JULY AND AUGUST 2009 

COMMISSION DECISIONS AND ORDERS 

07/07/2009 

07/09/2009 

07/13/2009 

07/14/2009 

07/14/2009 

07/14/2009 

07/17/2009 

07/17/2009 

07/20/2009 

07/20/2009 

07/20/2009 

07/20/2009 

07/20/2009 

0712012009 

07/21/2009 

07/24/2009 

07/24/2009 

07/31/2009 

07/31/2009 

07/31/2009 

08/04/2009 

08/06/2009 

08/11/2009 

08/13/2009 

08/13/2009 

08/13/2009 

08/13/2009 

08/13/2009 

08/19/2009 

08/19/2009 

08/19/2009 

08/19/2009 

08/25/2009 

0812512009 

08/26/2009 

08/27/2009 

08/27/2009 

08/28/2009 

08/28/2009 

Armstrong Coal Company 

Big River Mining, LLC. 

Stacy Lynn Coal, LLC. 

Coal River Mining, LLC. 

Detroit Salt Company, LLC. 

Oil-Dri Production Company 

Manalapan Mining Company 

Rock N Road Quarry 

C.S.A. Mining Incorporated 

Petroleum Fueling, Inc. 

Left Fork Mining Co., fuc. 

Spartan Mining Company, Inc. 

Morris, fuc. 

Lehigh Northeast Cement Co. 

Ash Grove Cement Company 

Quality Aggregates, fuc. 

Bresee Trucking Co., fuc. 

Newmont USA Limited 

Michael Will employed by Chemical Lime of AL 

McCoy Elkhorn Coal Corporation 

Eastern Associated Coal, LLC. 

SCP Investments, LLC. 

Rockhouse Energy Mining Co. 

Panzer Coal Inc. 

Consolidated Container Co., LP 

Chemical Lime Company of Alabama 

Newmont USA Limited 

Myrick Construction Co., Inc. 

Michael Diamond 

South Ridge Granite Quarry 

Pacific Rock Products, LLC. 

Penny Creek Quany, LLC. 

Freedom Energy Mining Co. 

Double Bonus Coal Company 

Pine Ridge Coal Company, LLC. 

Oglebay Norton Industrial Sands, Inc. 

Mettiki Coal, WV, LLC. 

Oil-Dri Production (reconsideration) 

Mach Mining, LLC. 

i 

KENT 2009-419 

WEVA2009-1 

WEV A 2009-1036 

WEV A 2009-966 

LAKE 2009-388-M 

SE 2009-293-M 

KENT2009-9 

WEST 2008-561-M, 

KENT 2009-573 

WEV A 2009-1035-M 

KENT 2009-1111 

WEV A 2009-764 

CENT2009-l 

YORK 2009-83-M 

CENT 2009-786-M 

PENN 2009-408-M 

VA 2009-46 

WEST 2009-395-M 

SE 2009-550-M 

KENT 2009-1128 

WEV A 2009-1562 

SE 2006-148-M 

KENT 2008-1363 

KENT 2009-1032 

SE 2009-551-M 

SE 2009-552-M 

WEST 2009-396-M 

SE 2008-961-M 

KENT 2009-1224 

SE 2009-625-M 

WEST 2009-1003-M 

WEST 2009-1016-M 

KENT 2009-924 

WEV A 2008-879 

WEV A 2009-1592 

LAKE 2009-143-M 

WEV A 2009-423 

SE 2009-293-M 

LAKE 2009-395-R 

Pg. 745 

Pg. 749 

Pg. 752 

Pg. 756 

Pg. 759 

Pg. 762 

Pg. 765 

Pg. 769 

Pg. 773 

Pg. 777 

Pg. 780 

Pg. 785 

Pg. 789 

Pg. 793 

Pg. 797 

Pg. 800 

· .. Pg. 804 

Pg. 808 

Pg.812 

Pg. 815 

Pg.818 

Pg. 821 

Pg. 847 

Pg.852 

Pg.855 

Pg. 858 

Pg.862 

Pg.867 

Pg.870 

Pg.873 

Pg.877 

Pg.880 

Pg. 883 

Pg.886 

Pg. 905 

Pg.908 

Pg. 911 

Pg.914 

Pg. 918 

ADMINISTRATIVE LAW JUDGE DECISIONS 

07/14/2009 

07/28/2009 

07/30/2009 

08/07/2009 

08/21/2009 

Marfork Coal Company 

Black Hills Bentonite, LLC. 

Jim Walter Resources, Inc. 

Milestone Materials, Div. of Mathy Constr. 

East Tennessee Zinc Company, LLC. 

ADMINISTRATIVE LAW JUDGE ORDERS 

07/15/2009 

07/23/2009 

07/24/2009 

08/31/2009 

Mach Mining, LLC. 

<JenvvalResources,Inc. 

Billy Brannon v. Panther Mining, LLC. 

Billy Brannon v. Panther Mining, LLC. 

ii 

WEV A 2008-564-R 

WEST 2008-660-M 

SE 2009-500-R 

LAKE 2009-432-RM 

SE 2008· 130-M 

LAKE 2009-323-R 

WEST 2008-939 

KENT 2009-302-D 

KENT 2009-302-D 

Pg.923 

Pg.926 

Pg.932 

Pg. 939 

Pg.941 

Pg.947 

Pg.956 

Pg.961 

Pg.972 

JULY AND AUGUST 2009 

Review was granted in the following cases during the months of July and August 2009: 

Secretary of Labor, MSHA v. Wolf Run Mining Company, Docket Nos. WEV A 2008-853, 854, 

WEVA 2007-666. (Judge Feldman, June 10, 2009) 

Secretary of Labor, MSHA v. Dynamic Energy, Inc., Docket No. WEV A 2007-448-R. (Judge 

Bulluck, June 17, 2009) 

Secretary of Labor, MSHA v. Nally & Hamilton Enterprises, Inc., KENT 2008-712. (Judge Feldman, 

June 23, 2009) 

Review was denied in the following cases during the months of July and August 2009: 

Vumun Edwurd Jaxun v. Asarco, LLC, Docket No. WEST 2007-811-DM. (Chief Judge Lesnick, 

May 29, 2009) 

Secretary of Labor, MSHA v. Walter Kuhl, Docket Nos. PENN 2008-112-M, PENN 2008-165-M. 

(Judge Melick, June 29, 2009) 

iii 

COMMISSION DEQSIONS AND ORDERS 

Fl;DERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION 

601 NEW ~ERSEY AVENUE, NW. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMlNISTRATION (MSHA) . 

v. 

ARMSTRONG COAL COMP ANY 

SUITE9500 

WASHINGTON, DC 20001 

July7, 2009 

·Docket No. KENT 2009-419 

A.C. No. 15-18552-160177 

··Docket No. KENT 2009-420 

AC. No~ 15-18552-165855 

Docket No. KENT 2009-421 

A~C. No. 15-19217-165874 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On December 12, 2008, the Commission received from 

Armstrong Coal Company ("Armstrong") a Jetter 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 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). 

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 (May 1993) (".!WR"). In evaluating requests to 

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

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

consolidate docket numbers KENT 2009-419, KENT 2009-420, and KENT 2009-421, all 

captioned Armstrong Coal Company and involving similar procedural issues. 29 C.F.R. 

§ 2700.12. 

31 FMSIIR.C 745 
Federal Rules of Civil l>rocedllTe unde~ which, fo~ example, a party dollld 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 Commissionand 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). 

On August 13; 2008, the Department of Labor's Mine Safety and Health Administration 

(''MSHA") issued Proposed Assessment No. 000160177 for alleged violations occurring at 

Armstrong's Big Run Mine. On October 15, 2008, MSHA issued Proposed Assessment Nos. 

000165855 and 000165874 for alleged violations occurring at Armstrong's Big Run and Midway 

Mines, respectively. In its letter, Armstrong asserts that it failedto contest the proposed penalty 

assessments because of a mistaken failure of communication between its Director of Safety and· 

its Accounting Officer, who each believed that the other individual was sending in the contest 

forms. Along with its letter, Armstrong furnished evidence that it had paid proposed assessments 

that it did not intend to contest. The Secretary states that she does not oppose the reopening of 

the proposed penalty ass~ssments. 

31FMSHRC746 
Having reviewed Armstrong'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. 

Ro~oh~ ~eomk..ioner 

31 FMSHRC 747 
Distribution: 

Donald W. Lamb, Safety Dir. 

Armstrong Coal Co. 

407 Brown Rd. 

Madisonville, KY 42431 

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, MS~ 

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 JerseyAvenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC 748 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

. 601 NEW JE~SEY AVE1'4UE, NW . . . 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

APMINISTRATION (MSHA) 

v. 

BIG RIVER MINING, LLC 

SUITE9500 

WASHINGTON, DC 20001 

July 9, 2009 

Docket No~ WEY A 2009-1 

A.C. No. 46-09136-156167 

Docket No. WEY A 2009-358 

A.C. No. 46-09136-159271 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). In these now consolidated proceedings, the Commission 

denied without prejudice inotions that had been filed by Big River Mining, LLC ("Big River") to 

reopen pellalty assessments· that had. become final orders of the Commission pursuant to section 

105(a) of the Mine Act, 3.0 U.S.C. § 815(a). Big River Mining, LLC, 31FMSHRC396 (Apr. 

2009). On April 27, 2009, the Commission received a renewed and amended motion by counsel 

for Big River seeking to reopen the assessments. 

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

penalty must notify the S~retary of Labor no later than 30 days after receiving the proposed 

penalty assessment. · Jf 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). 

Big River's original motions included affidavits from its safety director, who assumed 

that position in August 2008, stating that he had spoken with his predecessor about, and searched 

the office files for, any proposed penalty assessments from the Department of Labor's Mine 

Safety and Health Administration ("MSHA"). Nevertheless, he states that he did not learn of the 

two assessments involved here, which had been issued in the preceding weeks, until he later saw 

that they were delinquentaccording to MSHA's public database. 

The Commission denied the original requests to reopen because of Big River's failure to 

specify the individual proposed penalties in each of the assessments it intended to contest upon 

31FMSHRC749 
. . . . . . . . . . 

reopening. 31 FMSHRC at 397-98. Big River's renewed motion now includes copies of each 

assessment marked to indicate which penalties and related citations and orders Big River would 

contest if the assessments are reopened, as well as a statement that those penalties that it does not 

intend to contest have been paid. · 

Having reviewed Big River's motions 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 750 
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 751 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

STACY LYNN COAL, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

July 13, 2009 

Docket No. WEV A 2009-1036 

A.C. No. 46-09241-174421 

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

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of1977, 30 U.S.C. 

§ 801 et seq. (2006) (''Mine Act"). On March 26, 2009, the Commission received from Stacy 

Lynn Coal, LLC ("Stacy Lynn") 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). The motion was not supported by an affidavit or any other factual material, 

such as a copy of the proposed assessment. Counsel for the operator states that he had been 

unable to procure the proposed assessment from Stacy Lynn. 

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 

31 FMSHRC 752 
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). 

Orifariuary 13, 2009, MSHA issued proposed assessment No. 000174421 to Stacy Lynn.· 

According to MSHA's records, this proposed assessment was delivered to the operator on· 

January 31, 2009. Stacy Lynn states in its motion that it had not previously contested a citation 

or order and "simply did not get the procedures correct." Stacy Lynn adds that it had recently 

retained counsel but had not yet properly established proper communication procedures with 

counsel. The record fr:om the Secretary indicates that Stacy Lynn has an excessive balance of 

delinquencies dating back to July of 2008. 

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

assessment .. 

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

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

of whether. good cau8e exists for Stacy Lynn's failure to timely contest the penalty proposal and 

whether relief from the final ol'der should be granted. If it is detennined that such reliefis 

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

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

·-\ 

31FMSHRC753 
On remand, the Chief Administrative should determine what Stacy Lynn actually did to 

attempt to contest the proposed assessment in this case (i.e., how it "simply did not g~tthe 

procedures correct"), particularly in view of its record of unpaid assessments ptj9r to the 

proposed assessment in this case. 

Mich 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC754 
Distribution: 

Casey A. Sears, Il, Esq. 

128 East Market St. 

Johnson City, TN 37604 

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 

31FMSHRC755 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

COAL RIVER MINING, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

July 14, 2009 

Docket No. WEV A 2009-966 

A.C. No. 46-09042-174823 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (''Mine Act"). On March 12, 2009, the Commission received from Coal 

River Mining, LLC ("Coal 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 756 
Coal Rivet states that it had timely contested the citation underlying the penalty at issue 

but subsequently paid the penalty by mistake. The Secretary states that she does not oppose the 

reopening of the proposed penalty assessment. 

Having reviewed Coal 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 757 
Distribution: 

F. Thomas Rubenstein, Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown,.WV 26501 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

W. Christian SchU.mann, Esq. 

Office of the Solicitor. 

U.S. Department of Labor 

1100 Wilson Blvd., Rooll1 2220 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert. J~ Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 758 · 
FEDERAL MINE ,SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LA80R, 

MINE SAFETY AND IffiALTH 

ADMINISTRATION (MSHA) 

v. 

DETROIT SALT COMPANY, LLC 

• SUITE9500 

WASHINGTON; DC 20001 

July 14, 2009 

Docket No. LAKE 2009-388-M 

A.C. No. 20-00552-175661 

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

ORDER 

BY THE COMMISSION: 

This matter arises tinder 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 Detroit 

Salt Company, LLC ("Detroit Salt") 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 (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 759 
Detroit Salt states that it intended to contest two penalties and to pay the n::maining 

penalties. It further states that its Account~ Payable Department paid the proposed penalties as . . , . 

intended but failed to mail the assessment form contesting two of the penalties. The Secretary 

states that she does not oppose the reopening of the proposed penalty assessment. 

Having reviewed Detroit Salt'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.ror 

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 shail fik a petition for assessment 

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

~Co~ · .. e~ 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC760 
Distribution: 

Pete Graham, Director of Mining 

Detroit Salt Co. 

12841 Sanders St. 

Detroit. MI 4821 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 

31FMSHRC761 
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 

July 14, 2009 

Docket No. SE 2009-293-M 

A.C. No. 22-00035-167206 

OIL-DRI PRODUCTION COMP ANY 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On February 13, 2009, the Commission received a requestto 

reopen a penalty assessment issued to Oil-Dri Production Company ("Oil-Dri") that had become 

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

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

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

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

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

On October 29, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000167206 to Oil-Dri, proposing penalties for 12 

citations that had been issued to Oil-Dri in July and August 2008. After receiving no response, 

MSHA sent Oil-Dri a delinquency notification on or around January 26, 2009, for the 

assessment. Oil-Dri states that it intended to contest six of the penalties and pay the other six 

penalties, but never received the assessment. In its request to reopen the case, Oil-Dri also 

expressly denies having received the assessment even though MSHA had notified it that the 

assessment was signed for by a particular Oil-Dri employee. 

The Secretary states in her response that she does not oppose the reopening of the 

assessment, but also states that her records indicate that a specific Oil-Dri employee did sign for 

the assessment on November 3, 2008. 

31 FMSHRC 762 
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). 

In a case like this, in which the operator is seeking to contest only some of the penalties 

contained in an assessment, it is incumbent upon the operator to include in its request to the 

Commission to reopen not only the basis for reopening, but also the specific penalties it wishes 

to reopen. Because Oil-Dri has not done so in this ca.Se, we deny its request to reopen withorit 

prejudice. 1 Should Oil-Dri file a new or renewed request to reopen, it should specifically indicate 

which penalties it wishes to contest upon reopening and that it has paid the other penalties. 

Moreover, Oil-Dri should include an affidavit from the particular employee who MSHA alleges 

signed for the assessment regarding his knowledge of events with respect to the assessment. 

Michael 

Robert F. Cohen, Jr., Commissioner 

1 The words ''without prejudice" mean that Oil-Dri may submit another request to reopen 

the case so that it can contest the specific citations and penalty assessments. 

31FMSHRC763 
Distribution: 

Lany S. Evans,. Safety Mngr. 

Oil-Dri Production Company 

P.O.Box380 

Ochlocknee, GA 31773 

W. Christian Schumann, Esq. 

Office ofthe 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 

31FMSHRC764 
FEDERAL MINE SAFET'( AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW·.· 

SUITE9500 

WASHINGTON, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMlNISTRATION (MSHA) 

V. 

MANALAPAN MINJNG COMP ANY· 

July 17, 2009 

Docket No. KENT 2009-9 

A.C. No. 15-18267-157148 

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

ORDER· 

BY THE COMMIS.SION: 

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 13, 2009, the Commission received from 

Manalapan Mining Company ("Manalapan") 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). The Commission had denied without prejudice a previous request by 

Manalapan regarding the same assessment. See Manalapan Mining Co., 31 FMSHRC 392 

(Apr. 2009). 

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

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

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

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

On July 16, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued proposed penalty Assessment No. 000157148 to Manalapan. In its original 

request to reopen, Manalapan asserted that it would be a great hardship for it to pay the total 

balance of outstanding penalty assessments shown on that assessment. The Commission denied 

the request to reopen because Manalapan had failed to explain why it had not contested 

Assessment No. 000157148 on a timely basis, and because its request was not based on any of 

the grounds for relief set forth in Rule 60(b ). 31 FMSHRC at 394. 

31 FMSHRC 765 
Manalapan's second request to reopen states that the original request was submitted by a 

former secretary for the company who had lost the assessment, and had prepared and filed the 

original request without the operator knowing she had lost the assessment. Manalapan asserts 

that it did not know about the assessment until it received the Commission's order denying the 

request on or about April 21, 2009. 

In response, the Secretary points out that the original request to reopen includes, in 

addition to the signature ofManalapan's secretary, the signature of its safety director, and that his 

signature appears to match the signature of that official on the operator's second request to 

reopen. The Secretary also argues that the safety director was served with the Commission's 

docketing statement for the original request, dated October 9, 2008. 

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 beentitledtq 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 itsJudges 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 766 
While Manalapan's second request to reopen includes an explanation for its failure to 

timely file a contest in response to the assessment - the contest form had been lost by the 

secretary - the second request otherwise fails to comply with the plain instructions the · 

Commission included in its order regarding any renewed or amended request to reopen the 

assessment here. See 31 FMSHRC at 394 n.8. Moreover, the Secretary's response raises 

important credibility issues regarding Manalapan' s filings in this proceeding. Accordingly, we 

again deny Manalapan's request to reopen, but this time with prejudice. 

~~······ . . . . . . 

Michae~~ ~ .•... 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 767 
Distribution: 

Jim Brummett, Safety Dir~ 

Manalapan Mining Company, Inc. 

8174 East Hwy. 72 

Pathfork, KY 40863 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1-100 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 

31FMSHRC768 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEYAVENUE, NW 

SECRETARY OF LABOR; . 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ROCK N ROAD QUARRY 

SUITE9500 

WASHINGTON, DC 20001 

July 17, 2009 

Docket No. WEST 2009,..561-M 

A.C. No. 35-03702-167823 

Docket No. WEST 2009-562-M 

A.C. No. 35-03702-170734 

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

ORDER 

BY THE COMMlSSION: 

This matter arises under the Federal Mirie Safety and Health Act ofl977, 30 U.S.C. 

§ 801 et seq. (2006) ("Mine Act"). On February25, 2009, the Commission received a request to 

reopen two penalty assessments issued to Rock N Road Quarry (''Rock N Road"), one or both of 

which may have beeome final orders of the Commissfon pursuant to section 105{a) of the Mine 

Act, 30 U.S.C. § 815(a).1 

Under section 1 OS( 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 propo8ed 

penalty assessment. If the operatorfails·to notify the Secretary, the proposed penalty assessment 

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

According to Rock N Road's request, the first Proposed Assessment at issue, No. 

000167823, dated November 4, 2008~ was not received because there was no one at its address to 

sign for it when it was delivered by Federal Express. Rock N Road· asked for it to be resent, but 

never received it until the Department of Labor's Mine Safety and Health Administration 

(''MSHA') faxed it to the operator on February 24, 2009. Rock N Road's request includes a 

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

consolidate docket numbers WEST 2009-561-M and WEV A 2009-562-M, both captioned Rock 

N Road Quarry and involving similar procedural issues. 29 C.F.R. § 2700.12. 

31 FMSHRC 769 
copy of the contest form indicating that it wishes to contest all 16 proposed penalties. The 

Secretary of Labor states that she does not object to reopening the assessments. Her response 

does not address the operator's allegation that MSHA failed to provide it a copy of Assessment 

No. 000167823 for over three months. 

The operator also wishes to contest Assessment No. 000170304, issued on 

December 9, 2008, which proposes a single penalty for a previously issued order. The Secretary 

states that Assessment No. 000170734 was delivered to Rock N Road on December 18, 2008,. 

and that the operator's contest was not mailed until January 21, 20Q9, which was four days late. 

The operator indicates that. it was confused when, after contacting MSHA .about not receiving 

Assessment No. 000167823 and waiting for a copy of this assessment, it then received another, 

different assessment. · · 

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

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

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

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

Federal Rules of Civil Prqcedure 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). 

Having reviewed Rock N Road's request and the Secretary's response, we conclude that 

Assessment No. 000167823 has not become a final order of the Commission. The operator first 

received the assessment by fax on February 24, 2009, and one day later filed its request to · 

reopen. In its request it specified the individual penalties that it wi,shes to contest, and thus the 

motion may serve as the operatc;>r's timely notice of contest. .. . See Double Bonus Coal Co.,. 31 

FMSHRC 358, 360 (Mar. 2009) (holding that statements irJ. motions to reopen could serve as 

operator's notice of contest, and denying the motions as moot). Consequently, because the 

assessment never became a final order, reopening is not necessary. Accordingly, we deny the 

operator's request as to that assessment as moot and remand this matter to the Chief 

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

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

In the interest of the efficient administration of justice, we also reopen Assessment 

No. 000170734 and remand it to the Chief Achlrinistrative Law Judge for further proceedings. 

The operator's justifiable confusion constitutes inadvertence for contesting this assessment four 

days late. 

31 FMSHRC 770 
Consequently, and consistent with Rule 28, the Secretary shall file petitions for 

assessment of penalty in both of these dockets within 45 days of the date of this order. See 29 

C.F.R. § 2700.28. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 771 
Distribution: 

Lee Bissel 

Rock'n Road Quarry 

7238 No. Adams 

Culver, OR 97734 

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 772 
FEDERAL MINE.SAFETY AND HEAL TH REVIEW COMMISSION 

SECREJARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMJNISTRATION (MSHA) 

v. 

601 NEW JE~SEYAVEl\IU~. NW 

:SUITE 950!) 

WASHINGTON, DC 20001 

July 20, 2009 

.·'·: 

Docket No. KENT 2009-573 

A.C. No. 1~-18987-147298 

Docket No. KENT 2009-574 

A.C. No. 15-18987-154004 

C.S.A. MINING INCORPORATED Docket No. KENT 2009-575 

A.C. No. 15-18987-160184 

. ' . 

Docket No. KENT 2009-576 

A.C. No. 15-18987-162936 

BEFORE: Duffy, Chairman; Jordan, Young,; andCohen, 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 January 2, 2009, the Commission received a request to 

reopen four penalty assessments issued to C.S.A. Mining Incorporated ("CSA") that had become 

final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).1 

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

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

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

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

On April 16, 2008, June 18, 2008, August 13, 2008, and September 17, 2008, the 

Department of Labor's Mine Safety and Health Administration ("MSHA'') issued Proposed 

Assessment Nos. 000147298, 000154004, 000160184, and 000162936, respectively, to CSA, 

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

consolidate docket numbers KENT 2009-573, KENT 2009-574, KENT 2009-575 and l(ENT 

2009-576, all captioned C.S.A. Mining Incorporated, and involving the same factual and 

procedural issues. 29 C.F.R. § 2700.12. 

31 FMSHRC 773 
. . . . . 

alleging multiple violations and proposing civil penalties fothe suin of$163,381~· The president 

of CSA contends that the issuance of the citations andorders caused him financial and personal 

stress and that, consequently, CSA was unable to timely contest the proposed penalties. 

The Secretary opposes reopening on the ground that CSA's explanation for failing to 

timely file notices of contests in the four cases does not constitute the "exceptional 

circumstances" necessary to support reopening. The Secretary further states that reopening is 

unjustified here because CSA failed to identify facts which, if proven, would establish a . 

meritorious defense. In addition, the Secretary contends that the operator fails to explain why:, · 

after it was informed that it had not contested the penalty assessments, it took as long as it did to 

request reopening. The Secretary explains that although MSHA sent CSA delinquency notices 

on July 10, 2008, September 11, 2008, November 6, 2008, and December 10, 2008, that 

Proposed Assessment Nos. 000147298, 000154004, 000160184, and 000162936, respectively,. 

had become delinquent, the operator did not request reopening until January 2, 2009- between 

one and six months after MSHA sent the letters. 

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

uncontested assessments that have become final Commission orders under section l05(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 he 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,, lnc.,17 FMSHRC·1529, 1530 (Sept. 1995). 

31 FMSHRC 774 
Having reviewed CSA's request to reopen and the Secretary's response thereto, we agree 

that CSA has failed to provide an adequate basis for the Commission to reopen the four penalty 

assessments. CSA's request for relief does not explain the company's failure to contest the 

proposed assessment on a timely basis, and is not based on any of the grounds for relief set forth 

in Rule 60(b ). Furthermore, CSA has failed to explain the delay in responding to the delinquency 

notices. Accordingly, we hereby deny without prejudice CSA's request. FKZ Coal Inc., 29 

FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). The words 

"without prejudice" mean that CSA may submit another request to reopen the assessments so that 

it can contest the citations and penalty assessments.2 

..... 

Michae 

Robert F. Cohen, Jr., Commissioner 

2 If CSA submits another request to reopen, it must identify the specific citations, orders, 

and associated proposed penalties it seeks to contest. CSA must also establish good cause for not 

contesting the citations, orders, and associated proposed penalties within 30 days from the date it 

received the four 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, smprise, 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. CSA should include a full description of the facts supporting its claim of"good 

cause," including how the mistake or other problem prevented CSA from responding within the 

time limits provided in the Mine Act, as part of its request to reopen. CSA should also submit 

copies of supporting documents with its request to reopen. 

31 FMSHRC 775 
Distribution: 

Alga Jent, President 

CSA Mining, Inc. 

P.O. Box 126 

Kite, KY 41828 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlin~on, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, V A22209-3939 

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 776 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARYOFLABOR, · 

MINE SAFETY AND HEALTH 

ADMINISTRATION(MSHA) 

v. 

PETROLEUM FUELING, INC. 

SUITE9500 

WASHINGTON, DC 20001 

July 20, 2009 

Docket No. WEVA 2009-1035.;M 

A.C. 46-07938-l 60952-F523 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On March 14, 2009, the Commission received from 

Petroleum Fueling, Inc. ("Petroleum") 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) ofthe Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Laborno later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to riotify 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., 15FMSHRC 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. Se111s., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

31 FMSHRC 777 
Counsel for Petroleum states that he confused the asse~sti:J.~nt antf citations that Petroleum 

intended to contest with the assessment and citations that arose out of a similar incident 

involving a truck accident, and that he inadvertently submitted a notice of contest to MSHA on 

the incorrect assessment and citations. The Secretary states that she does not oppose the 

reopening of the proposed penalty assessment. 

Having reviewed Petroleum'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 778 
Distribution: 

David J. Mencer, Esq. 

Bailey & Wyant, PLLC 

500 Virginia Street East, Suite 600 

P.O. Box 3710 

Charleston, WV 25337-3710 

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 FIOor 

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 779 
FEDERAL MINE SAFETY AND HEAi-TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW . 

SUITE9500 

WASHINGTON, DC 20001 

July 20, 2009 

Docket No. KENT 2008-1111 

A.C. No. 15-12564-125861 

Docket No. KENT 2008-1181 

A.C. No. 15-12564-127886 

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

A.C. No. 15-12564-130206 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On May 28, and June 20, 2008, the Commission received 

from Left Fork Mining Company, fuc. ("Left Fork") a letter and motions seeking to reopen three 

penalty assessments that had become final orders of the Commission pursuant to section l 05( a) 

of the Mine Act, 30 U.S.C. § 815(a). On January 9, 2009, the Commission denied the motions. 

Left Fork Mining Co., 30 FMSHRC 8, 11 (Jan. 2009). On January 22, 2009, Left Fork filed a 

petition to reconsider the denial of its motions. 

In August and October 2007, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued Proposed Penalty Assessment Nos. 000125861, 000127886, 

and 000130206 to Left Fork, which listed proposed penalties for several citations. Left Fork 

failed to timely contest various penalties associated with those proposed penalty assessments as 

required by section 105( a) of the Mine Act. As a result, the proposed penalties were deemed 

final orders of the Commission. 1 

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 

31 FMSHRC 780 
In November and December 2007, and January 2008, MSHA issued a Notice of 

Delinquency to Left Fork pertaining to.each of.:the proposed penalty assessments. On May 13, 

2008, counsel for MSHA sent Left Fork a letter pertaining to the delinquencies of all three 

proposed assessments, stating that the total unpaid delinquencies amounted to $76,897.79, 

including statutory interest and administrative fees. MSHA further stated that unless payment 

was made by May 27, 2008,it wouldissu,e a citation under section 104(a) of the Mine Act 

charging Left Fork with a failure to comply with the Commission's final orders with the Mine 

Act. MSHA also stated that ifLeft Fork shouldfail to abate the section 104(a) citatio~ it would 

necessitate the issuance ofa mine closure order. 

On May 28 and June 20, 2008, the Commission received Left Fork's requests to reopen . 

the penalty assessments that had become final Commission orders. In its requests to reope~ Left 

Fork's counsel had stated that, upon receipt oftbe subject proposed assessments, the assessment 

forms were marked to indicate Left Fork's intent to contest the penalties associated with several. 

citations, and then forwarded to Left For\c,'sBrookside office, consistent with company policy .. 

Counsel further stated that "[t]hrough. inadvertence or mistake," the completed assessment forms 

were not :timely returned to MSHA. Counsel attached to the pleadings affidavits by Tony 

Nelson, Jr., Left Fork's safety director, in which the safety director states in part. that "[b]ecause 

of a misunderstanding, personnel formerly employed in the Brookside office paid the uncontested 

penalties but apparently did not return the assessrnent cards to MSHA as contested." 

On July 2, 2008, the Commission rece\ved responses to Left Fork's pleadings~ from the 

Secretary. The Secretary opposed the requests on the basis that the operator's conclusory 

assertion was insufficient to establish exceptional circumstances that warrant reopening. She 

further stated that the operator failed to expiainwhy, after it was sent the Notices of Delinquency 

in each of the three cases many months earlier, it took as long as it did to request the reopenings. 

In this regard, the Secretary noted the letter sent by her counsel on May 13, 2008. The Secretary 

maintained that the operator's .filing of requests to reopen only when facing enforcement action 

did not demonstrate good fai$. 

On July 22, 2008, the Commission received a reply to the Secretary's responses from Left 

Fork. Left Fork asserted that it did, in fact, explain how o:rwhy a mistake occurred at the 

Brookside office. It stated tJ:iat the explanation was set forth in the safety director's affidavit 

when he stated that he intended to contest the penalties but that "[f]or reasons unknown" the 

proposed assessment was not returned to MSHA. In addition, Left Fork contended that a 

delinquency notice is not proof of default. It explained that MSHA's May 13 letter listed two 

assessments (Nos. 000120903 and 000134705) which were not delinquent. It also stated that 

after it paid the subject proposed assessments,.it received delinquency notices demanding 

payment. 

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

31 FMSHRC .781 
On January 9, 2009, the Commission issued its denial of Left Fork's requests, concluding 

that Left Fork failed to make a showing of circunistances that warrant reopening. 3 l FMSHRC 

at 11. The Commission explained that Left Fork's statements that its failure to timely file its 

contest of the proposed penalty assessments due to '~inadvertence or mistake" did not provide the 

Commission with an adequate basis to justify reopening. Id; at 10. It noted that even after the 

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

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

unknown, the proposed assessments were not returned as contested." Id. In addition, the 

Commission stated that Left Fork failed to explain its failure to act after receiving MSHA's 

delinquency notices. Id. It noted that Left Fork did not seek relief until it faced enforcement 

action, including potential mine closure. · Id. at· 10-11. 

In its petition for reconsideration, Left Fork offers to further explain the circumstances 

related to its failure to contest the proposed penalty assessments and its delay in seeking relief. 

The operator states that its safety director had requested that a clerical employee return the 

assessments as contested, but that "apparently'' this did not happen. Left Fork states that ''the 

precise reasons are not known, but it was apparently an oversight." It notes that the clerical 

employee also believed that the penalties had been contested, as evident in her letter to MSHA 

dated January 18, 2008, indicating that the assessments had been contested. In addition, Left 

Fork explains that it did not seek reliefafter receiving the delinquency notices because it has 

previously received incorrect delinquency notices from MSHA, and that delinquency notices do 

not necessarily mean that payments have not been made or that matters have not been properly 

contested. It also refers to MSHA's May 13 letter which it states ''cites several penalties which 

were not delinquent." Left Fork asserts that it was only when it received a notice threatening to· 

shut down Left Fork's mine did it become apparent that the assessments had n:ot been properly· 

contested. Left Fork attached additional evidence to its petition. 

The Secretary opposes Left Fork's petition for reconsideration. She argues that Left Fork 

has advanced no reasons justifying reconsideration. The Secretary submits that a petition for 

reconsideration may not be used to relitigate old matters, raise arguments, or present evidence 

that could have been raised prior to the entry of judgment. She contends that Left Fork identifies 

no material factual ot legal issue that could not have been fully considered by the Commission at 

the time Left Fork filed its motions to reopen.· Accordingly, the Secretary requests that the 

Commission de:riy Left Fork's petition for reconsideration. 

The Commission has recognized that petitions for reconsideration under Commission 

Procedural Rule 78 ''ought, at the very least, to bring to the Commission's attention facts or legal 

arguments the petitioner believes·were overlooked or misapprehended, or point to a change in 

controlling law." Island Creek Coal Co., 23 FMSHRC 138, 139 (Feb. 2001) (citations omitted). 

The Commission stated that such petitions "should also not merely raise arguments the 

Commission has already considered, or attempt to raise new legal arguments." Id. (citations 

omitted). Courts have recognized that the basis for a motion for reconsideration must not have 

been available at the time the first motion was filed. Servants of the Paraclete v. Does, 204 F.3d 

31FMSHRC782 
1005, 1012 (10th Cir. 2000). In other words, a motion for reconsideration must fail when the 

motion merely advances "new arguments, or supporting facts which were available at the time of 

the original motion." Id. 

Here, Left Fork has failed to set forth reasons justifying reconsideration. In argufug tb~t it 

has previously received incorrect delinquency notices and that delinquency notices do not · · 

necessarily mean that proposed penalties have not been contested, Left Fork essentially raises an 

argument that the Commission considered in disposing of Left Fork's motions to reopen.2 In 

addition, although Left Fork presents more detailed information concerning its failure to timely 

contest the proposed penalty assessments and its delay in filing the motions. to reopen, there is no 

indication that such evidence was not also available at the time that Left Fork filedits motions to 

reopen. 

Accordingly, for these reasons, Left Fork's petition for reconsideration is denied. 

Robert F. Cohen, Jr., Commissioner 

2 We note that Proposed Assessment Nos. 000120903 is referred to as paid in a "Civil 

Penalty Collection Report" attached to MSHA's May 13 letter. 

31 FMSHRC 783 
Distribution: 

Terry Nelson Jr., Safety Director 

LeflFork Mitring Company, fuc. 

P.O. Box 405 . 

Arjay, KY 40902 

w .. Christian Schumann, Esq. 

Office ofthe 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 784 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW. 

SECRETARY OF LABOR, 

MINE SAFETY AND.HEALTH 

ADMINISTRATION (MSHA) 

v. 

SUITE950.0 

WASHINGTON, DC 20001 

July 20, 2009 

SPARTAN MINING COMPANY, INC. 

Docket No. WEV A 2009-764 

A.C. No. 46-08808-166004 

BEFORE: Duffy, Chairman;· Jordan, Young, and Cohen, Cominissioners 

·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 from Spartan 

Mining Company, Inc. ("Spartan") an amended motion by counsel seeking to reopen a penalty 

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

the Mine Act, 30 U.S;C. § 815(a). . 

Under section 105(a) of the Mine Act, an operatorwhowishesto contestaproposed 

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

penalty a8sessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

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

On October 15, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued an assessment to Spartan proposing $208,985 in penalties fo:r 163 citations and 

orders previously issued at Spartan's Ruby Energy Mine. fu its·initial request to reopen filed on 

January 29, 2009, Spartan alleged that it did not receive the Federal Express envelope containing 

the proposed assessment and requested that the assessment be reopened as to the ciiation8 and 

orders marked on the copy of the proposed assessment it attached to the motion. However, none 

of the citation$ or orders was marked on the attached copy. Consequently, the Commission· 

denied Spartan's request without prejudice~ and specified information that Spartan should include 

to further clarify matters in the event it decided to refile its motion. See Sparlan Mining Co., 31 

FMSHRC _, __, slip op. at 2-3 (May 20, 2009). · 

31,FMSHRC 785 
Spartan filed an amended motion on June 8, 2009, which mcludes an assessment form 

marked to show that Spartan would contest 73 proposed penalties upon reopening of the 

assessment. The amended motion also includes a copy of the Federal Express Tracking Report 

for the delivery package containing the assessment that MSHA provided to Spartan. The report 

shows that the delivery company twice tried to deliver the package, both times unsuccessfully. 

Spartan explains that it is understandable that the first attempt was unsuccessful, because it was 

made after business hours, but cannot understand why the second attempt also failed, gjven that it 

occurred at a time that its office was fully staffed. Spartan states that because of problems with 

deliveries it has changed its mailing address to a more centralized delivery location. 

The Secretary did not oppose Spartan's original request for reopening, and did not 

respond to its amended motion. 1 

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

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

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

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.,/nc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed Spartan's amended motion, we conclude that the proposed assessment 

at issue has not become a final order of the Commission. We deny the motion as moot and 

remand this matter to the Chief Administrative Law Judge for further proceedings as appropriate, 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

Spartan's submission of its completed contest form with its amended motion to reopen serves as 

its notice of contest. Consequently, and consistent with Rule 28, the Secretary shall file petitions 

1 We consider the Secretary's position in this case in light of the provisions of the 

"Informal Agreement between Dinsmore & Shohl Attorneys and Department of Labor - MSHA 

- Attorneys Regarding Matters Involving Massey Energy Company Subsidiaries" dated 

September 13, 2006. Therein, the Secretary agreed not to object to any motion to reopen a matter 

in which any Massey Energy subsidiary failed to timely return MSHA Form 1000-179 or 

inadvertently paid a penalty it intended to contest so long as the motion to reopen is filed within a 

reasonable time. Thus, we assume that the Secretary is not considering the substantive merits of 

a motion to reopen from any Massey Energy subsidiary so long as the motion is filed within a 

reasonable time. Such agreements obviously are not binding on the Commission, and the 

Secretary's position in conformance with the agreement in this case has no bearing on our 

determination on the merits of the operator's proffered excuse. 

31 FMSHRC 786 
for assessment of penalty within 45 days of the date of this order. See 29 C.F.R § 2700.28. See 

Double Bonus Coal Coo,, 31FMSHRC358, 360 (Mar. 2009). 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 787 . 
Distribution: 

Carol Ann Marunich, Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Moq~antown, 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 & He3.Ith Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 788 
FEDERAL MINE SAFETY ~D HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MORRIS, INC; 

601 NEW JERSEY AVENUE, NW. 

SUITE.9500 

WASHINGTON, DC 20001 

July 20, 2009 

.. • 

Docket No. CENT 2009· 1 

A;C. No. 39-01381-152957 

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

'ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On October 1, 2008, and June 12, 2009, the Commission 

received from Morris, Inc. ("Morris") requests to reopen a penalty assessment that became 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 June 1, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Assessment No. 000152957 to Morris, proposing penalties for two citations 

that MSHA had previously issued to Morris. According to the Secretary, any contest of those 

penalties was due on July 17, 2008. However, the Secretary's records show that Morris did not 

file a contest until July 25, 2008, when it contested one of the two proposed penalties. Because 

Morris' original request to reopen did not explain the reason for the late filing, the Commission 

denied the request without prejudice. See 31 FMSHRC _, _ , slip op. at 2-3 (May 6, 2009). 

Morris filed a second request to reopen on June 12, 2009. It explains that on July 2, 

2008, well within the 30-day time limit, internal communications indicated that one of the 

penalties should be paid and the other contested. When it learned on July 17, 2008, that the 

31 FMSHRC 789 
instructions had not been carried out, Morris then siibmitted the check and contest form. Morris 

includes copies of the assessment showing the internal communications. Morris further states 

that it has established a new process to ensure that all future notices of contest are submitted in a 

timely manner. 

The Secretary did not oppose Morris' original request for reopening, and did not respond 

to its second request. 

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.,1nc., 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 790 
Having reviewed Morris' requests 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 

31FMSHRC791 
Distribution: 

Jean Morris 

Human Resources Director, Inc. 

Morris, Inc. 

P.O. Box 1162 

Pierre, SD 57501 

W. Christian Schumann, Esq. 

Office of the Solicitor · · 

U.S. Departnient of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Ciyil _penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25t1t 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 FMSHRC792 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION ' • • • • ,• ' • ·,. I I • ,• • • '• 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

LEHIGH NORTHEAST CEMENT 

COMPANY 

601 NEW JERSEY AVENUE,'NW 

. SUIT.E 9500 

WASHINGTON, DC 20001 · 

July 20, 2009 

Docket No~ YORK2009-83-M 

·A.C. No. 30-00070..:140110 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act''). On February 6, 2009, theCommissio:n received a motion by 

counsel ·to reopen a penalty assessment issued to Lehigh Northeast Cement Company (''Lehigh 

Northeast") that had become a final order of the Commission pursuant to sectfon 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). 

Lehigh Northeast states that in December 2007 the Department of Labor's Mine Safety 

and Health Administration ("MSHA") issued it 28 citations, all of which were designated as 

involving high negligence. Lehigh Northeast explains that it requested and was granted a 

conference with MSHA on the citations. Lehigh Northeast states that it was eventually told by 

MSHA that the changes it requested would be made, and that it learned that a neighboring 

operator had been successful as well in reducing negligence findings on similar citations it had 

been issued. · · 

31 FMSHRC 793 
However, MSHA subsequently issued Assess~ent"No. 0001401 IO to Lehigh Northeast, 

proposing penalties for the 28 citations based on the: high negligence allegations. Lehigh 

Northeast states it was under the impression that revised proposed penalties would issue, based 

on the reduction in negligence, but that turned out not to be the case. Lehigh Northeast, now 

represented by new counsel, subsequently learned that the MSHA database showed the continued 

delinquency of the assessment and directed that the motion for reopening be filed. After initially 

opposing Lehigh Northeast's request to reopen, the Secretary subsequently filed a response 

stating that she does not oppose reopening here. 

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., Jnc., 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). 

Having reviewed Lehigh Northeast's request and the Secretary's response, we conclude 

that, on balance, this case merits reopening. Lehigh Northeast clearly showed an intent to contest 

proposed penalties predicated on alleg~tions of high negligence, and was apparently told by 

MSHA that the citations would be changed to show a lesser degree ofn~gligence. Given that, it. 

is understandable why Lehigh Northeast.believed that it was unnecessary to contest the initial 

proposed assessment.' 

1 We grant reopening even though Lehigh Northeast did not move to reopen the 

assessment until over ten months had passed since the assessment.had become a final order. . . 

Operators should be aware that, in general, a delay of such length decreases the. likelihood that 

the Commission will look favorably upon a request to reopen. In this case we are willing to grant 

reopening because it appears that MSHA has concluded that the original citations were incorrect 

as to the degree of negligence, which would necessarily reduce the amount of the penalties. 

31 FMSHRC 794 
fu 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 795 
Distribution: 

Margaret S. Lopez, Esq. 

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

2400 N Street NW, 5th Floor 

Washington, DC 20037 

W. Christian Schumatin, 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 

31 FMSHRC 796 
FEDERAL MINE SAfETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENU~, NW 

SECRETARY OF LABOR, · 

MINE SAFETY AND HEALTH : 

ADMINISTRATION(MSHA). 

v. 

ASH GROVE CEMENT COMPANY 

· .SUITE950Q 

WASHINGTON, DC 20001 

July 21, 2009 

Docket No. CENT 2008"-786-M 

A.C. No. 14-00034•159579 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On September 22, 2008, the Commission received from Ash 

Grove Cement Company ("Ash Grove") 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 sectiOh 105(a) of the Mine Act, an operator who wishes to contest a proposed 

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

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

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

On August 7, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed AssessmentNo. 000159579 to Ash Grove, proposing civil penalties 

for nine citations. Ash Grove states that, on August 26, the company's safety manager contacted 

its counsel and indiCated that he would forward the proposed assessment to counsel's office to 

process the hearing _request. On August 27, counsel received the proposed assessment by email. 

Counsel failed to contest the proposed assessment due to work commitments and related travel, 

which is described with specificity in an attached affidavit. 

The Secretary states that she does not oppose the request to reopen the proposed 

assessment. However, she urges the operator to take all steps necessary to ensure that, in the 

future, any penalty assessments are contested in a timely manner. 

31 FMSHRC 797 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

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

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

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 tiniely respond, the case may be reopened and appropriate proceedings on the 

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

Having reviewed Ash Grove'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 798 
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 799 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

QUALITY AGGREGATES, INC. 

601 NEW JERSEY AVENUE, NW. 

SUITE9500 

WASHINGTON, DC 20001 

July 24, 2009 

Docket No. PENN 2009-408-M 

A.C. No. 36"'.07747-172956 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On March 30, 2009, the Commission received from Quzjity 

Aggregates, Inc. ("Quality") 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 800 
Quality states that,.following its receipt of the proposed assessment on or about January 

12, 2009, its safety director, who was responsible for reviewing the document, was out of the 

office on vacation for a week. Following his refurn, the safety director was generallyaway from 

Quality's' home office on trammg and other work duties during the next eight days .. Quality 

fw:ther states that on February 3, 2009, it received a letter from MSHAdated January 23, 2009 

which vacated two citations that were included in the proposed assessment. Quality asserts that 

its safety director mistakenly believed that he would receive another assessment that would 

reflect the vacated citations. 

The Secretary opposes reopening the proposed penalty assessment, maintaining that 

Quality has failed to establish the existence of "exceptional circumstances." Specifically, the 

Secretary contend§ that for the period up to February 3, 2009, Quality's "inadequate or unreliable 

internal procedures'' do not justify reopening. The Secretary is silent as to the period beginning 

February 3, 2~09. 

We find that the reasons advanced by Quality for not contesting the proposed assessment 

between January 12 and February 3, 2009 are essentially irrelevant. As of February 3, 2009, 

when the safety.director had focused on the proposed assessment, Quality still had 11 days within 

which to contest it. Thus, the issue is whether the safety director's mistaken belief that he would 

receive another proposed assessment, reflecting the amended citations, was reasonable. In this 

regard, we note that in the letter dated January 23, 2009, MSHA clearly indicated the total 

amount of the assessment, both before and after the two citations were vacated. 

· .. ; 

31 FMSHRC 801 
. Having reviewed Quality's request and the Secretary's response, in the interests of 

justice, we remand this matter to the Chief Administrative Law Judge· for a d'etennination of 

whether good cause exists for Quality's failure to timely contest the penalty and whether relief 

from the fillal 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 On remand, the judge should consider whether Quality has met the standard for relief 

under Rule 60(b) because of its mistaken belief that it was going to receive a revised assessment 

after two citations on the assessment were vacated. 

31 FMSHRC 802 
Distribution: 

Stephen L. Korbel, Esq. 

Babst, Calland, Clements, Zomnir 

Two Gateway Center, 8th Floor 

Pittsburgh, PA 15222 

W. Christian Schumann; Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Rooin 2220 

Arlington, VA 22209-2296 

MyraJames, Chief, 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. ofLabor 

1100 Wilson Blvd., z5t11 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 803 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BRESEE TRUCKING CO., INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

July 24, 2009 

Docket No. VA 2009-46 

A.C. No. 44-03088-151516 GTY 

Docket No. VA 2009-47 

A.C. No; 44.,.07087-144483 GTY 

Docket No. VA 2009-48 

A.C. No. 44-07069:-148351 GTY 

Docket No. VA 2009-49 

A.C. No. 44-07069-144482.GTY 

Docket No. KENT 2009-190 

A.C. No. 15-J 7165-136968 GTY 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On November 5, 2008, the Commission received from 

Bresee Trucking Co., fuc. ("Bresee") motions by counsel seeking to reopen :five penalty 

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

Mine Act, 30 U.S.C. § 815(a).1 

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

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

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

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

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

consolidate docket numbers VA 2009-46, VA 2009-47, VA 2009-48, VA 2009-49, and KENT 

2009-190, all captioned Bresee Trncking Co., Inc., and involving similar procedural issues. 

29 C.F.R. § 2700.12. 

31 FMSHRC 804 
. We· have held, however, that in appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become· final ·Commission orders under section. l05(a). 

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (Mayl993) ("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 tQ relief · 

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

§ 2700.l(b) ("the Commission and its Judgesshallbeguid~.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 record indicates :that delivery of the proposed penalty assessments was attempted at 

several addresses but was not sutcess:ful. Upon learning that the proposed assessments were 

delinquent, the operator filed. these requests to reopen. The Secretary states that she does not 

oppose the reopening of the proposed penalty assessments but urges the operator to make sure 

that it keeps MSHA informed of its current address of record. 

It is an operator's responsibility to file with MSHA the address of a mine and any changes 

of address. 30 C.F.R: §§41.10, 4 Lli; Operators may request service by delivery to another 

appropriate address provided by the operator. 30 C.F.R. § 41.30. · 

It is unclear from the record whether MSHA mailed the proposed assessment to Bresee's 

official address of record at the time of assessment and whether Bresee maintained its correct 

address with MSHA. IfMSHA sent the proposed assessment to Bresee's official address of 

record, grounds may exist for denying Bresee's request for relief Cf Harvey Trucking, 21 

FMSHRC 567, 568-69 & n. l (June 1999) (stating that operator is required to notify MSHA of 

changes of address). If, however, MSHA mailed the proposed assessment to an incorrect 

address, the proposed assessment may not have become a final Commission order and Bresee's 

request may be moot. 

31 FMSHRC 805 
Having reviewed Bresee' s motions, we remand this. matter to the Chief Administrative 

Law Judge for a determination of whether the proposed assessnients became final orders and; if · 

so, whether the final orders should be reopened; We ask the Chief Judge, in considering the. 

matter, to resolve the dispute over whetherMSHA sent the proposed assessment to Bresee's 

official address of record at the time of assessment. The Judge shall order further appropriate 

proceedings based upon that determination in accordance with principles described herein, the ·· 

Mine Act and the Commission?s Procedural Rules, 29 C.F.R. Part 2700. 

M ~LuJO-rfJan,.Co~ssioner 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 806 
Distribution: 

Marco M. Rajkovich, 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 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 807 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

NEWMONT USA LIMITED 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

July 31, 2009 

Docket No. WEST 2009-~95-M 

A.C. No. 26-02512-130423 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On January 13, 2009, the Commission received a letter from 

Newmont USA Limited ("Newmont") 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 I 05( a) of the Mine Act, an operator who wishes to contest a proposed 

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

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

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

On October 31, 2007, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000130423 to Newmont, proposing civil penalties 

for Citations Nos. 6394861 and 6342286. Newmont states that it paid the penalty for Citation 

No. 6342286 on November 26, 2007, but that it mistakenly mailed its contest of Citation No. 

6394861 along with that payment, rather than sending the contest to a separate MSHA address. 

The operator states that on May 29, 2008, it received a Notice of Debt from the U.S. Department 

of Treasury. Newmont explains that on June 2, 2008, it faxed documents demonstrating that it 

had contested the citation to the counsel listed in the notice as handling the collection effort. On 

June 4, 2008, Newmont received a letter from that counsel stating that the collection matter was 

suspended until the dispute was reviewed. On November I 0, 2008, Newmont contacted MSHA 

and was informed that the contest of the citation had not been received in a timely manner, and 

that the penalty had been referred to Treasury for collection. 

31 FMSHR.C 808 , 
The Secretary opposes Newmont's request to reopen Proposed Assessment No. 

000130423. She asserts that the penalty assessment became a final Commission order on 

December 7, 2007, and that the request to reopen was not received by the Commission until 

January 13, 2009. The Secretary maintains that because the operator filed its request more than · 

one year after the assessment became a final order, the request should be denied. The Secretary 

further notes that on January 23, 2008~ MSHA sent a delinquency notice to Newmont informing 

the operator that it had failed .to timely contest the proposed penalty. The Secretary contends that 

Newmont failed to explain why; after it was informed that it had not contested the proposed 

penalty, it took so long to request reopening. 

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 l05(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. 1 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 

held that a Rule 60(b) motion shall be .. made within a reasonable time, and for reasons {l ), (2), 

and (3) not more than one year atter the judgment, order, or proceeding was entered or taken.2 

Celite Corp., 18 FMSHRC 105, 106 (Apr. 2006) (citations and quotations omitted). 

Here, we have been presented with Newmont's failure to timely contest Proposed 

Assessment No. 000130423 due to its mistake in sending its contest to an incorrect address, 

followed by a communicatiotibetween Newmont and counsel in charge of the collection action 

1 Rule 60(b) provides that a court may relieve a party from a final judgment, order, or 

proceeding for the following reasons: 

(1) mistake, inadvertence, surprise, or excusable neglect; 

(2) newly discovered evidence ... ; 

(3) fraud ... ; 

(4) the judgment is void; 

(5) the judgment has been satisfied, released or discharged; it is 

based on an earlier judgment that has been reversed or vacated; or 

applying it prospectively is no longer equitable; or 

(6) any other reason that justifies relief 

Fed. R. Civ. P. 60(b). 

2 Rule 60( c) provides that "[a] motion under Rule 60(b) must be made within a 

reasonable time - and for reasons (1 ), (2), and (3) no more than a year after the entry of the 

judgment or order or the date of the proceeding. Fed. R. Civ. P. 60(c). 

31 FMSHR.c· 809 · 
where both apparently failed to realize that the only remedy available to Newmont was for the 

Commission to reopen the order that had gone final, and then only for good cause and subject to 

the time.limits set forth in Rule 60(c). This misunderstanding falls squarely within the ambit of 

Rule 60(b)(l). See Ce/it~, 18 FMSHRC at 107. 

Because Newmont waited over a year to request.relief with regard to Proposed 

Assessment No. 000130423, its motion is untimely. JS Sand & Gravel, Inc., 26 FMSHRC 795, 

796 (Oct. 2004). Accordingly, we denyNewmont's request to reopen. 

Mich 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 810 
Distribution: 

Richard Tucker 

Compliance & Safety 

Newmont Mining Corporation 

P.O. Box 669 

Carlin, NV 89822-0669 

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' 

Washiligton, D.C. 20001-2021 

31 FMSHRC 811 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW . 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SUITE 9500 

WASHINGTON, DC 20001 

July 31, 2009 

MICHAEL WILL, employed by 

CHEMICAL LIME CO. OF ALABAMA 

Docket No. SE 2009'."550-M 

A.C. No. 01-00003-175599A 

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, Co~ssioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1.977, 30.U.S.C .... 

§ 801 et seq. (2006) ("Mine Act"). On May 14, 2009, the Commission received :fre>m Michael 

Will, employed by Chemical Lime Company of Alabama ("Will"), a tnotion by counsel in. which, 

Will seeks to reopen a penalty assessment under section 1 lO(c) of the Mine Act, 30 U.S.C. 

§ 820(c), that had become 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 IO(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. 

Will states that he never received Proposed Assessment No. 000175599A. The Secretary 

confirms that the proposed assessment was never received by Will and was returned to MSHA as 

undelivered. The Secretary submits that in order to achieve proper service, she will mail the 

proposed assessment to the address provided in Will's request to reopen, and that Will, 

thereafter, will have 30 days after receipt to either pay or contest the proposed assessment. 

31 FMSHRC 812 
Having reviewed Will's request and the Secretary's response, we deny Will's request to 

reopen as moot. Tii.e Secretary may proceed as she has outlined in her response, and, if the 

proposed penalty is contested by Will, this case shall proceed pursuant to the Mine Act·and the 

Commission's Procedural Rules, 29 C.F.R. Part 2700. See Lehigh Cement Co., 28 FMSHRC 

440, 441(July2006). . 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC813 
Distribution: . 

Jeremy Tucker, Esq. 

Alston & Bird, LLP 

One Atlantic Ctr. 

1201 West Peachtree St. 

Atlanta, GA 30309-3424 

W. Christian Schumann, Esq, 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myrid allies: Chief 

Office of Civ:ll Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Adμiinistrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health·Review Commission 

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

Washington, D.C. 20001-2021 

'' 31FMSHRC814 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

McCOY ELKHORN COAL CORP. 

SUITE 9500 . 

WASHINGTON, DC 20001 

July 31, 2009 

·, 

·. 

Docket No. KENT 2009-1128 

A.C No. 15-15138-171766 

Docket No; KENT 2009-1129 

A.C; No. 15-18250-171772 

Docket No. KENT 2009-1130 

A.C. No. 15-18721-171781 

Docket No. KENT 2009-1131 

A.C. No. 15-18775-171784 

BEFORE: Duffy, Chairman; Jordan, Yo~g, 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"). ()n May 26, 2009, the Commission received requests to 

reopen four penaity as$essmeri.ts issued to McCoy Elkhorn Coal Corporation ("McCoy") that may 

have become tlnru 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 ofthe Commission. 30 U.S.C. § 815(a). 

McCoy states that it never received Proposed Assessment Nos. 000171766, 000171772, 

000171781 and 000171784. The Secretary states that Federal Express attempted delivery 

without success on December 26, 2008, for all four proposed assessments. She suggests that it is 

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

consolidate docket numbers KENT 2009-1128, KENT 2009-1129, KENT 2009-1130, and KENT 

2009-1131, all captioned McCoy Elkhorn Coal Corp., and involving the same factual and 

procedural issues. 29 C.F.R. § 2700.12. 

31FMSHRC815 
possible that the mine offices were closed for the holid;:tys; The Secretary submits that in order to 

achieve proper service, she will re-serve the proposed assessments by Federal Express at the 

address of record, and that McCoy will th~n have 30 days afte~ receipt to either pay or contest the 

proposed assessments. 

Having reviewed McCoy's requests and the Secretary's response, we deny McCoy's 

requests to reopen as moot. The Secretary may proceed as she has outlined in her response, and, 

if any of the proposed penalties are contested by McCoy, this case shall proceed pursuant to the · 

Mine Act and the Commission's.~Procedural Rules, 29 C.F.R. Part 2700. See Lehigh Cement Co., 

28 FMSHRC 440, 441 (July 2006). 

Robert F. Cohen, Jr.,.Commissioner 

31 FMSHRC 816 
Distribution: 

Melanie J. Kilpatrick, Esq. 

Rajkovich, Williams, Kilpatrick & True, PLLC 

2333 Alumni Park Plaza, Suite 310 

Lexington, KY 40517 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept Of Labor 

1100 Wilson Blvd.~ 25th Floor 

Arlington, VA 22209-3939 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 817 
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 

August 4, 2009 

Docket No. WEVA2009 .. 1562· 

A.C. No. 46-09152-177347 

EASTERN ASSOCIATED COAL, LLC 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On June 11, 2009, the Commission received from Eastern 

Associated Coal, LLC ("Eastern") 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 1 OS( 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 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). 

31FMSHRC818 
Eastern states that its safety director received the assessment at issue, but shortly 

thereafter developed health problems and ultimately never returned to his position. Eastern 

explains that the safety director was the only official at the mine who knew of the assessment 

until the mine received a delinquency notice regarding the assessment. The Secretary states that 

she does not oppose reopening in this instance, and her response included a copy of the late-filed 

assessment that Eastern marked to show which penalties it wishes to contest, as well as 

information indicating that Eastern paid the uncontested penalties. 

Having reviewed Eastern'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 a8sessment 

ofpenaltywithin45 days of the date of this order. See 29 C.F.R § 2700.28. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 819 
Distribution: 

Jonathan R. Ellis, Esq .. 

Steptoe & Johnson, PLLC, Eight Fl. 

Bank One Ctr. 

P.O. Box 1588, Charleston, WV 25326-1588 

W. Christian Schumarin,, 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., 25t1t :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 820 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

. 601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH. 

ADMINISTRATION (MSHA) 

V. 

SCP INVESTMENfS; LLC 

SUITE9500 

WASHINGTON, DC 20001 

August 6, 2009 

Docket Nos. SE 2006-148-M 

SE 2006-163--M 

BEFORE: Dilffy, Chainnan;·Jordan, Young, :and Cohen, Commissioners 

DECISION 

BY THE COMMISSION: 

In these civil penalty proceedings arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (2006) (''Mine Act" or "Act"), Judge Jerold Feldman vacated all 

11 citations and the one order at issue. 30 FMSHRC 544 (June 2008} (ALJ). Thejudge did so as 

a sanction for the Department of Labor's Mine Safety and Health Administration ("MSHA") 

inspector's refusal to permit a representative of the operator to accompany him on the inspection 

that occurred in connection with the issuance of the citations and order, an exclusion which the 

judge determined to be contrary to section 103(f) of the Mine Act, 30 U.S.C. § 813(f).1 

1 Section 103(f) of the Mine Act states in pertinent part: 

Subject to regulations issued by the Secretary, a 

representative of the operator and a representative authorized by 

his miners shall be given an opportunity to accompany the 

Secretary or his authorized representative during the physical · 

inspection of any coal or other mine made pursuant to the 

provisions of subsection (a),.for the purpose of aiding such 

inspection and to participate in pre- or post-inspection conferences 

held at the mine .... Compliance with this subsection shall not be a 

31 FMSHRC821 
.. . , . 

The Commission subsequently granted the Secretary of Labor's petitiOn for discretionary 

review. This case poses the question of whether the judge erred in dismissing the order and 

citations because the operator was not permitted to accompany the MSHA inspector on his first 

inspection of this mine. 

Commissioners Young and Cohen, with Chairman Duffy concurring, affirm the judge's 

finding that the mine operator's walkaround rights were violated in this instance. CQmmissioner 

Jordan does not reach the issue. However, because of the jurisdictional language of the last 

sentence of section 103(f), all Commissioners agree that the judge erred as a matter of law when 

he vacated the Secretary's citations and dismissed these proceedings. Accordingly, the judge's 

decision is vacated. 

On remand, the judge is permitted to consider the effect of the improper denial of the 

operator's walkaround rights on the operator's ability to present its case. Commissioners Young 

and Cohen would apply an exclusionary rule. Under their formulation, the judge should 

determine what prejudice, if any, resulted from the denial of the operator's walkaround rights. 

The judge could then exclude evidence resulting from the inspection, where the operator 

demonstrated the existence of prejudice as a result of not being present during the inspection. 

Chairman Duffy would have the judge exercise his discretion to decide whether the Secretary 

established a violation and (if so) the appropriate penalty, talcing into account that the failure to 

permit the walkaround may have prevented the operator from offering probative evidence to 

support its case. Commissioner Jordan believes that the inspector's exclusion of the owneroperator from the inspection has no effect on the trial of this case. 

The separate opinions of the Commissioners follow. 

jurisdictional prerequisite to the enforcement of any provision of 

this Act. 

30 u.s.c. § 813(f). 

31 FMSHRC 822 
Opinion of Commissioners Young and Cohen: 

This case involves the relationship of MSHA with a new ancJ very small operator. Alld, 

as Judge Feldman recognized, :fundamentally this case involves how our government relates to its 

citizens. 

I. 

Factual and Procedural Background 

Although the opinions in this case focus on legal issues, it is very important to understand 

the facts out of which the case arises. 1 ·SCP investments took.over and began operating the Old 

County Limestone Quarry in Crab Orchard, Tennessee, in September2005. Show Cal!se Order, 

30 FMSHRC at 341. It had three employees; including the owner-operator, Pat Stone. SCP 

Show Cause Reply at 1. According to information pro~ded byMr. Stone, in September 2005 

SCP purchased county property in Cumberland County, Tennessee, that included an existing . 

limestone quarry that had been used for 50 years in connection with county road work. Id. at 1. 

There is no record evidence of when the.county ceased operating the quarry or regarding MSHA 

regulation of the quarry's operations, if any. SCP eventually commenced rock crushing 

operations at the site, which it called the Old County Quarry. Id.; 30 FMSHRC at 544. 

Mr. Stone has stated in the record that he has a construction background but no mining 

experience. He was not at all familiar with MSHA, nor with legal requirements of the Mine Act. 

On December 13 or 14, 2005, an MSHA inspector, Jeff Phillips, arrived to inspect the Old 

County Quarry, which at tha~ point had been operating for about three months. Upon learning 

that the quarry did.not have an MSHA identification number, Mr. Phillips had Mr. Stone fill out 

an application, and Mr~ Phillips obtained the identification number. Then Mi. Phillips asked 

Mr. Stone about the employees' mining experience and their training under MSHA' s training 

1 Because of the procedural history, the record in the case is sparse. Our description of 

the facts is based on the judge's Order to Show Cause, 30 FMSHRC 341 (Mar. 2008) (ALJ), and 

the submissions of the parties, both to the judge and on review. The operator has not been 

represented by counsel at any point, and its submissions have· been in the form of letters from its 

owner, Pat Stone. There are factual a8sertions in the letters to the judge from Mr. Stone which 

are neither confirmed nor denied by the Secretary. The most detailed letter by Mr. Stone is dated 

April 30, 2008. In the letter (hereinafter referred to as "SCP Show Cause Reply"), he replied to 

the Secretary's response to the judge's show cause order (which required the Secretary to explain 

why the citations should not be vacated because of the inspector's refusal to permit Mr. Stone to 

accompany him during the inspection). Since Judge Feldman issued a Further Order to Show 

Cause on May 8, 2008, 30 FMSHRC 563 (May 2008) (ALJ), which acknowledged Mr. Stone's 

letter, and since the Secretary responded to Judge Feldman's Further Order to Show Cause on 

May 29 and did not dispute the factual representations in Mr. Stone's April 30 letter, we are 

relying on some of Mr. Stone's factual representations, as well as the Secretary's, when they are 

not inconsistent. · · 

3 l FMSHRC 823 · 
regulations (set forth in Part 46 of Title 30 of the Code of Federal Regulations): Mr. Stone 

explained that one of his employees had worked for him for eight years, the other had worked for 

him for six years, and that they were both excellent employees. However, Mr. Stone was not 

aware of the training requirements of Part 46. 

At this point, Mr. Phillips issued a section 104(g)(l) withdrawal order and escorted 

Mr. Stone off the premises.2 S. Br. at 2; SCP Show Cause Reply at 1. The violation was 

designated significant and substantial ("S&S"}? He had Mr. Stone contact his employees on the 

radio and direct them to leave the premises also. Mr. Phillips then told Mr. Stone that he was 

going to inspect the pit and the equipment. Mr. Stone asked Mr. Phillips if he could accompany 

the inspector.4 Mr. Phillips refused to allow Mr. Stone to accompany him.· The reason for 

Mr. Prullips' refusal apparently was that Mr. Stone did not have 24 hours of riew miner training 

pursuant to 30 C.F.R. § 46.5(a). This is the basis set forth iii the section 104(g)(l) order issued 

by Mr. Phillips. Mr. Phillips refused to allow Mr. Stone to re;..entetthe mine site to retrieve keys 

which were left in several loaders. 

Following the inspection~ Mr. Phillips issued 11 more citations. He info:Itned Mr. Stone 

that he and his employees_ could not return to the mine until they were trained. Mr. Phillips · 

2 Section l04(g)(l) provides: 

If, upon any inspection or investigation pursuant to section 

103 of this Act, the Secretary or an authori~ed representative sh.all 

find employed at a coal or other mine a miner who has not received 

the requisite safety training as determined under section 115 of this 

Act, the Secretary or an authorized representative shall issue an 

order under this section which declares such miner to be a hazard 

to himself and to others, and requiring that such miner be 

immediat~ly withdrawn from the coal or other mine, and be 

prohibited from entering such mine until an. authorized · . 

representative of the Secretary determines that such miner has 

received the training required by section 115 of this Act. 

30 u.s.c. § 814(g)(l). 

3 The S&S terminology is taken from section 104(d){l} of the Act, 30 U.S.C. 

§ 814( d)(l ), which distinguishes as more serious any violation that "could significantly and 

substantially contribute to the cause and effect of a ... mine safety or health hazard." 

4 We assume that Mr. Stone was not specifically familiar with his "walkaround rights'' 

under section 103(f) of the Mine Act, 30 U.S.C. § 813(f), but was simply requesting the 

opportunity to accompany a government official who was inspecting his property. 

31FMSHRC824 
indicated that the training must include 16 hours ofdassroom training and 8.hours of training on 

the job. SCP Show Cause Reply at 1-2. 

Mr. Stone contacted the. Tennessee Department of Labor, and made arrangements for 

classroom training for himself and his employees at a mine safety school on December 19 and 

20. To obtain the on-the-job training, Mr. Stone contacted several mines in the area which 

agreed to provide the training. However, Mr. Phillip~ would not accept this training, apparently 

because it would have been at a different kind of quarry. The only other possible quarry was 

Mr. Stone's direct competitor, Franklin Limestone, and the competitor refused to provide the · 

training to Mr. Stone and his employees. Mr. Stone then asked Mr. Phillips to. provide the .. 

training. At this point, it appears that Mr. Phillips agreed to let Mr. Stone provide the training for 

his employe.es. Id. In any event, Mr. Phillips terminat¢the section 104(g)(l) order on · 

December 21, 2005. The other violations were terminated the next day, presumably after 

Mr. Stone and his employees had r~turned to the quarry and fixed the problems. 

A couple of p~ints emerge from the factual pattern in this case. As shown by his lett~rs, 

Mr. Stone was very angry. But significantly, he obeyed all of Mr. Phillips' orders, obtained the 

required training for himself and. his employees, and promptly abated the violations identified by 

Mr. Phillips. The record before us indicates that Mr. Stone was in no way a rogue operator. 

Prior to Mr· Phillips' inspection, Mr. Stone was not aware of his legal responsibiliti~s; Upon 

finding out what he was required to do, he complied with the law. . 

MSHA issued a penalty assessment in February 2006 and another the next month, 

proposing penalties totaling $1,087. SCP subsequently contested all 12 of the proposed 

penalties. · · · 

After reviewing the case, Judge Feldman issued an Order to Show Cause on March 31, 

2008. 30 FMSHRC at 341. He was concerned that the MSHA inspector had not permitted 

Mr. Stone to accompany him on the inspection. Id. at 342. The judge recognized that under 

section lOJ(f) and our case law, the right of the operator to accompany the inspector during an 

inspection is an important right which may only be curtailed by the Secretary's regulations.5 

Thus, Judge Feldman issued an order requiring the Secretary to show cause why the citations 

should not be vacated because the MSHA inspector violated section 103(f). The judge 

specifically directed the Secretary to respond to particular questions relating to the possible 

denial of Mr. Stone's rights under section 103(f). Id. 

The Secretary responded to the Order on April 16, 2008. S. Resp. to Show Cause Order. 

Basically, the Secretary argued that the purpose of the section 103(f) walkaround rights is to 

5 Section 103(f) of the Mine Act grants both operator$ and representatives of miners what 

are known as "walkaround" rights. See 30 U.S.C. § 813(f). These rights include the qualified 

rights to accompany MSHA personnel during their inspection of a mine and to participate in 

conferences at the mine both before and after the inspection. Id. 

31 FMSHRC 825 
assist the inspector in his inspection, that the inspector has discretion to limit who may 

accompany him on an inspection, that section 115 of the Mine Act, 30 U.S.C. § 825, requires 

training of new miners, and that even if there was a violation of section 103( f), it should not 

affect any citations and penalties issued as a result of the inspection. ·Id. at 2-9. The Secretary 

did not respond to Judge Feldman's specific questions. 

Judge Feldman issued a Further Order to Show Cause on May 8, 2008, noting the 

generalities of the Secretary's response to his first Order. 30 FMSHRC at 563. He stated, 

correctly in our view, that the discretion ofMSHA inspectors in conducting inspections must be 

''balanced with the fundamental right of a mine operator to be present during an inspection." Id. 

at 564. He set forth five specific questions for the Secretary to respond to, including the 

identification of specific regulations, Interpretive Bulletins, and Memoranda which supported the 

denial of Mr. Stone's right to accompany the inspector; the specific training that must be 

completed before a mine operator or miners' representative is permitted to accompany an: 

inspector; and the hazards to which Mr. Stone would have been exposed if he had accompanied 

Mr. Phillips. Id. at 565. Additionally, Judge Feldman recognized that dismissal of the citations 

and orderis a harsh sanction. Therefore, he asked the Secretafy to identify, assuming that the 

operator's section 103(f) fights were violated, lesser sanctions which could be imposed. Id. 

The Secretary responded to this Order on May 29, 2008. S. Resp. to Further Order to· .. 

Show Cause. In response to the judge's final question, the Secretary argued that dismissal is an · 

impermissible sanction. Id. at 5-6. The less drastic remedy offered by the Secretary·was to have 

the judge adjudicate the case on the merits, but take into consideration that Mr. Stone was unable 

to observe the conditions at the time that the inspector observed them. Id. at 6-7. Thus, the "less 

drastic remedy'' suggested by the Secretary would, in effect, hobble the operator in making his 

defense at trial after being denied his right to accompany the inspector. 

Following receipt of the Secretary's response, Judge Feldman issued his Dismissal Order 

on June 24, 2008. 30 FMSHRC at 544. He found that MSHA had abused its discretion in 

refusing Mr. Stone's request to accompany the inspector. Id. at 550. He :further noted that the 

cited violative conditions had been terminated, and thus there were no continuing unresolved 

safety issues. In order to deter future unwarranted denials of a mine operator's walkaround 

rights, Judge Feldman dismissed the order and citations. Id. 

n. 

Disposition 

The Secretary argues that the plain meaning of section 103(f) prohibits a judge from 

vacating citations and orders as a sanction for the issuing inspector's failure to accord 

walkaround rights. S. Br. at 8-JO. The Secretary states that even if the judge were authorized to 

so sanction the Secretary and MSHA,.it was not appropriate in this case, because the failure to 

permit the exercise of walkaround rights did not prejudice the operator, and the lesser sanction of 

31 FMSHRC 826 
taking the fajlure into account in his decision on the merits of citations and ()rderwas available to 

the judge. Id. at 11-15. The Secretary also takes issue with the judge's conclusion that . · ... · 

Mr. Phillips could have permitted Mr. Stone to accompany blm on the inspection under section .. 

46.l l(f) ofMSHA's hazard training regulations. Id. at18-21. The operat()r, which has actedpro 

se throughout this case, did not file a response brief. · · · -

A. Mr. Stone's Walkarouμd RigptsUnder Section 103({) 

The first question to consider.is whetherJudge Feldman correctly detepnined that 

Mr. Stone's rights under section 103(f) were Violated. At the outset, we must recognize that the .. 

statut~ry lat1guageis mandatory: "Subjectto regulations issued by the Secretary,6 a . . . . · 

representative of the operator ... shall be given an opportullity to acconipany the Secretary or his 

authorized representative during the physical inspection of any coal or other ijline macle p1JtSuant 

to the provisions of subsection (a) .... " 30 U.S.C. § 813(f) (emphasis added). In Consolidation 

Coal Co., 16 FMSHRC 713, 719 (Apr. 19.94), the 9ommissionnoted that "[t]he right of a 

miner's representative to accompany the. inspector on all section. I 03 inspections has been 

consistently .recognized by the Commission and the courts." Moreoy.er, the Commission has 

recognized the critical role that section 103(f) plays in the overall enforcementscheme of the 

Act, and has cautioned that "[ w ]e are not prepared to restrict the rights afforded by that section 

absent a clear indication in the statutory language or legislative history of an intent to do so, or 

absent an appropriate limitatio~ imposed by Secretarial regulation.'' Consolidation Coal Co., 3 

FMSHRC 617, 618 (Mar. 1981). We agree With.the judge.that Mr. Stone's walkaround rights 

were violated, although we differ somewhat in oilr reasoning. · · 

The Secretary's position to the contrafy is not convincing. She relies on a 1978 

Interpretive Bulletin which states that the inspector has discretion in conducting the inspection, 

and that the purpose of the section 103(f) walkaround rights is to aid the inspection. S. Br. at 15-

16. It is certainly true that the walkaround rights under section 103(f) are "for the purpose of 

aiding such inspection." 30 U.S.C. § 813(f). Section 103(f) of the Mine A.ct is.essentially 

identical to section 8(e) of the Occupational Safety and Health Act ("OSH Act");which similarly 

contains language that the OSH Act "walkaround right" is "for the purpose or'aiding such 

inspection." 29 U.S.C. § 657(e).7 In Chicago Bridge &Iron Co. v. OSHRC, 535 F.2d 371, 376 . . . . . . . 

6 The "regulations" referred to in section 103(f) include any of the Secretary's regulations 

which may be implicated by the exercise of walkaround rights. · · · 

7 Section 8(e) of the OSH Act, 29 U.S.C.§ 657(e), contains wording similar to the Mine: 

Act's walkaround provision: 

Subject to regulations issued by the Secretary, a . 

representative of the employer and a representative authorized by 

his employees shall be given an opportunity to accompany the 

Secretary or his authorized representative during the physical 

31 FMSHRC 827 
n~ 12 (7th Cir. 197 6), the court interpreted this language to mean that when representatives of the •· 

operator and employees accompany the inspector, factual disputes can often be resolved on the 

site, thu5 avoiding the expense of trying such issues. The Secretary's limited view of the 

Walka.round rights iii this case diminishes the role of the operator and employee representatives iii 

"aiding" the inspection. S. Br. at 16. 

fu discussing the inspector's discretion iii limiting walk:around rights, the Secretary cites 

our decision in Secretary of Labor on behalf of Wayne v. Consolidation Coal Co., 11 FMSHRC 

483, 489 (Apr. 1989), in which we found that an inspector did not abuse his discretion in 

excluding a miners' representative from a post-inspection meetiiig when there were already three 

members of the union safety committee and one representative of the union international iri 

attendance. S. Br. at 16~ 17. Certainly there is· a huge difference in refusing to permit a fifth 

representative of miners to be present compared with excluding a single owner-operator. 

The Secretary next argues that the inspector did not actually exclude Mr. Stone based on 

his lack of section 46.5 new miner training, 30 C.F.R.§ 46.5.8 S. Br. at 17. This is a strange 

argument given that the Secretary, in her Response to Further Order to Show Cause, speeifically · 

relied on section 46.5, as_~ell as section 46.11 of her training regulati6ns, 30 C.F.R. § 46;1 l,9 in 

·inspection of any workplace under subsection (a) of this seetion for 

the purpose of aiding· such inspeetion. Where there is no . 

authorized employee representative, the Secretary or his authorized 

representative shall consult with a reasonf1ble number of employees 

concerning matters of health and safety in the workplace. · 

8 Section 46.S(a) requires that operator$ 

·provide.each new miner with no foss than 24 hours of training a5 

prescribed by paragraphs (b ), ( c ), and ( d). Miners who ·have not yet 

received the full 24 hours of new miner training must work where 

an experienced miner can observe that the new miner is performing 

his or her work in a safe and healthful manner. 

30 C.F.R. § 46.S(a). Section 46.S(b) addresses seven aspects of training that must be provided 

before a miner can begin work, section 46.S(c) requires two other areas of training that must be 

provided within 60 calendar days after a new miner begins working, and the balance of the 24 

hours of training must be provided within 90 calendar days, according to section 46.S(d). 30 

C.F.R. § 46.5(b)-(d). 

9 Section 46.11 provides: 

(a) YOU must provide site-specific hazard awareness . 

training before any person specified under this section is exposed 

31 FMSHRC 828 
justifying Mr· Phillips' re~al to permit Mr. Stone to accompany him on the inspection. 

S. Resp. to Further Order to Show Cause at 1-3. Additionally, Mr. Phillips relied on section 46.5 

in the 104(g)(l) order .. Order No. 6122908. The Secretary states that thejudge confi,lsed the 

section 104(g) order with the decision to exclude Mr. Stone from the inspection. S. Br. at 17. It 

is hard to understand how the Secretary can suggest that the judge was confused when the 

Secretary had previously told him that section 46.5 was indeed part of the basis for excluding Mr. 

Stone. 

More troubling, however, is the Secretary's further argument: "The decision to exclude 

Mr. Stone from the inspection, however, was not documented by an order or citation - and was 

not required to be." S. Br. at 17. While it is tru~, strictly speaking, that the inspector did not 

have to issue an order or citation documenting the basis for excluding Mr. Stone, common · 

decency compels the conclusion that Mr. Stone be given something in writing providing him the 

legal basis for his· exclusion from the inspection, particularly when the one Written record 

actually issued by Mr. Phillips made reference solely to section 4.6.5. When the government 

excludes a citizen from exercising a statutory right, the government ought to document its 

reasons in writing at some point prior to being ordered to do so in a judge's Order to Show 

Cause. 

to mine hazards. 

(b) You must provide site-specific hazard awareness 

training, as appropriate, to any person who is not a miner as 

defined by§ 46.2 ofthis part but is present at a mine site, 

. including: ... , 

( d) Site-specific hazard awareness training is information or 

instructions on the hazards a person could be exposed to while at 

the mine, as well as applicable emergencyprocedures. The training 

must address site-specific health and safety risks .... 

( e) You may provide site-specific hazard .awareness training 

through the use of written hazard warnings, oral. instruction, signs. 

and posted warnings, wa1karound training, or other appropriate · 

means that alert persons to site-specific hazards at the mine. 

( :t) Site-specific hazard awareness training is not required 

for any person who is accompanied at all times by an experienced 

miner who is familiar with hazards specific to. tμe mine site. 

30 C.F.R. § 46.11. 

31 FMSHRC 829 
In any event, as the Secretary now apparently concedes, section 46'.5 is riot a proper basis · · 

for excluding Mr. Stone .. Section 46.5 specifically refers to training which a new miner must 

have before he or she can''work" ata mine. As noted by Judge Feldman, 30 FMSHRC at 548, 

by its terms section 46.5 does nofrelate to inspections of the mine. This coneiusion is supported 

by our case law, in which we have held that a non-miner may he a representative of miners and 

participate in an inspection under section 103(f). See, e.g., Emery Mining Corp., IO FMSHRC 

276 (Mar. 1988), aff'd in pertinent part and rev'd on other grounds sub. nom. Utah Power & 

Light Co. v. Sec'y of Labor, 897 F.2d 447 (10th Cir. 1990). 

This leaves section 46.11 a8 the sole basis for excluding Mr. Stone from the inspection. 

Section 46.11 requires the mine operator to provide site-specific hazard training to any person 

·. ·who is not a miner but is present at the mine site. It further provides, in subsection (f), that ·site'" 

specific hazard training is not required for a person ''who is accompanied at alltimes by an 

experienced miner who is familiar with hazards specific to the mine site." 30 C.F.R. § 46;1 l(f). 

Judge Feldman addressed this issue by finding that Mr. Phillips, as an experienced mine safety 

official well aware of mine safety issues, was an "experienced miner" within the meaning of · 

section 46.l l(f). 30 FMSHRC at 549. In her brief, the Secretary argues thatari MSHA inspector 

can never constitute an "experienced miner" under section 46. l l(f) because the inspector is not a · 

"miner" within the meanfug of section 46.2(g)(l ), i.e., the inspector is not working "in mining 

operations." S. Br. at 18. This begs the point. Mr. Phillips, as a former miner and an. · 

experienced inspector, has at least as much knowledge of safety hazards generally as an 

experienced miner. 

The Secretary's next argument relative to section 46.11 is that the judge's finding that 

Mr. Stone could accompany Mr. Phillips as an "experienced miner" defeats the purpose of 

section 103(t) in that the walkaround rights are for the purpose of aiding the inspection. S. Br. at 

19. This overlooks the fact that Mr. Stone had been working at the quarry for three months and 

supervising the work of the other miners, while it was the first visit for Mr. Phillips. He was far 

more familiar with the mine site than Mr. Phillips and, in that respect, certainly could have aided 

him. ' 

The Secretary's final argument is that the ALJ's interpretation of section 46.11 would 

have made Mr. Phillips the "guardian of Mr. Stone's safety during the inspection." Id. at 19. 

This is probably the Secretary's best argument, and, in the abstract, has some attraction. 

However, it overlooks a critical fact in this case. Based on Mr. Stone's letter of April 30, 2008, 

which has not been contradicted by the Secretary, it appears that after Mr. Stone obtained the 

classroom training for himself and his employees, Mr. Phillips permitted Mi. Storie to provide 

the on-the-job safety training to his employees. SCP Show Cause Reply at 2. If Mr. Stone had 

the ability to provide on-site safety training, he certainly would have been able to accompany 

Mr. Phillips on his inspection without Mr. Phillips having to become his "guardian." 

Section I 03( t) provides that a representative of the operator "shall" be given the 

opportunity to accompany an MSHA inspector, subject to regulations issued by the Secretary. It 

31 FMSHRC 830 
is clear that the reasons advanced by the Secretary to justify the exclusion of Mr. Stone from the . 

inspection are not valid, viewed within the context of the Secretary's regulations. 

B. The Judge's Vacature of the Citations and Order 

While the inspector's denial of Mr. Stone's walkaround rights was improper in this . 

instance, we conclude that vacature of the ciiati011s and order was not a remedy that was 

available to the judge. Hi In section 103(f), Congress spoke directly to the issue of whether an 

inspector's failure to adhere to section 103( f) can impact MSHA' s ability to use that inspection to 

enforce the terms of the Mine Act. Section 103(f) concludes by stating that "[c]ompliance with 

this subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of 

this Act." 30 U.S.C. § 813(f). That provision must be read as a statement that MSHA's failur~; 

either intentionally or unintentionally, to permit any of the specified walkaround rights under 

section 103{f), even if contrary to the terms of section 1 O;l{f), does not prevent MSHA from 

taking an enforcement action. · · 

The language covers the issuance of citations and orders for violations of the Mine Act, 

as occurred in this instance.· Section 103(a) of the Mine Act, referenced in.section 103(f), 

authorizes mine inspections· ror, among other purp()ses, "determining whether there is 

compliance with the mandatory health or safety standards or with any citation, order, or deci$ion 

issued under this title or other requirements of this Act." 30 U.S.C. § 813(a). Consequently; the 

language of section 103(f) plainly means that any citation or orderissued in connection with an 

inspection in which walkaround rights were not granted is valid, regardless of whether the failure 

to grant the.wa}karound rights was proper or not. 

The legislative history of section 103(f) confirms this interpretation. In considering the 

legislation that eventually became the Mine Act, the Senate Committee responsible for drafting it 

stated that, with regaJ."d to walkaround rights, the legislation 

contains a provision based on that in the [Federal Coal Mine 

Health and Safety] Act [of 1969 ("Coal Acf')] requiring that 

representatives of the operator and miners be permitted to 

accompany inspectors .in order to assist in conducting a full 

inspection. It is not intended, however, that the absence of such 

participation vitiate any citatioT!s and penalties issued as a result 

of an inspection. · · · 

S. Rep. No. 95-181, at 28 (1977), reprinted in Senate Subcomm, on Labor, Comm. on Human 

Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 616 (1978) 

10 All Commissioners agree that the judge's vacature of the order and citations was not 

permissible under the Mine A~t and must be reversed.· . . . 

31 fMSHRC 831 
(emphasis added). 11 "[A]bsence ... of participation," of coll.rse, can occur not only when 

walkaround rights are voliintarily not exercised, but also when the inspector refuses or otherwise 

fails to permit their exercise. 

In his order dismissing the proceeding, the judge did not address the legislative history 

explaining section 103( f), and only indirectly addressed the pertinent last sentence of that 

provision. He cited the provision's qualified requirement that representatives of the operator and 

of the miners are to be given the opportunity to accompany an MSHA inspector on his 

insp'ection, and stated that: 

Section 103( f) does not mandate that an inspector must be 

accompanied by a mine operator during an inspection~ Thus, I am 

· cognizant that the failure of a mine operator to accompany an 

inspector is not a jurisdictional bar to the issuance of citatic>ns for 

violations of the Secretary's mandatory safety standards observed 

during the inspection. However, section 103(f) provides the 

"opportunity'' for the mine operator to exercise its right ·to be 

present dajng an inspection. This rightcannot arbitrarily be 

denied. Ill other words, jurisdiction to enforce does not provide a 

license to abuse. 

30 FMSHRC at 548 n.3 (citing Emery, 10 FMSHRC at 289). 

The judge thus read section 103( f) to accord to an operator the qualified right to 

accompany the inspector on an inspection, and the last sentence of section 103(f) to mean only 

that when an operator does not exercise that right, the inspector could still inspect the mine and 

issue citations and orders for what he found during his unaccompanied inspection. The judge · 

apparently found that the purpose of the last sentence was to make it clear that an operator's 

failure to exercise its walk:around rights could not be used to defeat an inspector's right to take 

enforcement actions as a result of the inspection in which the operator did not participate to the 

extent to which section 103(f) permitted it to participate. · 

Such a reading m1sstates the purpose of the final sentence· of section 103(f). There is 

nothing in either section 103(f) or the remainder of the Mine Act that indicates that an operator 

would have the extraordinary power to essentially nullify an inspettion by refusing to participate 

in it. Rather, the meaning of the final sentence of section 103(f) is found by reading it in the 

context of the entire subsection. 

11 Section 103(h) of the Coal Act provided only for the right of a representative of miners 

to accompany an inspector during his inspection, and was otherwise silent on the other subjects 

addressed by section 103(f) of the Mine Act. See 30 U.S.C. § 813(h) (1976). 

31 FMSHRC 832 
Section 103(f) states that "[c}ompliance with this subsection shall not be a jurisdictional 

prerequisite to the enforcement of any provision of this Act." 30 U.S.C. §813(f) (emphasis 

added). In the absence of a statutory definition or a technical usage of a tenn, the Commission 

applies the ordinary meanillg of a word in the Mine Act. See Peabody Coal Co., 18 FMSHRC 

686, 690(May1996), aff'd, No. 96-1205, 1997 WL 159436 (D.C. Cir. Mar. 3, 1997); 

Twentymile Coal Co., 30 FMSHRC 736, 750 (Aug. 2008). The term "[c)ompliance" is 

invariably defined to mean required adherence or obligation, particularly with respect to a statute 

or other legru provision.12 · 

In order to understand how the term "compliance" is used in section 103(f) .. it is necessary 

to look at the remainder of the provision. See Twentymile, 30 FMSHRC at 750~51 & n.7 (stating 

that in order to discern a statutory or regulatory standard's plain meanillg, it is necessary to read it 

in context). "Compliance with this subsection" can only be read in reference to the obligations 

that section 103(f) imposes. 

With regard to a mine operator's representative accompanying an MSHA inspector or .. 

participating in a pre- or post-inspection conference, nothing in section 103(f) can pe read to 

indicate that the operator's representative is required or obligated to do so. Rather, what section 

103(f) clearly does with regard to operators vis:-a-vis MSHA and its inspectors is grant a.· 

qualified right: ''Subject to regulations issued by the Secretary, a representative of the operator 

... shall. be given an opportunity to .... " JO U~S.C. § 813(f)'(emphasis added). A "right'' is not 

something that is "[ c ]ompli[ ed]" with; rather, a right is something that is exercised. 

Thus, there is no question that the final sentence can only mean "compliance" by MSHA 

and its representatives. In an instance such as this, the only party that could prevent an operator's 

representative from exercising walkaround rights, and thus the only party that could potentially 

fail to "compl[y]" with that portion of section103(f), is the inspector. Moreover, it is MSHA, .. 

acting through the inspector, that .enforces the Mine Act. Therefore, in the case of an operator's 

representative being improperly denied walkaround nghts, the last sentence can only mean that 

the denial does not prevent enforcement actions from being taken by the inspector, the only party 

that can fail to comply with section 103(f) in such an instance. 13 

12 See Webster's Third New Int'lDictionary Unabridged 465 (1993) ("conformity in 

fulfilling formal or official requirements ... cooperation promoted by official or legal authority 

or conforming to official or legal norms"); The Random House Dictionary of the English 

Language Unabridged 419 (2d ed. 1987) ("the act of conforming, acquiescing, or yielding ... 

conformity, accordance ... cooperation or obedience"); American Heritage Dictionary of the 

English Language 272 (New College ed. 1976) ("[a] yielding to a wish, request, or demand; . 

acquiescence"). . · . 

13 To be sure, section 103(f) also imposes obligations upon operators to permit miners' 

representatives to participate in the MSHA inspection process, so there also can be a question of 

an operator's "compliance" with section 103(f). Operators can be cited for improperly 

31 FMSHRC 833 
Accordingly, we conclude that the judge erred as a matter oflaw in using the failure to 

allow walk:around rights as the basis to vacate the citations and order in this case. The final 

sentence of section 103(f) plainly provides that enforcement actions otherwise properly taken by 

MSHA cannot be vacated due to the failure of an inspector to comply with any of section 

103(f)'s requirements.14 

C. The Impact of the Denial of Mr. Stone's Rights on the Evidence Obtained by the 

Secretary 

This leaves the question of whether a remedy exists for the infringement of Mr. Stone's 

walkaround rights: We are extremely troubled by the fact that the operator's statutory right to · 

accompanythe inspector on the inspection of Mr. Stone's own·minewas violated, andMSHA 

essentially suggests that he has no legal remedy. Our government, represented by MSHA in the 

one instance and by this Commission in the other, should not take the position that a citizen's 

rights can be violated, leaving the citizen without any legal remedy. This idea is contrary to our 

fundamental belief in ordered liberty, and to the development of Anglo-American law since the 

Magna Carta nearly 800 years ago. 

There is a remedy in this case, consistent with the jurisdictional language of section 

103(£). In other contexts, we are familiar with the use of an exclusionary rule. If the government· 

violates a citizen's legal rights by, for example, conducting an illegal search, then the :fruits of the 

illegal search or other violation rriay be excluded from evidence at trial. This is not a new 

conc_ept. The Supreme Court applied an exclusionary rule to illegally-obtained evidence 95 years 

ago in Weeks v. United States, 232 U.S. 383 (1914). . 

An exclusionary rule is properly rooted in at least two important policy considerations. 

First there is "the imperative of judicial integrity.'' Elkins v. United States, 364 U.S. 206, 222 

(1960); The Court in Elkins, quoting Justice Brandeis' dissent in Olmstead v. United States, 277· 

U.S. 438, 485 (1928), explained, that· 

"[i]n a government oflaws, ... existence of the government will 

be imperiled if it fails to observe the law scrupulously .... For 

good or for ill, [the government] teaches the whole people by its 

example ... If the government becomes a lawbreaker, it breeds 

interfering with a miner representative's walkaround rights; See 43 Fed. Reg. 17 ,546, 17 ,547 

(Apr. 25, 1978). That, however, is an entirely different situation than the one presented here. 

14 The only possible basis to overcome the statutory language would have to be 

constitutional in nature, such as a violation of the Due Process Clause.· This complex issue has 

not been presented to us. 

31 FMSHRC 834 
contempt for law; it invites every man to become a law unto 

himself; it invites anarchy."15 

364 U.S. at 223. 

The second policy consideration is deterrence of official misconduct. While this principle 

did notappear in the early Supreme Court cases such as Weeks, it emerged in cases such as 

Elldns and Mapp v. Ohio, 367 U.S. 643 (1961), and lias become the dominant rationale for the 

exclusionary rule. See, e;g., United States v. Leon, 468 U.S. 897, 916 (1984); Terry v. Ohio, 392 

U.S. 1, 12 (1968) (stating that the "major thrust [of the exclusionary rule] is a deterrent one"); see 

also Trant, 1981 Duke LJ. at 683-87. 

The use of an exclusionary rule to suppress evidence obtained in violation of a statutory 

mandate is not a novel concept. The Occupational Safety and Health Review Con:imission · 

("OSHRC") and courtS of appeals reviewing that Commission's decisions have, for at least the 

past 30 years, acknowledged that evidence may be excluded when the walkaround provision of 

the OSH Act16 is violated, when the employer can demonstrate prejudice. See, e.g., Frank Lill & 

Son, Inc. v. Sec'y of Labor; 362 F3d 840, 846 (D.C. Cir. 2004); Pullman Power Prods., inc. v. 

Marshall, 655 F.2d 41, 44 (4th Cir. 1981); Marshal! v. Western Waterproofing Co., 560 F.2d 

947, 951.:.52 {8th Cir. 1977); Har/Well Excavating Co. v. Dunlop, 537 F.2d.1071, 1073 (9th Cir: 

1976); Chicago Bridge, 535 F.2d at376; Accu-Namics, Inc. v. OSHRC, 5'15 F.2d 828, 833-34 

(5th Cir. 1975). 

OSHRC, after originally finding that section 8( e) of the OSH Act confers a substantive 

walkaround right, the violation of which by OSHA entitled an employer to relief, now holds, in 

response to .the decisions of the courts in Accu-Namics and Western Waterproofing, that evidence 

obtained in violation of an employer's walkaround rights may be excluded when the employer · 

can demonstrate prejudice in the preparation or presentation of its defense. See Titanium Metals 

Corp. of America, 7 O.S.H. Cas. (BNA) 2172 (fan. 1980); Laclede Gas Co., 7 O.S.H. Cas. 

(BNA) 1874 (Oct. 1979); Able Contractors, Inc., 5 O.S.H. Cas. (BNA).1975 (Oct. 1977). 

Use of an: exclusionary rule by our Commission when statutory walkaround rights are 

abridged would result in several differences from the approach taken by Judge Feldman. First, 

the remedy is not dismissal of the citation, but exclusion of evidence obtained by virtue of the 

illegal action. Thus, this remedy does not raise an issue relating to the last sentence of section 

103( f). An exclusionary rule does not implicate Congress' admonition that compliance with the 

15 As noted in Charles E. Trant, "OSHA and ihe Exclusionary Rut~: Should the 

EmjJloyer Go Free Because ·the Compliance Officer Has Blundered?, 1981 Duke.L.J. ·667, 680-

85 (1981 ), judicial integrity has fallen out of favor as a basis for enforcing an exclusionary r\ile. 

We agree with Trant that this development is unfortunate for our society. · 

16 See note 7, supra. 

31FMSHRC835 
walkaround rights subsection shall not be a jurisdictional prerequisite to the enforcement of the 

Act. Under an exclusionary rule, the Secretary could issue citations, require abatement of unsafe 

conditions (which, as Judge Feldman noted, is central to the safety of miners), and propose 

penalties. The Secretary could only lose the ability to use evidence at trial resulting from the 

illegal action. This remedy does not affect the 'jurisdictional prerequisite" language of the 

statute. Indeed, it gives full effect to all of the provisions of section 103(:t), which is a goal of 

statutory construction. Norman J. Singer, 2A Sutherland Statutory Construction, § 46.6 (7th ed. 

2007). 

Second, this remedy would in no way affect citations which did not arise in conne~tion 

with the denial of the walkaround rights. Thus, in the present case, the section 104(g)(l)order 

would be completely unaffected because inspector Phillips learned of the absence of training 

separate from his inspection of the mine site. There could be other citat_ions in this case which 

would also be unaffected by exchis1on of evidence from the inspection itself. This would have to 

be determined by the judge. · · 

Exclusionary rules are· rules of evidence and are historically judge made. This 

Commission has the authority to promulgate rules.of evidence which apply in hearings before our 

administrative law judges .. We can do this. either in rulemaking or in our decisions. Hence, there 

is no legal principle which would prevent us from promulgating an exclusionary rule in this case .. 

Chairman Duffy does not specifically endorse application of the exclusionary rule for 

violations of walkaround rights under the Mine Act. He suggests that a judge can "take into 

account" an improper denial of walkaround rights in considering whether 'a violation occurred or 

when settillg a penalty for a violation. Slip op. at 19. However, our colleague proposes no . 

standards for an administrative law judge fo.apply. This approach is not sufficient~ a.rld provides 

inadequate guidance. With an exclusionary rule, a Commission judge would apply a two-step 

process in a situation where an operator contends that its representative was riot permitted to 

participate in an MSHA inspection under section 103(f). Based on evidence adduced in a 

suppression hearing or otherwise, the judge first would determine whether the operator's 

walkaround rights were indeed violated. 17 If so, the jlidge would then determine what prejudice, 

17 Contrary to Chairman Duffy's suggestion, we would not mandate a separate 

suppression hearing. Slip op. at 19. The determination of whether an operator's walkaround 

rights were violated could be made in a number of ways. If the relevant facts alleged in a motion 

to exclude evidence were essentially uncontested, a ruling could be made based on the pleadings. 

A suppression hearing would only be necessary if material facts relating to exercise of the 

walkaround rights are disputed. The point where we differ from our colleague, in addition to 

urging that the Commission provide its judges with standards to apply in these situations, is that 

we believe that the issue should be addressed prior to hearing. 

31FMSHRC836 
if any, resulted from the violation. 18 Depending on the outcome of these detenninations, the 

judge could exclude none, some, or all of the evidence resulting from the inspection. 

Commissioner Jordan states that the failure of an MSHA inspector to permit a 

representative of the operator to accompany him on an inspection "does not curtail the 

inspector's right to enter and inspect the mine." Slip op. at 22. We fully agree. As stated supra, 

with an exclusionary rule, the inspector is in no way prevented froin entering a mine and ordering 

the operator to take such action as is necessary to ensure the safety of miners. Commissioner 

Jordan also states that:"[ a]dopting a policy-designed to deter official misconduct implies that the 

officials in question have an incentive to skirt the· law's requirements~" Id. at 23. We are not 

implying ill any way .that MSHA inspectors have an incentive to skirt the law's requirements, or 

that such is anything but a very unusual occurrence. 

In summary, on remand.we would instruct the judge to detennine what, if any, evidence 

proposed for admission by the Sec{"etary should be excluded because of prejudice to the operator. 

Thereafter, thejudge should proce~ to trial. · · 

Robert F. Cohen, Jr., Commissioner 

18 In all ·of the OSiI Act cases cited h~rein, 'the courts found that employers either did not 

allege, or did not establis~ prejudice. However, these cases generally involved situation8 where 

the courts also found that the OSHA inspectors "substantially complied" with the walkaround 

requirements of section 8( e) of the OSH Act and/or found that the employers did not assert 

walkart>und rights at the time of the inspection. For example, after the inspection in Western 

Waterproofing, the OSHA compliance officers 3sked the employer's representatives if they 

wanted to accompany the compliance officers back to the site of the inspection, and the 

employer's representatives declined the iilvitation. 560 F.2d at 951. In the present ca8e, 

Mr. Stone was totally excluded from the Old County Quarry for about a week after the MSHA 

inspection, and could not have viewed the site as Mr. Phillips had .viewed it at the time of the 

inspection. . 

31 FMSHRC 837 
Opinion of Chairman Duffy: 

I agree with my colleagues, Commissioners Young and Cohen, that MSHA' s training 

regulations did not provide a basis by which Phillips could exclude Stone from the inspection. 

Even though Stone at the time lacked the required training to work at the mine, there is no 

disputing that walk.around rights under section 103(f) may be exercised by· non-miners. 

Further, my colleagues correctly dismiss the Secretary's cont~ntiol1S that Phillips could 

have also forbade Stone from accompanying Phillips on his inspection becaus~ Stone lacked the 

site~specific hazard training generally required of non-miners by 30 C.F.R § 46.11. Nothing in 

the record indicates that Phillips even considered that Stone may have had a right, as SCP's 

representative, to be included on the inspection as a non-miner; rather, Phillips appears to have 

viewed the section l04(g) withdrawal order as. entirely dispositive of Stone's right to be at the 

mine in any capacity. Moreover, what little evidence there is shows tlillt not only had Stone been. 

supervising operations at the mine for some time, but when MSHA needed .someone to train the . 

other miners at the mine the next week, it looked to Stone to provide that training. For the 

Secretary to now claim that Phillips could have properly refused Stone's walkaround request 

because Stone lacked the-training required of non-miners makes little sense. 1 

I also agree with my colleagues that the plain meaning of the final sentence of section 

103(f) prevents a judge from vacating citations and orders issued as the result of an inspection in 

which the operator was not permitted to participate ip. contravention of section 103( f). Where I 

part company with my colleagues is in the proposed. "remedy'' for an inspector's impermissible 

failure to grant walkaround rights. 

To be sure, an operator's right to observe an inspection, while not inviolable, maybe key 

to its ability to effectively contest an allegation contained in a citation or order. That is 

particularly the case where the only evidence supporting the allegation is based on an inspection 

conducted by MSHA from which an operator's representative was absent. In a case in which an 

operator's representative was improperly denied walkaround rights, it would be unfair to the 

operator to necessarily accord the inspector's observations the same evidentiary weight they 

would be accorded if the inspector had been accompanied on his inspection by an operator's 

representativy. In the latter instance, the operator would be able. at hearing to contest, or 

corroborate, any or all of the inspector;s account. 

1 l note that my colleagues do not address the judge's determination that section 46.1 l 

training was not required in this instance because of the subsection 46.1 l(f) exception. See 30 

FMSHRC at 549. I believe the judge in so doing misinterpreted section 46.11 .. By employing 

the term ''you" in multiple instances, the regulation dearly directs operator action with regard to 

site-specific hazard training. It thus would be inconsistent to interpret its final .subsection,· 

subsection (f), as contemplating that an MSHA inspector could serve as the "e~perienced miner'' 

that would accompany arourid mine property any person that had not received the otherwise 

required training. 

31FMSHRC838 
While the Secretary in her brief touches upon this subject and comes to the conclusion 

that the operator was not prejudiced by the denial of walkaround rights in this case (see S; Br. at 

13-14), the extent to which the citationS and orders depend on what the mspector found during 

his Unaccompanied. inspection can only be determiried· after a factual record in this case is . 

developed. It appears that the Withdrawal order and ·some of the citations were issued on the 

basis of what Phillips learned from speaking with Stone. Thus, any failure by Phillips to permit 

Stone to accompany him on his inspection should be irrelevant to determining whether the 

violations alleged in that order and those citations actually occurred, and the appropriate penalties 

if they did occur. 

Other citations, however, contain allegations of violations derived from the inspection of 

the mine property itself. In those instances, the judge may find during the hearing that the 

inspector's improper denial of walkaround rights is preventing the operator from presenting 

probative evidence in support of its contest. If he so finds, I believe the judge, in deciding 

whether the Secretary established the violation and, if so, the appropriate penalty for that 

violation, has the discretion to take into account the fact that the operator was so handicapped in 

its defense. 

I believe this approach is much simpler than that of my colleagues, who would have a 

judge in an instance such as this hold a separate suppression hearing on any evidence obtained as 

the result of an inspection from which an operator has been excluded in violation of section · 

103(t). ·Slip op. at 14-17. Given that this issue so rarely arises, I do not see the need for 

Commission judges to conduct separate suppression hearings. 

Moreover, as my colleagues admit, evidence would only be excluded if the operator could 

establish prejudice to its defense from the inspector's refusal to grant a walkaround rights 

request. Id. at 16-17. I believe the existence and extent of such prejudice is best determined 

during the hearing on the merits of the violation, not in a separate pre-hearing proceeding.2 

Further, I believe that, in the end, Commission judges are in the best position to accord 

weight to evidence, including that which was obtained during an inspection in which walkaround 

rights were improperly denied. I would thus not prevent them from considering such evidence, 

but rather entrust them with taking the circumstances of the inspection into account in reaching 

their decisions on violations and penalties. 

Finally, I cannot help but think that the acrimony that appears to have developed in this 

case between MSHA and the operator could have been avoided if MSHA and Inspector Phillips 

had handled the matter differently. Although it is up to MSHA to determine its inspection 

2 While my colleagues suggest that a separate proceeding on suppression may not be 

necessary, and that the issue can simply be addressed through pleadings (slip op. at 16 n.17), I am 

inclined to doubt that a judge would want to rule on the essentially factual question of prejudice 

Without a hearing. 

31 FMSHRC 839 
techniques, the. goals of the Mine Act. clearly would have been better served iff;lhillips' first visit 

to ~e Old County Quarry had been carried out as less of a Mine Act enforcement effort and more 

as an opportunity to ·educate a new operator regarding its obligations under the Mine Act. In my 

opinion, MSHA and Phillips could have done so while keeping well within both the letter and the 

spirit of the Mine Act. . ·. . . . 

\ 

31 FMSHRC 840 
Opinion of Commission~ Jord~: 

I agree that the judge ei-re<l as a matter oflaw when he vacated the citations and order 

issued by the Mine Safety and Health Administration ("MSHA") inspector who, the judge 

concluded, had erron~usly deprived the. operator of its right, under section 103(f) of the Mine 

Act, to accompany the inspector. 1 I therefore join my colleagues in vacating the judge's 

dismissal order and remanding these penalty cases for further proceedings. I Write separately, 

however, because I disagree with the views expressed by my colleagues regarding the ability of 

the Secretary to present her case on remand. 

My colleagues hold the view that SCP was wrongly deprived of its right to accompany 

Inspector Phillips,2 and that the deprivati9n of this statutory right should impact the Secretary's 

ability to present evidence in S!J.pport. of the citations and order that were issued by the inspector. 

Specifically, Commissioners Cohen and Young believe the Commission should apply an 

exclusionary rule to the evidence the inspector obtained during his inspection. Slip op. at 14-17. 

In promulgating the walkaround rights in section 103(f), Congress pointedly stated that 

"compliance with this subse_ction shall not be a jurisdictional prerequisite to the enforcement of ' ' 

any provision of this Act." My colleagues agree that this language bars the outright dismissal of 

the inspector's citations and.order, but they maintain that excluding evidence obtained during the 

inspection "does not raise an issue relating to the last sentence ofsection103(f)." Slip op. at 15. 

The evidence is appropriately excluded because, in their view ,it was obtained "by virtue of the 

illegal action." Id. I disagree. Unlike in Fourth Amendment cases, to which my colleagues cite, 

the health and safety violations observed by Inspector Phillips do not constitute evidence 

obtained by virtue of an illegal action. 

1 In section 103(f), Congress provided in relevant part that: 

Subject to regulations issued by the Secretary, a 

representative of the operator and a representative authorized by 

his miners shall be given an opportunity to accompany the 

Secretary or his authorized representative during the physical 

inspection of any coal or other mine made pursuant the provisions· 

of subsection (a) for the purpose of aiding such inspection and to 

participate in pre-or post-inspection conferences held at the mine. 

30 u.s.c. § 813(f). 

2 My colleagues engage in an extensive discussion of why the inspector was not justified 

in denying SCP the opportunity to accompany him. Slip op. at 11-14, 18. Because it is not 

relevant to my analysis, I do not address those arguments. 

31 FMSHRC 841 
The Secretary's evidence regarding the health and safety hazards at issue here was 

obtained during the course of a valid inspection. The inspector's right to enter and inspect the 

mine flows from section 103( a), which provides in pertinent part: 

Authorized representatives of the Secretary ... shall·make 

frequent inspections and investigations in coal·or other mines each 

year for the purpose of ... (4) determining whether thete is 

compliance with the mandatory health or safety standards or with 

any citation, order, or decision issued under this title or other 

requirements of this Act .... For the purpose of making any 

inspection or investigation tinder this Act, the Secretary ... with 

. respectto fulfilling his responsibilities under this Act, ... shall 

·have a right of entry to, upon, or through any coal mine. 

30 U.S.C. § 813(a). 

Despite the mandatory language of the walkaround provision ("shall be given an · 

opportunity"), an inspectQr' s failure to provide an opportunity to accompany him does not curtail 

the inspector's right to enter and inspect the mine. There is no language in section 103(a) that 

makes the inspector's right to enterthe mine, orto conduct an inspection and cite conditions that 

violate mandatory standards, contingent upon the inspector's compliance with the walkaround 

provision under section l 03( f). · Indeed Congress made that fact clear when it stated: 

"Compliance with this subsection [ 103( f)] shall not be a jurisdictional prerequisite to the 

enforcement of any provision of this Act." 30 U.S.C. § 813(f).· 

In contrast, evidence obtained in violation of the Fourth Amendment's protection from 

unreasonable searches is information obtained by virtue of an illegal action. The failure to 

comply with the Fourth Amendment's probable cause or warrant requirement necessarily makes 

the ensuing search illegal and unreasonable. When a United States Marshal invades a house 

without a warrant, he acts without the sanction oflaw. Weeks v. United States, 232 U.S; 383 

(1914). If the Marshal obtains evidence of a crime, that evidence has been obtained at the 

expense of the suspect's Fourth Amendment rights. Had that Marshal complied with the 

Constitution's requirements, the Marshal would not have been able to enter the house and would 

not have obtained the evidence. 

This is not the case with MSHA inspections, even ones that fail to comply with the 

walkaround right. Despite his refusal to letthe mine owner accompany him, Inspector Phillips 

was acting within the sanction of the law when he conducted his inspection. Section 103(a) 

authorized his entry upon and his inspection of the mine. Moreover, unlike the U.S. Marshal 

who fails to comply with the Constitution's requirements, Inspector Phillip's compliance with 

section 103(f) would not have restricted his ability to enter the mine, nor would it have limited 

his inspection in any way. His compliance with section 103(f), in other words, would have 

resulted in the same inspection and would have allowed him to view the same conditions that led 

31 FMSHRC 842 
to the citations and order at issue here. Thus, contrary to my colleagues' claim, the evidence 

relied on by the Secretary is not properly characterized as evidence obtamed by virtue of an 

"illegal action," or "in violation of a statutory mandate." Slip op. at 15. Because the evidence 

here was obtained as a result. of the inspector conducting a valid, legal inspection authorized by · 

section 103(a), we do not face the issue confronting the courts in Fourth Amendment cases: 

whereby to admit the evidence would be to sanction the use of illegally obtaine<i information 

against the individual whose rights have been violated. United States v. Leon, 468 U.S. 897, 928 

(1984) (Brennan, J., dissenting). Some Supreme Court Justices have described such action as 

jeopardizing the integrity of the courts themselves. Id. at 933; 468 U.S. at 976-78 (Stevens, J., 

concurring and dissenting). · · · · 

However, even ifthe Commission need not be concerned that admitting the evidence .. · 

obtained as a result of Inspector Phillip's inspection would make it complicit in an illegal act, 

my colleagues point out that policy considerations favor an exclusionary rule as a deterrence of 

official misconduct. I question whether the deterrence rationale is even relevant here. Inspec.tor 

Phillips' refusal to allow Mr. Stone to accompany Jilin does not appear to be. an example of .·· 

official misconduct. Rather, it appears that the inspector was acting according to what he . 

believed the law required. Before inspecting the mine's physical plant, Inspector Phillips asked 

Mr. Stone about the training of the miners working there. When Phillips learned that neither 

Mr. Stone nor SCP's other two miners had received the 24 hours of training MSHA requires of 

new miners under 30 C.F.R §46.S(a), Phillips issued a withdrawal order, pursuant to section . 

104(g) of the Mine Act, 30 U.S.C. § 814(g)(l). The Mine Act requires that such order be issued 

when the inspector determines that a miner has not received the requisite training. The miner is 

considered to be a hazard to himself and to others and the statute requires the immediate 

withdrawal of the miner. Once withdrawn, the miner is "prohibited from enterillg such mine 

until an authoriz¢ representative of the Secretary. determines that such .miner has received the 

training required by section 115 of this Act." Id. As the Supreme CoUrt has noted, the 

deterrence factor is not appropriately applied in sihiations where the government official had a· 

good faith reasonable belief that he or she was acting in accordance with the law. Leon, 468 U.S. 

at 919. Given the prohibitory language of section 104(g), it appears quite likely that Inspector 

Phillips considered he had no choice but to refuse Mr. Stone's request that he be allowed to 

remain at the mine and accompany the inspector. 

. ; . . 

Adopting a policy designed to deter official mis<;onduct implies that the officials in 

question have an incentive to skirt the law's requirements. In Fourth Amendment cases, that 

incentive is obvious. Skirting the Coq.stitution's requirements allows the police to get evidence 

they would not otherwise have obtained. As discussed above, that is not the situation under the 

Mine Act. Avoiding the walkaround requirement of section .J03(f) does not provide the MSHA 

inspector with any greater access to in.formation regarding health ~d safety violations. In fact, it 

would be more appropriate to say that the. inspector .is deprived of information: the information 

that would have been supplied to him by the representative. of the owner or the representative of 

the miner who should have been allowed to accompany him. 

31.FMSHRC 843 
Under the procedure proposed by my colleagues Cohen and Young, prior to excluding 

any evidence, the judge should determine what prejudice, if any, resulted from the inspector's 

violation of section 103(f). As my colleagues note, slip op. at 15, the Occupational Safety and 

Health Review Commission ("OSHRC") follows a policy whereby evidence obtained in 

violation of an employer's walkaround right may be excluded when the employer can 

demonstrate prejudice in the preparation or presentation of its defense. It is worth noting that the 

Occupational Safety and Health Act's walkaround right, 29 U.S.C. § 657(e), does notinclude the 

admonition contained in the last sentence of section 103(f), to wit: that "[c]ompliance with this 

subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of this 

Act." It is also worth noting that OSHRC has adopted the good faith exception to the 

exclusionary rule. See Sanders Lead Co., 15 O.S.H. Cas. 1640 (May 1992) (explicitly adopting 

the good faith exception to the exclusionary rule). 

SCP has not alleged any prejudice that resulted from Inspector Phillip's refusal to allow. 

its owner, Mr. Stone, the opportunity to accompanyhim.3 Indeed in his letter to Judge Feldman, 

Mr. Stone rebuts the allegations contained in the citations, accuses the inspector of"lying on and· 

about the tickets" and assures the judge he "look[s] forward to proving this in court." SCP Show 

Cause Reply at 3. 

Chairman Duffy has not advocated for an exclusionary rule but would allow the judge to 

"take into account an improper denial of walkaround rights" when that denial "may have 

prevented the operator from presenting probative evidence in support of its contest." Slip op. at 

19. For the same reason that I believe an exclusionary rule is inappropriate, I believe it would be 

improper for the judge to take the walkaround denial into account in deciding whether the 

Secretary established a violation. · Moreover, with regard to determining the appropriate penalty, 

the statute is explicit as to what factors the Commission should considet.4 The inspeetor's failure 

to afford the operator the opportunity to accompany him or her on the inspection is not one of 

them. 

3 Indeed, as Commissioners Cohen and Young acknowledge (slip op. at 17 n.18), none of 

the OSHA cases cited by him involve an employer who could establiSh prejudice. 

4. In assessing civil monetary penalties, the Commission shall 

consider the operator's history of previous violations, the 

appropriateness of such penalty to the size of the business of the 

operator charged, whether the operator was negligent, the effect on 

the operator's ability to continue in blisiness, the gravity of the 

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

achieving rapid compliance after notification of a violation. 

30 u.s.c. § 820(i). 

31 FMSHRC 844 
For the foregoing reasons, I would vacate the judge's dismissal order and remand the case 

to him for further proceedings. 

31 FMSHRC 845 
Distribution: 

Pat Stone 

SCP Investments, LLC 

P.O. Box 82 

Crab Orchard, TN 3 7723 

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 

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

Washington, D.C. 20001-2021 

31 FMSHRC 846 · 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION :,· ' . ' . 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

6(11 NEW.JERSEY AVENUE, NW . 

SUITE9500 

WASHINGTON, DC 20001 

August 11, 2009 

DocketNo. KENT 2008-1363 

A.C. No. 15-17651-150064 

ROCKHOUSE ENERGY M1NING CO. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On July 29, 2008, the Commission received from Rockhouse 

Energy Mining Co. ("Rockhouse") 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 WalterRes.,Inc., 15 FMSHRC 782; 786-89 (May 1993) ("JWR"). In evaluating requests to 

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

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

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

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

Rules of Civil Prdcedlire"); JWR, 15 FMSHRC at 787. We have also obser\Ted that default is a· · 

harsh remedy and that, if the defaulting party cati make a showing of good cause for a failure to 

timely respond, the case may be reopened and aj>propriate proceedings on the merits permitted.· 

See Coal Prep. Servs., Inc., 17FMSHRC1529, 1530 (Sept.1995). 

31FMSHRC847 
This case involves· an assessment, issued by MSHA on May 8, 2008, which includes a 

large number of citations and orders. The operator represents that on May 16, 2008, its Safety 

Director reviewed the proposed penalty assessment and marked the assessments which the 

company intended to contest. The operator attached to its motion a copy of MSHA Form 1000-

179, indicating that it intended to contest 15 assessments totaling $229,499.00. The operator 

further contends that the Safety Director gave the Form 1000-179 to his administrative assistant 

for faxing to the company's attorneys in order that the marked assessments be contested. The 

affidavit of the Safety Director states that he did not learn that the assessments were delinquent 

until on or about July 20, 2008, when the company's attorneys so informed him .. The affidavit. of 

the administrative assistant states that she does not have any recollection of receiving the Form 

1000-179 from the Safety Director at any time. However, after the Safety Director learned of the 

delinquencies and inquired about them, the administrative assistant discovered a copy of the 

Form 1000-179 in the appropriate file, but there was no accompanying fax transmission sheet 

indicating that the form had ever been sent to the operator's attorneys. 

In addition to the $229,499.00 which is delinquent in this case, the Form 1000-J 79 

indicates that as of May 8, 2008, the operator was also delinquent in four other assessment cases, 

with total penalties of$61,680.79. 

We further note that in Docket No. KENT 2007-280, this same operator sought reopening 

of a final assessment in a situation where it faxed part, but not all, of the pages included m the 

proposed assessment to its attorneys for submission of a contest to MSHA. Consequently, the 

operator was obliged to request reopening of the assessment.s contained on the page it failed to 

fax to its attorneys; .These are the same type of internal system failures which.occurred in the 

present case. 

The operator has not indicated that it has any kind of back-up or tracking system by 

which it can determine whether faxes or other communications intended to be sent to its · 

attorneys for transmittal of assessment contests to MSHA have actually been received and 

processed. If such a system had been inplace in this case, the· Safety Director would have 

learned, within 30 days of receipt of the proposed assessments, that the notice of contest had not 

been sent to MSHA. Thus, the Safety Director would have been able to file a timely contest even 

despite the mis-communication with the administrative assistant. 

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

assessment. 1 

1 We consider the Secretary's position in this case in light of the provisions of the 

"Informal Agreement between Dinsmore & Shohl Attorneys and Department of Labor- MSHA 

- Attorneys Regarcfuig Matters Involving Massey Energy Company Subsidiaries" dated 

September 13, 2006. Therein, the Secretary agreed not to object to any motion to reopen a matter 

in which any Massey Energy subsidiary failed to timely return MSHA Form I 000-179 or 

inadvertently paid a penalty it intended to contest so long as the motion to reopen is filed within a 

31 FMSHRC 848 
Having reviewed Rockhouse' s request, in the interests of justice, we hereby remand this 

matter to the Chief Administrative Law Judge for a determination of whether good cause exists 

for Rockhouse' s failure to contest the penalty proposals and whether relief from the final order 

should be granted. If it is determined that such reliefis appropriate, this case shall proceed 

pursuant to the Mme Act and the Commission's Procedural Rules, 29 C.F.R Part 2700. 

·In determirung whether to reopen this case, the Chief Administrative Law Judge should 

consider whether the operator exercised due diligence in its efforts to. timely contest ·tlie penalty . 

asse8sments, p8rtictt1arly in light of the size of the proposed penalty, the existence of other ·· 

substantial delinquencies, the operator's histOry of similar prior tlntimely contests, and the lack of 

a back-up or tracking_ system. 

Robert F. Cohen, Jr., Commissioner 

reasonable time. Thus, we assume that the Secretary is not considering the substantive merits of 

a motion to reopen from any Massey Energy subsidiary so long as the motion is filed within a 

reasonable time. Such agreements obviously are not binding on the Commission, and the 

Secretary's position in conformance with the agreement in this case has no bearing on our 

determination on the merits of the operator's proffered excuse. 

31 F:MSHRC 849 
Chairriian Duffy, ·dissenting: . . . 

I c~ot agree with the majority's remand instructions in this case. Section ll3(b)(i) of 

the Mine. Act states that the Commission's judges are to "carry out the functions of the 

Commission." 30 U.S.C. § 823(b)(2). The terms of the remand would have the Chief· 

Administrative Law Judge or his designee conduct a proceeding that would inquire into, among 

other things, the operator's "due diligence in its efforts to timely contest the penalty assessments" 

at issue here, ''the existence of other substantial delinquencies" by the operator in paying penalty · 

assessments, and the operator's "lack of a back-up or traCking system." While I am not . . . 

unsympathetic to what motivates the majority in this case - an operator whose internal handling 

of proposed penalty assessments appears less than satisfactory - I simply carinot see how the 

policing the Commission is undertaking in this case is a function of this Commission un.der the 

Mine Act. In addition, the question of whether the Commission, in ruling on motions to reopen, 

should consider the type of evidence the majority's remand order is designed to elicit is better 

addressed as part of the Cominission' s presently pending rulemaking on such motions, rather 

than within an illdividual order issued among the many the Commission is issuing these days. 

The Secretary of Labor, whd has an even greater interest than the Commission in having 

this case efficiently processed, is not opposing reopening. Because I do not believe the 

objectives of the Mine Act are furthered by the proceeding envisioned by the majority, I would 

instead grant reopening and have the Secretary file a petition for assessment of penalty within 45 

days. See 29 C.F.R. § 2700.28. 

31 FMSHRC 850 
Distribution: 

Carol Ann Marunich, Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

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 WilsonBlvd:, 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 · 

Wa8hington; D.C. 20001.;2021 

31 FMSHRC 851 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PANZER COAL INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

August 13, 2009 

Docket No. KENT 2009-1032 

A.C. No. 15-18161-179573 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On May 7, 2009, the Commission r(:ceived from Panzer Coal 

Inc. ("Panzer") 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). 

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 (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). 

31FMSHRC852 
In his letter s.eeking reopening of Proposed Assessment No. 000179573, the vice 

president/treasurer of Panzer explained that he failed to contest the proposed assessment in a 

timely manner due to the birth of his child and the circumstances surrounding that occasion. The·· 

operator promptly sought re-opening of the assessment after realizing its mistake. The Secretary 

states that she does not oppose the reopening of the proposed penalty assessment. · 

Having reviewed Panzer,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 fiirtlier 

proceedings pursuant to the Mine Act and the Commission's Procedural Rules, 29 CF.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 853 
Distribution: 

John Graves 

Panzer Coal Inc. 

223 Belleaire Dr. 

Knoxville, TN 37934 

·' .·. 

W. Christian Schumatin, 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 Mme Safety & Health Review Commission . . . . 

601 New JerseyAvenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC 854 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, · 

MINE SAFETY AND HEALIB 

ADMJNISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, f4W .· 

SUITE9500 

WASHINGTON, DC 20001 

August 13, 2009 

Docket No. SE .2009.-551-M 

A;C. No. 22':'00582-J80213 VIOO 

CONSOLIDATED CONTAINERCO., LP 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. {2006) ("Mine Act"). On May 26, 2009, the Commission received from 

ConsoP.dated Container Co1Ilpany, LP ("CCC") a motion made by counsel seeking to reopen a 

penalty a5sessment Uiathad 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 

3lFMSHRC 855 
. . 

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

merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC i529, 1530 (Sept. 1995). 

The record indicates that the operator was not familiar with Mine Act procedures and 

inadvertently sent the form contesting the proposed penalties two days late. The record further 

indicates that prior to receiving the proposed assessment, the operator had contacted MSHA to 

attempt to contest the citations. The Secretary states that she does not oppose reopening the 

proposed penalty assessment. 

Having reviewed CCC'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 Procedilral 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 856 
Distribution: 

Bradford T. Hammock, Esq. 

Jackson Lewis, LLP 

10701 Parkridge Blvd., Suite 300 

Reston, VA 20191 

W. Christian Schumann, ·Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilscin 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 . 

31FMSHRC857 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CHEMICAL LIME COMP ANY 

OF ALABAMA 

601 NEW JERSEY AVENUE, NW. 

SUITE9500 

WASHINGTON, DC 20001 

August 13, 2009 

Docket No. SE 2009-552-M 

A.C. No. 01-00003-170058 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On May 28, 2009, the Commission received from Chemical 

Lime Company of Alabama ("Chemical Lime") a motion by counsel seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

("MSHA") issued Proposed Assessment No. 000170058 to Chemical Lime, proposing civil 

penalties for Citation Nos. 6083927 and 6083928. Chemical Lime states that it indicated on the 

proposed assessment that it was contesting Citation No. 6083928 and forwarded the proposed 

assessment to its counsel by electronic mail in December 2008 for submission to MSHA. The 

operator states that its counsel did not receive the e-mail. In March 2009, Chemical Lime 

received a delinquency notice from MSHA regarding the penalty assessment. Chemical Lime 

and its counsel investigated the matter, but the investigation did not reveal the reason for the 

delivery failure. 

31 FMSHRC 858 
The Secretary states that she does not oppose the reopening of the proposed penalt)r 

. assessment. 

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

uncontested assessments that have become final Commission orders ilnder 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 pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

31FMSHRC859 
Having reviewed Chemical Lime'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 shallfile a petition for assessment 

ofpenaltywithin45 days of the date of.this order. See 29 C.F.R~ § 2700.28. 

'~ 

' " - l . 

. ~· \ \ .... 

Mi 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 860 
Distribution: 

Jeremy Tucker, Esq. 

Alston & Bird, LLP 

One Atlantic Ctr. 

1201 West Peachtree St. 

Atlanta, GA 30309-3424 

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 861 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

M1NE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

NEWMONT USA LlMITED 

SUITE9500 

WASHINGTON, DC 20001 

August 13, 2009 

Docket No. WEST 2009-396-M 

A.C. No. 26-02512-154038 

BEFORE: Duffy, Chainnan; Jordan, Young, and Cohen, .Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On January 13, 2009, the Commission received a.letter from 

Newmont USA Limited ("Newmont") 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 June 18, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA'') issued Proposed Assessment No. 000154038 to Newmont, proposing civil penalties 

for 48 citations. Newmont states that on April 11, 2008, before it received the proposed 

assessment, it contested two of the citations, Citation Nos. 6437773 and 6437775. It asserts that 

it contested the proposed penalties of 15 of the citations listed on Proposed Assessment No. 

000154038, and that MSHA received the contest on August 4, 2008 (which, according to the 

Secretary, was sent beyond the statutory deadline for mailing the contest). The operator further 

explains that it paid the proposed penalties for the remaining 33 citations, and that payment was 

received by MSHA on August 26, 2008. The operator submits that it received a delinquency 

notice from MSHA dated September 11, 2008, which included Citation Nos. 6437773 and 

31 FMSHRC 862 
6437775.1 Newmont contends that the delinquencynotice created confusion as to the amount 

due and the true status of the cases filed with the Commission. 

The Secretary opposes reopening the proposed assessment. She states that the operator 

fails to explain why, after it was informed of the delinquency, it took as long as it did to request 

reopening. The Secretary explains that the proposed assessment became a final order on July 23, 

2008. The operator mailed its contest of the proposed penalties on July 29, 2008 .. She states that . 

MSHA sent Newmont a notice on August 7, 2008, and again on September 11, 2008, stating that 

payment of the penalties was delinquent. The Secretary emphasizes that the Commission 

received Newmont's request to reopen approximately five months after the first notice and that 

the operator did not explain the delay. 

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). 

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., 31FMSHRC8, 11(Jan.2009). Although the Secretary raised the 

issue that Newmont 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.2 

1 Even though the operator filed contests of Citation Nos. 6437773 and 6437775, it must. 

also separately contest t:he proposed penalties for those citations. See 29 C.F.R. § 2700.21. 

Because the operator failed to timely contest those penalties, they were deemed final 

Commission orders and appropriate for collection efforts. See 29 C.F.R § 2700.27. 

2 

.. An operator's failure to respond. to a delinquency notice may constitute grounds for .. 

dismissal with prejudice. See Left Fork, 31 FMSHRC at 10-11. Accordingly, 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. 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.l (June 2008). 

31 FMSHRC 863 
HavingreviewedNewmont's request and the Secretary's response, we conclude that 

Newmont has failed to provide an explanation for its failure to timely contest Proposed 

Assessment No. 000154038. Newmont's failure to explain the delay in contesting the proposed 

penalties and in responding to the delinquency notices does not provide the Commission with an 

adequate basis to reopen. See, e.g., Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). 

Accordingly, we deny without prejudice Newmont's request tO reopen. The words ''without 

prejudice" mean Newmont may submit another request to reopen so that it can contest the 

citations and penalty assessments.3 

Robert F. Cohen, Jr., Commissioner 

3 If Newmont 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 penalty assessments from MSHA. Under Rule 60(h) of the Federal Rules of Civil 

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

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

Newmont should include a full description of the facts supporting its claim of"good cause," 

including how the mistake or other problem prevented Newmont from responding within the 

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

also explain its delay in responding to the delinquency notices. In addition, Newmont should 

submit copies of supporting documents with its request to reopen the case. 

31 FMSHRC 864 
Distribution 

Richard Tucker 

Compliance & Safety 

Newmont Mining Corporation 

P.0.Box669 

Carlin, NV 89822-0669 

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 865 
Distribution: 

Bradford T. Hammoc~ Esq. 

Jackson Lewis, LLP 

10701 Parkridge Blvd., Suite 300 

Reston, VA 20191 

W. Christian Schumarin, 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 866 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR. 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MYRICK CONSTRUCTION 

COMP ANY, INC. 

SUITE9500 • 

WASHINGTON; DC 20001 

August 13, 2009 

Docket No. SE 2008-961-M 

A.C. No. 31-00718.;151259 MNK · 

BEFORE: Dillfy, Chairman·; Jordan, Y o:ung, 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 15, 2008, the Commission received from Myrick· 

Construction Company, Inc. ("Myrick") a motion made 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.KC. § 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). 

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; Se7Vs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

31 FMSHRC 867 
On May 20, 2008~ the Department of Labor's Mine Safety and HealthAdmitristration 

(''MSHA") issued Proposed Penalty Assessment No. 000151259. Myrick paid the penalty in a 

timely fashion. In July 2008, Myrick learned that MSHA was initiating a special investigation 

against two of its employees under section 1 lO(c).ofthe Mine Act, 30 U.S.C. § 820(c), based on 

allegations contained in the penalty assessment. Myrick seeks to reopen the penalty assessment 

and consolidate it with the section 110( c) proceedings.· It asserts that it was not aware that 

payment of the penalty could be construed as an admission of a violation and used as evidence 

against its personnel in subsequent proceedings. 

The Secretary opposes reopening and submits that under the doctrine of collateral 

estoppel, an operator's failure to contest a proposed penalty does not estop agents of the operator 

from litigating any aspect of the underlying violation. The Secretary states that she "traditionally 

has not argued that an operator's payment of or failure to contest a proposed assessment estop.s 

agents of the operator from litigating any aspect of the underlying violation in a subsequent . 

section 110( c) proceeding, and the Secretary will not so argue if a subsequent section 110( c) 

proceeding is initiated here." S. Opp'n. at 4. The Secretary all)o contends that the operator's. 

professed ignorance of, and unfamiliarity with, the Mine Act is not a basis for reopemng. 

Based on the Secretary's representation that, if a section 110( c) proceeding is initiated, 

she will not argue that Myrick's payment of or failure to contest a proposed assessment estops 

the agents of the operator from litigating any aspect of the underlying violation, the gro~ds.for' 

the operator's contentions are unfounded. Accordingly, we hereby dismiss Myrick's request to 

reopen with prejudice. · 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 868 
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., 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 869 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MICHAEL DIAMOND 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

August 19, 2009 

Docket No. KENT 2009-1224 

A.C. No. 1S.:.18775-18276A 

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 22, 2009, the Commission received from Michael 

Diamond a motion by counsel seeking to reopen a penalty assessment against Diamond under 

section 110( c) of the Mine Act, 30 U.S. C. § 820( c ), that may have become a final order of the 

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

Under the Commission's Procedural Rules, an individual charged under section 110( 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. 

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

uncontested assessments that have become final Commission orders. 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. 

§ 2700.1 (b) (''the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR., 15 FMSHRC at 787. We have also observed that default is a 

31 FMSHRC 870 
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 pennitted. 

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

Mr. Diamond states that MSHA did not send the proposed assessment to his counse~ as 

he had previously requested to MSHA. Diamond further states that he was unaware that his 

counsel had not received a copy of the assessment, and that by the time he realiZedit and had 

counsel return the assessment form, it was sent to MSHA one day late. The Secretary states that 

she does not oppose reopening. 

Having reviewed Diamond'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.FR. · 

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 871 
Distribution: 

Marco M. Rajkovich, Esq. 

Rajkovich, Williams, Kilpatrick & True, PLLC 

2333 Alumni Park Plaza, Suite 310 

Lexington, KY 40517 

W. Christian Schumarin, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1 IOO·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& HealthRevl.ew Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 872 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION . ~ . 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 · 

August 19, 2009 

Docket No; SE 2009-625-M · 

A.C. No. 09-00961-168437 

SOUTH RIDGE GRANITE QUARRY 

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 motion by 

counsel to reopen a penalty assessment issued to South Ridge Granite Quarry ("South Ridge'') 

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

U.S.C. § 815(a). 

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

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

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

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

The Department of Labor's Mine Safety and Health Administration ("MSHA") issued 

South Ridge Assessment No. 000168437 on November 12, 2008, proposing a penalty for a single 

citation MSHA had issued to South Ridge two months earlier. According to South Ridge, 

November 12, 2008, was also the date it had held an informal conference with MSHA 

representatives regarding the citation. The operator states that it consequently concluded that it 

did not have to respond to the proposed assessment when it subsequently received it, nor to a 

later MSHA delinquency notice it received, and that the informal conference would eventually 

result in a formal hearing on the matter. South Ridge, which states that it had never before 

contested a penalty assessment, did not consult with its counsel on this matter until it received a 

Treasury Department notice regarding the assessment dated May 23, 2009. Counsel 

31 FMSHRC 873 
subsequently filed the m~tion to reopen. The Secretary of Labor does not oppose the request to 

reopen. 

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). 

31 FMSHRC 874 
Having reviewed South Ridge'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. 1 

Robert F. Cohen, Jr., Commissioner 

1 We grant reopening even though South Ridge, because of its confusion about the effect 

of the conference, did not move to reopen the assessment until nearly six months had passed 

since the assessment had become a final order. However, operators should be aware that, in 

general, a delay of such length decreases the likelihood that the Commission will look favorably 

upon a request to reopen. 

31 FMSHRC 875 
Distribution: 

Adele L. Abrams, Esq. 

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

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumarin, 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., z5t1t 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 876 
FEDERAL MINE SAFETY AND liEAL TH REVIEW COMMISSION ':: 

601 NEW JERSEY AVENUE, NW. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

. v. 

PACIFIC ROCK PRODUCTS, LLC 

SUITE9500 

WASHINGTON, .DC 20001 

August 19, 2009 

.. . .. 

Docket No. WEST 2009 ... t 003-M 

A,C. No. 45-03039°'. l 76249 .. 

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 18, 2009, the Commission received from Pacific 

Rock Products, LLC (''Pacific Rock") a motion by counsel to reopen a penalty assessment that 

had become a final order of the Commission pursuant to section I 05( 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 lOS(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 pemritted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

31 FMSHRC 877 
On February 10, 2009, the Department of Labor's Mme SafetY ~d Health Administration 

("MSHA") issued proposed penalty assessment No. 000176249 to Pacific Rock, for seven 

citations MSHA had issued to the operator the previous month. Pacific Rock states that it 

intended to contest the proposed penalties, but failed to do so as a result of "management 

changes" necessitated by economic conditions. The Secretary of Labor states that she does not 

oppose reopening the proposed assessment. 

Having reviewed Pacific Rock's request and the Secretary's response, we conclude that 

Pacific Rock has failed to provide a sufficiently detailed explanation for its failure to timely 

contest the prC>posed>penaltyassessment. Pacific Rock's statement that it failed to file a timely 

contest due to. "management changes'' made in its "Health and Safety Department for the Pacific 

Northwest" in late 2008 does not provide the Commission with an adequate basis to justify 

reopening an assessment that did not become a final order until March 19, 2009. Accordingly; 

we deny without prejudice Pacific Rock's request. See, e.g., Eastern Associated Coal LLC, 30 

FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007). 

' . .:·. 

M ~~~· LUOrdan, C ~ 

"'· •);._ 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 878 
Distribution: 

Laura E. Beverage, 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 879 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PENNY CREEK QUARRY, LLC 

SUITE9500 

WASHINGTON, DC 20001 

August 19, 2009 

Docket No. WEST 2009-1016-M 

A.C. No. 45-03356-179479 

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

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of i977, 30 U.S.C. 

§ 801 et seq. (2006) ("Mine Act"). On June 22, 2009, the Commission received from Penny 

Creek Quarry, LLC ("Penny 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. § 81S(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 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 pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 {Sept. 1995). 

31 FMSHRC 880 
Penny Creek states that it received the assessment at issue, but its bookkeeper at that time 

filed it away and then stopped working at the mine without notice. Penny Creek explains that no 

one else at the mine was aware of the assessment until it received a delinquency notice from · 

MSHA dated June 10, 2009. The operator states that it filed the motion immediately upon 

receipt of the delinquency notice, and indicates that it wishes to contest all three penaJ.ties 

proposed in the assessment. The Secretary states that she does not oppose reopening the 

assessment. 

Having reviewed Penny Creek'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 881 
Distribution: 

Jeffrey Hathaway, Owner 

Penny Creek Quarry, LLC. 

P.0.Box273 

413 Penny Creek Road 

Quilcene, WA 98376 

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 882 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION . . ·' . .· . 

SECRETARY OF LABOR,. 

MINE·SAFETY AND HEALTH 

ADMINISTRATION{MSHA) · 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

August 25, 2009 

Docket No. KENT 2009-924 

A.C. No. 15-07082-170350 

Docket No. KENT 2009-1198 

A.C. No. 15-07082-178373. 

FREEDOM ENERGY MINING COMPANY Docket No. KENT 2009-1341 

A.C. No. 15-07082-180991 

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, June 16, and July 21, 2009, the Commission 

~ceived motions by.counsel to reopen three penalty assessments issued to Freedom Energy 

Mining Company (''Freedom") which 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 Corllmission. 30 U.S.C. § 815(a). 

According to Freedom, none of the assessments - No. 000170350 issued by the 

Department of Labor's Mine Safety and Health Administration ("MSHA") on December 4, 2008, 

No. 000178373 issued on March 5, 2009, and No. 000180991 issued on April 2, 2009-were 

received by the operator at its designated address. fustead, MSHA's records show that each time 

1 Pu;rsuant to Commission Procedural Rule 12, on our own motion, we hereby 

consolidate docket numbers KENT 2009-924, KENT 2009-1198, and KENT 2009-1341, all 

captioned Freedom Energy Mining Co. and involving similar procedural issues. 29 C.F .R. 

§ 2700.12. 

31 FMSHRC 883 
Federal Express returned the packages containing.the assessments to MSHA. The Secretary 

concedes that the deliveries never took place, and states that she and Freedom have agreed that 

future assessments will be mailed to a Post Office·Box. The Secretary further reports that the 

new arrangement is in place as of April 9, 2009. 

Having reviewed Freedom's requests and the Secretary's responses, we conclude that 

none of the assessments became a final order of the Commission, and thus reopening is not 

necessary. Accordingly, we deny the operator's requests as moot and·remand this matter to the 

Chief Administrative Law Judge for further proceedings as appropriate, pursuant to the Mine Act 

and the Commission's Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the 

Secretary, if she has not already done so, shall file petitions for assessment of penalty in each 

docket within 45 days of the date of this order, based on the penalties Freedom indicated it 

wished to contest on the forms it attached to its motions to reopen. See 29 C.F.R. § 2700.28. 

Robert F. Cohen,·Jr., Commissioner 

31 FMSHRC 884 
Distribution: 

Sarah Ghiz Korwan, Esq. 

Dinsmore & ShobL LLP 

P. O. 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 

lVfyraJames,Chief 

Office of Civil Penalty Compliance, lVISHA 

U.S. Dept. Of Labor 

11 oo Wilson Blvd., 25th FIOor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal lVfine Safety &Health Review Commission 

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

Washington, D.C. 20001-2021 

31 Fl\1SHRC885 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

DOUBLE BONUS COAL COMP ANY, 

DYNAMIC ENERGY, INC., 

FRONTIER COAL COMPANY, 

August 25, 2009 

BLUESTONE COAL CORPORATION, 

JUSTICE HIGHW ALL MINING, INC., 

and 

PAY CAR MINING, INC. 

Docket No. WEV A 2008-879 

A.C. No. 46-09020-123653 

Docket No. WEV A 2008-880 

A.C. No. 46-09020-130296 

Docket No. WEVA 2008~1354 

A.C. No. 46-09020-148893 

Docket No. WEVA 2008-1355 

A.C. No. 46-09020-145248 

Docket No. WEVA 2008-1356 

A.C. No. 46-09062-147434 

Docket No. WEV A 2008-1448 

A.C. No. 46-09062-144939. 

Docket No. WEV A 2008-1357 . 

A.C. No. 46-09227-145258 

Docket No. WEV A 2008-1358 

A.C. No. 46-08684-146783 

Docket No. WEVA2008-1661 

A.C. No. 46-08684-150175 

Docket No. WEV A 2008-1359 

A.C. No. 46-09123-147164 

Docket No. WEV A 2009-727 

A.C. No. 46-09031-162833 

Docket No. WEVA 2008-1563 

A.C. No. 46-08884-148891 

Docket No. WEV A 2009-812 

A.C. No. 46-08884-170006 

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

31 FMSHRC 886 
ORDER 

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2006) ("Mine Act"). In each of the 13 captioned cases, the Commission received 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 from the Department of Labor's Mine Safety 

and Health Administration (''MSHA") must notify the Secretary of Labor no later than 30 days. . . 

after receiving ·the proposed penajty assessment. If the operator fails to notify the Secretary; the . 

proposed penalty assessment is deem~d a final ord~ of the Commission. Id. 

; 

In 11 of the 12 cases in which she filed responses,.the Secretary originally did not oppose 

reopening of the assessments. While separate orders in those 12 cases were being finalized by 

the Commission, in the thirteenth case; Pay CarMintng, Inc., Do.cket No. WEVA 2009-812 

("Pay Car Ir'), the Secretary, in a response,dated March2, 2009, opposed reopeniJ.ig the case. 

She requested that if the Commission voted to grant relief, it order the oper~tors to prepay th~ · 

penalties. She also indicated that she planned to file supplemental responses in the l l other 

cases in which she had not Qpposed reopening. 'f4e Secretary did so shortly thereafter, filing a 

series of supplemental responses opposing those requests for relief on the same or similar 

grounds. as ,stated in her response in Docket No. WEV A 2009-812. 1 

. . . ' . .. . . ' 

Because the Secretary's filings addressed the interrelationship between the operators in 

the cases. and raised very serious issues regarding the operators' requests to reopen when.those 

requests are considered together,2 the Commissioμ consolidated all 13 cases and issued a . 

1 In Justice Highwall Mining, Inc., Docket No. WEV A 2009-727, the Secretary opposed 

reopening immediately in response to the motion to reopen, .and did not file a supplemental 

response. 

,' 

2 Jn her March 2, 2009, submission, .the Secreta.rY ~tated that she 

opposes reopening in this case and the other cases because it has 

become clear over time that the operators in all of the cases are 

controlled by the same individual, James Justice; that they all use 

the same ineffective (llld unreliable system by which to process 

penalty assessments; that they all offer the. same unpersuasive and 

unmeritorious excuses for failing to ·contest penalty. assessm<;mts in 

a timely manner; and that they all exhibit the same attitude toward 

penalty assessments - an attitude of carelessness, indifference, and 

outright evasion. 

Sec'y of Labor's Opposition to Request to Reopen Penalty Assessment and Request for 

Prepayment of Penalties 1,1t 2 (Docket No. WEVA 2009-812) (hereinafter "S.Pay Car1IOpp'n"). 

31 FMSHRC 887 
schedule by which the parties could submit further evidence and argument on the issues raised by 

the Secretary's filings. 31 FMSHRC 339 (Mar. 2009). Consequently, in response to the 

Commission's order, the Secretary filed a response affirming that shewas opposing all 13 

requests to reopen. 

The operators' reply submissions took the form of a response and five answers to the 

Secretary's opposition filings. The six filings by the operators covered (1) Docket No. WEV A 

2009-727 (Mar. 5, 2009); (2) Docket No. WEVA2008-1355 (Mar. 23, 2009); (3) Docket No. 

WEVA 2009-812 (Miir.- 27, 2009); {4)Docket Nos. WEVA 2008-1356, WEVA 2008-1357, 

WEV A 2008-1358, arid WEV A2008-1359 {Mar; 27, 2009); (5) Docket Nos. WEV A 2008-1354; 

WEVA 2008-1448, WEVA 2008-1563, and WEVA 2008-1661 (Mar. 31, 2009); and (6) Docket 

Nos. WEV A 2008-879 and WEV A 2008-"880 {Apr. 2, 2009). 

The Secretary then filed a consolidated surreply to the operators' submissions, as 

permitted by the Commission's scheduling order. Finally, in a Notice dated May 22, 2009, the 

Secretary informed the Commission that the,operators had submitted a check to MSHA for 

$649,740.14 to be deposited into an escrow account. That amount represented the full amount.of 

the initial penalties at issue in the cases, plus interest, fees, and costs through May 14, 2009. 

The Commission has considered the extensive submissions of the operators and the 

Secretary. For the reasons set forth below in their separate opinion, Chairman Duffy and 

Commissioner Young would reopen all 13 cases and remand the individual cases to the Chief 

Administrative Law Judge for further proceedings. Commissioners Jordan and 'Cohen, for the 

reasons set below in their separate opinion, would reopen five of the cases~ :and deny with 

prejudice the requests to reopen seven other cases. In one case, they would grant relief in part 

and deny in part. ·. 

Consequently, Docket Nos. WEVA 2008-1356, WEVA 2008 ... 1357, WEVA 2008-1358, 

WEVA 2008-1359, WEVA 2009-812, and the penalty associated with Citation No. 7259169 in 

Docket No. WEV A 2008-1355 are hereby reopened and separately remanded to the Chief 

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

Commission's Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the 

Secretary shall file a petition for assessment of penalty within 45 days of the date of this order in 

each of the six cases. See 29 C.F.R. § 2700.28. 

Furthermore, the effect of the split decision of the Commissioners as to the other requests 

to reopen is that the requests in Docket Nos. WEV A 2008-879, WEVA 2008'-880, WEV A 2008-

1354, WEVA2008•1448, WEVA2008-1661, WEVA2008-1563, WEVA2009-727,andDocket 

No. WEV A 2008-1355 {except for the penalty associated with Citation No. 7259169) are all 

denied.3 

3 In deciding the motion to reopen in Docket No. WEVA 2008-1355, the Commission 

also considered pleadings that were filed in Double Bonus Coal Co., Docket No~ WEV A 2008..: 

31 FMSHRC 888 
Opinion of Commissioner Duffy and Commissioner Young: 

We joined with our colleagues in consolidating these cases and taking further 

submissions from the parties because of the significant issues the Secretary raised in her March 2, 

2009 filing when she reversed course in many of these cases and began opposing reopening. We 

also believe; similar to our colleagues, that if the merits of each of the cases were to be 

considered, the operators' grounds for reopening may be better in some cases than in others. 

Howe~er, in the interest of effi.Ciently disposing of these cases, some of which were filed· 

over a year ago, we would reopen all of the cases on the ground that the operators' prepayment ~f 

the penalties, phis interest, fees, and costs, reasonably satisfies the concerns the Secretary 

expressed ill her March 2 filing. Therein, she explained that the enormity of the total amount of 

the delinquent penalty· payments compromises the deterrent effect of civil penalties at all of the 

operators' mines. S. Pay Car II Opp 'n at 11. She further argued tha~ with regard to the failure 

to contest the assessments on a timely basis,. ''the operators' excuses reveal a carelessness .that 

warrants prepayment ofthe fulrpenalty amount if the motions are granted." Id. at 1~17. 

Consequently, the Secretary took the position that "if the Commission grants the operators' 

requests, the Seeretary requests that the Commission do so conditioned upon the operators' 

payment of the full penalty amount, subject to refund by MSHA to the extent that Respondent 

prevails on the.merits of the citations and/or penalties~" Id. at 1-2; see also id. at 20. 

Given that the operators paid the amounts atissue to MSHA (which will hold the money 

in escrow in an account that, presumably, will accrue interest), even before the Commission ruled 

on their pending motioris to reopen, we would grant the requests to reopen with respect to all 13 

assessments at issue. We do so without ruling on whether the Corllmission would have the 

authority to require prepayment of penalties, in these or ani other cases, and without reaching the . 

merits of any of the requests' fo reopen. . . 

issioner 

1596. That docket was administratively closed after it was learned that the request to reopen in it 

was duplicative of part of Docket No. WEVA 2008-1355. All documents in Double Bonus Coal 

Co., Docket No. WEVA 2008-1596, will be transferred into Docket No. WEVA 2008-1355. 

31 FMSHRC 889 
Separate opinion of Chairman Jordan and Commissioner Cohen: 

I. Introduction 

Between April 2008 and February 2009, six mine operators controlled by a single 

individual, J runes C. Justice, filed a total of fifteen motions seeking relief from final Coinmission 

orders. 1 The thirteen matters before us in this proceeding2 involve deliD.quent penalties totaling 

over half a million dollars. Sec'y of Labor's Opposition to Request to Reopen Penalty 

Assessment and Request for Prepayment of Penalties at 11, Pay Car Mining, Inc., Dockd No. 

WEVA 2009-812 {hereinafter "S. Pay Car II Opp'n").3 For the reasons set fort.h below, 1n seven 

dockets, we would deny relief. We would grant relief in five of the other dockets and order the. 

Secretary to proceed with the case and file her penalty petition. In the remaining docket, we 

would grant relief in part and deny in part. · 

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 pemμty assessment 

is deemed a final order oftheCommission. 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 uncler 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 Commissi<;>n has found guidance in ~ule 60(b) of the 

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

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

§ 2700.1 (b) ("the Commission and its Judges shall be guided so far a5 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 

1 In its Order of March 13, 2009, the Commission consolidated 13 of these cases. 

2 The Commission previously issued an order in Double Bonus Coal Co., Docket Nos. 

WEV A 2009-810 and WEV A 2009-811, regarding the two other motions. 31 FMSHRC 358 

(Mar. 2009). In that case, the Commission concluded that the proposed assessments at issue 

never becrune final orders of the Commission because they were never delivered to the operator. 

Id. at 360. The Commission denied the motions as moot, remanded the matters to the Chief 

Administrative Law Judge for further proceedings, and ordered the Secretary to file petitions for 

assessment of penalty. Id. 

3 In this March 2, 2009 submission, the. Secretary opposed relief in all of the cases at 

issue here, explaining the relationships between the operators, their mail:-handling systems, the 

excuses offered in their motions, and their history of late penalty contests. 

31 FMSHRC 890 
timely respond, the case may be reopened cmd appropriat~ proceedings on the merits permitted. 

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

The Commission agreed to consolidate these proceedings because during our review of 

the operators, motions, we found that a disturbing pattern of carelessness had emerged in many 

of these proceedings, and we believed it would be beneficial to review all of these requests to 

reopen as a group. In so doing, we found a series of unpersuasive excuses for late-filed penalty 

assessments, and ~vidence of unreliable systems used by these operators when processing penalty 

assessments. We were also concerned that in many instances, the operators sought relief from 

these final orders only after receiving delinquency letters from the Mine Safety and Health 

Administration ("MSHA") or after being put on notice of enhanced enforcement efforts. 

Moreover, a global approach to these motions (in addition to scrutiny of each individual 

case) is particularly helpful because, except for Double Bonus, each operator's point of contact 

for MSHA is the same in terms of the operator's address and contact person. The same 

individual, Patrick M. Graham,4 was involved in most of the operators' responses to the 

assessments, including the responses of Double Bonus. S. Pay Carll Opp'n at. 8-11. Also in 

many of the cases, the operators cited similar reasons for failing to timely contest penalty 

assessments. These were giounded in a faulty mail processing system. Id. at 12-17. For 

example, after proposed assessments .issued in_ 2007 were mishandled, the operators claimed to 

- have initiated a new system for timely contesting assessments in February 2008. Double Bonus, . 

Docket No. WEVA 2008-1355, Mot. to Reopen at 2. The oper~tors aclmowledged th~t this 

system contained "some faults," and so a new syste~ was established in June 2008. Id. This 

system also failed to work properly and so, as of January 2009, it was decided to "stamp in" 

assessment sheets "to avoid any mistakes." Pay Car I/Mot. to Reopen at 2. · 

Reviewing these cases as a group also reveals the repetitive nature of the excuses offered 

for the late filings. The first two cases, filed in April 2008,5 contained identical excuses for latefiled contests of assessments that were proposed three months apart. Double Bonus Coal Co., 

Docket Nos. WEVA 2008-879 and WEV A 2008-880 .. Three other cases, filed by three ~fferent 

operators and involving as~ssments issued in March, _April and May of 2008 contained identical 

excuses. Dynamic Energy, Inc., Docket No. WEVA 2008-1448, Pay Car Mining, Inc.~ Docket 

No. WEV A 2008-1563 ( .. Pay Carr'), and Bluestone Coal Corp., Docket No. WEV A 2008-

1661, Mots. to Reopen. 

4 In an affidavit attach~d to soI11e of the operators' responses, Mr. Graham identifies 

himself as the Director and General Manager of Safety/Human Resources for the '~James C. 

Justice Companies." 

5 Double Bon:us first attempted to reopen these assessment cases in February 2008, but 

sent the letter to MSHA rather than the Commission. The reopening request was sent to the 

Commission in April 2008. · · . 

31 FMSHRC.891 
Furthermore, according to the Secretary, as ofMarch2009, the total delinquencies for· 

mines controlled by Mr. Justice equaled $870,843. S. Pay Car II Opp'n at 11. Of that amount, 

70% was the subject of motions seeking relief before the Commission ($608,182) and 30% 

remained unpaid ($262,661). Id. We are deeply troubled by this significant amount ofunpaid 

penalties, which contravenes Congress' intent that 

the purpose of a civil penalty is to induce those officials 

responsible for the operation of a mine to comply with the Act and 

its standards . 

. . . To be effective and to induce compliance, civil 

penalties, once proposed, must be assessed and collected with 

reasonable promptness and efficiency. 

S. Rep. No. 95-181, at 41, 43 (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 62.9, 631 

( 1978) ( "Legis. Hist. "). Senator Williams, the sponsor of the Mine Act, empha8ized that the 

civil penalty was ''the mechanism for encouraging operator compliance with safety and health 

standards." Legis. Hist. at 85; In reviewing the relevant legislative history, the D.C. Circuit 

concluded that "Congress was intent on assuring that the civil penalties provide an effective 

deterrent against all offenders, and particularly against ()ff enders with records of past violations." 

Coal Employment Project v. Dole, 889 F.2d 1127, 1133 (D.C. Cir. 1989).6 

6 The importance of civil monetary penalties was recogriized by the Supreme Cotirt even 

prior to the passage of the Mine Act. In National Independent Coal Operators; Assoc. v. Kleppe, 

423 U.S. 388, (1976), a suit brought to enjoin the use of regulations adopted for assessing civil 

penalties under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. 

(1976), the Court recognized that: 

The importance of § 109 [the Coal Act's civil penalty provisions] 

cannot be overstated. Section 109 provides a strong incentive for 

compliance with the mandatory health and safety standards. That · 

the violations of the Act have been abated or miners withdrawn 

from the dangerous area before § 109 comes into effect is not 

dispositive; if a mine operator does not also face a monetary 

penalty- for violations,·he has little incentive to eliminate dangers 

until directed to do so· by a mine inspector .... A major objective 

of Congress was prevention of accidents and disasters; the 

31 FMSHRC 892 
It is against this backdrop .that we now tum to the merits of the individual motions to 

reopen.7 · · 

Il. Cases in Which Denial of Relief is Warranted. 

A. Double Bonu8. Coal Co .• Docket Nos. WEV A 2008-879 and WEVA i008-880 

On April 3, 2008.,8 Double Bonus asked the Commission to reopen two penalty 

assessments that had become final upon the operator's failure to contest the penalties within 30 

days. Docket Nos. WEV A 2008-879 and 2008-880. On July 31, 2007, and October 30, 2007, 

MSHA had issued proposed penalty assessments to Double B()nus .. After receiving no response, 

MSHA sent Douple Bonus delinquency notifications on November 1, 2007, and January 23, 

2008, for those assessments. Double Bonus alleged that it failed to timely respond to the 

proposed penalty assessments because of several personnel changes, different internal document. 

routing procedures due to different delivery services, and a staff that was confused and failed to 

appreciate the importance of the proposed assessments or the time limits contained in them. 

Double Bonus also asserts that it "has established a procedure to insure that all assessment 

documents are properly chat1Jleled to the appropriate office." 

After initially not opposing reopening,. the Secretary changed her position .in her March 2, 

2009 opposition. She cited the two cases as the start of either a pattern of carelessness by the 

operators with respect to responding to assessments .or an indication that they lack credibility. 

regarding their explanations for their failures to timelyrespqnd. S'. Pay Car IIOpp'n at 12-17. 

She pointed out that the excuses offered in these two cases were identical even though the 

assessments were issued three mo~ths apart. Id. at 15. She also argued $at the requests to 

reopen were not flled by Double Bonus until six months and two and one half months, 

Id. at 401. 

deterrence provided by monetary sanctions is essential to that 

objective. 

7 Invoking ''the interest of efficiently disposing of these cases," slip op. at 4, our 

colleagues summarily grant relief in all of them. Although our colleagues acknowledge the 

"significant issues" raised by the Secretary in her opposition to the motions to reopen, they would 

grant relief without addressing any of them, because they consider the operator's prepayment of 

penalty to "reasonably satisf[y]" these concerns. Id. This would reward an operator whose track 

record in failing to contest penalties is egregious, and who accumulated so many delinquent 

penalties involving such a large sum of money that the Secretary took the unprecedented step of 

asking the Commission to condition any grant of relief on a penalty prepayment. 

8 See note 5, supra. 

31 FMSHRC 893 
respectively, had passed from the time MSHA had sent delinquency notices to the operator 

regarding the assessments. Id. at 17 & n.39.9 

In a reply dated April 2, 2009, and also in the Justfoe Companies' replydated March 27, · 

2009 in Pay Car II, Double Bonus attributed the failure to timely respond to the assessments to a 

breakdown somewhere in the chain of custody of the assessments. Double Bonus stated that the 

breakdown may have occurred because ofMSHA's change in delivery agents for assessments 

from the U.S. Postal Service to Federal Express. Double Bonus Reply at 2-3; Pay Car //Reply 

at 8, 13-14, 15. It idelitified atiother breakdown point in moving the assessments from the mine 

at Pineville, WV to its business office in Beckley, WV. Double Bonus Reply at 2-3; Pay Car fl 

Reply at 16. Double Bonus claimed it first learned of the delinque.ncies in late January 2008, and 

thereafter moved to improve its handling of assessments. Double Bonus Reply at 3-4. Its reply 

includes a three-page affidavit from Pat Graham, the first half ofwhich addressed these tWo 

cases. Double Bonus also argued that later cases show that the assessments in these cases may 

not have ever been delivered to Double Bonus. Id. at 2-3; Pay Carl/Reply at 15-16. 

In her April 13, 2009 consolidated reply, with respect to these two cases, the Secretary 

argues that safety director Patrick Graham in his affidavits and other evidence establishes a 

pattern of carelessness by the operators. S. Surreply at 6. With regard to the question whether 

Double Bonus received the assessments, the Secretary notes that Double Bonus received other 

correspondence from MSHA at the addresses onthe·respective assessments. Id. at 8. She also 

notes there is no explanation for why Double Bonus took so long to file requests to reopen after 

receiving delinquency notices. Id. at 8-9. · '· · 

After carefully reviewing the operators' submissions in this matter, we are still unable to 

discern a cogent explanation of why the failure to timely contest these penalties might constitute 

excusable neglect. The pleadings merely identify several potential problems: personnel were 

confused by the delivery of mail by Federal Express, Double Bonus Reply (Aff. of Pat Graham at 

1 ); there was a change in personnel receiving penalty assessments, Double Bonus Mot. at 1; 

confused staff members did not know the importance of proposed assessments and their related 

time deadlines, id. at 2; there were transmission problems to the Beckley office, Double Bonus 

Reply at 3. Reciting this list of possible excuses, with no detailed explanation as to why the 

penalties were not timely contested, does not justify relief. We therefore would deny Double 

Bonus' request to reopen in these two dockets. 

9 Although the delay in Docket No. WEV A 2008-897 was five months, not six, we are 

nevertheless troubled by the operator's lack of diligence in seeking relief. 

31 · FMSHRC 894 
B. Double Bonus Coal Co .. Docket No. WEVA2008-1354; Dynamic Energy. Inc .. 

Docket No. WEVA 2008-1448; Pav Car Mining. Inc .• Docket No. WEVA 2008-

1563 ("Pay Car F'); Bluestone Coal Corp .. Docket No. WEVA 2008-1661 

On June 20, 2008, Double Bonus filed a motion to reopen an assessment dated April 29, 

2008 that had become a fi,nal Commission order upon the operator's failure to c9ntest the· 

penalties. Docket No. WEV A 2008-1354., Double Bonus asserted that it first learned of this 

penalty assessment when Mr. Graham was reviewing data on MSHA's.data rytrieval system on 

June 11, 2008. It subsequently discovered that the proposed assessment had been lost or 

misplaced due to internal handling problems. · 

On July 2, 2008, Dynamic filed a motion to reopen a penalty assessment that had become. 

a final Commission order upon the operator's failure to contest the penalties. Docket No. 

WEVA 2008-1448. On March 31, 2008, MSHA assessed proposed penalties resulting from four 

orders that were issued in December 2006. According to Dynamic, the proposed.assessment was 

''misplaced or lost." In a letter dated June 19, 2008, MSHA infoniled Dynamic that the civil 

penalties were delinquent. 10 Dynamic contended that it conducted a search for the proposed 

assessment and could not locate it. Dynamic claimed that it had always intended to contest the 

violations because they had-been designated by MSHA as unwarrantable. The motion states in 

part: 

We have experienced a serious fault in distribution of mail 

throughout the corporation. We previously installed a system that 

we believed would put the penalty assessm~ts in the proper hands 

for contest or payment. That system has obviously failed. Vf e are 

. working on a new system that we expect will be successful. The 

rotation of.i:iewly hired persons is a problem as more experienced 

personnel move up'. The training of new employees is lacking with 

respect to assessments. More intense training of new employees 

has already begun. · 

Dynamic Mot. to Reopen at 2. 

On July 29, 2008, Pay Car filed a motion to reopen an April 29, 2008 proposed 

assessment to the operator arising from citations that were issued in February 2008. Docket No. 

WEVA 2008"'.1563. According to Pay Car, the proposed assessment was "misplaced or lost." 

Pay Car contended that it conducted a s~~ch for the proposed assessment and could not locate it. .. 

Pay Car also stated that it had always intended to contest the violations because they had been 

10 This assessment had been issued by MSHA on March 31, 2008 and had become final 

on May.2, 2008. Dynamic does not explain why Graham did not notice it when he reviewed 

MSHA's data retrieval system on June 11, 2008. 

31 FMSHRC 895 
designated as significant and substantial. The motion also contained the same paragraph 

included in the July 2, 2008 Dynamic Motiori to Reopen, quoted supra. 

On August 13, 2008, Bluestone filed a motion to reopen a penalty assessment issued in 

May2008. Docket No. WEVA 2008-1661. The assessment to Bluestonearose from nine 

citations issued during February and March 2008. According to Bltiestone, the proposed 

assessment was "misplaced or lost." Bluesfone stated that MSHA _informed it by letter that the 

civil penalties were delinquent. 11 Bluestone contended that it conducted a search for the 

proposed assessment and could not locate it. Bluestone stated that it had always intended to 

contest the violations because of their significant and substantial nature. The motion also 

contained the same paragraph included in the July 2, 2008 Dynamic Motion to Reopen, quoted 

supra: 

The Secretary originally did.not oppose reopening in any of the cases. She did note in 

Bluestone, however, that in the previous three months the operator had become delinquent with 

respect to 30 penalties that had become final orders. She stated that.her decision not to oppose 

reopening was based on the operator's representation that it had experienced a serious problem in 

processing assessments and that it was currently training new employees to correct that problem. 

In her March 2, 2009 opposition in Pay Car II, the Secretary changed her position and 

opposed reopening of all four assessments. She noted the excuses in this Double Bonus case 

(WEV A 2008-1354) were identical to the excuses in another Double Bonus case (WEV A 2008-

1355, discussed below). She argued that the excuses in the other three cases (Dynamic Energy, 

Pay Car I, and Bluestone), which had been .filed over the course of six weeks between late June 

and mid-August, were also identical, although filed by three different operators. S. Pay Car II 

Opp'n at 15. She argued that the formulaic and repetitive excuses of poor mail handing offered 

by the operators demonstrated that either the excuses were not credible or that their shared mail 

processing system was inadequate a year ago and remained inadequate. Id. at 16. The Secretary 

also pointed out that in two of the cases, Dynamic Energy and Bluestone, the operators had not 

requested reopening until after such time as they would have received delinquency notices from 

MSHA regarding the unpaid assessments. Id. at 17. 

The operators submitted a reply dated March 31, 2009. They noted that the problem in 

these cases was only with transfer of mail to the central office in Beckley. Mar. 31 Reply at 3-4. 

They stated that the time period in which this later problem occurred was limited to a two-week 

period between late April and mid-May 2008, and that "[t]here have been no similar problems 

with distribution since discovering the problem in June 2008." Id. They further noted that upon 

learning of the new problems, Graham took steps to retrain personnel on the transfer of mail to 

11 Since the proposed assessment was issued on May 8, 2008, it should have been 

apparent to Graham when he reviewed MSHA's data retrieval system on June 11, 2008. If 

Graham had noticed it then, he could have filed a timely notice of contest, since the assessment 

did not become final until June 13, 2008. 

31 FMSHRC 896 
Other than a brief statement in an affidavit, 12 the only information the operators have 

provided us as an e:xplanation for their failure to timely contest these penalties in these four cases 

is that a problem existed in transferring proposed assessments to their Beckley business office. 

Mar. 31 Reply at 4. This generalized excuse does not warrant reopening. , Moreover, as stated in 

notes 10 and 11, supra, and note 13, infra, Graham's. review of the MSHA data retrieval system 

every three months clearly was ineffective. Additionally, with this history of problems, it would 

be expected that Graham would check the data retrieval system more frequently than every three 

months. Accordingly, we would deny relief in these dockets. 

C. Justice Highwali Mining. Inc .• Docket No. WEY A 2009-727 

· .. On January 27, 2009, Justice Highwall filed a request to reopen with regard to Prop.osed 

Penalty Assessment No. 000162833, dated September 16, 2008, which MSHA had issued for 

two citations in the sum of $120,000. Docket No. WEYA 2009-727. According to the operator, · 

the proposed assessment became a final order either by Justice [Highwall]'s "inadvertence or 

mistake.'' It explained that the proposed assessment was received and signed for by Justice 

Highwall's receptionist on September 23,.2008. The proposed assessment was believed to have 

been electronically transferred to the operator's representative (to contest the penalty) but, 

according to computer records, was not transmitted. The operator discovered that th~ proposed 

assessment had become a final order of the Commission after it received a letter from MSHA 

dated December 10, 2008, stating that Justice Highwall was delinquent in the payment of. 

penalties. Justice Highwall Mot. at 1~2. 13 

12 In the operator's response in Double Bonus, Docket Nos. WEY A 2008-:879 and 

WEY A 2008-880, the affidavit of Graham discusses the circumstances arising in Double Bonus, 

Docket No. WEY A 2008-1354. Graham stated only that the operator had determined that a .. 

certain clerk had signed for certified mail on May 5, 2008 and placed the mail in the outbox to 

the Beckley office. Graham Aff. at 2. 

13 In its June 13, 2008 Motion to Reopen in Docket No. WEY A 2008-1354, Double 

Bonus represents that Graham "reviews the [MSHA] data retrieval system every three months 

looking for potential problems," and had done so on March 11, 2008 and June 11, 2008 .. Double 

BonUs Mot. at 2. Under this schedule, Graham would have checked the data retrieval system . 

31 FMSHRC 897 
In her response filed on February 4, 2009, the Secretary opposed the request on the basis 

that the operator had made no showing of exceptional circumstances that warrant reopening. She 

argued that the operator's statements that the failure to timely contest the proposed penalties · · 

arose from inadvertence or mistake, and that the proposed assessment was thought to have been 

electronically transferred to its representative, were conclusory, lacked evidentiary support, and 

were insufficient to establish a basis for reopening. The Secretary also faulted the motion for 

failing to plead a meritorious defense. S. Opp'n at 2-3. 

The operator filed a reply to the Secretary's response in opposition. The submission, 

dated March 5, 2009, is primarily directed at the Secretary's meritorious defense argument. It 

includes four affidavits from Justice personnel regarding the two citations at issue. 

The fifth affidavit fucluded with the reply is from Graham,· the safety director for 

Bluestone Industries. Therein, he states that the assessment at issue was one of three in which he · 

informed his document processor that he intended to contest. He states that a procedure that had 

been successfully used in the past was again employed, whereby the processor, who he describes 

as a dependable employee, would scan the documents and attach them in an e-mail to the 

representative. Two of the assessments were forwarded to the representative on September 23, 

2008, but the third was not. A hard copy of the assessment was found in the processor's files, 

but it had not been electronically transmitted. .Graham states that it could not be detenp.ined 

whether the mistake was caused by computer, scanning, or human error, and that "[ o ]versight 

reviews have been put ill place to prevent the same inistake in the future." Aff. at 2-4. · 

The Secretary in her April 13, 2009 consolidated surreply faulted the Justice response for· 

( 1) failing to provide authority for the proposition that the· facts it presented justify a 

"presumptive meritorious defense;" (2) failing in the Graham affidavit to offer additional 

substantive information,. such as identifying the date on which the processor was hired; and (3) 

including conclusory.statements and unreliable hearsay in the Graham affidavit. Surreply at 11. 

We would deny relief in this case. The rationale supplied by the operator is one of a· 

litany of excuses involving faulty office procedures that have been offered in these proceedings. 

Graham's statement in his March 2009 affidavit that "[o]versight reviews have been put in place 

to prevent the same mistake in the future" rings hollow in light of the similar pledge in the 

operator's submission in Double Bonus Coal, Docket No. WEY A 2008-879 (which also 

involved Graham)that as of February 8, 2008, Double Bonus had "established a procedure to 

ensure that all a8sessment documents are properly channeled to the appropriate office," and 

similar commitments made in separate filings in the summer of 2008. By September 2008 (when 

this assessment in Justice Highwall was issued), these operators had been on notice that their 

office procedures to timely contest penalty assessments were sorely deficient, and they had 

again on or about December 11, 2008. Justice Highwall does not explain why Graham did not 

notice that the assessment dated September 16, 2008 had become final ori October 23, 2008. . 

31 FMSHRC 898 
already fileci eleven requests to reopen final orders. We would therefore deny the operator's 

request. 

ill. Cases in Which Granting of Relief is Warranted 

. . 

A. Dynamic Energy. Inc .• Docket No. WEVA 2008-1356; Frontier Coal Co.A Docket 

No. WEVA 2008-1357; Bluestone Coal Corp .. Docket No. WEVA 2008-1358; 

and Justice Highwall Mining. Inc.,. Docket No. WEV A 2008-1359 

The~e four cases involve penalty assessments issued to four Justice companies in April . 

2008. According to each of the June 25, 2008 motions filed by the operators, their 

representative, James F.Bowman, claims that he placed in a single envelope four letters to ... 

MSHA stating that the respective operators wished to contest the penalties. Docket Nos. WEV A 

2008-1356, 2008-1357, 2008-1358 and 2008-1359. Although Bowman asserts that the envelope 

with the four letters was sent by certified mail on April 28, 2008, he cannot locate the receipt for 

the mail. Bowman stated, ''A good faith effort was made to send the Notices of contest which 

[have 1 unfortunately been lost." 1\llot. at 2. Bowman. further avers that the postal service "could 

not track mail without a number" and refers to his computer log and business checking account 

as support for his allegations. Id. at 1-2. However, initially, no affidavits or documeiits were 

filed to.support these statements. Bowman further stated that, when reviewing MSHA's data 

base, he discovered that the proposed assessments had become final orders in May 2008. The 

penalties in the Dynamic Energy case were for over $285,000, while the penalties in the other 

three cases were significantly less than those for Dynamic, for a total of more than $290,000 In 

all four dockets. 

. . .· . . . . 

In her initial responses, the Secretary stated that.she had no record that the penalty co~test 

forms were received but, at least at that time, had no basis for q:uestioning that the letters 

Bowman described were sent. . Later, however, the Secretary filed her supplemental response .. 

opposing the reopening on the.ground the four cases involved Justice-controlled companies, and 

that the filing of 11 motions to reopen over the course of a five-month period by Justicecontrolled companies had revealed a pattern of carelessness that meriteci denial of reopening. See 

Sec'y's Supplemental Resps. in opp;n to Respt's Mot. to Reopen Civil Penalties at 1 (re~eived · 

Mar. 9, 2008, in each case). In the alternative, the Secret;uy requested that if the. Commission 

grants reopening, it do so only on the condition that the operators pay the penalties in their full 

amounts pending a decision on the merits of the citations, orders, and penalties. Id. at 4; Sec'y' s 

Consolidated Opp'n to Reopening Requests at 3 (filed Mar. 26, 2008). · 

In the operators' reply, a submission dated March 27, 2009, Bowman, as the 

"Representative [for] James C, Justice;" reiterated his. original explanation for the failure to file 

timely contests of the four assessments .. In support, he submitted an affidavit, as the owner of 

Bowman Industries, regarding how he came to mail the contests together by certified mail, what 

he did when he learned that the envelope was not received by MSHA, and his unsuccessful 

search for the certified mail receipt. He also submitted a copy of a statement showing that on 

31 FMSHRC 899 
April 28, 2008, he used his debit card to make a $3.96 purchase at the Midway, WV post office, 

which he stated was for the certified mail in question. He also submitted evidence and argument · 

as to his good character and credibility, and argued that because this case is different from the 

other cases at issue here (in that there was a genuine attempt at a timely filing), these cases 

should be judged apart from the cases in which the Secretary argues that there was a pattern of 

carelessness in respondi:rig to penalty assessments. 

The Secretary in her April 13, 2009 surreply affirmed her opposition to reopening the four 

cases. She stated that Bowman has not submitted a copy of the Postal Service forms that would 

support his allegations, such as the Certified Mail Receipt or· the Domestic Return Receipt. 

Surreply at 7, 10-11. The Secretary argued that this failure provides· further evidence of 

carelessness and inattentiveness to record keeping. Id. at 7-8. The Secretary submits that as the 

operators voluntarily 'hired Bowman, they must live with the consequences of retaining someone 

who appears to have lacked the necessary resources and systems to ensure compliance with· 

MSHA and Commission rules. Id. at 6-7. 

We would grant the operators' motions in these fom cases.· .·Their submissions, supported 

by adequate docuinentatiQn (including copies of the contest letters, an.affidavit and a copy of· · 

Bowman's debit card statement indicating a purchase at the post office on the day in question) 

indicate that the operators mailed their requests for.a hearing to MSHA within the 30-day time 

limit. The affidavit submitted is sufficiently reliable and supports this allegation. In the 

·circumstances presented here, we find that the operators' failure to timely file their hearing 

requests with MSHA was due to inadvertence or mistake within the meaning of Rule 60{b)(l ). 

See Mingo Logan Coal Co., 31 FMSHRC _, slip op. at 1-2, No. WEV A 2009-835 (June 1, 

2009) (granting operator's motion to reopen where MSHA had no record of receiving a penalty 

contest form, but operator submitted affidavit stating that its safety manager had sent a timely 

contest form). We ·also note that all. four motions seeking relief were filed in· a timely manner~ 

either only two days after the delinquency notice was issued ( Frontier Coal), or, in the case of 

the other three operafors, prior to receipt of the delinquency notice. 

Consequently, we would reopen these matters and remand them to the Chief 

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

Commission's Procedural Rufos, 29 C.F.R. Part 2700. 

B. Pay Car Mining. Docket No. WEV A 2009-812 ("Pay Car IF') 

In a motion dated February 3, 2009, Bowman sought reopening of a December 2, 2008 

assessment he discovered had been sent in one day late. Docket No. WEVA 2009-812. The 

assessment contained proposed penalties totaling $26, 777. Bowman stated that inclement 

weather prevented the contest of the·assessment from being mailed the previous day. 

The Secretary did not file an individual response to the motion, but instead filed her 

March 2, 2009 opposition, in which she began to oppose reopening of alniost all of the James 

31 FMSHRC 900 
Justice cases. The portion of the re~onse directed at the circumstances in this case is relatively 

brief The Secretary argues that the operator failed to make a showing of exceptional· 

circumstances, and that the explanation provided fails to name the individuals involved and is not 

supported by affidavits from them. S. Pay Car II Opp'n at 5-6. The Secretary also states the 

motion did not even attempt to establish a meritorious defense, and failed to address the issue of 

good faith. Id. at 6. 

In his March 27, 2009 reply, Bowman, on behalf of Pay Car, addressed the Secretary's 

response, both with respect to circumstances of the·late filihg in this case anci the overall pattern 

alleged by the Secretary. Bowman set forth in detail how the assessment was handled. Pay Car · 

I/Reply at 3-5. He stated that action on the assessment did 'tiot occur until after the holidays, at 

which point Bowman was training a new secretary, his wife, on the handling of assessments. · 

According to Bowman, they prepared the contest for mailing on January 5, 2009, but tinlike the 

other seven contests prepared that day, itwas not taken to the post office. That it was left behind 

was not discovered until January 9, 2009, a day on which weather conditions were too unsafe to 

make a trip to the post office, so it was taken the following day, and thus was mailed one day 

late. Affidavits from Bowman, hi,s wife, and Patrick Graham regarding this case are included.· 

Pay Car also devoted one page of its reply to addressing the meritorious defense requirement. Id. 

at7. > 

The Secretary in her April 13, 2009 surreply faults Bowmari for not addressing why.the 

assessment was not processed by his company until after it had sat for three weeks. Surreply at 

7. The Secretary also takes issue With Pay Car limiting its discussion of its meritorious defense 

to one page of argument, unsupported by affidaVits from persons with knowledge of the relevant 

facts. Id. at 12. 

The Commission has previously granted a motion to reopen a final order when a penalty 

contest has been. filed shortly after it was due and the delay was caused by mistake or 

inadvertence. See, e.g., Ruscat Enters., Inc., 31 FMSHRC 112 (Feb. 2009) (reopening final order 

when: operator was three days late in mailing the contest form); Oak Grove Res., LLC, 31 

FMSHRC 115 (Feb. 2009) (reopening final order when operator was one day late in mailing the 

contest form); Dickinson-Russell Coal Co., 31 FMSHRC _, slip op. at 2, No. VA 2009-175 

(June 10, 2009) (same). Accordingly, we would grant the motion and reopen·the final order in 

this docket. · · 

N. Case Warranting Grant ofReliefin Part and Denial of Relief in PartDouble Bonus Coal Co .• Docket No. WEV A 2008-1355 

On April 1 ~ 2008, the Department of Labor's Mine Safety and Health Administration· 

(''MSHA") issued proposed penalty assessment No. 000145248 to Double Bonus for penalties 

totaling $79,300. After this assessment beeame final because of the lack of a contest by the 

operator, Bowman filed a motion to reopen on June 20, 2008. Docket No. WEVA 2008-1355. 

Double Bonus asserts that it first learned of the penalty assessments when its safety director was 

31 FMSHRC 901 
reviewing data on MSHA's data retrieval system on June 11, 2008. It s~bsequently discovered· . 

that the proposed assessments were not contested due to internal handling problems. 

Specifically, it claims that when the proposed assessment was transferred from the ofJ.ice where. it 

was delivered to an accounting office, it was lost or misplaced. It states that a clerk received the 

proposed assessment on April 9, 2008, gave the documents to a mine official, ·c:i.nd he sent them to 

the accounting office. Double Bonus Mot. at 2. 

A second motion to reopen was filed by counsel on August 1, 2008. In that motion, 

however, counse}requested reopening only for the civil penalty proceeding for Citation No. 

7259169. Counsel also filed a supplemental pleading on March 23, 2009, responding to the. 

Secretary, in which he stated that the motion to reopen was filed because the assessment 

pertained to Citation No. 7259169, arising from an investigation into a fatality at the mine. He 

noted that the operator had filed a timely pre-penalty notice of contest of that citation, pursuanUo 

Commission Procedural Rule 20, 29 C.F.R. § 2700.20, demonstrating its intent from the outset to 

contest the penalty, and filed its motion to reopen when it realized a mistake had been made. 

March 26 Reply at 2. In addition, he objected to the Secretary's attempt to group this motion to 

reopen with others pending before the Commission. In his March 2009 submission, unlike. in his 

August 2008 motion, counsel requested that all of the penalties in the docket be reopened, not · 

just the one associated with Citation No. 7259169. However, he failed to provide any 

explanation as to why the other final orders warranted reopening. 

In her April 13, 2009 surreply in these cases, the Secretary urges the Commission to reject 

the operator's argument on many grounds, including.the fact that the operator failed to explaiil. .• 

how its contest of one citation justifies reopening the other 45 citations in the assessment c~e .. 

Surreply at 9. 

The Commission has previously granted motions to reopen when the operator.has filed a .. 

notice of contest of the underlying citations. For example, in Phelps Dodge Sierrita, Inc~, 24 

FMSHRC 661 (July 2002), the operator inadvertently paid the assessment at issue, along with 

fourteen other assessments. it intended to pay~ In granting relief, the Commission indicated that 

"[t]he mostcompelling indication of Phelps Dodge's intention to contest this penalty is the . . 

notice of contest it filed concerning[ the underlying citation]."· Id. at 662; see also Holnam Texas 

Ltd., 24 FMSHRC 436 (May 2002) and Kaiser Cement Corp., 23 FMSHRC 374 (Apr. 2001) . 

(both granting relief from final orders when notices of contest for the underlying citations had 

been filed). 14 

However, we believe the Secretary is correct in arguing that granting relief on this basis 

does not merit reopening ofthe remaining penalties in the same assessment. Other than the 

general excuse about internal document transmittal problems (similar to those offered mmany of 

the other cases discussed herein), the operator provides no information on which to justify a 

14 All three of these.cases also involved inadvertent payment of the p~nalties by the 

operator. 

31 FMSHRC 902 
claim that the failure to timely contest the penalty was based on excusable neglect. 

Consequently, we would grant the reopening of the $723 penalty assessed for Citation No. 

7259169, and deny relief for the other penalties in the April I, 2008 Assessment Case No. 

000145248. 

V. Conclusion 

For the foregoing reasons, we would grant the requests to reopen in Dynamic Energy, 

Inc., Docket No. WEVA 2008-1356; Frontier Coal Co., Docket No. WEV A 2008-:-1357; 

Bluestone Coal Corp., Docket No. WEVA 2008-1358; Justice Highwall Mining, Inc.~ Docket 

No. WEV A 2008-1359; and Pay Car Mining, Docket No. WEV A 2009-812; and the penalty 

associated with Citation No. 7259169 in Double Bonus Coal Co., WEV A2008-1355. We would . 

order the Secretary to proceed with these cases and file her penalty petitions within 45 days of 

this order. We would deny the requests to reopen in Double Bonus Coal Co., Docket Nos. 

WEVA 2008-879 and WEV A 2008-880; Double Bonus Coal Co., Docket No. WEV A 2008-

1354; Dynamic Energy, Inc., Docket No. WEVA 2008-1448; Pay Car Mining, Inc., Docket No. 

WEVA 2008-1563 ("Pay Carr'); Bluestone Coal Corp., Docket No. WEVA 2008-1661; and 

Justice Highwall Mining, Inc., Docket No. WEV A 2009-727; and with regard to the remaining 

penalties in Double Bonus Coal Co., Docket No. WEV A 2008-1355. 

Robert F. Cohen, Jr.; Commissioner 

31 FMSHRC 903 
Distribution: 

Robert H. Beatty, Jr., Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

James F. Bowman 

P.O.Box99 

Midway, WV 25878 

Thomas A. Paige, Esq., 

Office of the Solicitor 

U.K Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

Stephen W. Ball, Esq. 

Bluestone Industries, Inc. 

P.O. Box 1085 

Beckley. WV 25802-1085 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor · 

Arlington, VA 22209-3939 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 904 
FEDERAL MINE SAFETY AND HEAL TH Rt;VIEVV COMMIS.SION 

SECRETARY OF LABOR,. 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

. ~ · .. 

601. NEW JERSEY AVENUE, NW . · 

SUITE 9500. 

WASHINGTON, DC 20001 

August 26, 2009 

· DocketNo. 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 June 22, 2009, the Commission received from Pine Ridge 

Coal Company, LLC ("Pine Ridge'') 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 m appropriate circumstances, we possess jurisdiction to 

reopen uncontested assessments that have become final Commission orders under section lOS(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 Un.der 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 CF.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 905 
On March 19, 2009, tb.e Departfilent 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. Pine Ridge states that it intended to 

contest 12 of the proposed penalties, but because of a "clerical error'' it failed to return the 

contest form to MSHA. The operator later paid the other ten penalties. The Secretary of Labor 

states that she opposes reopening the proposed assessment on the ground that the proffered 

ground for reopening does not rise to the level of exceptional circumstances. 

Having reviewed Pine Ridge's request and the Secretary's response, we conclude that 

Pine Ridge has failed to provide a sufficiently detailed explanation for its failure to timely contest 

the proposed penalty assessment. Pine Ridge's explanation that it failed to file a timely contest 

due to a "clerical error," without any further elaboration, does not provide the Commission with 

an adequate basis to justify reopening of the assessment. Accordingly, we deny without 

prejudice Pine Ridge's request. See, e.g., Eastern Associated Coal LLC, 30 FMSHRC 392, 394 

(May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007). 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 906 
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 907 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

August 27, 2009 

Docket No. LAKE 2009-143-M 

A.C. No. 33-01354-160482 

OGLEBAY NORTON INDUSTRIAL 

SANDS, 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 December 3, 2008, the Commission received from 

Oglebay Norton Industrial Sands, Inc. ("Oglebay") a motion made 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 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 final order of the Commission on the basis of mistake, inadvertence or excusable neglect. 

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

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

31 FMSHRC 908 
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 record indicates that the operator intended to contest two proposed penalties and to 

pay one of the three penalties contained in the proposed assessment. The operator had already 

contested the two orders underlying the two penalties it intended to contest. It submitted the 

penalty payment on a timely basis, but an employee inadvertently failed to send MSHA the 

contest form for the other two penalties at the same time. The operator realized its mistake and 

submitted its request for relief before a delinquency notice was issued. The Secretary states that 

she does not oppose reopening the proposed penalty assessment. · · · 

Having reviewed Oglebay'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 

ofpenaltywithin45 days of the date ofthis order. See 29 C.F.R. § 2700.28. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 909. 
Distribution: 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Ceri.ter, Suite 1340 

401 Liberty Avenue 

Pittsburgh, PA 1522_2 

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 

31FMSHRC910 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETYAND HEALTH 

ADMlNISTRATION (MSHA) 

v. 

METTIKI COAL WV, LLC 

SUITE 9590 

WASHINGTON, DC 20001 

August 27, 2009 

.. 

: ·. 

. •. 

. Docket No. WEV A 2009-423 

A.C. No. 46-09028-159728 

Docket No. WEVA 2009-424 

A.C. No~ 46-09028-162606 . 

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 4, 2008, the Commission received from 

Mettiki Coal WV, LLC ("Mettiki") motions made by counsel 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 

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

is deemed a firial 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 10.S(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal R~es 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. 

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

consolidate docket numbers WEV A 2009-423 and WEV A 2009-424, both captioned Mettiki 

Coal WV, LLC, and both involving similar procedural issues. 29 C.F .R. § 2700.12. 

31 FMSHRC 911 
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 Procedlire"); 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. 1_995). 

The record indicates that the operator intended to contest five proposed penalties on tWo 

proposed assessments and to pay the remaining penalties contained on those assessments. 

Mettiki submitted the penalty payments on a timely basis, but it failed to send MSHA the contest 

forms for the proposed penalties at the same time. The operator states that its safety director, who 

had never contested penalties before, mistakenly assumed that its main mine office, which is 

responsible for penalty payments, would also send the contest forms to MSHA. 

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

assessments. 

Having reviewed Mettiki's requests and the Secretary's response, in the interests of 

justice, we hereby reopen this matter and remandit 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 FMSHRC912 
Distribution: 

Gary D. McCollum, Esq. 

Mettiki Coal , WV LLC. 

771 Corporate Dr., Suite 1000 

Lexington, KY 40503 

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 

31FMSHRC913 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

August 28, 2009 

Docket No. SE 2009-293-M 

A.C. No. 22-00035-167206 

OIL-DRI 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 13 and July 29, 2009; the Commissicm received.· 

from Oil-Dri Production Company ("Oil-Dri") requests 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 October 29, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000167206 to Oil-Dri, proposing penalties for 12 

citations that had been issued to Oil-Dri in July and August 2008. After receiving no response, 

MSHA sent Oil-Dri a delinquency notification on or around January 26, 2009, for the 

assessment. In its first request to reopen, Oil-Dri stated that it intended to contest some of the 

penalties and pay the others, but had no record of having received the assessment, even though 

MSHA records indicate that it was signed for by a particular Oil-Dri employee. The Commission 

denied Oil-Dri's request to reopen without prejudice, stating that if the operator chose to file a 

new or amended motion to reopen, it needed to specify which penalties it wished to contest upon 

reopening. See 31 FMSHRC _, slip op. at 2 (July 14, 2009). The Commission further 

31FMSHRC914 
instructed Oil-Dri to include an affidavit from the particular employee who MSHA alleges signed 

for the assessment regardllig.the employee's knowledge of the assessment. Id. 

Oil-Dri filed a second request'to reopen on July 29, 2009, specifying nine of the proposed 

penalties it wishes to contest upon reopening, atid stating that it has paid the other three penalties. 

It also included with its second request the affidavit requested by the Commissfori, wherein the 

employee in question states that she signed for the package containing the assessment. She 

further explains that she would have placed any such package in the company's internal mail 

system, but she has no recollection of that particular package. 

The Secretary did not oppose Oil~Dri's original request for reopening and did not respond 

to its second request. 

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

uncontested a~sessments 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 final order of the Commission on th.e basis of mistake, inadvertence, or excusable neglect. 

See29 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 915 
· Having.reviewed Oil-Dri;;s requests and the Secretary's response, in the.interests of ... 

justice, we hereby reopen this matter and remand it to the Chief Adtninistrative 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 d~te of this order. See 29 C.F.R. § 2700.28. · · 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC916 
Distribution: 

Larry R. Evans, Safety Mngr. 

Oil-Dri Production Co. 

P.O. Box 380 

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 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 

31FMSHRC917 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MACH MINING, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

August 28, 2009 

Docket No. LAKE 2009-:-3.95-:R 

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

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of1977, 30 U.S.C. 

§ 801 et seq. (2006) ("Mine Act"). On March 13, 2009, pursuant to section 104(d)(l) of the 

Mine Act, 30 U.S.C. § 814(d)(l), the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued a withdrawal order to Mach Mining, LLC ("Mach"), alleging a 

violation of30 C.F.R. § 75.370(d), a ventilation plan regulation. 1 Mach filed a notice of contest, 

1 The cited safety standard provides: 

No proposed ventilation plan shall be implemented before 

it is approved by the district manager. Any intentional change to 

the ventilation system that alters the main air current or any split of 

the main air current in a manner that could materially affect the 

safety and health of the miners, or any change to the information 

required in § 75.371 shall be submitted to and approved by the 

district manager before implementation. 

30 C.F.R. § 75.370(d). The withdrawal order alleges the following violation: 

A proposed ventilation plan dated February 25, 2009 was 

implemented before it was approved by the district manager. The 

mine operator has mined over 1000 feet inby the location of the 

31 FMSHRC 918 
and in an order dated May 15, 2009, ruling on cross motions for summary decision filed by the 

Secretary of Laborand Mach, Administrative Law Judge Richard Manning held that Mach had 

violated section 75.370(d). 31 FMSHRC709,7i3-15 (May 2009) (ALl).2 

Mach subsequently submitted a modifled ventilation plan for approval to MSHA in order 

to abate the violation~ MSHA did not agree that the violation had been abated and refused to 

termfuate the order of withdrawal. Mach then requested a hearing on whether the violation has 

been abated and the order should temrinate, and the judge ~et the case for hearing. The Secretary 

filed a motion to canc~l the hearing on the ground that the Coinmission lacks jurisdiction to 

determine whether abatement has occurred and order termination of the order. . · 

On August 18, 2009, the judge denied the Secretary's request to cancel the hearing based 

on his conclusion that he had jurisdiction to review the order. The Secretary subsequently 

requested that the judge reconsider his decision or, in the alternative, certify the question of 

jurisdiction for interlocutory review by the Commission. Mach filed a response in opposition to 

both requests., On August 25, 2009, the judge denied reconsideration but granted the request for 

certification. · 

proposed set up rooms in headgate No. 3. The drawing titled 

"Ventilation Plan Map for future Longwall Operations" dated 

March 19, 2006, which is part of the currently approved ventilation 

plan for this mine approved on March 18, 2008, shows a six panel 

design with all six p~els approximately 18,000 feet deep without 

any stair steps. 

Order No. 8414238. 

2 The judge denied the Secretary's motion for summary decision on the issue of whether 

the violation was due to Mach's unwarrantable failure, and ordered the parties to confer as to that 

issue and the issue of negligence. 31 FMSHRC at 715, 716. 

31FMSHRC919 
Interlocutory review is a matter of sound discretion of the Commission. 29 C.F .R. 

§ 2700.76(a). The Commission will grant interlocutory review upon a majority vote that a 

judge's interlocutory ruling involves a controlling question of law and immediate review Will 

materially advance the final disposition of the proceeding. 29 C.F.R. § 2700.76(a)(2). Upon 

consideration of the judge's certification, all.four Comniissioners agree that the ruling involves a 

controlling question oflaw. Chairman Jordati and Commissioner Cohen further· conclude that 

immediate review would materially advance the final disposition of the proceedipg and thus 

would grant interlocutory review. Commissioner Duffy and Commissioner Young do not agree 

and would deny review. Accordingly, because there is not a .majority of Commissio~ers wh. o 

would grant interlocutory review, it is denied. · . . 

Michae 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 920 
Distribution: 

Suzanne F. Dunne, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

230 S. Dearborn St., gth Floor 

Chicago, IL 60604 

Daniel W. Wolff, Esq. 

Crowell & Moring, LLP 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004-2595 

Morris Niday 

Miner's Representative 

Mach Mining, LLC 

P.O. Box 300 

Johnston City, IL 62951 

Administrative Law Judge Richard W. Manning 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

1244 Speer Blvd., Suite 280 

Denver, CO 80204 

31 FMSHRC 921 
31 FMSHRC 922 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

MARFORK. COAL COMP ANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

. Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MARK.FORK. COAL COMPANY, 

Respondent . 

July 14. 2009 

CONTEST PROCEEDINGS 

Docket No. WEYA 2007-564-R 

Citation No. 7259269; 06/20/2007 

Docket No. WEY A 2007-565-R 

Order No. 7259270; 06/20/2007 

White Queen 

Mine ID 46-08297 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEYA 2007-716. 

A.C. No. 46-08297-122438. 

Docket No. WEY A 2008-385 

A.C. No. 46-08297-133173 

White Queen 

CONSOLIDATION ORDER 

AND 

Appearances: 

Before: 

DECISION APPROVING SETTLEMENT 

Benjamin D. Chayki~ Esq., Office of the Regional Solicitor, 

. U.S. Department of Labor, Arlington, Virginia, for the Petitioner; 

Matthew Nelson, Esq., Dinsmore & Shohl, LLP, · 

Morgantown, West Virginia, ·for the Respondent· 

Judge Feldman 

The captioned civil penalty in Docket Nos. WEV A 2007-716 and WEV A 2008-385 

were the subject ofa hearing that commenced on April 21, 2009, in St. Albans, West Virginia. 

The contest proceedings in Docket Nos. WEVA 2007-564-R and WEYA 2007-565-R, that 

concern 104(d)(l) Citation No. 7259269 and 104(d)(l) Order No. 7259270 contained in the 

31 FMSHRC 923 
civil penalty proceeding in WEY A 2008-385, had been stayed. Subsequent to the hearing, 

on June 23, 2009, the stay of the contests was lifted by the Chief Administrative Law Judge, 

and, these contests were assigned to me. Consequently, IT IS ORDERED that the captioned 

contests ARE CONSOLIDATED for disposition with the captioned civil penalty matters. 

The captioned matters concern Petitions for Assessment of Civil Penalty filed pursuant to 

section 1 lO(a) of the Federal Mine Safety and Health Act of 1977 (the Mine Act), as amended, 

30 U.S.C. § 820(a), by the Secretary of Labor (''the Secretary"), against the respondent, 

Marfork Coal Company ("Marfork"). The petitions seek to impose a total civil penalty of · 

$76,555.00 for four alleged violations in Docket No. WEY A 2007-716, and seven alleged 

violations in Docket No. WEY A 2008-385, of mandatory safety standards contained in · 

Parts 75 and 77 of the Secretary's regulations governing surface and underground portions of 

underground coal mines. 30 C.F.R. Parts 75 and 77. 

Shortly after the scheduled hearing began, the parties reached a comprehensive settlement 

disposing of all matters in issue. ·The parties settlement terms were approved on the record. The 

settlement terms were formalized in a Motion to Approve Settlement filed by the Secretary on 

June 8, 2009. Specifically, the parties have agreed to reduce the initial $76,555.00 totalcivil · 

penalty proposed by the Secretary to $57,813.00. 

The parties agreed to a partial settlement prior to the hearing. Pursuant to their 

agreement, Marfork has agreed to pay the original assessed civil penalty of $12, 778. 00 for the 

four 104(a) citations in issue in WEYA 2007-716. With respect to WEYA 2008-385, 

Marfork has agreed to pay a reduced civil penalty of $45,035.00 iti satisfaction of 

the subject five 104(a) citations, one 104(d)(l) citation, and one 104(d)(l) order. 

The settlement terms included deleting the significant and substantial designation in 

Citation Nos. 7260718 and 7260723. 

The parties agreed to settle 104( d)(l) Citation No. 7259269 and 104( d)(l) Order 

No. 7259270 in WEYA 2008-385 shortly after the hearing began. 104(d)(l) Citation 

No. 7259269 concerns an alleged violation of section 75.202(a), 30 C.F.R. § 75.202(a), that 

provides: "[t]he roof, face and ribs of areas where persons work or travel shall be supported or 

otherwise controlled to protect persons from hazards related to falls of the roof, face or ribs and 

coal or rock bursts." The citation was issued after the mine inspector observed numerous 

hazardous roof conditions including loose and broken rock brows and areas of wide roof bolt 

spacing. The cited violation was attributed to an unwarrantable failure. Although the 

unwarrantable failure characterization has remained, the parties agreed to reduce the proposed 

penalty assessment from $40,180~00 to $28,126.00 based on the vagaries of litigation and 

potential conflicts of proof. 

31 FMSHRC 924 
104(d)(l) Order No. 7259270.involves an alleged inadequate pre-shift examination, 

attributed to Marfork's unwarrantable failure, in violation of the mandatory standard in 

section 75.360(b), 30 C.F.R. § 75.360{b). The order was issued because the hazardous roof 

conditions cited in 104(d)(l) Citation No. 7259269 were not noted during the course ofseveral 

pre-shift exaniillations. Ag~ based on the uncertainties of litigation, the parties agreed to 

reduce the prqposed civil penalty for Order No. 7259270 from $15,971.00 to $11,180.00 .. · 

Section 1 lO(i) of the Mine Act 30 U.S.C. § 820(i), sets forth the statutory civil penalty 

criteria used to determiJ:ie the appropriate civil penalty to be assessed. In this regard, 

section 11 O(i) provides, in pertinent part: 

The Commission shall consider the operator's history of previous .violations, the 

appropriateness of such penalty to the size of the business of the operator charged, 

whether the operator was negligent, the effect on the operator' 5· ability to continue 

in business, the gravity of the violation, and the demonstrated good faith of the 

person charged in attempting to achieve rapid compliance after notification of a 

violation. 

As noted, the parties settlement terms were approved on the record as their agreement is 

consistent with the above statutory penalty criteria. Accordingly, c()nsistent with the parties~ 

agreement, IT IS ORDERED that Marfork Coal Company shall pay, within 45 days of the date 

of this decision, a total civil penalty of $57,813.00 in satisfaction of the eleven citations and 

orders in issue in these proceedings. Upon receipt of timely payment, the captioned contest and 

civil penalty matters ARE DISMISSED. 

Distribution: 

Jerold Feldnum 

Administrative Law Judge 

Benjamin Cbaykin, Esq., Office of the Solicitor, U.S. Department of Labor, 

1100 Wilson Boulevard, 22°d FlOor West, Arlington, VA 22209-2247 · 

-

Matthew Nelson, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Boulevard, Suite 310, 

Morgantown, WV 26501 

/rps 

31 FMSHRC 925 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19TM STREET, SUITE 443 

DENVER, CO 80202-2500 

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

July 28, 2009 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

CNIL PENALTY PROCEEDINGS 

Docket No. WEST 2008-660~M 

Petitioner A.C. No. 48:-00167-141338 

v. 

BLACK HILLS BENTONITE, LLC, 

Respondent Mills Plant 

Appearances: 

Before: 

DECISION 

Ronald Goldade, Conference and Litigation Representative, Mine Safety 

an:d Health Administration, Denver, Colorado, and Kristi L. Henes, Esq., 

·.·Office of the Solicitor, U.S. Department of Labor, Denver, Coforado, for 

the Petitioner; 

Karen L. Johnston, Esq., and Dana M. Bartels, Esq. Jackson Kelly, PLLC, 

De11:ver, Colorado, for the Respondent. 

Judge Manning 

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

of Labor ("Secretary"), acting through the Mine.Safety and Health Administration ("MSHA") 

against Black Hills Bentonite, LLC, pursuant to sections 105 and 110 of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). A hearing was held in 

Casper, Wyoming and the parties introduced tesmnony and documentary evidence. 

I. DISCUSSION AND FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

On August 7, 2007 fuspectoi Gene Scheibe issued Citation No. 6305591 under section 

104(a) of the Mine Act, alleging a violation of30 C.F.R. § 56.12016, or in the alternative 30 

C.F.R. § 56.14105, as follows: 

Electrically powered equipment shall be deenergized before mechanical work is 

done on such equipment. Power switches shall be locked out or other measures 

taken which shall prevent the equipment from being energized without the 

knowledge of the individuals working on it. An employee was attempting to 

remove mud from the Briquetter Screw Conveyor when his hand was caught up in 

31 FMSHRC 926 
the screw causing cuts and a. crushing injury. The conveyor was not locked out or 

tagged out. The disconnect was located in the restroom approx 50 to 75 feet 

around the comer from.the screw. Employees are trained in ~ockout tag out 

procedures. 

Scheibe determined that an injuryhad occurred that would likelybe pennanently 

disabling .. He determined that the violation was of a significant and substantial nature (S&S) and 

that the company's negligence was moderate. The Secretary proposes a penalty of $45,000.00 

for this citation. 

The parties stipulated to the fact that a violation of 30 C.F.R. § 56.14105 occurred which 

was significant and substantial. 1 The Respondent has challenged the level of negligence imputed 

to Black Hills Bentonite, as well as the gravity of the violation, for the purposes of assessing the 

penalty. Section 56.14105 provides: 

. . . .•. 

Repairs or m$tenance of machinery or equipment shall be performed. only after 

the power is off, and the machinery or equipment blocked against.hazardous 

motion. Machinery <?r equipment motion or activation is permitted to the extent 

that adjustments or testing cannot be performed without motion or activation, 

provided that persons are effectively protected from hazardous motion. 

Inspector Scheibe was at the Mills Plant operated.by Black Hills Bentonite 011 official 

business unrelated to this case when Ken Lisco, a Safety Trainer employed by Black Hills 

Bentonite, told him that an accident had occurred at the mine that day. (Tr.19, 59). The 

inspector immediately began an accident investigation and determined that Aaron O'Heam, an 

employee of the mine, had sustained an injury to his hand while attempting to. dislodge mud from 

the briquette screw conveyor machine while it was in motion. (Tr. 23-26). No witnesses were in 

the immediate vicinity at the time of the injury. 

Lisco interviewed O'Heamfollowing the accident as part of his internalinvestigation. 

Lisco testified that O'Hearn stated he had failed to "lockout/tagout" the briquetter screw 

conveyor before opening the safety lid and attempting to remove mud from the machine while it . 

was still operating. (Tr. 69). O'Heam's hand was caught, cut, and crushed by moving. 

components in the machine before he was able to dislodge it. (Tr. 69). O'Heam underwent 

reconstructive surgery for his injury, and returned to work approximately four months after the 

accident. (Tr. 72). He no longer works for the company and lives in another state. This 

conveyor is shut down at least once a day to clean mud from the screws. (Tr. 118). 

1 InspectOr Scheibe iitltially cited 30 C.F.R. § 56.12016 as the section that was violated, 

while making a note that 30 C.F.R. § 56.14105 may also have been violated. The parties . 

eventually jointly stipulated to a violation of 30 C.F .R. § 56.14105. (Stip. -~ 11 ). The Secretary 

has indicated that the citation has been modified to reflect this. (Tr. 137). 

31 FMSHRC 927 
Inspector Scheibe testified that the safety standard requires the individual performing 

maintenance to deenergize the equipment by turning off the main disconneet, put his lock on it, 

and fill out a tag that includes his name, the time, and a description of the work being performed. 

(Tr. 24-25). Additionally, the individual must block the machinery against hazardous motion. 

Scheibe initially determined that the level of negligence was "high", but later adjusted it 

to "moderate" due to mitigating factors, including the existence of a lockout and tagout policy, 

the availability oflocks and tags, and the employee training that was provided. (Tr. 28). 

Lisco testified that new employees are required to read the Black Hills Bentonite Safety 

and Discipline Manual ("Manual"); and sign the last page, indicating their obligation to abide by 

the policies therein. (Tr. 64-65)~ O'Hearn signed his Manual on March 1, 2007. (Ex. R-1}.The 

Manual includes the company's "Safety Lockout and Tagout Procedure," which is designed for 

compliance with 30 C.F.R. § 56.14105.2 (Tr. 65). Lisco testified that Black Hills Bentonite 

utilizes various means to implement its safety policy and communicate the lockout and tagout 

procedure, including the Manual, on-site training during an employee's introduction into the 

work environment3, equipment-specific trai.Jiin:g, annual refresher training courses, and posted 

signs and safety procedures. (Tr. 60-64). Additionally, Plant Manager Nathan Plume testified 

that he would have occasional one-on-one or group meetings where he discussed safety topics 

such as the lockout and tagout procedure. (Tr. 99-100). 

Commission administrative law judges assess penalties de novo taking into consideration 

the six penalty criteria in section l lO(i) of the Mine Act. Two of those factors are at issue: (I) 

negligence of the operator, and (2) the gravity of the violation. 

A~ Negligence 

Black Hills Bentonite contends that the level of negligence was improperly assigned. The 

negligence of a rank-and-file miner cannot be directly attributed to the mine operator for 

purposes of penalty assessment. Southern OhiO Coal Co., 4 FMSHRC 1459, 1464 (August 

1982). Rather, when "a rank-and-file employee has violated the Act, the operator's supervision, 

training and disciplining of its employees must be examined to determine if the operator ha8 

taken reasonable steps to prevent the rank-and-file miner's violative conduct" Id. · 

2 The Manual's "Safety Lockout and Tagout Procedure" cautions that any equipment is 

potentially dangerous even if it is "presumed to be shut down." (Ex. R-1 ). It also states that 

accidents occurring due to improper lockout and tagout most often "cause amputations, serious 

fractures, or death." Id. It also sets forth the procedures to be followed in detail. 

3 Lisco testified that the on-site introductory training included two videos which 

demonstrate the consequences of not following the lockout and tagout procedures. (Tr. 74-75). 

31 FMSHRC 928 
I find that BlackHillsBentonite's negligence was quite low. O'Heam was a classic rankand-file min~,. an hourly employee and relatively new hire, having been employed by Black Hills 

Bentonite for approximately 22 weeks. (Tr. 26, 103). 

Plant: Manager Plume testified that he was O'Heam's direct supervisor, and spent 

approximately 90% of bis work day walking the floor observing and talking with the miners 

regarding production, safety, and training issues. (Tr. 98, 123) 

Safety Trainer Lisco provided some additional supervision and conducted mandatory · 

training sessions that covered the lockout and.tagoutprocedure. O'Heam's .sigpature on the 

Manual is evidence of bis knowledge of, and obligation to abide by, the lockout and tagout 

procedure of Black Hills Bentonite. The New ;Miner Training Records indicate thaf O'Heam 

received training on March 14, 2007 regarding how to. correctly operate the briquetter screw 

conveyor. (Ex. R-4). This training included the lockout and tagout procedure specific to the 

briquetter screw conveyor. (Tr. 76-77). O'Heam's training was current and he had re~ the 

safety procedure included in the Manual less than six months prior. Inspector Scheibe' s Field 

Notes indicate that the correct lockout and tagout proced:ures were posted throughout the facility. 

(Ex. G-4). In spite of his training, O'Heam failed to utilize the locks and tags that were readily 

availabie. There is no evidence that. O'Heam had violated any safety procedures, or failed to 

initiate the.lockout and tagout procedure, at any time prior to the accident in question. Therefore, 

there was i:io reason for Black Hills Bentonite to believe that he would do so in this instance. 

While Inspector Scheibe testified :that he was not aware of any dis~ipline policy for 

failure to follow safety regulations, both Lisco and Plume testified that Black Hills Bentonite 

does have a progressive, discipline policy. (Tr. 37, 38, 90, 100-101). Plume testified that there is 

a disciplinary protocol which requires either a verbal or written reprimand for the first offense, 

and more. severe penalties for subsequent violations of the safety policy. (Tr. 100-101 ). ·Two of 

the more severe disciplinary actions are suspension without pay and emplo:Yment termination. 

(Tr. 101):. 

Given the level of supervision and training.provided by the operator, the record does not 

support a moderate level of negligence on Black Hills Bentonite's part. Black Hills Bentonite's 

mana.gement clearly understood .the importance of lockout and ta.gout procedures and 

comni.ullicated this information to its employees. I credit the company's evidence on this issue. 

In addition, the lockout and tagout stations at the plant were clearly marked and well maintained. 

(Ex. R-7 pp. 2, 6-10). As a consequence, I find that the negligence was very low. 

B. Gravity 

Black Hills Bentonite asserts that the Secretary improperly assigned the gravity of the 

violation, specifically the severity of the injury. Gravity is "often viewed in terms of the 

seriousnes.s ofthe violatipn." Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996). 

The seriousness of a violation can be examined by looking at the importance of the standard 

31 FMSHRC 929 
which was violated and the operator's conduct with respect to that standard, in the context of the 

Mine Act's purpose oflimiting violations and protecting the safety and health of miners. See 

Harlan Cumberland Coal Co., 12FMSHRC134, 140 (Jan. 1990) (ALI). 

I find the gravity of this violation to be high. The parties agree that the violation was 

S&S. (Stip. if 13). While the citation listed the severity of the injury as reasonably expected to· 

be permanently disabling, O'Hearn, nevertheless, retuined to work four months later: The safety . 

standard seeks to protect miners from being injured while repairing or performing maintenance 

on machinery or equipment. The regulation is of high importance· given the dangerou8 nature of 

servicing large powerful equipment while it is in motion. There is no dispute that O'Heatn 

suffered a severe injilry to his hand as a result of failing to follow the operator's lockout and 

tagout procedure with respect to the briquetter screw conveyor. While Black Hills Bentonite 

provided ample training to prevent such a circumstance, the severity of injury in this case, which 

potentially could have been much worse ifO'Hearn had not been able to dislodge his hand, lends 

itself to a finding of high gravity. 

II.· APPROPRIATE CIVIL PENAL TIES 

The penalty proposed by the Secretary was specially.assessed and is too high for this 

violation, especially since I have reduced the level of negligence attributable to the operator. 

Although the gravity was high, the operator took all reasonable steps to prevent this type of 

injury. Section l IO(a) of the Mine Act sets forth six criteria to be considered in determining 

appropriate civil penalties. Black Hills Bentonite wa8 issued l 5 citations at the Mills Plant in the 

24 months prior to August 8, 2007. (Ex. G-9). In 2007there were 75,772 hours worked at the 

Mills Plant, and somewhere between 200,000 and 300,000 hours worked at all Black Hills 

Bentomte facilities.4 (Stip. if 9, Ex. G-8). My findings with respect to negligence and gra\rity are 

set forth above. The penalty assessed in this decision will not affect Black Hills Bentonite's 

ability to continue in business. Respondent demonstrated· good faith abating the cited condition. 

(Stip. if 7, 8). Based on the penalty criteria, I find that the penalty set forth below is appropriate. 

ID. 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. 

Citation No. 30.C.F.R. § Penalty 

6305591 56.14105 $900.00 

4 The number of hours worked in 2007 for all Black Hills Bentonite operations was 

determined by taking the penalty points from ~·controller size" designation on the Proposed .• ·. 

Assessment Form and then· cross referencing that with the corresponding annual hours worked on 

Table N-Size of Controlling Entity-Metal/Nonmetal Mine at 30 CFR § 100.3(b ). 

31 FMSHRC 930 
For the reasons set forth above Black Hills Bentonite, LLC, is ORDERED TO PAY the 

Secretary of Labor the sum of$900.00 within 30 days of the date of this decision.5 

Richard W. Manning 

. Administrative Law Judge 

Distribution: 

Ronald Goldade, Conference & Litigation Representative, Mine Safety and Health 

Administration, P.O. Box 25367, Denver, CO 80225-0367 (Certified Mail) 

Kristi Henes,,~~q:, Offi<:e ~f the Solicitor, U.S. Department of Labor, 19.99 Broadway, Suite 

16,00, Den.Yer, c9. 80202 (Certified Mail) 

Kare~ Johnston, Esq, aD:d Dana B,~els, Esq, Jackson Kelly PLLC, 1099 18th Street, Suite 2150, 

Denver, CO 80202-1958 (Certified Mail) · · 

5 Payment should be sent to Mine Safety and Health Administration, U,S. Depaqment of 

Labor, P.O. Box 790390, St. Louis, MO 63179-0390 , . . 

31 FMSHRC 931 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500 

Washington, DC 20001 ·2021 

July 30, 2009 

JIM WALTER RESOURCES, INC. CONTEST PROCEEDING 

Contestant 

v. 

Docket No. SE 2009-500-R 

Citation No. 7696888; 05/01/2009 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMlNISTRATION (MSHA) 

No. 7Mine 

Mine ID 01-01401 

Appearances: 

Before: 

Respondent 

DECISION 

DavidM.Smith,Esq.,WarrenB.Lightfoot,Jr.,Esq.,andA.ChristineGreen, 

Esq., Maynard, Cooper & Gale, P.C., Birmingham, Alabama, and Guy 

Hensley, Esq., Brookwood, Alabama on behalf of the Contestant; 

Uche Egemonye, Esq., and Thomas Grooms, Esq., Office of the Solicitor, 

U.S. Department of Labor, Atlanta, Georgia and Nashville Tennessee, 

respectively, on behalf of the Respondent. 

Judge Melick 

This case is before me upon Contestant's request for expedited hearings to challenge Citation 

Number 7696888 issued pursuant to section 105(d) of the Federal Mfue.Safefyarid HealthAct of 

1977, 30 U.S.C. § 801 et seq., the "Act". The citation alleges that Jim Walter Resour~es Inc., (JWR) 

was operating its No. 7 Mine with an unapproved ventilation plan in violation :of3() C.F;R. § · 

75.370(a)(l).1 More specifically the citation charges as follows: · 

Conceptual approval was given on April 3, 2008 for the sealing plan 

of D, E, F, G, H, and I panels in the northeast gob contingent in part 

upon compatibility with requirements in the rule-making process for 

sealing. The rule making process has been completed and it has been 

determined that the previously approved conceptual plan does not 

comply with all requirements contained in the Sealing of Abandoned 

Areas, Final Rule and 30 CFR 75.364. Therefore, the conceptual 

approval was rescinded. The plan does not adequately address the 

1 The cited standard requires, in· essence, that the mine operator develop and f~llow a 

ventilation plan approved by the Secretary. 

31 FMSHRC 932 
ability to access and examine the seals after construction, not only for 

sampling procedures, but also for inspection during and after the . 

curing process. Discussions concerning the issues have been·· 

conducted and the process is at an impasse. By letter dated April 23, 

2009 and received via fax on April 27, 2009 the Operator has adopted 

a ventilation plan containing seal provisions required by 75.371 (ff) 

. that cannot be approved. 

On March 28, 2008, JWR submitted a ventilation plan supplement (Plan Supplement)to the 

Department of Labor's Mine Safety and Health Administration (MSHA)(Govt, Exhs. No. 3 .and 5). 

As noted in the citation, on April 3, 2008, MSHA approved the Plan Supplement conditioned upon 

compliance with final rules regarding the sealing of abandoned areas (Final Rules), not yet published 

but then under consideration by the Secretary. 2 The Final Rules were published on April 18, 2008, 

and introduced a requirement that mine operators must "maintain and repair seals to protect miners 

from hazards of sealed areas"(Govt. Exb,. No. 9). MSHA there':lfier, on December 16, 2008, 

rescinded its conditional approval of the Plan Supplement (Govt. Exh. No. 3). On April 23, 2009,. 

JWR adopted the rescinded Plan Supplement under procedures set forth inMSHA' s Program Policy 

Manual to accommodate mine operators who wish to contest disputed ventilation plans (Govt. Exh. 

No. 15). Accordingly, by agreement between MSHA and JWR, MSHAinspector Harry Wilcox 

thereupon issued the citation at bar on May 1, 2009. On the same day, JWR abated the citation by 

adopting its approved ventilation plan. On May 9, · 2009, JWR filed the instant notice of contest 

challenging the citation and the decision to rescind the Plan Supplement. 

The Secretary maintains that the basis for her disapproval of the Plan Supplement is that, if 

implemented, it would violate the mandatory standards at 30 C.F.R. §§ 75.364(b)(4),.75.364 (c)(3) 

and 75.337(a). As noted, Section 75.337(a) represents the codification of one of the final rules 

published following the conditional approval of the Plan Supplement. 

When the Secretary disputes a ventilation plan proposed by a mine operator, the Secretary 

has the burden of proving the unsuitability of the plan. See Secretary v. Peabody Coal Company 18 

FMSHRC 686 (May 1996), aff'd l 11F.3d 963 (D.C. Cir. 1997). The Commission has defined 

"suitable" as "matching or correspondent", "adopted to a use for purpose", "fit", "appropriate from 

the view point of ... convenience, or fitness: proper, right," "having the necessary qualifications: 

meeting requirements." Peabody 18 FMSHRC at 690 quoting Webster's Third New International 

Dictionary 2286 (1986). Clearly, if a plan proposed by the mine operator would, if implemented, 

violate mandatory standards then it would also be unsuitable. · 

John Urosek has a Bachelor of Science degree in mining engineering from Pennsylvania State 

University and is a registered professional engineer. He is presently MSHA's chief of mine 

emergency operations. In that capacity he is responsible for administering MSHA 's seal approval 

2 The Final Rules were being developed following explosions and seal failures at the 

Sago and Darby mines resulting in multiple fatalities (Govt. Exh. No. 28 p. 7). · 

31 FMSHRC 933 
program. He was also chairman of the committee which developed the Final Rules for the sealing 

of abandoned areas. Mr. Urosek is eminently qualified as an expert in mining engineering and, in 

particular, in regard to mine ventilation and mine explosions (Govt. Exhs. No. 20 and 28). 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); Akzo Nobel Salt, Inc. et.al. v. Federal Mine Safety and Health Review Commission 

and Secretary of Labor, 212 F.3d 1301 (2000); Michigan Citizens for Indep. Press v. Thornburgh, 

868F.2d1285, 1293 (D.C. Cir. 1989); Homemakers N. Shore, Inc., v, Bowen 832 F.2d408, 413 (7th 

Cir. 1987); RAG Cumberland Resources v: FMSHRC, 272 F.3d 590, 598 (D.C. Cir. 2001). 

Urosek explained in his direct examination that JWR had requested a change to the mine 

ventilation plan for its No. 7 Mine to allowthe use of seals to separate the active longwall panel from· 

the adjacent mined-out fongwall panels (Govt. Exh. No. 28).3 As the active longwall begins to mine, 

these seals, he explained, would not be accessible and could not be examined for hazardous 

conditions, could not be accessed to test for methane, and could not be maintained or repaired. 

Urosek explained that MSHA could not approve these changes because, if made, they would violate 

themandatorystandardsat30C.F.R. § 75.364(b)(4), 30C.F.R. § 75.364(c)(3), 30C.F.R. § 75.337(a) 

and 30C.F.:R. § 75.336(aj(I)(II). 4 

30 C.F.R. § 75.364(b)(4) provides as follows: 

Hazardous conditions. At least every 7 days, an examination for hazardous conditions at the 

· following locations shall be made by a certified person designated by the operator: ... ( 4) at 

each seal along return and bleeder air courses and at each seal along intake air courses not 

examined under§ 75.360(b)(5). 

§ 75.364(c)(3) provides as follows: 

Measurements and tests. Atleast every 7 days a certified person shall-... (3 }test for methane 

in the return entry nearest each set of seals immediately after the air passes the seals. 

30 C.F.R. §. 75.337(a) provides that "[t]he mine operator shall maintain and repair seals to 

protect miners from hazards of sealed areas." 

The Secretary maintains that the language · of the referenced standards is plain and 

unambiguous and should be enforced as written. I have no difficulty in agreeing with the Secretary 

3 In order to better expedite these proceedings Mr. Urosek's directtestimony, as well as 

that of other experts in this case, was presented in written form before trial (Govt. Exh. No. 28). 

4 The Secretary, upon subsequent receipt of additional information from JWR, 

acknowledged at hearings that the latter standard would not be violated by implementation of the 

Plan Supplement. · 

31 FMSHRC 934 
and find that indeed the plain language ofSections.75.337(a), 75.364(b)(4), and 75.364(c)(3) must 

be enforced as written and requires that JWR regularly examine, milntain and repair the proposed 

seals as well as perform the required methane tests. JWR acknowledges that, as the active longwall 

in its No. 7 Mine begins to mine, the proposed seals will not be accessible. It will therefore no~ be 

able to examine the seals for hazardous conditions, gain access to test for methane, maintain the 

seals, and, if structural defects are discovered, replace the seals. In sum, under its Plan Supplement~ 

JWR would not be able to comply with the seal· standards. The Plan Supplement, therefore, is not 

"suitable" under Section .75.370(a){l), Consequently, the conditional approval of the Plan 

Supplement was properly rescinded by the MSHA district manager. 

It is a cardinal rule of construction, that if a regulation's meaning is plain, the regulation 

cannotbe 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. C~. 

1984) (citing Udall v. 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 }Jank, N.Na, 530 U.S. 1, 

6 (2002). The Commission has also held that, where, as here, "the meaning of a standard is clear 

based on its plain language,jt follows that the standard provides the operator with adequate notice 

ofits requirements." Jim Walter Resources, 28 FMSHRC 579, 595 (August 2006); LaFarge Constr. 

Materials, et.al. 20FMSHRG1140, 1144(October1998). · 

Moreover, no language in the standards at issue sets forth or even suggests any exception to 

the requirements that seals be examined for hazardous conditions, that seals be maintained and 

repaired; and that the return entry nearest each set of seals be tested for methane. As a result, the 

standards cannot be read as containing such an exception. See Thunder Basin Coal Co v. F'MSHRC, 

56 F .3d 1275, 1280 (l ot1t Cir. 1995). If the Secretary intended to exempt the seals that JWR proposed 

in its Plan Supplement from the requirements ofSections·75.337(a), 75.364(b)(4) and 75.364(c)(3), 

these sections could have so provided. See Russello v. United States, 464 U.S. 16, 23 (1983). 

Contestant, while professing to also argue that the plain langm1ge of the standards should 

prevail, in actuality has devoted the great bulk of its .case in attempting, fuOOUgh extrinsic evidence, 

to create ambiguities where none.exist. 5 By then citing this extrinsic evidence, Contestant claims that 

it is not receiving fair notice. of what is required by the stan~ds at issue. This argument is, of 

course, the equivalent of a classic "strawman" argument and Cfil1. not withstand close scrutiny. In any 

event, while I am certainly sympathetic with Contestant's understandable prior corifusion 

engendered.by the Secretary's prior inconsistent enforcement of Section 75.364, I cannot find that 

Contestant has now. failed to have received fair notice of what is required by the standards at issue. 

Since this proceeding involves only a challenge to the .disapproval of a ventilation plan pursuant to 

procedures set forth in MSHA's Program Policy Manual, it is not in the same posture as a typical 

enforcement proceeding under the Act. Unlike enforcement proceedings where punitive penalty. 

5 The Contestant had also earlier claimed that the Secretary failed to negotiate in good 

faith but specifically withdrew that claim at hearings. 

31 FMSHRC 935 
sanctions are imposed and where the question of whether fair notice has been provided regarding the 

application of a mandatory standard may be a relevant issue, in these proceedings the Secretary is 

actually providing clear advance notice ofhow the mandatory standards are now, and will be, applied 

in the future. Such notice has not only been provided by the plain· meaning of the language of 

Sections 7 5 .364 and 7 5 .337 (a) but also by the issuance of the letter of disapproval on December 16, 

2008, by the issuance of the citation at bar on May 1, 2009, by these proceedings and reconfirmed 

by the testimony of the Secretary's designee, Mr. Urosek. Under the circumstances JWR cannot 

claim in this case that it has not received fair notice before any punitive enforcement action has been 

taken. See Akzo Noble Salt, Inc. at 1304-1305. 6 

While apparently acknowledging that the language of Section 75.364 does indeed prohibit 

it from using internal seals, JWR nevertheless argues, in effect, that by issuing a memorandum in 

1993 ( Gov't Exh. No. 25) effectively waiving enforcement of 75 .364 at its No: 7 Mine, the Secretary 

is barred or estopped from changing that policy. As explained by Mr. Urosek, the mining disasters 

of2006 prompted the Secretary to more strictly enforce· the provisions of section 75.364. A lack of 

prior enforcement does not, in any event, constitute a defense to a violation and does not estop the 

govemmentfroni prosecuting the violation.· Emery Mining Corp. v. Secretary 744 F;Zd 1411, 1416 

(10th Cir. 1984); U.S. Steel Mining Co., 15 FMSHRC 1541, 1546-47 (August 1993); Nolichuckey 

Sand Co., 22 FMSHRC 1057; 1063-64 (September 2000). As previously n:oted, moreover~ this is 

not an actual enforcement proceeding and JWR has now been given, prior to any actual enforcement 

action, clear notice of the Secretary's change in policy to a strict enforcement of Section 75.364. For 

all the above reasons the Contestant's·argument must in any event be rejected. 

I also have not disregarded JwR's assertion that Section 337(a) is ambiguous based on 

language in the preainble to the Secretary's Final Rules published in 2008. However it is well 

established law that language in a preamble cannot create an ambiguity where none exists in the plain 

language. See Pfizer Inc. v. Heckler, 735 F.2d at 1509 ("Where the enacting or operative parts.of 

a statute are unambiguous, the meaning of the statute· cannot be controlled by· language in the 

preamble") Association of American Railroads v. Castle, 562 F.2d 1310, 1316 (D.C. Cir. 1977); 

Alber'marle Corp. v. Herman, 221 F.3d 782, 786 (51h Cir. 2000) "The preamble need be consulted 

only when, unlike here, the regulation'·s plain language is ambiguous");Jogi v. Voges, 480 F.3d 822, 

834 (7th Cir. 2007) ("It is a mistake to allow general language of a preamble to create an ambiguity 

in specific statutory or treaty text where none exists. ·Courts should look to materials like preambles 

and titles only if the text of the instrument is ambiguous"). 

It is also noted that, in any event, the Secretary's authorized decision maker, Mr. Urosek, 

testified that what JWR calls an "exception" to the Final Rules appearing in the preamble applies 

only to "spontaneous combustion" mines and explained at trial why that language only applies to 

6 As the Secretary noted at hearings, the proper forum for JWR's dispute her~in is under 

a Petition for Modification proceeding pursuant to Section lOl(c) of the Act. Under such a 

proceeding, JWR would have the opportunity to prove that its alternative to compliance with the 

standards at issue herein would be just as safe as compliance with these standards. 

31 FMSHRC936 
such mines. It is undisputed that the No. 7 Mine is not a "spontaneous combustion" mine. Urosek 

explained that mines that are susceptible to spontaneous combustion. are provided an exception 

because such mines must comply with other rules that afford miners the same protection from 

hazards (Gov't Exh. No. 28). 

JWR also argues that MSHA intended to depart from its practice of only exempting seals in 

"spontaneous combustion" mines from the maintenance, examination, and. testing requirements. 

JWR points out that MSHA;s 2007 Procedure Instruction' Letter (PIL) contained language that 

exempted seals in spontaneous combustion mines from the maintenance, examination, .and testing 

requirements, whereas the 2008 PIL omits this language. As Mr. Urosek explained, however, the 

omission of this phrase did not indicate a change in the interpretation of75.337(a) to recognize the 

blan.ket exception to the maint.enance. and r~pair of seals which JWR .seeks to impose on MSHA. 

(Gov't Exhs. No. 28 and 15). Further, where a new version of a standard eliminates a provision in 

a previous version, such elimination does not establish a new intent, especially where, as here, the 

result is simply silence on the matter. See US v. Wilson 290 F.3d 347, 360 (D.C. Cir 2002), cert. 

denied, 537 U.S. 1028 (2002). 

In any event, directives contained in agency materials such as instruction manuals, 

memoranda, opinion letters~-and enforcement guidelines are not entitled to deference where, as here, 

the interpretation or policy statement cannot be squared with the plain language of mandatory 

standards. Christensen et al. v. Harris County, et al. 529 U.S. 576 (2000); Brockv. Cathedral.Bluffs 

Shale Oil Co. 796 F.2d 533, 538-39 (D.C. Cir.1986); Secretaryv. Utah Power and Light Company, 

11 FMSHRC 1926 (October 1989). 

Under all the circumstances, it is clear that JWR's proposed Plan Supplement, if 

implemented, would be in violation of the standards at 30 C.F.R. §§ 75.364(b), 75.364(c)(3) and 

75.337(a) and that the Secretary has therefore met her burden of proving that the Plan Supplement 

is "unsuitable". 

ORDER 

Citation No. 7696888 is affirmed and Contest Proceeding Docket No. SE 2009-500-R is 

hereby dismissed. 

Gary Melick ; 

Administrative Law Ju ge 

202-434-9977 

31FMSHRC937 
Distribution: (Facsimile and Certified Mail) 

David M. Smith, Esq.,Warren B. Lightfoot, Jr. Esq., and Christine Greene, Esq., Maynard, Cooper 

& Gale, P.C., 1901 Sixth Ave. North, Suite 2400, Birmingham, AL 35203 

Guy Hensley, Esq., Jim Walter Resources, Inc., P.O. Box 133, Brookwood, AL 35444 

Uche Egemonye, Esq:, Office of the Solicitor, U.S. DepartmentofLabor, 61 Forsyth Street SW, 

Room 7Tl0, Atlanta, GA 30303 . . . 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

/lh 

31 FMSHRC 938 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500 

Washington, DC 20001 ·2021 

Telephone No.: 202-434-9980 

Telecopier No.: 202-434-9949 

August 7, 2009 

MILESTONE MATERIALS, CONTEST PROCEEDING 

Div. ofMATHY CONSTRUCTION 

Contestant Docket No. LAKE 2009-432-RM 

. Citation No. 6494042; 04/14/2008 

v. 

SECRETARY OF LABO~ 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Respondent 

Mine: Plant #66 

Mine ID 47-03274 

DECISION 

Appearances: Rafael Alvarez, U.S. Department of Labor, Chicago, Illinois, on behalf of the 

Respondent 

Adele L. Abrams, Esq., Office of Adele L. Abrams, P.C., Beltsville, Maryland, on 

behalf of the Contestant 

Before: Judge Barbour 

In this proceeding, Milestone Materials, Division ofMathy Construction ("Milestone''), 

challenges the validity of Citation No. 6494042, a citation that, as amended, alleges Milestone 

violated 30 C.F.R. § 46.6(a), a mandatory training standard for newly-employed, experienced 

miners. Milestone asserts the citation is invalid because the person alleged in the citation to lack 

the required training is not a "miner'' as that word is defined in Part 46. The Secretary responds 

that the citation is valid in all respects. The case was tried on June 24, 2009. 

After the trial adjourned and the transcript was received, the parties advised me they had 

resolved their differences. Counsel for the Secretary then filed a motion to dismiss, stating that 

"[a]:fter reviewing the facts ... and in light of ... new information," Citation No. 6494042 has 

been vacated. Motion to Dismiss 1. Milestone does not oppose the motion. Id. 

31 FMSHRC 939 
!· .. · 

ORDER 

WHEREFORE, the citation at issue having been vacated, this proceeding is moot and IS 

DISMISSED. 

Distribution: (Certified Mail) 

J)H/,(tf~ David F. Barbour 

Administrative Law Judge 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., 8th 

Floor, Chicago, IL 60604 

Adela L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D, 

Beltsville, MD 20705 

/ej 

31 FMSHRC 940 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE N. W., SUITE 9500 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

WASIDNGTON, D.C. 20001 

August 21, 2009 

CIVIL PENALTY PROCEEDING. 

Docket No. SE 2008-130-M 

A.C. No. 40-00170-13.2631 

EAST TENNESSEE ZINC COMP ANY, LLC: Immel Mine 

Respondent 

EAST TENNESSEE ZINC COMPANY, LLC: 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSH!\), 

Respondent 

CONTEST PROCEEDINGS 

Docket No. SE 2007-438-RM 

Citation No. 7775339; 08/06/2007 

Docket No. SE 2007-439-:-RM 

Citation No. 7775341; 08/06/2007 

Immel Mine 

Mine ID 40-00170 

DECISION 

Appearances: Chiistian P. Barner, .Esq~, Office of the SoliCitor, U.S. Department of Labor, 

Nashville, Tennessee, on behalf of the Petitioner; ·. 

Before: 

John Flood, Esq., Ogletree, Deakins, Nash Smoak & Stewart, P.C., Washington, DC, 

on behalf of the Respondent. 

Judge Melick 

This case is before me upon a petition for civil penalty (consolidated with related contest · 

proceedings) filed by the Secretary of Labor pμrsuant to section 105( d} of the Federal Mine Safety 

and Health Act of1977, 30U~S.C. § 801 et seq., the"Act," charging East Tennessee Zinc Company, 

LLC, (East Tennessee) with two violati()ns of mandatory standards and proposing civil penalties of 

$3,806.00 for the violations. The general.issue before me is whether East Tennessee violated the 

cited standards and, if so, what is the appropriate civil penalty to be assessed in acco~dance with 

section l IO(i) of the Act. Additional specific issues are addressed as noted. · 

Citation Number 7775339alleges a "significant and substantial" violation of the standard at 30 

C.F.R. § 57.20001 and charges as follows: . 

31FMSHRC941 
During an inspection of the topside of the 'big cage", located in the 1600 foot main shaft, 

marijuana was discovered. The drug was located in the center of the cage in a cigarette 

package. This site is a regular work area for contractor miners on both 12 hour shifts on 

various days per week. A hazard of the miners working at this site under the influence of 

marijuana could contribute to a serious injury or fatality. The confirmation of the marijuana 

blunts was inade by the local sheriffs department drug laboratory~ The mine operator did not 

ensure the contractor conducted. any type of drug testing while on this site since April of 

2007. The mine operator did not review the contractors policies or procedures concerning 

drug testing nor did they observe the employees to ensure they were in compliance with this 

standard. 

The cited standard provides in relevant part that" ... narcotics shall not be permitted ... in 

or around mines." 

It is undisputed that, during the course of his accident investigation at the Immel Mine on 

August 6, 2007, Inspector Thomas Galbreath of the Department of Labor's Mine Safety and Health 

Administration (MSHA) found marijuana ''blunts" secreted in a cigarette package and hidden in an 

obscure area of the "big cage" (an elevator located in the 1600-foot main shaft of the mine) where 

employees of an independent contractor had been working. 

While there is a legitimate dispute and a conflict among authorities as to whether marijuana 

is a "narcotic", I find in this case that, in any event, Respondent had not "permitted" the substance 

to be on its mine premises. 1 Accordingly there was no violation as charged. · · 

It is well established, that 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, 832F.2d 1062, 1066 (9th Cir. 1987). See also UtahPower&Lighi Co., Ii FMSHRC1926, 

1930 (October 1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (August 1993). 

The regulation at bar does not define the word "permitted". In the absence of an express 

definition or an indication that the drafters intended a technical usage, the Commission has relied 

on the ordinary meaning of the word to be construed Peabody Coal Co. 18 FMSHRC 686, 690 

(May 1996), aff'd, 111F.3d963 (D.C. Cir. 1997) (table); Thompson Brothers Coal Co. 6 FMSHRC 

2091, 2096 (September 1984). In this regard the Commission has utilized Webster's Third New 

International Dictionary (Unabridged) as tb.e source of the · ordinary me'aning of words. 

Accordingly, I look· to that source for the ordinary definition of the word "permit". "Permit" is 

defined therein as ''to consent to expressly or formally', "grant leave for or the privilege of',"allow", 

''tolerate", "to give (a person) leave", "authorize", ''to make possible"," to give an opportunity''. 

Webster's Third New International Dictionary (Unabridged) 1683 (2002). · 

1 Respondent's stipulation at hearings that marijuana was a "narcotic" was subsequently · 

withdrawn with the consent of the Secretary. ·. · · · · 

31 FMSHRC 942 
Accordingly, based on the ordinary definition of the term "permit", I find that the language 

of the cited standard is clear and unambiguous and that it must be enforced as written. Since there 

is no evidence in this case that Respondent acted in any of the enumerated ways and, indeed, since 

the Secretary has acknowledged that Respondent did not actively permit marijuana to be in its mine 

nor consent to, nor authorize, its presence, l find that there was no violation as Gharged2

• · . 

In reaching this conclusion I have not disregarded the Secretary's proffer of an alleged. 

"passive" definition of the word "permitted" and reference to two judicial decisions in purported 

support of that proffer i.e. SEC v. Bolla, 401 F. Supp2d 43, 62-63 D. D.C. 2005) and National 

Realty and Constr. Co., Inc. v. OSHRC,489F.2d1257, 1264 andn.27 (D.C. Cir. 1973). However, 

these judicial interpretations 'Here necessarily derived from the. unique legal and factual 

circumstances of those cases and Ca.ntlot be considered to be the "ordinary'~ definition of the word· 

"permitted". Indeed, the Circuit Court in the latter case recognized that the word permission "usually 

connotes knowing consent" and the usage of the word in a passive sense ''maybe loose." 

Citation Number 7775341 alleges a violation of the standard at 30 C.F.R. § 48.3(t) and 

charges as follows: · · 

The operator did not have a copy of the MSHA approved training plan available at the mine 

site for MSHA and for review by the miners and the representatives. A hazard of the 

operator attempting to train onsite and not having the plan to. follow to assure the miners 

receive the proper training exists. This hazard could cause a disabling injury. to . the . 

employees. The operator. has a copy of the plan on file m. the corporate office iocated . 

approximately five miles from this mine. Hazard, site sp!!cific and refresher training are 

done on this site at various times. · 

The cited standard, 30 C.F.R. § 48.3(t), provides as relevant hereto, that "[t]he operator shall 

make a copy of the MSHA approved training plan available at the mine site for MSHA inspection. 

" 

There is no dispute that on August 1, 2007, during the course of a multi-day investigation 

into an accicient at the Immel Mine, MSHA Inspector Rick Boggs asked Respondent's safety 

manager, Dennis Hillman, for a copy of East Tennessee's MSHA approved training plan. It is also 

undisputed that Mr. Hillman told Inspector Boggs that a copy of the ~ubject plan was available at the 

Respondent's Beaver Creek office. The office is located less than five miles from where the request 

was made and is a part of the Immel Mine under the Ac;;t. The citation was then issued without 

waiting for the plan to be produced. 

2 In apparent recognition of the difficulties of etiforcing the current standard,. the . 

Secretary has proposed new rules that would set forth precisely which substances are prohibited. 

It would also place the onus of possession of banned substances on the miscreant miner and · 

''provide clear and actionable guidance for mine operators". 73 F.R.52136 (September 8, 2008). 

31FMSHRC943 
·Respondent maintains that since the Beaver Creek office is, under Section 3(h)(l )( c) of the 

Act, a part of the Immel Mine and that since it is undisputed that a copy of the subject training plan 

was available at the Beaver creek office, there was no violation as charged. 3 The Secretary does not 

disagree that the Beaver Creek office is, under the Ad, a part of the Immel Mine but argues that 

since it has given the Beaver Creek office a Federal mine identification number different from that 

given to the Immel Mine, the Beaver Creek office is not part of the Immel Mine "site" for purposes 

of the cited standard. 

East Tennessee responds by asserting that it was not provided fair notice of this definition 

of "mine site" now advanced by the Secretary. Whether or not the Secretary's interpretation is 

entitled to deference as a reasonable or permissible reading of her regulation, I agree that fair notice 

of the Secretary's interpretation of the term "mine site" was not provided.4 · 

Where an agency imposes a fine based on its interpretation, a separate inquiry may arise 

concerning whether the respondent has received "fair notice" of the interpretation it was fined for 

violating. Energy West Mining Co., 17FMSHRC 1313, 1317-18(August 1995). "[D]ueprocess . 

. . prevents ... deference from validating the application of a regulation that fails to give fair warning 

of the conduct it prohibits or requires." Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir 

1986). An agency's interpretatiorimay be "permissible" but nevertheless fail to provide the notice 

required ilnder this principle of admiriistrative law to support imposition of a civil satiction. General 

Elec., 53 F.3d at 1333-34. The Cominission has not required that the operator receive actual notice 

of the Secretary's mterpretation. Instead, the Commission uses the.test of''whether a reasonably 

prudent person familiar with the mining indilstry and the protective purposes of the standard would 

haverecognized the specific prohibition or requirement of the standard." Idea/Cement Co., 12 

FMSHRC 2409, 2416(November1990). 

3 Section 3 of the Act provides in part as follows: 

(h)(l} "coal or other mine" means (A) an area of land from which minerals are 

extracted in nonliqilid form ... ·and ( c) lands, excavations, underground 

passageways, shafts, slopes, tunnels and workings, structures, facilities, 

equipment, machines, tools, or other property including impoundments, retention 

dams, and tailings ponds, on the surface or underground, used in, or to be 

· used in,· or resulting from, the work of extracting such minerals from their 

natural deposits in nonliquid form .... (Emphasis added). 

4 Because the Secretary has also advocated different definitions of the term "mine site", 

see e.g. Secretary v. National Cement Company of California Inc. et al. No. 08-1312, slip op at 

16 (D.C. Cir. July 21, 2009), there are also serious questions as to whether this interpretation 

represents the Secretary's "fair and considered" judgement and would, in any event, therefore 

merit deference. SeeAkzoNoble Salt, Inc. et al. v. FMSHRC etal. 212 F.3d 1301, 1304 (D.C. 

Cir. 2000). 

31 FMSHRC 944 
There is no. evidence that the Respondent herein or anyone in the mining comnmnity ever 

received actual notice that the Secretary's arbitrary interpretation of the term "mine site" is limited 

geographically to areas only within a single Federal mine identification number. I further find that 

a reasonably prudent person familiar with the mining industry and the protective purposes of the 

standard would. not have recognized the specific requirement that a copy of the training plan must 

be made available other that at the "mine" as defined in the Act and, m particular, wollld ~e based 

on a mine identification number-: -a number which , in any event, does not provide any definitive 

geographic boundaries. It is unreasonable to.anticipate, without prior notice, that the Secretary's 

definition of''mine site" would differ from the definition of''mine" under the Act and be limited to 

only areas with the same Federal identification number. Fair notice was not afforded in this case 

and, accordingly, Citation No. 7775341 must be vacated. 

Even assuming, arguendo, that fair notice had been provided and that the Beaver Creek office 

is found not to be a part of the Immel Mine "site", I find that the copy of the training plan kept at the 

mine office less than five miles away was "available" within the meaning of the cited standard. It 

is first noted that the cited standard does not require that a copy of the plan be actually kept at the. 

"mine site" but only that it be made available for inspection. Furthermore, there 1s no time set forth 

in the standard within which the mine operator must make the plan available for inspection. The 

time must therefore be "reasonable" under the circumstances. See Steele Branch Mining, 15 

FMSHRC 597, 602 (April 1993). 

The MSHA inspection group remained at the Immel Mine for several days after its request 

for a copy of the plan and, since according to the undisputed testimony of MSHA Inspector 

Galbreath, the need for a copy of the plan was only for purposes of comparison with the actual 

training that was being performed at the mine, there was clearly no urgent need for a copy of the 

plan. It may also reasonably be inferred that Respondent could have obtained a copy of the plan 

within minutes of its request since it was located at the mine office less than five miles away.5 I find 

that it is therefore reasonable to infer that a copy of the plan was accordingly "available" within the 

meaning of the cited standard. 

The evidence is also uncontradicted that, when MSHA representatives first requested a copy 

of the training plan, there was in fact a copy located at the ''mine site" as interpreted by the Secretary. 

This copy of the plan was kept in the file cabinet of mine manager Steele's locked office. As a 

condition precedent to enforcing this standard I find that it is incumbent upon MSHA representatives 

to request the plan copy from the mine's authorized custodian of records or from the management 

official then in charge of the mine. This is essential since only certain mine employees could be 

expected to know the location of such documents. MSHA 's failure to make a proper request for a 

5 In this regard, it is noted that under the Secretary's profferaj definition, .the training 

plan for the Young .Mine would be "available" at the Young ''mine site" even though kept at the. 

Beaver Creek office located 1.6 miles away, because they have the same Federal mine 

identification number. · 

31 FMSHRC 945 
copy of the training plan should, for this additional reason, also result in vacating the citation. 6 

ORDER. 

Citations Nurnber7775339 and 7775341 are vacated and this ci 

The related contest proceedings, Dockets No SE 2007-438-R and 

Distribution: (Certified Mail) 

penalty proceeding is dismissed. 

2007-439-Rareherebygranted. 

ChristianP. Barber, Esq., Office of the Solicitor, U.S. DepartmentofLabor, 618 Church Street, Suite 

230; Nashvilie, TN 372}9-2456 

John Flood, Esq., Ogletree, Deakins, Nash Smoak & Stewart, P.C., 2400 N Street, NW, 5th Floor, 

Washington, DC 20037 

/1h 

6 It iS also noted that in termiriating the citation the Secretary stated that "the mine 

operator now has a copy of the approved training plan on site for review by MSHA, miners and 

representatives". Since it is undisputed that in fact there always had been a copy of the approved 

training plan on site, nothing in fact had to be performed in order to abate the citation. · · · · 

31 FMSHRC 946 . 
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 20001-2021 

TELEPHONE: 202-434-9964 / FAX: 202-434-9949 

MACH MINING, LLC., 

Contestant 

SECRETARY OF LABOR, 

MINE SAFETY & HEALTH 

ADMINISTRATION, (MSHA) 

Respondent 

July 15, 2009 

CONTEST PROCEEDINGS · 

Docket No. LAKE 2009-323-R 

Citation No. 8414211; 02/12/.2009 

Docket No. LAKE 2009-324-R 

Citation No. 8414214; 02/12/2009 

Mach#l Mine 

Mine ID 11-03141 

PARTIAL DECISION 

Appearances: Christopher D. Pence, Esq., and David J. Hardy, Esq., Allen, Guthrie, McHugh & 

Thomas, PLLC, Charleston, West Virginia, for the Contestant, 

Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 

Chicago, Illinois,· for the Respondent. · 

Before: Judge Weisberger 

I. Introduction 

These cases are before me based on Notices of Contest filed by Mach Mining, LLC 

(''Mach") challenging the issuance of two citations alleging violations of the provisions of two 

mandatory standatds1 relating to the requirement of providing escapeways; Pursuant to notice, a 

hearing was held in St Louis, Missouri on May 14, 2009. After each party rested, the record was 

kept open to allow for the possibility of any additional evidentiary hearing. The parties were 

directed to file briefs addressing the limited issue of whether the cited area was a ''working 

section", and thus triggering the requirements of escapeways. 2 Each party subsequently filed a 

1

Citation No. 8414211 alleges a violation of 30 C.F.R. § 75.380(d)(l) which requires that 

escapeways be maintained in a safe condition. Citation No. 8414214 alleges a violation of30 

C.F.R. § 75.364(b)(5), which requires an examination of an escapeway for hazardous conditions. 

At the conclusion of the hearing held on May 14, 2009, the Secretary made a motion to amend 

the citation by changing the alleged violative standard to 30 C.F.R. § 75.364(h), which requires 

that a record be made of hazardous conditions found during weekly examinations. After the 

parties argued the merits of the motion, it was granted. 

2

Pursuant to 30 C.F.R. § 75.3.80(b )0), an operator is required to provide an escapeway 

"for each working section." Thus, the existence of a working section is a predieate for the 

31 FMSHRC 947 
brief, and a reply. 

The decision that• follows addresses only the issue of whether the cited area was. a 

working section. 

II. Stipulations 

At the hearing, the parties filed Joint Stipulations, which, as pertinent to the issue at bar, 

are set forth as follows: 

*** 

9. On February 12, 2009, MSHA Inspector Bobby F. Jones conducted a regular 

quarterly inspection of Mach #LMine, operated by Mach Mining, LLC. ["Mach"] 

10. While conducting his inspection, Mr. Jones inspected t4e primary escapeway to 

the Headgate (hereinafter "HG") #4. · 

11. The objects described in the body of Citation No. 8414211 extended l 00 to 120 

feet of the primary escapeway in HG #4. There was an amount of water at the 

intersection of crosscut #2. The objects described in the citC;ttion ended at the 

stairs leading to the overcast at crosscut # 1. The width of the portion of the· 

escapeway described in the aforementioned citation is 19 feet from rib to rib. 

12. In the escapeway, there was a lifeline. 

. . . . 

13. The lifeline in the HG#4 primary escapeway was continuous from the fan at the 

surface of the mine to the loading point. The lifeline was present in the area cited 

just outby crosscut #2 to crosscut #1 and ran through the regulator and up to the.· 

. overcast. 

. . 

14. A lifeline is a line that the miners n:iay grasp to guide them through the primary. 

escapeway to the surface of the mine in the event of an emergency evacuation. 

15. The lifeline is available forminers to use to guide them out of the mine, if 

necessary. 

16. A lifeline is not fixed, but rather is flexible to allow movement of the miner. 

17. At the mouth of the escapeway, was a regulator. 

imposition of all regulatory mandates relating to· escapeway8, including those set forth in 

Sections 75.380(d)(l), and 75.364(h), the standards at issue in the case at bar. · ·· 

31 FMSHRC 948 ' 
18. . . A regulator is a stopping (ie. a solid, concrete block wall) with a hole knocked out 

of it for purposes of controlling air into the mine, , 

19. . The regulator (or st()pping) was approximately 11" tall and stretched from rib to 

rib, a distance of 19 feet. 

20. The hole knocked out of the stopping in order to create the regulator measured 4' 

4" wide X 6' tall. 

21. The concrete blocks that made up the regulator measured 8" tall X ~ 6" wide X 6" 

deep. 

. . . 

22. . The regulator was created on or about Jan~ 6, 2009. Prior to its creation, it was 

a stopping because there was no need for air inby this focation. 

23. In order to make it through .the escapeway, a miner must walk through the 4 '4" 

wide X 6' tall hole in. the regulator. · 

24. The regulator controls the amount and velocity of air going to the section in order 

to comply with the approved ventilation control plan. 

*** 

27. Air blows through the regulator at 106,832 cubic feet of air per minute ("cfm"). 

28. The fan that blows the air is at the surface of the mine. 

29. Further into the escapeway, there were concrete blocks on the ground outby the 

regulator. 

30. The concrete blocks that lay on the ground outby the regulator were knocked out 

of the stopping when a change in air ventilation was created. 

31. Outby the regulator was a pile of gob. 

32. In the primary escapeway, there lay a take-up track. 

33. A take-up track is a steel piece of equipment used in belt storage writs. 

34. There wei:e no items bet\veen the pullet of crib ties and the stairs to the overcast. 

' . . . 

35. Contestant began weekly examination of the primacy escapeway at HG #4 five 

weeks prior to the issuance of the subject citations. 

31 FMSHRC 949 
36. Contestant assigned Mine Exam¢er Dave Adams the ta5k of conducting the 

weekly examinations at HG#4 from J anliary 8, 2009 through February 12, 2009. 

37. · The concrete blocks existed irlthe escapewayoutby the regulator since on or 

about January 6, 2009 when the regulator was created through February 12, 2009 

when the subject citations w~re issued. 

38. The pile of gob existed in the escapeway since on or about January 6, 2009 when 

the regtilator was created through February 12, 2009 when the subject citations 

were issued. 

39. The take-up track existed in the escapeway since on or about January 6, 2009 

when the regulator was created through February 12, 2009 when the subject 

citations were issued. 

40. The pallet of crib ties existed in the escapeway since on or about January 6, 2009 

when the regulator was created through February 12, 2009 when the subject 

citations were issued. 

41. Mine Examiner Adams last conducted a weekly exam of the priniary escapeway 

prior to the issuance of Cit. No. 8414211 on or about February 9, 2009. 

42. The concrete blocks outby, pile of gob, take-up track, and pallet of crib ties were 

present in the primacy escapeway at HG#4 since January 6, 2009 when the 

regulator was created through February 12, 2009 when the subject citations were 

issued. 

43. Mine Examiner Dave Adams did, in fact, conduct weekly examinations for 

hazardous conditions at the primary escapeway at HG #4 from January 8, 2009 

through February 12, 2009. 

44. Mine Examiner Dave Adams did not note nay haiardous conditions in the weekly 

examination records for the primary escapeway at HG #4 during the period from 

January 8, 2009 through February 12, 2009. 

ill. Mach's Case 

Essentially it is Mach's position that HG #4 was· not a working section when cited by 

Jones. According to Anthony Webb, Mach's mine manager, HG# 4 was producing coal from 

January 9 through February 9, 2009. On February 9, 2001,· HG# 4·was idled, and power was 

removed from the HG # 4 power center and the belt drive. The miners working on the section 

were a.Ssigned to provide assistance to a crew that was setting up a longwall section 

approximately one mile from HG# 4. Webb indicated that Mach intended that HG# 4 would 

remain idled for a minimum of approximately four weeks. Production was resumed at HG #4 

31 FMSHRC 950 
about the first week of March 2009. . . . . 

Webb explained that before production could be resumed in the cited area, Mach had to 

return power to the belt drive, and make sure :the. area was safe. He indicated that on February 

12, 2009, the crew working on moving the longwall would have used the Tailgate #1 escapeway, 

which was "a distinct separation" from the primary escapeway at HG #4. (Tr.· 156) He opined 

that had there been an emergency on February 12, 2009, the men would not have traversed the 

cited area to get to the e&eapeway. Rather, ''the lifeline directs them to the shortest distance to 

the capsule and the. lifefuie would prevent them from traveling towards Headgate 4 which would 

actually take them further away from the escape capsule." (Tr. 159) Webb further stated that on 

the date cited, HG #4 did not have a designated working face, or a designated loading point. 

IV. Discussion 

Introduction 

Section 317(f) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 877(f), 

imposes a requirement of escapeways from each ''working section." Title 30, Code of Federal 

Regulations,.reiterates this requirement (See 30 C.F.R. § 75.380(b)(l)), and.r~uires further that 

the escapeways shall be maintaint:l4 in a safe condition to always assure passage. (See 30 C.F.R. 

§ 380(d)(l)). 

30 C.F.R. § 75.2 defines working section as follows: "all areas of the coal mine :from the 

loading point ofthe section to and including the working faces." Working face is defined as "any 

place in a coal mine in which work of extracting coal from its natural deposit in the earth is 

performed during the mining cycle." Id. 

In BethEnergy Mines, Inc., 11 FMSHRC 1445 (1989), an issue before the Commission 

was whether the cited are'as were ''working sections,~· and thus subject to the requirement of 

providing mandatory escapeways. The Commission set forth the following "chief' broad factors 

as being among those suggested by the record before it as bearing on whether an area of a mine is 

a ''working section:" "the hazards.associated with the work being done in the area (hazards); the 

geographical components of the area (location); the physical components of the area and their 

functional readiness (capability); and the development of the area with respect to the actual 

production (timeliness)." 11 FMSHRC at 1453. 

The Commission wenfon to elaborate as follows: 

For example, the hazards associated with the work being done in the area include 

the increa5ed dangers a8sociated with the ongoing activities in a section. As 

acknowledged by counsel for the Secretary at oral argument, the activities associated with 

rea.Sonably imminent coal production introduce increased hazards to the particular area of 

the mine where production takes plaee. Oral Arg; Tr. at 12. It is the presence of the 

increased hazards to min:ers attendant to actual or reasonably close coal production that · 

31 FMSHRC 951 
form a pragmatic basis for the two escapeways requirement of section 7 5 .1704. It is then 

that methane is more likely to be released in larger quantities during extraction of coal at 

the face. Also at this time, there may be an increase in the generation of suspended coal 

dust, an increase in the possibility of sparking, and an increased possibility of exposure to 

unsupported roof The geographical components of a working section, as delineated in 

section 75.2(g)(3), are the existence of an identifiable face from which coal is or will be 

extracted, as well as a section loading point. The physical components of an area and 

their functional readiness relate to the presence of those mechanical mining components 

integral to the method of extraction contemplated in the identified location. In this regard, 

the presence of a functioning power center, a functional loading point connected to the 

mine's main haulage system, and necessary roof support equipment (such as shields · 

where longwall mining is involved) are appropriate indicators of a section s capability. 

On the other hand, the location of equipment that merely has to be trammed into position-

-such as a continuous mining machine, roof bolter or shuttle car--is not necessarily 

dispositive of the "capability" of a section to extract coal. Timeliness is linked to 

capability and refers to the imminence of production. We agree with the judge that while 

actual production is not necessary, the term "working section" is inextricably linked to the 

· term "working face" and that term, we conclude, implies coal production that is 

reasonably close in time. Once production is reasonably close, mechanical and electrical 

problems that temporarily interrupfthe otherWise established capability ofa sectionto 

produce coal do not relieve the operator from compliance with the mandates of section · 

75.1704. Other relevant factors also include the status of the mine's operations at the time 

of the alleged violation and anyevidence as to the operator's plan for establishing 

unobstructed escapeways prior to the start of production aetivities;· See Oral Arg. Tr. at · 

23-24. 

BethEnergy, 1 I FMSHRC at 1453-54.3 

Further Findings and Discussion 

I take cognizance of Webb's testimony that when HG#4was cited on February 12,2009,; 

it had been idled since February 9, 2009~ and Maeh ''had planned" for it to remam idle for 

3

The Commission, in affirming that the Judge's finding that the cited area was not a 

working section, noted the following facts in the record: the cited areas were "in a state of shutdown," the lack of evidence that the company would have begun coal production with ·· 

escapeways in their "obstructed state," a loading point that was not functional because certain 

equipment required to allow it to be functional had not yet been constructed, the power center 

was "inoperable," mining did not resume until two months a:fter the MSHA inspection, the cited 

area was ''not capable of coal extraction," a belt necessary in the mining operation had been 

disassembled, only half of the required roof support had been installed, shears were in company 

shops, and the conveyor had not been connected to any of the mining equipment. 11 FMSHRC . . -· 

at 1454. 

31 FMSHRC 952 
approximately fourweeks.4 However, there is not any evidence in the record th~t any equipment 

had to be moved to HG ,#4, in order for prod:uction to be resumed, nor IS there any evidence that 

any constructio~ or repairs were necessary for the reswnption of production. indeed, the . · 

following testimony by Webb is the only evidence· adduced by Mach as to what was necessary'in 

order to resume production: · · · · 

Q. What steps had to be taken.before .production could resume in Headgate f!4? 

A. We had to put the power back into the section. We had to - . 

JUDGE WEISBERGER: Just go slowly here'. 

A. Okay. We had to put power on the belt drive. We had to make sure that the area was 

safe. We did an exam where we are required to .carry that exam outside by the State of 

Illinois, and then we were abl~ to reswne production.5 · · · 

{Tr. 154) (Emphasis added). 

4

1 take cognizance of Webb's testimonythat, when the area in question was cited, the 

section <lid npt have a designated working face for the section, nor was there a, designed loading 

point for HG #4'. However, it is significant to note that HG #4 had been producing coal for a 

month up until three days prior to the issuance of the citations at bar, whiqh, of necessity, would 

have included operations at a working face and a loading point. Moreover, there is not any 

evidence in the.record that the loading point had been removed or rendered incapable .of 

functio$g afi:er production was suspended on February 9, 2009. 

5

in this connection, Mach argues in its brief that there IS not any evidence that it would 

have reswned production with the escapeway in the state it was found by Jones on February 12 .. 

However, it is significant to note that Webb did not specifically indicate which of the 

accumulated μ}ateriats. in the escapeway would have had to be removed in order to make the area 

safe for production to reswne. Moreover, there is not any evidence that the presence of the 

conditions observed by Jones had contributed to the shut-down of the section or delay in the 

reswnption of production. indeed, I note that from January 6, 2009 through February 9, 2009, 

Mach was actively producing coal in HG #4, in spite· of the. fact that concrete blocks outby the 

regulator, gob, a take-ui> track, and a pallet of crib ties, existed in the escapeway during this 

period. · · . 

Additionally, I note that Mach represented in its brief that it "contests the Secretary's 

assertion that the presence of 2 to 8 inches of water, the 'gob' pile and the cinder blocks · 

constituted obstructions of the escapeways violative of30 C.F.R § 75.380(d)(l), .... "(Mach 

Minmg's Post-Hearing Brief ["Mach's brief'], at 8). Thus, an inference may be made that 

Mach's position is that these materials and oonditions do not constitute obstructions of such a 

degree as to have rendered HG #4 incapable of resuming productions as a working section. · 

31 FMSHRC 953 
Thus I firid;that resumption of coal production in HG#4 depended not upon removal of 

physical obstructions, the return to the area of any equipment, or any repair or construction: -

Indeed, the cause for the idle state of HG #4 was a decision by Mach to remove the crew from 

HG #4 in order to assign it to assist in the development of another longwall section.' Hence, the 

resumption of production depended solely on a management decision to return ririners back to the 

area, and to return power to it by turning on a switch. Under these circumstances, clearly the 

return to production, with all its attendant hazards, for all intents and purposes; is to-be 

considered imminent. Accordingly, I conclude that the situation at bar involved only a temporary 

interruption by Mach of the established capability of the section to produce coal. As such, I find 

that it was not incapable of functioning as a working section. Thus, I find that Mach should not 

be relieved from its obligation to maintain a safe escapeway. 6 

For all of the above reasons, I find that the facts in the case at bar are to be distinguished 

from those presented in BethEnergy, 11 FMSHRC 1445 (1989). I further find, applying the 

broad factors set forth in BethEnergy, that the cited area was a working section'. 7 

ORDER 

6

See BethEnergy, 11 FMSHRC at 1453-54 ("Once production is reasonably close, 

mechanical and electrical problems that temporarily interrupt the otherwise established capability 

of a section to produce coal do not relieve the operator from compliance with the mandates of 

Section 75.1704 [which provide for two passageways to <:insure passage of any person iii.eluding ----

disabled persons froni each working section].)" (Emphasis added). - -

7

1 take congnizance of Mach's assertion, in support ofits position that the cited area was 

not a ''working section," that Jones admitted in "deposition testimony" that the area was not a 

working section at the time he issued the citation at bar. (Mach's brief, at 3) However, I note 

that at the hearing, Jones explained his deposition as follows: 

Q. Earlier on you were talking about a working section. When you testified at deposition 

about this not being_ a working section, why did you consider it to have not been a -- · -

working section ori the·ruiy that you cited_the escapeway? 

A. -At the time I cited it, it was idle, but there was nothing to keep it, if another section_ 

broke down, say Headgate 3 broke down, there was nothing to prevent a crew from 

another part of the mine going to that unit and in 15 minutes firing that unit up and 

loading again. 

(Tr. 126-27) 

I observed Jones' demeanor and found his testimony credible on this point. Also, as set 

forth above, the evidence in this de novo proceeding clearly establishes that the area was a 

working section. 

31 FMSHRC 954 
It is Ordered that, no later that ten days after the issuance of this partial decision, 

contestant shall convene a conference call. The agenda for the call is the status of the disposition 

of all remaining issues posed by the two notices of contest at issue in these proceedings. 

Distribution: (Certified Mail) 

().~,, ~ 

~~eisberger Administrative Law Judge 

Christopher D. Pence, Esq~, and David J. Hardy, Esq., Allen, Guthrie; McHugh & Thomas, 

PLLC, 500 Lee Street, East, Suite 800, P.O. Box 3394, Charleston, WV 25333 

Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Departnient of Labor, 230 S. Dearborn 

St., 8th Floor, Chicago, IL 60604 · 

/lp 

31 FMSHRC 955 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

GENW AL RESOURCES, INC., 

Respondent 

72119TH STREET, SUITE 443 

DENVER, CO 80202-2500 

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

July 23' 2009 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2008-939 

A.C. No. 42-01715-145920-01 

Docket No. WEST 2008-940 

A.C. No. 42-01715-145920-02 

Crandall Canyon Mine 

ORDER DENYING MOTION TO DISMISS 

AMENDED PREHEARING ORDER 

On July 16, 2008, the Secretary of Labor filed petitions for assessment of civil penalty in 

these cases under section 105( d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801, et seq. ("Mine Act"). She also filed a motion to file these petitions out of time. Genwal 

Resources, Inc, filed its answer to the petition within 30 days. In its answer, Genwal opposed the 

Secretary's motion to file the petitions for penalty out of time and asked that the cases be 

dismissed on several grounds. The cases were assigned to me on March 19, 2009, without a 

resolution of these issues. Genwal filed another motion to dismiss on June 29, 2009, and the 

Secretary filed an opposition. 

These cases involve.three citations issued under section 104(a) of the Mine Act, a citation 

issued under section 104(d)(l) and an order issued under section 104(d)(2). The citations were 

issued in July 2006 and the order was issued in July 2007. The total proposed penalty is 

$11,080.00. In her motion to file the petitions for penalty late, the Secretary states that Genwal's 

notice of contest of the proposed penalties was filed on April 30, 2008. Commissipn Procedural 

Rule 28( a) required the Secretary to file the petitions for penalty within 45. days after Genwal 

contested the penalties, which would be no later than June 16, 2008. 29 C.F.R. § 2700.28(a). 

She attributes the late filing of her penalty petition to "an increased workload and administrative 

oversight by the [MSHA] field office." She argues that the time limit in the Commission's rule 

does not impose a jurisdictional limitation and that, because the Mine Act states that petitions for 

penalty must be filed "within a reasonable time," the court should examine whether reasonable 

cause existed for the Secretary's delay. A declaration of Price, Utah, Field Office Supervisor 

William M. Taylor was submitted in support of her motion. 

Genwal' s motion to dismiss raises a number of additional issues. It states that the cases 

should be dismissed ''because the citations were written while the mine was under its previous 

ownership and because of the extreme prejudice that has been created by the passage of time and 

the events that have occurred since these citations were written on July 27, 2006." (Motion, p. 

31 FMSHRC 956 
1). The mine was purchased by its current owner on August 9, 2006. Genwal states that as part 

of the purchase agreement, outstanding penalties and fines were addressed and the parties agreed 

that the former owner would be responsible for all MSHA pe11a1ties that had not yet been 

assessed during its period of ownership. In negotiating these terms, Genwal represents that 

neither the current owner nor the fonner owner of the company could have foreseen that ''MSHA 

penalties would take in excess of two (2).years to be assessed,· and therefore, extreme prejudice. 

has,been created by the passing oftime." Id. 1-2. Genwal also maintains that the.infonnation 

contained in the declaration ofMSHA's field office supervisor is not relevant because the 

Secretary had "one full year to assess the penalties for the citations at issue prior to the 

occurrence of the events referenced in the declaration .... " Id. 2. 

In addition, Genwal states that the citations were served on the company's safety director; 

Jim Pruitt. Because Mr. Pruitt is now an MSHA inspector, .Genwal argues that it "will 

undoubtedly face obstacles in attempting to interview Mr. Pruitt for discovery purposes ..•. " Id. 

2. 

Section 105{a) of the Mine Act provides: 

If, after an inspection or investigation, the Secretary issues a 

citation or order under section 104, [she] shall, within a reasonable 

time after termination of such inspection or investigation, notify 

the operator ... of the civil penalty proposed .... 

(30 U.S.C. §815(a); emphasis added). This statutory provision requires the Secretary to propose 

penalties within a reasonable period of time after a citation or order of withdrawal has been 

terminated. 

The Secretary states that Genwal contested the penalties on or about April 30, 2008. 

Commission Procedural Rule 26, 29 C.F.R. §. 2700.26, provides that a mine operator must notify 

the Secretary that it wishes to contest a proposed penalty assessment within 30 days of its receipt. . 

Consequently, it can be estimated that Genwal received the Secretary~s proposed penalty 

assessment on or about March 31, 2008. The citations at issue were terminated on or about 

August 7, 2006. Thus,· it took the Secretary more than a year .. and a half to propose penalti¢s for 

these citations. The Commission's procedural rules do not set forth a time limit for the Secretary 

to propose penalties. Rule 25 simply states that the Secretary "shall notify the operator ... of the · 

violation alleged [and] the amount of the proposed penalty assessment. ... " 2Q U.S.C. § 

2700.25 .. 

The record reveals that the Secretary filed her petition for assessment of penalty about 77 

days after Genwal filed its notice of contest of the penalties. As stated ab9ve,- Commission .· 

Procedural Rule 29 provides that the Secretary shall file her petition for assessment of penalty 

within .45 days of receipt of a mine operator's contest of a proposed assessment. 

31 FMSHRC 957 
The declaration of Field Office Supervisor Taylor states thatthe field office was not able 

to process and submit to the Office of the Solicitor the ''packets" necessary for the petition for · 

assessment of penalty until early July2008. He states that the Price, Utah, field office was 

"diligently involved" irt providing information to investigative panels and the public following 

the entrapment of miners at the Crandall Canyon Mine starting in August 2007. All available 

office personnel were involved in this effort. The declaration also states that, at about the same· · · 

time, the number of penalty contests drastically increased both nationwide and in Utah. He states . 

that the delay in processing Genwal 's penalty contest was not ''due to any dilatory intent on the . 

part of the agency." 

It is well settled that the Secretary's failure to meet time deadlines when filing penalty 

proposals and petitions for assessment of penalty is not jurisdictional. The statutory processing 

deadlines generally are intended to "spur the Secretary to action" rather than to confer rights on 

litigants that limit the scope of the Secretary's authority. Sec'y of Labor v. Twentymile Coal Co., 

411F.3d256, 261 (D.C. Cir. 2005). 

The key events can be summarized as follows: 

July 27, 2006 

August 7, 2006 

March 31, 2008 

April 30, 2008 

July 16, 2008 

August 15, 2008 

Citations issued 

Citations terminated 

Penalty proposed under Procedural Rule 25 

Penalty contested by Genwal under Procedural Rule 26 

Petition for Assessment Penalty filed under Procedural Rule 28 

Answer filed by Genwal 

There can be no dispute that the citations were issued about three years ago. Almost one .. 

year of the delay in these cases can be attributed to this Commission. The Commission's 

caseload increased significantly during this period. The Secretary's petition for assessment of 

penalty was filed only about 30 days after the due date. The biggest delay was at the Price field 

office and MSHA's Office of Assessments. Although the citations were terminated on August 7, 

2006, the Secretary did notpropose penalties.until March 31, 2008. · 

Dismissal is a harsh remedy. · Genwal alleges that it has been prejudiced by this delay, but 

it does not set forth any specifics. It argues that the length of time establishes prejudice. Genwal 

also relies on the transfer of ownership of the company because neither party to the sale "could 

have foreseen that MSHA penalties wouldtake in excess of two (2) years to be assessed." 

(Motion, 1- 2). It is well established that the mere passage of time is not sufficient to establish 

prejudice. Indeed, it often takes the Office of Assessments nine to twelve months to propose a 

penalty. Section 105(a) of the Mine Act was written to encourage compliance with the 

Secretary's safety and health standards rather than to create .an avenue for respondents to limit the 

scope of the Secretary's authority. · Genwal admitted that arrangements were made in the 

purchase agreement for the payment of outstanding penalties assessed for citations issued prior to · 

31 FMSHRC 958 
the purchase date. · Genwal knew that it had been issued the subject citations and that penalties. 

had not yet been proposed. 

The Senate committee that was instrumental in drafting the Mine Act specifically stated 

in its report that the committee "does not expect that the failure to propose a penalty with 

promptness shall vitiate any proposed penalty proceeding." S. Rep. No. 95-181, at 34 (1977), 

reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 622 {1978). I accept the Secretary's explanation 

for her delay and find that it was reasonable under the circumstances. Other administrative law 

judges have reached similar conclusions in other cases. See, Wabash Mine Holding Co., 27 

FMSHRC 672, 685-88 (October 2005) (15 month delay); Mountain Coal Co., 31 FMSHRC 

__ , No WEST 2909-189 (June 30, 2009) (2 year delay). 1 

If these cases do not settle and Genwal is able to establish at a hearing that the delay 

prejudiced its ability to offer evidence in its defense with respect to specific citations, then I will 

consider whether an equitable remedy is appropriate. For the reasons set forth above, Genwal's 

motion to dismiss these cases is DENIED and the Secretary's motion to file late petitions for the 

assessment of civil penalty is GRANTED. 

In order to encourage the parties to settle these cases, counsel for the Secretary shall 

contact Respondent to discuss settlement. If a settlement is reached, a motion for its approval 

shall be filed by the Secretary no later than August 19, 2009. If the parties are not able to settle 

the cases, counsel for the Secretary shall, on or before August 20, 2009, initiate a conference call 

with me to discuss the status of the cases and potential hearing dates. 

"' Richard . Manning 

Administrative Law Judge 

Distribution: 

Matthew B. Finnigan, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 1600, Denver, CO 80202 (Fax and First Class Mail) 

1 The issue raised concerning Mr. Pruitt is irrelevant. Mr. Pruitt could have taken a 

position with MSHA even if there had not been a delay in proposing a penalty. There has been 

no showing that Mr. Pruitt's departure will create any prejudice to Genwal. 

31 FMSHR.C.959 
Jason D. Witt, Esq., Assistant General Counsel, Coal Services Group, 56854 Pleasant Ridge 

Road, Alledonia, OH 43902 (Fax and First Class Mail) 

RWM· 

31 FMSHRC 960 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY A VENUE N. W., SUITE 9500 

BlLLY BRANNON, 

Complainant 

v. 

PANTHER MINING, LLC, 

Respondent 

BlLLY BRANNON, 

Complainant 

v. 

PANTHER MlNING , LLC and 

MARK D. SHELTON, -

Respondent 

SECRETARY OF LABOR, 

on behalf of BlLLY BRANNON, 

Complainant, 

v. 

PANTHER MINING, LLC, 

Respondent 

WASHINGTON, D.C. 20001 

(202) 434-9980 

July 24, 2009 

DISCRIMINATION PROCEEDING 

· Docket No. KENT 2009-302-D 

BARB CD 2008-07 

No.1 Mine 

Mine ID.15-18198 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2009-1225-D 

BARB CD 2009-07 

No. 1 Mine 

Mine ID 16-18198 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2009-1259-D 

· · BARB CD 2009-09 

No.I Mine 

Mine ID 15-18198 

. . . 

ORDER GRANTING IN PART COMPLAINANT'S MOTION TO COMPEL 

RULING ON MOTION FOR EXTENSION OF TIME TO COMPLETE DISCOVERY 

RULING ON MOTION FOR CONTINUANCE OF TRIAL AND . . 

RULING ON MOTION TO CONSOLIDATE 

I. THE MOTION T<fCOMPEL (DOCKET NO. KENT 200·J02-D) 

The Complainant, Billy Brannon, has moved to compel the Respondent, Panther ·Mining, 

LLC ("Panther Mining" or ''the company"), to respond to several interrogatories in the 

Complainant's First Set of Interrogatories and to produce certairi document~ requested in 

31 FMSHRC 961 
Complainant's Fii"st Request for Production of Documents. According to Brannon, the company 

either has objected to the.interrogatories and requests or provided incomplete information. 

INTERROGATORIES, ANSWERS AND RULINGS1 

futerrogatory 5 .. Please identify the person(s) who made the decision to transfer Brannon 

from Cloverlick Coal to Panther Mining [on] February 8, 2008, and state the precise date that said 

transfer was effectuated. 

Answer: Rick Raleigh and Ross Kegan. March 3, 2008. 

Complainant notes in his first set of interrogatories Brannon stated: "When an 

interrogatory asks you to 'identify' a person, please state the person's name and job title, and their 

last known mailing address, telephone number, and e-mail address." The Complainant states that 

Panther provided Raleigh's job title and contact information in response to. another interrogatory, 

but that it did not provide Kegan's job title and contact information. Complainant asserts he is 

entitled to the information. 

The company responds that it is providing Kegan' s job title and c~ntact information to the 

Complainant. · · · 

futerrogatozy 6. Please identify all of the employees, both management and hourly, who 

were assigned to the 2nd shift at Panther Mining's No. 1 mine at any time during the period that 

Brannon worked on said shift prior to his transfer to the day shift on or about June 26, 2008 

(emphasis in original). 

Answer: The Respondent objects to the interrogatory as overly broad and not relevant or 

reasonably calculated to lead to the discovery of admissible evidence. 

The Complainant argues that the interrogatory is n~t over1y broad, m that any cinployee 

who worked on the second shift at the mine might have information relevant to Brannon's claims. 

It further argues it is not unduly burdensome, since the information sought is within the 

knowledge and control of the company. 

The company responds that the only protected activity.Branpon alleges while he worked 

on the second shift is that he filed a civil suit based on an assault that occurred at the mine where 

1

The allegedly incomplete or unanswered interrogatories and requests are numbered as in 

the First Set offuterrogatories and First Request for Production of Documents. ·· · 

31 FMSHRC 962. 
he worked (the Cloyerlickmine) before he was transferred to Panther's mine. According to the 

company, the other alleged protected activities occurred while the Complainant worked at the 

Cloverlick mine or on the day shift. · 

The information sought by_the Complamant m,ust be disclosed. The iitterrogatory, while 

broad, is not overly so. A mine is a confined environment in more ways than one, ·and second 

shift miners may well have heard or s~en .things bearing on the Complainant's Claims . 

. The company IS ORDERED. to provide the Complainant ~ith the infonnation reqμeste.j 

in the interrogatory, and to.do so within 15 days of the date of this or~er. . · 

c. 

.. -

Interrogatory 8. Please identify all of the employees, both management and hourly~ who 

were assigned to the day shift at Panther Mining's No. 1 mine at any time during the period that 

Brannon worked on ~aid shift through and including September 12, 2008 ( empha8is in original). 

Answer: Respondent.objects to this interrogatory as overly broad and not relevant or 

reasonably calculated to lead to the discovery of admissible evidence. 

. . 

For the smne reasons ~ stated above, the Complainant maintains the interrogatory is not . 

overly broad. and is relevant. · 

The company contends Brannon already knows the nmnes of day shift employees with 

infonnation relevantto his claims and. that he should not be allowed to use the Commission's 

litigation .process to "shop for new cla,ims, gain information for , .. pending claims, or cause 

unnecessary interference with [the company's] business or employees." ,Opposition to Motion to 

Compel 5. 

For essentially the smne reasons as stated with regard to Interrogatory 6, I agree with the· 

Complainant that the infonnation requested in the interrogatory should be disclosed. The 

company IS ORDERED ,to provide the Complainant with the information requested in the 

interrogatory, and to do so within 15 days of the date of this order. 

Interrogatory 11. Please state whether anyone from Panther Mining or Black Mountain 

Resources investigated the allegations made in Brannon's complaint of discrimination after 

Brannon filed Case No. BARB-CD-2008-07 with MSHA. If the answer is "yes," please identify 

who conducted said investigation and identify every person to whom he spoke during the -

investigation. 

Answer: Yes, Rick Raleigh and Panther's counsel. Except as stated, Panther objects to 

31 FMSHRC 963 
this interrogatory as calling for information that is protected from disclosure by the attorney-client . 

privilege and/or work product doctrine. 

The Complainant states he is not asking for copies of notes taken by Panther's counsel, but 

that he is entitled to know to whom Rick Raleigh, the company's personnel director, spoke during 

the investigation. · The Complainant asserts notes taken by Raleigh during his investigation are 

much closer in time to the events forming the basis for the discrimination proceeding, and that the · 

Complainant cannot obtain their equivalent by any other means. The Complainant further notes 

that in response to a motion to compel filed by the company, I ruled that copies of notes and logs 

made by Brannon at the behest of his counsel should be made available to the Respondent, 

provided appropriate redactions were made to protect the identity of miner witnesses and to 

exclude material relating to the company's attorney's thought processes and litigation strategies. 

Order 5 (May 29, 2009). 

The company answer8 that Raleigh's notes were not contemporaneous with the events at 

issue, but were made after the Complainant filed his complaint with MSHA and as part of the 

company's "after the fact" investigation of the Complainant's charges. As such, they are 

protected by the work product doctrine. Opposition to Motion to Compel 6-7. 

While there is no gainsaying the fact that the information the Complainant seeks can be 

viewed as coming within the work product doctrine, the doctrine is not sacrosanct and there are 

times when it must must yield to more weighty concerns. fumy view, one such concern is the 

paramount need for full or nearly full disclosure prior to trail. The need originally engendered the 

federal rules governing discovery and in administrative proceedings such as this adherence to the 

original purpose can help parties resolve their differences short of trial or, failing that, can greatly 

enhance the likelihood of a just resolution. As I have noted elsewhere, it is for these reasons that 

many administrative law judges, myself included, have little sympathy forclaims of privilege. 

See Order 5 (May 29, 2008). Here, because the information could reasonably be expected to lead 

to the discovery of relevant evidence, I hold that the names of the persons to whom Raleigh spoke 

and Raleigh's notes of the conversations are discoverable; 

The company IS ORDERED to provide the Complainantwith the information requested 

in the interrogatory within 15 days of this order. Aiiy material in the information relating to the 

company's attorney's thought processes and/or its attorney's litigation strategies must be redacted. 

Interrogatory 17. In, 8 of Panther Mining's Answer, the company alleges that ''there was 

only one regular head drive operator whose drives were much further in the mine that those 

assigned to complainant." Please identify said head drive operator; 

Answer: Joe Yeary. 

31 FMSHRC 964 
The Complainant states the company did not provide Mr. Yeary' s .contact information. 

The company agrees, and states it is sending the information to the Complainant. 

Interrogatory 23. Please identify each and every person whom Panther Mining intends on 

calling as a witness at the trial of this action, and provide a summary of the expected testimony of 

each said person. 

. . 

Answer: . Panther Mining has not determined who it intends to call as. a witness, but they 

will probably include Mark Shelton [and nine others who are nanied] and may include some or all 

of the following: Justin Adams [and seven others who are named]. · 

The Complaint states that although Panther did not object to the interrogatory, it failed to 

provide a summary of the expected testimony of each person. It notes that such summaries 

routinely are required by Commission judges in their pr~-hearing orders and that the summaries 

may indicate to the Complainant that deposition of a witness or witnesses is ~ecessary, thereby 

saving the Complainant c<:msiderable expense. 

The company asserts it presently intends to call 17 witnesses. It states it "should not be 

required to summarize the testimony of so many witnesses covering so much detailed 

information" and that any required responses should "be limited to general topics of expected 

testimony[,] not fulldetails." Opposition to Motion to Compel 8. 

Interrogatory 23 and the company's objection to it have been overtaken by events. Under 

the April 20, 2009, Notice of Hearing as amended below, the parties are required to provide one 

another with the names of their intended witnesses and with synopses of the witnesses' testimony 

on or before January 26, 2010. Therefore; the company is under no obligation to do so now. 

However, all of the parties are required to exchange the names and the synopses. While the 

synopses must describe the subjects about which the witnesses will testify, they need not describe 

the details of the expected testimony. 

REQUESTS FOR PRODUCTION OF DOCUMENTS. RESPONSES. AND RULINGS 

Request 1. A copy of the official mine map for :the Panther No, 1 mine ... that was in. 

effect during September 2-12, 2008. 

. . . 

ReSJ>0nse:· See the attached map dated Novemb.er 19, 2008, document no. 000101 [i.e., 

Panther Mining "Bates-stamped" numbers on the documents it provided to the Complainant]. 

31 FMSHRC 965 
The Complainant states that the company did not object to this request, but nonetheless did 

not provide the map. Instead, it sent only the bottom, right-hand comer of the map. 

The company responds that its failure to provide the Complainant with a complete copy of 

the map was the result of a clerical error and that the requested copy has been sent. 

Request 4. Copies of all statements given to [MSHA] by management personnel from 

Panther Mining during MSHA's investigation of Brannon's discrimination complaint (Case No. 

BARB-CD-2008~07), which preceded the filing of the instant Complaint of Discrimination with 

[the Commission]. 

Response: See attached statements from Mark Shelton and Herschel [sic] Napier, 

documents no. 000301-000309. 

The Complainant asserts, based on information available to him, the company's section 

foreman, Justin Adams, gave a statement to MSHA, and that a copy ofthe statement, which was 

not included in the materials the company made available, shouldhave been provided. 

The comapny states that it does not have a copy of Mr. Adams's statement.· Opposition to 

Motion to Compel 8-1 L 

For the reasons set forth with regard to Request 5, the Motion to Compel IS DENIED 

with regard to Request 4. 

Request 5. Copies of all statements given to MSHA by holirly employees from Panther 

Mining during the agency's investigation of Brannon's discrimillation complaint (Case No. 

BARB-CD-2008-07), in which management personnel from Panther or Black Mountain 

Resources were allowed to sit in on said witness interviews. 

Res.ponse: Panther has none. 

The Complainant asserts that, in response to one of his interrogatories, the company stated 

that Darrell Cohelia, the company's safety directory, sat in on the MSHA interviews of Jonathan 

Whitehead, Shawn Daniels and Joe Yeary, each an hourly employee. It further states that Cohelia 

and Rick Raleigh, the company's personnel director, sat in on the MSHA interview ofhou:dy 

employee Jim Lamb. The Complainant argues that by allowing the company officials to sit in, the 

hourly employees waived any claim of confidentiality they might otherwise have asserted. 

Because the company knows what the employees told MSHA, Panther Mining should be required 

to obtain the statements and produce them. The Complainant also describes his efforts to obtain 

31 FMSHRC 966 
the statements from MSHA via a FOIA request. Thus far, the effort has resulted in MSHA's 

sending the Complainant copies o.f the requested statements, but with the names, job 

classifications, signatures, addresses and social security numbers of the interviewed hourly 

employees redacted. Tue Complainant describes the redacted statements as ''worthless." Motion 

11. 

The company again responds it does not have any of the statements the Complainant 

seeks. Opposition to Motion to Compel 9-11. 

The Complainant's motion to compel the company to produce the statements of 

Whitehead, Daniels, Yeary and Lamb IS DENIED. The company states it has no such copies, 

and I cannot order a party to produce something it does not have. The Complainant knows th~ 

names of the persons whose statements it wants. He can ask the persons. The Complainant· also 

can and has followed an appropriate route for obtaining the statements by filing a FOIA request 

with MSHA. This has resulted, as the Complainant admits, in his obtaining redacted copies of the 

statements. If the Complainant is denied complete copies of the statements by those who were 

interviewed, he can depose the miners and/or call them as wi~esses. 

Request 7. Any employee handbooks, personnel policies or other compilations of Panther .. 

Mining's personnel rules or policies that were in effect during Brannon's employment with the 

company prior to .September 12, 2008. 

Res_ponse: The [company] objects to this request as vague and overbroad and not 

calculated to lead to the discovery of admissible evidence. Without waiving this objection, see 

the attached attendance policy and drug policy, documents no. 000501-000509. 

The Complainant states there is nothing ''vague" or "overbroad" about its request and that 

the company either has employee handbooks, et.c., or it does not. The Complainant wants the.· 

company to identify and produce all such documents that exist, and if the company objects to 

producing any of the specific docunients, the Complainant wants the company to lodge specific 

objections. 

The company states, if the Complainant needs the requested materials, he should 

"[identify] the subjects of the policies he seeks so that [the company] and ... the [Administrative 

Law Judge will] have some basis to assess their discoverability." Opposition to Motion to Compel IQ . 

Employee handb_ooks and written personnel policies are discoverable, unless a sustainable 

objection is.raised. Therefore, within 15 days of the date of this order, the company IS 

ORDERED to identify for the Complainant the handbooks and wriμen personnel policies in 

effect during the ~omplainant's employment and to provide the complainant with copies of the 

31.FMSHRC 967 
handbooks and policies in effect during the Complainant's employment. If such materials exist; 

but the company has privileges to assert or other objections to raise, the company must seek a 

protective order. hi its motion, the company should describe the material(s) with specificity and· 

state its position( s) against disclosure. If the Complainant wishes to respond, he must do so 

within five days of the date of his receipt of the company's motion. 

Request 11. If anyone from Panther Mining or Black Mountain Resources investigated 

Brannon's allegations after he filed his discrimination complaint (Case No. BARB-CD-2008-07) 

with MSHA, copies of any and all interview notes and other documents compiled by said ·person 

during his investigation. 

Res.ponse: The [company] objects to this request, as it calls for information that is 

protected from disclosure by attorney-client privilege and/or the work product doctrine. 

The Complaint reiterates the arguments he made with regard to Interrogatory 11, the 

company reiterates its objections, and I reiterate my ruling. The company IS ORDERED to 

provide the Complainant with the information requested within 15 days of this order. Any 

material on the information relating to the company's attorney's thought processes and/or 

litigation strategies must be redacted. . 

II. MOTION FOR EXTENSION OF TIME TO COMPLETE DISCOVERY 

<DOCKET NO. KENT 2009-302-D) 

III. MOTION FOR CONTINUANCE OF THE TRIAL 

. (DOCKET NO. KENT 2009-302-D) · 

IV. MOTION FOR CONSOLIDATION OF'PROCEEDINGS 

<DOCKETS NO. KENT 2009-302-D, KENT 20094225-D AND KENT 2009-1259-D) 

Docket No. KENT 2009-302-D was assigned to me on March 6, 2009. On April 20, 2009, 

I scheduled the case to be heard on August 11, 2009, in Barbourville, Kentucky. At the same 

time, I ordered the Complainant to respond to the company's First Set of Interrogatories no later 

than May 8, and I stated I expected counsels "to cooperate to ensure all discovery is ... completed 

by July l 0, 2009." Order and Notice 1 (April 20, 2009). Thereafter, I ruled on the company~s 

motion to overturn the Complainant's objections to written discovery requests and to compel 

discovery (May 29, 2009). Now, I have before me the Complainant's motion to compel. 

Obviously, July I 0 has come and gone, and discovery has not been completed, at least to 

the satisfaction ofthe Complainant. The Complainant, therefore, moves for a 120-day extension 

of time to complete discovery and· for a commensurate continuation of the trial date. 

Complicating the matter is the fact that the Complainant has filed an additional discrimination 

31 FMSHRC 968 
complaint against the company (Billy Brannon v. Panther Mining, LLC and Mark D. Shelton, 

Docket No~ KENT 2009,..1225,..D), and the Secretary of Labor has filed a discrimination complaint.·. 

on the Complainant's behalf (Secretary of Labor, on behalf of Billy Brannon v. Panther Mining, . 

LLC; Docket No. KENT 2009.,.1259-D). The company has movedto consolidate the two "new" 

cases with the instant case. 

As I noted when ruling on the Complainant's first motion to compel, judges, especially 

administrative law judges, liberally construe discovery rules in order to provide parties with the 

information needed at trial. Order 5 (May 29, 2009). However, there is no denying th~ fact that 

unfettered discovery can consume a great deal of time .. As a result, there exists an inherent 

tension between a judge's dutyto hear and decide a case promptly and his or her duty to further 

discovery's ideal result, ensuring a party "see[ s] many, .if not all, of his or her opponent's cards 

before proceeding through the courthouse door." Id. The tension has become particularly acute 

for the Commission's judges, who face an ever mounting backlog of cases and a potential 

breakdown of the agency's ability to provide timely decision making. 

The facts speak· for themselves. This month cases pending before the Commission will 

surpass 13,000, an increase of 600% since the passage of the Miner Act. From fiscal year 2000 . 

through fiscal year 2005, the-average number of cases filed per year was approx~tely2,300. 

However, in fiscal year 2008, the number was approxiμiately 8,900, and, at the current rate, the 

projected total backlog will be over 18,000 cases by the end of fiscal year 2010. Barring a large 

increase in staffing - an increase that is not on the horizon - the keeping of trial dates becomes 

vital if the Commission is to maintain even a semblance of timeliness in the decisional process. 

,' ;. 

The present motion for a continuance illustrates the problem. Docket No. KENT 2009-

302-D was given priority on my calendar because, in general, the nature of discrimination 

complaints calls for their prompt resolution. In setting an August 11 trial date, I gave the case 

precedence over other cases that had been pending far longer. Now, the next open date on my 

trial calendar is March 2, 2010, and itis when the subject case will be heard. This seems an 

inordinately long time to wait for a trial, e~ecially when the company is paying the Complainant 

not to work. 2 Yet, discovery is ongoing in the instant case, and it may not have begun yet in . 

KENT 2009-1225-D :wd KENT 2009-1259-D. In my opinion, the need for full or nearly full 

disclosure prior to trial outweighs the economic and managerial inconvenience of a long delay. 

Therefore, the Complainant's motion for a continuance IS GRANTED and the trial IS 

RESCHEDULED to begin on MARCH 2, 2010. There is simply no more immediate date 

available without "bumping" others. Having given the parties precedence once, I am not inclined 

to do so again. 

2

0n May 14, 2009,_Commission Administrative Law Judge Jacqueline Bulluck ordered 

Brannon's temporary reinstatement (KENT 2009-988-D). The order was based on the parties'\ 

agreement that Bmnon would be economically reinstated pending a final ruling on a complaint of 

discrimination the Secretary of Labor would file on Brannon's behalf. As discussed below, that 

complaint, Docket No. KENT 2009-1259-D, is now before me. 

31 FMSHRC 969 
The parties' inability to meet the original discovery schedule and the resultant continuance 

means in all likelihood August 11 is lost as a trial day to the Commission. Lost trial days have 

adverse consequences forthe agency, because they mean an increase in the Commission's 

burgeoning case backlog. For this reason, the parties are advised, as will be all appearing before 

me hereafter, that the days of liberal continuances are over. I no longer will grant them, except 

under the most dire of circumstances. The parties will meet the trial discovery schedule as 

originally set and go to trial on the date( s) scheduled, or they will risk default. 

Docket No. KENT 2009-302-D will be called for trial on March 2, 2010, in 

Barbourville, Kentucky. The trial will commence at 8:30 a.m. In addition, counsel for the 

company's motion to consolidate IS GRANTED, and Docket No. KENT 2009-1225 and KENT 

2009-1255-DARE CONSOLIDATED WITH Docket No. KENT 2009.;302-D for hearing and 

decision: The latter two cases will be called for hearing on March 2, 2010, with Docket No. 

KENT 2009-302-D. I understand the Complainant's objections to consolidation, but, by 

scheduling the testimony, the evidence relating to KENT 2009-1255-D can be identified and kept 

fairly contiguous in the record. Further, if the need arises, attorney's fees issues can be sorted out 

after the trial I have a duty to minimize disruption to the parties and their witnesses. 

Consolidation of the cases _does that. I also have a duty to prevent even more delay in the cases 

than has already occurred, and consolidation assists in that regard. While·the mechanics of 

presiding over the consolidated cases may be complicated, with the assistance and coopeui.tion of . 

the parties they can be mastered. 

The parties are advised the requirements of the April 20, 2009, Notice of Hearing ARE · 

EXTENDED to Docket Nos. KENT 2009-1225-D and KENT 2009-1259-D, except that all 

discovery must be completed by January 15, 2010. On or before January 26, 2010, the 

Complainant and the Respondent will file their prehearing reports, including their witness lists 

and testimony summaries. 

Counsels· are reminded Commission Rule 10( c) requires the moving party to confer or 

make reasonable efforts to confer with the other parties prior to filing a non-'dispositive motion 

and to state in the motion if any other party opposes or does not oppose the motion. 29 C.F.R. § 

2700.lO(c). Compliance with the rule is expected. Unless a statement indicating compliance is 

included in future non-dispositive motions; the motions will not be accepted for filing and Will be 

returned. 

Administra~ve Law Judge 

31 FMSHRC 970 
Distribution: (Certified Mail) 

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 

/ej 

31 FMSHRG971 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY A VENUE N. W., SUITE 9500 

BILLY BRANNON, 

Complainant 

v. 

PANTHER MINING, LLC, 

Respondent 

BILLY BRANNON, 

Complainant 

v . 

. PANTHER MINING , LLC and 

MARK D. SHELTON, 

Respondent 

SECRETARY OF LABOR, 

on behalf of BILLY BRANNON, 

Complainant, 

v. 

PANTHER MINING, LLC, 

Respondent 

WASHINGTON, D.C. 20001 

(202) 434-9980 

August 31, 2009 

DISCRIMlNATION PROCEEDING 

Docket No. KENT 2009-302-D 

BARB CD 2008-07 

No. 1 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 DENYING MOTION TO RECONSIDER DISCOVERY RULING 

On July 24, 2009, I granted in part and denied in part Complainant's motion to compel 

the Respondent to answer certain interrogatories and to produce certain documents. Order 

Granting in Part and Denying in Part Complainant's Motion to Compel ("Order"). Among the 

documents sought were "Copies of all statements given to [MSHA] by management personnel 

... during MSHA's investigation of Brannon's discrimination complaint (Case No. BARB-CD2008-07), which preceded the filing to the instant Complaint of Discrimination with [the 

Commission]" (i.e., Docket No. KENT 2009-302-D). Order 6. Also sought were "Copies of all 

31 FMSHRC 972 
statements given to MSHA by hourly employees [of the company] during the agency's 

investigation of [the same] ... complaint . . . in which management personnel from Panther or 

BlackMountain Resources [(Panther's parent company)] were allowed to sit in on ... [the] 

interviews." Id. In his motion to compel, the Complainant described his efforts to obtain copies 

of the statements from MSHA via a FOIA request. . The request resulted in the agency sending 

the Complainant copies of the statements, but with the names, job classifications, signatures, 

addresses and social security numbers of the interviewed employees redacted. The Complainant 

described the redacted statements as ·~orthless." See Id. at 6-7. The company responded to the 

request it provide the Complainant with complete copies by stating it has no such copies. Id. at 

6. 

In denying the Complainant's motion to compel production of the copies, I stated in part: 

The company states it has no such copies, and I 

cannot order a party tO produce something it does 

not have. The Complainant knows the names of 

the persons whose statements it wants. He can ~k 

the persons. The Complainant also can and has 

. followed an appropriate route for obtaining the 

statements by filing a FOIA request with MSHA. 

This has resulted, as the Complainant admits, in . 

[his] obtaining redacted copies of the statements. 

If the Complainant is denied complete copies ... 

by those who were interviewed, he can depose 

the miners and/or call them as witnesses. 

Order at 7. 

The Complainant now asks me to reconsider this ruling. He states the company's 

section foreman, Justin Adams, gave a statement to MSHA and that although the company 

claims it does not have a copy of the sta~ement, "clearly it can obtain that statement, whereas [the 

Complainant] cannot." Mot. I. The Complainant wants me to require the company to instruct 

Adams to get the company a copy of his statement and then to require the company to provide 

that copy to the Complainant. Id. 

The Complainant further states that although the company "may be telling the truth" 

about not having copies of the statements of four of its hourly employees (Jonathan Whitehead, 

Shawn Daniels, Joe Yeary and Jim Lamb), the company actually is saying that "it doesn't want 

[the Complainant] to have copies of the statements, so it will not do anything- absent a court 

order- to obtain [them]." Mot. 2, The Complainant adds that; because the er.npioyees allowed 

company officials to attend their interviews, the employees obviously will be "adverse witnesses" 

if they are called to testify, and that as a matter of "fundamental fairness" he needs the statements 

to effectively examine and/or cross.examine the employees. Id. at 3. 

31 FMSHRC 973 
The company responds that the Complainant is merely repeating arguments that already 

have been made· and rejected. The company notes that the Federal Rules of Civil Procedure . 

sanction requests for documents ''which are in the possession, custody or control ofthe party . 

upon whom the request is served" (Fed. R. Civ. P. 34), and that Rule 34 does not permit a court 

to order a party to an action to force a person to acquire something the party does not have. 

Response2. 

The company's contention is not entirely accurate. Nor was I entirely accurate to state ... 

that "I cannot order a party to produce something.it does not have." Order 7. There have been 

situations in which the courts, acting under Rule 34, ordered parties to produce documents and 

other items that were not in the parties' physical possession. However, in those situations the 

parties objecting to producing the materials were held to have constructive control of the . 

materials, a situation that is decidedly not the case here. In no sense is the company in 

constructive control of the statements ofMessrs. Adams, Whitehead, Daniels, Yeary and Lamb. 

When the individuals gave the statements to MSHAJ the individuals were acting on their own 

behalf and at the behest of the agency. They were not acting fot the company. The company 

does not have an ownership interest in the statements no matter how liberally "control" is 

construed, and were I to order the company to instruct the employees to give it copies of the 

statements, and were the employees to refuse; there would be no way for the Commission to 

compel production. The order would essentially be unenforceable, and, as matter of sound 

policy, the Commission should eschew unenforceable orders. In addition,.other valid policy 

concerns relating to the effectiveness of the Secretary's investigations of alleged discrimination 

militate against ordering production. 

For all of these reasons, the Complainant's motion to reconsider the order IS DENIED. 

Distribution: 

_j)~·d~ David Barbour · 

Administrative Law Judge 

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 

/ej 

31 FMSHRC 974 

G"D U.S. GOVERNMENT PRINTING OFFICE: 200~58174304