of prompt, vigorous actions." Consolidation Coal Co., 11 FMSHRC 

1935, 1938 (Oct. 1989). Furthermore, the immediateness of an operator's notification shall be 

· evaluated "on a .case-by-case basis, taking into account the nature of the accident and all relevant . 

variables.affecting reaction and reporting." Id. 

In the case at bar, the evidence demonstrates that MSHA was not notified of the accident 

until 3:45 p.m. This was almost three hours after the incident took place, and approximately two 

hours from the time that this incident could first reasonably be considered an "accident" within 

the meaning of Section 50.2(h)(2). 

For the aforementioned reasons, I find that Nichols violated Section 50.10. The parties 

have stipulated that the $60.00 proposed civil penalty is reasonable under the "Section 11 O(i)" 

criteria and I agree. Therefore; Nichols is ORDERED to pay the proposed $60.00 civil penalty 

within 40 days of this Order. 

Gary Melick 

Arlministrative T .a 

(202) 434-9977 

31FMSHRC1177 
Distribution: (Certified Mail) 

Ronald Gurkha, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd 

Floor West, Arlington, VA 22209-2247 

Thomas Benjamin Huggett, Esq., Morgan, Lewis & Bockius, LLP, 1701 Market Street, 

Philadelphia, PA 19103 

/eb 

31FMSHRC1178 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

September 30, 2009 

JAYSON TURNER, DISCRIMINATION PROCEEDING 

Complainant 

v. 

NATIONAL CEMENT COMP ANY 

OF CALIFORNIA, 

Respondent 

Docket No. WEST 2006-568-DM 

Lebec Cement Plant 

Mine ID 04-00213 

DECISION 

Appearances: Jayson Turner, Complainant, Pine Mountain Club, California, prose; 

Francina M;-Segbefia, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 

Washington, DC, for Respondent. 

Before: Judge Bulluck 

This proceeding is before me on a Complaint of Discrimination filed by Jayson Turner 

against National Cement Company of California, Incorporated ("National Cement" or "NCC"), 

under section 105(c) of the Federal Mine Safety and Health Act of 1977 ("the Act"), 30 U.S.C. 

§ 815( c ). The complaint alleges unlawful discharge from employment in retaliation for having 

made safety complaints to National Cement. 

Turner filed a Discrimination Complaint with the Mine Safety and Health Administration 

("MSHA") pursuant to section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), on July 25, 2006. 

Ex. C-9 .

1 In a letter to Tumer~dated August 18, 2006, MSHA notified him that, based on its 

investigation of the allegations contained in the Complaint, it had concluded that a violation of 

section 105( c) had not occurred. Turner, prose, initiated this instant proceeding before the 

Commission on August 31, 2006, under section 105(c)(3) of the Act, 30 U.S.C. § 815(c)(3).2 

1 Section 105( c )(2) provides, in pertinent 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." 

2 Section 105(c)(3) provides, in pertinent part: "If the Secretary, upon investigation, 

determines that the provisions of this subsection have not been violated, the complainant shall 

have the right, within 30 days of notice of the Secretary's determination, to file an action in his 

31FMSHRC1179 
A hearing was held in Pasadena, California. The parties presented testimony and 

documentary evidence, and filed post-hearing briefs. For the reasons set forth below, I conclude 

that, although Turner engaged in activity protected by the Act, he has failed to prove that his 

protected activity served as the basis for his termination by National Cement; assuming, 

arguendo, that it did, National Cement discharged him for reasons that are wholly unrelated to 

his protected activity. 

I. Factual Background 

National Cement operates the Lebec Cement Plant in Kem County, California. Jayson 

Turner worked at the Lebec Plant as an electrician for 10 years and 3 months. Tr. 36. During the 

period relevant to these proceedings, Turner worked the. swing shift, 2:00 p.m. to 12:30 a.m.; · 

Sunday through Wednesday. Tr. 65, 77. While employed by National Cement, Turner had a 

second job with Innovative Construction Solutions ("ICS"), a contractor that provided water 

treatment services to National Cement on the premises of its Lebec Plant. Tr. 32-33, 90-91, 

110-11, 263. Turner's job at ICS had flexible hours, with no set schedule. Tr. 116. 

On September 24, 2003, Turner did not report to his job at National Cement for "personal 

reasons." Ex. R-6. On that day, however, his supervisor, chief electrician Julius Wetzel, 

observed Turner at the ICS building. Tr. 528. Normally, during that time, Turner would have · 

been working his shift at National Cement, instead of working for ICS. Tr. 62. ill a letter dated . 

October 1, 2003, Wetzel issued a "written verbal" reprimand to Turner, stating that on September24, he was "absent from work without consent of the Company," and warning him that if such an 

incident happened again, it would result "in more severe disciplinary action, including possible 

discharge." Ex. R-6.3 

On June 13, 2006, Turner informed Wetzel, orally and in writing, that he would be ta1cing 

the following day off to go to a doctor's appointment. Tr. 64; Ex. R-7. The following day, June 

14, from approximately 10:30 a.m. until 1:30 p.m., Turner visited the ICS building to show the 

water treatment facility to his daughter, who was visiting Turner from out of town. Tr. 33-34, 

68-70, 112-13.4 While at ICS, Turner engaged in work, and "logged in some activities." Tr. 80, 

own behalf before the Commission .... " 

3 Turner's Personnel File (containing this document at NCC 160), Safety Committee 

notes from February 2006 through June 2006, and Joseph Kowalski's Personnel File were 

admitted into evidence after the hearing as ALJ Exhibit 1 (Ex. ALJ-1). 

4 Turner offered conflicting testimony regarding his time of arrival at ICS. ill direct 

testimony, Turner stated that he arrived at 12:30 p.m. Tr. 69. On cross examination, Turner was 

shown his discovery response to National Cement, in which he stated that he arrived at ICS at 

10:30 a.m. Tr. 112. When pressed, Turner admitted that he arrived at the earlier time, 

10:30 a.m. Tr. 113. I discredit Turner's assertions at the hearing that he arrived at 12:30 p.m., 

and find that he arrived at 10:30 a.m. 

31FMSHRC1180 
114; Ex. R-4. After leaving the Lebec Plant property, Turner had lunch with his daughter and, at 

4:00 p.m., went to his doctor's appointment. Tr. 69, 74-76. 

On June 14, several National Cement employees informed Wetzel that "Turner was at the 

ICS water treatment plant." Tr. 532; Ex. R-8. Wetzel went to the ICS building and spoke with 

the supervisor there. He testified to being informed that Turner had been working: 

A. I asked the supervisor if Mr. Turner was there. 

* * * 

He said, "No, he just left." 

Q. Did you ask anything else? 

A. I asked if Mr. Turner was working. 

Q. And what was his response? 

A. . He said, "Yes." 

Tr. 533. Wetzel reported his findings to his immediate supervisor, electrical manager Bill 

Russell, and to plant manager Byron McMichael, in a written statement dated June 15, 2006. 

Tr. 535; Ex. R-8. McMichael was ultimately responsible for deciding what disciplinary 

measures, if any, National Cement would take against Turner for the June 14 incident. 

Tr. 249-50. McMichael reviewed Turner's Personnel File (see Ex. ALJ-1) and, in a meeting with 

Turner, Wetzel, and union representative, Neal Janousek, announced his decision to suspend 

Turner "pending discharge." Tr. 282; Ex. R-1. McMichael subsequently decided to terminate 

Turner's employment and by notice dated June 23, 2006, provided Turner with the company's 

reason: 

On Wednesday, June 14, 2006, you were on the premises of NCC working for Innovative 

Construction Solutions, Inc. The same day ... you missed your entire shift (2:00 p.m. 

until 12:30 a.m.) at NCC .... As a result of your working for another firm on a day that 

you were absent from NCC and your less than acceptable performance, you are being 

terminated effective Friday, 6-23-06. 

Ex. R-2. 

II. Findings of Fact and Conclusions of Law 

A complainant alleging discrimination under section 105(c) of the Act, 30 U.S.C. 

§ 815( c ), establishes a prima facie case of prohibited discrimination by presenting evidence 

sufficient to support a conclusion that the individual engaged in protected activity and that the 

31FMSHRC1181 
adverse action complained of was motivated in any part by that activity. See Sec '.Y of Labor on 

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other 

grounds, 663 F.2d 1211 (3rd Cir. 1981); Sec '.Y of Labor on behalf of Robinette v. United Castle 

Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). 

The operator may rebut the prima facie case by showing either that no protected activity 

occurred, or that the adverse action was in no part motivated by protected activity. See Robinette, 

3 FMSHRC at 818 n.20. If the operator cannot rebut the primafacie case in this manner, it, 

nevertheless, may defend affirmatively by proving that it also was motivated by the miner's 

unprotected activity and would have taken the adverse action for the unprotected activity alone. 

See id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also Eastern Associated Coal Corp. v. 

FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-Robinette test); Baich v. , 

FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving the Commission's 

Pasula-Robinette test). In determining whether a mine operator's adverse action was motivated 

by the protected activity, the judge must bear in mind that "direct evidence of motivation is rarely 

encountered; more typically, the only available evidence is indirect." Sec '.Y of Labor on behalf of 

Chacon v. Phelps Dodge Cory., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other grounds 

sub nom. Donovan v. Phelps Dodge Cory., 709 F.2d 86 (D.C. Cir. 1983). "Intent is subjective 

and in many cases the discrimination can be proven only by the use of circumstantial evidence." 

3 FMSHRC at 2510 (citation omitted). In Chacon, the Commission listed some of the more 

common circumstantial indicia of discriminatory intent: (1) knowledge of the protected activity; .. 

(2) hostility or animus fowards the protected activity; (3) coincidence in time between the 

protected activity and the adverse action; and (4) disparate treatment of the complainant. Id. at 

2510-12; see also Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 530 (Apr. 1991). The 

Commission has also held that an "operator's knowledge of the miner's protected activity is 

probably the single most important aspect of a circumstantial case" and that "knowledge ... can 

be proved by circumstantial evidence and reasonable inferences." Sec '.Y of Labor on behalf of 

Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept. 1999) (citing Chacon). ill Bradley v. 

Belva Coal Co., the Commission enunciated several indicia of legitimate non-discriminatory 

reasons for an employer's adverse action, including evidence of the miner's unsatisfactory past 

work record, prior warnings to the miner, past discipline consistent with that meted out to the 

complainant, and personnel rules or practices forbidding the conduct in question. 4 FMSHRC 

982, 993 (June 1982). 

Before his employment was terminated, Turner repeatedly engaged in protected activity 

when he brought safety concerns to the attention of his supervisors.5 He testified that on at least 

5 Section 105( c )(1) of the Act provides, in pertinent part, that a miner cannot be 

discharged, discriminated against or interfered with in the exercise of his statutory rights because 

he "has filed or made a complaint under or related to this Act, including a complaint ... of an 

alleged danger or safety or health violation." 

31FMSHRC1182 
four occasions he raised such concerns. 6 He alleges that he requested that National Cement 

provide him with electrically rated tactile gloves. Tr. 19-20, 105-06. National Cement's safety 

manager, Randy Logsdon, testified that he told Turner that he had researched the availability of 

such gloves in his equipment catalogs, but could not find any thin rubber or latex gloves that had 

an electrical rating. Tr. 361-63. During January 2006, Turner complained to management that 

the lack oflights on a manlift made it unsafe to operate the equipment at night. Tr. 49-50. fu 

late May 2006, Turner also complained that a medium voltage disconnect, which he mistakenly 

energized, was mislabeled and not properly locked and tagged out of service. Tr. 20-25; Ex. C-2. 

When Turner energized this piece of equipment, it caused the entire plant to lose power. 

Tr. 25-26. He was subsequently disciplined for his mistake in a written warning that was placed 

in his Personnel File. Ex. C-5; ALJ-1. Lastly, on June 12, 2006, Turner complained to 

management that he had been directed to troubleshoot ignition controls on Pre-Calciner·b1J01ers 

in an area that was very hot and gassy, needlessly placing him at risk. Tr. 43-45. 

Although Turner raised these safety concerns in the months and days preceding his 

termination, he did not produce any evidence that these protected activities were in any way 

related to his termination. To the contrary, McMichael credibly testified that when he decided to 

terminate Turner, he knew_nothing of Turner's concerns regarding electrical gloves, lack of lights 

on the manlift, or troubleshooting the Pre-Calcinerburners. Tr. 238, 272-73, 310. I also credit 

. McMichael's testimony that, although he was aware of Turner having caused a plant shut down 

the previous month, he considered the incident a disciplinary matter in reaching his decision to 

discharge Turner, rather than an instance of Turner having raised a complaint about the safety of 

equipment. Tr. 237-38, 273-74. I also credit the testimony of Wetzel that his recommendation 

that Turner be discharged, was based upon Turner's "poor job performance and his activities 

during the incident with the [ICS] water treatment plant," and not on any safety complaints made 

by Turner. Tr. 527, 539. 

Assuming, argu.endo, that Turner's various complaints served as the basis for the decision 

by National Cement to discharge him, I find, nevertheless, that the company offered credible 

evidence, unrebutted by Turner, clearly establishing that he was discharged for legitimate, 

business-related reasons, entirely unrelated to any protected activity, and that the company would 

have taken the adverse action based solely on Turner's conduct respecting his outside 

employment at ICS. 

Turner was fully aware that National Cement had placed limitations on his outside 

employment at ICS. Tr. 32-33, 245-47. On October 1, 2003, the company warned Turner that 

working for ICS in a manner that interfered with his employment at National Cement would 

result in "severe disciplinary action, including possible discharge." Ex. R-6. The work that 

Turner performed for ICS on June 14, 2006, occurred before he was scheduled to report for duty 

at 2:00 p.m. Tr. 69. National Cement terminated him, nevertheless, because "[h]e chose to give 

his services to ICS (his part-time employer) that day, rather than National Cement." Resp. Br. at 

6 Turner withdrew his allegation that he made a fifth safety complaint concerning unsafe 

conditions existing on a blower. Tr. 123-24; Comp. Br. at 4. 

31FMSHRC1183 
8 (citing Tr. 276-77, 334). McMic~ael testified that, in his opinion, Turner "could have 

scheduled [his] blood pressure test some other time and interrupted [his] work with ICS ... and 

provided services for [National Cement] that day." Tr. 334. He also opined that Turner could 

have made "other arrangements to avoid missing work, he could have [come] to work and then 

left and [run] over and had his blood pressure checked and [come] back to work." Tr. 270. 

Wetzel testified that it was the company's position that Turner "could have scheduled his 

doctor's appointment previous to the time he [was] supposed to be at work. . . . He had all 

morning to schedule the appointment some other time where it didn't interfere with his 

obligations at Nationai Cement." Tr. 484. The company's position, that it was unnecessary for 

Turner to have missed his entire shift to have his blood pressure checked, was clearly conveyed 

to Turner at the time ofhis suspension, pending discharge. Ex. R-1. In other words, National 

Cement remains·firmly entrenched in its expectation that ifTurnerwas·going to provide his . , 

services to anyone on June 14, 2006, a regularly scheduled workday, he should have worked for 

National Cement, his primary employer. See also Tr. 340-42. 

One of Turner's fellow workers at the Lebec Plant, William Edminister, advanced 

Turner's position that National Cement should not have discharged him for having worked at 

ICS on June 14. Edminister testified that, "because this was on [his] own time before [his] shift . 

. . . What you do on your own time and off the clock is none of the company's business. You 

shouldn't have to answer [to] the company for what you do off the clock." Tr. 142-43, 171. 

McMichael testified that requesting a full day of leave for a doctor's appointment is not . 

an unusual occurrence at National Cement. Tr. 269. He explained that "the plant has what is 

referred to as a no-fault attendance program. The system really doesn't care whether you're there 

or you 're not there. It's like a bank account. You put money in and you take money out. ... So 

it's just a way of keeping a record that it's controlled." Tr. 271. Turner, hiinself, explored 

McMichael's rationale for firing him, given that he had taken the day off: 

Q. Why do you think it was necessary to fire me for - for doing what I did, for 

working the same day at the - at the water treatment plant because I had taken the 

day off? 

A. It was my opinion after having warned you about that prior to that, having worked 

for a contractor on our site, which is annoying to me to start with. We hire people 

to work for us, we want them to be there and perform their work and you deprived 

us of your work that day. And to me, that was very irritating and time for a 

change. 

Tr. 252; see also Tr. 283-85. 

Turner's poor performance - specifically, the incident involving the roller mill motor -

also served as a basis for his termination. Ex. R-2. This incident occurred on May 24, 2006, 

when Turner energized a medium voltage disconnect that he mistakenly believed supplied power 

to a particular roller mill motor that would not start. However, the equipment that Turner 

31FMSHRC1184 
energized was, in fact, the wrong equipment, and when he energized it, power to the entire plant 

was knocked out. Tr. 20-26. Turner complained to management that his error was due to the 

fact that the equipment was mislabeled and not properly locked and tagged out. Tr. 20-25; Ex. 

C-2. However, Bill Russell testified convincingly that the company had trained its electrical 

personnel on the power supply for the roller mill system, and opined that Turner should have 

been aware that he was about to energize the wrong equipment. Tr. 190, 205-06. As Russell 

explained: "The old raw mill had been out of service for at least five years when this 

happened. . . . Everybody knew it was out of commission for the last five years. He shouldn't 

have been over there. The starter where you go [to energize] the physical roller mill is in an 

entirely different building." Tr. 205-06 (emphasis added). I credit Russell's testimony that 

Turner should have known what equipment to energize and, given that the incident occurred 

<21 days before the ICS incident, I conclude.thatit served as·a proper.basisfor consideratiqn in 

Turner's termination. 

At the hearing, Julius Wetzel testified that Turner's poor performance primarily 

motivated him to recommend to McMichael that Turner be discharged for his unauthorized work 

at ICS. Wetzel explained that Turner "doesn't listen. He's very hard to communicate with and 

he takes a lot of things personal that shouldn't be personal." Tr. 460. Wetzel also testified that 

Turner "didn't follow instructions. . . . The few other people in the shop expressed the concern 

that they would not work with him. They didn't like working with him." Tr. 488. Over the two 

days that this matter was tried before me, Turner repeatedly disrupted the proceedings, and 

consistently exhibited a disquieting lack of self control, for which he was repeatedly admonished 

on the record. See, e.g., Tr. 96, 131-32, 185-86, 435-37, 465-66, 528-30. Based on my own 

observations of Turner's refusal to follow instructions and, having experienced, first hand, his 

general uncooperative nature throughout the entire hearing process, I fully credit Wetzel' s 

testimony. 

While it is clear that Turner was afforded the right to defend his behavior prior to his 

discharge, it is also evident that National Cement gave little weight to his protestation that he 

understood the company's policy to only prohibit work at his outside job during his normally 

scheduled shift. Tr. 82-86. The record supports a conclusion that Turner could well have 

misunderstood the breadth of National Cement's policy, and that he had considered his actions 

on June 16 to have been in compliance with the company's mandate that outside employment not 

interfere with the primary job, considering that the prior "written verbal" generally describes the 

prohibited conduct as ''being absent from work without the consent of the Company," and fails to 

set forth in specific terms the violative conduct and the requirements of the policy. Ex. R-6. It is 

also evident that Turner's troubles as an outside contractor to ICS are rooted in the water 

treatment plant's location on the Lebec Plant's premises. It is highly probable, especially in light 

of National Cement's no-fault attendance program, that had Turner conducted his business away 

from the job site on his day off, none of his activities, before, during or after his shift ended, 

would have been called into question. While the decision to te1minate Turner, rather than mete 

out lesser discipline, may appear to have been harsh, and even unfair, my task, under the Act, is 

to determine whether the adverse action was motivated in any part by Turner's protected activity. 

In this regard, it is well settled that "[t]he Commission and its judges have neither the statutory 

31FMSHRC1185 
charter nor the specialized expertise to sit as a super grievance or arbitration board meting out 

industrial equity." Chacon, 3 FMSHRC at 2516. The weight of the evidence, as well as Turner's 

deportment during the hearing, compel me to conclude that Turner was a difficult employee, and 

that National Cement had ample grounds, unrelated to his protected activity, upon which to 

terminate his employment. 

It is clear, based on the record in its entirety, that Turner's non-conformance with 

National Cement's policy regarding outside employment, and his less than satisfactory 

performance, motivated National Cement to terminate his employment, and that he would have 

been terminated on the sole basis of his conduct respecting his work at ICS, irrespective of any 

protected activity. 

' I .. · 

ORDER 

Accordingly, inasmuch as Turner has failed to establish, by a preponderance of the 

evidence, that he was discharged for engaging in activity protected under the Act, it is 

ORDERED that the Complaint of Discrimination of Jayson Tumer against National Cement 

Company of California, Incorporated, under section 105(c) of the Act, is DISMISSED. 

~R~~ Administrative Law Judge 

Distribution: (Certified Mail) 

Margaret S. Lopez, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 2400 N St NW, Fifth 

floor, Washington, DC 20037-1153 

Jayson Turner, 2716 Arctic Drive, P.0; Box C, Pine Mountain, CA 93222 

/mh 

31FMSHRC1186 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

September 30, 2009 

SECRETARY OF LABOR, TEMPORARY REINSTATEMENT 

MINE SAFETY AND HEALTH PROCEEDING 

ADMINISTRATION, (MSHA), 

on behalf of LIGE WILLIAMSON 

Complainant 

v. 

CAM MINING, LLC, 

Respondent 

Docket No. KENT 2009-1428-D 

PIKE CD 2009-06 

. Mine ID 15-18911 

Number 28 Mine 

DECISION 

Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for the Complainant; 

Before: 

Mark Heath, Esq., Spilman, Thomas & Battle, Charleston, West Virginia, 

for the Respondent. 

Judge Feldman 

This matter, heard on September 2, 2009, in Pikeville, Kentucky, is before me based on 

an application for temporary reinstatement filed by the Secretary, pursuant to section 105( c )(2) 

of the Federal Mine Safety and Health Act of 1977 (the Mine Act), 30 U.S.C. § 815(c)(2), against 

CAM Mining, LLC (CAM Mining) on behalf of Lige Williamson. This statutory provision 

prohibits operators from discharging or otherwise discriminating against miners who have 

complained about alleged safety or health violations, or who have engaged in other safety related 

protected activity. Section 105( c )(2) of the Act authorizes the Secretary to apply to the 

Commission for the temporary reinstatement of a miner pending the full resolution of the merits 

of his discrimination complaint. The parties' briefs, filed on September 24, 2009, have been 

considered. 

I. Statement of the Case 

This temporary reinstatement proceeding is analogous to a preliminary hearing. 

Unlike a trial on the merits of a discrimination complaint brought by the Secretary where the 

Secretary bears the burden of proof by the preponderance of the evidence, the scope of this 

temporary reinstatement proceeding is limited by statute. Section 105( c) of the Mine Act, as well 

as Commission Rule 44( c ), 29 C.F .R. § 2700.44( c ), limit the issue in an application for 

temporary reinstatement to whether the subject discrimination complaint has been "frivolously 

brought." Courts and the Commission have concluded that the "not frivolously brought" 

31 FMSHRC 1187 
standard in section 105( c) is satisfied when there is a "reasonable cause to believe" that the 

discrimination complaint "appears to have merit." Centralia Mining Company, 22 FMSHRC 

153, 157 (Feb. 2000) (citations omitted). 

The Secretary contends Williamson engaged in protected activity on or about 

April 20, 2009, when he allegedly communicated ventilation related complaints to his foreman, 

McArthur Swiney. CAM Mining denies that the alleged ventilation complaints occurred. 

Williamson's employment was terminated on May 15, 2009, following a May 13, 2009, 

confrontation between Williamson and Swiney. The confrontation occurred immediately after 

Swiney criticized Williamson when a shuttle car, operated by Williamson, struck and damaged a 

water line and power cable. 

fu view of the Secretary's minimal burden of proof, without resolving any 9redibility 

issues, Williamson shall be given the benefit of the doubt that his alleged April 20, 2009, 

ventilation complaint occurred. However, the Secretary has not demonstrated that Williamson 

was the victim of any meaningful retaliation during the intervening period from April 20 through 

the May 13, 2009, confrontation. Williamson has conceded that he was not given any job 

assignments that were inconsistent with his job duties as a utility man. fu fact, Williamson 

testified that, at his request, he was reassigned to lighter duty operating a shuttle car because his 

knee condition limited his ability to hang curtains. 

Rather, Williamson's admissions that iie "cussed" Swiney on May 13, 2009, and that he 

believed he would lose his job for "cussing" his foreman out, reflect that there is no reasonable 

cause to believe there is a nexus between Williamson's alleged April 20, 2009, protected activity 

and his May 15, 2009, termination for insubordination. (Tr. 92). Accordingly, the Secretary's 

temporary reinstatement case shall be dismissed because it does not appear to have the requisite 

merit to demonstrate that it has not been frivolously brought. 

II. Findings of Fact 

There are two types Df continuous mining sections at the No. 28 Mine. A super section is 

ventilated by a double split of air that allows the simultaneous operation of two continuous 

miners in separate entries. A normal continuous mining section is ventilated by a single split 

of air. fu a single split of air the continuous miners operate on an alternating basis in separate 

entries. 

Lige Williamson is 55 years old. Prior to Williamson's May 15, 2009, termination, 

Williamson had been employed at CAM Mining's No. 28 Mine as a utility man in a continuous 

mining section, for approximately 21 months. His job duties involved construction and 

maintenance of ventilation controls. Specifically, he was responsible for building concrete 

permanent stoppings (brattices), hanging temporary stoppings (fly pads), and maintaining the line 

curtain in all of the section entries. (Tr. 28, 29, 20-25). 

31FMSHRC1188 
Williamson was transferred from the No. 2 super section to the No. 1 section in the 

middle of April 2009. (Tr. 34). Prior to Williamson's transfer the No. 1 section had been a super 

section. However, in April 2009 the section was being operated on a single split of air. 

Williamson's new section foreman was McArthur Swiney. Swiney is 66 years old and he has 

approximately 49 years of mining experience. (Tr. 342). When Williamson started working on 

the No. 1 section, he was performing normal utility duties involving the construction and 

maintenance of ventilation controls. 

The No. 1 section has seven entries. The left hand continuous miner operated in the 

No. 1 through 4 entries. The right hand continuous miner operated in the No. 4 through 7 entries. 

Three shuttle cars loaded coal from the two miners. The left and center shuttle cars carried loads 

from the left hand continuous miner. The right shuttle car carried loads from the right hand · 

continuous miner. The shuttle cars were equipped with booms that could be raised or lowered to 

transfer coal from the belt on the continuous miner into the shuttle car. ~ 

After working a few days in the No. 1 section, Williamson reportedly noticed loaded 

shuttle cars exiting from two different entries at the same time. Although Williamson could not 

see or hear both the left and-right hand continuous miners at the same time, he surmised that one 

continuous miner was starting operations before the other continuous miner had stopped. In such 

an event, methane and dust from the first continuous miner could be transferred inby to the other 

continuous miner by the same split of air sweepilig the face. 

a. The Alleged April 20, 2009. Protected Activity 

On or about April 20, 2009, Williamson alleges that he told Swiney that he believed that 

there was overlapping operation of the continuous miners when each miner began its 

advancement into its entry. Williamson stated that Swiney did not respond to Williamson's 

complaint. Williamson testified, "[Swiney] didn't say nothing, just looked at me like I was 

stupid." (Tr. 38-39). 

Williamson testified that after he complained to Swiney he was asked to do various tasks 

that required physical labor including shoveling ribs, shoveling the tail piece area, and building 

brattices. However, Williamson does not claim that he was asked to perform any job duties that 

were inconsistent with the duties of a utility man. In fact, Williamson testified, "I'm not going to 

say [Swiney] particularly made me do things outside my job title." (Tr. 40). Williamson stated 

that the stress caused by Swiney' s treatment of him caused Williamson to seek medical treatment 

for chest pain. No medical documentation has been proffered. 

Williamson returned to work after approximately two days of medical leave. In addition 

to his stress related complaints, Williamson had a history of knee problems that were exacerbated 

by the physical demands of constructing concrete stoppings. Upon Williamson's return Swiney 

permitted Williamson to switch jobs with a shuttle car operator to help lessen the stress on 

Williamson's knees. However, Williamson claims that before he complained about ventilation 

31FMSHRC1189 
Swiney called him "Lige." After his complaint Williamson alleges that Swiney referred to him 

as "asshole." Significantly, Williamson has conceded that he never reported his alleged 

ventilation complaint to any other CAM Mining official during the period of April 20, 2009, 

when the complaint reportedly was communicated to Swiney, until May 15, 2009, when he was 

terminated for insubordination. (Tr. 178, 183-84, 203-04). 

Swiney tes!ifi_ed that Williamson never complained to him about ventilation. Swiney also 

denies that he called Williamson "asshole." CAM Mining denies that the continuous miners in 

the No. 1 section were operating simultaneously. In support of its denial CAM Mining 

emphasizes that Williamson's reported belief is speculative since he did not personally .observe 

both continuous miners operating at the same time. Moreover, CAM. Mining maintains that the 

No. 1 section lacked the electrical capacity to operate both continuous miners simultaneously! . 

On May 5, 2009, 104(a) Citation No. 8227386 was issued to CAM Mining.for a violation 

of the mandatory safety standard in section 75.370(a)(l), 30 C.F.R. § 75.370l(a)(l) that requires 

a mine operator to follow an approved ventilation plan. The citation was issued because the 

No. 1 section was operating on a single rather than two distinct splits of air as provided in the 

existing approved ventilation plan. The citation was terminated on May 7, 2009, after 

CAM Mining submitted an updated ventilation plan to conform with its single split of air 

operation. The violation cited in Citation 8227386 was .designated as non-significant and 

substantial (non-S&S) in nature, and, the violation was attributed to a low degree of negligence. 

b. The May 13. 2009. Insubordination 

With the exception of whether or not Williamson pushed Swiney, the relevant events 

surrounding the May 13, 2009, confrontation between Swiney and Williamson are not in dispute. 

On the night of Wednesday, May 13, 2009, Swiney told Williamson to use the shuttle car to load 

coal from the right side continuous miner that was operating in the No. 4 entry. Williamson 

loaded the shuttle car and proceeded from the continuous miner down the last open cross cut 

making a right turn into the No. 5 entry on his way to the loading dock. Williamson testified 

that, upon turning in to the No. 5 entry, the shuttle car hit a wet spot in a dip in the mine floor. 

The shuttle car slid through the intersection severing the water line and pinching the power cable 

for the continuous miner. As a result, a fountain of water began streaming into the air. 

Upon seeing the stream of water, Swiney approached the shuttle car to determine 

what had happened. Swiney accused Williamson of not raising the boom to avoid contact 

with the water line and cable. When Swiney approached, Williamson conceded he was 

aggravated because striking the cable and water line is a mistake that is not supposed to 

happen. (Tr. 163-164; 190-191). Specifically, Williamson testified: 

Q. So you didn't like it when Mr. Swiney came up and told you if 

you had your boom up, you wouldn't hit the water line, did you? 

31FMSHRC1190 
A. When Mr. Swiney came up, I was aggravated for hitting the line. A 

carman does not like to make a mistake like that. You are particularly 

cautious about mine cable and water line. I was aggravated before Mac 

got over there. 

Williamson alleges that upon arriving at the shuttle car Swiney shoved his finger in 

Williamson's face and that Swiney called him a "God damn dumb ass." (Tr. 86-87, 88). 

Williamson testified tliat Swiney retreated as Williamson exited the shuttle car toward Swiney. 

Williamson testified, "I told him that he was going to quit his god damn dogging on me. That 

he'd been dogging me for two fucking weeks and I was tired of it and it's going to fucking stop 

now was my basic words to him." (Tr. 91, 93) 

Swiney alleges that as Williamson jumped out of the shuttle car, Williamson pushed him 

in the chest causing him to stumble backwards to within three to four feet from the rib. 

Williamson denies shoving Swiney. hnmediately after their confrontation, Swiney telephoned 

shift foreman Danny Conn to meet him and Williamson at the end of the track so that 

Williamson could be escorted out of the mine. Swiney and Williamson used a man trip to travel 

to meet Conn. When Conn arrived he could see that both Swiney and Williamson were upset. 

Williamson denied Swiney's claim that he had been pushed. 

· When Conn and Williamson reached the surface, Williamson asked Conn if he 

was terminated. Conn told Williamson to return to the mine the next day to speak to 

Mine Superintendent Frank Smith. Williamson did not tell Conn about his alleged history 

of ventilation complaints because he didn't believe that was "the issue ... at that particular 

moment." (Tr. 178). 

At the end of the shift, Swiney completed an employee disciplinary report which stated 

that "Lige cut miner cable and water line with S/C Mac talked to him and he got off S/C and 

pushed Mac against rib." This report was co-signed by Frank Smith. (Resp. Ex. 2; Tr. 283). 

Swiney also wrote a contemporaneous hand written statement to Frank Smith dated 

May 15, 2009, stating: 

(Resp. Ex. 1). 

Lige cut miner cable and water line I told him if he had raised his 

boom he wouldn't have cut it. He jumped out of his car and started 

pushing me around and said that I had been on his case for 2 or 3 

days. I called out and told Danny Conn to come inside and get 

him. If you want him to work, I don't need him, put him 

somewhere else. 

31FMSHRC1191 
Thursday, May 14, 2009, Williamson returned to the mine to discuss with Smith the 

incident that had occurred on the previous night. Based on the information that had previously 

been provided to Smith by Swiney, Smith informed Williamson that he was being suspended for 

three days with intent. Williamson understood that to mean that he was being terminated. 

Williamson asked for a termination slip, but was not given one before he left the mine. 

Smith fon\'_ar~ed a request to terminate Williamson to Jack Holbrook, CAM Mining's 

general manager. Holbrook signed the termination notice on May 15, 2009, citing 

insubordination as the basis for the discharge. (Gov. Ex. 7). Prior to his termination, 

Williamson did not inform Conn or Smith that he had complained to Swiney about ventilation, 

or, that Swiney had called him an "asshole." (Tr. 182-183). 

On Friday evening, May 15, 2009, Williamson telephoned Smith at home. Williamson 

told Smith that if he had something to say to him he should "[have] the balls to tell him face to 

face." (Tr. 185). Williamson also told Smith that any rumor that Williamson had complained to 

MSHA inspectors was not true. (Tr. 195). The termination notice, sent to Williamson by 

certified mail, was received on Saturday, May 16, 2009. 

III. Procedural Framework 

Unlike a trial on the merits in a discrimination complaint brought by the Secretary where 

the Secretary bears the burden of proof by the preponderance of the evidence, the scope of this 

temporary reinstatement proceeding is limited by statute. Section 105( c) of the Mine Act as well 

as Commission Rule 44(c), 29 C.F.R. § 2700.44(c), limit the issue in an application for 

temporary reinstatement to whether the subject discrimination complaint has been 

"frivolously brought." Rule 44( c) provides: 

The scope of a hearing on an application for temporary reinstatement is limited to a 

determination by the Judge as to whether the miner's complaint is frivolously brought. 

The burden of proof shall be upon the Secretary to establish that the complaint is not 

frivolously brought. In support of [her] application for temporary reinstatement the 

Secretary may limit [her] presentation to the testimony of the complainant. The 

respondent shall have an opportunity to cross-examine any witnesses called by the 

Secretary and may present testimony and documentary evidence in support of its position 

that the complaint is frivolously brought. 

In its decision in Jim Walter Resources, Inc., v. FMSHRC, 920 F.2d 738 (11th Cir. 1990), 

the Court noted the "frivolously brought" standard is entirely different from the scrutiny 

applicable to a trial on the merits of the underlying discrimination complaint. In this regard, 

the Court stated: 

The legislative history of the Act defines the 'not frivolously brought standard' as 

indicating whether a miner's 'complaint appears to have merit' -- an interpretation that is 

strikingly similar to a reasonable cause standard. [Citation omitted]. In a similar context 

involving the propriety of agency actions seeking temporary relief, the former 5th Circuit 

31 FMSHRC 1192 
construed the 'reasonable cause to believe' standard as meaning whether an agency's 

'theories oflaw and fact are not insubstantial or frivolous.' 

920 F.2d at 747 (emphasis in original) (citations omitted). 

While the Secretary is not required to present a prima facie case of discrimination to 

prevail in a temporary reinstatement proceeding, it is helpful to review the elements of a - - -

discrimination claim to determine ifthe evidence at this stage satisfies the "not frivolously 

brought" standard. As a general proposition, to demonstrate a prima facie case of discrimination 

under section 105(c) of the Mine Act, the Secretary must establish that the complainant 

participated in safety related activity protected by the Act, and, that the adverse action 

complained of was motivated, in some part, by that protected activity. See Secretary on behalf of 

David Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (Oct. 1980) rev'd on 

other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); 

Secretary on behalf of Thomas Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 

(Apr. 1981). 

N. Disposition 

As a threshold matter, the evidence in this preliminary temporary reinstatement 

proceeding must be viewed in a light most favorable to the complainant because it is not the 

judge's duty to resolve conflicts in testimony at this preliminary stage of the proceedings. 

Secretary o/b/o Earl Charles Albu v. Chicopee Coal Company, Inc., 21 FMSHRC 717, 719 

(July 1999). Thus, we start with the proposition, for the purposes of this matter, that Williamson 

communicated a good faith ventilation complaint to Swiney on April 20, 2009. 

Thus, assuming that Williamson engaged in protective activity on April 20, 2009, 

we must determine whether there is reasonable cause to believe that Williamson's May 15, 2009, 

termination was motivated, at least in part, by that protected activity. As a threshold matter, there 

is no evidence that any significant retaliatory action was taken by CAM mining in response to 

Williamson's alleged complaint. Even if Swiney responded to Williamson's alleged complaint 

by calling him an "asshole," there is no evidence that Swiney had any retaliatory intent. In this 

regard, Williamson has admitted, "I'm not going to say [Swiney] particularly made me do things 

outside my job title." (Tr. 40). On the contrary, Williamson was given lighter shuttle car duty 

after his alleged complaint. Similarly, given the absence of any retaliation prior to the May 13 

incident with Swiney, there is no evidence that CAM mining believed Williamson had 

complained to MSHA about ventilation issues. (Tr. 127). 

31FMSHRC1193 
Moreover, Williamson admits he never reported any concerns of disparate treatment by 

Swiney to any CAM Mining official. It is only after he was terminated that Williamson 

now claims his reported protected activity was a material factor in his job loss. Significantly, 

Williams testified he did not tell Conn about his alleged history of complaining about ventilation 

to Swiney because he did not believe that was "the issue ... at that particular moment." 

(Tr. 178). Williamson also did not report his alleged ventilation complaint during his 

May 14, 2009, meeting with Smith when Williamson was advised he was being "suspended 

with intent." 

Throughout this proceeding, the Secretary has treated the May 13, 2009, confrontation as 

a trivial event. It is not mentioned in Williamson's initial safety complaint filed with MSHA on 

·May 29; 2009, wherein Williamson avers that he· "was discharged for making a safety 

complaint." (Gov. Ex. 1). In addition, the May 13, 2009, incident is not referred to in the 

Secretary's Application for Temporary Reinstatement, nor in the affidavit by MSHA Special 

fuvestigator Alan Howell filed in support of the Secretary's application. Rather, when distilled to 

its core, the Secretary's case is, in essence, that CAM Mining was lying in wait after Williamson 

engaged in protected activity on April 20, 2009, until it was fortuitously rewarded by 

Williamson's May 13, 20U9, confrontation with Swiney, with no evidence of intervening 

retaliatory action. fu other words, the Secretary argues that Williamson's May 15, 2009, 

termination for insubordination is a subterfuge for Williamson's protected activity, despite no 

. evidence.that Conn, Smith or Holbrook, knew ab:out Williamson's alleged complaint, or, 

that Williamson was the victim of retaliation during the interim period from April 20 

until his May 13, 2009, misconduct. 

To determine if the evidence as presented by the Secretary reflects the subject 

discrimination complaint has not been frivolously brought, we examine the events of 

May 13, 2009. Williamson concedes he was upset with himself for striking the water line and 

power cable with the shuttle car. Although there is no evidence that Williamson intended to hurt 

Swiney, it is apparent that Swiney' s criticism was not well received. Even if physical contact did 

not occur, the accounts of both Swiney and Williamson support the fact that there was a serious 

verbal confrontation. In fact, Williamson admits he, in effect, threatened Swiney when he 

told Swiney he was tired of Swiney "dogging" him and" it's going to fucking stop now." 

(Tr. 91, 93). Williamson also recognized that he could be fired for "cussing" his foreman. 

(Tr. 92). Although profanity and expressions of aggression may be excused when they are 

uttered by a complainant who is provoked by a mine operator's response to his protected activity, 

obviously severing a water line and damaging a trailing cable are not activities protected by 

the Mine Act. Secy o/b/o Bernardyn v. Reading Anthracite Co., 22 FMSHRC 298, 305-07 

(Mar. 2000) (excusing behavior that occurs in response to a mine operator's wrongful 

provocation). Consequently, there are no mitigating circumstances to excuse Williamson's 

aggressive response to Swiney's criticism. Thus, even a superficial analysis of the evidence 

presented by the Secretary clearly reflects that, when Williamson threatened 66 year old Swiney, 

he did so at the risk of his termination. 

31 FMSHRC 1194 
As a final matter, the Secretary apparently now concedes the May 13, 2009, incident at 

least justified CAM Mining's suspension ofWilliamson. 1 However, she argues, in effect, that 

termination was unjustifiably harsh and motivated by Williamson's earlier ventilation complaint. 

Having conceded that suspension for Williamson's insubordination was warranted, the Secretary 

has abandoned any claim that her application for temporary reinstatement is not frivolous. 

Whether a miner is suspended or terminated for insubordination is within a mine operator's 

discretion, absent a showing that the discipline is disproportionate to the misconduct and 

motivated by discriniinatory intent. The Secretary's disparate treatment claim, based on the 

assertion that other CAM Mining employees have been suspended rather than terminated for past 

instances of misconduct, is unavailing. Past instances of suspension for misconduct do not 

preclude future terminations for just cause. 

In the final analysis, the "Commission does not sit as a super grievance board to judge the 

industrial merits, fairness, reasonableness, or wisdom of an operator's employment policies 

except insofar as those policies may conflict with rights granted under section 105(c) of the Act." 

Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2544 (Dec. 1990) (citations omitted). 

Rather, Commission judges must "analyze the merits of a mine operator's alleged business 

justification for the challeng{:d adverse action." Sec'y of Labor o/b/o Chacon v.Phelps 

Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other grounds, 709 F.2d 86 

(D.C. Cir. 1983). 

In this preliminary proceeding, the issue to be resolved is the merits of the Secretary's 

assertion that CAM Mining's justification for Williamson's termination is an implausible 

attempt to hide its discriminatory motive. It is undisputed that Williamson's May 13, 2009, 

confrontation constituted insubordination. Company written policy reflects that insubordination 

is grounds for dismissal. (Resp. Ex. 3). The Secretary's contention that CAM Mining was also· 

motivated by Williamson's earlier protected activity is frivolous because it is based only on 

speculation. 

Viewing the evidence in a light most favorable for the Secretary, the Secretary has failed 

to satisfy her burden of demonstrating there is a reasonable cause to believe Williamson's 

reported protected activity played any role in his May 15, 2009, termination. Consequently, this 

case does not appear to have merit and is therefore frivolously brought. 

1 At trial, without providing any details, the Secretary presented testimony that 

CAM Mining previously had suspended William Gillespie for "cussing" his foreman. 

(Tr. 127-29). 

31FMSHRC1195 
ORDER 

Accordingly, IT IS ORDERED that the Secretary's application for the temporary 

reinstatement of Lige Williamson IS DENIED. Consequently, IT IS FURTHER ORDERED 

that this temporary reinstatement proceeding IS DISMISSED. 

Distribution: (Certified Mail and Facsimile) 

Jerold Feldman 

Administrative Law Judge 

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East, P.O. Box 273, 

. Charleston, WV 25321 

/rps 

31FMSHRC1196 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

202-434-9981/Tele 202-434-9949/Fax. 

SIDNEY COAL COMP ANY, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SIDNEY COAL COMP ANY, INC., 

Respondent 

October 8, 2009 

CONTEST PROCEEDINGS 

Docket No. KENT 2007-217-R 

Order No. 6643560; 02/21/2007 

Docket No. KENT 2007-218-R 

Order No. 6643561; 02/21/2007 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 2008-51 

A.C. No. 15-18381-125442 

Taylor Fork Energy 

DECISION 

Appearances: Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, on behalf of the Secretary of Labor; 

Ramonda C. Lyons, Esq., Dinsmore & Shohl, LLP, Charleston, West Virginia, 

on behalf of Sidney Coal Company, Incorporated. 

Before: Judge Zielinski 

These cases are before me on Notices of Contest filed by Sidney Coal Company, 

Incorporated, and a Petition for Assessment of Civil Penalties filed by the Secretary of Labor 

pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815. 

The Petition alleges that Sidney is liable for two significant and substantial ("S&S") violations of 

the Secretary's Mandatory Safety Standards for Underground Coal Mines, and proposes the 

imposition of civil penalties in the total amount of $38,000.00. A hearing was held in Pikeville, 

Kentucky, and the parties filed briefs after receipt of the transcript. For the reasons set forth 

below, I find that Sidney committed the violations, but that they were not S&S, and impose civil 

penalties in the amount of $20,000.00. 

31FMSHRC1197 
Findings of Fact - Conclusions of Law 

On February 21, 2007, MSHA inspector Terry Phillips, Jr., conducted an inspection of 

Sidney's Taylor Fork Energy mine, which is located in Pike County, Kentucky. Phillips had 

inspected the mine previously, and was familiar with its layout and operation. One of the 

production operations at the mine was a "supersection," which consisted of two production 

sections operating_side-by-side in seven entries, designated MMU 005 and MMU 006. Section 

005 consisted of entries #1 through #4, and section 006 comprised entries #5 through #7. They 

were served by intake air traveling down the #5 entry where it was split, and traveled across the 

sections to the returns in entries #1 and #7. Sidney was allowed to operate a continuous miner on 

each of the sections. There were ten miners working in the 005/006 sections on the second shift, 

which started at 4:30 p.m. The foreman was Tim Thornbury. 

Phillips went underground about 10:00 p.m., and rode on a track mantrip with Billy May, 

an electrician. Upon his arrival at the mine, Phillips had indicated that he intended to inspect the 

belt entry. A call was made to the underground working section to notify Thornbury that there 

was an MSHA inspector on the property and that he would be inspecting the belt. While en 

route, Phillips changed his mind and decided to inspect the 005/006 sections. When the mantrip 

approached a switch in the track, he told May that he wanted to go to the working sections, and 

they proceeded in that direction. Tr. 25. They encountered an outbound supply car, which 

required that the mantrip back up past the switch to allow it to pass. Tr. 29. Phillips was 

concerned that the delay would allow the production crew to be apprised of his impending 

arrival. Because he wanted to "surprise them," he got off the mantrip, and continued on foot, 

walking down the #4 belt entry approximately 15-20 breaks to the face. Tr. 94. When he arrived 

at the feeder, he observed someone doing paperwork in the #3 entry near what he thought was the 

power center. While he could not positively identify the individual, he believed that it was 

Thornbury. Tr. 30-31, 94-96; Ex.G-3. 

While Phillips traveled to the working section coal was moving on the belt, and he could 

hear the 005 section continuous miner running. Tr. 39. However,just before he arrived at the #3 

entry where the miner was located, it was shut down. Within approximately two minutes he 

reached the face, and found the air thick with coal dust. No line curtain had been hung and there 

was virtually no air movement in the entry inby the last open crosscut. The miner operator and a 

shuttle car operator were unrolling a new roll of line curtain, apparently preparing to hang it. 

When Phillips approached, one of the men said, "Too late, he's here." Tr. 33; Ex. G-3. The 

mine' s approved Ventilation Plan required that line curtain be maintained no further than 44 feet 

from the face and eight feet from the discharge end of the scrubber unit mounted on the rear of 

the miner, and it was apparent that the face had been advanced well beyond 44 feet. He and 

Thornbury later measured the distance from the face to the inby edge of the last open crosscut at 

75 feet. Tr. 54-55; Ex. G-1, G-4 at 8. 

Phillips could hear the 006 section continuous miner cutting coal in the #6 entry. Tr. 39. 

He suspected that the same conditions existed there. However, in less than a minute, the miner 

31FMSHRC1198 
in the #6 entry was shut down. Tr. 34. Phillips told the men in the #3 entry to remain where they 

were. He ran to the #6 entry, and discovered virtually the same conditions that he had found in 

the 005 section. Tr. 35. The entry had been driven well over 44 feet (later measured at 69 feet), 

no line curtain had been hung, air movement was virtually non-existent, and coal dust was thick 

in the air. Miners were also in the initial stages of preparing to install line curtain. 

Phillips was upset with the conditions he had found, and inquired, "Where the hell is the 

boss?" He proceeded back toward the #3 entry and encountered Thornbury in the last open 

crosscut. Phillips addressed him in an emotional state, asking, "What the hell are you doing?" 

Thornbury indicated that he had seen Phillips in the belt entry and had tried to get up to the faces 

to tell the men to get line curtain up. Tr. 49, 94-95; Ex. G-3. 

Phillips and Thornbury proceeded to the #3 entry and took measurements. They 

determined that the distance from the outby side of the last open crosscut to the mosf inby row of 

roof bolts in the entry was 69 feet ( 49 feet from the inby side of the crosscut), and that the miner 

had cut another 26 feet into the coal seam. Phillips attempted to measure the quantity of air 

moving in the entry, but it was insufficient to register on his anemometer. They also took 

measurements in the #6 entry, and found that the entry had been advanced a total of 89 feet from 

the outby side of the last open crosscut, 20 feet past the last row of bolts. Thornbury, who 

assisted in taking the measurements, agreed that they were accurate. Tr. 172. 

Phillips issued Citation No. 6643560 and Order No. 6643561, alleging that Sidney failed 

to follow its approved Ventilation Plan. Sidney timely contested the Citation and Order and the 

proposed penalties. 

Citation No. 6643560 

Citation No. 6643560 alleges a violation of30 C.F.R. § 75.370(a)(l), which requires that 

operators develop and follow a Ventilation Plan approved by the MSHA District Manager. 

The violation was described in the "Condition and Practice" section of the Citation as 

follows: 

The section foreman was not following the approved Ventilation Plan on 

the #2 section in that the left miner (005 MMU) was cutting coal in the #3 entry 

face without any ventilation controls in place. The distance from the comer to the 

last row of roof bolts was measured at 69 feet and the miner had already cut 26 

feet for a total distance of 95' with no line curtain and no air movement. There 

was no air movement in this #3 face area and suspended float coal dust was easily 

seen in the air. Therefore foreman violated the plan by having no line curtain 

hung and not having sufficient air in the face. Foreman Thornbury engaged in 

aggravated conduct constituting more than ordinary negligence in that he allowed 

this miner to cut coal in the #3 face with no ventilation controls exposing his crew 

31 FMSHRC 1199 
of men to an explosion hazard and breathing of coal dust and rock dust. This 

violation is an unwarrantable failure to comply with a mandatory standard. 

Ex. G-1. 

Phillips determined that it was reasonably likely that the violation would result in a fatal 

injury, that the vialatjon was S&S, that ten persons were affected, and that the operator's 

negligence was high. The Citation was issued pursuant to section 104(d)(l) of the Act, and 

alleged that the violation was the result of the operator's unwarrantable failure to comply with 

the mandatory standard. A specially assessed civil penalty in the amount of$17,500.00 was 

proposed for this violation. 

Order No. 6643561 

Order No. 6643561 also alleges a violation of30 C.F.R. § 75.370(a)(l), on virtually the 

same facts with respect to the #6 entry in the right side of the supersection (006 MMU). Ex. G-2. 

Phillips similarly determined that it was reasonably likely that the violation would result in a fatal 

injury, that the violation was S&S, that ten persons were affected, and that the operator's 

negligence was high. The Order was also issued pursuant to section 104( d)(l) of the Act. 

A specially assessed civil penalty in the amount of $20,500.00 was proposed for this violation. 

The Violations 

The alleged violations are virtually identical, and the critical facts and analysis of gravity, 

whether they were S&S and the result of the operator's unwarrantable failure are the same. 

Accordingly, they will be considered together. Sidney concedes that it violated its approved 

Ventilation Plan as alleged in the Citation and Order. Resp. Br. at 3. The #3 and #6 entries had 

previously been advanced a minimum of 49 feet each, and roof bolts had been installed. They 

had then been advanced another 26 and 20 feet, respectively, and no line curtain had ever been 

hung. As Thornbury admitted, "as soon as they started cutting, they should have had [line 

curtains] up." Tr. 191-92. Sidney challenges the S&S and unwarrantable failure designations. 

Significant and Substantial 

An S&S violation is described in section 104(d)(l) of the Act as a violation "of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard." A violation is properly designated S&S "if, based upon the 

particular facts surrounding that violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature." Cement Div., 

Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

The Commission has explained that: 

31FMSHRC1200 
fu order to establish that a violation of a mandatory safety standard is 

significant and substantial under National Gypsum, the Secretary of Labor must 

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

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

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

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

reasonably serigus nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52F.3d133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary of Labor, 861 

F.2d 99, 103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) 

(approving Mathies criteria). 

fu U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Conp:nission 

provided additional guidance: 

We have explained further that the third element of the Mathies formula "requires 

that the Secretary establish a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury." U.S. Steel Mining Co., Inc., 

6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance 

with the language of section 104( d)(l ), it is the contribution of a violation to the 

cause and effect 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, 1574-75(July1984). 

This evaluation is made in terms of "continued normal mining operations." U.S. Steel, 

6 FMSHRC at 1574. The question of whether a particular violation is significant and substantial 

must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 

498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

The fact of the violation has been established. A measure of danger to safety was 

contributed to by the failure to hang line curtains in conformance with the requirements of the 

Ventilation Plan. Phillips cited the violations as S&S because he believed that it was reasonably 

likely that a spark from the cutting heads of the continuous miners would ignite the suspended 

coal dust, causing an explosion that would, in a "worst case scenario," result in fatal injuries to 

all ten miners working on the sections. 1 Tr. 102. There is little question that an explosion would 

1 Phillips also mentioned that miners inhaling the dust could contract "black lung or 

silicosis." Tr. 80. However, no dust samples were taken that day, and that aspect of potential 

injury was not pursued further. Tr. 129-30: Line curtain was required only as the face was 

advanced beyond 44 feet. Any exposure to excessive dust attributable to the violation would 

have occurred for a relatively short duration, as the faces were advanced to the next break. While 

respiratory diseases associated with dust exposure are serious injuries, the evidence does not 

support a finding that the violations were reasonably likely to cause a respiratory disease. 

31FMSHRC1201 
result in immediate fatalities to at least the miner operator, and any other miner working in the 

entry. As is often the case, the primary issue in the S&S analysis is whether the violation was 

reasonably likely to result in an injury causing event - here, an explosion. 

Phillips testified that "four sides of the pentagon for explosion" were present- oxygen, 

confinement, suspension and fuel - and that the only missing factor was an ignition source. 

Tr. 62. As to that facior, he was aware that exposure levels to dust had been reduced at the mine 

because of the presence of quartz or silica, an indication of the presence of sandstone, which 

could cause sparks when struck by a miner's cutting head. Some 10-12 inches ofrock was being 

cut in the subject headings, and Phillips posited that a spark would supply the missing element 

for a disastrous explosion. Tr. 73. He did not identify any other potential ignition sources. 

Tr. 82. 

The Commission has provided a framework for analyzing whether a fire or explosion is 

reasonably likely to occur. 

When evaluating the reasonable likelihood of a fire, ignition, or explosion, 

the Commission has examined whether a 'confluence of factors' was present 

based on the particular facts surrounding the violation. Texasgulf, Inc., 10 

FMSHRC 498, 501 (April 1988). Some of the factors include the extent of the 

accumulations, possible ignition sources, the presence of methane, and the type of 

equipment in the area. Utah Power & Light Co., 12 FMSHRC 965, 970-71 (May 

1990) ('UP&L ');Texasgulf, 10 FMSHRC at 500-03. 

Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997). 

The Secretary argues that the Enlow Fork factors were satisfied for each violation, and 

relies on assertions that methane was present. She asserts that "The mine has a history of 

methane," and "Four of five elements for an explosion were present in this entry: oxygen, 

confinement, dust suspension, and fuel (coal, coal dust, and methane)." Sec'y Br. at 6. That 

methane is highly explosive- at concentrations between 5% and 15% has been well-documented. 

However, the Secretary's attempt to cast the analysis in terms of a potential methane explosion 

finds virtually no support in the record. 

Phillips testified that there was no methane in the subject entries, and he did not identify 

the presence of methane as a factor in his description of the explosion hazard. Tr. 62-63, 106. 

He also related that Sidney's continuous miners were equipped with scrubbers, whereas, those in 

mines that liberated appreciable quantities of methane were not, because of the potential 

explosion hazard presented by the scrubber motors. Tr. 56. The "history of methane" evidence 

was elicited by the Secretary on re-direct questioning of Phillips, where he indicated that an 

unspecified quantity of methane had been detected, apparently on one occasion, in bottle samples 

taken at two evaluation points on a longwall panel bleeder system. Tr. 136-37. Thornbury 

detected no methane during his preshift examination, which was conducted shortly before the 

31 FMSHRC 1202 
alleged violations. Tr. 162; Ex. R-1. He believed that the methane detected in bottle samples 

taken by Phillips was the first indication of methane in the mine, and was oflow concentration. 

Tr. 176-77. Had the evidence established the presence of any significant quantity of methane in 

the #3 and #6 entries, there would be little question that the violations were S&S. However, 

there was no methane present. 

The nature of tl!_e hazard posed by coal dust suspended in air is more difficult to evaluate. 

It is apparent that coal dust, in general, does not pose nearly the explosion hazard that methane 

does. Moreover, if the dust posed such a hazard, it could be expected that there would have been 

a number of fires or explosions occurring in the mining process. Yet, as Phillips acknowledged, 

he was aware of none. Tr. 106. Nor was Thornbury. Tr. 176. The Ventilation Plan required that 

line curtain be hung no more than 44 feet from the face, and eight feet from the scrubber 

discharge. Presumably, the ventilation air current would be drawn back out the entry after 

passing the end of the curtain. Consequently, the area in proximity to a miner's cutting head, 

where the sparks postulated by Phillips would occur, would typically be filled with coal dust. If 

the suspended dust posed a serious hazard, as the Secretary contends, it would seem that ignitions 

at the face would not be unusual occurrences. The absence of evidence of such ignitions, raises a 

serious question about the likelihood of coal dust being ignited by a spark. 

. It may be that suspended coal dust, under certain circumstances, can pose an explosion 

hazard comparable to that of methane. Here, however, there is no evidence of concentrations or 

other characteristics that would render it a serious explosion hazard, or whether such conditions 

existed in the area of the violations. Without more, the presence of coal dust in the entries, and 

the possibility that a spark would be generated by the miner's cutting head, do not establish that 

an injury-causing event was reasonably likely to occur. 

The Commission and courts have observed that the opinion of an experienced MSHA 

inspector that a violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 

20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36 

(7th Cir. 1995). Phillips certainly qualifies as an experienced MSHA inspector. However, I find 

that the Secretary has failed to. carry her burden of proving that it was reasonably likely that an 

injury producing event would occur, as opposed to could occur. Accordingly, I find that the 

violations were not S&S. See Amax Coal Co., 18 FMSHRC 1355, 1358-59 (Aug. 1996) (to 

prove S&S nature of violation Secretary must prove that it is reasonably likely that an injury 

producing event will occur, not that one could occur). 

Unwarrantable Failure - Negligence 

InLopke Quarries, Inc., 23 FMSHRC 705, 711(July2001), the Commission reiterated 

the law applicable to determining whether a violation is the result of an unwarrantable failure: 

The unwarrantable failure terminology is taken from section 104(d) of the 

Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in 

31 FMSHRC 1203 
connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 

1987), the Commission determined that unwarrantable failure is aggravated 

conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable 

failure is characterized by such conduct as "reckless disregard," "intentional 

misconduct," "indifference," or a "serious lack of reasonable care." Id. at 

2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) 

("R&P"); see_p,/so Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 

1995)] (approving Commission's unwarrantable failure test). 

Whether conduct is "aggravated" in the context of an unwarrantable 

failure analysis is determined by looking at all the facts and circumstances of each 

case to see if any aggravating factors exist, such as the length of time that the 

violation has existed, the extent of the violative condition, whether the ope!ator 

has been placed on notice that greater efforts are necessary for compliance, the 

operator's efforts in abating the violative condition, whether the violation is 

obvious or poses a high degree of danger, and the operator's knowledge of the 

existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 

.(Mar. 2000) ... ; Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 

1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material 

. Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons .Coal Co., 16 FMSHRC 

192; 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261(Aug.1992); 

BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243.-:-44 (Aug. 1992); Quin/and 

Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and 

circumstances of each case must be examined to determine if an actor's conduct is 

aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 

353. Because supervisors are held to a high standard of care, another important 

factor supporting an unwarrantable failure determination is the involvement of a 

supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 

1998). 

The Citation was issued pursuant to section 104( d)( 1) of the Act, which requires that the 

violation be both S&S and the result of an unwarrantable failure. 30 U.S.C. § 814(d)(l). The 

violations alleged in the Citation and Order have been held not to have been S&S. Consequently, 

it is unnecessary to decide the unwarrantable failure issue. However, it is necessary to address 

the issue of Sidney's negligence, which is alleged to have been high. Because the S&S findings 

herein may, or may not, become final, the issue of unwarrantable failure will be addressed for the 

sake of judicial economy. 

The Secretary argues that the violations were the result of Sidney's unwarrantable failure 

and high negligence primarily because its agent, Thornbury, knowingly permitted the violations. 

Sec'y Br. at 7. Sidney contends that Thornbury did not knowingly permit the violations, because 

he discovered them shortly before Phillips arrived and instructed his miners to take corrective 

action. It also argues that the violations were not extensive, had existed for only a short period of 

31 FMSHRC 1204 
time, were promptly abated, and it had not been put on notice that greater compliance efforts 

were needed. The violations were abated promptly, and their gravity was not as serious as 

charged. They were reasonably extensive in that they involved both of the entries on the 

supersection in which mining was being done. They existed for only 20 minutes or so because of 

Phillips' arrival. I find that, had he not traveled to the faces, they would have existed for a 

considerably longer period of time, most likely until the entries had been driven up to the 

location of the next crosscut. Sidney had not been put on notice by MSHA that additional 

compliance efforts were needed. However, Thornbury had previously experienced problems 

with the hanging of curtains in the 006 section, which should have put Sidney on notice of an 

increased potential for violations in that area. Tr. 181. 

Judged by the traditional factors reiterated inLopke Quarries, whether Sidney's 

negligence rose to the level of unwarrantable failure would present a close question. However, 

as noted therein, the involvement of an agent of the operator is an important consideration. On 

the facts of this case, the issue turns on foreman Thornbury' s actions. 

Some of the pertinent facts are not in dispute. Thornbury testified that he traveled to the 

#3 and #6 faces, found mining being done in violation of the Ventilation Plan, and told the 

miners to get line curtain up. Tr. 164. His presence at the faces immediately preceded Phillips', 

because the min~rs were shut down a minute or two before Phillips arrived. Thornbury testified, 

that he did not know that Phillips was on the section, that he did not know that the Ventilation 

Plan was not being complied with until he arrived at the faces, and that he took immediate 

corrective action. Tr. 164. Phillips believed that Thornbury saw him as he came down the belt 

line, and hurried to the faces because he knew that the Ventilation Plan was not being complied 

with. The evidence supports Phillips' version of those events. 

When Phillips arrived at the #3 face, one of the miners preparing the line curtain said, 

"Too late, he's here." Phillips' testimony in that regard is consistent with his field notes, and is 

unrebutted.2 The statement strongly indicates that the miners were not only told to erect line 

curtain, but that an MSHA inspector's arrival was imminent. There is no evidence that anyone 

other than Thornbury went to _the faces and communicated with the men. Consequently, 

Thornbury must have been aware of Phillips' presence on the section, and his impending 

discovery of Sidney's noncompliance with the Ventilation Plan. While it is possible that the 

statement could have been made if Thornbury had simply passed on the fact that he knew an 

inspector was on the property, I find it more consistent with Thornbury' s having actual 

knowledge of Phillips' presence. Thornbury' s having seen Phillips approaching is also a 

somewhat more likely explanation for the timing of his and Phillips' visits to the faces. 3 

2 Thornbury testified that he did not hear the statement. Tr. 171. However, he was not 

in the area at the time, having left to warn the miners in the #6 entry. 

3 Thornbury testified that he traveled to the faces after completing his preshift 

examination, over an hour after he had been told that an inspector was on the property. 

31FMSHRC1205 
Phillips testified that Thornbury told him that he saw him go past the feeder and he tried 

to get up to the faces to tell the men to get their curtain up. Ti. 49. Thornbury denied making 

that statement. Tr. 168. However, the statement was recorded by Phillips in the notes that he 

made contemporaneously with the inspection and issuance of the Citation and Order. Tr. 48-49; 

Ex. G-3. I find that Thornbury made the statement, and that he saw Phillips approaching and 

hurried to the section faces because he knew that the crews were not complying with the 

Ventilation Plan. 

As noted above, supervisors, like foreman Thornbury, are agents of the operator and are 

held to a high standard of care. Thornbury's knowing toleration of the violations easily satisfies 

the Secretary's burden of proving that the operator's negligence was high, and that the violations 

were the result of its unwarrantable failure. 

The Appropriate Civil Penalties 

Sidney is a medium-sized operator, with a medium-sized controlling entity. The 

assessment data reflects that it had 271 violations over 136 inspection days during the applicable 

period, a relatively high incidence of violations. Sidney does not contend that payment of the 

proposed penalty will affect its ability to continue in business. The violations were abated within 

minutes. Phillips used a "worst case scenario" in determining that ten persons would be <iffected 

·, by the ·violations. Tr. 102. His reasoning was that, in the event of an explosion, the continuous 

miner·and shuttle car operators working in the subject entry would be killed immediately, and 

other personnel working on the section would become disoriented in the smoke and could 

eventually succumb to the conditions as their self-contained self-rescuers exhausted their 

capacity. However, he testified that he did not believe that an explosion would actually result in 

ten fatalities. Tr. 102. In the event of an explosion, it is reasonable to expect that miners in the 

immediate area would suffer fatal injuries. However, while others on the supersection might also 

be injured, it is unlikely that all ten would suffer an injury. I find that four miners were affected 

by each violation, two fatally, and two with injuries resulting in lost work days or restricted duty. 

Citation No. 6643560 is affirmed. However, the gravity of the violation was found to be 

less serious than alleged, including that it was not S&S. A civil penalty of $17,500.00 was 

proposed by the Secretary. The lowering of the level of gravity justifies a reduction in the 

proposed penalty. I impose a penalty in the amount of$10,000.00, upon consideration of the 

above and the factors enumerated in section 1 lO(i) of the Act. 

Order No. 6643561 is affirmed. However, the gravity of the violation was found to be 

less serious than alleged, including that it was not S&S. A civil penalty of $20,500.00 was 

proposed by the Secretary. The lowering of the level of gravity justifies a reduction in the 

proposed penalty. I impose a penalty in the amount of $10,000.00, upon consideration of the 

above and the factors enumerated in section l lO(i) of the Act. 

31 FMSHRC 1206 
ORDER 

Citation No. 6643560 and Order No. 6643561 are AFFIRMED, as modified, and 

Respondent is ORDERED to pay a civil penalty in the amount of $20,000.00, within 30 days of 

this decision. 

Distribution (Certified Mail): 

Ramonda C. Lyons, Esq., Max L. Corley, Esq., Sarah Ghiz Korwan, Esq., Dinsmore & Shohl, 

LLP, P.O. Box 11887, 900 Lee Street, Suite 600, Charleston, WV 25339 

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219-2456 

31FMSHRC1207 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 

TELEPHONE: 202-434-9964 / FAX: 202-434-9949 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

_ Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

October 8, 2009 

CNIL PENALTY PROCEEDINGS 

Docket No. SE 2007-264 

A.C. No. 01-014901-114900-01 

Docket No. SE 2007-271 

A.C. No. 01-01401-114900-02 

Mine: No. 7 Mine 

DECISION 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for the Petitioner; 

Guy W. Hensley, Esq., Jackson Kelly, PLLC, Brookwood, Alabama, for the 

Respondent. 

Before: Judge Weisberger 

Statement of the Case 

These cases are before me based upon Petitions for Assessment of Civil Penalty filed by 

the Secretary of Labor ("Secretary''), alleging violations by Jim Walter Resources, Inc. ("Jim 

Walter") of various mandatory safety standards set forth in Title 30, Code of Federal 

Regulations. 

Pursuant to notice, the cases were duly scheduled and heard in Birmingham, Alabama on 

June 10, 2009. Subsequent-to the hearing, each party filed a brief. Neither party filed a reply 

brief. 

I. Docket No. SE 2007-271 

A. Citation No. 7691427 

1. Findings of Fact 

On July 16, 2007, MSHA Inspector Harry Wilcox inspected Jim Walter's No. 7 Mine, an 

underground coal mine. In the course of his inspection, he examined the alternate escapeway 

located in the intake air entry. According to Wilcox, two parallel stoppings, constructed from 

solid concrete blocks, extended from the floor to the ceiling and laterally across the entry from 

31FMSHRC1208 
the right rib, looking inby, to the middle of the entry. A regulator was located within the concrete 

blocks, and extended from the middle of the entry to the left rib: According to Wilcox, the small 

size of the regulator opening as well as pressure created by the high volume of intake air flowing 

through the regulator towards the face prevented passage through the regulator. An airlock that 

extended from the right rib to the middle of the entry allowed passage in either direction through 

the approximately six foot gap between the two stoppings. 

A lifeline was provided in the entry for miners to use to escape in the event of diminished 

visibility caused by smoke resulting from a fire or explosion. The lifeline, which extended from 

the roof, was secured to the inby and outby sides of the airlock, but did not continue inside the 

airlock between the stoppings. Thus, when escaping outby in an emergency with diminished 

visibility, miners could escape in an outby direction by following the lifeline up to the inby 

airlock door. However, at that point it would be necessary to open the airlock door, and traverse 

the six foot distance inside the airlock to the outby door without the benefit of a lifeline. After 

opening the outby airlock door and re-entering the entry, it would be necessary to locate the 

lifeline in order to continue outby to escape. 

Wilcox issued a citation alleging a violation of 30 C.F.R. § 75.380(d)(7), which was 

modified two days later to allege a violation of 30 C.F.R. § 75.380(d)(7)(i), which requires, as 

pertinent, that each escapeway should be provided with a "continuous, ... lifeline ... that shall be-

(i) Installed and maintained throughout the entire length of each escapeway ... ;" (emphasis 

added). 

2. Discussion 

Jim Walter did not adduce any evidence contrary to the facts set forth above, nor did it 

impeach the inspector's testimony in these regards. 

It appears to be Jim Walter's position that the lifeline was in compliance with Section 

75.380(d)(7)(i). Jim Walter relies on the testimony of Ricky Parker, a safety supervisor, that 

miners travel the escapeway every ninety days, and that no one has had any problem negotiating 

the lifelines through the airlock. 

In addition, Jim Walter relies on an MSHA computer-generated document, RX-1, which 

the inspector identified as "Q and As" (Tr. 43.), which provides that "If doors cannot be avoided, 

the lifeline should be secured to the stopping on either side of the door." Jim Walter argues that 

it was in compliance with the cited standard, as the lifeline was secured to the stopping on either 

side of the door. However, there is not any indication that RX-1 was promulgated pursuant to 

notice and comment. 

Further, RX-1 is not consistent with the plain meaning of the regulation at issue, which 

requires that lifelines be, inter alia, "continuous." Webster's Third New International Dictionary 

(2002 ed.) ("Webster's") defines continuous as "characterized byuninterrupted extension in 

31 FMSHRC 1209 
space: stretching on without break or interruption." Inasmuch as the lifeline at issue did not 

continue through the airlock and there was a six foot break or interruption in the lifeline, I find 

that it was not "continuous" within the common meaning of that term. Accordingly, I find that 

the lifeline was not in compliance with Section 75.380(d)(7)(i). 1 

3. Penalty 

Parker testified, in essence, that Jim Walter secured the lifeline to stoppings on either side 

· of the airlock, in reliance on the "Q and As" (RX-1), "that was given out to us for compliance 

guidelines." (Tr. 52) I observed his demeanor, and find his testimony credible in this regard. I 

find that the level of Jim Walter's negligence was low. Taking into account all of the factors set 

. forth ih:Sectlcin l lO(i) of the Federal Mine Safety and Health Act:of 1977, 30 U.S.C § 820(i) · 

("Mine Act"), and placing most weight upon the low level of Jim Walter's negligence, I fmd that 

a penalty of $20.00 is appropriate for this violation. " 

B. Citation No. 7691428 

1. Finding of Fact and Discussion 

;On January 23, 2007, Wilcox inspected the main fan area on the surface of the Jim Walter 

No. 7 Mii1e; A temporary vibration sensor cable was in use to monitor the vibration of the fan 

1 Jim Walter argues, based on the following testimony of Parker, that the installation of a 

continuous lifeline through the airlock "presents several problems that threaten safety by 

interfering with the integrity of the lifeline." Jim Walter Resource's Proposed Findings of Fact 

and Conclusions of Law, at 4 ("Jim Walter's Brief'): 

(Tr. 56.) 

Q. Are there any problems with running a lifeline through an 

airlock door, as Mr. Wilcox described previously? 

A. Yes, sir. We're having problems now with the doors 

constantly cutting the lifeline in two, damaging the lifeline. 

We're having to replace the lifeline continuously, due to the 

abrasion of the door shutting against it and the vibration 

due to the enom1ous amount of air currents coursing 

through that ventilation control. 

Thus, Jim Walter's argument in defense is essentially based upon a diminution of safety 

which, according to well-established Commission caselaw, has been held to not constitute a 

defense in an enforcement proceeding unless the Secretary has first entered a finding of such 

diminution at a modification proceeding. See Clinchfield Coal Co., 11FMSHRC2120, 2130 

(Nov. 1989), citing Sewell Coal Co., 5 FMSHRC 2026 (Dec. 1983), and Penn Allegh Coal Co., 3 

FMSHRC 1392 (June 1981). 

31 FMSHRC 1210 
shaft to ensure that it would not cause the shaft to fail. The cable entered the metal compartment 

for the sensor control through a door. It did not enter through ariy fitting; the door was closed 

against the cable. 

Wilcox issued Citation No. 7691428, alleging a violation of30 C.F.R. § 77.505, which 

requires as follows: "Cables shall enter metal frames of motors, splice boxes, and electric 

compartments only through proper fittings. When insulated wires, other than cables, pass 

through metal frames, the holes shall be substantially bushed with insulated bushings." 

Jim Walter urges that the citation be dismissed, and cites Wilcox's testimony that the 

cable had been placed inside the metal compartment only on a temporary basis, that the current 

· on the cable "would be milliamps," and that he did not find any cable damage. (Tr. 75.) 

Jim Walter argues, in essence, that under these circumstances, Section 77.505 does not apply. 

However, the mandate of Section 77 .505 is clear and unequivocal in requiring that cables 

enter metal frames of electrical components "only through proper fittings." The language of 

Section 77.505 does not provide for any exceptions. Thus, to rule in favor of Jim Walter would 

result in the amendment of Section 77.505, which is manifestly beyond the powers of a 

Commission Judge. 

··. 2. Conclusion 

I find that the record establishes that the cable entered an electric compartment through its 

door and not "through proper fittings." Thus, I find that it has been established that Jim Walter 

violated Section 77.505. 

Considering all the factors set forth in Section 11 O(i) of the Mine Act, I find that a penalty 

of $60.00 is appropriate for this violation. 

C. Citation No. 7691429 

The parties stipulated that a violation of 30 C.F .R. § 77 .504 occured as alleged in Citation 

No. 7691429, and that $60.00 is an appropriate penalty for this citation. Secretary's Brief and 

Argument, at 1, and Jim Walter's Brief, at 2. 

II. Docket No. SE 2007-264 

A. Citation No. 7690414 

1. Findings of Fact 

On September 29, 2006, MSHA inspector Russell Weekly inspected Jim Walter's truck 

shop. He indicated that four overhead lights in the left comer of the ceiling on the east side of 

31 FMSHRC 1211 
the shop were burnt out. According to Weekly, "[t]he area that these lights would have 

illuminated was not very adequately lit, even at the time of day the citation was issued, which 

was 0800." (Tr. 154.) 

Weekly opined that a person walking to and from supply cabinets located on the east side 

of the shop could trip over an approximately 3/4 of an inch thick steel plate that was located 

under the cabinets. He asserted that persons working the evening or night shifts "could very 

possibly'' trip over the.steel plate since the area would be dark without the benefit of sunlight. 

(Tr. 162.) 

Weekly issued a citation alleging a violation of 30 C.F.R. § 77.207, which provides that 

''[i]llumination sufficient to provide safe working conditions shall be provided in and on all . · · . 

surface structures, ... and working areas." 

According to Parker, the floor of the structure at issue was sixty to seventy feet long, and 

thirty to forty feet wide. He indicated that a garage door ten to twelve feet wide and 

approximately fifteen feet high was located on the east side of the shop and was normally kept 

open. 

Parker testified that opaque fiberglass skylights extended around the perimeter of the . 

walls of the building. The skylights, which were approximately six feet high, were located "from 

halfway to three quarters of the [50 foot high] wall." (Tr. 235.) 

According to Parker, there were four lights in the ceiling, in addition to the four cited by 

Weekly. Also, there were a total of seven wall lights located halfway up the walls, and 

distributed among the four walls. Parker testified that there were two cap lights in the shop, and 

"we have" tripod and hanging lights although he did not see them in the shop. (Tr. 244.) 

Parker, who was the inspector during the latter's inspection, testified that "We didn't 

have a problem seeing anything that we needed to see at the time." (Tr. 245.) He opined that the 

illumination was sufficient..· 

2. Discussion 

I take cognizance of the inspector's opinion that the illumination in the shop was not 

sufficient to provide safe working conditions due to the absence of four overhead lights. 

However, the weight to be accorded this opinion is diluted by considering the presence of opaque 

sky lights covering a significant portion of the walls surrounding the building. Further, I note the 

presence of additional ceiling and wall lights, and the availability of cap lights. I, thus, find the 

record does not establish that, during the daylight shift, illumination was insufficient. 

Further, since the inspection was only during daylight, it is mere conjecture that the 

illumination would not have been sufficient during the evening and night shifts. There was not 

31FMSHRC1212 
any evidence adduced regarding the amount of illumination shed by all the operative lights 

located on the walls and ceiling. Moreover, I note the presence of additional portable lights, as 

well as the availability of cap lights. Also, I note that Weekly did not indicate the spatial 

relationship between the inoperative overhead lights, the working areas, and the location of the 

supply cabinets where the potential tripping hazard of a steel plate was located. 

For all these reasons, I find that the Secretary has failed to adduce sufficient evidence to 

establish, by a preponderance of evidence, that due to the lack of four ceiling lights, the 

illumination remaining was not sufficient to provide safe working conditions. For these reasons, 

I find that it has not been established that Jim Walter violated Section 77.207. Accordingly, 

Citation No. 7690414 is Dismissed. 

B. Citation 7690415 

1. The Secretary's Case 

Weekly testified that there were not any weatherproof covers over two 110-volt wall 

outlets that were located inside the shop. He indicated that a Jim Walter employee told him that 

the area is sprayed down and washed out daily. He opined that if water was inadvertently 

sprayed into the outlets in question, which were located four feet off the floor, the person doing· 

the• spraying could suffer an electrical shock due to a short circuit. Weekly issued a citation 

alleging a violation of 30 C.F.R. § 77.516. 

Section 77.516 provides, as pertinent, that "all wiring and electrical equipment installed 

after June 30, 1971, shall meet the requirements of the national electric code in effect at the time 

of the installation." In support of the violation, the Secretary proffered a 1968 edition of the 

National Electric Code ("GX-10"). Jim Walter objected to the admissibilityofGX-10, and after 

listening to arguments, the objection was sustained.2 

2

The ruling sustaining the objection is set forth as follows, except for corrections of 

matters not of a substantive nature: 

(Tr. 207-208.) 

Section 77 .516 imposes a duty on an operator to meet the 

requirements of the National Electric Code in effect at the time of 

installation. 

There isn't any evidence in the record of the time of the 

installation of the shop, or any of the cited items. Therefore, the 

record is inadequate to establish that the 1968 edition, GXl 0, was the 

edition that was applicable on the date in question, i.e., the code that 

was "in effect" at the time of installation. Since it has not been 

established that GX-10 is relevant, I find it is inadmissible. 

31FMSHRC1213 
After the Secretary rested, Jim Walter made a motion for summary decision which was 

granted. The decision granting Jim Walter's motion is set forth below, with the exception of 

non-substantive changes, and the addition of matters that were inadvertently omitted. 

2. Bench Decision 

The Secretary_ has the burden of establishing a violation, which entails establishing all 

elements of a violation. Section 7 5 .516 requires an operator to comply with the requirements of the 

National Electric Code "in effect at the time of the installation." 

The Secretary has not presented any evidence withregard to the time of the installation, either 

of the structure that is at issue or specifically with regard to the wiring and installation of the outlets 

at issue. Thus, the Secretary has failed to establish which edition of the code was in effect at the time 

of the installation. · 

The Secretary proferred a copy of five pages from a 1968 edition of the National Electric 

Code (GX-10). 3 Jim Walter objected to its admissibility. After each party argued the merits of the 

objection, the objection was sustained. As such, GX-10 is not part of the record. 

Thus, ·since the Secretary did not proffer the Code that was "in effect at the time of 

installation" (Section 75.516), it is clear that the Secretary has not established a violation of Section 

75.516. 

3

The Secretary cites GX-10, page four, paragraph 410-54, which requires that "[a] 

receptacle installed in damp or wet locations to be of the waterproof type." GX-10, p. 3, defines 

"wet location" as follows: "A location subject to saturation with water or other liquids; such as, 

locations exposed to weather, washrooms in garages and like locations." 

There was not any evidence presented that the outlets at the location cited were subject to 

saturation. The inspector indicated that Mark Talbert, the truck shop foreman, stated that the 

floor area was washed out. The inspector opined that an uncovered outlet located on the inside 

wall of the structure four feet off the ground might, in the process of washing down the floor, be 

inadvertently hit by the water, causing possible damages. Such a situation is far short of the 

requirement of being subject to saturation. 

There is not any evidence that the location of the outlets were subject to saturation of 

water or other liquids. Further, the location cited is not similar to those that are given as 

examples under the definition of wet location on page three of GX-10, such as the locations 

exposed to weather, washrooms in garages, and like locations. 

31 FMSHRC 1214 
For these reasons, the Jim Walter's motion is granted, and Citation No. 7690415 shall be 

Dismissed. 

C. Citation No. 7690728 

1. Findings of Fact 

On November T, 2006, MSHA inspector Billy Johnson inspected Jim Walter's 

underground mining operation. He indicated that a JOY 12-27 continuous miner ("left side 

miner") was not being operated. He noticed that it did not have a rock bar (pry bar). He 

indicated that when he cited it, it was located in the No. 2 entry, and "I think [it was] in the last 

open crosscut." '(Tr. 284.) Johnson opined that although the miner was not being operated when 

it was cited, if it was intended for the miner to be used, then a rock bar is needed. 

Johnson indicated that in the operation of the continuous miner, draw rock could be 

encountered in the roof which would require the rock to be pulled so it would not fall and injure 

miners. 

According to Johnson, he told Joe Martin, a union safety man who was with him, and 

Red Morgan, a manager, to show him ''~bar" ifthere was one in the face area, and they both said 

that bars were not kept in the face area; they were kept on the equipment. (Tr. 287.) 

Johnson issued Citation No. 7600728 alleging a violation of Section 75.21l(d), which, as 

pertinent, provides that a "a bar for talcing down loose material shall be available in the working 

place or on all face equipment except haulage equipment." 

Parker indicated that he spoke to some persons who had first-hand knowledge of the 

operation in the area in question. These persons told Parker that MSHA allowed the practice of 

removing the bar from a miner that had backed out of the face and parked, and placing it on the 

miner being operated on the other side of the section. 

2. Discussion 

By its clear terms, Section 7 5 .211 ( d) provides that, in essence, an operator is in 

compliance if a bar is "available in the working place or on all face equipment." Thus, since the 

clear wording of Section 75.21l(d) sets forth its obligations in the alternative, an operator is in 

compliance if either a bar is available in the working place, or is on all face equipment. Thus, to 

establish a violation, the Secretary must establish that a bar was neither available in the working 

place, nor on all face equipment. For the reasons that follow, I find that the Secretary has not met 

this burden. 

a. "[A]vailable in the working place" 

31FMSHRC1215 
"Available" is defined in Webster's, as pertinent, as follows: "(4): that is accessible or 

may be obtained." Accessible, as pertinent, is defined in Webster's as pertinent, as follows "(4): 

capable of being used." 

Section 75.21 l(d) does not define the phrase "working place." However, 30 C.F.R. § 

7 5 .2 defines ''working place" as "the area of a coal mine inby the last open cross-cut." 

When Johnson issued the citation at issue, a bar was not physically located in the working 

place. However, as testified to by Johnson on cross-examination, a bar was "retrieved ... within 

five minutes" of the time the citation was written. {Tr. 293.) (emphasis added) It is significant to 

note that the citation was issued pursuant to the examination of the left side miner, which was 

located in the last open crosscut, i.e.," ~~that open passageway connecting entries closest to the 

working face." Jim Walter Resources, Inc., 11FMSHRC21, 26 (Jan. 1989). (emphasis added) I 

also note that the working place" was inby the last open crosscut. Jan. 30 C.F.R. §75.211. 

Accordingly, since (1) it took only five minutes to "retrieve" a bar allowing Johnson to terminate 

the citation, and (2) Johnson was apparently at the location of the cited miner in the last open 

crosscut, it may be concluded that, when cited, it would have taken approximately five minutes 

to bring a bar to the working place, i.e., inby the last open crosscut. 

Accordingly, I find that the bar was "available" in the "working place" within the 

common meaning of the former term. To rule otherwise would· result in the amendment of , 

Section 75.21 l(d) by substituting the word "located" for the word "available"and deleting the 

latter word. Clearly this is a function beyond the scope of the powers of a Commission Judge. 

3. Conclusion 

For all the above reasons, I find that Jim Walter was in compliance with the first phrase 

of Section 75.21l(d), i.e., that a bar be "available in the working place." Thus, since the clear 

wording of Section 75.211( d), requires that a bar be available at the working place "or" an all 

face equipment, I find that Jim Walter satisfied one of the alternate mandates of Section 

75.21 l(d). Therefore Citation No. 7690728 shall be Dismissed. 

D. Citation No. 7689496 

1. Findings of Fact 

On January 2, 2006, MSHA inspector Edward Nicholson inspected the track entry while 

traveling the entry in a personnel carrier that rode on tracks. He observed airborne dust while 

traveling in and out of the entry. He indicated that there was sufficient dust to hinder visibility 

on the track. 

Nicholson issued a citation alleging that Jim Walter was not in compliance with its 

ventilation and dust control plan ("Plan"), and as such violated 30 C.F.R. § 75.370(a)(l). 

31FMSHRC1216 
Specifically, he indicated that the basis for the citation was the non-compliance with "page 3" of 

paragraph E of the Plan. According to Nicholson, as a consequence of the cited conditions, a 

miner could develop respiratory diseases. 

Parker indicated that he travels the area frequently and that "it's virtually impossible" to 

keep all dust out of intake air: 

(Tr. 335-36.) 

due to . ~the large amount of velocity of air we have coursed down 

through that entry especially, if you have - numerous 

personnel carriers that can be traveling in this one entry of the track, 

where we have deposited rock dust on the roof and the ribs, it also 

goes on the floor. · ' 

The vibration of the machine traveling the metal tracks, the 

turbulence caused by all these pieces of equipment, can cause the 

rock dust to fall from the ribs or roof and even be picked up from the 

sides of the track because of this, in conjunction with the dust that can 

be on the equipment itself. 

Parker traveled the cited entry with the inspector. He indicated that the cited conditions 

"[did not] constitute dust under the law." He explained his opinion as follows: 

(Tr. 337-38.) 

[D]ue to the minute amount that was present. ... [and] due 

to the amount of velocity mass in the air, the dust is there for a few 

minutes; and then it's gone. It's moved rather quickly away. 

Q. Are you saying that any dust that's airborne is evacuated from the 

area by the mine? 

A. Yes, sir. It doesn't linger in the area. 

2. Discussion 

30 C.F.R. § 75.370(a)(l), as pertinent, provides as follows: "The operator shall develop 

and follow a ventilation plan .. . The plan shall be designed to control methane and respirable 

dust and shall be suitable to the conditions and mining system at the mine." (emphasis added) 

The ventilation plan, as pertinent, provides as follows: 

* * * 

31 FMSHRC 1217 
(GX 12.) 

E. BELT AND TRACK HAULAGE SYSTEM 

The belt and track haulage system will follow a dust control program. 

The dust control program is one or any combination of the following 

items: 

1. 

2. 

3. 

Removing accumulations of loose, dry coal 

Rockdusting 

Wetting with water or other wetting agent. 

The clear language of Section 75.370(a)(l), as pertinent, requires that an operator follow 

a ventilation plan which shall be designed to control dust. fu other words, the plan shall be 

followed to control dust. These requirements are unequivocal, ·and do ·not provide for any 

exemption from compliance, as urged by Jim Walter, based upon an impossibility to keep all of 

the dust out of the intake air due to its velocity. It is significant that Parker did not~specifically 

impeach or contradict Nicholson's testimony that, when cited, dust was observed in the air which 

impaired visibility. Further, I observed the witnesses' demeanors, and I find Nicholson's 

testimony regarding the presence of airborne dust to be credible. I find that at the time cited, due 

to the presence of dust in the air that impaired visibility, Jim Walter was not "following a dust 

control program." Accordingly, I find that Jim Walter violated Section 75.370(a)(l). 

According to Nicholson, Jim Walter did have a program for keeping the track wet in the 

cited area. I also note Parker's testimony that if an area is deemed necessary for wetting or rock 

dusting, he "would get in touch with the proper management person to get that action taken." (Tr. 

334.) Also, based on Parker's testimony that was not impeached or contradicted, I take 

cognizance of the difficulty to keep all dust out of the air due to the velocity of air in the entry, 

and the operation of carriers on the track causing the production of dust. I thus find the level of 

Jim Walter's negligence to be significantly mitigated. Considering this finding, as well as the 

other factors set forth in Section l lO(i) of the Mine Act, I find that a penalty of $20.00 is 

appropriate. 

ORDER 

It is Ordered that the following citations be Dismissed: 7690414, 6790415, and 

7690728. It is further Ordered that, within 30 days of this decision, Jim Walter shall pay a total 

civil penalty of $120 for the violations found herein. 

&sber~ Administrative Law Judge 

31FMSHRC1218 
Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

Guy W. Hensley, Esq., Jim Walters Resources, fuc., P.O. Box 133, Brookwood, AL 35444 

/Ip 

31FMSHRC1219 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-3577 /F P\X 303-844-5268 

October 16, 2009 

MOUNTAIN COAL COMPANY, LLC, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MOUNTAIN COAL COMPANY, LLC, 

Respondent 

DECISION 

CONTEST PROCEEDING 

Docket No. WEST 2007-409-R 

Citation No. 7291353; 3/26/2007 

West Elk Mine 

Mine Id. 05-03672 

CNIL PENALTY PROCEEDING 

Docket No. WEST 2008-129 

A.C. No. 05-03672-128598 

West Elk Mine 

Appearances: Laura E. Beverage, Esq., and Dana M. Svendsen, Esq., Jackson 

Kelly PLLC, Denver, Colorado, for Mountain Coal Company, LLC; 

Mary Forrest-Doyle, Esq., and Tracy B. Agyemang, Esq., Office of 

the Solicitor, U.S. Department of Labor, Arlington, Virginia, 

for the Secretary of Labor. 

Before: Judge Manning 

These cases are before me on a notice of contest filed by Mountain Coal Company, LLC 

("Mountain Coal") and a petition for assessment of civil penalty filed by the Secretary of Labor, 

acting through the Mine Safety and Health Administration ("MSHA") pursuant to sections 105 

and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the 

"Mine Act"). An evidentiary hearing was held in Denver, Colorado. The parties introduced 

testimony and documentary evidence and filed post-hearing briefs. For the reasons set forth 

below, I find that the Secretary established a violation of the safety standard. 

Mountain Coal operates the West Elk Mine, a large underground coal mine in Gunnison 

County, Colorado. The mine extracts coal in panels using a longwall system. As discussed 

31FMSHRC1220 
below, the parties settled several of the citations prior to the hearing, so only Citation No. 

7291353 was at issue at the hearing. 

I. BACKGROUND 

A. The Citation and Stipulations. 

On March 26, 1007, Inspector Brad Allen issued Citation No. 7291353 under section 

104(a) of the Mine Act, alleging a violation of30 C.F.R. § 75.l 725(a), in part, as follows: 

The mine operator failed to maintain mobile and stationary 

machinery and equipment in safe operating condition and 

machinery and equipment that was in unsafe condition was not 

removed from service immediately. Numerous hydraulic hoses on · 

the support shields in MMU 010-0 at 20 headgate had rubber 

jacketing tom back and the wire braid shields were damaged with 

multiple broken strands on each hose. Both high pressure feed 

hoses and return line hoses were damaged along the rear walkway 

of the shields. Hose sizes ranged from #6 to #16 in size and 

hydraulic pressure was as high as 5000 pounds per square inch. 

Thirteen miners were working in the longwall area during this shift 

and the longwall was operating shearing. coal on the previous shift . 

. . . Ruptured or broken high pressure hydraulic hoses can cause 

fluid injection, hose whip injuries, or compromise the operation of 

the support shields .... 

The inspector determined than an injury was reasonably likely and that a fatal accident 

could occur. He determined that the violation was of a significant and substantial nature 

("S&S") and that the company's negligence was moderate. Section 75.l 725(a) provides that 

"[ m ]obile and stationary machinery and equipment shall be maintained in safe operating 

condition and machinery or equipment in unsafe condition shall be removed from service 

immediately." The Secretary proposes a penalty of $5,300.00 for this citation. 

The parties filed joint stipulations, in which they agreed that the mine is subject to the 

Mine Act and that the Commission has jurisdiction to hear the case. Other facts were also 

stipulated to, including the following: 

6. The 13 cited hoses are included within the meaning of 

the term "equipment" as used in§ 75.1725(a). 

7. Between November 2006 and the time the [citation] was 

issued in March 2007, Mountain Coal was operating one longwall 

section, Panel 20, which was approximately 1,000 feet wide. 

31 FMSHRC 1221 
12. Typically, a longwall crew at West Elk consisted of 

five miners and one supervisor, including a hea:dgate operator, a 

headgate shearer operator, a tailgate shearer operator, two shield 

movers and a production supervisor. In addition, there were 

usually two mechanics and a maintenance supervisor assigned to 

each longwall production shift. 

13. At the time of issuance of the [citation], Daniel Kunde 

was employed in the position of Longwall Maintenance 

Coordinator at ... West Elk. At that time, [four other employees] 

were working in the position of Longwall Maintenance Supervisor 

at ... West Elk. Daniel Kunde has 30 years of experience working 

in underground Mines. He has been employed at the West Elk 

Mine for over 19 years, all of the time spent on the longwall. In his' 

position as the Longwall Maintenance Coordinator, he oversees 

daily maintenance and setups on the longwall, and is responsible 

for the direction of the front line Longwall Maintenance 

Supervisors. He has been a Longwall Maintenance Coordinator for 

five years .... 

14. Miners typically travel along the longwall by walking 

in the "front walkway," between the panline and the leg cylinders 

of the shields. 

15. Miners typically do not enter the ''back walkway," 

except to perform inspections, repair, replace a hose, or ifthe front 

walkway is obstructed given the confined dimensions of the area. 

16. None of the 13 cited hoses were located in the front 

walkway. 

17. The 13 cited hoses were all inner-shield hoses, rather 

than shield-to-shield. 

18. Failure of any of the 13 cited hoses would not result in 

shield failure. 

19. The hydraulic fluid used in 12 of the cited hoses was 

comprised of approximately 95% water and 5% emulsion fluid. 

20. The hose locations depicted in red in Respondent's ... 

Exhibit 17 are accurate. 

31 FMSHRC 1222 
II. SUMMARY OF THE EVIDENCE 

This case raises technical issues concerning the safety of hydraulic hoses. As a 

consequence, I have included in this decision a detailed summary of the evidence presented. 

A. Brad Allen 

fuspector Brad Allen testified that he worked in the mining industry for 13 years prior to 

joining MSHA. (Tr. 9). Allen spent two of those years working on a longwall as a headgate 

operator, shield puller, longwall mover, and fill-in foreman. (Tr. 10-11). He has never worked 

on a longwall with a front and back walkway like the one at West Elk. (Tr. 67). 

Allen testified that on March 26, 2007, he and two other MSHA inspectors were at West 

Elk to conduct a permissibility inspection. (Tr. 14, 49). The three MSHA inspectors were 

accompanied by three Mountain Coal employees, including Dan Kunde. (Tr. 14-15). During the 

inspection Allen noted that numerous hydraulic hoses on the longwall shields had tom and 

deteriorated outer jackets and broken wire braiding. (Tr. 15). Allen inspected the hoses from the 

front and back walkways. (Tr. 272). No deck plates were removed during the inspection and at 

no time did Allen climb down to look at the underside of the hoses. (Tr. 272, 27 4). Allen issued 

Citation Number 7291353 under section 75.1725(a) for the unsafe operating condition of 

;multiple hoses. 1 (Tr. 15, 26). All of the cited hoses were located in the back walkway. (Tr. 45). 

None of the hoses were cited for deficiencies with their fittings. (Tr. 61). 

Allen testified that he determines whether a hose is in a safe operating condition by 

looking at the manufacturer's recommendations for that specific hose, the overall physical 

appearance of the hose, whether there are exposed or broken wire strands, and the condition of 

the fittings. (Tr. 27-28, 62). Allen testified that MSHA puts "a lot of stock in manufacturer 

recommendations," but he could not remember the manufacturer of these particular hoses. (Tr. 

27, 60). Additionally, he testified that manufacturers generally provide conservative product 

recommendations in order to protect the people working around the equipment, as well as to 

protect themselves from litigation. (Tr. 71-72). 

Allen testified that, when examining a hose, he first looks for obvious external damage by 

performing a quick visual inspection. (Tr. 18-19). If he observes damage to the outer jacket of 

the hose, then he clears any debris from the damaged area to determine if the wire braiding under 

the outer jacket has been damaged. (Tr. 21). He looks for broken wire strands by running the 

flat edge of a screwdriver blade along the strands. (Tr. 21). If there are broken wire strands then 

those strands will move as the screwdriver passes over them. (Tr. 21). During his inspection, 

each cited hose had at least one broken wire strand, in addition to a damaged outer jacket. (Tr. 

18-26). Allen believes that the outer jackets appeared to have been "tom" as opposed to "rubbed 

1 At the time of the citation, Allen mistakenly believed that if a hose were to fail, shield failure 

would be a possibility. He later determined that this was not likely given the presence of check 

valves that prevent the shield from collapsing ifthere is a hose failure. (Tr. 53) 

31 FMSHRC 1223 
through." (Tr. 73). If there are broken wire strands, then the hose's ability to contain the 

hydraulic fluid has been compromised. (Tr. 28). A violation exists ifthere is one broken wire 

strand on any hose. (Tr. 43, 49-50). 

Allen testified that a hose failure could result in hydraulic injection or whipping hose 

injuries to the miners on the longwall. (Tr. 28-29; Ex. G-4). Falling roof rock, corrosive mine 

water, the moving of Jongwall components in close proximity to the hoses, and cutting and 

welding around the hoses could all exacerbate the risk of hose failure; however, Allen could not 

say whether these conditions exist at West Elk. (Tr. 30-31, 50, 67-68). Allen testified that, while 

he did not know the actual service pressures of the hoses, a hydraulic fluid injection injury could 

occur at a pressure of 100 psi, but the severity of the injury may be less at lower pressures or if 

the stream has been deflected off of another surface before hitting a miner. (Tr. 41-42,45, 63- · 

65). Hydraulic fluid could spray from the hoses in the back walkway to the front walkway. (Tr. 

45, 76). Additionally, it is possible for a miner to be on the front walkway of an inactive shield 

and be in the direct line of sight of pressurized hoses on an activated adjacent shield that is being 

advanced. (Tr. 269-270). A miner could be in that position ifhe was using the controls on the 

inactive adjacent shield to advance the activated shield. (Tr. 271, 275-277). Allen could not say 

if this is the practice used- at West Elk, but he did state that he had seen people making 

adjustments from adjacent shields, although he could not recall how often he had seen it. (Tr. 

275-278). : 

Allen acknowledged that the West Elk miners do utilize personal protective equipment, 

such as Airstream helmets with face shields, rain suits, gloves, and safety glasses. (Tr. 68-70, 74-

75, 78-79). However, he noted that not all of the miners wear all of this equipment, and some of 

the equipment, such as cotton backed gloves and rain suits, would probably not be adequate to 

protect against a hydraulic fluid injection injury. (Tr. 68-70, 74-75, 78-79). 

Allen found that the violation involved a moderate degree of negligence on the part of 

Mountain Coal. (Tr. 33). Allen determined that 13 people had the potential to be injured, but he 

could not recall exactly how he arrived at that number. (Tr. 71-75). He found that an injury was 

"reasonably likely'' to occuF given the hoses' location in the back walkway, and the location of 

the damage on the hoses. (Tr. 46-47). Allen testified that the MSHA website provides guidance 

materials and links to outside materials that discuss hose safety practices. (Tr. 36-37; Ex. G-5). 

Allen testified that his personal notes from the day of the citation indicate a conversation with 

Kunde, during which Kunde stated that the operator had not done a very good job with the hoses 

and agreed with the violation. (Tr. 41; Ex. G-2). 

B. James Angel 

Jam es Angel is a mechanical engineer in the mechanical engineering safety division of 

MSHA in Triadelphia, West Virginia. (Tr. 80). He has a bachelor's degree in mechanical 

engineering and has worked for MSHA for 26 years. (Tr. 80; Ex. G-9). He spends the majority 

of his time investigating accidents and providing technical assistance to inspectors and mine 

31 FMSHRC 1224 
operators. (Tr. 80-81). Angel is an active member of multiple professional organizations and is 

currently involved in setting safety standards for personal protection on machinery, fire 

protection standards for earth moving equipment, tire out-of-service guidelines, and tire fire 

handling guidelines. (Tr. 81-82). 

Angel testified that his experience with hydraulic hoses is mainly in the areas of fire 

protection, and abrasion and failure of hoses on diesel-powered equipment. (Tr. 82). He has 

been involved in the approval of multiple regulations and rules utilized by MSHA. (Tr. 81 ). He 

has never been directly involved in investigating a hydraulic hose failure, but he has been 

indirectly involved with an investigation of a whipping hose injury. (Tr. 108-109). 

Angel 0prepared a report on the hydraulic hoses. (Tr.·· 84; Ex~ G-10). He did not see the 

actual hoses until after the report was prepared. (Tr. 96). He prepared the report using 

manufacturer literature, the cited safety standard, the citation, MSHA materials, and photographs 

of the hoses. (Tr. 81, 84-85, 126-127). Based on his analysis of these materials, Angel testified 

that once the structural component of the hoses, i.e., the wire braiding, has been compromised, 

the hoses are no longer fit for use and present a risk of injury. (Tr. 86). Angel described the 

hoses as all having exposed wire braiding, all with at least one broken wire strand, and some with 

areas of corrosion. (Tr. 97-101). Once the wire braiding is exposed it will start to deteriorate and 

eventually lead to hose failure; however, there is no way to tell how long it would take for a hose 

to fail. (Tr. 86, 129). Because hoses are "consumable items" they should be replaced when the 

strUctural integrity has been compromised. (Tr. 101 ). Additionally, Angel testified that one hose 

had a damaged ferrule, which could cause the hose to come loose while under pressure and whip 

around. (Tr. 98). A ferrule is the metal fitting at the ends of each hose. 

At the time of his report, based on the information that he had, Angel believed that 

abrasion had caused the damage to the hoses. (Ex. G-10). Prior to the hearing, after viewing the 

hoses in person, he concluded that many of the hoses had actually been damaged by exposure to 

high temperatures.2 (Tr. 96-97). Angel testified that this kind of damage could have been 

caused by exposure to a fire or oxy-acetylene cutting or welding, although he was not aware of 

either occurrence at West Elk. (Tr. 98, 111-112). The report did not include any analysis 

regarding the anticipated direction that the fluid would be ejected if a hose were to fail. (Tr. 

147). Angel stated that all of the layers of wire braiding reinforcement would have to fail for the 

hose to fail. (Tr. 130). The only damage he viewed was to the outermost layer of wire braiding. 

(Tr. 126). If the rubber separating the layers of wire braiding remains intact, then, barring heat 

damage, you would not expect water or other corrosive materials to affect the inner levels of wire 

braiding. (Tr. 159, 161-162). Heat damage can penetrate into a hose and affect the strength of 

all layers of wire braiding, but Angel could not tell from viewing the hoses whether the inner 

layers of braiding had been affected. (Tr. 131-132). There is no field test for checking interior 

damage to a hose. (Tr. 157). 

2 Angel testified that the hose with the damaged ferrule was the only hose that presented anything 

more than a minimal risk of whipping hose injury. (Tr. 150). 

31FMSHRC1225 
Angel testified that hose failure can cause injuries such as fluid injection, fluid in the 

eyes, fluid on walking surfaces causing slippery conditions and leading to falls, and a minimal 

risk of whipping hose injuries. (Tr. 86-87). Fluid injection injuries can occur at pressures much 

less than what the cited hoses were operating at, but, to be injured, the individual must be within 

inches of the hose. (Tr. 145-147). Cloth gloves, leather gloves, and PVC rain suits do not 

provide adequate protection against fluid injection injuries, and safety glasses cannot totally 

prevent hydraulic flui_d from getting into a miner's eyes. (Tr. 102-104). Additionally, he was not 

aware of any MSHA fatalities from fluid injection, or written materials regarding specific injuries 

that resulted from hoses that were in a similar condition to those at issue. (Tr. 119-120). 

Angel testified that the testing conducted by Olof Jacobson, Mountain Coal's expert . 

witness, call' only determine if that specific hose would have failed under the test conditions. (Tr. 

92-93). Pressure ratings and cycling impulses are internal factors that affect the strength of a 

hose. (Tr. 156). The actual hoses were not rendered unsafe by the pressures they were subjected · 

to, but rather by external damage and environmental conditions that the hoses operated in. (Tr. 

93-94). Outside factors that can affect the strength of a hose are addressed by the outer jacket or 

additional covers that make the hose more resistant to abuse. (Tr. 156). Jacobson's tests did not 

take into account any of the environmental factors that were present at the mine. (Tr. 93-94) . 

. Angel also testified that while manufacturers do vary to some degree, they are 

-_ "surprisingly uniform" in their recommendation that hoses be taken out of service once the-wire 

braiding is exposed. (Tr. 107). Angel believes that manufacturers recommend that hoses be 

removed from service when the outer layer of wire braiding has been exposed because it is 

difficult to determine all of the factors that can affect a hose. (Tr. 157). Angel maintains that a 

prudent operator would follow these recommendations. (Tr. 122). A broken strand is 

confirmation that the structural integrity of the hose has been compromised. (Tr. 124). 

Angel testified that "safety factors" and "percentage of service ratings" relied upon by 

Mr. Jacobson are irrelevant once a hose has been damaged to the point that the safety guidelines 

issued by hose manufacturers suggest that the hose be taken out of service. (Tr. 106, 136, 144). 

Safety factors are intended to protect against unknown factors that the manufacturer cannot 

predict, rather than known factors like visible damage to the outer jacket and wire braiding, as is 

the case here. (Tr. 105-106). 

C. DanKunde 

Dan Kunde, who has worked in longwall maintenance at the West Elk mine for 19 years, 

has been the maintenance longwall coordinator since 2005 and is in charge of purchasing 

equipment, supervising maintenance personnel, and looking after the general maintenance of the 

longwall system. (Tr. 165-66). Kunde testified that he works with hydraulic hoses on a daily 

basis. (Tr. 167). 

31FMSHRC1226 
The hoses on the longwall are examined on a weekly and monthly basis, in addition to 

being examined on an ongoing basis by the production crews. (Tr. 184-185). The deck plates 

that the hoses pass under are situated such that you can see underneath the plates on one edge. 

(Tr. 192). Most of the hoses in the back walkway can be viewed and examined from the front 

walkway. (Tr. 201 ). It is Mountain Coal's policy that no one may be on a shield while it is 

activated or being moved. (Tr. 181 ). While Mountain Coal has no written criteria for what is 

considered a safe or unsafe hose, factors that are considered include the location of the hose, and 

the pressures, cycles, and operating conditions of the hose. (Tr. 170, 186, 202). 

Kunde testified that all of the cited hoses were intrashield3 hoses located in the back 

walkway and that all of the worn areas were either under the deck plates or facing downward into 

the floor rather than facing the front walkway. (Tr. · 171-180, 185). Given that the back walkway 

is a confined area where it is hard to move around and that equipment is never moved through it, 

the only reason anyone would be in the back walkway would be for permissibility inspections. 

(Tr. 181, 200). The hoses are fixed in a staple-lock fitting and cannot spin. (Tr. 195). Fluid 

from a pinhole perforation could ricochet off of something and be redirected toward the front 

walkway Where miners work. (Tr. 205). Most miners on the longwall wear personal protective 

equipment such as Airstream helmets with impact resistant face shields, safety glasses with side 

shields, leather gloves, shin guards, and rain jackets. (Tr. 182-183). 

Kunde testified that it is highly unlikely thathigh temperatures caused the damage to the 

hoses since there had been no fires, cutting, or welding in the back walkway. (Tr. 180-181). The 

wear on the hoses is a result of the hoses rubbing against the deck plates. Id. Many of the hoses 

are extremely overrated for their application and operate at only 2% to 3% of their rated capacity. 

(Tr. 186). The hoses that operate at a pressure closer to their rated capacity are given additional 

attention by mechanics, who make mental notes about the condition of the hoses. (Tr. 188). All 

of the hoses have a burst rating of20,000 psi so that there is no chance a hose will be mistakenly 

put into service at a pressure beyond its pressure capacity. (Tr. 202). The feed side hoses are 

only pressurized for three seconds when a shield is moved. (Tr. 170). Mountain Coal has used 

hoses in a similar condition to those cited and has never had an injury or been cited by MSHA for 

their use. (Tr. 188-189). Kunde testified that, based on these factors, the wear on the hoses 

presented no danger and it wa8 reasonable and prudent for Mountain Coal to continue to have the 

cited hoses in service. (Tr. 187). 

Kunde testified that Allen never looked at the hydraulic schematic for the longwall. (Tr. 

169). Kunde denies ever telling Allen that Mountain Coal had not done a good job maintaining 

the hoses. (Tr. 189). Kunde was not present when the hoses were removed from their fittings, 

but, having seen other hoses removed, he recognized that the damage to the ferrule was most 

likely the result of having to "smack" the hose a number of different directions to release it from 

the fitting. (Tr. 178-179, 197). 

3 The stipulations used the term "inner-shield" hoses. These terms simply mean that both ends of 

each hose were connected to the same longwall shield so that each hose was confined to a.single 

shield. 

31 FMSHRC 1227 
D. Olof Jacobson 

Jacobson testified for Mountain Coal as an expert witness in mechanical engineering with 

expertise in hydraulic hoses. (Tr. 221). Jacobson is currently employed by Jacobson Forensic 

Engineering as a forensic engineer. (Tr. 211). He has a bachelor's degree in mechanical 

engineering and a master's degree in applied mechanics, although he has taken no courses on 

mining engineering. (Tr. 212, 252). Jacobson is an active member of multiple professional 

organizations aiid is ilivolved in setting standards for vehicle accident reconstruction engineering, 

engineering practice, and guidelines for standard engineering practice. (Tr. 212). Jacobson has 

taught engineering classes and occasionally still lectures at local universities regarding failure 

analysis, forensic engineering, and ethics. (Tr. 212). He has worked for Public Service 

' Company of Colorado, Samsonite, and various power plants .. (Tr .. 215-216). In those positions 

he has designed retrofits for coal-fired power plants that utilized hydraulic hose systems, 

implemented a hydraulic preventative maintenance program, dealt with hydraulic equipment 

during the construction and operation of power plants, been involved in the selection of hoses 

during the design of equipment, and worked on failure analysis issues associated with hydraulic 

hoses. (Tr. 215-216, 220; Ex. R-23). 

Jacobson testified that he examined the mechanical wear on the hoses. (Tr. 223). He 

stated that the damage to the hoses was restricted to the outer jacket and outermost layer of wire· 

braiding, and that none of the inner layers of wire braiding were .damaged. (Tr.·238, 248). 

Jacobson testified that, in the past, he has assessed heat damage to hydraulic hoses during 

investigations of fires in mechanical equipment. (Tr. 224). Additionally, he has looked at 

technical literature on what fire and heat can do to hoses, and has studied standards and standard 

protocols for investigating fires. (Tr. 224). Using this background, he determined that there was 

no evidence of heat damage in this instance. (Tr. 224). 

Jacobson testified that as part of his investigation he visited the West Elk Mine to see the 

location of the hoses, how the hoses were bent, how accessible the hoses were, the source of the 

mechanical wear, and other general service conditions. (Tr. 223, 225). Jacobson stated that the 

West Elk longwall is designed with relief valves to prevent the hydraulic system from exceeding 

its maximum service pressure. (Tr. 228-229; Ex. R-21). The hoses utilized by Mountain Coal 

are "overdesigned" for their application in order to account for the wear and tear that they will be 

subjected to by the service conditions. (Tr. 235-236). Most of the hoses operate at only a small 

percentage of their overall pressure rating. (Tr. 229). Based on this information, using "one 

broken braid ... [as] the criteria for removing a hose is incredibly overly cautious[,] [and]. .. [i]t 

is not realistic." (Tr. 237). All of the service conditions need to be considered. (Tr. 236). 

Jacobson testified that he often reviews manufacturer literature, and agrees that it should 

be considered when evaluating the condition of a hose; however, in order for the manufacturers 

to protect themselves from civil liability, the literature is often very conservative. (Tr. 256-257, 

259, 263). Organizations like the International Organization of Standardization ("ISO") and 

SAE include representatives from hose manufacturers, manufacturers of machinery that use the 

31FMSHRC1228 
hoses, purchasers of the hoses, people who maintain the hoses, and the designers of the hoses. 

(Tr. 213-214, 263). The SAE standards say nothing about one broken braid being enough to 

_ require a hose to be removed from service. (Tr. 264). 

Jacobson testified that all of the hoses used at the West Elk mine have a safety factor of 

four, meaning they are not expected to fail until the actual pressure reaches 400% of the rated 

pressure. (Tr. 245). The damage to the cited hoses will not eliminate the safety factor, but 

rather, will cause the safety factor to degrade as more and more braids are broken. (Tr. 235). 

Jacobson testified that in order to determine the strength and service life left in the cited 

hoses, he conducted pressure tests on similar hoses that he purchased (the "exemplar hoses") and 

on the cited hoses; (Tr. 222). fu order to account for continuing environmental factors, the hoses 

were subjected to higher pressures than what they were subjected to while in service at West Elk. 

(Tr.251). . 

For the exemplar hose testing, he purchased from Mountain Coal's supplier two new 

hoses of each size that was cited. (Tr. 222, 239; Ex. R-25). Jacobson and a coworker 

intentionally damaged one-exemplar hose in each size in an effort to recreate as closely as 

possible the most damaged cited hose in that size. (Tr. 222, 239). Jacobson took the three 

remaining exemplar hoses and removed three· to four inches of the outer jacket and first layer of 

·. wire braiding reinforcement. (Tr. 222-239): All of the exemplar hoses were thenpre~surize&for 

approxiniately ten minutes at 50%, ten minutes at 100%, ten minutes at 150% and twenty 

minutes at 200% of their rated pressures. (Tr. 241, Ex. R-26). Five of the six exemplar hoses 

did not fail. (Tr. 241-245). The one hose that did fail had been accidentally damaged during test 

preparation when the innermost layer of wire braiding was "nicked." (Tr. 239-240, 243-244). fu 

spite of the damage, the hose did not fail until the pressure approached 10,000 psi. (Tr. 244). 

That failure resulted in a large hole that allowed a low velocity, high volume release of fluid, and 

not a fine spray. (Tr. 248-249). The exemplar tests revealed that even if the outer jacket and 

outermost layer of wire braiding were totally removed, the pressure on all the hoses could still go 

to at least twice the rated pressure, and therefore the safety factor would be no lower than two. 

(Tr. 245). 

Jacobson created the testing protocol for the cited hoses based on the information 

obtained from the exemplar testing. (Tr. 245-246; Ex. R-27). Not wanting to destroy the cited 

hoses, he pressure tested all of them for ten minutes at 120% and ten minutes at 140% of their 

maximum service pressure. (Tr. 245-246). He testified that, based on this testing and analysis, 

"the hoses in the mine were perfectly safe." (Tr. 246-247; Ex. R-28). 

Jacobson testified that based on the information he obtained from the two sets oftests, 

there was not a threat of imminent failure, the hoses were in a safe working condition, and all of 

the hoses still had a fairly long service life remaining. (Tr. 246-248). He based his opinion on 

the fact that the hoses were tested at a much higher pressure than what they would ever see while 

in service. (Tr. 249-250). None of the cited hoses had been damaged to the extent of the 

31 FMSHRC 1229 
exemplar hose that failed. (Tr. 250) The exemplar hose that failed still had a safety factor of 

approximately two. (Tr. 250) This is evidence that the cited lioses would have to be damaged 

more than the failed exemplar hose for there to be any risk of hose failure at the service pressures 

used at the mine. (Tr. 250). 

III. BRIEF SUMMARY OF THE PARTIES' ARGUMENTS 

~ 

A. Secretary of Labor. 

The Secretary argues that Mountain Coal violated the safety standard by failing to 

maintain the cited hydraulic hoses in a safe operating condition. The dictionary definition of 

''safe1

' is instructive. ·"Safe" can be defined as "secure from threat of danger, harm or loss.'?. 

(Sec'y Br. 12). As a consequence, an operator must maintain equipment "in a condition free 

from the potential for danger." (Sec'y Br. 12-13). The overwhelming weight of the evidence 

shows that Mountain Coal failed to meet this requirement. The cited hoses displayed obvious 

and significant damage. Materials available at MSHA's website, the literature of hose 

manufacturers, and professional engineering organizations all advise against the use of hoses 

with exposed or damaged wire braiding. Id. at 13-14. The damaged braiding presented a risk of 

hose failure. Moreover, environmental conditions can affect hoses being used at pressures below 

the rated capacity. The conditions found in the mine environment exacerbate the riskofbo.se, .· 

;·failure ·and can lead to further damage.· Id. A hose failure .in this instance could have injured·a 

miner in the front walkway. Id. at 15., 16. Because Angel has actual experience with 

underground coal mining, his testimony should be given more weight than Jacobson's testimony. 

Jacobson's testing is oflittle value in predicting whether a hose will fail in an underground mine. 

In cases involving broadly worded safety standards, the Commission has applied the "reasonably 

prudent person" test. The evidence establishes that Mountain Coal failed to act as a reasonably 

prudent person when it did not remove the cited hoses from service. 

B. Mountain Coal. 

Mountain Coal argues that the citation should be vacated because the subject hoses were 

not unsafe. The Secretary's criteria for determining when a hose should be removed from service 

are unreasonable, imprudent, overly cautious, unrealistic, and fail to account for numerous 

factors that the reasonably prudent person would consider. (Resp. Br. at 13, 17, 18). The 

evidence establishes that the hoses did not pose a safety hazard to miners. Instead, the Secretary 

presented theoretical conclusions and assumptions that the hoses would degrade instantaneously 

or that they would be continued to be used until they failed, neither of which is supported by the 

evidence. The Commission has rejected allegations of unsafe equipment where the equipment 

was operating at only a fraction of its capacity and the allegations were not supported by 

evidence of impending equipment failure or subsequent safety hazard. Id. at 16. Mountain Coal 

argues that its witnesses have extensive experience with and knowledge of hydraulic hoses, and 

that the Secretary's witnesses failed to understand the importance of considering a wide range of 

factors when evaluating the safety of hoses. Id. at 22. Angel's testimony regarding heat damage 

31FMSHRC1230 
to the hoses and the cut in the ferrule should not be credited. The objective test data obtained by 

Jacobson established that the subject hoses had considerable service life remaining and would 

have to suffer damage to the inner layer of wire braiding before there was a risk of failure at the 

service pressures used at the mine. 

IV. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

A. Background. 

At the time the citation was issued, there were 165 shields on the longwall face and each 

shield contained 71 hoses, for a total of about 11, 715 hoses. · The cited hoses were in the back · 

walkway and miners do not normally travel in that area. The primary reason for someone to be 

in the back walkway is to perform weekly permissibility inspections. When a certiff ed electrician 

performs this task, the supply hydraulic hoses are not pressurized. 

During production shifts, miners advance the longwall by moving the individual shields 

forward. It takes about three seconds for each shield to advance. The shields are moved 

electronically by remote control. The supply hoses for each shield are pressurized for about three 

. · seconds as the shield moves. Once the pressure is released, check valves lock the shield in place ... 

During nortnal production, the shearer makes about one pass per hour, during which the supply 

hoses are pressurized for about three seconds .. Miners generally ·stand about four shields away 

when a shield is advanced and they wear personal protective equipment. 

Mountain Coal has an examination and maintenance program in place at the mine. There 

are two mechanics and a maintenance supervisor assigned to each longwall production shift. The 

condition of the hydraulic hoses is continually monitored by maintenance personnel. The hoses 

are also thoroughly inspected when the longwall equipment is moved to a new panel, which 

occurred about every six months at the time the citation was issued. Maintenance personnel 

make the decision to replace a hose by considering the properties of the hydraulic hose, operating 

conditions and pressures, and_the location and extent of the wear. (Tr. 184-188). Hoses that 

operate under higher pressure receive additional attention. 

All of the hoses on the longwall have a pressure rating of 5,000 to 5,800 pounds per 

square inch ("psi"). The cited hoses were of various lengths and were either 3/8 inch, Yi inch, or 

1 inch in diameter. All of the hoses on the longwall had a manufacturer-designed safety factor of 

four and a minimum burst pressure of20,000 psi. Hydraulic hoses are comprised of multiple 

alternating layers of synthetic rubber and woven material. The hoses have a center rubber tube to 

contain the hydraulic fluid. There is a layer of wire reinforcement around the outside of this 

rubber tube that is wound in an alternating braided diagonal pattern. Depending on the particular 

hose design, there is at least one additional layer of rubber and wire reinforcement. The hose is 

covered with a thick rubber protective jacket. The one inch diameter hoses have four alternating 

layers of rubber and wire reinforcement, while the smaller hoses have two layers. (Tr. 232-233). 

31FMSHRC1231 
The cited hydraulic hoses can be divided into two types: supply and return hoses. The 

supply hoses on each shield are pressurized only when that shield is moved. These hoses are 

either Yz inch or 3/8 inch in diameter. Inspector Allen cited seven supply hoses. The normal 

service pressure for four of these hoses was under 1,000 psi, while three of these hoses 

experienced pressure up to 5,000 psi. The return hoses are one inch in diameter, remain 

pressurized during the production shift, and experience service pressures between 100 and 200 

psi. Inspector Allen ~ited six return hoses. As stated above, the return hoses are rated for service 

pressure of up to 5,000 psi. All of the hydraulic hoses are protected by check valves with relief 

points, which prevent the hydraulic system components from being subject to pressures greater 

than the pressure rating of the hoses. 

B':- Analysis. 

The issue in this case is whether the 13 cited hydraulic hoses were in "safe operating 

condition" as required by section 75.l 725(a) of the Secretary's safety standards. The 

Commission has long held that, under section 75. l 725(a), in deciding whether machinery or 

equipment is in an unsafe operating condition, the alleged violative condition is measured against 

the standard of whether a ·reasonably prudent person familiar with the factual circumstances 

surrounding the allegedly hazardous condition, including any facts peculiar to the mining 

. industry, would recognize a hazard warranting corrective action within the purview of the · . 

applicable safety standard. Alabama By-Prods. Corp.,4 FMSHRG2128, 2129 (Dec. 198i). · 

Two factual issues raised by the parties can be disposed of at the outset. First, I reject the 

Secretary's argument that the cut ferrule demonstrates Mountain Coal's lack of reasonable care. 

Angel speculated that it was likely that the ferrule was damaged when that particular hose was 

installed. In response, Kunde testified that it was more likely that the damage occurred when the 

hose was removed from service. There is no reliable evidence to show that this condition existed 

at the time Inspector Allen issued the citation and he did not include this condition in his citation. 

As a consequence, this allegation is rejected and I have not considered the damaged ferrule in 

rendering my decision. Second, Angel testified that, after looking at the hoses, he came to the 

conclusion that the hoses had been damaged, at least in part, by heat. I credit the testimony of 

Kunde that there were no sources of heat on the longwall that could have damaged the outer 

jacket of the hoses. I also credit the testimony of Jacobson on this issue. I find that the 

conditions cited by the inspector were a result of mechanical damage caused by abrasion with 

components of the longwall system. 

Page two of the citation lists the damage found by Inspector Allen on the 13 hoses. The 

outer jacket of the hose was split open in each instance and the inspector listed the extent of the 

damage to the outer layer of wire braiding. The damage can be summarized as follows: 

Shield 16 - #6 hose, 1 broken wire strand at one location; 

Shield 19 - #6 hose, 1 broken wire strand at two locations; 

Shield 22 - #6 hose, 2 broken wire stands at one location; 

31FMSHRC1232 
Shield 26 ...:... #6 hose, 70 to 80 broken wire strands in a 12 inch span; 

Shield 35 - #6 hose, 16 broken wire strands at one location; 

Shield 3 7 - #8 hose, 3 broken wire strands at one location; 

Shield 54 - #6 hose, 40 broken wire strands at one location; 

Shield 16 - # 16 hose, 6 broken wire strands at one location; 

Shield 39 - #16 hose, 56 broken wire strands at one location; 

Shield 40 - #16 hose, 26 broken wire strands at one location; 

Shield 44 · - # 1 o hose, 7 broken wire strands at one location; 

Shield 45 - # 16 hose, 46 broken wire strands at one location; and 

Shield 49 - #16 hose, 16 broken wire strands at one location. 

The #6 hoses are 3/8 inch supply hoses, the #8 hose is a Yi inch supplyhose, and the #16 hoses 

are one inch return hoses. Mountain Coal does not dispute the description of the condition of the 

hoses in the citation, as summarized above. However, it contends that the damaged areas were 

under the deck plates. The parties stipulated that the location of each hose is accurately shown 

on Mountain Coal's Exhibit 17. 

Angel prepared a report containing his analysis. (Ex. G-10). Based on Angel's analysis, 

the Secretary contends that the hazard to be protected against in this case is the accidental release 

<, of pressurized hydraulic fluid. Such a release can cause a variety-of injuries to miners._ Angel 

~: " listed the potential injuries in his report as "burns from hot fluid, fluid injections, chen1ical 

injuries of the eyes, and slips and falls from slippery surfaces." (Ex. G-10 p. 3). Angel also said 

that someone could be injured or killed by a whipping hose. Id. Finally, he stated that miners 

working "in close proximity to damaged hoses are exposed to these hazards." Id. 

Angel is concerned that, because the outer jacket had been abraded, the outer wire 

braiding was exposed and was susceptible to further degradation, especially from acidic mine 

water and further abrasion. Id. at 4. As the wire braiding continues to deteriorate, more wires 

will be broken and a pin hole spray may develop. If even more wires break, a larger area of 

failure could develop causing more hydraulic fluid to spray out. Finally, a complete failure of the 

hose could cause the pressuriz.ed end of the hose to whip about. 

Angel relied to a considerable extent on literature published by hydraulic hose 

manufacturers in reaching his conclusions. He states: 

Hose manufacturers typically warn the hose user that 

exposure of the reinforcement wire significantly increases the 

likelihood of failure of the hoses and increases the safety risk of 

personnel working with or near the hose. Most manufacturers 

recommend routine inspection of hoses and that hoses found with 

exposed reinforcement be immediately removed from service. 

31 FMSHRC 1233 
Id. For example, the "Safety Guide" put out by Alfagomma Hydraulic Hose states that 

"[ e ]xposure of the reinforcement will significantly accelerate hose failure" and "[a ]ny of the 

following conditions require immediate shutdown and replacement of hose assembly ... 

[d]amaged, cut or abraded cover (any reinforcement exposed)." Id; Ex. G-10 attachment S. 

Alfagomma and Semperflex manufactured the cited hoses. 

Mountain Coal argues that the Secretary's reliance on manufacturers' guides is 

misplaced. These guTdes are inconsistent because some recommend that a hose be replaced 

whenever there is any damage to the hose and other guides do not. Moreover, these guides are 

very conservative because the manufacturers do not know what operating conditions their 

hydraulic hoses will be subjected to once they are sold. This case must be judged by the 

reasonable prudent person standard set forth in Alabama By-Products ratherthanmanufacturers' 

safety guides. Mountain Coal maintains that the recommendations of the ISO and SAE are more 

instructive. (Exs. C-8, C-30). The ISO recommends regular visual inspections ofhydraulic 

hoses for conditions such as exposed reinforcement, damaged, cut or abraded outer protective 

layer, and leaks. The ISO provides that factors such as the nature and severity of the application, 

past experience at the work site, and information provided by manufacturers should be taken into 

account. (Ex. C-30). 

I agree with Mountain Coal that the manufacturers' guidelines were written to cover all 

· · . situations and customers, including installations where hoses are not regularly inspected for · 

. damage and are subjected to a wide variety of environmental conditions. I have taken these 

guidelines into consideration but they do not establish a violation of the safety standard. 

MSHA has posted "safety ideas" concerning hydraulic hoses at its website. The posting 

on hydraulic hose maintenance advises mine operators to regularly inspect hydraulic hoses and to 

routinely change out hoses. (Ex. G-5). There are photographs of hoses that have been damaged. 

The web page also has links to websites of hydraulic hose manufacturers. A section of a training 

manual for MSHA inspectors, which has not been posted, discusses safety precautions for 

longwall shields. (Ex. G-3). The section on visual inspections of hydraulic hoses provides, in 

part, that "[ w ]hen a hose shows signs of damage, such as scrapes or cuts, to the extent that the 

wire braids are broken, a replacement shall be installed during the shift." Id. This language is 

consistent with the Secretary's position in this case. Although I have taken this material into 

consideration in evaluating this case, these documents do not by themselves establish a violation 

of the safety standard. 

Angel does not dispute the results of the laboratory testing performed by Jacobson and he 

acknowledges that the hoses are manufactured with a safety factor of four. Angel stated, 

however, that the safety factor designed into hydraulic hoses is "not intended as a reason to 

permit a known, damaged hose to continue in operation." (Ex. G-10 at 6). 

Angel recognized that miners must be in close proximity to the hose for a safety risk to 

exist. Indeed, he testified that a miner would have to be ''within inches" of a broken hose in 

31 FMSHRC 1234 
order to sustain an injury from the resulting spray. (Tr. 145-146). He believed that the miners in 

the longwall section were put at risk because the confined area in which they must work put them 

in close proximity to the hoses. He was especially concerned that a pin hole leak could develop 

in a high pressure hose that would spray several feet. This fluid could be injected under the skin 

of a miner if the force of the spray were strong enough. 

Jacobson stated that he determined that the hoses were safe based on his laboratory 

testing, which took into 9onsideration normal service pressures, the safety factor inherent in the 

hose design, and the multi-layer construction of the hoses. He also took into account the service 

conditions he observed in the mine, including the location of the hoses on the back walkway of 

the longwall, the isolation of the hoses under deck plates, the short duration that the service hoses 

are pressurized, the ongoing maintenance program, and the personal protective equipment worn 

by miners. Mountain Coal contends that the court should take into consideration Jacobson's 

years of professional experience working with hydraulic hoses and Kunde's years of'bn-the-job 

experience working with and replacing these hoses at the mine. 

Mountain Coal also maintains that the Secretary failed to consider factors that establish 

that the hoses were fit and safe for their purpose and, instead, relied upon theoretical assumptions 

that the hoses would either degrade quickly or that they would be kept in service until they 

sustained sufficient wear to fail. The Secretary ignored the safety features of the longwall system 

in· use at the mine, the location of the wear, the pressures to which the hoses are subjected, and . 

the frequent examinations made by the maintenance crew. Mountain Coal contends that it.has 

safely used these types of hydraulic hoses for years using the same replacement practices without 

any accidents or injuries. Indeed, Mountain Coal's principal argument in this case is that it 

intentionally uses hydraulic hoses that are significantly over designed for their purpose at the 

mine so that the hoses can take some wear and tear and not present a hazard to miners. 

Frequently replacing hoses presents its own dangers and challenges and the company uses hoses 

that are designed for considerably higher pressures in order to avoid these hazards. 

1. Fact of Violation. 

Based on a preponderance of the evidence presented at the hearing, I find that Mountain 

Coal violated section 57 .1725( a). In analyi;ing the risk of failure, I considered the construction 

specifications of the hoses, safety features built into the longwall system, the damage present on 

the hoses and their location, the pressures in the hoses and the duration of these pressures, the 

nature of the work performed on the longwall, and the regular examinations of the hoses 

performed by the maintenance crew. 

I find that the testing performed by Jacobson was helpful in understanding the capacity 

and strength of the hoses. However, the pressure tests did not directly take into consideration the 

mine environment or the continued exposure to the forces that damaged the hoses. Jacobson 

testified that he accounted for the continued exposure to the mine environment by testing the 

exemplar hoses at extremely high pressures. Based on these pressures, Jacobson concluded that 

31 FMSHRC 1235 
there was no risk of hose failure even assuming some degree of continued degradation. I credit 

Jacobson's testing procedures and find that they were a reliable indication of the safety factor 

built into the hoses. 

The forces that created the abrasion· of the cited hydraulic hoses would have continued to 

further degrade the hoses until such time as the company determined that they should be 

replaced. I cannot assume that the hoses would have been replaced the day of the inspection. 

The photographs introduced as exhibits at the hearing show damaged areas on the hoses that 

were no longer protected from the mine environment by the outer protective layer of rubber. (Ex. 

G-10 attachments K and P). I was also able to examine the worn areas because Mountain Coal 

brought the cited hoses to the hearing as a demonstrative exhibit. Water, dirt, and dust could 

have easily ·entered the damaged areas and accelerated·the rate of deterioration of the wire ·. 

reinforcement. A number of the hoses were quite badly damaged. For example, the hose on 

Shield 26 had about 75 broken wire strands. Other hoses were also badly damaged, as shown on 

page two of the citation. The damage on these hoses was quite evident upon examination and it 

closely resembled the damage shown on MSHA's Hydraulic Hose Maintenance Guideline. (Ex. 

G-4). 

I credit the testimony of Kunde that the hoses are regularly examined by maintenance 

pers·onnel and are regularlyreplaced. Angel was of the opinion that the company would have 

allowed ·the hoses to remain in operation untilthey failed, but he admitted that he had no idea 

how long that.would take. (Tr. 129). There is nothing in the record to support this opinion and I.. 

have not given it any weight. 

I find that Mountain Coal violated the safety standard for a number of reasons. First and 

foremost, as stated above, a number of the cited hoses were severely damaged. The gashes in the 

outer jackets and damage to the wire reinforcement was significant in some cases. (Ex. G-10, 

attachment K). This damage presented a risk of hose failure. Second, I agree with Angel that the 

safety factor designed into the hoses is not intended as a reason to permit hoses with significant 

damage to continue in service. This fact is reflected in the manufacturers' safety guidelines that 

advise consumers to replace damaged hoses. Third, although Jacobson's testing provided useful 

information, the tests did not adequately take into account the fact that the damaged outer jackets 

and wire braids on the hoses were exposed to further wear and corrosion. Fourth, the mining 

environment is harsh and unforgiving. Events can quickly unfold that will cause a damaged 

hydraulic hose to fail notwithstanding the company's hose inspection and replacement program. 

Kunde testified that the damaged areas were under the deck plates or were otherwise on the 

underside of the hoses. (Tr. 171-180, 185). Because the wear was from abrasion, it is only 

logical that the worn areas were in places where the hoses rubbed against the deck plates or other 

components of the longwall shields. The abrasion of the hoses would continue and the 

additional damage would not be easy to detect. Coal dust and water would likely enter the outer 

31 FMSHRC 1236 
layers of the hoses and continue to corrode the outer braids. The severely damaged hydraulic 

hoses were not in safe operating condition and should have been removed from service.4 

I also find that Mountain Coal had reasonable notice of the requirements of the safety 

standard as applied to hydraulic hoses. The recommendations of the hose manufacturers and the 

material published by MSHA put the operator on notice that badly damaged hoses must be 

removed from service. Previous MSHA inspectors may not have examined hoses closely enough 

or the hoses may-not have been in the same condition. 

One of Mountain Coal's principal arguments is that this court should reject the 

Secretary's position that one broken wire strand renders a hose unsafe. This case does not 

·present such a theoretical issue. As stated above, the-issue is whether the hoses cited by MSHA 

were in safe operating condition. Most of these hoses had more than 10 broken wire strands and 

five hoses had more than 20 broken strands. This court must base its decision on the facts 

presented. I do not have the authority to develop a generally applicable test for determining how 

much wear a hydraulic hose can sustain before it violates section 75.1720(a) and must be 

replaced. I note that, based on the evidence presented, I may well have vacated the citation if all 

of the hoses had only sustained slight damage, such as a worn spot with a few broken stands on 

the outer layer of reinforcement. I base my finding of violation on the condition of the hoses that 

showed more significant damage and wear than a.few broken outer wire strands. 

·. \ •,: 

Based on the above, I find that a reasonablyprudent person familiar with the factual 

circumstances surrounding the allegedly hazardous condition, including any facts peculiar to the 

mining industry, would have recognized that corrective action was required under the safety 

standard at the time the citations were issued. A reasonably prudent person would have 

recognized that the hoses with a significant degree of damage were not in safe operating 

condition. Mountain Coal would be well advised to take this opportunity to review its hydraulic 

4 The Commission takes the mine environment into account when analyzing these types of alleged 

violations. For example, in Otis Elevator Co., the operator was charged with a violation of section 

75 .1725( a) because the MSHA inspector believed that the ends of the governor rope for the elevator 

in the mine were improperly installed thereby creating an unsafe condition. The Commission judge 

affirmed the citation and his holding was affirmed on appeal. 9 FMSHRC 1933, 1942 (Nov. 1987); 

aff'd 11 FMSHRC 1896, 1906-08 (Oct. 1989); 921 F.2d 1285, 1293-94 (D.C. Cir. 1990). In 

preparation for the hearing, Otis Elevator obtained the services of a forensic expert who subjected 

a similarly configured wire rope to a stress test. The judge held that the testing conducted by the 

respondent's expert "demonstrated that the [rope] assembly as configured should withstand a force 

on the order often times as great as the force necessary" for the application at the mine. 9 FMSHRC 

at 1942. The judge, nevertheless, agreed with the Secretary that "the stress pull test performed under 

what might be considered laboratory or 'ideal' conditions is an entirely different situation than what 

actually exists in the mine given the environmental conditions that the equipment must operate in 

there." Id. 

31 FMSHRC 1237 
hose replacement policies to make sure that the policies are sound and are understood by its 

maintenance personnel. It also may want to consider reducing its policies to writing. 

2. Significant and Substantial; Gravity; Negligence. 

I find that the Secretary did not establish that the violation was of a significant and 

substantial nature. The hoses were in the back walkway, which is behind the leg cylinders. 

Miners do not work in· that area. The back walkway is a confined area where it is difficult to 

move around. 5 The most common reason for anyone to be in the back walkway is to conduct a 

permissibility inspection, when the supply hoses are not pressurized, or to replace a hose. As 

stated above, miners are generally not near the supply hoses when they are pressurized as the 

shields :are moved~ Angel testified that a miner would have to be within inches of a hose in order 

to sustain an injury from the resulting spray. The return hydraulic hoses, which ar~ always 

pressurized during production, operate at 100 to 200 psi. The return hoses were rated at 5 ,800 

psi and they have four layers of wire braiding. In addition, the miners working along the long 

wall typically wear protective clothing, as described above. This clothing would protect them 

from injury. I credit the testimony of Kunde on this issue. 

A violation is classified as S&S "if based upon the facts surrounding the violation, there 

exists a reasonable likelihood that the hazard contributed to will resultin an injury or illness.of a 

reasonably serious nature." National Gypsum Co., 3 FMSHRC. 822, 825 (April 1981 ). In .. : · 

Mathies Coal Co., 6 FMSHRC 1, 3-4(January1984), the Commission set out a four-part test for 

analyzing S&S issues. Evaluation of the criteria is made assuming "continued normal mining 

operations." U.S. Steel Mining Co., 6 FMSHRC 1573, 1574(July1984). The question of 

whether a particular violation is S&S must be based on the particular facts surrounding the 

violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988). The Secretary must establish: (1) the 

underlying violation of the safety standard; (2) a discrete safety hazard, a measure of danger to 

safety, contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to 

will result in an injury; and ( 4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. The Secretary is not required to show that it is more probable than not 

that an injury will result from the violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 

1996). Although the Secretary established the first two elements, I find that the third and fourth 

elements of the Mathies test were not present in the case. Consequently, I modify the citation to 

delete the S&S determination. I also find that the violation was not serious because, if a hose did 

leak hydraulic fluid, it is unlikely that anyone would be seriously injured as a result. An injury 

from a fluid injection or from a whipping hose was unlikely. The most likely injury would be 

from a slip and fall on a deck plate that was covered with spilled hydraulic fluid. 

I also find that Mountain Coal's negligence was low. I credit the company's evidence 

that it has been using the sarne criteria for determining when a hydraulic hose should be replaced 

5 In a previous decision, I determined that "[ e ]ven a small individual would have difficulty 

walking along the 'back walkway' [in a longwall section at the West Elk Mine]." Mountain Coal 

Co., 26 FMSHRC 853, 855 (Nov. 2004). That finding is equally applicable here. 

31FMSHRC1238 
for years. It has never been issued a citation for the condition of the hoses on the longwall and 

no accidents have occurred. (Tr. 188-89). A penalty of $800.00 is appropriate for this violation. 

C. Settled Citations. 

The parties settled Citation Nos. 6684080 and 6684093 that were issued under section 

104( a) of the Mine Act_ and were designated as non-significant and substantial. I have considered 

the representations and documentation submitted and I conclude that the proposed settlement is 

appropriate under the criteria set forth in Section 11 O(i) of the Act. The parties previously settled 

Citation No. 7291335 and I approved that settlement by order dated January 10, 2008. 

V. APPROPRIATE CIVIL PENALTIES 

Section 1 lO(i) of the Mine Act sets forth the criteria to be considered in deteiinining an 

appropriate civil penalty. The record shows that Mountain Coal had about 514 paid violations at 

the West Elk Mine during the two years preceding March 26, 2007. (Attachment to Reply Br. of 

Sec'y). Mountain Coal is a large mine operator as is Mountain Coal's parent company, Arch 

Coal, fuc. The violation was abated in good faith. The penalty assessed in this decision will not 

have an adverse effect on Mountain Coal's ability to continue in business. The violation was not 

serious and Mountain Coal's negligence was low. Based on the.penalty criteria, I find that a 

· penalty of$800.00 is appropriate. . · 

VI. ORDER 

Based on the criteria in section l lO{i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

6684080 

6684093 

7291353 

75.400 

75.400 

75.1725(a) 

TOTAL PENALTY 

31FMSHRC1239 

$5,504.00 

1,412.00 

800.00 

$7,716.00 
For the reasons set forth above, Citation No. 7291353 is MODIFIED as set forth above. 

Mountain Coal Company, LLC, is ORDERED TO PAY the Secretary of Labor the sum of 

$7,716.00 within 30 days of the date of this decision.6 Upon payment of the penalty, these 

proceedings are DISMISSED. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Laura E. Beverage, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202-

1958 (Certified Mail) 

Mary Forrest-Doyle, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson 

Boulevard, 22nd Floor, Arlington, VA 22209 (Certified Mail) 

RWM 

6 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. 

31FMSHRC1240 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY A VENUE N.W., SUITE 9500 

ABUNDANCE COAL, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

WASHINGTON, D.C. 20001 

October 26, 2009 

CONTEST PROCEEDINGS 

Docket No. KENT 2010-5-R 

Citation No. 8227636;09/29/2009 

Docket No. KENT 2010-6-R 

Order No. 8227637;09/29/2009 

#1 Mine 

Mine ID 15-18711 

DECISION 

Appearances: Billy-R. Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC, Lexington, 

Kentucky, on behalf of the Contestant; 

Mary Sue Taylor, Esq., and Schean G. Belton, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, on behalf of the 

Respondent. 

Before: Judge Melick 

These cases are before me upon the request by Abundance Coal me., (Abundance) for 

expedited hearings to contest Citation Number 8227636 and Withdrawal Order Number 8227637 

issued pursuant to Section 104(a) and Section 104(b), respectively, of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq., the "Act". Hearings were expedited pursuant to 

Commission Rule 52, 29 C.F.R. § 2700.52, and were held on October 14 and 15, 2009. Upon 

Contestant's request, expedited briefs were filed on October 23, 2009. The general issues before 

me are whether the violation was committed as alleged in the citation and whether the withdrawal 

order was properly issued. 

Citation Number 8227636, issued September 29, 2009, alleges a non-"significant and 

substantial" violation of the standard at 30 C.F.R. § 75.336(c) and charges as follows: 

The mine owner and superintendant have been notified that samples taken in the sealed area 

of the Consol ofKentucky, Jones ForkE-3 mine ID# 15-18589 behind the No. 1 set of seals 

on 9/27109 contained an explosive mixture of oxygen greater than 10% and methane between 

4.5% and 17%. This sealed area is interconnected in a contiguous seam and is located 

behind the #2 set of seals in this mine, and is a commonly sealed area between these two 

mines. The mine owner and superintendant were notified that under 30 CFR 75.336 part c 

31FMSHRC1241 
the operator is required to withdraw persons from the affected area, which was explained to 

be the entire mine. The mine owner stated that the next scheduled production shift would 

continue unless given an order from MSHA. 

The cited standard 30 C.F.R. § 35.336(c) provides in relevant part as follows: 

Except as prmj.ded in§ 75.336( d), when a sample is taken from the sealed atmosphere with 

seals ofless than 120psi and the sample indicates that the oxygen concentration is 1 O percent 

or greater and methane is between 4.5 percent and 17 percent, the mine operator shall 

immediately take an additional sample and then immediately notify the district manager. 

When the additional sample indicates that the oxygen concentration is 10 percent or greater 

and methane is between 4.5 percent and 17 percent, persons shall be withdrawn from the 

affected area which is the entire mine or other affected area identified by the operator and 

approved by the District Manager in the ventilation plan, except those persons referred to in 

§ 104(c) of the Act. 

Approximately 16 minutes following the issuance of the citation, Order Number 8227637 

was issued pursuant to Section 104(b) of the Act directing the closure of the Abundance No. 1 mine. 1 

The order charges that "[a ]fter a reasonable abatement time the operator stated his intention to not 

comply with 30 C.F.R. § 75.336(c) unless given an order from MSHA". 

Abundance operates the No. l mine at issue which is adjacent to the Jones Fork mine owned 

and operated by Consol of Kentucky (Consol) and the Marshall Coal No. 22 mine. Both the 

Abundance No. 1 mine and the Marshall Coal No. 22 mine were originally part of the Jones Fork 

mine but were separated by seals sometime before June 2006. The three mines share a common gob 

area. Subsequently, 120 psi seals were constructed at the Abundance and Marshall mines on the 

working section side of the seals. On or about November 27, 2008, Abundance submitted to the 

Department of Labor's Mine Safety and Health Administration (MSHA) an "alternate seal sampling 

plan-ventilation plan revision" advising the that it would not conduct any sampling behind its 120 

psi seals. Thereafter, on or about December 12, 2008, MSHA approved Abundance's "alternate seal 

1 Section 104(b) of the Act provides as follows: 

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

representative of the Secretary finds (1) that a violation described in a citation 

issued pursuant to subsection (a) has not been totally abated within the period of 

time as originally fixed therein or as subsequently extended, and (2) that the 

period of time for the abatement should not be further extended, he shall 

determine the extent of the area affected by the violation and shall promptly issue 

an order requiring the operator of such mine or his agent to immediately cause all 

persons, except those persons referred to in subsection ©, to be withdrawn from, 

and to be prohibited from entering, such area until an authorized representative of 

the Secretary determines that such violation has been abated. 

31FMSHRC1242 
sampling plan-ventilation plan revision" accepting Abundance's proposal that it not conduct any 

sampling behind its set of 120 psi seals. 

As a part of a regular quarterly inspection on September 27, 2009, MSHA inspector Sam Hill 

took gas readings at, among other locations,_ the No. 1, seal set of Consol's Jones Fork mine and 

found15% oxygen and 13.3% methane. On the following day, September 28, 2009, Inspectors Hill 

and Ritchie returned to the Jones Fork mine, inspected seal set No. 1 and found 13 .4% oxygen and 

17% methane. Based on the second reading and the-range covered by the standard, Consol removed 

the miners from the underground portions of the Jones Fork mine. 

Terry Michael Jude, an MSHA inspector, traveled to the Abundance No. 1 mine on 

September 29, 2009, to report that MSHA had found this explosive mixture of gases behind the No. 

1 set of seals at the adjacent Jones Fork mine. Jude advised Abundance officials that, due to the 

explosive mixture at the Jones Fork mine and pursuant to 30 C.F.R. § 75.336(c), AbU.ndance was 

required to submit a plan to the district manager and withdraw miners from its mine. Jude also then 

issued the citation atbarfor a violationof30 C.F.R. § 75.336(c). Abundance owner Ray Slone first 

told Jude that he would comply with the citation and withdraw the miners; however, about 16 

minutes later Slone changed his mind and advised Jude that he would not voluntarily withdraw his 

miners without an order. Slone advised Jude that he was refusing to withdraw his miners due to his 

understanding that the 120 psi seals installed in the Abundance No. 1 mine and previously approved · 

by MSHA were sufficient to protect his miners. As a result, Jude issued the "Section 104(l> )"Order 

at bar. 

The Abundance 120 psi seals are approximately 4000 to 8000 feet from the No. 1 set of seals 

in the Jones Fork mine. After the 120 psi seals constructed by Abundance went through th~ cure 

period, Abundance was no longer required to sample atmosphere behind those seals, pursuant to its 

approved ventilation plan. The miners at the Abundance No. 1 mine are not required to travel in the 

area behind the 120 psi seals and the area behind the 120 psi seals is not used as an escapeway. 

John Urosek is employed by MSHA at its technical support center. He is currently chief of 

the mine emergency operations group and is also responsible for the seal approval group within 

MSHA' s technical support center. fu that capacity he is responsible for administering MSHA' s seal 

approval program. He has a B.S. degree in mining engineering from Pennsylvania State University 

and is a registered professional engineer. He was also the chairman of the emergency temporary 

standard. and the final rule committees for whatwas promulgated as 30 C.F.R. §§ 75.335, 75.336, 

75.337 and 75.338. Mr. Urosek is eminently qualified as an expert in mining engineering and, in 

particular, in regard to mine ventilation and mine explosions. Mr. Urosek has also been designated 

as the sole decision maker authorized to speak for the Secretary of Labor on this matter and therefore 

he is the designee to be given deference in interpreting the agency's regulations should that be 

necessary. See Thomas Jefferson University v. Shala/a, 512 U.S. 504-512 (1994) and Akzo Nobel 

Salt, Inc., et.al. v. Federal Mine Safety and Health Review Commission and Secretary of Labor, 212 

F.3d 1301 (2000). 

31 FMSHRC 1243 
There are currently ten seals in the Jones Fork mine. The seals in the Jones Fork mine at the 

No. 1 and No. 2 sets are Mitchell Barrett seals. The Mitchell Barrett seal is recognized as a 20 psi 

seal. Mr. Urosek was aware that there was an ignition in the sealed area within the Jones Fork mine 

in 2006. During this ignition in 2006, seals were damaged in the area of the Jones Fork mine. 

Urosek opined that because the Jones Fork mine has 20 psi seals, the Abundance mine is required 

to take action not based on the language of the cited standard but on its preamble in the Federal 

Register and upon a series of questions and answers published by MSHA on the internet. Even 

though it was Urosek' s opinion that Abundance was required to perform sampling behind its set of 

120 psi seals, he acknowledged that Abundance had a plan approved by MSHA which would not 

require them to do so. Urosek opined that this provision in Abundance's ventilation plan (which did 

not require any sampling behind the 120 psi seals) was issued in error. 

Abundance owner Ray Slone testified that in 2006, there was a set of Mitchell Barrett seals 

about 9,000 feet down the main line entry and another set of Mitchell Barrett seals approximately 

4,500 feet down the main line. These Mitchell Barrett seals were pre-shifted on a daily basis and 

there was no problem with these seals. At some point in time, a set of Omega seals was constructed 

approximately 1,500-2,000 down the main line. fu December 2007, Abundance constructed the 120 

psi seals at its mine based on his understanding that these seals would separate him from the Jones 

Fork mine and the gob area. fudeed, Norman Page, the MSHA district manager and several MSHA 

inspectors had confirmed his understanding. Moreover, since Slone constructed the 120 psi seals. 

. at the Abundance mine, and until the citation at bar, he had not been required by MSHA to perform 

any sampling of the atmosphere behind those seals. Furthermore, MSHA approved a change in 

Abundance's mine ventilation plan to acknowledge that no sampling was required behind 

Abundance's 120 psi seals. 

Gary Hartsog has B.S. and M.S. degrees in mining engineering and is licensed in nine states 

as a professional engineer. He testified that, in the course of his practice, he has been involved on 

a day-to-day basis with seal issues and as a member of the West Virginia Coal Association and the 

National Mining Association, has served on several safety commissions. He has also conducted 

seminars for professional engineers on sealing issues. He is clearly an expert in mine engineering 

and, in particular, in mine sealing. Hartsog is of the opinion that the regulations found at 30 C.F.R. 

Sections 75.335 and 75.336 are clear and do not require sampling behind the 120 psi seals after they 

have reached their strength. Hartsog opined that the Abundance mine is a separate mine by being 

separated by 120 psi seals. He concluded that based on the regulations there is no expectation that 

there would be a breach on the Abundance seal side. It is Hartsog' s expert opinion that if an operator 

has 120 psi seals, the regulations found at 30 C.F.R. Sections 75.335 and 336 are not applicable to 

that mine. 

The underlying issue in this case is a question of regulatory interpretation. More particularly 

the interpretation to be placed on the language in section 7 5 .3 36( c) that triggers withdrawal of miners 

when the air sample "taken from the sealed atmosphere with seals ofless than 120 psi" reach certain 

action levels of oxygen and methane. Abundance maintains that since it is undisputed that it had 120 

psi seals separating its atmosphere from the sealed atmosphere of the common gob area, the cited 

standard is not applicable and accordingly there was no violation as charged. 

31 FMSHRC 1244 
It is a cardinal rule of construction that if a regulation's meaning is plain, the regulation 

cannot be construed to mean something different from that plain meaning. Exportal Ltda. v. United 

States, 902 F.2d 45,50 (D.C. Cir. 1990); Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 

1984), (citing Udallv. Tallman, 380 U.S. 1, 16 (1965)). When the language of a provision is plain, 

the plain language is the meaning of the provision and the sole function of the courts is to enforce 

the language as written. Hartford Underwriters Ins. Co. v. Union Planters Bank, N.Na, 530 U.S. 

1, 6 (2002). 

I find the language of the cited standard to be perfectly clear and that since it is undisputed 

that Abundance was utilizing seals of 120 psi stre~gth separating its workings from the sealed 

atmosphere at issue, I find that Abundance was in compliance with the requirements of section 

75.336(c) and that there was no violation as charged. 

The fact that MSHA had indeed approved the very practice that Abundance was following 

in approving its "alternate seal sampling plan-ventilation plan revision" on December 12, 2008, that 

permitted Abundance to not conduct any sampling behind its set of 120 psi seals (See Exh. AB-6 and 

7) is also certainly consistent with the plain language of section 336(e). Since the cited standard is 

unambiguous, a second step Chevron (Chevron U.S.A., Inc. v. Natural Resources Defense Council, 

Inc., 467 U.S. 837 (1984)) analysis is not required. Exportal Ltda at 50. 

Under all of the circumstances I find that there was no violation of the standard at 30 C.F...R. 

§ 75.336( c) and that Citation Number 8227636 must be vacated. Since the "Section 104(b )"order 

at issue is preconditioned upon the existence of a violation charged in that citation, that order must 

also. be vacated. 

ORDER 

Citation Number 8227636 and Order Number 8227637 are het by vacated. 

GaryM 

Administrative La 

(202) 434-9977 

Distribution:(Facsimile and Certified Mail) 

Billy R. Shelton, Esq., Whitney, L. Lucas, Esq., Jones, Walters, Turner & Shelton, PLLC, 151 N. 

Eagle Creek Drive, Suite 310, Lexington, KY 40509 

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 

230, Nashville, TN 37219-2456 

lh 

31FMSHRC1245 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, D.C. 20001 

October 29, 2009 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

:Petitioner 

v. 

JOHNSON PAVING COMP ANY, INC., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WILLIAM T. PINSON, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 2007-128-M 

A.C. No. 31-01230-104558 

Marion Pit 

CIVIL PENALTY PROCEEDING 

Docket No. SE 2008-176-M 

A.C. No. 31-01230-132930 A 

Marion Pit 

DECISION 

Appearances: Dana L. Ferguson, Esq., U.S. Department of Labor, Atltanta, Georgia, on 

behalf of the Petitioner 

John V. Hawkins, Esq., Johnson Paving Company, on behalf of the Respondent 

Before: Judge Barbour 

These are consolidated civil penalty proceedings arising under sections 105( a), 110( a) and 

1 lO(c) of the Federal Mine Safety and Health Act of 1977 (the Mine Act or Act) (30 U.S.C. §§ 

815(a), 820(a), 820(c). In Docket No. SE 2008-176, the Secretary, acting on behalf of her Mine 

Safety and Health Administration (MSHA), petitions to assess William Pinson, Johnson Paving 

Company's ("Johnson Paving" or "the company'') quarry foreman, a total of$1,000 in civil 

penalties for two alleged violations of the mandatory safety standards for surface metal and 

nonmetal mines. In Docket No. SE 2007-128, the Secretary seeks to assess Johnson Paving a 

total of$13,200 in civil penalties for the same two alleged violations and for three others. The 

Secretary asserts that all of the alleged violations occurred at Johnson Paving's Marion Pit, a 

small granite extraction and crushing facility located in McDowell County, North Carolina. 

31FMSHRC1246 
BACKGROUND 

The citation and orders that set forth the alleged violations were issued by MHSA 

inspector Bonnie Armstrong as a result of her August 1, 2006, inspection of the pit. Inspector 

Armstrong began working for MSHA in 1996 after receiving MSHA required inspector training. 

Tr. 28-29. In addition to her duties as an inspector, she also acts as an MSHA special 

investigator. 1 Tr: 29. ~. 

The inspector described the Johnson Paving operation as one in which granite is extracted 

and crushed to size. Tr. 34. The resultant aggregate is sold to customers or is used by an 

adjoining plant that is also owned by Johnson Paving. At the adjacent plant, the company makes 

asphalt. Tr. 33-34. The mine is operated intermittently, and during the winter it might be shut 

down for up to two months. Tr. 31. 

Greg Johnson, the president of the company, confirmed the c.ompany is essentially "twotiered". Tr. 149. One part of the operation concerns paving, while the other concerns mining. 

Johnson explained that although he is the owner of the company, he concentrates on the paving 

side of the business. William Pinson, the foreman Johnson hired, runs the quarry. 

Johnson explained that he does not "micro[-]manage." Tr. 150. Rather, he tends to 

"[delegate] authority'' because it is "kind of impossible" for him to run both sides of the 

operation. Id. As for Johnson's relationship with Pinson, Johnson explained that he "kind of 

turn[s] ... [Pinson] loose with the quarry." Tr. 149. 

When Armstrong arrived at the mine on August 1, she met with Johnson. Armstrong 

introduced herself and explained why she was at the mine. Armstrong testified she tried to get 

some basic information about the mine from Johnson. She asked him how many miners worked 

at the mine. According to Arrilstrong, Johnson did not know. Soon after that, Johnson asked 

Pinson to join him and Armstrong. Tr. 32-33. When Pinson arrived, he told the inspector that 

ten to 11 company employees worked at the mine. Tr. 33. Pinson then accompanied the 

inspector into the pit. During the course of the inspection, Armstrong took notes and 

photographs. Tr. 34. According to the inspector, she issued "quite a few" citations for 

violations, many more.than are at issue in the subject cases. Tr. 35. Armstrong testified that 

1

The company challenged Inspector Armstrong's qualifications as an inspector and 

moved for the vacation of the contested citation and orders on the grounds that she lacked the 

training Congress mandated for the position. Tr. 115. Based on the inspector's testimony 

regarding her background and the fact that she is a duly authorized representative of the 

Secretary, I denied the motion. Tr. 116. 

31FMSHRC1247 
Pinson did not seem surprised by the conditions she cited. Indeed, she remembered his stating he 

knew about some of the conditions, but "he just didn't have the people to do the work, to do the 

repairs." Tr. 35. 

Following Armstrong's citation of the alleged volations, MSHA assessed civil penalties 

against both the company foreman and his employer. When Pinson and the company contested 

the proposed assessments, the Secretary petitioned for their imposition. The matters were heard 

in Knoxville, Tennessee. 

THE CONTESTED CITATION AND ORDERS 

ORDER NO. 

6120067 

The order states in part: · 

SE 2008-176 

DATE 

08/01/2006 

30C.F.R§ 

56.14100(b) 

The inside door latch on the John Dee~[ e] 3 70 trackhoe ... did 

not function when tested. The equipment operator would reach 

through the window to the outside latch to open the door. Not 

being able to open the door from the inside could impede exiting 

the equipment should there be an emergency. This trackhoe is 

used in the pit and plant to load haul trucks. This condition had 

been reported to the quarry.foreman by the equipment operator. 

The [f]oreman engaged inaggravated conduct constituting more 

than ordinary negligence[,] in that he knew the door latch did not 

function, and did not take corrective action. This violation is an 

unwarrantable failure to comply with a mandatory standard. 

Gov't Exh. 1. 

After the order was issued, it was modified to include additional conditions on the 

trackhoe, conditions that the inspector believed also violated 30 C.F.R. § 56.14100(b). The 

modification states: 

The steps on the trackhoe were broken off and missing. This 

creates a slip and fall hazard for the equipment operator when 

entering or exiting the trackhoe. T[he] top of the track is about 3' 

from [the] ground level. This condition had been reported to the 

quarry foreman by the equipment operator. Also[,] mirrors on the 

trackhoe were broken out. Mirrors are used by the equipment 

31 FMSHRC 1248 
operator to observe ... vehicle or foot traffic behind the machine. 

This condition had been reported to the quarry foreman by the 

equipment operator. The [f]oreman engaged in aggravated conduct 

constituting more than ordinary negligence[,] in that he knew the 

steps and mirrors were broken, and [he] did not take corrective 

action. This violation is an unwarrantable failure to comply with a 

mandat<?_ry standard. The trackhoe is used regularly at the pit and 

the plant to load haul trucks. 

Gov't Exh. 1 at 3 

Armstrong testified that while in the pit with Pinson, she noticed a trackhoe being 

operated and she decided to inspect it. The trackhoe is a piece of equipment used to excavate, to 

dig and to load material. On the day Armstrong saw it, the trackhoe was loading excavated 

material that was then trucked to the processing plant. Tr. 53. The trackhoe runs on two tracks 

and the trackhoe's bucket is located at the end of a movable arm. The ann extends from the 

trackhoe operator's end of the trackhoe's body. The trackhoe operator sits in an "operator's 

booth" which is located above one end of the tracks. The operator reaches the booth by climbing 

onto one of two "steps." The steps are welded to the.side of the trackhoe above the track on the 

operator's side of the equipment. Tr. 49 .. 

The operator enters the booth via a door. A window in the door allows the trackhoe 

operator to see the operator's side of the equipment. The window can be opened for ventilation 

and other purposes. The booth also has two exterior mirrors that allow the operator to see what 

is behind and to the side of the equipment. The operator sees what is in front of the equipment 

through windows located at the front of the booth. 

Armstrong and Pinson approached the trackhoe, and Armstrong advised the trackhoe 

operator she wanted to conduct an inspection of the equipment. Although Armstrong could not 

recall for sure, she testified the door to the operator's compartment might have been tied open. 

Tr.69. She wanted to know ifthe door was operating properly, so Armstrong asked the trackhoe 

operator if the inside door latch worked. The operator closed the door and used the latch. The 

door did not open. Rather, the trackhoe operator had to open the side window and reach through 

it to the outside latch. Tr. 40-41; 157. Armstrong also noticed that steps used to climb from the 

ground to the operator's compartment were missing and that the trackhoe's outside mirrors were 

broken.2 Id.; see Gov't Exh. 2, Gov't Exh. 3. 

2 Armstrong wondered how long these conditions had existed, and she later looked for 

records of the pre-shift examinations of the trackhoe. She could not find any. In fact, she could 

not find pre-shift examination records for any piece of equipment used at the mine. Tr. 54. 

31FMSHRC1249 
Armstrong described the trackhoe as being used "regularly" in the pit and plant to load 

material and finished product. Tr. 41. Although she knew of no instance in which a miner 

suffered an injury because of a defective interior door latch (Tr. 7 4), Armstrong believed a 

serious injury was reasonably likely to occur because the lack of a functioning latch restricted the 

trackhoe operator's ability to exit the equipment in the event of a fire, a rollover or another 

emergency. Id.; Tr. 73. fu concluding an injury was reasonably likely, she noted that the 

track:hoe was in use w_hen she inspected it and was used daily. Tr. 42. Should such an injury 

occur, Armstrong believed that it would result in the trackhoe operator being permanently 

disabled. Id. For example, if a fire occurred, the operator easily could be severely burned before 

he or she could get out of the eq-qipment. Tr. 74. 

fu addition, Armstrong testified that the broken mirrors compounded the hazard because 

the trackhoe operator might not be able to see a person or a vehicle approaching from the rear of 

the trackhoe and the operator might swing the equipment or back the equipment into the person 

or vehicle. Tr. 43. Armstrong observed, if a person were hit or run over by the trackhoe, 

crushing injuries were reasonably likely to occur. Id. Moreover, because the steps were missing 

from the side of the equipment, the trackhoe operator had to step up onto the top of the track to 

get into the operator's compartment, and the track was approximately three feet off of the 

ground. Tr. 49. Because of the height" of the required "step up," Armstrong felt that the 

equipment operator was more than likely to slip and fall while climbing into the operator's 

compartment. Such a fall could result in the operator['s] spraining his or her ankle or breaking 

his or her leg. Tr. 43. She added that the trackhoe was entered and exited "at least a couple of 

times a day." Id. 

Armstrong attributed the broken door latch, the broken mirrors and the missing steps to 

Johnson Paving's "high"negligence. Tr. 45. Armstrong recalled the trackhoe operator telling her 

that he reported the conditions to Pinson. fu addition, according to Armstrong, Pinson told her 

he knew about the condition of the door latch (Tr. 45, 71-72) and that the mirrors and steps had 

been broken since the previous April. Tr. 45-46. 

However, Pinson disputed Armstrong's testimony that he told her he knew about the 

condition of the door latch. He stated he did not know about the latch until the day of the 

inspection, when Armstrong asked the truck driver to open the door from the inside. Tr. 157, 

206. Pinson testified that he specifically recalled telling Armstrong that he did not remember the 

trackhoe operator ever saying the latch did not work. Tr. 157; see also Tr. 158. 

Armstrong was asked if she knew why the trackhoe' s defects had not been corrected. She 

responded she did not know, but she remembered Pinson saying to her that he "didn't have the 

people to help him get things done." Tr. 47. Because the condition of the missing steps and 

broken mirrors was obvious and because Armstrong believed Pinson knew about the conditions 

and did not correct them, Armstrong found the conditions were due to Johnson Paving's 

31 FMSHRC 1250 
unwarrantable failure. Tr. 53. Indeed, with regard to all of the conditions she observed and cited 

in the contested citation and orders, Armstrong stated she based her findings that the conditions 

were due to the company's unwarrantable failure on the fact that Pinson "knew [the] conditions 

existed and that they continued to exist and they had not been corrected." Tr. 79. 

Terry Lingenfelter testified that he works as a special investigator for the agency. In his 

capacity as a speeial investigator he conducts investigations of possible "knowing" violations on 

the part of the agents of operators. Agents of operators are subject to individual civil penalties 

under section 110( c ) of the Act when they commit such violations. In October 2006, 

Lingenfelter conducted a section 110( c) investigation into the circumstances surrounding the 

trackhoe order and another order (Order No. 6120071). Tr. 181-184. In October 2006, : 

Lingenfelter interviewed miners who worked at the mine when the trackhoe order was issued. 

He also interviewed Pinson. Lingenfelter testified that Pinson told him he did not know that the 

trackhoe's inside door latch was broken until August 1. Tr. 186. Lingenfelter also asked Pinson 

about the broken mirrors and missing steps. According to the investigator, Pinson did not have 

much to say. Id. However, the trackhoe operator told Lingenfelter that on several occasions he 

had "relayed" the information about the conditions to Pinson. According to the trackhoe 

operator, Pinson responded he "[had] it covered." Tr. 187. The only explanation Pinson gave to 

Lingenfelter for not correcting the conditions was that he did not have a mechanic to do the work. 

Tr. 187-188 · Lingenfelter acknowledged that he did not actually see the trackhoe; however, from · 

speaking with Inspector Armstrong, Lingenfelter understood that the conditions were "very 

obvious." Tr. 189, 190. 

Based on what he was told by Pinson and by the trackhoe operator, Lingenfelter 

concluded Pinson, who as the foreman was an "agent" of the company, knew or had reason to 

know about the trackhoe's cited conditions and that he "took no action to insure the safety of the 

miners with [regard to the] ... conditions." Tr. 188. Therefore, in Lingenfelter's view, Pinson 

violated section 1 lO(c) of the Act. Tr. 188, 205-206. 

THE VIOLATION 

Section 56.14100(b) requires "defects on any equipment ... that affect safety ... [to be] 

corrected in a timely manner to prevent the creation of a hazard to persons." There is no doubt 

the trackhoe was defective in several ways that affected safety. The company does not dispute 

that the trackhoe had a non-functioning inside door latch, was missing the steps by which its 

operator accessed the vehicle, and had broken mirrors. Each of these conditions "affected 

safety," in that each was capable of causing or contributing to the cause of an injury-producing 

accident. 

The record also establishes that two of the three conditions were not timely corrected. 

31FMSHRC1251 
Both the inspector and Lingenfelter testified the trackhoe operator told them he reported the 

conditions to Pinson and the operator told Lingenfelter he did so more than once. Armstrong 

recalled Pinson telling her the steps had been missing and the mirrors had been broken since the 

previous April. While Pinson denied he told Anderson he knew about the door latch until 

Armstrong asked the trackhoe operator to open the door on August 1, Pinson did not deny his 

prior knowledge of the condition of the steps and mirrors. In addition, the missing steps and 

broken mirrors were Qbvious when looking at the trackhoe. Pinson clearly should have had new 

steps installed and the broken mirrors replaced by August 1. In failing to do so, he was 

responsible for the company violating section 56.14100(b) as charged.3 

S&S AND GRAVITY 

An S&S violation is a violation "of such nature as could significantly and substantially 

contribute to the cause and effect of a ... mine safety or health hazard." 30 U.S.C. § 814(d). A 

violation is properly designated S&S, "if, based upon the particular facts surrounding that 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature." Cement Div., Nat'! Gypsum Co., 3 FMSHRC 

822, 825 (April 1981). To establish the S&S nature ofa violation, the Secretary must prove: (1) 

the underlying violation; (2) a discrete safety hazard- that is, a measure of danger to safety_,..· 

contributed to by the violation; (3) a reasonable likelihood the hazard contributed to will result in, 

an injury; and ( 4) a reasonable likelihood the injury will be of a reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC 3-4(January1984); accord Buck Creek Coal Co., Inc. 52 F. 3d 

133, 135 (71

h Cir. 1995); Austin Power Co., Inc. v. Sec'y of Labor, 81F.2d 99,103 (5th Cir. 

1988) (approving Mathies criteria). 

It is the third element of the S&S criteria that is the source of most controversies 

regarding S&S findings. The element is established only if the Secretary proves "a reasonable 

likelihood the hazard contributed to will result in an event in which there is an injury." U.S. Steel 

Mining Co., Inc., 7 FMSHRC 1125, 1129 (August 1985). Further, an S&S determination must 

be based on the particular facts surrounding the violation and must be made in the context of 

continued normal mining operations. Texasgulf, Inc., 9 FMSHRC 748(July1987); U.S. Steel, 7 

FMSHRC at 1130. 

Finally, the S&S nature of a violation and the gravity of a violation are not synonymous. 

The Commission has pointed out that the "focus of the seriousness of the violation is not 

3

However, because I credit Pinson's assertion that he did not know about the condition of 

the door latch until the inspection on August 1, I find the Secretary did not establish the 

malfunctioning latch violated the standard. Pinson did not have an opportunity to repair the latch 

in a "timely manner." 

31FMSHRC1252 
necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, 

but rather on the effect of the hazard if it occurs." Consolidation Coal Co., 18 FMSHRC 1541, 

1550 (September 1996).4 

I have already found that the Secretary established a violation of section 56.141 OO(b) with 

regard to the missing steps and broken mirrors. The violation contributed to the hazard of the 

trackhoe operator suffering a slip and/or fall injury, and it contributed to the hazard that those 

operating equipment or traveling on foot in the vicinity of the trackhoe would be hit as the 

trackhoe backed up or swung. In the context of ongoing mining operations, such hazards were 

reasonably likely to occur, in that the trackhoe operator regularly had to enter and exit the 

· trackhoe operator's compartment via a route m3;de'more difficult and hazardous by the lack of· 

the steps. In addition, other equipment and miners occasionally were in the vicinity of the 

trackhoe when it was moving backwards or swinging. If the operator of the trackhoe slipped and 

fell while entering or leaving the trackhoe operator's compartment, he or she was reasonably 

likely to sprain an ankle or to break a foot or leg bone. Or, if other equipment or miners were hit 

by the trackhoe as it backed up or swung, it was reasonably likely the equipment operators or the 

miners would experience crushing injuries or even death. Therefore, the violation was S&S. 

· The violation also was serious. As noted, the inspector's testimony established the 

trackhoe operator regularly accessed and left the operator~ s ·compartment by climbing up onto. the 

top of the track and by climbing or jumping down from the track. This meant the operator had to 

"step up" and "step down" a distance of approximately three feet each time he had to enter or 

leave the equipment. As already stated, the lack of steps subjected him to a slip and/or fall 

hazard, a hazard that carried with it the possibility of a serious injury. The broken mirrors posed 

an even greater hazard. The trackhoe could move back and forth and it could swing from side to 

side. The mirrors, had they not been broken, would have allowed the trackhoe operator to check 

for vehicular or pedestrian traffic in the path of the trackhoe as it moved. Without the mirrors, 

the trackhoe operator experienced "blind spots" when it came to what was to his rear and sides. 

The condition was especially hazardous to others who worked in the pit in the vicinity of the 

4

With regard to the gravity of all of the alleged violations, the company asserted that 

Armstrong was applying the regulations inconsistently, in that she found violations of the cited 

standards to be more serious at the company's mine than at the mines of other companies. 

Counsel for the company asked the inspector, "Why are these [alleged violations] ... so much 

more dangerous in your mind at Johnson Paving than they are at other places?" The inspector 

replied, "I'm not comparing Johnson Paving with anyone. I'm looking at what Johnson Paving 

did and the conditions that surround ... [what it did] .... I'm not comparing it to ... any other 

place." Tr. 140. She added she assessed the gravity of a violation on "the conditions that 

surround[ ed] a particular circumstance," and there is no evidence in the record that Armstrong, 

an obviously contentious and forthright inspector, acted otherwise. Tr. 141. 

31FMSHRC1253 
trackhoe either as the operators of mobile equipment or as travelers on foot. 

UNWARRANTABLE FAILURE AND NEGLIGENCE 

Unwarrantable failure is "aggravated conduct, constituting more than ordinary negligence 

in relation to a violation of the Act." Emery Mining Corp. 9 FMSHRC 1997, 2004 

(December 1987). Unwarrantable failure is characterized by such conduct as "reckless 

disregard," "intentional misconduct," "indifference," or "a serious lack of reasonable care." Id. 

2003-2004; Rochester &Pittsburg Coal Co., 13 FMSHRC 189, 193-194(February1991); see 

also Rock 9/ 4ges Corp. v. Sec '.Y of Labor, 170 F .3d 157 (2d Cir. J 999); Buck Creek Coal, Jnc. v. 

MSHA, 53 F.3d 133, 136 (7th Cir. 1995) (approving the Co:nimissio:tl's unwarrantable failure 

test). Moreover, the Commission has examined the conduct of supervisory personnel in 

determining unwarrantable failure, and recognized that a heightened standard of care is required 

of such individuals. See Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (December 

1987) (section foreman held to demanding standard of care in safety matters); S&H Mining, Inc., 

17 FMSHRC 1918, 1923_ (November 1995) (heightened standard of care required of section 

foreman and mine superintendent). Negligence, of course, is the failure to meet the standard of 

care required by the circumstances. 

I concl~de the violation was caused by an unwarrantable fail~re to comply with the 

standard. The Secretary established that the missing steps and broken mirrors existed for some 

time prior to inspection, at the most since the previous April, and at the least several days before 

the inspection. I:n either event, Pinson timely knew of the conditions; yet he took no action to 

correct the conditions or to eliminate the hazards by repairing the trackhoe or by ta1cing the 

trackhoe out of service. Further, the hazards posed by the conditions were serious, and Pinson' s 

failure in the face of his knowledge of the conditions represented a serious lack of reasonable 

care. I:n addition, Pinson's failure to correct the conditions or to otherwise eliminate the hazards 

they posed represented a grievous failure to meet the standard of care required of him as the 

foreman. He was, as the Secretary rightly charges, highly negligent, and his negligence is 

attributable to the company. 

PINSON'S INDIVIDUAL LIABILITY 

The Act provides that an agent of a corporate operator may be subject to civil penalties in 

his individual capacity for knowingly authorizing, ordering or carrying out a violation of the Act. 

30 U.S.C. § 820(c). The legal standards governing individual liability were summarized in 

Maple Creek Mining, Inc., 27 FMSHRC 555, 566-67 (August 2005): 

Section 105(c) of the Mine Act provides that whenever a corporate 

31 FMSHRC 1254 
operator violates a mandatory health or safety standard, a director, 

officer, or agent of such corporate operator shall be subject to an 

individual civil penalty. 30 U.S.C. § 820(c). The proper legal 

inquiry. for determining liability under section 110( c) is whether the 

corporate agent knew or had reason to know of a 

violative condition. Kenny Richardson, 3 FMSHRC 8, 16 (January 

1981, af!'d on other grounds, 689 F.2d 632 (61

h Cir. 1982), cert. 

denied, 461 U.S. 928 (1983); accord Freeman United Coal Mining 

Co. v. FMSRHC, 108 F. 3.d 358, 362-364 (D.C. Cir. 1997). To 

establish Section 110( c) liability, the Secretary must prove that an 

individual knowingly violated the law. Warr~n .Steen Constr., 

Inc., i4 FMSRHC 1125, 1131(July,1992)(citing United States v. 

Int'l Minerals & Chem. Corp., 402 U.S. 559, 563 (1971). A 

knowing violation occurs when an individual "in a position to 

protect employee safety and health fails to act on the basis of 

information that gives him [or her] knowledge or reason to lmow 

of the existence of a violative condition." Kenny Richardson, 3 

FMSHRC at 16. Section 110( c) liability is predicated on 

aggravated conduct constituting more than ordinary negligence. 

Beth Energy Mines, Inc., 14 FMRHRC 1232, 1245 (August 1992). 

As made clear in Kenny Richardson and BethEnergy, as a predicate to individual liability, 

a corporate operator's agent must be privy to knowledge or information that gives him reason to 

lmow of the existence of a violative condition under circumstances wherein his failure to act 

amounts to aggravated conduct constituting more than ordinary negligence. 

The company, as its name indicates, is a corporation. Pinson, who was hired and who 

worked as the company's foreman, was de facto in charge of the pit and was working as the 

company's agent. As found above, Pinson lmew that the steps on the tackhoe were missing and 

that the trackhoe's mirrors were broken. He was informed about the conditions and they were 

visually obvious; yet he did nothing to eliminate the hazards posed. Thus, there is ample 

evidence to conclude Pinson lmew of the conditions, yet permitted them to continue. 

I credit Armstrong's testimony that Pinson explained the presence of the conditions by 

telling her he did not have adequate personnel "to get things done." Tr. 47. Armstrong's 

memory of what Pinson said is consistent with Lingenfelter's testimony about a more specific 

conversation he had with Pinson, one in which Lingenfelter remembered Pinson saying he did 

not have a mechanic to make the necessary corrections. Tr. 187. I believe the statements reflect 

the fact that the company did not provide Pinson with the resources he needed to ensure a safe 

work place. It is also noteworthy that when Pinson testified, he offered no explanation for why 

he did not take the trackhoe out of service until the conditions could be fixed. The bottom line is 

that Pinson, a supervisor responsible for the safety of those working for him, essentially chose to 

31 FMSHRC 1255 
continue mining operations in the face of serious hazards. In so doing, he exhibited aggravated 

conduct constituting more than ordinary negligence. Therefore, he may be held individually 

liable for the violation of section 56.141 OO(b ). 

ORDER NO. 

61200]1 

The order states in part: 

DATE 

08/01/2006 

30 C.F.R. § 

56.14103(b) 

The windshield for the ... welding truck ... was cracked 

throughout and had a hole in the top drive side. The truck is used . 

regularly throughout the plant and quarry to perform repairs 

on the plant and equipment. The truck is around other mobile 

equipment and employees when traveling around the plant and pit. 

The damage could create a visibility hazard as well as a cutting 

hazard to the operator when cleaning the windshield. The quarry 

foreman stated he used the welding truck yesterday and knew the 

windshield was broken and cracked and [he] did not take corrective 

action. This violation is an unwarrantable failure to comply with a 

mandatory standard. 

Gov't Exh. 5. 

At the plant and in the pit, there were occasions when welding was done to make 

necessary repairs. To facilitate the work, the company kept welding materials on the bed of a 

truck and moved the truck around the plant and pit as needed. According to Pinson, on August 1, 

2006, the truck was located-"up round some scrap metal" in an area he referred to as "the 

junkyard." Tr. 159. Armstrong testified that she and Pinson approached the truck, and 

Armstrong noticed that its windshield was cracked. She also noticed a hole at the top of the 

glass. Armstrong could not remember if she climbed into the cab of the truck and tried to look 

through the windshield (Tr. 63-64), but as best as she could recall, the cracks and the hole were 

more to the driver's side of the windshield than the passenger's side. Tr. 64-65; See, Exh. 6. 

Armstrong asked Pinson if the truck had been used, and he responded it was used the day 

before the inspection. Armstrong believed the windshield's condition "could obstruct the [truck] 

operator's visibility'' and ifthe windshield "fogged" and the driver wiped the windshield from 

the inside, the crack and the hole could pose a cutting hazard to the driver. Id. 

Pinson did not deny the presence of defects, but he did not believe they obstructed the 

driver's visibility. He testified, on July 31 the truck could not be started and it was dragged to 

31 FMSHRC 1256 
where the inspector found it.5 Pinson sat in the driver's seat and steered the truck. Tr. 169-170. 

He testified that he could see, and that the cracks and hole did riot obstruct his vision. Tr. 160. 

The company introduced into evidence a photograph that Pinson identified as having been taken 

the day before the hearing. Tr. 164; Resp. Exh. 7. (Because the truck was taken out of service 

after it was cited for the defective windshield, the company maintained the photograph showed 

the condition of the window exactly as it was on August 1, 2006, an assertion the Secretary did 

not contest. Tr. 162.) 

Armstrong testified that an injury was reasonably likely to result from the defective 

windshield. She noted that the welding truck was used regularly throughout the mine and that it 

had been used just before she got to the mine. Tr. 56, 58. · She observed that the truck traveled in 

areas where there was foot traffic and that the cracks and hole reduced the ability of the truck 

driver to see those working or traveling around truck. If because of reduced visibility the truck 

stuck and ran over someone, a fatality was likely.6 Tr. 57, 58. Armstrong also believed Johnson 

Paving was highly negligent in allowing the condition to exist. She recalled Pinson's telling her 

he knew the windshield was "busted and that he had used the truck" anyway. Tr. 59. She noted 

that despite being aware of the windshield's condition, Pinson did not do anything to repair it. Tr. 

62. This also led her to conclude the condition was the result of Johnson Paving's unwarrantable 

failure. Tr. 61-62. 

Lingenfelter testified the defective windshield represented a knowing violation on 

Pinson's part. His reasons for reaching that conclusion were basically the same as those 

regarding his conclusion that Pinson was knowingly responsible for the defective conditions on 

the trackhoe. Tr. 205-206. 

To correct the condition, Johnson Paving took the welding truck out of service by 

removing all of the welding equipment from the truck and by removing the truck's battery. Tr. 

60-61, 163. 

THE VIOLATION 

Section 56.14103(b) requires in part that damaged windows on self-propelled mobile 

5 According to Pinson, the battery in the truck was dead. A jump[-]start failed, and the 

truck was towed by another piece of equipment. Tr. 168. 

6

However, Armstrong admitted she knew of no instances in which miners had been 

fatally injured by trucks because of cracked windshields. Tr. 75. 

31FMSHRC1257 
equipment that "obscure visibility necessary for safe operation, or create a hazard to the 

equipment operator" be removed or replaced. There is no doubt the cited truck qualified as selfpropelled mobile equipment. While it is true the truck's battery was dead at the time the 

defective windshield was cited, the question of whether or not a violation is proven must be 

considered in terms of continued normal mining operations. Without evidence to the contrary, it 

is reasonable to assume that in the course of continued normal mining operations the battery 

would have been recharged or replaced and the truck would have regained its ability to propel 

itself. . ~ 

Clearly, the truck's windshield was damaged. The parties agree it was cracked and that it 

contained a single hole. This leaves two questions. Did the defects in the windshield "obscure 

visibility necessary for safe operation" and, did the defects "create a hazard to the [welding truck] 

operator~" 30 C.F.R. § 56.14103(b). The Secretary has the burden of proof. To establish the 

violation, a preponderance of the evidence must allow either question to be answei:_ed in the 

affirmative. 

The evidence is in conflict as at to whether the cracks and hole obscured the truck 

driver's visibility so as to-create a hazard. Armstrong testified the defects "could obstruct the 

operator's visibility." Tr. 56 (emphasis added). Pinson, who steered the truck as it was being 

dragged, testified that he could see where he was going and that his visibility was not obstructed. 

Tr. 159. Anderson recalled the cracks and the hole as more on the driver's side of the windshield 

than on the passenger's side, and the Secretary introduced a photograph that seemed to indicate 

this was so. Tr. 64-65; See See's Exh. 6. The company introduced a photograph that appeared to 

show the cracks and hole were more toward the passenger's side of the windshield. See Resp. 

Exh. 7. 

After weighing all of the evidence as to the effect of the defects on the driver's visibility, 

I conclude it is in equipoise and the Secretary has not prevailed. A different conclusion might 

have been reached if Armstrong could have unequivocally testified as to what she saw when she 

sat in the driver's seat, but she could not. She did not remember if she climbed into the cab and 

tried to look through the windshield on the driver's side. Tr. 63-64. On the other hand, Pinson, 

who was in the driver's seat on July 31, was certain he could see. Tr. 159. It also does not help 

the Secretary's case that no testimony was offered as to how and from what angle the photograph 

purporting to show the defective windshield was taken. Such testimony would have given the 

finder of fact a better basis to evaluate the photograph's accuracy. 

I also conclude the Secretary did not prove by a preponderance of the evidence that the 

cracks and hole created a hazard to the truck driver. Armstrong believed ifthe windshield 

fogged, the driver could cut his or her hand if he or she wiped the windshield from the inside. Tr. 

56. However, the Secretary offered no testimony to support her speculation. For example, 

Armstrong did not testify that she felt the glass and experienced sharp, jagged edges. Section 

56.140103(a) required the windshield to be made of"safety glass" or its equivalent. Safety glass 

31FMSHRC1258 
typically cracks rather than shatters. It is common knowledge that such cracks do not necessarily 

produce edges capable of cutting a person's hand. The same is true for holes in safety glass. 

Based on the trial record, I cannot find the Secretary proved the cracks and/or the hole in the 

welding truck's windshield constituted a cutting hazard. For these reasons, the order must be 

vacated. 

CITATION NO. 

6120066 

The citation as modified states: 

SE 2007-128-M 

DATE 

·08/01/2006 

30 C.F.R. 

56.14107(a) 

The shaft on the quarry pump [was] not guarded to protect persons 

from contacting the moving parts. [The] pump is started with a 

switch located by the fan and belt drive; [the] throttle control is 

loca~ed by the rotating shaft. · The pump is 'located on uneven[,] 

rocky terrain. Persons could be seriously or fatally injured if 

entangled in the moving parts. This pump is used on a regular 

basis. The quarry foreman stated he knew the pump was not 

guarded, and [he] used the pump anyway. The [ f]oreman engaged 

in aggravated conduct constituting more than ordinary 

negligence[,] in that he knew the pump shaft ... [was] not guarded 

and [he] did not take corrective action. This violation is an 

unwarrantable failure to comply with a mandatory standard. 

Gov't Exh. 8 at 1, 2 

In addition to the trackhoe and the welding truck, Armstrong testified she inspected a 

pump that was used to remove water accumulations from the pit. Tr. 82-83. Removal of the 

water was necessary for the company to carry out its extraction and loading operations. Although 

no water was present in the pit on August 1, Armstrong remembered Pinson telling her he started 

and used the pump the previous week. Id. In addition, she recalled another miner telling her that 

he used it. Tr. 83. 

Armstrong noticed the pump's shaft was not guarded. Tr. 83. Nor was the pump 

removed from service by being "tagged out" or by having a sign nearby indicating it should not 

be used. Tr. 91. Armstrong took a photograph of the unguarded shaft. See Gov't Exh. 9. 

31FMSHRC1259 
Armstrong believed the missing guard was "reasonably likely" to lead to an injury, 

because the pump had to be used and the pump's throttle control was adjacent to the unguarded 

pump shaft. A person had to stand about 12 inches from the unguarded shaft to start the pump 

and to "throttle it up." Tr. 85-87. According to Armstrong, the ground in the pit, including the 

ground next to the shaft, consisted of "uneven and rocky terrain," which added to the hazard. Tr. 

84, 89. See also Gov't Exh. 9. Armstrong testified that the shaft rotated at a very fasttate, and if 

a person were caught_by the shaft, he or she could be pulled into the shaft and quickly lose an 

arm. Death could result. Tr. 84-85. 

fu Armstrong's opinion, the lack of a guard was the result of Johnson Paving's "high 

negligence." Tr. 90. She testified she remembered Pinson saying he knew the pump should have 

been guarded. Id. She added that Pinson told her "he knew it was wrong to use ... [the pump] 

without it being guarded." Id. In addition, she believed the lack of a guard was the result of an 

unwarrantable failure on the company's part. She again pointed to the fact that Pinson knew the 

shaft was unguarded, that he used it anyway and that he took no steps to provide the shaft with a 

guard. Tr. 91. Johnson Paving corrected the condition by placing a box-type guard around the 

rotating shaft. Tr. 92; See Gov't Exh. 10. 

Pinson stated that the pump the inspector Cited had been put in place the day before the 

inspector arrived. Tr. 153. It was decided to bring the pump to the pit after the bearings failed 

on a previous pump. According to Pinson, before the inspector saw the pump, it had been run for 

"a few minutes" to test it. Tr. 153. It was run without a guard so the guard would not have to be 

removed if something was wrong with the pump. Id. When asked by the Secretary's counsel 

why he did not guard the shaft after he tested it, Pinson explained that he "got tied up," that he 

also had to correct the condition of the park brake on a haulage truck (another condition cited on 

August 1) and he "figured it was more important to put the brakes on that truck than it was to put 

a guard on [the] pump." Tr. 156. 

THE VIOLATION 

Section 56.14107(a) requires "[m]oving machine parts [to] be guarded to protect persons 

from contacting ... shafts ... and similar moving parts that can cause injury." The pump was 

not removed from service; nor was its shaft guarded. The testimony established the pump was 

going to be used as mining continued in the pit. The unguarded, rapidly spinning shaft posed a 

hazard, as Armstrong testified, to those working or standing near it. If a miner were caught in the 

unguarded, rotating shaft, he or she could have been injured or even killed. Tr. 84-85. For these 

reasons, I conclude the violation existed as charged. 

31 FMSHRC 1260 
S&S AND GRAVITY 

The Secretary established the violation was both S&S and serious. All of the S&S 

criteria were met. There was a violation of section 56.14107(a). The violation posed a safety 

hazard to miners, in that the unguarded shaft was within 12 inches of the throttle control. 

Because the control was used when the pump was started (Tr. 85-87), there was a danger the 

miner whose job it was-to start and throttle up the pump would trip or slip and find himself or 

herself ensnared by the shaft. In fact, given the short distance between the throttle and the 

unguarded shaft and the uneven terrain in the pit, it was reasonably likely the hazard would 

occur. 7 Finally, being pulled into the rotating shaft could result in any number of serious injuries 

or, as Anderson persuasively testified, even in death. Tr. 84-85 .. Given these reasonably expected 

cons~quences ifthe feared accident OCCUrred, I conclude that the violation was not only S&S, it 

also was serious. 

UNWARRANTABLE FAILURE AND NEGLIGENCE 

The violation was the result of unwarrantable failure on the company's part. As 

previously noted, Pinson as the supervisor in charge of the pit, acted on the company's behalf. 

Pinson' s testiniony established the pump had been in place for a day. He tested it to make sure it 

·' worked properly, but he did not guard the shaftafter the test was completed. He forthrightly 

explained that he deferred installing the guard because he considered fixing the park brake on a 

haulage truck to be "more important." Tr. 156. Setting priorities in correcting violations does 

not excuse Pinson's failure to meet the standard of care required of him. If Pinson did not have 

adequate resources to correct both conditions and ifhe believed guarding the pump's shaft was 

not a top priority, he should have met the standard by taking the pump out of service. He chose 

not to do this, and he left the pump shaft unguarded. It is reasonable to expect that in the course 

of normal mining operations, the pump would have been started and throttled up by a miner as 

mining continued. Exposing the miner to the hazard of possible dismemberment or worse by 

deliberately leaving the shaft unguarded constituted a serious lack of reasonable care on Pinson' s 

part and, hence, on the company's part. 

Further, due to his status as a foreman, Pinson was held to a heightened standard of care. 

His choice to forego guarding the shaft and his decision not to take the pump out of service until 

it was guarded represented the kind of heightened lack of care that signifies high negligence. 

ORDER NO. 

61200701 

DATE 

08/01/2006 

30 C.F.R. § 

56.14101(a)(2)) 

7

The likelihood of an injury-resultant slip or fall was further increased by the fact that 

surface water was an occasional problem in the pit. 

31FMSHRC1261 
The order states in part: 

The park brake on the ... haul truck ... would not hold a grade 

with a typical load. This truck is used to haul material from the pit 

to the plant and to the stockpile area at the plant. This condition 

creates a hazard of this piece of equipment rolling when parked. 

Persons working in the area or around this truck could be struck or 

run over[,] causing a serious or fatal injury. The truck is normally 

parked on level ground when not in use. 

Gov't Exh. 11. 

During the course of the inspection on August 1, Armstrong and Pinson approached a 

truck that was used to haul rock to the stockpile. Armstrong did not know how many tons of 

material the truck held, but she guessed between 15 and 20. The truck was sitting on a small 

grade at the dump, and Armstrong asked the driver to move the truck a little and then to set its 

park brake. She wanted to see ifthe brake would hold the truck on the grade. The driver did as 

Armstrong requested, and the truck rolled down the gtade. Tr. 96. Armstrong believed the lack 

of an effective working park brake violated section 56.14101(3.)(2): However, Armstrong also 

believed the ineffective brake was "unlikely'' to cause a fatal accident. Tr. 97; Gov't Exh. 10. 

She noted the truck usually was parked on level ground where it would not roll and where it was 

out of the way of miners and equipment. Tr. 97-98. Although an injury was unlikely, if a miner 

(probably a mechanic or the operator of equipment used in the vicinity of the truck) were struck 

by the moving truck, it was reasonable to expect the miner to suffer crushing injuries, injuries 

that could prove fatal. Tr. 98. 

Armstrong testified the defective brake was due to the company's high negligence. She 

stated Pinson told her that a week before the inspection he became aware of the situation and he 

ordered the brake to be "tightened ... up." Tr. 99. Therefore, on August 1, Pinson thought the 

brake was holding. Tr. 99. However, according to Armstrong, "[T]here was no follow-up ... to 

see ... [if the adjusted brake] was holding."8 Tr. 99. She also maintained the truck driver said 

that the brake had not worked properly for "about a month" and "that . . . Pinson knew of the 

condition." Tr. 100. 

The company did not offer any testimony about the condition. 

8

Armstrong testified she believed one of the reasons for the lack of follow-up was that the 

company was not doing any pre-shift examinations. Therefore, defects in equipment were not 

being reported and corrected as required. Tr. 99-100. 

31FMSHRC1262 
THE VIOLATION 

Section 56.14101 ( a)(2) states: "If equipped on self-propelled mobile equipment, parking 

brakes shall be capable of holding the equipment with its typical load on the maximum grade it 

travels." The elements of proofrequired to establish a violation are as stated in the standard. 

The Secretary must proY.e: (1) that the cited equipment was "self-propelled mobile equipment" 

and (2) that the park brake would not hold the equipment with its (a) "typical load" on (b) the 

"maximum grade" the equipment travels. 30 C.F.R. § 56.14101(a). 

The Secretary proved that the haul truck qualified as "self-propelled mobile equipment." 

The very nature of the truck as described by Armstrong made it self-evident. Further, the 

Secretary proved that the park brake would not hold the truck on the "maximum grade" it 

traveled. Armstrong testified, when she inspected the truck it was parked on "a small grade." 

Tr.96. While there was no specific testimony about the maximum grade the truck traveled, I 

infer from the inspector's testimony that the small grade either was the maximum grade at the 

mine or, if not, that since the park brake would not hold the truck on the small grade, it would not 

hold it on the maximum grade. However, the Secretary did not establish that the brake was 

incapable of holding the equipment with its typical load; No testimony was offered by the 

Secretary regarding the truck's typical load nor was 'testimony offered regarding the load the 

truck was carrying when it was cited. Armstrong testified regarding the truck's use. She stated it 

was "used to haul material from the pit to the plant, and it was used in the stockpile area." Tr. 

95. However, Armstrong did not describe or otherwise identify the truck's "typical load"; nor 

did she estimate the load the truck was carrying.9 Without the missing testimony I cannot 

determine whether or not the park brake was "capable of holding the equipment with its typical 

load." 30 C.F.R. § 56.14101(a)(2). Because I cannot rule out the possibility that when 

Armstrong inspected the truck, it was carrying more than its typical load and the defective brake 

would have held a lesser but "typical" load, the order must be vacated. · 

ORDERNO. 

6120072 

The order states in part: 

DATE 

08/01/2006 

30 C.F.R. § 

56.14132(a) 

9

The closest Armstrong came to these topics was her statement that the truck was "a 

stockpile type truck that [held,] I don't know how much 15, maybe 20 tons," but she added, "I'm 

not sure how much was in there." Tr. 96. 

31 FMSHRC 1263 
The manually operated horn on the ... welding truck ... did not 

function when tested. The truck is used regularly [throughout] the 

plant and quarry and is around other mobile equipment and 

employees when traveling around the plant and pit. Persons could 

be seriously or fatally injured if struck by the truck while being 

unaware that it was moving in their direction. The quarry foreman 

stated ]le used the welding truck yesterday and knew the horn did 

not function. The foreman engaged in aggravated conduct 

constituting more than ordinary negligence[,] in that he knew the 

horn was not function[ing] and did not take corrective action. This 

violation is an unwarrantable failure to comply with a mandatory 

standard. 

Gov't Exh. 12. 

Armstrong testified that during the course of her inspection of the welding truck, the same 

truck she cited for a defective windshield and broken mirrors, she discovered the truck's manual 

horn did not work. Tr. 102. Pinson told Armstrong he knew that the horn did not work. Tr .. 102 . 

. Accordingto Pinson, this was because the truck's batterywas·dead. If the battery "had 12 volts 

going through it, [the horn] would" have worked. Tr. 167. 

Because the truck was used in the plant and pit on a regular basis and in areas where there 

could be foot traffic, Armstrong believed it was reasonably likely the lack of a horn would result 

in an accident. Tr. 102-103. She also noted that the truck frequently was driven in those areas of 

the pit where there was other mobile equipment and in the "yard area" where material was 

stockpiled. Tr. 112. (The yard area was frequented by customers' trucks. Tr. 112.) Armstrong 

could not recall the truck having another type of sound system to alert miners to its presence. Tr. 

103. If there was a small air horn on the seat next to the driver, and she was later told that there 

was, Armstrong did not remember its being there. Tr. 104. Pinson, however, was certain an air 

horn was on the seat. Tr. 166. He testified he made sure air horns were kept in the cabs or 

operators' compartments of all mobile equipment at the mine. Id. He added, "If your horn went 

out ... you could use ... [the air horn] until the end of your shift and you could [then] get your 

horn fixed. That's the reason I had ... [the air horn] in that truck." Tr. 166. Nevertheless, even 

if an air horn was present, Armstrong believed Johnson Paving still was in violation of the cited 

standard because "the horn that is provided with the equipment needs to function." Tr. 104. 

The inspector found that the lack of a functioning horn was reasonably likely to result in a 

fatal injury. She maintained "a lot" of service equipment was located on the truck, which meant 

the truck frequently was visited by miners. fu addition, the truck was used "throughout the 

mining process." Tr. 105. Not only were these miners exposed to the hazard, the lack of a 

working horn also posed a hazard to the drivers of other trucks and mobile equipment in the pit 

31FMSHRC1264 
and yard. Tr. 112. 

Armstrong also believed the company's negligence was "high." Tr. 106. She testified 

that Pinson told her he used the truck on July 31, the day before the inspection, and that he knew 

the horn did not work. Tr. 106. This, and the fact that Pinson "didn't do anything to try to 

correct the condition," justified her finding of unwarrantable failure in addition to high 

negligence on the com.tfany's part. Tr. 107. When asked whether Pinson explained why the horn 

was not repaired, she stated he only said "he had to do everything himself." Tr. 108. 

THE VIOLATION 

Section 56.14132(a) states that "Manually-operated horns ... provided on self-propelled 

mobile equipment as a safety feature shall be maintained in functional condition." As I have 

already noted, the welding truck was "self-propelled mobile equipment." Further, the cited horn 

was operated by hand and, thus, was "manually-operated." The horn that came with the truck 

was "provided," and it is clear that it was a "safety feature." Everyone agreed the horn would not 

sound. Therefore, it was not "maintained in functional condition," and the violation existed as 

: c~arged. 

S&S AND GRAVITY 

The Secretary did not establish that the violation was S&S. While it is true the truck's 

horn did not work, the record supports finding another method of warning miners on foot and 

operators of other equipment of the truck's presence was available to the welding truck's driver. 

Armstrong did not recall if there was an air horn on the seat next to the driver. 10 Tr. 104. 

However, Pinson, who had been in the truck the day prior to the inspection, was sure the air horn 

was present, and he persuasively testified he made certain such horns were routinely kept in the 

cab of all mobile equipment at the mine. Tr. 166. Balancing Armstrong's lack of memory 

against Pinson's certainty, I have no trouble in concluding the air horn was indeed present as 

Pinson asserted. Clearly, the air horn was reasonably likely to be used by the truck driver as 

mining operations continued, and the presence of an effective alternative to the horn provided 

with the truck meant that the non-working horn was not reasonably likely to cause or contribute 

to an injury-producing accident. The presence of the air horn also meant that the violation was 

not serious. 

10This is not surprising since, as noted earlier, Armstrong could not recall climbing into 

the truck's cab. Tr. 63-64. 

31 FMSHRC 1265 
UNWARRANTABLE FAILURE AND NEGLIGENCE 

However, the violation was the result of unwarrantable failure on the company's part. 

Armstrong testified without dispute that Pinson told her he used the truck on July 31 and that he 

knew the horn did not work at that time. Tr. 106. I conclude Armstrong's recollection is 

accurate and that, in fact, Pinson did know the horn was not working on July 31. Armstrong's 

testimony is consistent with Pinson's statement that the battery, which not only started the truck 

but also operated the horn, was dead the previous day when the truck was towed. Tr. 167. 

Further, her unrefuted recollection that Pinson's excuse for not repairing the horn was that "he 

had to do everything himself' (Tr. 108), correlates with her recollection of Pinson telling her, in 

connection with the trackhoe's defects, that he "didn't have the people to help him get things 

done." Tr. 47. While these statements call into question the way mine management chose to 

operate the mine, they in no way excuse Pinson's failure to correct the violative conditions. 

Armstrong properly noted that, in the face of his knowledge of the defect, Pinson did nothing to 

try to repair the horn or, in the alternative, to take the horn and the truck out of service. Tr. 107. 

fu failing to act, Pinson, and through Pinson, the company, exhibited a serious lack of reasonable 

care, a lack of care that signifies not only unwarrantable failure, but also high negligence. 

OTHER CIVIL PENALTY CRITERIA 

There is no indication the size of any civil penalties assessed against the company will 

affect its ability to continue in business, and I find that it will not. There also is no indication the 

size of any civil penalties assessed against Pinson will affect his ability to meet his day-to-day 

financial obligations, and I find that it will not. 

Recalling Armstrong's testimony that Pinson told her ten to 11 employees worked at the 

mine (Tr. 33), and noting the Secretary's indication on Exhibit A of the petition that the mine 

operated between 10,000 and 20,000 hours annually (Petition for Assessment of Civil Penalty, 

Exh. A at 2), I conclude the operator is small in size. 

The parties stipulated that the company showed good faith in abating all of the alleged 

violations, and I find this was the case. Tr. 164-165. 

The Secretary offered into evidence a computer printout showing the history of prior 

violations in the two years preceding August 1, 2006. The Secretary's counsel stated the printout 

revealed a small history, a characterization with which the company neither agreed nor disagreed. 

See Joint Exh. 1; Tr. 23-25. Based on the exhibit, I find the Secretary is correct and that the 

company has a small history. The Secretary offered no evidence or testimony indicating Pinson 

previously committed knowing violations pursuant to section 1 lO(c) of the Act (30 U.S.C. § 

31 FMSHRC l266 
820( c ), and I conclude that he did not. 

ORDER NO. 

6120067 

CIVIL PENAL TIES 

SE 2008-176-M 

DATE 30 C.F.R. § 

08/0120/06 56.14100(b) 

PROPOSED ASSESSMENT 

$500 

I have found the Secretary proved the violation to the extent it related to the missing steps 

and broken mirrors on the trackhoe. I also have found Pinson knowingly allowed the violation to 

occur. I conclude, however, that Pinson, as a "first-time offender" with no previous history of 

prior violations, should not be assessed the amount the Secretary proposes. As I have stated, the 

tenor of the hearing made it clear that Pinson was placed in a position where he did not have the 

means necessary to ensure safety in a timely manner. It is not clear whether this state of affairs 

reflected a purposeful policy on top management's part or whether it was the result of Greg 

Johnson's "hands-off' attitude. See Tr. 149. (Having heard Johnson testify, I suspect it was the 

latter rather than the former.) In either event, it put Pinson in a very difficult position as he tried 

to keep production going in the face of inadequate maintenance and repair resources. In view of 

all of the circumstances, I find a penalty of $250 is appropriate. 1 

ORDER NO. 

6120071 

DATE 

08/01/2006 

30 C.F.R. § 

56.14103(b) 

PROPOSED ASSESSMENT 

$500 

I have concluded the Secretary did not prove the alleged violation. Accordingly, no 

penalty can be assessed. 

CITATION NO. 

6120066 

SE 2007-128-M 

DATE 30 C.F.R. § 

08/01/2006 56.14107(a) 

PROPOSED ASSESSMENT 

$2,000 

I have concluded the Secretary proved the violation, that it was serious and result of the 

company's high negligence. However, in view of the small size of the mine and the small history 

of previous violations, I also conclude the company should be assessed a lesser amount than the 

Secretary proposes. As Joint Exhibit 1 reveals, in the two years prior to the violations in 

question the highest penalty assesseded against the company was $463. Most violations were 

assessed at $228 or less. (Excluding the violations at issue, 26 of 41 prior violations were 

assessed at $60.) Thus, for this violation of section 56.14107(a) the Secretary has proposed a 

31FMSHRC1267 
penalty significantly larger than any previously assessed. Such a precipitous increase is not 

warranted, and I find a penalty of $1200 to be appropriate. · 

ORDER NO. 

6120067 

DATE 

08/01/2006 

30 C.F.R. § 

56.14100(b) 

PROPOSED ASSESSMENT 

$2,800 

I have conclutied the Secretary proved the violation, that it was serious and the result of 

the company's high negligence. For the reasons set forth immediately above I also find the 

Secretary's proposed assessment to be excessive, and I conclude a penalty of$1,200 to be 

appropriate. 

ORDER NO. 

6120070 

DATE 

08/01/2006 

30 C.F.R § 

56.1410l(a)(2) 

PROPOSED ASSESSMENT 

$2,800 

I have concluded the Secretary did not prove the alleged violation. Accordingly, no 

penalty can be assessed. · 

ORDER NO. 

6120071 

DATE 

08/01/2006 

30 C.F.R. § 

56.14103(b) 

PROPOSED ASSESSMENT 

$2,800 

I have concluded the Secretary did not prove the alleged violation. Accordingly, no 

penalty can be assessed. 

ORDER NO. 

6120072 

DATE 30 C.F.R. § 

08/01/2006 56.14132(a) 

PROPOSED ASSESSMENT 

$2,800 

I have concluded the Secretary proved the violation, that it was not serious and that it was 

the result of the company's high negligence. For the reasons set forth with regard to Citation No. 

6120066 and because the violation was not serious, I find the Secretary's proposed assessment to 

be excessive. I conclude a penalty of $800 is appropriate. 

ORDER 

Within 30 days of the date of this decision, Pinson SHALL pay to the Secretary a civil 

penaltyof$250 forthe violation of section 56.14100(b) set forth in Order No. 6120067. In 

addition, Order No. 6120071 IS VACATED. Upon payment of a total penalty of $250, Docket 

No. SE 2008-128-M IS DISMISSED. 

31FMSHRC1268 
Also within 30 days of the date of this decision, Johnson Paving SHALL pay $1,200 for 

the violation of section 56.14107(a) set forth in Citation No. 6120066, $1,200 for the violation of 

section 56.14100(b) set forth in Order No. 6120067, and $800 for the violation of section 

56.14132(a) set forth in Order No. 6120072. fu addition, line lO(a) of Order No. 6120072 IS 

MODIFIED to indicate an injury was "unlikely'' and Order No. 6120070 IS VACATED. Upon 

payment of a total penalty of $3,200, Docket No. SE 2007-128-M IS DISMISSED. 

Distribution: (Certified Mail) 

David F. Barbour 

Administrative Law Judge 

(202) 434-9980 

Dana L. Ferguson, Esq., U.S. Dep~ent of Labor, Office of the Solicitor, 61 Forsyth Street, 

SW, Suite 7T10, Atlanta, GA 30303 

John V. Hawkins, 2641 Shipetown Road, Mascot, TN 37806 

/ej 

31FMSHRC1269 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

October 26, 2009 

SECRETARY OF LABOR, TEMPORARY REINSTATEMENT 

MINE SAFETY AND HEALTH PROCEEDING 

ADMINISTRATIQN, (MSHA), 

on behalf of LIGE WILLIAMSON Docket No. KENT 2009-1428-D 

Complainant PIKE CD 2009-06 

v. 

CAM MINING, LLC, 

Respondent 

Mine ID 15-18911 

Number 28 Mine 

Appearances: 

Before: 

DECISION ON REMAND 

AND 

ORDER OF TEMPORARY REINSTATEMENT 

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for the Complainant; 

Mark Heath, Esq., Spilman, Thomas & Battle, Charleston, West Virginia, 

for the Respondent. 

Judge Feldman 

This matter is before me based on an application for temporary reinstatement filed by 

the Secretary, pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 

(the Mine Act), 30 U.S.C. § 815(c)(2), against CAM Mining, LLC (CAM Mining) on 

behalf of Lige Williamson. The initial decision on the Secretary's application, following a 

September 2, 2009, evidentiary hearing, determined that the Secretary failed to satisfy her 

burden of demonstrating that the application for temporary reinstatement was not frivolously 

brought. 31 FMSHRC _ (Sept. 30, 2009) (ALJ). The Secretary appealed the initial decision. 

The Commission has reversed and ordered the retroactive reinstatement of Williamson 

effective as of September 30, 2009, the date of the initial decision. 31 FMSHRC _, 

slip op. at 8 (Oct. 22, 2009). 

Accordingly, IT IS ORDERED that CAM Mining, LLC SHALL IMMEDIATELY 

REINSTATE Lige Williamson to the former job position that he held on May 15, 2009, at his 

former rate of pay, with back pay effective September 30, 2009. Williamson's reinstatement 

shall include entitlement to all benefits associated with his employment including overtime, 

if applicable. 

31FMSHRC1270 
Williamson's reinstatement shall not prejudice CAM Mining's right to contest 

Williamson's discrimination complaint that currently is being investigated by the Secretary. 

The Secretary should endeavor to complete, as soon as practicable, her investigation so that this 

matter may proceed to an evidentiary hearing on the merits. If the Secretary, upon investigation, 

finds that the provisions of section 105 ( c) have not been violated, she shall file a motion to 

vacate this Order of Temporary Reinstatement. Alternatively, CAM Mining may move to vacate 

this temporary reinstatement order if the Secretary declines to prosecute Williamson's complaint 

pursuant to section 105(c )(2) of the Mine Act. Peter J. Phillips v. A&S Construction Co., 

31 FMSHRC _,Docket No. West 1057-DM (Sept. 9, 2009). 

Jerold Feldman 

Administrative Law Judge 

Distribution: (VIA FACSIMILE AND CERTIFIED MAIL) 

-

Mary Sue Taylor, Esq., Office of the Solicitor; U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

. Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd. East, P.O. Box 273, 

Charleston, WV 25321 

/rps 

31 FMSHRC 1271 
31FMSHRC1272 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SCP INVESTMENTS, LLC, 

Respondent 

September 1, 2009 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 2006-148-M 

A.C. No. 40-03268-80642 

Docket No. SE 2006-163-M 

A.C. No. 40-03268-82949 

Old County Quarry 

ORDER TO SHOW CAUSE 

These civil penalty matters were remanded on August 6, 2009, for further consideration. 

These cases concern a mirie inspector's refusal to permit a representative of the mine operator to 

accompany the inspector during an inspection. The initial decision vacated the eleven citations 

and the one order in issue. 30 FMSHRC 544 (June 2008) (ALJ). The initial decision to vacate 

the cited violations was based on a determination that ·the mine'inspector abused his·discretion by 

unjustifiably denying the mine operator's statutory right to accompany him during the mine 

inspection. 

The Commission's remand set aside the initial decision on jurisdictional grounds. 1 

The Commission noted that a mine inspector is authorized to enter a mine to conduct an 

inspection, with or without the presence of a mine operator, pursuant to the authority delegated to 

the Secretary in section 103 of the Federal Mine Safety and Health Act of 1977, as amended 

("Mine Act"). (Slip op. P.11). The Commission also noted that an operator cannot nullify an 

inspection by refusing to participate.2 (Slip op. p.12). 

1 The Commission relied on the language in section 103(:f) that" ... Compliance with this 

subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of this 

act." 30 U.S.C. § 813(:f). Obviously, the only party that can object to jurisdiction under section 

103(:f) is the mine operator. This provision means that a mine operator cannot successfully 

attack citations on jurisdictional grounds simply because it was not present during an inspection. 

As recognized by the Commission, this provision does not vitiate the walkaround rights that are 

also granted in section 103(:f). 

2 I too previously ruled that a mine operator cannot prevent or delay an inspection because 

of his unavailability or his decision not to participate. F.R. Carroll, Inc., 26 FMSHRC 97 

(Feb. 2004) (ALJ). 

31FMSHRC1273 
However, the analysis in this case does not stop simply because the mine inspector was 

authorized to act as a consequence of his inspection. The Commission is "an independent 

adjudicative body authorized [by Congress] to hear disputes arising under the Mine Act." 

Energy West Mining Corp. v. FMSHRC, 40 F.3d 457, 459 (D.C. Cir. 1994) citing 30 U.S.C. 

§§ 815(d), 823. Fundamental to the Commission's mandate is the responsibility of determining 

whether contested citations, issued under section 104( a) of the Mine Act as a result of an 

authorized sectionJO](a) mine inspection, should be affirmed, modified, or vacated. 30 U.S.C. 

§ 814(a). Obviously, the authority to inspect a mine and issue citations has no bearing 

on whether those citations must be sustained by the Commission. Surely the statutory 

walkaround rights in section 103(f), granted to miners' representatives as well as 

l!line operators, are not illusory. 

Although the Commission reinstated and remanded these matters for further action on 

jurisdictional grounds, the Commission also recognized the substantive distinction~between an 

operator's unavailability, or its decision not to participate in an inspection, and MSHA's refusal 

to allow its participation. While an operator's absence generally is benign, the Commission 

concluded that the arbitrary and unreasonable refusal in this case constituted an "impermissible" 

violation of the mine operator's section 103(f) statutory walkaround right. (Slip op. pps. 7, 9, 10-

11, 18) . 

. FJowever, the Commission did not reach a majority consensus concerning the action 

I now should take. Pennsylvania Electric Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff'd on 

other grounds, 969 F.2d 1501 (3rd Cir. 1992) ("Penelec") (disposition by the Commission 

requires a majority vote). Two Commissioners suggested that I conduct an exclusionary hearing, 

apparently predicated on due process concerns, to determine what prejudice, if any, resulted from 

the denial ofwalkaround rights. (Slip op. p.2). One Commissioner suggested I should exercise 

my discretion by evaluating the prejudice caused by the mine operator's lack of an opportunity to 

present probative evidence during the inspection. Id. The remaining Commissioner concluded 

the refusal of walkaround rights has no effect in this case. Id. However, as noted above, a 

majority of the Commission agreed with the initial decision that the mine operator's statutory 

walkaround right was impermissibly violated. 

In the performance of its adjudication :functions, longstanding case law reflects the 

Commission's frequent examination of whether, abuses of discretion, however well intentioned, 

due process considerations, or prejudice caused to an operator by the Secretary, provide a 

basis for vacating or denying modifications of citations that are otherwise validly issued. 

An "abuse of discretion" occurs when "there is no evidence to support the decision or 

if the decision is based on an improper understanding of the law." Utah Power & Light Co., 

13 FMSHRC 1617, 1623 n.6 (October 1991), quoting Bothyo v. Moyer, 772 F.2d 353, 355 

(7th Cir. 1985) (emphasis added). While the Commission's remand decision did not specifically 

characterize the mine inspector's action as such, it is clear that an impermissible violation of a 

statutory right that, according to two Commissioners, lacked "common decency," surpasses the 

threshold of actions properly deemed as an abuse of discretion. (Slip op. p.9). 

31FMSHRC1274 
In view of the Commission's determination that the mine operator's section 103(f) 

walk:around right was violated, the Secretary IS ORDERED to SHOW CAUSE why the 

citations issued as a consequence of the December 2005 inspection should not be vacated.3 

The Secretary's response must address the following issues that are material in the disposition of 

these matters. 

1. Section 1 P4(.!l.) provides that a mine operator is liable for a violation of any 

provision of the Mine Act. Since a mine operator is clearly liable, under section 

104(a), for an unjustifiable denial of an authorized miners' representative section 

103(f) walkaround right, the Secretary should address whether, in view of Utah 

Power & Light and the Commission's remand, she disputes that MSHA's 

impermissible denial of the section 103(f) walk:around right in this case 

constitutes an abuse of discretion. In other words, is the Secretary's violation of a 

statutory right that she is obliged to enforce an abuse of discretion? · 

2. Longstanding case law supports the proposition that a citation, otherwise 

properly issued by a mine inspector pursuant to the authority delegated to the 

Secretary by the Mine Act, can be vacated based on that mine inspector's relevant 

and material abuse of discretion. Energy West Mining Company, 18 FMSHRC 

565, 569 (Apr. 1996) and its progeny (abuse of discretion as a basis for vacating a 

104(b) order otherwise validly issued); and Rochester & Pittsburgh Coal 

Company, 11 FMSHRC 2159, 2163-64 (Nov. 1989) quoting Old Ben Coal Corp. 

v. Interior Bd. of Mine Op. App., 523 F.2d at 31 (7th Cir. 1975) and its progeny 

(findings and decisions of an inspector are supportable unless there is evidence 

that he abused his discretion or authority). The Secretary should thoroughly 

discuss whether or not this case law provides a basis for vacating the citations in 

issue. 

3. In view of the Commission's remand, does the MSHA inspector's 

unreasonable denial of the mine operator's statutory section 103(f) walk:around 

right in this case constitute a due process violation? The Secretary should provide 

a thorough analysis of this question supported by relevant case law. 

4. A citation, otherwise properly issued by a mine inspector pursuant to the 

authority delegated to the Secretary by the Mine Act, can be vacated based on a 

relevant and material violation of the mine operator's right to due process. 

American Coal Company, 29 FMSHRC 941, 952-53 (Dec. 2007) citing Gates & 

Fox Co. V. OSHRC, 790 F.2d 1189, 1193 (91h Cir. 1982). (considerations of due 

process prevents imposition of a civil penalty and validation of a citation 

3 The MSHA inspector's action does not effect the propriety of the Part 46 training 

violations in 104(g)(l) Order No. 6122908 and Citation No. 6122916 because they were not cited 

as a consequence of the physical inspection of the mine. 

31FMSHRC1275 
otherwise properly issued). Assuming the impermissible denial of section 103(f) 

walkaround rights in this case is a due process violation, the Secretary should 

thoroughly discuss whether or not this case law provides a basis for vacating the 

citations in issue. 

5. Finally, the Commission may deny MSHA's issuance of a citation if it 

results in legally recognizable prejudice to the operator. Cyprus Empire Corp., 

12 FMSHRC 911, 916 (May 1990) (modification of a citation to allege a violation 

of a different standard may be precluded upon a showing of prejudice). The 

Secretary should address whether an unreasonable denial of a mine operator's 

walkaround right is prejudicial per se, and whether prejudice provides a basis for 

vacating the citations in issue; · 

ORDER 

IT IS FURTHER ORDERED that above information should be provided by the 

Secretary within 30 days of the date of this Order. The Secretary should specifically address 

the impact of the cases cited above in her analysis of whether there is an adequate basis for 

vacating the citations. The Secretary may submit any additional arguments or authorities to 

support her position. Failure by the Secretary to provide a timely response ·that directly 

addresses these relevant issues may result in dismissal of these civil penalty proceedings. 

SCP Investments, LLC (SCP) shall have 14 days to reply to the Secretary's submission, although 

. a response by SCP is not required. 

Distribution: (Certified Mail) 

Jerold Feldman 

Administrative Law Judge 

W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 

1100 Wilson Blvd., Room 2220, Arlington, VA 22209-2296 

Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 

618 Church Street, Suite 230, Nashville, TN 37219 

Pat Stone, SCP Investments, LLC, P.O. Box 82, Crab Orchard, TN 37723 

/rps 

31 FMSHRC 1276 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY A VENUE N. W., SUITE 9500 

WASHINGTON, D.C. 20001 

(202) 434-9953 

September 10, 2009 

BILLY BRANNON, 

Complainant 

v. 

PANTHER MINING, LLC, 

Respondent 

BILLY BRANNON, 

Complainant 

v. 

PANTHER MINING , LLC and 

MARKD. SHELTON, 

Respondent 

SECRETARY OF LABOR, 

ON BEHALF OF BILLY BRANNON, 

Complainant, 

v. 

PANTHER MINING, LLC, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2009-302-D 

BARB CD 2008-07 

No. I Mine 

Mine ID 15-18198 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2009-1225-D 

BARB CD 2009-07 

No. 1 Mine 

Mine ID 15-18198 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2009-1259-D 

BARB CD 2009-09 

No. 1 Mine 

Mine ID 15-18198 

ORDER GRANTING COMPLAINANT'S MOTION TO AMEND COMPLAINT 

The Complainant, Billy Brannon, moves for leave to amend his initial complaint of 

discrimination (Docket No. KENT 2009 302-D). The complaint is scheduled to be heard, along 

with the two other discrimination cases with which it is consolidated, on March 2, 2010. 

Brannon's amendment would include two additional protected activities that were not specified 

in his initial complaint, namely: "(1) Brannon's refusal to travel underground without a cap light 

after Robert Salyer ... assaulted him and smashed his cap light on January 23, 2008 ... and (2) 

Brannon's ... [completion of] a 'mine incident report' on January 23, 2008, regarding Salyer's 

assault of him and his subsequent refusal to travel underground." Motion For Leave to File 

Amended Complaint of Discrimination ("Motion") at 2. The amended complaint also would 

31 FMSHRC 1277 
amplify an allegation that Brannon included in his June 15, 2009, Supplementation of the Record 

("Supplementation"); namely that Brannon complained to Rick Raleigh, the personnel director 

for Black Mountain Resources, about Salyer' s assault of him. The proposed amendment would 

flesh out Brannon's previous allegation that Brannon complained "to management of Cloverlick 

Coal/Black Mountain Resources about ... Salyer assaulting him with a hammer." 

Supplementation at 2. 

BRANNON'S ASSERTIONS IN SUPPORT OF THE MOTION 

Brannon states that although he did not specifically plead the additional protected 

activities in his original complaint, the incidents were among those pleaded by Brannon in a civil 

suit he filed against Cloverlick Coal Company and Salyer, pleadings that were attached to his 

initial complaint. Therefore, according the Brannon, the company, a subsidiary of Cloverlick, 

"is well aware" that Brannon complained about the cap light incident. In addition; in Brannon's 

view, the company also is aware that he filled out the incident report about the assault. Thus, the 

company cannot credibly assert the proposed amendments come as a surprise, and the company 

would not be "prejudiced in anyway'' ifthe amendments are allowed. Motion at 2-3. 

THE COMP ANY'S RESPONSE 

The company disagrees. The company notes that the facts set forth in the proposed 

amendments were not mentioned in the complaint Brannon originally filed with MSHA. 

It also notes that on December 16, 2008, in one of its interrogatories it requested that Brannon 

describe each protected activity on which he based his claim of discrimination and that it also 

requested Brannon produce copies of all of the documents pertaining to the alleged protected 

activities for which he claimed discrimination. Brannon's responses did not mention the 

protected activities he now seeks to include in his complaint. Moreover, when the company 

later deposed Brannon about his alleged protected activities at no time did Brannon mention the 

"new" ones. Nor did Brannon mention them in response to the order to supplement the record 

except to state as Brannon noted in his motion that he "complain[ ed] to management of 

Cloverlick Coal/Black Mountain Resources about ... Salyer assaulting him with a hammer." 

Memorandum In Opposition to Motion for Leave to File Amended Complaint ("Opposition") at 

3 (August 14, 2009) (quoting Supplementation 2). 

The company also views the proposed amendments as untimely because as of the date the 

motion was filed, the case has been pending for almost five months and Brannon has failed to 

explain why the alleged additional protected activities were not pleaded earlier. Opposition at 4. 

Brannon "should not be allowed to add claims ... when he had ample time and opportunity to 

raise them previously and states no reason for not having done so." Id. at 5. Granting the motion 

would cause additional expense to the company by requiring it to amend its defenses, depose 

Brannon again and possibly amend its pending motion for partial summary decision, and file a 

supplemental brief in support of the motion. Id. at 5. 

31FMSHRC1278 
Finally, the company argues the "new" allegations have not been investigated by MSHA 

as required by section 105(c) of the Act and that a "miner cannot present claims on his own 

unless and until the Secretary has made a finding of no discrimination under section 105 ( c )(3) [of 

the Act]." Opposition at 6. 

RULING 

The amendments WILL BE ALLOWED. The Commission has taken a liberal view 

when it comes to such amendments, especially when, as here, they do not prejudice a party in 

preparing its defenses. I agree with Brannon that the amendments should come as no surprise to 

the company.· The allegations arise out of the Brannon/Salyer altercation, an incident that . 

triggered Brannon's initial claims. The company was and is well aware of the incident and the 

events surrounding it.· Further, a careful reading of the company's opposition fails tQ reveal an 

assertion of actual prejudice. While it is true the company may feel compelled to amend its 

answer, conduct additional discovery, amend its pending motion and supplement its brief in 

support of the motion, the expenses inherent in such activities are the necessary consequences of 

litigation, costs the company (and any litigant) must be prepared to bear. Moreover, because the 

"new" protected activities arise out of the Brannon/Salyer incident there is no need for Brannon 

to "restart" the section 105( c) investigatory process by "re-complaining" to MSHA. Were 

another complaint required the subject cases could be even more delayed than is now the case. 

: There are occasions when related but "new" allegations must be allowed in order to end serial 

litigation, and this is one. See e.g., Sec. of Labor o/b/o Lawrence Pendley v. Highland Mining 

Co., 30 FMSHRC 459, 496, n.44 (May/June 2008); ajf'd 31FMSHRC61 (January/February 

. 2009); appeal docketed, No. 09-3213, (6th Cir. March 3, 2009). 

This stated, fairness requires that the company not be faced with continuously shifting 

and augmented allegations. Accordingly, while Brannon's motion IS GRANTED, his assertions 

of protected activities now are regarded as fixed. Absent extraordinary circumstances, further 

such amendments to his complaint will not be allowed. 

The company has 20 days from the date of this order should it decide to amend its 

answer, its motion for summary decision and its memorandum in support of its motion. Brannon 

will have 15 days from the date of any such amendment(s) to respond. The parties are reminded 

discovery ends on January 15, 2010. Order Granting In Part Complainant's Motion to Coi:npel 

(July 24, 2009) at 10. Additional interrogatories, requests for production and depositions must 

be served and/or conducted by that date. 

r ' / J} tfA_//o'll/Vt--~ 

David Barbour 

Administrative Law Judge 

31 FMSHRC 1279 
Distribution: 

Brian W. Dougherty, U.S. Department of Labor, Office of the Solictor, 618 Church Street, 

Suite 230, Nashville, TN 37219-2456 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY 

41858 

Stephen M. Hodges, Esq., Penn, Stuart & Eskridge, P. 0. Box 2288, Abington, VA 24212 

/mh 

31 FMSHRC 1280