MARCH AND APRIL 2009 

COMMISSION DECISIONS AND ORDERS 

03-04-2009 Rowan Construction Company SE 2009-125-M Pg.315 

03-12-2009 Nelson Quarries, Inc. CENT 2006-151-M Pg. 318 

03-12-2009 Mt. View Resources WEV A 2008-1853 Pg.335 

03-13-2009 Double Bonus Coal Company, et al. WEV A 2008-879 Pg.339 

03-18-2009 Sierra Cascade, LLC. WEST 2008-1408-M Pg.344 

03-18-2009 Shelton Brothers Enterprises KENT 2008-1407 Pg.347 

03-18-2009 XMV, Inc. WEV A 2009-47 Pg.350 

03-18-2009 Michael Cline YORK 2009-25-M Pg. 354 

03-19-2009 Double Bonus Coal Company WEV A 2009-810 Pg. 358 

03-31-2009 Big Ridge, Inc. LAKE 2008-516 . Pg. 362 

04-02-2009 Big Ridge, Inc. LAKE 2008-515 Pg. 366 

04-07-2009 Clean Energy Mining Company KENT 2008-1458 Pg.370 

04-17-2009 Graymont (PA) Inc. PENN 2008-467-M Pg.374 

04-17-2009 Extra Energy, Inc. WEV A 2009-44 Pg.377 

04-17-2009 S & S Rock SE 2009-116-M Pg. 383 

04-17-2009 Lueders Limestone, LP CENT 2009-96-M Pg.386 

04-23-2009 Penn Virginia Resources Partners VA 2008-369 Pg.389 

04-17-2009 Manalapan Mining Company KENT 2009-9 Pg.392 

04-17-2009 Big River Mining, LLC. WEVA2009-l Pg.396 

04-23-2009 Black Butte Coal Company WEST 2009-166 Pg.400 

04-27-2009 Cintas Corporation LAKE 2008-594-M Pg. 403 

04-27-2009 Webster County Coal, LLC. KENT 2008-1465 Pg.406 

04-27-2009 The Banner Company, LLC. VA 2008-384 Pg. 410 

04-27-2009 Old Dominion Energy, Inc. VA 2008-227 Pg. 414 

04-27-2009 Harvest-Time Coal, Inc. WEV A 2008-965 Pg.418 

04-28-2009 Muht-Hei, Inc./Camp Materials WEST 2008-1455-M Pg.422 

ADMINISTRATIVE LAW JUDGE DECISIONS 

03-04-2009 Cargill Deicing Technology LAKE 2009-314-DM Pg. 425 

03-05-2009 Moltan Company, LP SE 2006-227-M Pg. 427 

03-17-2009 Ohio County Coal Company KENT 2006-308-R Pg.438 

04-03-2009 Brooks Run Mining Co., LLC. WEVA 2007-701 Pg.445 

04-10-2009 Nelson Quarries, Inc. CENT 2008-287-M Pg.458 

04-02-2009 Excel Mining, LLC. KENT 2008-122 Pg. 473 

04-15-2009 · Wolf Run Mining Co. WEVA 2008-471 Pg. 479 

ADMINISTRATIVE LAW JUDGE ORDERS 

04-21-2009 Hopkins County Coal., LLC. KENT 2009-820-R Pg.481 

i 

MARCH AND APRIL 2009 

Review was granted in the following cases during the months of March and April 2009: 

Secretary of Labor, MSHA v. Eastern Associated Coal Corporation, Docket No. WEVA 2007-335. 

(Judge Weisberger, January 27, 2009) 

Secretary of Labor, MSHA v. Coal River Mining, LLC., Docket Nos. WEVA 2006-125-R, et al. 

(Judge Barbour, January 28, 2009) 

Secretary of Labor, MSHA v. Wolf Run Mining Company, Docket No. WEVA 2008-804. (Judge 

Feldman, February 26, 2009) 

No case was filed in which review was denied during the months of March and April 2009: 

ii 

CO:MMISSION DEQSIONS AND ORDERS 

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 

March 4, 2009 

Docket No. SE 2009-125-M 

A.C. No. 08-01215-131854 

ROW AN CONSTRUCTION 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 November 14, 2008, the Commission received from 

Rowan Construction Company ("Rowan") 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). 

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

assessment. 

Here, the proposed assessment was delivered to Rowan's building, but another tenant at 

that location accepted delivery of the assessment. Sometime later, the tenant gave the assessment 

31FMSHRC315 
to Rowan. Thereafter, Rowan timely notified the S~cretary of its intent to contest the 

assessment. 1 

Accordingly, the proposed penalty assessment is not a final order of the Commission, and 

Rowan's motion is moot. We remand this matter to the Chief Administrative Law Judge for 

assignment to a judge. This case shall proceed pursuant to the Mine Act and the Commission's 

Procedural Rules, 29 C.F.R. Part 2700. See State of Alaska Dep 't of Transp. and Pub. Facilities, 

29 FMSHRC 389, 390 (June 2007). Consistent with Rule 28, the Secretary sh<;l.11 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. C()hen, Jr., Commis toner 

1 The facts concerning the delivery of the assessment to Rowan, which are stated in an 

affidavit, are unopposed by the Secretary and accepted as stated for the limited purpose of 

considering the motion. 

31FMSHRC316 
Distribution: 

William K. Doran, Esq. 

Ogletree, Deakins, Nash, 

Smoak & Stewart, P.C. 

2400 N Street NW, 51

h Floor 

Washington, DC 2003 7 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety &·Health Review Commission· 

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

Washington, D.C. 20001-2021 

31FMSHRC317 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

NELSON QUARRIES, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

March 12, 2009 

Docket Nos. CENT 2006-151-M 

CENT 2006-201-M 

CENT 2006-203-M 

BEFORE: Duffy, Chairman; 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''), Administrative Law Judge 

Richard W. Manning concluded that Nelson Quarries, Inc. ("Nelson Quarries") violated 

30 C.F.R. § 56.6130(a) when it failed to store an explosive in a magazine, and that the violation 

was significant and substantial f'S&S"). 1 30 FMSHRC 254, 260-61 (April 2008) (ALJ). He 

further determined that the operator violated 30 C.F .R. § 56.6300(b) when an employee who 

allegedly lacked adequate training and experience used explosives while unsupervised. Id. at 

265. The judge also held that Gene Andres, Ronnie Head, and Jeff Benedict were agents of 

Nelson Quarries within the meaning of the Mine Act, and that their negligence was imputable to 

the operator for unwarrantable failure purposes for three citations and one order.2 Id. at 262-63, 

284-85, 288-89. Nelson Quarries filed a petition for discretionary review, challenging the 

judge's determinations that the violation of section 56.6130(a) was S&S, that the operator 

1 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." 

2 The unwarrantable failure terminology is taken from section 104( d) of the Act, 

30 U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a 

violation. 

31FMSHRC318 
violated section 56.6300(b ), and that the three individuals were agents. The Commission granted 

the petition. For the reasons that follow, we affirm the judge's decision. 

I. 

Factual and Procedural Background 

fu October and November 2005, Nelson Quarries operated five portable limestone 

quarries in Allen and Crawford Counties, Kansas. 30 FMSHRC at 255. Nelson Quarries is 

owned in part by Kenneth Nelson: Gov't Ex. 137, at 9-2; Tr. 661. During the time in question, 

the operator referred to Patrick Clift and Mike Peres as superintendents, and to Andres, Head, 

and Benedict as foremen of Plants 4, 5, and 2, respectively. N. Br. at 6; Tr. 42, 184, 473-74, 558, 

661, 663. 

fuspectors from the Department of Labor's Mine Safety and Health Administration 

("MSHA") conducted hazard inspections of the plants after a former employee of Nelson 

Quarries filed a complaint with MSHA listing unsafe conditions that allegedly existed at the 

plants. 30 FMSHRC at255-56. fu addition, the inspectors conducted regular inspections of the 

plants. Those regular and hazard inspections gave rise to the three citations and one order that 

are the subjects of these proceedings. Tr.185. 

A. Citation No. 6291250 

On November 15, 2005, MSHA fuspector Dustan Crelly conducted regular and hazard3 

inspections of Plant 4at the Cherryvale location. Tr. 183. When he arrived at the mine, 

fuspector Crelly introduced himself and asked for the person in charge. Tr. 184. Gene Andres 

stated that he was the foreman and accompanied the inspector throughout the inspection. Tr. 

188; Gov't Ex. 12, at 4. 

fuspector Crelly inspected the parts trailer, which was a semi-van with doors toward the 

back of the trailer. Tr. 193, 194. He observed two partial rolls of primer or shock tubing4 stored 

under shelves toward the front of the trailer. Gov'tEx. 13; Tr. 191, 194. The shock tubing was 

not in the original manufacturer's packaging. Tr. 193. The material had apparently been in the 

parts trailer for some time. 30 FMSHRC at 261-62; Tr. 195, 216. fuspector Crelly issued 

Citation No. 6291250, alleging a violation of section 56.6130(a) because the shock tubing was 

3 The hazard complaint received by MSHA alleged in part that "Explosives are left 

unguarded and hid around the plants to save time and money (Cherryvale)." Gov't Ex. 11. 

4 Shock tubing is used as a lead line to detonate high explosives, and is considered a low 

explosive. 30 FMSHRC at 259; Tr. 191. 

31FMSHRC319 
not stored in a magazine.5 30 FMSHRC at 258. The inspector designated the violation as S&S 

and as caused by the operator's unwarrantable failure to comply with the standard. Id. at 258, 

259. 

B. Order No. 6291251 

On November 16, 2005, Inspector Crelly inspected the crusher shack at Plant 4 and 

discovered a stick of Boostrite, a high explosive, stored in the shed next to initiation devices. Tr. 

206-07. The inspector asked Travis Tomlinson, the crusher operator, Why the Boostrite was 

being stored in the crusher shed. Tr. 204-05. Tomlinson replied that on the preceding Monday, 

he had used one stick in the hopper of the crusher to break up large or hung-up material. 

30 FMSHRC at 263; Tr: 204-05. Tomlinson stated that, while he was using .the explosives, 

Andres was loading trucks. 30 FMSHRC at 265; Tr. 207-08. He further explained that rather 

than put the Boostrite back in the magazine, he had just placed it in the crusher shack. Tr. 205. 

The inspector stated that he observed Tomlinson smoking in the crusher shack. 30 FMSHRC at 

263; Tr. 209-10. The inspector determined that Tomlinson was inexperienced in the handling 

and use of explosives, and that he had used the Boostrite while he was not in the presence of an 

experienced miner. 30 FMSHRC at 263. Accordingly, the inspector issued Order No. 6291251, 

alleging a violation of section 56.6300(b ). 6 Id. The inspector designated the alleged violation as 

S&S and as caused by the operator's unwarrantable failure. Gov't Ex. 15~ 

C. Citation No. 6291595 

On October 26, 2005, Inspector Chrystal Dye arrived at Plant 5 to conduct an inspection. 

Tr. 531, 553. When she asked for the person in charge, Ronnie Head introduced himself as the 

foreman and accompanied Inspector Dye throughout the inspection. Tr. 558. During the 

inspection, Inspector Dye tested the parking brake of a Euclid haul truck while it was empty on a 

slight grade and determined that the brake did not hold the truck against movement. 30 

FMSHRC at 283; Tr. 553-54. She also noted that the condition had been documented since late 

September 2005 by three different truck operators in preshift reports. 30 FMSHRC at 28-3; Tr. 

555. Inspector Dye asked Head if he knew about the condition, and he stated that he did. Tr. 555. 

Head explained that he had called the mechanic to fix the parking brake, but that the mechanic 

had allegedly stated that the brake did not need to work. Id. Inspector Dye issued Citation No. 

5 30 C.F.R. § 56.6130(a) states that "[d]etonators and explosives shall be stored in 

magazines." 

6 30 C.F.R. § 56.6300(b) provides that "[t]rainees and inexperienced persons shall work 

only in the immediate presence of persons trained and experienced in the handling and use of 

explosive material." 

31 FMSHRC 320 
6291595, alleging a violation of section 56.141 Ol(a)(2). 7 30 FMSHRC at 283. She designated 

the alleged violation as S&S and caused by the operator's unwarrantable failure. Id. 

D. Citation No. 6321288 

On October 5, 2005, Inspector James Timmons went to Plant 2 to investigate allegations 

about an accident included in the hazard complaint. 8 When he arrived at the plant, the inspector 

asked to see the foreman on the site, and Jeff Benedict stated that he was the foreman. Tr. 663. 

The inspector was informed that on September 23, 2005, Travis Larson had been directed by 

Benedict to operate the IH 530 front-end loader, which had non-functioning service, brakes, to 

remove a lime pile. 30 FMSHRC at 287; Tr. 663-64. When Larson had driven up a ramp and 

raised the bucket, the loader's motor failed. Tr. 664. The loader then ran down the ramp and 

through a guardrail. Id. Before the accident, the mine superintendent, Patrick Clift, had 

instructed Benedict not to use the loader until a mechanic had worked on the loader's brakes. 

30 FMSHRC at 288; Tr. 666, 675. The inspector issued Citation No. 6321288, alleging a 

violation of30 C.F.R. § 56.14100(c).9 30 FMSHRC at 287. He designated the alleged violation 

as S&S and as caused by the operator's unwarrantable failure. 

Nelson Quarries challenged these citations and this order in addition to 96 other Citations 

and orders not currently before the Commission on review. Id. at 255. The matter was heard by 

Judge Manning. 

7 30 C.F.R. § 56.14101(a)(2) provides, "If equipped on self-propelled mobile equipment, 

parking brakes shall be capable of holding the equipment with its typical load on the maximum 

grade it travels.,; 

8 The hazard complaint stated in part: 

Gov't Ex. 11. 

A new hire was put on a loader at Gas City. He had no training. 

There were no brakes on the loader. He rolled the bucket back to 

kill the engine. The loader operator rolled down the hill through a 

rail. He tipped over. It took quite some time to get him out. 

9 30 C.F.R. § 56.14100(c) provides: 

When defects make continued operation hazardous to 

persons, the defective items including self-propelled mobile 

equipment shall be taken out of service and placed in a designated 

area posted for that·purpose, or a tag or other effective method of 

marking the defective items shall be used to prohibit further use 

until the defects are corrected. 

31 FMSHRC 321 
E. The Judge's Decision 

The judge concluded that, as alleged in Citation No. 6291250, the operator violated 

section 56.6130(a) when it stored shock tubing, which is an explosive, in the parts trailer and not 

in a magazine. 30 FMSHRC at 260-61; 30 C.F.R. § 56.6130(a). He further determined that the 

violation was S&S because the shock tubing was reasonably likely to propagate a fire in the 

trailer and was reasonably likely to misfire, if used. 30 FMSHRC at 261. fu addition, the judge 

found that the violation was caused by unwarrantable failure because the condition was obvious 

and had existed for some time. Id. at 262. He also held that Gene Andres was an agent of 

Nelson Quarries and that his negligence was imputable to the operator for purposes of penalty 

assessment and unwarrantable failure findings. Id. Accordingly, the judge assessed a penalty of 

$1,000, as proposed by the Secretary. Id. at 259, 263. 

The judge next determined that Nelson Quarries violated section 56.6300(b) as alleged in 

Order No. 6291251 based on his findings that Travis Tomlinson, who was inexperienced, used 

explosives to shoot material out of the hopper without the presence of a miner who was trained 

and experienced in the use of explosives, such as Gene Andres. Id. at 263-65. In so concluding, 

the judge credited the testimony of Inspector Crelly and the Secretary's exhibits. Id. at 265. He 

also upheld the S&S designation based on his determination that it was reasonably likely that the 

. hazard contributed to by the violation would result in death or serious injury assuming continued 

normal mining operations, since inexperienced and untrained miners pose a hazard to themselves 

when handling explosives. Id. The judge further determined that the violation was 

unwarrantable, noting that the violation had been obvious; there had been little to no supervision 

ofthe use and storage of explosives; no effort had been made to properly train Tomlinson; and 

nothing ill the record suggested that the incident giving rise to the order had been an isolated or 

unusual event. Id. at 265-66. Accordingly, concluding that the operator had exhibited 

indifference and a serious lack of reasonable care, the judge assessed a penalty of $1,500, rather 

than the penalty of$1,300 proposed by the Secretary . .Jd. at 263, 266. 

As to Citation No. 6291595, the judge determined that the operator violated section 

56.14101(a)(2) because the parking brake on the haul truck did not :function properly. Id. at 283. 

The judge further determined that the violation was S&S, noting that the condition had existed 

for almost a month, and it was reasonably likely that the hazard contributed to by the violation 

would lead to a serious accident. Id. at 284. The judge upheld the unwarrantable failure 

designation, concluding that Head, who was an agent whose conduct was imputable to the 

operator, knew of the condition, that the condition posed a significant risk to employees, and that 

Head allowed the truck to be used. Id. at 284-85. Accordingly, the judge assessed a penalty of 

$625, as proposed by the Secretary. Id. at 283, 285. 

The judge upheld the violation of section 56.14100( c) and the S&S designation alleged in 

Citation No. 6321288 arising from the accident that occurred when Larson used the loader with 

defective brakes. Id. at 289. The judge also upheld the unwarrantable failure designation based 

on his finding that Benedict, who was the agent of Nelson Quarries when he directed Larson to 

31FMSHRC322 
operate the loader, demonstrated a serious lack of reasonable care. Id. The judge determined 

that because Benedict disregarded the instruction of his supervisor to remove the loader from 

service, the operator's negligence was not as high as it otherwise would have been. Id. 

Accordingly, the judge assessed a penalty of $800, rather than the penalty of $1,500 proposed by 

the Secretary. Id. at 287, 289. 

The operator filed a petition for discretionary review challenging the judge's foregoing . · 

determinations, which the Commission granted. 

II. 

Disposition 

A. Whether the judge correctly determined that the operator's violation of section 

56.6130(a) was S&S? 

Nelson Quarries argues that the judge erred in finding that its violation of section 

56.6130(a) was S&S. N. Br. at 1-3. It contends that the judge failed to give sufficient weight to 

evidence that hazards related to shock tubing are from fumes from burning plastic rather than 

from explosions, that the shock tubing's blast would be limited, and that blow-outs are caused by. 

·improper· transportation of shock tubing and not by improper storage. Id. The Secretary .. 

responds that the evidence focused upon by the operator does not relate to either of the two bases 

for the judge's S&S determination - that the improperly stored shock tubing was reasonably 

likely to propagate a fire and was reasonably likely to misfire, if used. S. Br. at 24-25. 

The S&S terminology is taken from section 104(d) oftb.e Mine Act, 30 U.S.C. § 814(d), 

and refers to more serious violations. A violation is S&S if, based on the particular facts 

surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will 

result in an injury or illness ofa reasonably serious nature. See Cement Div., Nat'! Gypsum Co., 

3 FMSHRC 822, 825 (Apr. 1981 ). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the 

Commission further explained: 

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

Secretary of Labor must prove: (I) the underlying violation of a 

mandatory safety standard; (2) a discrete safety ha2ard - that is, a 

measure of danger to safety- contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in 

an injury; and ( 4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. 

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 

1995); Austin Power, Inc. v. Sec '.Y of Labor, 861 F .2d 99, 103 (5th Cir. 1988) (approving Mathies 

31 FMSHRC323 
criteria). An evaluation of the reasonable likelihood of injury should be made assuming 

continued normal mining operations. See US Steel Mining Co.~ 7 FMSHRC 1125, 1130 (Aug. 

1985). 

We conclude that substantial evidence supports the judge's S&S determination, 10 As the 

judge found, the improperly stored shock tubing could propagate a fire. 30 FMSHRC at 260-61. 

It is undisputed that the protective packaging of the shock tubing had been removed, and that the 

shock tubing was not in any other container. 30 FMSHRC at 259; Tr. 193. The shock tubing 

would burn vigorously in the event of a fire. 30 FMSHRC at 261; Tr. 199. Smoking was 

permitted in the area, and the inspector observed cigarette butts in and around the trailer. 

30 FMSHRC at 261; Tr. 201. Miners entered the parts trailer on a daily basis for first aid 

materials, hearing protection, and to review information on a bulletin board. Tr. 201, 312. 

Moreover, there is substantial evidence to supportthe judge's conclusion that the 

improperly stored shock tubing could misfire, if used. 30 FMSHRC at 261. The Secretary's 

expert, Thomas Lobb, testified that since the shock tubing was not stored in its packaging, the 

shock tubing could be degraded so that it would misfire when it was used. Tr. 238-41. He 

explained that if the tubirig lost its integrity or the explosive powder migrated, there could be a 

shut-down in the explosive train or a loss of detonation pressures inside the tubing, resulting in a 

misfire. Tr. 239-40. Migration of the explosive powder within the tubing could occur if the 

shock tube windings are oriented vertically; Tr. 238:..39; Gov~t Ex. 14b, at 3. In the parts trailer 

at the time of the citation, one roll of shot tubii:ig was leaning at an angle, so that the windings 

were not in a horizontal position. Tr. 201-02; Gov't Ex. 13c. Because the shock tubing was not 

stored in its packaging or any other container, it could also be Contaminated by grit· and sand, 

which typically exist in a parts trailer. 30 FMSHRC at 259; Tr. 200. The operator's witness, Jon 

Bruner, testifiedthat the exposure of the tube ends to dirt or moisture could cause the shock 

tubing to misfire. 30 FMSHRC at 259; Tr. 264-66. 

We are not persuaded by the operator's· argument that the judge failed to give sufficient 

weight to evidence that it maintains detracts from the S&S finding. The evidence relied upon by 

the operator does not detract from the judge's determination that the violation was S&S because 

the improperly stored shock tubing could propagate a fire, or misfire, if used. For instance, even 

if we were to conclude, as asserted by the operator, that hazards associated with improperly 

stored shock tubing are from fumes from burning plastic rather than from explosions, such a 

conclusion does not detract from the judge's finding that the improperly stored shock tubing 

could also propagate a fire. 

10 When reviewing an administrative law judge's factual determinations, the Commission 

is bound by the terms of the Mine Act to apply the substaritial evidence test. 30 U.S.C. 

§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable 

mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh 

Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 

U.S. 197, 229 (1938)). 

31 FMSHRC 324 
Nor are we persuaded by the operator's argument that the judge failed to give sufficient 

weight to evidence that the shock tubing's blast would be limited. Nelson Quarries notes that the 

Secretary's expert, Thomas Lobb, indicated that the tubing may be relatively safe from a distance 

of 25 meters away. N. Br. at 1. It emphasizes that, in contrast, the material safety data sheet 

("MSDS") states that shock tubing is "packed or designed so that any hazardous effects arising 

from accidental functioning are confined within the package." Id. at 1-2 (quoting Gov't Ex. 14b, 

at 17). The operator's argument based on the MSDS assumes that the shock tubing was still in 

. its packaging. Here, however, the protective packaging of the shock tubing had been removed, 

and hazardous effects would therefore not be confined within the package. Tr. 193. 

Finally, the judge did not err by failing to give more weight to evidence that "blow outs" 

due to powder migration are caused by shock tubing being transported over mining roads while 

the windings are in a vertical orientation, rather than by improper storage. N. Br. at 2. The 

document relied upon the operator provides that if shock tubing "is in a spool holder with shock 

tubing windings oriented vertically, powder migration may occur." Gov't Ex. 14b, at 3. Here, 

the hazards due to improper storage identified by the judge included the propagation of a fire and 

the possibility of misfiring if the shock tube were used; rather than a "blow out" during 

transportation. 30 FMSHRC at 260-61. 11 Accordingly, we affirm the judge's determination that 

Nelson Quarries' violation of section 56.6130(a) wasS&S. 

B. Whether the judge correctly concluded that the operator violated section 

56.6300(b)? 

The operator requests that the Commission vacate the judge's determination that it 

violated section 56.6300(b) because it contends that the judge erred in crediting the testimony of 

fuspector Crelly that Tomlinson was inexperienced in the handling and use of explosives. N. Br. 

at 3-5. It maintains that it provided credible testimony that Tomlinson had been trained by other 

company personnel before coming to work at Plant 4. Id. at 5. It disputes the inspector's 

testimony that he witnessed Tomlinson smoking in the crusher operator's shack because 

Tomlinson should not have been in the crusher shack during the inspection since the crusher was 

not operating during that time. Id. at 3. It further notes that the judge did not rely upon fuspector 

Crelly's testimony with regard to other unrelated citations. Id. at 3-5. The Secretary responds 

that the Commission should affirm the violation. S. Br. at 27"729. 

11 The operator also contends that the shock tubing was not in plain view, as testified by 

fuspector Crelly, because it was at the far end of an unilluminated trailer, underneath shelving 

and against the wall. N. Br. at 3. As the Secretary argues (S. Br. at 25 n.10), it appears that the 

operator's argument that the shock tubing was not in plain view is an objection to the judge's 

negligence finding. fu any event, we conclude that substantial evidence supports the judge's 

finding. The inspector testified that he immediately observed the shock tubing when he entered 

the trailer. Tr. 194; Gov't Ex. l 3c. fu addition, Gene Andres was responsible for daily 

examinations of the parts trailer, and the shock tubing had been in the trailer for some time, 

perhaps since June 2005. 30 FMSHRC at 262; Tr. 194-95, 202-03, 216. 

31 FMSHRC 325 
Section 56.6300(b) requires that "Trainees and inexperienced persons shall work only in 

the immediate presence of persons trained and experienced in the handling and use of explosive 

material." 30 C.F.R. § 56.6300(b). Inspector Crelly testified that Travis Tomlinson had told the 

inspector that Andres was loading trucks on the day that Tomlinson used explosives in the 

hopper, so nobody was supervising him. Tr. 208. Andres acknowledged that he must not have 

been with Tomlinson while he was shooting the hopper. Tr. 306. The judge found thatbecause 

Andres was operating a loader at the time, Tomlinson had used explosives when he was not in 

the immediate presence of someone trained and experienced in the use of explosive material. 30 

FMSHRC at 265. The operator has not challenged that finding on review. 

The remaining factor relevant to the finding of violation is whether Tomlinson was 

inexperienced in the use and handling of explosives and, thus, required the immediate presence 

of an experienced miner. The judge explicitly considered the operator's evidence that Nelson 

Quarries states should have been credited. Specifically, the judge noted Clift's testimony that 

Tomlinson had been trained to handle and use explosives, that other Nelson Quarries employees 

had shown Tomlinson how to shoot out crushers at other plants owned by the company, and that 

Tomlinson had helped other more experienced miners perform the task before he did so on his 

own. Id. at 263-64. He also noted Andres' testimony denying that he ever told Inspector Crelly 

that Tomlinson was not qualified to handle and use explosives and that he had only meant that he 

had not personally trained Tomlinson. Id. at 264. In addition, the judge noted Nelson Quarries' 

argument that Tomlinson cameto Plant 4 already trained. Id. However, the judge credited the 

Secretary's evidence over the operator's evidence. Id. at 265. 

The Commission has recognized that a judge's credibility determinations are entitled to 

great weight and may not be overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 

1537, 1541 (Sept 1992); Penn A/legh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). The 

Commission has also recognized that, because the judge "has an opportunity to hear the · 

testimony and view the witnesses[,] he [or she] is ordinarily in the best position to make a 

credibility determination." In re: Contests of Respirable Dust Sample Alteration Citations, 17 

FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp. v. NLRB, 729 F:2d 713, 719 (11th Cir. 

1984)), aff'd sub nom. Sec'y of Labor v. Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 

1998). Nonetheless, the Commission will not affirm such determinations if they are selfcontradictory or ifthere is no evidence or dubious evidence to support them. Id. at 1881 n.80; 

Consolidation Coal Co., 11FMSHRC966, 974 (June 1989). 

We conclude that overturning the judge's credibility determinations is l.lllWarranted, and 

that substantial evidence supports the judge's determination that Tomlinson was neither 

sufficiently trained nor experienced in the handling or use of explosives to use them without 

supervision. 30 FMSHRC at 265. Inspector Crelly testified that when he asked Andres if 

Tomlinson was experienced or trained in the handling of explosives, Andres had replied, "no," 

and that Andres usually shot the hopper. Tr. 207, 211-12: Gov't Ex. 12, at 11. The inspector· 

also noted that Andres had stated that he knew it was wrong to have an inexperienced person 

using powder or explosives. Gov't Ex. 12, at 8. The inspector testified that Tomlinson had also 

31FMSHRC326 
informed him that he was "uncomfortable doing it." Tr. 207. The inspector noted Andres' 

statements in his field notes. Gov't Ex. 12, at 11. Andres reviewed the inspector's notes, made 

changes, and signed his name to the notes. Id.; Tr. 212. Andres did not make any changes to the 

summary ofhis statements regarding Tornlinsoli's experience. Gov't Ex. 12, at 11. 

Moreover, the judge's conclusion that the operator failed to present "credible" evidence 

"to show that Tomlinson had actually been trained or was sufficiently experienced" is supported 

by substantial evidence~ 30 FMSHRC at 265. Clift' s testimony that other miners had trained 

Tomlinson on using explosives and that he had observed Tomlinson use explosives in a crusher 

was vague as to details and dates~ Id.; Tr. 275. Furthermore, Clift acknowledged that he himself 

had little experience with explosives. Tr. 286. ,Andres testified that he had only been told by 

others that Tomlinson had been trained and that he had never seen any task-training records. Tr. 

318-19. The operator provided no documentary evidence, such as training records, revealing that 

Tomlinson had been trained. In addition, the operator did not present testimony at the hearing by 

Tomlinson regarding his training or testimony by other miners who had allegedly trained him. 

Tomlinson's actio11s in storing a high explosive in the crusher shack and in smoking 

around the explosives also demonstrate a lack of training and experience requiring the immediate 

presence of an experienced miner. Rather than returning Boostrite, a high explosive, to the 

magazine, Tomlinson stored it near initiation devices in: the crusher shack. See 30 FMSHRC at 

263; Gov't Ex. 137f, at 8-4; Tr. 204, 206, 212. Andres remarked, "I liked to have had a heart 

attack when I saw the explosive in there." Tr. 314-15; Gov't Ex. 137g, at 9-5. Furthermore, we 

do not find persuasive the operator's argument that Tomlinson could not have been observed 

smoking in the crusher shack since Tomlinson was not working in the crusher shack during the 

inspection. Inspector Crelly testified that he observed Tomlinson smoking near the explosives, 

which may have occurred when Tomlinson and Andres accompanied him: during the inspection. 

Tr. 210. In any event, the inspector noted in his field notes that he observed an ash tray and 

cigarette butts in the operator shack. Gov't Ex. 12, at 8. Thus, there is substantial evidence 

supporting the judge's finding that the inspector had, in fact, seen Tomlinson smoking near the 

explosives. 

Finally, we reject the operator's argument thatthe judge erred in crediting Inspector 

Crelly's testimony because the judge declined to credit the inspector's testimony with regard to 

other citations. The Commission has recognized that it does "not subscribe to a 'false in one, 

false in everything' rule of testimonial evidence." Sec '.Y of Labor on behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC 803, 813 (Apr. 1981). Thus; ifthejudge declined to credit 

the inspector's testimony regarding one citation, he is not required to discredit the inspector's 

testimony as to all citations. Moreover, in the instances referred to by the operator, the judge did 

not specifically discredit Inspector Crelly's testimony. Rather, he concluded, after weighing the 

record evidence, that the Secretary had not established violations. See CENT 2006-230-M: 30 

FMSHRCat 308-09; Gov't Ex. 112a; CENT 2006-230-M: 30 FMSHRC at 309; Govt' Ex. 113; 

CENT 2006-237-M: 30 FMSHRC at 309, 313; Gov't Ex. 129 and 30 FMSHRC at 314; Gov't 

Ex. 131a. 

31 FMSHRC 327 
In sum, substantial evidence supports the judge's finding of violation. Accordingly, we .· 

affirm the judge's determination that Nelson Quarries violated section 56.6300(b). 

C. Whether the judge correctly determined that the three employees in question were 

agents of the operator? 

Nelson Quarries contends that the judge erred in concluding that Andres, Head, and 

Benedict were its agents and that their negligence related to Citation Nos. 6291250, 6291595, 

and 6321288, and Order No; 6291251, was imputable to the operator for unwarrantable failure 

purposes. N~ Br. at 5-7. The operator explains that although it referred to the three employees as 

foremen, they were~ in fact, only lead men who did not have the authority to hire, fire, or 

discipline employees, to assign equipment, or to perform any duty that was not well established 

by company protocol. Id. It asserts that, on the other hand, Peres and Clift were the foremen of 

the plants and functioned as management. Id. at 6. Accordingly, it requests that the Commission 

vacate the judge's unwarrantable failure determinations. Id. at 7. The Secretary responds that 

substantial evidence supports the judge's finding that Andres, Head, and Benedict were agents of 

Nelson Quarries. S. I~r. at 17-23. 

Section 3( e) of the Mine Act defines an "agent" as "any person charged with 

responsibility for the operation of all or part of a .... mine or the supervision of.the miners in 

a ... mine." 30 U.S.C. § 802(e). The Commission has recognized that the negligence of an 

operator's "agent" is imputable to the operator for penalty assessment and unwarrantable failure 

purposes. Whayne Supply Co., 19 FMSHRC 447,451(Mar.1997); Rochester & Pittsburgh Coal 

Co.,13 FMSHRC 189, 194:-97 (Feb. 1991) ("R&P"); Southern Ohio Coal Co., 4FMSHRC 

1459, 1463-64 (Aug. 1982) ("SOCCO"). In contrast, the negligence ofa rank-and-file miner is 

not imputable to the operator for the purposes of penalty assessment or unwarrantable failure 

determinations. Whayne, 19 FMSHRC at 451, 453; Fort Scott Fertilizer~Cullor, Inc., 17 

FMSHRC 1112, 1116 (July1995); SOCCO, 4 FMSHRC at 1463-64. 

In considering whether an employee is an operator's agent, the Commission has "relied, 

not upon the job title or the qualifications of the miner, but upon his function, [and whether it] 

was crucial to the mine's operation and involved a level ofresponsibility normally delegated to 

management personnel." Ambrosia Coal & Constr. Co., 18 FMSHRC 1552, 1560 (Sept. 1996) 

(quoting US. Coal, Inc., 17 FMSHRC 1684, 1688 (Oct 1995))(alteration in original). We 

consider factors such as the ability of the employee to direct the workforce, whether the 

employee holds himself out as a person with supervisory responsibilities and is so regarded by 

other miners, and whether the actions of the employee in directing the workforce have an impact 

on health and safety at the mine. Ambrosia, 18FMSHRCat1553-54, 1560~61; Sec'y of Labor 

on behalf of Hyles v. All American Asphalt, 21 FMSHRC 119; 130 (Feb. 1999) (holding that 

leadmen who acted in a supervisory capacity and were in a position to affect safety were agents 

of the operator to whom employees would logically voice their complaints). We are mindful that 

the term, "agent," must be interpreted in light of the overall purpose of the Mine Act to protect 

the health and safety of miners. See RNS Servs., Inc. v. Sec '.Y of Labor, 115 F.3d 182, 187 (3d 

31 FMSHRC 328 
Cir. 1997) (construing Mine Act provision broadly to effectuate statutory purpose of protecting 

miner safety); Rock of Ages Corp. v. Sec'y of Labor, 170 F.3d 148, 155 (2d Cir. 1999) (same). 

··The judge's conclusion that the employees acted as agents whose conduct was imputable 

to Nelson Quarries is amply supported by substantial evidence: The Commission has concluded 

that in carrying out required examination duties for an operator; an examiner may be 

appropriately viewed as being charged with responsibility for the operation of part of a mine. 

R&P, 13 FMSHRC at 194; see also Pocahontas Fuel Co. v. Andrus; 590 F.2d 95 (4th Cir. 1979) 

(holding that preshift examiner's knowledge was imputable to the operator for unwarraritable · 

failure purposes under principles of respondeat superior); Ambrosia, 18 FMSHRC at 1561 

(finding relevant that employee made required daily examinations and entered findings in an 

examination book). It is undisputed that Andres, Head, and Benedict were responsible for 

conducting the daily workplace examinations at the plants. 30 FMSHRC at 262, 284; Tr. 832; 

see also Tr. 280-81. 

In addition, Andres, Head, and Benedict demonstrated that they had been charged with 

responsibility for the operl!tion of part of the mine or for the supervision of employees through 

their actions in directing work to be done at the plants. 30 FMSHRC at 262, 284-85, 288. In an 

interview with MSHA, Benedict stated that he could ·direct the work force assigned to him. 

Gov't Ex. 137b, at 6-2. Similarly, Andres testified that he could direct the crew and assign tasks. 

Tr. 308; Gov't Ex. 137g; at 9.:.2; see also Gov't Ex. 137f, at 8-2 (Tomlinson's statement that 

Andres directed the work force on his crew). Inspector Dye testified that, during the inspection, 

Head directed the work force at the plant and addressed problems that the employees were having 

as they repaired items that had been cited. Tr'. 559. · 

Evidence ofthe manner in which Andres, Head, and Benedict were treated by those with 

whom they worked also supports the judge's agency determination. Employees who were on the 

crews of Andres, Head, and Benedict treated them as supervisors. For instance, when asked by 

MSHA who his foreman was, Tomlinson replied, "Gene Andres. I answer to him." Gov't Ex. 

137f, at 8-2. During Inspector Dye's inspection, when employees had problems with their work, 

they contacted Head. Tr. 559. Travis Larson used a front-end loader when directed to do so by 

Benedict, even though the loader had been removed from service. 30 FMSHRC at 288-89; Tr. 

663. Moreover, Peres and Clift relied upon the supervisory functioning of Andres, Head, and 

Benedict. Tr. 602-04. Peres testified that he reviewed the workplace examination reports about 

weekly and otherwise relied upon the reports of the foremen. Id. 

Andres, Head, and Benedict also identified themselves as functioning in supervisory 

roles. Each identified himself as a foreman when the MSHA inspectors arrived at the plants and 

requested the person in charge. Tr. 184, 558, 663. Similarly, the employees held themselves out 

as representatives of Nelson Quarries when they accompanied the inspectors during the subject 

inspections. Tr. 188, 558. There was no indication that Nelson Quarries, through Clift ot Peres, 

took any actions to indicate that Andres, Head, or Benedict were not in charge at their respective 

plants. See Tr. 278. 

31 FMSHRC 329 
Moreover, Nelson Quarries itself identified the three as foremen in reports that it was 

required to file with MSHA. For instance, the legal identity report for Plant 4 identifies Andres 

as "Foreman" under the section entitled, "person at mine in charge of health and safety 

(superintendent or principal officer)." Tr. 184; Gov't Ex .. 10. The legal identity report for Plant 

2 identifies under the "person at mine in charge of health and safety" as "Jeff Bened.ict, 

Foreman." Tr. 283. An MSHA report required for mine start-up and closure activity lists Head 

as the person in charge at Plant 1 from December 2004to June 2005. Gov't Ex. 139; Tr. 565-66. 

Inspector Dye stated that she had no reason to believe that the notations in the report would. not 

apply to Plant 5. Tr. 566. While the identification of Andres, 12 Head, and Benedict as foremen is 

not necessarily dispositive of their status as agents, it is very relevant that Nelson Quarries and 

the employees themselves represented to MSHA that they were the persons in charge at the 

plants. R&P, 13 FMSHRC at 195; see also Ambrosia, 18 FMSHRC at 1561 n.12 (finding 

relevant, based on analogy to common law agency principles, that employee held himself out as 

the employee in charge at the mine and signed MSHA documents as mine foreman). 

Finally, the record shows that the employees exercised managerial conduct at the time of 

the alleged violations and that their actions impacted safety. With respect to Citation No. 

6291250, Andres was responsible for daily examinations of the parts trailer. Tr. 280...,81, 309-

310, 832. The shock tubing existed in the trailer for some time;perhaps since June 2005, 

approximately five months before the citation was issued. 30 FMSHRC at 260; Tr. 296; Gov't 

Ex. 13b. As to Order No. 6291251, Andres, a certified blaster, acknowledged that he would 

normally be with the crusher operator when he shot explosives, but that he was not with 

Tomlinson when he used the explosives during the time in question. 30 FMSHRC at 264; Tr: . 

306; Gov't Ex. 137g, at 9-5. As to Citation No. 632188, Benedict instructed Larson to move a 

lime pile with a front-end loader that did not have functioning brakes. 13 30 FMSHRC at 287, 

289; Gov't Ex. 40; Tr. 663, 665-66, 840-41. With respect to Citation No. 6291595, the pre-shift 

12 In an umelated proceeding, MSHA issued citations to Andres pursuant to section 

110( c) of the Mine Act, and Andres apparently paid the related civil penalties. Tr. 833, 836, 

1172-. 7 4. Section 110( c) provides in part that, "Whenever a corporate operator violates a 

mandatory health or safety standard ... , any director, officer,· or agent of such corporation who 

knowingly authorized, ordered, or carried out such violation ... shall be subject to the same civil 

penalties ... that maybe imposed upon a person under [section l lO(a)]." 30 U.S.C. § 820(c). 

13 The operator states that lead men lacked the authority to assign equipment. N. Br. at 7; 

Tr. 823, 842. Clift testified that he had told Benedict to take the loader out of service until the 

mechanic could repair it. Tr. 841. The Commission ha~; recognized that unauthorized acts of 

misconduct may be within an agent's scope of employment and imputable to the operator for 

unwarrantable failure purposes. R&P, 13 FMSHRC at 197. It appears that Benedict had the 

authority to direct work at the quarry, but in doing so, directed an employee to use equipment that 

had been taken out of service. We conclude that the judge correctly determined that Benedict 

was acting as an agent for Nelson Quarries when he directed Larson to operate the front-end 

loader because he was acting within his authority to direct the workforce. 30 FMSHRC at 288. 

31 FMSHRC 330 
reports established that the parking brake had not been working on the haul truck since late 

September 2005. 30 FMSHRC at 283; Tr. 554-55. Although Head knew that the truck had 

faulty brakes, he allowed the truck to be used and did not remove it from service. 30 FMSHRC 

at 283; Tr. 561-63; 

We find unpersuasive the operator's argument that Andres, Head, and Benedict had no 

managerial responsibilities as evidenced by the hazard complaint's statement that members of the 

Nelson family, such as Clift and Peres, were in charge at every quarry and made all of the 

decisions, and that quarry foremen, such as Andres, Head, and Benedict, had no power. Gov't 

Ex. 11, iii! 12, 14. As the judge concluded, evidence that Clift and Peres could make the ultimate 

decisions does not negate the fact that Andres, Head, and Benedict also were given 

responsibilities that are normally delegated to management personnel. 30 FMSHRC at 262. 

In light of the level of the three men's respective responsibilities, the fact that none had 

the authority to hire, fire, or discipline employees does little to detract from the conclusion that 

each was an agent of the operator. First of all, it appears that Andres, Head, and Benedict were 

involved in decisions concerning hiring, firing, and disciplining employees by making 

recommendations. 30 FMSHRC at 262, 285. 14 Secondly, the Commission has never suggested 

that the authority to take such actions, in and of itself, is a prerequisite to a finding of agency. 

That the ultimate authority to hire, fire, or discipline miners resides at a higher level of an 

organization is simply not surprising, given the potential impact of sach decisions, and thus.is of 

little relevance to a determination of whether a lower level supervisor was acting as an agent of 

the operator, where other circumstances indicate that an agency relationship existed. 15 . 

In that regard, it is significant that Andres, Head, and Benedict had been identified on 

legal identity and required start-up and closure reports filed with MSHA as the "person at mine 

in charge of health and safety (superintendent or principal officer)" at the plants. Tr. 184, 283, 

565-66; Gov't Exs. 10, 139. We have found that such evidence is "relevant by analogy to 

common law agency principles" and may, ifunrebutted, support a findingthat the persons so 

14 For instance, in an interview with MSHA, Andres acknowledged that he could make 

recommendations regarding hiring and firing, and could recommend that employees be 

disciplined "or maybe talk to them if they [did] something wrong." Gov't Ex. 137g, at 9-2; see 

also Gov't Ex. 137a, at 6-2. Travis Tomlinson confirmed that Andres "could put [him] to 

shoveling if he wanted to, but he never has." Id. at 8-2. 

15 Nor do we find compelling the evidence focused upon by the operator that Andres, 

Head, and Benedict were paid hourly wages rather than a salary as an indication that they were 

rank-and-file miners. See Mettiki Coal Corp., 13 FMSHRC 760, 769-72 (May 1991) (imputing 

negligence of hourly employee assigned to conduct monthly electrical inspections to the 

operator). It is undisputed that Andres, Head, and Benedict were compensated at a higher rate 

than other members of their crews. Tr. 823. 

31 FMSHRC 331 
identified were empowered to act on behalf of the operator. Ambrosia, 18 FMSHRC at 1561 

n.12. 

In sum, the actions of Andres, Head, and Benedict in conducting daily examinations and 

directing the work force, the representations made to MSHA concerning their authority, the 

manner in which they were treated by others and by themselves, and their actions atthe time of 

the violations constitute substantial evidence supporting the judge's agency determinations. 

Thus, we affirm the judge's determinations that Andres, Head, and Benedict were acting as 

agents for Nelson Quarries with respect to Citation Nos. 6291250; 6321288, and 6291595 and 

Order No. 6291251 and that their conduct was imputable to the operator. 16 We therefore affirm 

the judge's unwarrantable failure findings. 

16 We are mindful that under some collective bargaining agreements, a more senior rankand-file employee is sometimes referred to as a "lead man." It does not necessarily follow that 

such employees should be considered agents of the operator or that their conduct is imputable to 

the operator. Their status must be determined under the terms of the analysis we have. 

undertaken in this case in order to determine whether they should be considered agents of the 

operator for purposes of imputed liability. 

31 FMSHRC 332 
III. 

Conclusion 

For the reasons discussed above, we affirm the judge's conclusion that Nelson Quarries' 

violation of section 56.6130(a) set forth in Citation No. 6291250 was S&S; affirm the judge's 

conclusion that Nelson Quarries violated section 56.6300(b) as set forth in Order No. 6291251; 

and affirm the judge's determinations that Andres, Head, and Benedict were acting as agents for 

Nelson Quarries and affirm the judge's unwarrantable failure findings with respect to Citation 

Nos. 6291250, 6321288, and 6291595 and Order No. 6291251. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 333 
Distribution: 

Cheryl C. Blair-Kijewski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22"d Floor West 

Arlington, VA 22209-224 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., 251

h Floor 

Arlington, VA 22209-3939 

Kenneth L. Nelson, President 

Nelson Quarries, Inc. 

1307 2000 St. 

P.O. Box 100 

Gas, KS 66742-0100 

Paul M. Nelson 

Nelson Quarries, Inc. 

P.O. Box 100 

Gas, KS 66742-0100 

Administrative Law Judge Richard Manning 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

1244 Speer Blvd., Suite 280 

Denver, CO 80204 

31 FMSHRC 334 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND .HEALTH 

ADMINISTRATION (MSHA) 

v. 

MT. VIEW RESOURCES 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

March 12, 2009 

.Docket No. WEVA 2008-1853 

A.C. No. 46-:-08804-152682 

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 18, 2008, the Commission received a motion 

seeking to reopen a penalty assessment issued to Mt. View Resources ("Mt. View") that had 

become a final order of the Commission pursuant to section l05(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 issued Proposed 

Penalty Assessment No. 000152682 to Mt. View proposing civil penalties for several citations 

issued in April 2008. According to James F. Bowman, who filed the motion, Mt. View intended 

to contest the proposed penalties for nine citations, but failed to timely file its contest of the 

proposed penalties because the proposed assessment was "misplaced or lost."1 He states that the 

1 The request to reopen was sent by James F. Bowman, who describes himself as a 

"Consultant/Litigator." Commission Procedural Rule 3 provides that, in order to practice before 

the Commission, a person must either be an attorney or fall into one of the categories in 

Rule 3(b ), which include parties, representatives of miners, an "owner, partner, officer or 

employee" of certain parties, or "[a]ny other person with the permission of the presiding judge or 

31 FMSHRC 335 
operator does not dispute.proper service of the proposed assessment. He submits; however, that 

"[s]ome" certified mail is received by Federal Express at the mine site where office personnel has 

changed "on occasion," and that the proposed assessment was not received by the company's 

accounting department for distribution. 

In response, the Secretary opposes Mt. View's request to reopen. She asserts that the 

operator's explanation that the proposed assessment have been misplaced or lost does not qualify 

as exceptional circumstances that warrant 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 (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, surprise, 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. Senis., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

the Commission." 29 C.F.R. § 2700.3(b). It is unclear whether Mr. Bowman satisfied the 

requirements of Rule 3 when he filed the operator's request. We have determined that, despite 

this, we will consider the merits of the operator's requestin this instance. However, in any future 

proceeding before the Commission, including further proceedings in this case, Mr. Bowman must 

demonstrate to the.Commission or presiding judge that he fits within one of the categories set 

forth in Rule 3(b )(1 )-(3) or seek permission to practice before the Commission or judge pursuant 

to Rule 3(b)(4). 

31 FMSHRC 336 
Having reviewed Mt. View's motion to reopen and the Secretary's response, we agree 

with the Secretary that Mt. View has failed to provide a sufficiently detailed explanation for its 

failure to timely contest the proposed penalty assessment. Mt. View's conclusory statement that 

it failed to timely file because the proposed assessment was misplaced or lost does not provide 

the Commission with an adequate basis to justify reopening. Nor is an adequate basis provided 

by Mt. View's vague statements that "[s]ome" certified mail is received by Federal Express at the 

mine site where office personnel has changed "on occasion," and that the proposed assessment 

was not received by its· accounting department for distribution. Accordingly, we deny without 

prejudice Mt. View's request. 2 See, e.g., Eastern Associated Coal, LLC, 30 FMSHRC 392, 394 

(May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 {July 2007). 

"' \, \ \ ~~~ '\ . \ 

-,,t :,\.\ • . '\ . ---

'\ ·\ ·~ .. 

Michael F. 'DU.fry, Ch~ ~ 

Robert F. Cohen, Jr., Commissioner 

2 The words "without prejudice" mean that Mt. View may submit another request to 

reopen the case so that it can contest penalty assessments. fu the event that Mt. View chooses to 

refile its request to reopen, it should provide additional documentation to support its allegations. 

31 FMSHRC 337 
Distribution: 

James F. Bowman 

P.O. Box 99 

Midway, WV 25878 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 338 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

SECRETARY OF LAB.OR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

DOUBLE BONUS COAL COMPANY, 

DYNAMIC ENERGY, INC., 

FRONTIER COAL COMP ANY, 

BLUESTONE COAL CORPORATION, 

WSTICE HIGHWALL MINING, INC., 

and 

PAY CAR MINING, INC. 

March 13, 2009 

Docket No. WEY A 2008-879 

A.C. No. 46-09020-123653 

Docket No. WEY A 2008-880 

A.C. No. 46-09020-130296 

Docket No. WEY A 2008-1354 

A.C. No. 46-09020-148893 

Docket No. WEY A 2008-1355 

• A.C. No. 46-09020:-145248 

Docket No. WEY A 2008-1356 

A.C. No. 46-09062-147434 

Docket No. WEYA 2008-1448 

A.C. No. 46-09062-144939 

Docket No. WEYA 2008;.1357 

A.C. No. 46-09227-145258 

Docket No. WEY A 2008-1358 

A.C. No. 46-08684-146783 

Docket No. WEYA 2008-1661 

A.C. No. 46-08684-150175 

Docket No. WEY A 2008-1.359 

A.C. No. 46-09123-147164 

Docket No. WEY A 2009-727 

A.C. No. 46-09031-162833 

Docket No. WEYA 2008-1563 

. A.C. No. 46-08884-148891 

Docket No. WEYA 2009-812 

A.C. No. 46-08884-170006 

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

31 FMSHRC 339 
ORDER 

BY THE COMMISSION: 

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 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 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). 

Shortly before separate orders in the cases were finalized, the Secretary filed an 

opposition in one of the cases (Pay Car Mining, Inc., Docket No. WEVA 2009-812), and 

indicated that she planned to file supplemental responses in many of the other cases, opposing 

the requested relief on the same or similar grounds as stated in her response in Docket No. 

WEVA 2009-812. The Commission takes the grounds for the Secretary's opposition very 

seriously. Rather than address the Secretary's change in position, in the interest of efficiently 

deciding multiple cases involving related operators, the Commission has decided to consolidate 

all of the cases1 and issue the following order: 

1. If the Secretary wishes to file an amended response regarding her position on reopening any of 

the above-captioned cases in addition to Docket No. WEV A 2009-812, she must do so 

simultaneously in those cases, and within 10 days of the issuance of this order. In any amended 

response, the Secretary can refer to and incorporate her response in Docket No. WEV A 2009-

812. 

2. The operators may file individual replies or a joint reply within 10 days of service of the 

Secretary's amended response.2 In so doing, the operators should address the Secretary's 

allegations in detail, and must file affidavits from the involved operator personnel, contractors, 

and any other person whose testimony may be needed to explain fully the reasons for and 

circumstances surrounding the defaults. The operators should describe the details of their 

various systems for dealing with correspondence from MSHA during the period covered by these 

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

consolidate docket numbers WEV A 2008-879, WEV A 2008-880, WEV A 2008-1354, WEV A 

2008-1355, WEV A 2008-1356, WEV A 2008-1357, WEVA 2008-1358, WEVA 2008-1359, 

WEVA 2008-1448, WEVA 2008-1563, WEVA 2008-1661, WEVA 2009-727, and WEVA 

2009-812, all involving related operators and similar procedural issues. 29 C.F.R. § 2700.12. 

2 The operator may at that titne also file a reply to the opposition to reopening the 

Secretary filed in Justice Highwall Mining, Inc., Docket No. WEV A 2009-727. 

31 FMSHRC 340 
cases. Copies of documents relevant to the operators' explanation should also be included. 

Failure of an operator to completely respond to the Secretary could result in the Commission's 

denying the operator's request to reopen with prejudice.3 

3. If the Secretary chooses to respond to the operators' replies, she shall do so within seven days 

of service of the replies. 

Robert F. Cohen, Jr., Commissioner 

3 The requests to reopen were sent by J runes F. Bowman, who describes himself as a 

"Consultant/Litigator." Commission Procedural Rule 3 provides that, in order to practice before 

the Commission, a person must either be an attorney or fall into one of the categories in 

Rule 3(b ), which include parties, representatives of miners, an "owner, partner, officer or 

employee" of certain parties, or "[a]ny other person with the permission of the presiding judge or 

the Commission." 29 C.F.R. § 2700.3. It is unclear whether Mr. Bowman satisfied the 

requirements of Rule 3 when he filed the operators' requests. We have determined that, despite 

this, we will consider the merits of the operators' requests. However, in any future proceeding 

before the Commission, including further proceedings in these cases, Mr. Bowman must 

demonstrate to the Commission or presiding judge that he fits within one of the categories set 

forth in Rule 3(b)(l)-(3) or seek permission to practice before the Commission or judge pursuant 

to Rule 3(b)(4). 

31 FMSHRC 341 
Distribution: 

James F. Bowman 

P.O. Box 99 

Midway, WV 25878 

Thomas A. Paige, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Perry Ryder 

Gen. Mngr. 

Bluestone Coal Corp. 

818 N. Eisenhower Dr. 

Beckley, WV 25802 

James C. Justice 

Justice Highwall Mining, Inc. 

818 N. Eisenhower Dr. 

Beckley, WV 25801 

Robert Cochran 

Dynamic Energy, Inc. 

818 N. Eisenhower Dr. 

Beckley, WV 25801. 

Pay Car Mining, Inc. 

Bottom Creek Road 

Kimball, WV 24853 

Kenny Lambert Sr. 

President 

Double Bonus Coal Company 

Pinnacle Creek-:-Sulphur Branch Rd. 

Pineville, WV 24874 

31 FMSHRC 342 
Randall Lester 

Supt. 

Frontier Coal Co. 

818 N. Eisenhower Dr. 

Beckley, WV 25801 

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 343 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SIERRA CASCADE, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

March 18, 2009 

Docket No. WEST 2008-1408-M 

A.C. No. 35-01066-145141 

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 August 11, 2008, the Commission received from Sierra 

Cascade LLC ("Sierra") a request to reopen a penalty assessment that had become a final order of 

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

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

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

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

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

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

assessment. 1 

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

1 The record indicates that operator's counsel called the District Office of the Department 

of Labor's Mine Safety and Health Administration ("MSHA") after the proposed penalty 

assessment was issued to determine the status of Sierra's prior request for a conference and was 

under the impression that the notice of assessment remained the subject of conferencing and 

could be revised. 

31 FMSHRC 344 
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"); .!WR, 15 FMSHRC at 787. We have also observed 

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

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

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

Having reviewed Sierra'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 345 
Distribution: 

Scott Mahady, Esq. 

Moore & Associates 

96 East Broadway, Suite7 

Eugene, OR 97401 

Bruce L. Brown, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1111 Third A venue, Suite 945 

Seattle, WA 98101-3212 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite9500 

Washington, D.C. 20001-2021 

31 FMSHRC 346 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (M~HA) 

.v. 

SHELTON BROTHERS 

ENTERPRISES, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

March 18, 2009 

Docket No. KENT 2008-1407 

A.C. No. 15-15978-148474 N624 

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 August 8, 2008, the Commission received from Shelton 

Brothers Enterprises, Inc. ("Shelton") 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 l05(a) of the Mine Act, an operator who wishes to contest a proposed 

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

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

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

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

assessment. 1 

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

1 The record indicates that delivery of the proposed penalty assessment was attempted 

but not effective. Although such delivery does constitute service under 30 C.F.R. § 100.8, the 

operator appears to have never received the proposed assessment. Upon learning that the 

proposed assessment was delinquent, the operator promptly filed this request to reopen. 

31FMSHRC347 
reopen uncontested assessments that have become final Commission orders. under section I 05(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). 

Having reviewed Shelton'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. 

31 FMSHRC 348 
Distribution: 

Steve Shelton, Owner 

Shelton Brothers Enterprises, Inc. 

139 Thompson Drive 

Prestonsburg, KY 41653 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Thomas A. Grooms, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

618 Church Street, Suite 230 

Nashville, TN 37219-2456 

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 349 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

XMY,INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

March 18, 2009 

Docket No. WEYA 2009-47 

A.C. No. 46-08131-152112 

Docket No. WEY A 2009-48 

A.C. No. 46-08845-152118 

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 7, 2008, the Commission received requests to 

reopen two penalty assessments issued to XMV, Inc. ("XMV") 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 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 June 3, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued two proposed penalty assessments to XMV. After receiving no response, 

MSHA sent XMV delinquency notifications on or around August 27, 2008, for the two penalty 

assessments at issue. According to James F. Bowman, who filed the requests to reopen,2 XMV 

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

consolidate docket numbers WEY A 2009-4 7 and WEY A 2009-48, both captioned XMV, Inc., 

and involving similar procedural issues. 29 C.F .R. § 2 700.12. 

2 The requests to reopen were sent by James F. Bowman, who describes himself as a 

"Consultant/Litigator." Commission Procedural Rule 3 provides that, in order to practice before 

31 FMSHRC 350 · 
failed to timely respond to the proposed penalty assessments because of confusion among those 

office employees signing for the assessments and the failure to use normal internal document 

routing procedures, resulting in the failure of the documents to reach the proper offices on a 

timely basis. 

The Secretary states that she does not oppose the reopening of the assessments. She urges 

the operator to take all steps necessary to ensure that future penalty assessment contests are filed 

in a timely manner. 

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). 

the Commission, a person must either be an attorney or fall into one of the categories in 

Rule 3(b ), which include parties, representatives of miners, an "owner, partner, officer or 

employee" of certain parties, or "[a ]ny other person with the permission of the presiding judge or 

the Commission." 29 C.F.R. § 2700.3. It is unclear whether Mr. Bowman satisfied the 

requirements of Rule 3 when he filed the operator's request. We have determined that, despite 

this, we will consider the merits of the operator's request in this instance. However, in any future 

proceeding before the Commission, including further proceedings in this case, Mr. Bowman must 

demonstrate to the Commission or presiding judge that he fits within one of the categories set 

forth in Rule 3(b)(l)-(3) or seek permission to practice before the Commission or judge pursuant 

to Rule 3(b)(4). 

31FMSHRC351 
Having reviewed XMV's request and the Secretary's response, we conclude that XMV 

has failed to provide a sufficiently detailed explanation for its failure to timely contest the 

proposed penalty assessments. Accordingly, we deny without prejudice XMV's request.3 See 

Eastern Associated Coal, LLC, 30 FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29 

FMSHRC 569, 570 (July 2007). 

Mary 

Uf_aw. 

Lu (ttan• e_ collt¢SSi011ef ~ 

Robert F. Cohen, Jr., Commissioner 

3 The words "without prejudice" mean that XMV may submit another request to reopen 

the case so that it can contest penalty assessments. In the event that XMV chooses to refile its 

requests to reopen, it should disclose with greater specificity, and with appropriate 

documentation, the reasons for its failure to contest the proposed assessments in a timely manner. 

31 FMSHRC 352 
Distribution: 

Jam es F. Bowman 

Extra Energy, Inc. 

P.O. Box 99 

Midway, WV 26878 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 251h 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 

Douglas N. White, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

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 353 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MICHAEL CLINE 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

March 18, 2009 

Docket No. YORK 2009-25-M 

A.C. No. 30-00025-151256 A 

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 6, 2008, the Commission received from 

Michael Cline ("Cline") a motion by counsel seeking to reopen a penalty a8sessment against 

Cline under section l lO(c) of the Mine Act, 30 U.S.C. § 820(c), that mayhave 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 llO(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. 

In his motion, Cline states that in January 2008, he was informed, through counsel, that 

the Department of Labor's Mine Safety and Health Administration ("MSHA") intended to assess 

a civil penalty against him as a result of an alleged "knowing" violation of the same standard 

referenced in the citation issued to his employer, Orica USA, Inc. ("Orica"), on June 4, 2007. 

Cline also states that, in January 2008, he was transferred from Orica's New York office to one 

of its offices in Texas. On May 20, 2008, MSHA apparently issued a proposed penalty 

assessment to Cline, alleging that he was personally liable under section 110( c) of the Mine Act 

for a citation issued to Orica. See 30 U.S.C. § 820(c). fu his motion, Cline asserts that, on 

September 5, 2008, he received a delinquency letter from MSHA that had been forwarded to him 

in Texas from Orica's New York office. According to Cline, that letter was the first indication to 

31FMSHRC354 
him that MSHA had proposed a civil penalty against him. The motion further states that neither 

Cline nor the attorney representing him had ever received the proposed penalty assessment prior 

to that time. On September 11, 2008, MSHA faxed Cline's counsel a copy of the proposed 

assessment. On September 18, Cline's counsel notified MSHA.by letter that Cline wished to 

contest the penalty. The Secretary states that she does not oppose Cline's request to reopen the 

penalty assessment. 

Here, Cline never received notification of the proposed penalty assessment as required 

under Commission Rule 25. 1 Under the circumstances of this case, we conclude that Cline was 

not notified of the penalty assessment, within the meaning of the Commission's Procedural 

Rules, until at least September 11, 2008, when he received a copy of the assessment from 

MSHA. Cline, through his attorney, notified MSHA of his intent to contest the proposed penalty 

assessment against him by letter dated September 18, 2008. We conclude from this that Cline 

timely notified the Secretary that he wished to contest the proposed penalty, once he had actual 

notice of the proposed assessment. See Stech, employed by Eighty-Four Mining Co., 27 

FMSHRC 891, 892 (Dec. 2005). 

1 Commission Procedural Rule 25 states that the "Secretary, by certified mail, shall 

notify the operator or any other person against whom a penalty is proposed of the violation 

alleged, the amount of the proposed penalty assessment, and that such person shall have 30 days 

to notify the Secretary that he wishes to contest the proposed penalty assessment." 29 C.F.R. 

§ 2700.25 (emphasis added). Here, the Secretary was required to send the penalty proposal at 

issue here to Cline at his home address or "in care of' counsel at counsel's address. 

31 FMSHRC 355 
Accordingly, the proposed penalty assessment is not a final order of the Commission. 

We remand this matter to the Chief Administrative Law Judge for assignment to a judge. This 

case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. 

Part 2700. Consistent with Rule28, 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 356 
Distribution: 

Timothy M. Biddle, Esq. 

Crowell & Morning LLP 

l 00 l Pennsylvania N. W. 

Washington, D.C. 2004-2595 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA, 

U.S. Dept. of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Suzanne L. Demitrio, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 Varick Street, Room 983 

New York, NY 10014 

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 357 · 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

March 19, 2009 

Docket No. WEV A 2009-810 

A.C. No. 46-09020-164130 

Docket No. WEVA 2009-811 

A.C. No. 46-09020-167075 

DOUBLE BONUS COAL COMPANY 

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 5, 2009, the Commission received motions 

seeking to reopen two penalty assessments issued to Double Bonus Coal Company ("Double 

Bonus") that may have become final orders of the Commission pursuant to section I 05( 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). 

Double Bonus seeks reopening on the grounds that it never received the two assessment 

forms. 2 It submits evidence that Assessment No. 000164130 was returned undelivered to the 

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

consolidate docket numbers WEV A 2009-810 and WEV A 2009-811, both captioned Double 

Bonus Coal Co. and involving similar procedural issues. 29 C.F.R. § 2700.12. 

2 The requests to reopen were sent by Jam es F. Bowman, who describes himself as a 

"Consultant/Litigator." Commission Procedural Rule 3 provides that, in order to practice before 

the Commission, a person must either be an attorney or fall into one of the categories in 

31 FMSHRC 358 
Department of Labor's Mine Safety and Health Administration because of a supposedly wrong 

address. It also aJleges that Assessment No. 000167075 was delivered to a neighboring mine and 

never received by Double Bonus. The Secretary of Labor states that, based on the circumstances 

alleged in the motions, she does not object to reopening the assessments. 

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

uncontested assessments that have become final Commission orders under section 105{ a). Jitn 

Walter Res., Inc., 15 FMSHRC 782, 786-89 {May 1993) f'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 t_imely respond, the case may be reopened and appropriate proceedings on the 

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

Rule 3(b ), which include parties, representatives of miners, an "owner, partner, officer or 

employee" of certain parties, or "[a ]ny other person with the permission of the presiding judge or 

the Commission." 29 C.F.R. § 2700.3(b). It is unclear whether Mr. Bowman satisfied the 

requirements of Rule 3 when he filed the operator's requests. We have determined that, despite 

this, we will consider the merits of the operator's requests in this instance. However, in any 

future proceeding before the Commission, including further proceedings in these cases, Mr. 

Bowman must demonstrate to the Commission or presiding judge that he fits within one of the 

categories set forth in Rule 3(b )(1 )-(3) or seek permission to practice before the Commission or 

judge pursuant to Rule 3(b )( 4). 

31 FMSHRC 359 
Having reviewed Double Bonus' requests and the Secretary's responses, we conclude that 

the proposed assessments at issue have not become final orders of the Commission. We deny 

Double Bonus' motions 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. See Lehigh Cement Co., 28 FMSHRC 440, 441 (July 

2006). Because each motion specifies the individual penalties in the respective assessments that 

Double Bonus wishes to contest, those statements in the motions can serve as the operator's 

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

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 360 
Distribution: 

James F. Bowman 

P.O. Box 99 

Midway, WV 25878 

W. Christian Schumami, 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 361 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR,· 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BIG RIDGE, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

March 31, 2009 

Docket No. LAKE 2008-516 

A.C. No. I 1-03054-145023 

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 July 2, 2008, the Commission received from Big Ridge, 

fuc. ("Big Ridge") 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 April 1, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued a proposed assessment that included penalties associated with 50 citations, 

totaling $259,795. According to MSHA records, Big Ridge received the assessment on April 8. 

On May 16, 2008, Big Ridge sent MSHA the assessment form that indicated the citations it 

wished to contest and a check for the amount of the uncontested penalties. Big Ridge states that 

its safety manager did not file the contest within 30 days because of "overwhelming business 

matters at the time" and that the failure to file was the result of"inadvertence or a mistake and 

miscommunication within the operator's organization." In a letter dated May 22, MSHA 

informed Big Ridge that its May 16 filing was untimely and that its hearing request was denied. 

31 FMSHRC 362 
In response to Big Ridge's motion to reopen, the Secretary states that she does not oppose 

Big Ridge's request. 

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

uncontested assessment forms 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 inadvertence or mistake. See 29 C.F .R. 

§ 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

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

31 FMSHRC 363 
Having reviewed Big Ridge's request and the Secretary's response, we conclude that Big 

Ridge's summary statement in its motion that it failed to timely file a contest because of 

"overwhelming business matters" and "miscommunication" does not provide the Commission 

with an adequate basis to justify reopening. Accordingly, we deny without prejudice Big Ridge's 

request. 1 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 

1 In the event that Big Ridge chooses to refile its request to reopen, it should provide 

additional documentation to support its allegations. 

3 I FMSHRC 364 
Distribution: 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center 

Suite 1340 

401 Liberty A venue 

Pittsburgh, PA 15222 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 365 
FEDERAL MINE SAFETY AND HEAL TH RE.VIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BIG RIDGE, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 2, 2009 

Docket No. LAKE 2008-515 

A.C. No. 11-03054-141423 

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 July 2, 2008, the Commission received from Big Ridge, 

Inc. ("Big Ridge") 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 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 February 14, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued a proposed assessment that included penalties of $143,652 associated with 66 

citations. Big Ridge states that, after it received the assessment, the form should have been 

forwarded through intercompany mail to its safety director, who would have evaluated the 

penalties and citations. According to Big Ridge, the proposed assessment was "lost" and was not 

received by the safety director. In a letter dated May 21, 2008, MSHA informed Big Ridge that 

the civil penalties were delinquent. Big Ridge maintains that it conducted a search for the 

proposed assessment at the mine and could not locate it. 

31 FMSHRC '366 
In response, the Secretary states that she does not oppose Big Ridge's request to reopen. 

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

uncontested assessment forms 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 inadvertence or mistake. 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 Ci.vii 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 367 
Having reviewed Big 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. · 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRc'368 
Distribution: 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center, Suite 1340 

401 Liberty A venue, 

Pittsburgh, PA 1 s222· 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

3 I FMSHRC 369 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 7, 2009 

Docket No. KENT 2008-1458 

A.C. No. 15-10753-149793 

CLEAN ENERGY MINING 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 August 14, 2008, the Commission received from Clean 

Energy Mining Company ("Clean Energy'') a motion made by cdunsel 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 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 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). 

31FMSHRC370 
The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 1 

The record indicates that due to an employee's error, Clean Energy inadvertently failed to 

transmit the proposed penalty assessment to counsel and that, as a result, counsel never filed the 

contest. 

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 1000-1 79 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. 

31FMSHRC371 
Having reviewed Clean Energy'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 

31FMSHRC372 
Distribution: 

Sarah Ghiz K01wan, 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 Co111pliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31FMSHRC373 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRET-ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

GRAYMONT (PA) INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 17,2009 

Doc.ket No. PENN 2008-467-M 

A.C. No.36-06468-142578 

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 July l, 2008, the Commission received a request to 

reopen a penalty assessment issued to Graymont (PA) Inc. ("Graymonf') 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(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 FMSHRC374 
The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. The request to reopen states that the contest of the proposed penalty assessment was 

not timely filed because Graymont's safety director was absent from work due to an operation 

and did not return until after the period for contesting the assessment had passed. 1 

Having-reviewed Graymont's requestand the Secretary's-response;--inthe 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. 

P£U1: 2700 . .f\.9~9rqingly, consistent with Rule 28, the Se.<;re.tWY shall fil~_gpetition for assessment 

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

·ssioner 

Robert F. Cohen, Jr., Commissioner 

1 The request to reopen was sent by Brian D. Barrett, who describes himself as a "Safety 

Consultant." Commission Procedural Rule 3 provides that, in order to practice before the 

Commission, a person must either be an attorney or fall into one of the categories in 

Rule 3(b ), which include parties, representatives of miners, an "owner, partner, officer or 

employee" of certain parties, or "[a]ny other person with the permission of the presiding judge or 

the Commission." 29 C.F.R. § 2700.3(b). It is unclear whether Mr. Barrett satisfied the 

requirements of Rule 3 when he filed the operator's request. We have determined that, despite 

this, we will consider the merits of the operator's request in this instance. However, in any future 

proceeding before the Commission, including further proceedings in this case, Mr. Barrett must 

demonstrate to the Commission or presiding judge that he fits within one of the categories set 

forth in Rule 3(b )(1 )-(3) or seek permission to practice before the Commission or judge pursuant 

to Rule 3(b)(4). 

31 FMSHRC375 
Distribution: 

Brian D. Barrett, Safety Consultant 

DMS Safety Services 

551 State Street 

Curwensville, PA 16833 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra J runes, 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 

31FMSHRC376 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

EXTRA ENERGY, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 17, 2009 

Docket No. WEV A 2009-44 

A.C. No. 46-05741-143195 

Docket No. WEV A 2009-45 

A.C. No. 46-05741-139339 

Docket No. WEV A 2009-46 

A.C. No. 46-08647-135933 

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

ORDER 

BY: Jordan and Cohen, Commissioners 

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 7, 2008, the Commission received requests to 

reopen three penalty assessments issued to Extra Energy, Inc. ("Extra") 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 January 10, 2008, February 7, 2008, and March 6, 2008, the Department of Labor's 

Mine Safety and Health Administration ("MSHA") issued three separate proposed penalty 

assessments to Extra. According to Jam es F. Bowman, who filed the requests to reopen as 

Extra's representative, Extra paid six of the eight penalties proposed in the March assessment 

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

consolidate docket numbers WEV A 2009-44, WEV A 2009-45, and WEV A 2009-46, all 

captioned Extra Energy, Inc., and involving similar procedural issues. 29 C.F.R. § 2700.12. 

31 FMSHRC 377 
(Docket No. WEVA 2009-44), butdid not otherwise respond.2 Consequently, on April 16, 2008, 

May 7, 2008, and May 29, 2008, MSHA sent three separate delinquency notices to Extra with 

respect to the unpaid assessments. Extra now requests reopening of all three assessments so that 

it may contest the penalties it did not pay, as well as one of the March assessment penalties (for 

Citation No. 7277203) that it states it paid in error. Extra claims that it instructed an unnamed 

"representative" to contest the penalties in each assessment it did not pay, but that individual did-·· 

not do so, apparently after Extra failed to return a phone call seeking confirmation from the 

company regarding its-intent to contest the penalties. 

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

timely file notices of contests in the three cases is conclusory and does not constitute the 

"exceptional circumstances;' necessary to support reopening. The Secretary further states the 

reopening is unjustified here because Extra failed to identify facts which, if proven, would 

establish a meritorious defense, and because ofExtra's failure to explain why the operator, after 

it was sent delinquency notices by MSHA, waited four to five-and-a-half months to request 

reopening of the assessments. 

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 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 Procedure"); JWR, 15 FMSHRC at 787. We have noted that Rule 60(b) "is a tool 

which ... courts are to use sparingly .... " Atlanta Sand & Supply Co., 30 FMSHRC 605, 608 

(July 2008) (citing JWR, 15 FMSHRC at 789). We have also observed that default is a harsh 

remedy and that, ifthe defaulting party can make a showing of good cause for a failure to timely 

respond, the case may be reopened and appropriate proceedings on the merits permitted. See 

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

We conclude that relief is not justified in this case. Although relief from a final order 

may be warranted in cases of inadvertence, mistake, surprise or excusable neglect, none of these 

circumstances are apparent here. Assuming that the operator's assertions are true, they present a 

scenario that does not justify reopening of the final order. 

In each of its three motions the operator states that its "representative told the 

respondent that a telephone call verifying the operator [sic] intention to contest was not returned. 

Therefore, he did not file the case." This statement could have two different meanings, both 

2 Pursuant to Commission Procedural Rule 3(b)(4), 29 C.F.R. § 2700.3(b)(4), James F. 

Bowman has been granted leave to practice before the Commission. Double Bonus Coal Co., 31 

FMSHRC __ ,Nos. WEVA 2008-879 et seq. (Apr. 7, 2009). 

31FMSHRC378' 
equally non-meritorious as a justification for the failure to contest the proposed assessments. The 

first possibility is that on three separate occasions (after receipt of the proposed assessment 

issued on January 10, 2008, after receipt of the proposed assessment issued on February 7, 2008, 

and then again after the proposed assessment issued on March 6, 2008) the representative told the 

operator that a telephone call regarding the contest was not returned and that therefore he did not 

contest the penalty. In other words, under this interpretation of the operator's claim, this 

remarkable chain of events occurred three separate times over a three month period. 

The other possible interpretation is that the representative had only one conversation with 

the operator, stating that a contest was not made because an earlier phone call (or calls) was not 

returned. If this occurred after the initial assessment, then the operator continued to rely on this 

representative to contest the two subsequent assessments, knowing that he had not properly 

handled the first one, and knowing that ifthe operator failed to return the representative's phone 

call in the future, it took the risk that the representative would not file a timely penalty contest on 

the operator's behalf. 3 If this confession was made to the operator after the third penalty 

assessment, the first two had become final long before that conversation took place, but the 

representative had taken no steps to alert the operator to the communication problems between 

them that allegedly resulted in the untimely contests.4 

Moreover, Extra Energy filed its motion to reopen approximately four to five-and-a-half 

months after it was sent separate delinquency notices. It has provided no explanation for this 

delay. However, the operator has the burden of establishing its entitlement to extraordinary 

relief. Delay in seeking that relief, if unexplained, has been a relevant consideration in denial of 

motions to reopen. See Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009) (citing Central 

Operating Co. v. Utility Workers of America, 491 F.2d 245, 253 (4th Cir. 1974) (finding 

"inexcusable dereliction" and denying motions to vacate when defendants waited almost four 

months after receiving notice of default judgments) and McLawhorn v. John W Daniel & Co., 

924 F.2d 535, 538 (4th Cir. 1991) (finding that unexplained delay of three-and-half months was 

not reasonable)). 

In sum, the operator's sole excuse for not filing timely notices of contest is that its 

representative was instructed to file the contests and failed to do so in each case, allegedly only 

3 As the Federal Circuit suggested in its decision affirming a Merit Systems Protection 

Board ruling not to waive the time limit for filing an appeal, when the attorney did not receive a 

timely reply from his client providing information needed for the appeal, "all he had to do was 

make a telephone call to [the client]." Phillips v. US. Postal Service, 695 F.2d 1389, 1391 (Fed. 

Cir. 1982). . 

4 In addition, Extra's motion provides no explanation as to how one of the assessments 

was inadvertently paid. 

31FMSHRC379 
because a telephone call (or calls) was not returned.5 Consequently, we deny Extra Energy's 

request to reopen. See Pinnacle Mining Co., 30 FMSHRC 1061, 1062-63 (Dec. 2008) (denying 

relief because operator's excuse was insufficient); Pinnacle Mining Co., 30 FMSHRC 1066, 

1067-68 (Dec. 2008) (same). 

Robert F. Cohen, Jr., Commissioner 

5 Accordingly, we conclude that. a dismissal without prejudice is not justified here. In 

our view, this motion does not fail due to lack of detail or documentation, It fails because the 

excuse presented simply does not demonstrate the level of care needed to justify reopening. Cf 

Atlanta Sand, 30 FMSHRC at 608 (denying relief without prejudice because operator provided 

no specific facts justifying relief, but noting that "Rule 60(b) was not intended as a license for 

parties to fail to exercise due diligence in regard to litigation"). 

31FMSHRC380 
Chairman Duffy and Commissioner Young: 

While we do not disagree with our colleagues that the excuse presented by the operator 

for its failure to timely contest the three proposed penalty assessments issued by MSHA is 

insufficient to establish that reopening of the assessments is warranted in this instance, and 

would accordingly-deny the requests, we would not go so far-as-to specify thaHhe denial was 

with prejudice. The Commission has, almost consistently, denied a vaguely explained and 

supported request to reopen without prejudice to the operator renewing its request to reopen with 

gr~at~r_sp~~ifiGity and support for the request. See, e.g., Solqr Coal CQ,_,_}Q_ fMSJfRC 1049, 

1050-51 (Dec. 2008); S&M Coal Co., 30 FMSHRC 1053, 1055 (Dec. 2008); Freeman Rock, 

Inc., 31FMSHRC91, 93 (Feb. 2009); Mt. View Res., slip op. at 3, 31 FMSHRC _,Docket No. 

WEVA 2008-1853 (Mar. 12, 2009);XMV, Inc., slip op. at 3, 31 FMSHR-C _-· ,Docket No. 

WEV A 2009-4 7 (Mar. 18, 2009). Further, in such cases we have also permitted an operator to 

explain why it delayed in filing for reopening for a number of months even after have been 

alerted to the delinquency by a notice from MSHA. See, e.g., Pinnacle Mining Co., 30 FMSHRC 

1071, 1074 (Dec. 2008); Petra Materials, 31FMSHRC47, 49 (Jan. 2009). 

In light of these ca.Ses we would accord the operator in this instance the same leniency 

and deny the motion to reopen without prejudice to allow the operator an opportunity to refile its 

request with a more thorough explanation for its failure to timely contest the proposed penalties 

and to timely respond to the delinquency notices. 6 

6 The operator, of course, is free to file a motion for reconsideration of this decision 

pursuant to Commission Procedural Rule 78(a). See 29 C.F.R. § 2700.78(a). 

31 FMSHRC 381 
Distribution: 

James F. Bowman 

Extra Energy, Inc. 

P.O. Box 99 

Midway, WV 26878 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Douglas N. White, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22°d Floor West 

Arlington, VA 22209-2247 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey A venue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

31 FMSHRC 382 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

S&SROCK 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 17, 2009 

Docket No. SE 2009-116-M 

A.C. No. 40-03000-152339 

Docket No. SE 2009-117-M 

A.C. No. 40-03000-158636 

Docket No. SE 2009-118-M 

A.C. No. 40-03000-164351 

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").1 On November 17, 2008, the Commission received from 

S & S Rock ("S & S") motions 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). 

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). 

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)"ofthe 

1 Pursuant to Commission Procedural Rule 12, 29 C.F.R. § 2700.12, on our own motion, 

we hereby consolidate Docket Nos. SE 2009-116-M, SE 2009-117-M, and SE 2009-118-M, as 

all three dockets involve similar procedural issues and similar factual backgrounds. 

31 FMSHRC 383 
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, ifthe defaulting party can make a showing of good cause 

for a failure to timely respond;-the-casemay-be-reopened and appropriate proceedings-orrthe 

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

The Secretary st::ites th~ .. t[b.e d9es JJ._Q.t Qppose the reopening of the proposed p~n,wJ:y 

assessments. The president of S & S stated in an affidavit that the company previously had hired 

a representative to submit the contests of the proposed penalty assessments but the prior 

representative had failed to do so, unbeknown to S & S. 

Having reviewed S & S'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 petitions for assessment of 

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

. . \ 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 384 
Distribution: 

Adele L. Abrams, Esq. 

Law Office of Adele L. Abrams, P.C. 

- ---- 4740 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC385 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

LUEDERS LIMESTONE, LP 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 17, 2009 

Docket No. CENT 2009-96-M 

A.C. No. 41-04257-149058 

Docket No. CENT 2009-97-M 

A.C. No. 41-04257-158646 

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"). 1 On November 20, 2008, the Commission received from 

Lueders Limestone, LP ("Lueders") motions by counsel 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). 

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 

1 Pursuant to Commission Procedural Rule 12, 29 C.F.R. § 2700.12, on our own motion, 

we hereby consolidate Docket Nos. CENT 2009-96-M and CENT 2009-97-M, as both dockets 

involve similar procedural issues and similar factual backgrounds. 

31FMSHRC386 
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 FMS-HRe-+529;-J.-53-0-(Sept.t995). 

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

as~_essments, Tb~J~~o:r4 indicates that, because ofhealth_prnblem,s,_th~ 9perato:r's general 

partner was absent from his job during much of the relevant time period, and the individuals who 

became responsible for timely contesting the proposed penalties failed to do so. 

Having reviewed Lueders' 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. 

MafYL~rdan, ~£~ C ~ 

Robert F. Cohen, Jr., Commissioner 

31FMSHRC387 
Distribution: 

Stephen E. Irving, Esq. 

Funderburk and Funderburk, LLP 

2777 Allen Pkwy., Suiret600 

Houston, TX 77019 

W. Christian Schumann, :Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31FMSHRC388 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PENN VIRGINIA RESOURCE 

PARTNERS 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 23, 2009 

Docket No. VA 2008-369 

A.C. No. 44-07081-144739 T513 : 

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 July 25, 2008, the Commission received from Penn 

Virginia Resource Partners ("Penn Virginia") a motion by counsel to reopen a penalty assessment 

that had become a final order ofthe 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 assessment forms 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 

31 FMSHRC 389 
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). 

Penn Virginia argues, among other things, that it believed in good faith it did not have to 

contest the penalty in order to maintain its contest of the underlying order. The Secretary states 

that she does not oppose reopening the proposed penalty assessment on this basis. Moreover;-·· 

Penn Virginia promptly filed its motion to reopen the penalty assessment upon discovering that 

the Secretary considered it to be a final order. 

Having reviewed Penn Virginia'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. 1 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., Co:nunissioner 

1 In granting Penn Virginia's motion to reopen, the Commission has not considered the 

merits of the operator's argument concerning its reading of section 105(a), and does not need to 

do so at this time. 

31 FMSHRC 390 
Distribution: 

TimothyW. Gresham, Esq. 

Penn, Stuart & Eskridge 

P.O. Box 2288 

Abingdon, VA 24212 

W. Christian Schumapn, 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 

31FMSHRC391 
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 

April 1 7, 2009 

Docket No. KENT 2009-9 

A.C. No. 15-18267-157148 

MANALAPAN MINING 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 October 7, 2008, the Commis.sion 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). 

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. fu its letter, 

Manalapan asserts that it would be a great hardship for it to pay the total balance of outstanding 

penalty assessments shown on Assessment No. 000157148. 

fu response, the Secretary states that inability to pay a penalty is not a grounds for 

reopening and notes that another one of the unpaid assessments that constitutes Manalapan's 

total outstanding balance has already been reopened pursuant to an earlier request by Manalapan. 

The Secretary further notes that, if the operator does not pay the revised balance, the Secretary 

will refer the matter to the Department of the Treasury, with whom the operator may be able to 

agree upon an installment payment plan. 

31FMSHRC392 
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 393 
Because Manalapan'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), we hereby deny the request for relief without prejudice. See FKZ Coal Inc., 

29 FMSHRC 177, 178 (Apr. 2007). The words "without prejudice" mean that Manalapan may · 

submit another request to reopen Assessment No. 000157148 so that it can contest specific 

citations and proposed penalties:J 

Robert F. Cohen, Jr., Commissioner 

1 If Manalapan submits another request to reopen, it must identify the specific citations 

and proposed penalties it seeks to contest from Assessment No. 000157148. Manalapan must 

also establish good cause for not contesting those citations and proposed penalties within 30 days 

from the date it received Assessment No. 000157148 from MSHA. Under Rule 60(b) of the 

Federal Rules of Civil Procedure, the existence of "good cause" may be shown by a number of 

different factors including mistake, inadvertence, surprise, or excusable neglect on the part of the 

party seeking relief, or the discovery of new evidence, or fraud, misrepresentation, or other 

misconduct by the adverse party. Manalapan should include a full description of the facts 

supporting its claim of"good cause," including how the mistake or other problem prevented 

Manalapan from responding within the time limits provided in the Mine Act, as part of its 

request to reopen. Manalapan should also submit copies of supporting documents with its 

request to reopen. 

31FMSHRC394 
Distribution: 

Jim Brummett, Safety Dir. 

Manalapan Mining Co., Inc. 

8174 East West Hgwy. · 

72, Pathfork, KY 40863 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra Jam es, Chief 

Office of Civil Penalty Compliance, 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 395 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINlSTRA TION (MSHA) 

v. 

BIG RIVER MINING, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 17, 2009 

Docket No. WEV A 2009-1 

A.C. No. 46-09136-156167 

Docket No. WEV 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"). On October 1 and November 24, 2008, the Commission 

received from Big River Mining, LLC ("Big River") motions to reopen two 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). 

With respect to each of the assessments, which were issued by Department of Labor's 

Mine Safety and Health Administration in July and August, 2008, Big River states that it 

intended to contest several of the proposed penalties on each of the assessments. It explains that 

due to a change in the company's safety director position, however, it failed to file the contests, 

and its new safety director only learned of the delinquencies well after assuming the position. In 

affidavits, the safety director states that the 1000-79 forms for these two penalty contests were 

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

consolidate docket numbers WEV A 2009-1 and WEV A 2009-358, each captioned Big River 

Mining, LLC, and involving similar procedural issues. 29 C.F.R. § 2700.12. 

31 FMSHRC 396 
not in the files left by his predecessor, and that he first learned that the assessments had not been 

contested when he discovered them listed as delinquent in the MSHA Data Retrieval System. 

The Secretary states she does not oppose Big River's requests to reopen the assessments. 

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

uncontested assessments that have become final Commission orders under section· l 05( 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, ifthe 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). 

Big River requests that, for each assessment, it "be granted such additional time as 

required to complete the 1000-179 form to show which of the enforcement actions and penalties 

it contests."2 However, it is incumbent upon an operator that has failed to comply with the 

section 105(a) time limit to present to the Commission in its request to reopen the final order not 

only the basis for reopening, but the specific penalties it wishes to reopen. For the Commission 

to reopen the orders and grant Big River even more time to consider which penalties it wishes to 

contest conflicts with the 30-day time limit for both contests of penalties and payment of 

uncontested penalties. 

2 Inexplicably, Big River does so in Docket No. WEVA 2009-358 despite attaching to its 

motion a copy of Assessment No. 000159271 on which over half of the penalties have been 

checked for contest. 

31 FMSHRC 397 
Consequently, we dismiss Big River's requests without prejudice. However, the operator 

may file an amended request to reopen which includes the specific penalties in each assessment it 

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

Robert F. Cohen, Jr., Commissioner 

31FMSHRC398 
Distribution: 

Justin A. Rubenstein, Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

Douglas N. White, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22"d Floor West 

Arlington, VA 22209-2247 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room-2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 399 
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 

April23,2009 

Docket No. WEST 2009-166 

A.C. No. 48-01180-160106. 

BLACK BUTTE COAL COMPANY 

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 10, 2008, the Commission received from 

Black Butte Coal Company ("Black Butte") a motion from 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). 

However, 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 be guided so far as practicable 

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

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

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

31 FMSHRC 400 
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

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

assessment. The record indicates that, because of a transition between old and new safety 

managers, there was a miscommunication with counsel regarding whether the contest form had 

been-sent:-

Having reviewed Black Butte's request and the Secretary's response, in the interests of 

j11i;;tic;e~ we her~by reopen this matter and remand it to the Chief Aq@n.i~tr~tive 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. § 270(±.2--8. 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 401 
Distribution: 

James A. Lastowka, Esq. 

McDermott Will & Emery LLP 

600 13th Street NW 

Washington, DC 20005-3096 

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 402 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

CINTAS CORPORATION 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 27, 2009 

Docket No. LAKE 2008-594-M 

A.C. No. 12-02063-148442 K850 

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 August 8, 2008, the Commission received from Cintas 

Corporation ("Cintas") a letter seeking to reopen a penalty assessment that had become a final 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, !530 (Sept. 1995). 

31 FMSHRC 403 
The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment but has no written record of having received a contest form. The record indicates that 

a company official apparently contacted the district office of the Department of Labor's Mine 

Safety and Health Administration ("MSHA") within 30 days of receiving the proposed penalty 

assessment and informed MSHA employees by telephone that it was contesting the proposed 

penalty at issue. 

Having reviewed Cintas' 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 404 
Distribution: 

Cathie Thomas 

Human Resources Mngr. 

Cintas-€orp. 

7233 Enterprise Park Dr. 

Evansville, IN 47715 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 405 
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 

April 27, 2009 

Docket No. KENT 2008-1465 · 

A.C. No. 15-02132-151119 

WEBSTER COUNTY COAL, LLC 

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 August 20, 2008, the Commission received from Webster 

County Coal, LLC ("Webster") a request to reopen a penalty assessment that had become a final 

order of the Commission pursuant to section I05(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 January 28, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued two orders to Webster's Dotiki Mine. Webster contested those orders, Nos. 

6696967 and 6696968. The proceedings were assigned docket numbers KENT 2008-548-R and 

KENT 2008-549-R and stayed pending assessment of proposed penalties. MSHA issued a 

proposed penalty with respect to Order No. 6696967 in Assessment Case No. 000150871 on May 

15, 2008. MSHA issued a proposed civil penalty with respect to Order 6696968 in Assessment 

Case No. 000151119 on May 19, 2008. Webster received both assessments on May 22, 2008. In 

its motion, Webster asserts that it mailed the assessment form for Case No. 000150871 on 

June 13, 2008, indicating its contest of several proposed penalties, including the penalty related 

to Order 6696967. Webster asserts that it believed it had contested the assessment including 

Order No. 6696968 at the same time. Webster learned that it had failed to timely contest the 

proposed penalty when it received a delinquency notice on August 8, 2008 and shortly thereafter 

31 FMSHRC 406 
filed the instant motion. :Webster states that an internal investigation revealed that the 

assessment form was not submitted in a timely manner because of an "unintentional mistake" 

that caused the form not to be processed at the same time as the form for the other order. 

The Secretary states that she opposes the reopening of the proposed penalty assessment 

on the grounds that the-operatormak-esno showing of exceptional circumstances-warranting 

reopemng. 

We have held th~tin appropriat{! 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 lo5(a) orders, the Commission has found guidance in Rule 60(b) ofthe·--

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 407 
Having reviewed Webster'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 cause exists for Webster's failure to timely cmi.test the penalty proposal and 

whether relief from the final order should be granted_ If it is determined that such relief is 

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

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

ISSIOner 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 408 
Distribution: 

Daniel W. Wolff, Esq. 

Crowell & Moring LLP 

1001 Pennsylvania Avenue NW 

Washington, DC 20004-2595 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 2ooor-2021 

31 FMSHRC 409 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

THE BANNER COMP ANY, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 27, 2009 

Docket No. VA 2008-384 

A.C. No. 44-07181-140627 

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

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 4, 2008, the Commission received from The 

Banner Company, LLC ("Banner") a motion by counsel to reopen a penalty assessment that had 

become a final order of the Commission pursuant to section 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). 

On February 14, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued proposed penalty assessment No. 000140627 to Banner, covering Citations 

Nos. 6635214 and 7318977. On May 14, 2008, MSHA sent Banner a letter indicating that the 

penalty had become delinquent. In its motion, Banner asserts that its safety director believed he 

had contested the two penalties associated with the two citations at issue. It alleges that the 

failure to contest the penalties ''arose either by [Banner's] inadvertence or mistake or MSHA's 

failure to accurately process [the penalty assessment form]." 

The Secretary states that she opposes the reopening of the proposed penalty assessment 

on the grounds that the operator's conclusory statement that its safety director intended to contest 

the penalty assessment is insufficient to warrant reopening. She further notes that MSHA has no 

31FMSHRC410 
record that it ever received a contest of the penalty assessment .and the operator provides no 

evidence that it ever filed such a contest. The Secretary also states that the operator failed to 

explain why, given that the notice of delinquency was issued in May 2008, the operator did not 

submit its motion to reopen until August 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 (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). 

31FMSHRC411 
Having reviewed Banner's request and the Secretary's response, we agree with the 

Secretary that Brumer has failed to provide a sufficiently detailed explanation for its failure to 

timely contest the proposed penalty assessment, and submit its motion to reopen. ·Banner's 

conclusory statement that it believed it had contested the proposed penalty assessment does not 

provide the Commission with an adequate basis to justify reopening. Accordingly, we deny 

· without prejudice Banner'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 

31FMSHRC412 
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., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31FMSHRC413 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

OLD DOMINION ENERGY, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 27, 2009 

Docket No. VA 2008-227 

A.C. No. 44-07018-134221-02 

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 April 8, 2008, the Commission received from Old 

Dominion Energy, Inc. ("Old Dominion") a motion made 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). On July 16, 2008, the Commission denied the motion without 

prejudice. Old Dominion Energy, Inc., 30 FMSHRC 616, 617 (July 2008). On August 5, 2008, 

Old Dominion filed a motion to reconsider the denial of its motion to reopen. 

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

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

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

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

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 

31 FMSHRC414 
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). 

The Secretary did not oppose Old Dominion's initial request to reopen and has not filed a 

response to the motion to reconsider. The motion for reconsideration and attachments indicate 

that Old Dominion failed to timely contest the proposed penalty in question primarily because the 

assessment form was inadvertently omitted from a fax sent by the operator to its counsel. 

31FMSHRC415 
Having reviewed Old Dominion's motion for reconsideration, 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. 1 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 

We accept for filing Old Dominion's four-day late motion for reconsideration due to 

the medical reasons provided by counsel. 

31FMSHRC416 
Distribution: 

Julia K. Shreve, 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., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31FMSHRC417 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

HARVEST-TIME COAL, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 27, 2009 

Docket No. WEV A 2008-965 

A.C. No. 46-09084-139807 

Docket No. WEV A 2008-966 1 

A.C. No. 46-09084-139809 

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 April 25, 2008, the Commission received from HarvestTime Coal, Inc. ("Harvest-Time") a motion by counsel seeking to reoperi penalty assessments 

that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 

U.S.C. § 815(a). 

Under section 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 February 12, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA'') issued Proposed Assessment No. 00139807 to Harvest-Time. Harvest-Time does not 

give a reason for failing to contest the proposed assessment but states that it sought to conference 

the citations at issue with MSHA and that its request was wrongly denied. Neither party 

mentions nor has submitted the other proposed assessment at issue, No. 000139809, and it is 

1 We note that Docket No. WEV A 2008-966 was assigned in error and that all the 

citations that the operator seeks to contest are contained in Docket No. WEVA 2008-965. All 

subsequent pleadings in this case should have only one docket number. 

31FMSHRC418 
therefore impossible to determine why or how long Harvest-Time delayed in responding to the 

second assessment. 

The Secretary asserts that Proposed Assessment No. 000139807 was sent by Federal 

Express to the address of record for Harvest-Time but was returned as undelivered. According to 

the Secretary; this constituted service under 30 C.F.R. § 100.8(a) {'~Proposed penalty assessments 

delivered to [the addresses of record] shall constitute service."). The Secretary states that 

although she does not oppose the reopening of the assessment, she urges Harvest-Time to take all 

necessary steps to ensure that it timely contests penalty assessments in the future. 

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 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 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 FMSHRCJ529, 1530 (Sept. 1995). 

31FMSHRC419 
Having reviewed Harvest.., Time's motion and the Secretary's response thereto, in the 

interests of justice, we remand this matter to the Chief Administrative Law Judge for a 

determinatiOn of whether good cause exists for Harvest-Time's failure to timely contest the 

penalty proposal· and whether relief from the final order should be granted. We also direct the 

judge to require Harvest.., Time to explain whether and when it received the proposed penalty 

assessment-in question;-tonbtain and submit any missing assessment fonrrand--all-other relevant 

documents, to indicate which proposed penalties it seeks to contest, and to explain why it did not 

file its contest in a timely manner. If it is determined that relief from the .final order is 

ag_p_rn_miate,_ tb~_9J!~es -~bE-Jl __ prpceed pursuant to the Mine A~t_@<l t1;1e _Co:rrμnis~io11's Procedural 

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

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 420 
Distribution: 

T. Shea Cook 

T. Shea Cook, P.C. 

2411 Second Street 

P.O. Box 507 

Richlands, VA 24641 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra Jam es, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

31 FMSHRC 421 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MUHT-HEI INC. 

d/b/a CAMPO MATERIALS 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 28, 2009 

Docket No. WEST-2008-1455-M 

A.C. No. 04-05015-137683 

BEFORE: Duffy, Cha:irriian; Jordan, Young, and Cohen, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On August 25 and September 8, 2008, the Commission 

received from Muht-Hei Inc. d/b/a Campo Materials ("Campo Materials") letters 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 January 30, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000137683 to Campo Materials. On April 24, 

2008, MSHA sent a notice of delinquency to Campo Materials. Campo Materials, which is run 

by a Tribal Company owned by the Campo Band of Mission Indians, filed a request to reopen the 

penalty with the Commission. The Secretary opposed on the grounds that the operator had failed 

to explain why it had delayed in responding to both the proposed penalty assessment and notice 

of delinquency. Campo Materials promptly submitted another letter explaining that the delay 

was a result of two contested tribal elections. In a subsequent letter, the Secretary again opposed 

reopening and stated that she believed that the circumstances do not constitute an adequate 

31 FMSHRC 422 
explanation for the operator's failure to timely contest the proposed penalty 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)-(''flVR"). 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 relieffrom 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 tb.e Federal Rules of Civil Procedure");JWR,J~_FM.S:I-:IRC at 787. We have also obs~rv~d 

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). 

Having reviewed Campo Material's requests and the Secretary's responses, in the 

interests of justice, we remand this matter to the Chief Administrative Law Judge for a 

determination of whether good cause exists for Campo Material's failure to timely contest the 

penalty proposals and whether relief from the final order should be granted. If it is determined 

that relief from the final order is appropriate, the case shall proceed pursuant to the Mine Act and 

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

·ssioner 

Robert F. Cohen, Jr., Commissioner 

31 FMSHRC 423 
Distribution: 

Brian Connolly, President 

Muht-Hei, Inc. 

Campo-Materials 

36204 Church Rd. 

Campo, CA 91906 

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 424 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CARGILL DEICING TECHNOLOGY, 

Respondent 

March 4, 2009 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. LAKE 2009-314-DM 

NC MD 2009-03 

Mine ID 33-01994 

Cargill Deicing Technology/Cleveland 

DISMISSAL ORDER 

Before: Judge Feldman 

Before me for consideration is an Application for Temporary Reinstatement filed by 

the Secretary of Labor (Secretary) on February 25, 2009, pursuant to Section 105(c)(2) of the 

Federal Mine Safety and Health Act of 1977, as amended. 30 U.S.C. §815(c)(2). The Secretar.y 

seeks an Order requiring the respondent, Cargill Deicing Technology (Cargill), to temporarily 

reinstate Kurt R. Pluta to his former position of seasonal employment pending final resolution of 

Pluta's discrimination complaint filed on January 20, 2009, with the Mine Safety and Health 

Administration. 

On March 2, 2009, shortly after filing the application for Pluta's reinstatement, 

the Secretary filed a Motion to Dismiss this temporary reinstatement action because, 

as of February 27, 2009, Cargill has terminated all seasonal employees, presumably for legitimate 

independent business reasons. Since there is no longer a position available to which Pluta could 

be reinstated, the Secretary has moved to dismiss this proceeding. Neither Pluta nor Cargill 

oppose the Secretary's motion. 

Good cause having been shown, the captioned temporary reinstatement proceeding 

IS DISMISSED without prejudice to the initiation of any action with respect to Pluta's 

underlying January 20, 2009, discrimination complaint. 

Jerold Feldman 

Administrative Law Judge 

31 FMSHRC 425 
Distribution: 

Patrick L. Depace, Esq., Office of the Solicitor, U.S. Department of Labor, 881 Federal Office 

Building, 1240 East Ninth Street, Cleveland, OH 44199 

Kurt R. Pluta, 22010 Crystal Avenue, Euclid, OH 44123 

Steven Seasly, Esq., Hahn, Loeser and Parks, 200 Public Square, Suite 2800, Cleveland, OH 

44114 

Shawn Mayclin, Surface Supt., Cargill Deicing Technology, 2400 Ships Channel, Cleveland, OH 

44113 

GaryM. Tiboni, Teamsters Local No. 436, 6051 CareyDrive, Valley View, OH 44125 

/rps 

31 FMSHRC 426 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

March 5, 2009 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 2006-227-M 

A.C. No. 40-02968-87902 

V. 

MOLTANCOMPANY, LP, 

Respondent Mine: Moltan 

Appearances: 

Before: 

DECISION 

Joseph Luckett, Esq., U.S. Department of Labor, Nashville, Tennessee, on 

behalf of the Petitioner 

Larry Gurley, COO, Moltan Company, LP, Memphis, Tennesse, on behalf 

ofthe Respondent 

Judge Barbour 

This case is before me on a petition for the assessment of civil penalties filed by the 

Secretary of Labor on behalf of her Mine Safety and Health Administration (MSHA) against 

Moltan Company, LP (Moltan or the company) pursuant to sections 105 and 110 of the Federal 

Mine Safety and Health Act of 1977 (the Mine Act or Act) (30 U.S.C. §§ 815, 820). The 

Secretary alleges Moltan is responsible for two violations of the Secretary's safety standards for 

surface metal and non-metal mines. She also alleges the violations were significant and 

substantial contributions to mine safety hazards (S&S) and were caused by the company's high 

negligence. Additionally, the Secretary deemed one of the alleged violations was the result of 

Moltan's unwarrantable failure to comply with the mandatory standard. The Secretary seeks 

penalties totaling $3,500. The company denies the al.legations. The case was tried in Memphis, 

Tennessee. 

STIPULATIONS 

The parties have stipulated to the following facts: 

1. This case involves a clay processing plant known as the [Moltan] plant, 

which is owned and operated by [Moltan]; 

31 FMSHRC 427 
2. [Moltan's] plant is subject to jurisdiction of the ... Act; 

3. The presiding administrative law judge has jurisdiction over this 

proceeding pursuant to Section 105 of the Act; 

4 [Moltan's] operations affect interstate commerce; 

5. A reasonable penalty will not affect [Moltan's] ability to remain in 

business; 

6. [Moltan] has not had an accident where an employee suffered fatal 

injuries; 

7. [Moltan] employed approximately two hundred people in 2006; and 

8. [Moltan] has employees who worked approximately four hundred 

thousand hours in 2006. 

Tr. 12-13; Gov't Exh. 1. 

MOLTAN'S FACILITY, THE INSPECTION, AND THE CITATIONS 

Moltan is a family owned limited partnership that has been in existence since 1978. 

Tr. 104. · Moltan operates a large facility covering approximately twenty to thirty acres consisting 

of a clay mine and a clay processing plant. Tr. 17. Moltan processes the clay into products such 

as kitty Jitter and oil absorbents. Id. 

CONTENTIONS RELATED TO CITATION NO. 6243221 

In February 2006, Inspector Ed Jewell conducted a regular inspection ofMoltan which 

lasted six days. Tr. 18. I:Ilspector Jewell has been employed by MSHA for nine and a half years. 

Tr. 14-15. He is certified as an accident investigator and served four years on the national mine 

rescue team. Tr. 14. Prior to his employment with MSHA, Jewell held various jobs in the coal 

mine industry, including safety director, maintenance man, electrician, belt mechanic, general 

laborer, equipment operator, section foreman, and hoisting engineer. These jobs spanned a 

twenty-three year period. Tr. 15-17. During the inspection, Jewell was accompanied by Vicki 

LaRue who was being trained as a mine inspector. Tr. 18. 

On February 13, while inspecting a building the company refers to as the "old coal shed," 

Jewell and LaRue observed miner Bobby Manley standing on a rounded cylinder, 19 inches in 

diameter and eighty-seven inches above a metal rectangular work platform, that in turn was 

located approximately ten feet above the coal shed floor. Metal railings surrounded the work 

platform. Tr. 19-20. The miner was not using fall protection. Jewell stated that the employee 

3 I FMSHRC 428 
appeared to be wiring an electrical motor. Tr: 19. Inspector Jewell took a photograph of the 

scene. Gov't Exh. 3. Jewell testified the photograph showed the employee being helped down 

from the chute. It also showed a group of 6 individuals, including the safety director and new 

hire trainees, on the platform. Tr. 21. The photograph was taken after the employee had come 

down from a higher point on the chute and was standing on the 19 inch object, but Inspector 

Jewell stated he would have cited the company for either occurrence as the employee was not 

wearing fall protection and the likelihood of falling was present in both locations.· Tr. 132. 

After observing the employee on the chute, Inspector Jewell orally issued a section 107(a) 

imminent danger order to the safety director, Dan Harder. Tr. 22. He issued the order in writing 

to plant manager, Jake Green, that afternoon. Tr. 26; Gov't Exh. 4. Inspector Jewell also issued 

Citation No. 6243221 to Green. The citation charged the companywith a violation of 30 C.F.R. § 

56.15005, a mandatory safety standard requiring employees to wear safety belts and lines when 

working where there is a danger of falling. Inspector Jewell testified that the employee should 

have been tied off. Jewell did not observe any place to tie off, but felt the company could have 

installed a wire cable to attach a lanyard or could have avoided the need to tie off altogether by 

placing the employee in a basket attached to a man lift. Tr. 25-26. 

Inspector Jewell found there was high negligence on the part of the company for the 

alleged violation. He stated that the task itself carried an inherent risk and therefore a high 

degree of care was required by the company. Inspector Jewell did not observe any fall protection 

in the area which indicated to him that there was a lack of training or monitoring by the company. 

Tr. 75-76. Jewell also asked an employee if there was fall protection in the area and the 

employee said there was not. Tr. 27. Inspector Jewell determined the violation was highly likely 

to cause an injury. The employee was working with both hands and was standing on a narrow, 

rounded surface. He easily could have fallen to the metal platform. Fatal injuries could be 

expected from this type of fall as there have been deaths in the industry from falls of ten feet or 

less. Tr. 28. The employee involved was the person affected by the hazard. Jewell also found 

the violation was a significant and substantial (S&S) contribution to a mine safety hazard 

because if the alleged violation continued to exist it was likely to cause a serious injury. 

Danny Stanfill testified on behalf of the company. Stanfill has been the plant manager 

since January 1, 2006. Tr. 105. He has approximately 35 years experience primarily in the 

electrical industry. Tr. 104. Stanfill has also worked in a printing plant and a hardwood flooring 

plant, where he eventually became maintenance superintendent. When he began at Moltan in 

July 2005, he was brought in as assistant plant manager to replace Jake Green who was retiring. 

Tr. 105. 

Stanfill described the scene shown in Gov't Exh. 3. He stated the photograph depicts 

Bobby Manley installing or wiring up the last motor on the incline conveyor of a pellet mill. 

Tr. 106. The mill was new and Moltan was testing it to determine whether to make it a 

permanent part of the plant. (The company has since decided not to use the equipment. Tr. 107.) 

Stanfill also described the color-coding of hard hats depicted in the photograph. Manley was 

31 FMSHRC 429 
wearing a white hat which designated him as a ful14ime employee in maintenance. Tr. 107-108. 

The men wearing green hats were described as trainees by Inspector Jewell, but Stanfill indicated 

the green hats designated packaging department employees. Trainees wore gray hats. Tr. I 09 .. 

Dan Harder is in the picture wearing an orange hat. ·Stanfill stated that an orange hat indicated 

management. Id. 

Stanfill testified that Manley, who has since retired, was a maintenance electrician with 

28 years experience. Tr. 109. Stanfill felt that Manley could not have been standing on the 19 

inch diameter cylindrical area as it would not have allowed him comfortable access to complete 

his task of wiring the motor on the incline conveyor. Rather, Stanfill explained, the photograph 

showed Manley standing on a flat area that was the inlet to the pellet mill. Tr. 100. Based on 

Stanfill's electrical experience, he described the photo as. showing Manley in the process of 

wiring the motor. Stanfill did not know why Dan Harder and the other men were on the 

platform. However, he ·Stated he was later told that Harder was there to give Manley a piece of 

flexible conduit. Tr. 111. Stanfill did not feel Manley was engaging in an unsafe practice, but 

rather a routine installation. 

Billy Tennyson, lead electrician, testified on behalf of the company. Tennyson has been 

employed by the company for a little overten years. Tr. 122. He stated that Manley was a 

capable electrician with good safety habits. Tr. 124. Tennyson confirmed the hard hat colorcoding system that Stanfill explained. Furthermore; Tennyson felt, as Stanfill did, that Manley. 

would not have been working up on the chute as Jewell described because it would have been 

difficult for Manley to get to the motor. Tr. 126. Tennyson also explained that Harder told him 

he was handing Manleythe flexible conduit and was present when the work was being done. Tr. 

127. 

CONTENTIONS RELATING TO CITATION NO. 6243229. 

As Jewell continued his inspection on February 14, 2006, he observed a lack of proper 

access to an area that an employee must reach to maintain the plant's crusher. Tr. 32, He issued 

Citation No. 6423229 alleging a violation of 30 C:F.R. § 56.11001, a mandatory safety standard 

requiring safe means of access in all working areas. The crusher had twelve grease fittings that 

needed to be greased with a handheld grease gun every forty hours. Tr. 32-33, 35. Jewell 

explained an employee would need to go up onto· the framework of the crusher to do that work. 

Tr. 32. The employee would need to hold onto the :framework while he greased the fittings. 

Each fitting needed forty shots from the grease gun. 

The crusher is located on a raised platform. The platform's height varies from eight to 

twelve feet from the ground. Tr. 35. Inspector Jewell measured the area where the employee 

would walk to reach the grease fitting and found the area was six inches wide. He estimated an 

employee would have to travel on the narrow area for a distance of eight to ten feet. Tr. 36. 

Inspector Jewell also indicated that part of the area where an employee would walk was wider 

than six inches. Photographic evidence was introduced depicting the crusher. Gov't Exh. 6-8. 

No employees were on the platform at the time of the inspection. 

31 FMSHRC 430 
Jewell determined Moltan's negligence to be high as the crusher had been installed for 

approximately four to five months. Tr. 39, 46. He also talked to an employee, Scott Garrett, 

who stated that he was given a safety award for his idea of providing better access to the grease 

fittings, but no action was taken by the company. Tr. 39. Garrett did not testify. Additionally, 

Jewell stated Garrett said his supervisor, Billy Barns, was aware of the condition and told him to 

"be careful." Tr. 41. Jewell further explained that even without this information obtained from 

Garrett he still would have found the company's negligence to be high because management was 

aware of the need to perform maintenance on the crusher and the mine office was located within 

fifty yards of the crusher. Tr. 45-46. Jewell felt the violation was obvious and the company's 

failure to provide safe access was unwarrantable. Jewell considered the gravity to be reasonably 

likely to cause an injury due to the frequency of greasing that was required. Jewell also observed 

spilled materials on the platform, along with mud in the very narrow area. Tr. 47-48. This made 

it even more likely an employee would fall. 

Jewell stated that fatalities or severe injuries such as a broken neck or head injury could 

result from a fall of six to ten feet and he noted the presence of a concrete pillar, wooden pallets, 

and steel beams under and_around the narrow area. Tr. 48. Jewell believed one person would be 

affected by the hazard. He also found the alleged violation as S&S. 

Citation 6243229 was terminated when the company issued a memorandum to workers 

not to access the area, the crusher platform was permanently blocked off, and grease lines were 

extended down to the ground level. Tr. 49-50. 

Stanfill testified on behalf of the company. He stated that the crusher had been in its 

present location for approximately seven to eight months~ Tr. 115. He confirmed that greasing 

occurred on a weekly basis and had always been performed from the platform. Tr. 115. Stanfill 

did not know if the condition had been brought to the attention of a supervisor nor was Stanfill 

aware of a safety award being given to Garrett. Tr. 117-118. 

RESOLUTION OF THE ISSUES 

CITATION NO. 6243221 

Citation No. 6243221 states: 

A repairman was observed working from an elevated 

position without wearing roper fall protection, .safety 

belts, and lines. The area the repairmen was standing 

on is 87 inches above a metal flooring of a work· 

platform for the feel conveyor at the "old coal shed." 

The worker was standing on ·a 19 inch diameter 

cylinder type chute. The surface the worker was 

31 FMSHRC 431 
Gov't Exh. 2. 

standing upon is rounded and not flat. The repairman 

was wiring a new motor to the head drive of the 

conveyor. Safety belts and lines are not available at 

the work area. This condition creates a fall of person 

hazard. 

This condition was a factor that contributed to the 

issuance ofimminent danger order No. 6243220 dated 

2/13/06. Therefore, no abatement time was set. 

Section 56.15005 states in pertinent part: 

Safety belts and lines shall be worn when persons 

work where there is danger of falling[.] 

THE VIOLATION 

I find the Secretary established a violation of section 56.15005. The evidence clearly 

shows that Manley was standing on an object 87 inches above the work platform without hand 

rails or anything else to contradict or to minimize the danger of falling.· Jewell testified that 

Manley was not wearing fall protection and no witness contended otherwise. 

S&S AND GRAVITY 

AnS&S violation is a violation "of such nature as could significantly and substantially 

contribute to the cause and effect of a ... mine safety or health hazard.'' 30 U.S.C. § 814(d). A 

violation is properly designated S&S, "if, based upon the particular facts surrounding that 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an irrjury 

or illness of a reasonably serious nature." Cement Div., Nat'! Gypsum Co., 3 FMSHRC 822, 825 

(April 1981 ). As is well recognized, in order to establish the S&S nature of a violation, the 

Secretary must prove: ( 1) the underlying violation; (2) a discrete safety hazard - that is, a measure 

of danger to safety- contributed to by the violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and ( 4) a reasonable likelihood that the injury will he of a 

reasonably serious nature. Mathies Coal Co., 6 FMSHRC 3-4(January1984); accord Buck Creek 

Coal Co., Inc. 52 F. 3rd 133, 135(7'h Cir. 1995); Austin Power Co., Inc. v, Secy of Labor, 861 F. 

2d 99,103 (51

h Cir. 1988) (approving Mathies criteria). 

It is the third element of the S&S criteria t.Qat.is the source of most controversies regarding 

S&S findings. The element is established only ifthe Secretary proves "a reasonable likelihood the 

hazard contributed to will result in an event in which ther(!is an injury." U.S. Steel Mining Co., 

Inc., 7 FMSHRC 1125, 1129 (August 1985). Further, an S&S determination must be based on the 

31 FMSHRC 432 
particular facts surrounding the violation and must be made in the context of continued normal 

mining operations. Texasgulf, Inc., l 0 FMSHRC 1125 (August 1985); US. Steel, 7 FMSHRC at 

1130. 

Finally, the S&S nature of a violation and the gravity of a violation are not synonymous. 

The Commission has pointed out that the "'focus of the seriousness of the violation is not 

necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, 

but rather on the effect of the hazard if it occurs." Consolidation Coal Co., 18 FMSHRC 1541, 

1550 (September, 1996). 

The Secretary has established a violation of section 56.15005. She also has established a 

safety hazard contributed to by the violation .. Bobby Manley was working without fall protection 

in an area where there was a danger of falling; Without the protections required by the standard, it 

is reasonably likely the hazard would have contributed to an injury. Undisputed testimony was 

given by Inspector Jewell that fatal falls have occurred from heights of 10 feet or less. Tr. 28. 

There were no hand rails or anything else for Manley to hold on to, The results of a fall could have 

been fatal or very serious, such as broken bones or even a brain injury. These injuries were 

reasonably likely to occur, and therefore I conclude the violation was S&S. While I understand 

that some ofMoltan's personnel may feel the hazard was minimized because this was a routine 

installation occurring in a short period of time, Manley was working without fall protection long 

enough for the inspector to detect the problem and photograph it, and an accident can occur in an 

instant. 

In view of the type of injuries that were likely to happen if the hazard occurred, I also find 

the violation was serious. 

NEGLIGENCE 

Inspector Jewell believed the company was highly negligent. Gov't Exh. 2. I agree with 

this determination. A high degree of care was required by the company as this task carried with 

it an inherent risk. Based on the evidence presented, there is no doubt that Manley was standing 

on an object 87 inches above the platform. As previously noted, there were no hand rails nor was 

Manley wearing fall protection. The task was being performed in plain sight without the required 

fall protection. There is no evidence to suggest any safety belts or lines were in the immediate 

area. A serious, even fatal, hazard was present, yet plant manager Stanfill believed Manley was 

engaged in a "routine construction installation." Tr. 112. The company fell far short of the 

standard of care required, and I therefore find the company was highly negligent. 

31 FMSHRC 433 
CITATION NO. 6243229 

Citation No. 6243229 states: 

Gov't Exh. 5. 

Safe access is not provided at the crusher drive area. 

The crusher operator must access the drive area to 

grease 12 fittings every 40 hours. The area of access is 

not provided with handrails, barriers, or a working 

platform. The area of access in some places [is] only 

six inches wide across the structural beams and over 

drive pulleys. The area of access is 8 to 12 feet in 

height. Forman Billy Barns, instructed employees to 

"be careful" while greasing. An employee stated that 

management was notified of the hazard via "safety 

suggestion box" and that the idea of providing a safe. 

access was awarded but not acted upon. The 

management has also failed to provide or instruct the 

employees, who [grease] and [maintain] this area, to 

wear fall protection while performing duties. The mine 

operator and Forman Barns [have] engaged in 

aggrl:lvated conducted constituting more than ordinary 

negligence in that the work area is not provided with a 

safe means of access where regular work is required. 

This violation is an unwarrantable failure to comply 

with a mandatory standard. 

Section 56.11001 states: 

Safe means of access shall be provided and maintained 

to. all working places. 

THE VIOLATION 

There has been no evidence or testimony presented to indicate the maintenance was being 

performed in any other manner than as described by Inspector Jewell. An employee had to travel 

on the narrow area at a height of eight to twelve feet off the ground while using a handheld 

grease gun to apply forty shots to twelve fittings at least once a week. There is no question in my 

mind that this was a dangerous task and that safe access was not provided to the working place 

by the company. I therefore find the Secretary established a violation of section 56.11001. 

31 FMSHRC 434 
S&S AND GRAVITY 

I also find the Secretary has established the violation was S&S. Without providing safe 

access to the working area as is required by the standard, it was reasonably likely the hazard 

would have contributed to an injury. An employee who traveled along the very narrow easily 

could have fallen to the ground, onto the wooden pallets, against the concrete pillar, or against the 

steel bars and beams. Inspector Jewell testified that the injury could have been serious such as a 

broken neck or head injury, or even fatal, and I agree. Moreover, in view of the kind of injuries 

that were likely to result if the hazard occurred, I find the violation was serious. 

UNWARRANTABLE FAILURE AND NEGLIGENCE 

Unwarrantable failure is "aggravated conduct, constituting more than ordinary negligence 

in relation to a violation of the Act." Emery Mining Corp. 9 FMSHRC 1997, 2004 

(December 1987). Unwarrantable failure is characterized by such conduct as "reckless disregard," 

"intentional misconduct," "indifference," or "a serious lack of reasonable care." Id. 2003-2004; 

Rochester & Pittsburg Coal Co., 13 FMSHRC 189, 193-194(February1991); see also Rock of 

Ages Corp. v. Sec '.Y of Labor, 170 F.3d 157 (2d Cir. 1999); Buck Creek Coal, Inc. v. MSHA, 53 

F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test). Moreover, the 

Commission has examined the conduct of supervisory personnel in determining unwarrantable 

failure, and recognized that a heightened standard of care is required of such individuals. See 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011(December1987) (section foreman held 

to demanding standard of care in safety matters); S&H Mining, Inc., 17 FMSHRC 1918, 1923 

(November 1995) {heightened standard of care required of section foreman and mine 

superintendent). Negligence, of course, is the failure to meet the standard of care required by the 

circumstances. 

I conclude the violation was caused by Moltan's unwarrantable failure to comply with the 

standard. The condition existed at this particular crusher for at least five months. The 

maintenance was performed in plain view and within fifty yards of the mine office. Management 

knew that maintenance was being performed on the crusher in this manner. The hazard posed was 

significant and the heightened care that was required by the hazard was totally missing. The 

serious lack of reasonable care reflected both Moltan's unwarrantable failure and its high degree 

of negligence. 

REMAINING CIVIL PENALTY CRITERIA 

IDSTORY OF PREVIOUS VIOLATIONS 

The Secretary entered into evidence the "Assessed Violation History Report." Gov't Exh. 

12. The Secretary has characterized the company's history of violations as "fairly small." Tr. 1O1. 

31 FMSHRC 435 
I find, based on the record in this case, the applicable history of previous violations is small. 

The Secretary entered into evidence the "Assessed Violation History Report''- Gov't Exh. 

12. The parties stipulated to the fact that there were approximately 400,000 hours worked in 

2006. This means Moltan's facility is characterized by MSHA as a medium mine. 30 C.F.R. § 

100.3. As there is no evidence to contradict this, I find the mine to be medium in size. 

ABILITY TO CONTINUE IN BUSINESS 

The parties have stipulated that a reasonable penalty will not affect Moltan' s ability to 

remain in business. Tr. 12; Stip. 5. I accept this stipulation. 

GOOD FAITH ABATEMENT 

The violations were abated in good faith by Moltan and in a timely manner. Gov't Exh. -2; 

Gov't Exh. 4. 

Citation No. 

6243221 

CIVIL PENALTY ASSESSMENTS 

Date 

211312006 

30 C.F.R. § 

56.15005 

Proposed Assessment 

$2,200 

I have found the violation to be serious and the negligence on the part of the company to 

be high. Given these .findings and the other civil penalty criteria, I find the penalty of $2,200 

proposed by the Secretary is appropriate. 

Citation No. 

6243229 

Date 

211412006 

30C.F.R. § 

56.11001 

Proposed Assessment 

$1,300 

I have found the violation to be serious and the negligence on the part of the company to 

be high. Given these findings and the other civil penalty criteria, I find the penalty of $1,300 

proposed by the Secretary is appropriate. 

31 FMSHRC 436 
ORDER 

Moltan SHALL pay total civil penalties of $3 ,500 within 40 days of the date of this 

decision, and upon payment of the penalties, this proceeding IS DISMISSED. 

Distribution: (Certified Mail) 

_jJvJ;rlf &Joll'L--

David F. Barbour 

Administrative Law Judge 

(202) 434-9980 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,· 

Suite 230, Nashville, TN 37219-2456 

Larry M. Gurley, Moltan Company, 7125 Riverdale Bend Road, Memphis, TN 38125 

/sf 

31FMSHRC437 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, NW, Suite 9500 

Washington, D.C. 20001 

OHIO COUNTY COAL COMP ANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMJNISTRA TION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

omo COUNTY COAL COMPANY, 

Respondent 

March I 7, 2009 

CONTEST PROCEEDINGS 

Docket No. KENT 2006-308-R 

Order No. 6689096; 0510912006 

Docket No. KENT 2006-309-R 

Order No. 6689097; 0510912006 

Freedom Mine 

Mine ID 15-17587 

CNIL PENALTY PROCEEDINGS 

Docket No. KENT 2006-369 

A.C. No. 15-17587-88177 

Docket No. KENT 2007-46 

A.C. No. 15-17587-98358-01 

Docket No. KENT 2007-49 

A.C. No. 15-17587-98358-02 

Docket No. KENT 2007-77 

A.C. No. 15-17587-100975 

Docket No. KENT 2007-82 

A.C. No. 15-17587-100975 

Freedom Mine 

DECISION 

Appearances: Mary Sue Taylor, Esq., U.S. Department of Labor, Nashville, Tennessee, 

on behalf of the Secretary 

R. Herny Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, 

on behalf of the Company 

Before: Judge Barbour 

31 FMSHRC 438 
These consolidated cases concern contest and civil penalty proceedings arising under the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq. In the contest proceedings 

Ohio County Coal Company (Ohio County or the company) challenges the validity of a citation 

and order issued at its Freedom Mine,·an underground bituminous coal mine located in 

Henderson County, Kentucky. In the civil penalty proceedings the Secretary of Labor, on behalf 

of her Mine Safety and Health Administration, seeks the assessment of various proposed civil 

penalties for 79 alleged violations. 

The matters were the subject of extensive negotiations, and the parties were able to settle 

many, but not all, of the issues dividing them. When it became apparent the parties could not 

settle their remaining differences, the cases were scheduled to be heard in Washington, D.C. The 

trial was to begin at 8:30 a.m., on August 25, 2008, but shortly before the appointed time; I met • 

with counsels to explore whether further negotiations were warranted. Counsels consulted their 

clients and advised me they wished to postpone the start of the hearing. The Commission made 

its offices available, and at approximately 10:20 a.m. counsels advised me they agreed on a 

framework to settle the remaining issues. 

The hearing was convened so that counsels could state the outlines of the proposed 

settlement on the record. As counsel for the company described the proposed settlement, it 

involved the Secretary agreeing to delete inspectors' findings that several of the alleged 

violations were of a significant and substantial nature (S&S) and the company agreeing to accept 

the S&S findings on other of the citations. Additionally, as counsel for Ohio County explained, 

the parties agreed: 

A training class will be conducted at the mine 

by mine personnel that may be monitored by MSHA 

[and] that will address the importance of compliance 

with [30 C.F.R.§] 75.400, [(the mandatory safety 

standard prohibiting accumulations of loose coal, 

coal dust and other combustible materials)] .... 

In addition, the mine's clean-up plan will be revised 

to spell out a written procedure for per-operational 

checks with respect to three types of equipment 

... the diesel man trips, the roofbol[t]ers and 

the ram cars.~ .. [A]s part of the program there 

will be training given on pre-operational checks 

and there will be a pre-operational checklist 

developed that will address the issue of keeping 

the types of [referenced] equipment ... free 

from hazardous accumulations of coal and other 

combustible materials. 

[The] plan [also] will include a card that will be 

31 FMSHRC 439 
Tr. 6-7. 

placed on equipment to indicate the scope of. .. 

[the pre-operational] checks .... [The] card will 

also include a direction that [when] a deficiency is 

noted in a pre-operational check, it shall be reported 

to a foreman. In addition, there will be a provision 

with respect periodic monitoring [to ensure] ... [the] . 

checks are being done. 

Three months prior to the hearing, counsels had submitted a motion requesting approval 

of a settlement of issues related to several of the alleged violations. 1 At the hearing, counsels 

stated they hoped to submit a motion for the approval of all other issues by September 9, 2008. 

Tr. 8. However, as counsel for Ohio County noted, "the devil is in the details", an observation 

that proved prescient. 

Although on September 8, counsels submitted another motion to approve a partial 

settlement.2 Only in mid~February 2009, and after continuing discussions and the exchange of 

several draft settlement motions, did counsels finally agree concerning all of the remaining 

issues. A joint motion to approve the lastparts of the settlement was filed on February 19~ 2009.3 

The settlement, as stated in the parties' motion as amended, is as follows: 

KENT 2006-369 

Citation/ 

Order No. Date 30 C.F.R. Assessment. Settlement 

6689120[4

] 3/1/06 75.400 $614 $614 

6689123 311106 75.400 $614 $614 

6689129 316106 75.400 $614 $614 

6689145 5/15/06 75. l 106-3(a)(3) $963 $500 

1

0n August 7, 2008, I issued a decision approving the partial settlement of the cases. 

2

0n September 22, 2008, I issued another partial settlement decision based on the motion. 

3

Two corrections to the February I 9 motion were subsequently filed by e-mail. A 

printout of the e-mail is part of the record. See e-mail, Errors in KENT 2007-46 (March 6, 

2009). . 

4

Joint Stipulations and Motion for Approval of Pretrial Settlement (February 19, 2009). 

In addition to Citation No. 6689120, the Joint Stipulations and Motion includes Citation Nos. 

6689123, 6689129 and 6689145. 

31 FMSHRC 440 
KENT 2007-46 

Citation/ 

Order No. Date 30 C.F~R. Assessment Settlement 

6689109[5

] 2/24/06 75.362(b) $4,500 $3,000 

6689468[6

] 5/16/06 75.400 .. $963 $963 

6689430 5122106 75.503 $440 $440 

6689431 5/22/06 75.400 $440 $440 

6689432 5122106 75.400 $440 $440 

6689433 5122106 75.400 $440 $440 

6689472 5/23/06 75.202(a) $838 $376 

6689473 5/22/06 ··75.400 $963 $963 

6689451 6/1/06 75.400 $440 $440 

KENT 2007•49 

Citation/ 

Order No. Date 30 C.F.R. Assessment Settlement 

6689460[7] 612106 75.400 $440 $440 

6689542 612106 75.400 $440 $440 

KENT 2007-82 

Citation/ 

Order No. Date 30 C.F.R. Assessment Settlement 

6689096 [

8

J 519106 75.1107-16 $3,700 $3,700 

In support of the proposed settlement of the allegations relating to the alleged violations, 

Section 110(1) of the Act (30 U.S.C. § 820(i), including information regarding Ohio County's 

size, ability to continue in business and history of previous violations. 

5

E-mail, Errors in KENT 2007-46 (March 6, 2007). In addition-to Citation No. 6689109, 

the e-mail includes Citation No. 6689472. 

6

Joint Stipulations and Motion for Approva.l of Pretrial Settlement (February 19, 2009). 

In addition to Citation No. 668468, the Joint Motion includes Citations No. 6689430, 6689431, 

6689432, 6689433, 6689473 and 6689451. 

7

Joint Stipulations and Motion for Approval of Pretrial Settlement (February 19, 2009). 

In addition to Citation No. 6689460, the Joint Motion includes Citation No. 6689542. 

8

Joint Stipulations and Motion for Approval of Pretrial Settlement (February 18, 2009). 

31 FMSHRC 441 
KENT 2006-308-R 

(104(d)(l) Citation 6689096, 5/9/06, 30 C.F.R. § 75.1107-16) 

KENT 2006-309-R 

(104(d)(l) Order 6689097. 5/9/06, 30 C.F.R. § 75.606) 

Resolution of the penalty issues with regard to Citation No. 6689096 (Docket No. KENT 

2007-82) and Order No. 6689097 (Docket No. KENT 2007-82) has resolved the issues raised in 

contest proceedings KENT 2006-308-R and KENT 2006-309-R, and the parties agree the contests 

may be dismissed.9 

OTHER AGREEMENTS 

In addition to the Secretary agreeing to accept payment as specified for the alleged 

violations and Ohio County agreeing to pay, the parties further agreed regarding the teaching of a 

class relating to cleaning combustible materials on mobile equipment, the external operating 

temperatures of specific types of mobile equipment and the implementation of a list for the preoperational checks of such equipment. Their agreement states: 

a. Within 30 days of the approval ofthis settlement.·· 

... Ohio County shall conduct on all three shifts a 

class lasting a minimum of 30 minutes that shall 

address the importance of the cleaning of combustible 

materials from mobile mining equipment and the 

potential hazards to accumulations of combustible 

materials on mining equipment. MSHA may monitor · 

such class and Ohio County will provide two day 

notice to MSHA of the conduct of such classes. 

b. MSHA agrees that the normal operating external 

operating temperatures of the components of 

roofbolting machines, including but not limited to 

motors, valve banks, etc., is 168 ° F or less. 

c. MSHA agrees that the normal operating external 

operating temperatures of the components of rarncars, 

including, but not limited to, motors, hydraulic tanks, 

etc., is 168 ° F or less. 

d. MSHA agrees that the normal operating external 

9

The settlement relating to Order No. 6689097 was set forth in the parties' September 8, 

2008, motion and was approved in the September 22 partial decision. 

31 FMSHRC 442 
6. 

operating temperatures of the components of diesel 

mantrips, including motors, is 195 ° F or less. The 

external surface temperature of the exhaust is greater 

than 195° F but less than 302°F, MSHA's limit on 

such temperatures. 

e. Ohio county has proposed revisions to the cleanup 

plan adopted i.mder 30 C.F.R. § 75.400-2 .... Such 

revised plan shall include the requirement that a 

written check list for the pre-operational checks of 

roofbolters, diesel mantrips and ram.cars, be 

developed and affixed to the mobile equipment 

specified herein. Such checklist shall include 

requirements that the equipment operator 

perform a pre-operational check of the exterior 

surfaces of such equipment for hazardous 

accumulations of combustibles[,] including coal, coal 

fines, float coal dust, hydraulic oil, grease and diesel 

fuel. Such checklist shall be provided on roofbolters, 

ramcars and diesel mantrips. Upon notification of the 

absence of such a list on equipment, it shall be 

replaced by the next shift. Such pre-operational 

checklist shall include a requirement that the operator 

report to his supervisor any deficiency in the 

equipment so that appropriate action may be taken if 

necessary. 

Joint Stipulations and Motion for Approval of Pretrial Settlement (February 19, 2009) at 5-

After consideration of the settlement motions, I find the proposed settlement is reasonable 

and in the public interest. The motion IS GRANTED and the settlement IS APPROVED. 

ORDER 

Ohio County IS ORDERED to pay a total civil penalty of $14,424 in satisfaction of the 

violations in question. Payment is to be made to MSHA within 30 days of the date of this decision. 

In addition, within the same time period Ohio County IS ORDERED to implement the agreements 

31 FMSHRC 443 
as specified in the "Other Agreements" section of this decision and as stated in the February 19, 

2009 motion. Upon receipt of full payment and implementation of the specified agreements, all of 

the captioned proceedings ARE DISMISSED. 

_f).,,v11df t_'5ad~ David F. Barbour · 

Administrative Law Judge 

Distribution: (Certified Mail) 

Mary Sue Taylor, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 

230, Nashville, TN 37219-2456 

Julia K. Shreve, Esq., Melissa M. Robinson, Esq., Jackson Kelly, PLC, 1600 Laidley Tower, P.O. 

Box 553, Charleston, WV 25322 

R. Henry Moore, Esq., Jackson Kelly, PLLC, 3 Gateway Center, Suite 1340, 401 Liberty Avenue, 

Pittsburgh, PA 15222 

/ej 

31 FMSHRC 444 
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: 202-434-99 / FAX: 202-434-9949 

April 3, 2009 

SECRET ARY OF LABOR CIVIL PENAL TY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BROOKS RUN MINING CO., LLC, 

Respondent 

Docket No. WEVA2007-701 

A.C. No. 46-09066-123671 

Docket No. WEV A 2007-580 

A.C. No. 46-09066-119010 

Mine: Cucumber 

ORDER GRANTING, IN PART. AND DENYING, IN PART, 

MOTIONS FOR SUMMARY DECISION 

Before: Judge Bulluck 

These cases are before me on Petitions for Assessment of Civil Penalty filed by the 

Secretary of Labor, acting through her Mine Safety and Health Administration ("MSHA"), 

pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 ("the Act"), 

30 U.S.C. § 815( d), against Brooks Run Mining Company ("Brooks Run" or "Respondent"). 

The Secretary issued four significant and substantial ("S&S") citations alleging violations of her 

mandatory safety standard found at30 C.F.R. § 70. IOO(a). The parties have filed cross Motions 

for Summary Decision. 

Judicial notice is taken of the disease probability rates concerning respirable dust 

contained in the Legislative History of the 1969 Coal Act. Section 70; 100( a) is lifted, almost 

verbatim, from section 202(a) of the Mine Act, 30 U.S.C. § 842, which, in turn, was carried over 

from the 1969 Coal Act without significant amendment. 1 See Consolidation Coal Co., 

8 FMSHRC 890, 896 (June 1986). 

Based upon the stipulations and uncontested facts represented by the parties, I find that 

there is no genuine issue as to any material fact. Sec'y Mot. at 1-16; Resp. Mot. at 4-10. Having 

reviewed the parties' Motions, I conclude that, for the reasons stated below, the Secretary is 

entitled to summary decision, in part, and the Respondent is entitled to summary decision, in 

part, as a matter of law:· 

1 See Rep. No. 91-411, 9pt Cong., l51 Sess. 15-16 (1969). 

31 FMSHRC 445 
I. Factual Background 

Brooks Run Mining Company, Incorporated, operates the Cucumber Mine in McDowell 

County, West Virginia, which produces approximately 6,000 tons of coal on two nine-hour 

production shifts per day, seven days a week. The mine has been in operation since February 27, 

2006, and has four active mechanized mining units ("MMU")- 001-0, 002-0, 003-0, and 004-0. 

MMU 001-0 went into producing status on May 8, 2006; MMU 002-0 on May 8, 2006; MMU 

003-0 on April 17, 2006; and MMU 004-0 on May 8, 2006. Sec'y Stip 86; Resp. Stip 1. 

Section 70.lOO(a) of the Code of Federal Regulations requires that an operator continuously 

maintain the average concentration of respirable dust in a mine atmosphere at or below 

2.0 mg/m3. 30 C.F.R. § 70.lOO(a). To determine whether an operator is complying with the 

applicable limit for respirable dust, section 20.207(a) requires that each operator take five valid 

respirable dust samples from the designated occupation in each MMU, and submit them to 

MSHA for testing. 

On June 5, 6, 7, 8 and 9, 2006, Respondent collected five designated occupation samples 

from MMU 004-0 for the May-June 2006 bimonthly sampling cycle. Sec'y Ex. 1. The results of 

the five samples showed an average concentration of4.2 mg/m3. Sec'y Ex~ 1. On June 16, 

2006, MSHA Inspector Michael T. Dickerson issued Citation No. 9967760 to Respondent for 

exceeding the respirable dust limit of 2.0. Sec'y Ex. 1. Dickerson found that it was an S&S 

violation that would be highly likely to result in an illness, that the illness would be permanently 

disabling, that five persons were affected, and that Respondent's negligence was moderate. 

Sec'y Ex. 1. The citation was terminated on July 6, 2006; after Respondent submitted samples 

showing an average dust concentration within the applicable limit Sec'y Ex. I. 

On January 23, 24, and 26, 2007, Respondent collected five designated occupation 

samples from MMU 003-0 for the January-February 2007 .bimonthly sampling cycle. Sec'y 

Ex. 2. The results of the five samples showed an average concentration of 3.0 mg/m3. Sec'y 

Ex. 2. On February 1, 2007, MSHA Inspector Paul Prince issued Citation No. 9967919 to 

Respondent for exceeding the respirable dust limit of2.0. Sec'y Ex. 2. Prince found that it was 

an S&S violation that would be highly likely to result in an.illness, that the illness would be 

permanently disabling, that five persons were affected, and that Respondent's negligence was . 

moderate. Sec'y Ex. 2. The citation was terminated on March 29, 2007, after Respondent 

submitted an updated Methane and Dust Control Plan ("Dust Control Plan") and respirable dust 

samples showing an average dust concentration within the applicable limit. Sec'y Ex. 2; Resp. 

Ex. 6 and 7. 

On January 29, 30, 31, and February I and 2, 2006, Respondent collected five designated 

occupation samples from MMU 001-0 for the January-February 2007 bimonthly sampling cycle .. 

Sec'y Ex. 3. The results of the five dust samples showed an average concentration of2.7 mg/m3 

Sec'y Ex. 3. On February 13, 2007, Inspector Prince issued Citation No. 9967921 to Respondent 

for exceeding the respirable dust limit of 2.0. Sec'y Ex. 3. He found that it was an S&S 

violation that would be "reasonably likely'' to result in an illness, that the illness would be 

31 FMSHRC 446 
pennanent]y disabling, that five persons were affected, and that Respondent's negligence was 

high. Sec'y Ex. 3. The citation was tenninated on May 16, 2007, after Respondent submitted a 

revised Dust Control Plan and respirable dust samples showing an average dust concentration 

within the applicable limit. Sec'y Ex. 3; Resp. Ex. 6 and 7. 

On March 26, 27, and 28, 2006, Respondent collected five designated occupation samples 

from MMU 004-0 for the March-April 2007 bimonthly sampling cycle. Sec'y Ex. 4. The results 

of the five dust samples· showed an average concentration of 3.9 mg/m3. Sec'y 

Ex. 4. On April 9, 2007, Inspector Prince issued Citation No. 9967966 to Respondent for 

exceeding the respirable dust limit of 2.0. Sec'y Ex. 4. He found that it was an S&S violation 

that would be highly likely to result in an illness, that the illness would be pennanently disabling, 

that five persons were affected, and that Respondent's negligence was moderate. Sec'y Ex. 4. 

The citation was tenninated on May 10, 2007, after Respondent submitted an updated Dust 

Control Plan and respirable dust samples showing an average dust concentration within the 

applicable limit. Sec'y Ex. 4; Resp: Ex. 6 and 7. 

There was no MSHA inspector present at the mine when the respirable dust samples at 

issue were taken. Resp. Stip. 24. Respondent has not presented any facts that would contradict 

the validity of the test results. 

II. Findin~s of Fact and Conclusions of Law · 

Commission Rule 67(b), governing summary decisions, provides as follows: 

A motion for summary decision shall be granted only if the entire record 

... shows: (1) That there is no genuine issue as to any material fact; and 

(2) That the moving party is entitled to summary decision as a matter of 

law. 

29 C.F.R. § 2700.67(b). 

Section 70. l 00( a), governing respirable ·dust limitations states: 

Each operator shall continuously maintain the average 

concentration of respirable dust in the mine atmosphere during 

each shift to which each miner in the active workings of each mine 

is exposed at or below 2.0 milligrams of respirable dust per cubic 

meter of air as measured with an approved sampling device and in 

terms of an equivalent concentration determined in accordance 

with §70.206 (Approved sampling devices: equivalent 

concentrations). 

30 C.F.R. §70. IOO(a). To ensure that an operator is in compliance with section 70.IOO(a), 

31 FMSHRC 447 
section 70.207(a) provides, in pertinent part: 

Each operator shall take five valid respirable dust samples from the 

designated occupation in each mechanized mining unit during each 

bimonthly period .... Designated occupation samples shall be 

collected of consecutive normal production shifts or normal 

production shifts each of which is worked on consecutive days.2 

30 C.F.R. §70.207(a). The operator selects the days during the bimonthly period when dust 

sampling will be conducted. The "designated occupation" is the particular work position on a 

mechanized mining unit that has been determined by results of respirable dust samples to have 

the greatest respirable dust concentration. 30 C.F.R. § 70.2(f). The five valid samples are 

collected using MSHA approved filter cassettes contained in an air sampling unit worn by the 

miner in the designated occupation. The operator then sends the five dust samples to MSHA's 

laboratory, where the filters are removed and weighed to determine whether the average dust 

concentration for each sample is in compliance with the 2.0 milligram limit set by section 

70.IOO(a)3. The average concentration of the five respirable dust samples are considered 

representative of the mine atmosphere over the course of the entire bimonthly sampling period. 

Consolidation Coal Co., 8 FMSHRC at 900. 

If a violation of the applicable respirable dust standard is found, an MSHA inspector 

issues a citation setting a deadline for abatement. During the abatement period, the operator must 

take corrective action to lower the concentration of respirable dust to within the permissible 

level, and then sample each production shift until five valid samples are taken. 30 C.F.R. 

§70.20l(d). MSHA may also require that the operator submit changes, in writing, to its Dust 

Control Plan. Upon MSHA's receipt of five acceptable dust samples, the citation is terminated. 

The issuance of the citation and abatement by MSHA typically occur without a visit to, or 

inspection of, the mine. 

In these matters, the Secretary seeks to modify the citations by raising gravity factors of 

the number of persons affected and the likelihood of injury or illness, and the negligence 

findings, as well as the penalty amount assessed for each violation. Brooks Run does not 

challenge the fact of violations or the S&S designation of the citations. It does, however, dispute 

2 As set forth by 30 C.F.R. § 70.208, the bimonthly periods for "designated area" 

sampling are February I-March 3 I; April I- May 31; June 1-July 31; August I-September 30; 

October 1- November 30; and December 1- January 31. 

3 While Respondent contends that MSHA failed to check the subject dust samples to 

determine the level of any diesel mantrip exhaust, which could have altered the weight of the 

sample, it has presented no proof that the samples on which these violations are based were 

inaccurate. Sec'y Mot. at 6, Stip. 37; Resp. Mot. at 12. See Consolidation Coal Co. v. 

FMSHRC, 824 F.2d I 071, 1088 (D.C. Cir 1987). 

31 FMSHRC 448 
the high and moderate negligence findings, as well as the gravity findings that injury or illness 

was highly likely, would be permanently disabling, and affected five persons. 

Gravity 

Likelihood of Injury or Illness 

The Secretary contends that the high likelihood of injury or illness was appropriately 

designated for Citation Nos. 9967760, 9967919, and 9967966, based on the degree of 

overexposure shown by the test results. She states that exposure levels of 3.0 to 4.2 mg/m3, 

which exceed the applicable limit by 150-220%, are highly likely to contribute to the occurrence 

of the permanently disabling disease ofpneumoconiosis. Moreover, the Commission has 

recognized that any exposure above 2.0 mg/m3 is significant and substantial, and that the 

likelihood of injury is to be made assuming continued normal mining operations without 

abatement of the violation. Consolidation Coal Co., 8 FMSHRC at 899. 

Brooks Run argues_that the gravity findings should be reduced to reflect that the violation 

is reasonably likely to result in lost workdays or restricted duty. The Secretary counters by 

presuming that, once the designated samples are out of compliance, everyone on the section is 

exposed and highly likely to receive permanent, disabling illnesses. The Secretary relies. on the 

·probability rates for contracting simple pneumoconiosis "after 35 years exposure." Id. at 896. 

However, the miners were not exposed to excess dust for any significant period of time and, as 

Brooks Run also points out, during June 2006 through May 2007, only seven out of ninety-one 

samples were above 2;0 mg/m3 on different, isolated dates, and for different jobs and different 

MMUs. These results, when viewed in their entirety, provide a more accurate depiction of the · 

dust levels in the mine. 

In preventing disabling respiratory disease~ the Commission has stated that "Congress 

clearly intended the full use of the panoply of the Act's enforcement mechanisms to effectuate 

this congressional goal, including designation of a violation as a significant and substantial 

violation." Consolidation CoalCo;, 8 FMSHRC at 897, ajf'd sub nom. Consolidation Coal v. 

FMSHRC, 824 F.2d 1071(D.C.Cir.1987). The Commission has also recognized that, with 

respect to exposure-related health hazards, some departure from the Secretary's enforcement 

approach is justified "because of fundamental differences between a typical safety hazard and the 

respirable dust exposure-related health hazard at issue." Id. at 895; see also Costain Coal, Inc., 

19 FMSHRC 1653, 1656 (Oct. 1997) (ALJ). 

While examining the third element of the Mathies test4

, in the context of respirable dust 

4 To establish an S&S violation under the Mathies test, the Secretary must prove: l) the 

underlying violation of a mandatory safety standard; 2) a discrete safety hazard -- that is, a 

measure of danger to safety--contributed to by the violation; 3) a reasonable likelihood that the 

hazard contributed to will result in an injury; and 4) a reasonable likelihood that the injury in 

31 FMSHRC 449 
accumulations, the Commission recognized that: 

the development and progress ofrespiratory disease is due to the 

cumulative dosage of dust a miner inhales, which in tum depends 

upon the concentration and duration of each exposure, and that 

proof of a single incident of overexposure does not, in and of itself, 

conclusively establish a reasonable likelihood that respirable 

disease will result. There is no dispute, however, that 

overexposure to respirable dustcan result in chronic bronchitis and 

pneumoconiosis. The effects of the health hazards associated with 

overexposure to respirable dust usually do not cause immediate 

symptoms-as noted, simple pneumoconiosis is asymptomatic. 

This factor makes precise prediction of whether or when 

respiratory disease will develop impossible. Likewise, it is not 

possible to assess the precise contribution that a particular 

overexposure will make to the development of respiratory disease. 

fu sum, the present state of scientific and medical knowledge, as 

exemplified by the present record, do [sic] not make it possiblt;! to 

determine~the precise point at which the development of chronic 

bronchitis or pneumoconiosis will occur or is reasonably likely to 

occur. 

Consolidation Coal Co., 8 FMSHRC at 898. 

A primary purpose of the Mine Act is to prevent or significantly reduce the occurrence of 

respirable dust induced diseases among coal miners. Congress established the 2.0 mg/m3 

respirable dust standard because it recognized that anything in excess of this level would produce 

disabling complicated pneumoconiosis or progressive massive :fibrosis and other occupationrelated diseases in a statistically significant portion of coal miners. Id. Consequently, it also 

recognized that, at levels below 2.2 mg/m3, there would be virtually no probability of a miner 

contracting complicated pneumoconiosis, even after exposure of 35 years. Congress chose to 

adopt a universal approach to assure that all miners, regardless of their susceptibility to illness or 

length of time worked, "would be uniformly protected from the incremental health hazards 

presented by repeated overexposures to respirable dust in .coal mines." Id. Where the Secretary 

has proven, based on designated occupation samples, that an overexposure to respirable dust has 

occurred in violation of section 70. l 00( a), there is a presumption that there is a reasonable 

likelihood that the health hazard contributed to will result in an illness. Id. at 899. 

With regard to Citation Nos. 9967760 and 9967919, the Secretary offers nothing beyond 

the probability rates at various exposure levels, that each of the individual violations are highly 

likely to cause pneumoconiosis in each miner exposed. Resp. Mot. at 21. Although each "drop 

in the bucket" significantly and substantially contributes to a health hazard, it does not logically 

question will be of a reasonably serious nature. Mathies Coal Co.; 6 FMSHRC l, 3-4 (Jan. 1984). 

31 FMSHRC 450 
follow that pneumoconiosis is highly likely to occur as a result of an isolated incident, even at an 

exposure level of 4.2 mg/m3. See Consolidation Coal Co., 5 FMSHRC 378, 381-82 (Mar. 1983) 

(ALJ) (exposure to a coal mine respirable dust level of 4.1 mg/m3 over a 5-day period would not, 

in itself, cause or significantly contribute to the development ofchronic bronchitis or coal 

workers' pneumoconiosis, and its effect on the development of pneumoconiosis would be 

minuscule); Such a disease results from an aggressive accumulationofrespirable-dust. Id. at 

389; see also Consolidation Coal Co., 8 FMSHRC at898. As there has been no showing of a 

history of respirable dust violations preceding these citations for the MMUs in question, I am not 

persuaded that these violations, even at the recorded exposure levels, were anything more than 

"reasonably likely" to result in an illness. 

Conversely, Citation No. 9967966 was the third respirable dust violation to be issued to 

Brooks Run for MMU 004-00 within six bimonthly sampling cycles. · The violations, on average, 

more than doubled the acceptable 2.0 mg/m3 limit, recording respirable dust levels of 4.2, 4.4 

and 3.9 mg/m3, respectively. These citations indicate that miners were repeatedly exposed to 

very high rates of respirable dust. Sec'y Ex. 1, 4 and 13. Consequently; I find that the violation 

was "highly likely" to result in an illness. 

Result of Injury or Illness 

Coal workers' pneumoconiosis is a chronic lung disease that is untreatable and 

irreversible. Consolidation Coal Co., 5 FMSHRC at 381. Complicated pneumoconiosis, or 

progressive massive fibrosis, destroys.the lungs' air exchange capabilities, distorts the remaining 

lung tissue, and significantly impairs the lungs' capacity to function due to severe internal 

scarring, contracture of the lungs' with compensatory emphysema, and loss of the vasculature. 

Consolidation Coal Co., 8 FMSHRC at 899. It commonly causes shortness of breath and 

coughing, and can result in severe pulmonary impairment and early death. 5 FMSHRC at 381. 

Lung deterioration can continue even after a miner is no longer exposed to coal dust. Id. As 

stated by the Commission, these facts support a conclusion that there is a reasonable likelihood 

that illness resulting from overexposure to respirable dust will be of a reasonably serious nature. 

Consequently, I affirm the Secretary's findings that the resulting illness is likely to be 

"permanently disabling," and Citation Nos. 9967760, 9967919, 9967921, and 9967966 shall 

remain as written. 

Number of Persons Affected 

The Secretary argues that all shift members are affected by MMU dust violations because 

they all work in the vicinity of the sampled designated occupation. She asserts that, rather than 

five persons affected, the facts indicate that more persons were affected than originally cited and 

thus, the number should be increased for each citation. Brooks Run counters that the number 

should be reduced from five to one for each citation, because other shift members typically 

worked in areas with less or no exposure to the recorded dust levels. It looks to Costain for 

support, where it is concluded that some occupations ordinarily have less dust exposure than the 

31 FMSHRC 451 
designated occupation. 

Respondent's reliance on Costain, however, ignores the factthat this argument was found 

insufficient to circumvent the standard's purpose. As previously stated, the purpose of section 

70.100( a) is to limit the respirable dust exposure of miners in active workings of a mine. "Active 

workings" is defined-as "anyplace in a coal minewhere miners are normally-required to-work or 

travel. 30 C.F.R. §70.2(b). Section 70.2(f) defines designated occupation as the occupation on a 

mechanized mining unit that has been determined by results of respirable dust samples to have 

the greatest respirable dust concentration.'~ 30 C.F.R. §70.2(f). In Costain, the Administrative 

Law Judge noted that: 

the purposeofMSHA's high risk occupation bimonthly sampling 

program is to monitor the atmospheric conditions in active 

workings. Monitoring the high risk occupation ensures that, if the 

high risk miner is not overly·exposed, no one on that MMUshiftis 

exposed to impermissible levels ofrespirable dust. Put another 

way, monitoring the high risk continuous miner occupation at the 

face provides the earliest warning of excessive respirable dust in 

the active workings atmosphere. 

Costain, 19 FMSHRC at 1659. 

It is likely that the continuous miner operator working at the face would have endured a 

greater level of dust exposure than other occupations, but that fact does not defeat the probability 

that other occupations also would have been exposed at levels above the maximum 2.0 mg/m3. 

I conclude that all miners working a shift are at risk for overexposure to respirable dust, because 

they work in the vicinity of the sampled designated occupation. 

Brooks Run contends that roof bolter operators typically wear respirators when bolting 

down wind of the continuous miner. However, Brooks Run does not require the miners to use 

respirators, nor does it offer any proof that the roof bolter operators were, in fact, wearing the 

respirators when the dust samples in question were taken, or that they, otherwise, customarily 

wore them. Resp. Mot. Stip. 25 and 26. 5 

5 See for example Jim Walter Resources, Inc., 9 FMSHRC 957, 962 (May 1987)(ALJ), 

where the "availability'' of respirators was discussed: 

The operator asserts that it rebuts the presumption of significant 

and substantial by making respirators available to the miners .... 

The foregoing Commission precedent is not couched in terms of 

availability. Rather, the Commission holds that the presumption 

may be rebutted only when the operator establishes that the miners 

in fact were not exposed to excessive concentrations of respirable 

31 FMSHRC 452 
I find that the violations affected the entire shift which, in this case, was the number of 

MMU miners for each shift for which a sample showed exposure above the established limit. 

Sec'y Mot. Stip. 77-80, 82 and 83; ex. 5a, 6a, and 20 at if 34. Accordingly, the Secretary's 

motion to increase the number of miners affected, with respect to all citations, is granted, and the 

Respondent's motion to reduce the number is denied. 

Negligence 

Although the Secretary concedes that Citation Nos. 9967919 and 9967921 appropriately 

attribute moderate negligence to Brooks Run, she argues that the negligence classifications for 

Citation Nos. 99677760 and 9967966 should be raised from "moderate" to "high;" In contrast, 

Brooks Run moves that the negligence levels for each citation be reduced to "low" or "none." It 

argues that it exercised diligence in abating the citations and no identifiable violation of the 

approved Dust Control Plan existed in relation to the subject citations. 

In Costain, factually similar to the instant cases, the discussion of the operator's 

negligence is helpful in assessing Respondent's negligence. The ALJ noted that the density of 

respirable dust can vary from shift to shift and is.affected by various factors, including 

temperature, humidity, and the amount of coal being produced. Because excessive dust levels 

are MMD-specific, a dust reading in one MMU is not indicative of dust concentrations in 

another. Costain, 19 FMSHRC at 1656. It is also important to observe whether an operator has 

a history of respirable dust violations, and a pattern of violating its own Dust Control Plan, 

regardless of the respirable dust history of the MMU in question. Id. He concluded that, "to 

attribute high negligence to an operator for a section 70.l OO(a) violation in the absence of a 

pertinent identifiable dust control plan violation, or an MMU.;.specific history of violative dust 

samples providing notice that greater dust control measures at that MMU were required, is 

tantamount to the presumption of high negligence approach rejected by the Commission in 

Peabody Coal, 18 FMSHRC at498." Costain, 19 FMSHRC at 1658. Such is the case here. 

After an operator has received notice of non-compliant conditions, the Commission 

requires that an operator's good faith efforts must be reasonable when trying to achieve 

compliance with a standard. Cyprus Plateau Mining Corp., 16 FMSHRC 1610, 1615 

(Aug. 1994). Where an operator reasonably believes in good faith that its efforts are the safest 

means of compliance, such conduct is not aggravated and does not constitute a finding of more 

dust through the use of personal protective equipment. The 

distinction is clear. The Commission requires a showing that 

miners were not exposed because they used respirators. Merely 

making respirators available without any concern or interest in 

their actual use falls short of the evidentiary requirement 

established in Consolidation Coal. " (citation omitted). 

31FMSHRC453 
than ordinary negligence. Utah Power and Light Co., 12 FMSHRC 965, 972(May1990). In 

Peabody Coal, the Commission reversed and remanded unwarrantable failure and high 

negligence findings for a 70.100( a) violation, stating that the operator, in an effort to control dust 

levels, had a "good faith" and ''reasonable belief' that its "remedial efforts were work~ng" due to 

a series of compliant bimonthly sampling results immediately prior to the violative sample that 

gave rise to the section 70.lOO(a) citation at issue. Peabody Coal Company, 18 FMSHRC 494, 

499 (Oct. 1997). 

Citation No~ 9967919 was issued on February 1, 2007, in connection with MMU 003-00, 

which went into producing status on April 7, 2006 - nearly 10 months prior to the issuance of the 

citation. Respondent was cited on four occasions, fromJuly 2006 - November 2006 for violating 

Section 70.1 OO(a). Sec'y Ex. 11-14. Those citations were not issued in connection with MMU 

003-00. ·In fact, there is no indication that Brooks Run was cited for respirable dust violations for 

MMU 003-00 prior to Citation No. 9967919. Resp. Ex. BR-5. In addition, there are no 

identifiable Dust Control Plan violations that contributed to the issuance of this citation. 

Therefore, I conclude that there are no previous violations of Section 70. lOO(a) that would have 

placed Brooks Run on notice that heightened measures were needed to control the dust levels on 

MMU 003-00, nor has Respondent exhibited a pattern of violating its Dust Control Plan for this 

particular MMU. In addition, Respondent, in its effort to suppress airborne dust, utilized 26 nondirectional sprays, instead of the 24 required by MSHA. Accordingly, I find that Respondent's 

negligence was low. 

Citation No. 9967921 was issued on February 13, 2007, in connection with MMU 

001-00, which went into producing status on February 27, 2006. On at least three occasions 

between February 27,2006, and February 13, 2007, Respondent was cited for failing to comply 

with its Dust Control Plan. Sec'y Ex. 21, 22 and 26. All citations were terminated the same day. 

There is no identifiable Dust Control Plan violation that contributed to this citation. There are 

also no previous respirable dust control violations for this MMU that would have placed Brooks 

Run on notice that heightened measures were needed to control the dust levels. In accordance 

with its Dust Control Plan, Respondentutilized 26 non-directional sprays, instead of the 24 

required by MSHA, to suppress airborne dust Resp. Ex. BR-6. I find that Respondent's 

negligence was low. 

Citation No. 9967760was issued on June 16, 2006, in connection with MMU-004-00, 

which went into producing status on May 8, 2006. The documentation submitted indicates that 

there were no respirable dust violations issued to Brooks Run for MMU-004-00 prior to Citation 

No. 9967760. There is also no indication of any Dust Control Plan violations that contributed to 

this citation. It was abated within three weeks when Respondent submitted respirable dust 

samples showing an average dust concentration within the applicable limit. Respondent has 

admitted, however, that it used a blowing device that was unfamiliar to many of its miners. As a 

result, the continuous miner operators did not know where to stand in relation to the equipment, 

in order to reduce their exposure to respirable dust. This admission evidences Respondent's 

negligence in failing to train its miners on the appropriate standing position, which deficiency 

31 FMSHRC 454 
should have been observed during an on-shift examination required under section 75.362(a)(2). 

However, when coupled with its history of violation for this MMU, the facts do not justify a 

finding of high negligence. I find that Respondent's negligence, as originally assessed, was 

moderate. 

·Citation No. 9967966 was issued on April 9, 2007, also in connection with MMU 004-

00. Unlike Citation No 9967760, this citation was the third to be issued for a violation of Section 

70.lOO(a) for MMU 004-00 in six bimonthly test cycles. Sec'y Ex. 13. On September 26, 2006, 

Brooks Run was cited for failing to submit the required bimonthly respirable dust samples for the 

July- August 2006 period under Citation No. 9967828. Sec'y Ex.12. The samples submitted to 

abate Citation No. 9967828 were also non-compliant and resulted in issuance of Citation No. 

9967868 on November 7, 2006. It is clear that Respondent's repeated violations of section 

70.lOO(a) placed it on notice that greater dust control measures on MMU 004-00 were needed. 

Respondent's negligence is mitigated, however, by the fact that, after receiving this second 

violation for exceeding the respirable dust limit, the company revised its Dust Control Plan, 

which was approved by MSHA. Sec'y Ex. 13. Following the Plan revision, it submitted five 

valid respirable dust samples that were within the acceptable range. Sec'y Ex. 13. Further, 

before issuance of Citation No. 9967966, Respondent believed, in good faith, that it had 

addressed the problems in its Plan, because it had achieved compliance with applicable limits. 

As a result of revising its Dust Control Plan, it achieved compliance by May 10, 2007. Sec'y 

Ex. 20. There is also no indication that Respondent was not in compliance with its Dust Control 

Plan immediately preceding this citation. ·The record simply does not support a finding of high . 

negligence. Accordingly, I find that Respondent's negligence, as originally assessed, was 

moderate. 

III. Penalty 

While the Secretary has proposed an increase in the total civil penalty from $10,275.00, 

the judge must independently determine the appropriate assessment by proper consideration of 

the six penalty criteria set forth in section 1 lO(i) of the Act, 30 U.S.C. § 820(j). ·See Sellersburg 

Stone Co., 5 FMSHRC 287, 291-92 (March 1993), ajf'd, 763 F.2d 1147 (7th Cir. 1984). 

Applying the penalty criteria, I find that Brooks Run is a large operator and, as the 

Cucumber mine is relatively new, its history of assessed violations is low. See Pet. for 

Assessment of Civil Penalty, Ex. A (MSHA Form 1000-179). As stipulated by the parties, the 

total proposed penalty will not affect Respondent's ability to continue in business. Sec'y Mot. at 

18, stip. 110; Resp. Mot. at 3. I also find that Brooks Run demonstrated good faith in achieving 

rapid compliance, after notice of the violations. 

The remaining criteria involve consideration of the gravity of the violations and Brooks 

Run's negligence in committing them. These factors have been discussed fully, respecting each 

citation. Therefore, considering my findings as to the six penalty criteria, the penalties are set 

forth below. 

31FMSHRC455 
Assessment 

Citation No. 9967919 

It has been established that this S&S violation of 30 C.F.R. § 70.lOO(a) was reasonably 

likely to cause an illness that would be permanently disabling, that fourteen persons were 

affected, that it was due to Brooks Run's low negligence, and that it was timely abated. 

Applying the civil penalty criteria, I find that a penalty of $2,000.00 is appropriate. 

Citation No. 9967921 

It has been established that this S&S violation of 30 C.F .R. § 70.100( a) was reasonably 

likely to cause an illness that would be permanently disabling, that seven persons were affected, 

that it was due to Brooks Run's low negligence, and that it was timely abated. Applying the civil 

penalty criteria, I find that a penalty of $1,500.00 is appropriate. 

Citation No. 9967760 

It has been established that this S&S violation of 30 C:F.R. § 70.lOO(a) was reasonably 

likely to cause an illness that would be permanently disabling, that seven persons were affected, 

that it was due to Brooks Run's moderate negligence, and that it was timely abated. Applying the 

civil penalty criteria, I find that a penalty of $2,000.00 is appropriate. 

Citation No. 9967966 

It has been established that this S&S violation of 30 C.F.R. § 70.lOO(a) was highly likely 

to cause an illness that would be permanently disabling, that eight persons were affected, that it 

was due to Brooks Run's moderate negligence, and that it was timely abated. Applying the six 

civil penalty criteria, I find that a penalty of $2,200.00 is appropriate. 

ORDER 

Accordingly, it is ORDERED that the Secretary's Motion.for Summary Decision is 

GRANTED IN PART and DENIED IN PART, that the Respondent's Motion for Summary 

Decision is GRANTED IN PART and DENIED IN PART, and that the Secretary MODIFY 

the Citations as follows: Citation No. 9967919 to reduce the gravity to "injury or illness 

31 FMSHRC 456 
reasonably likely," to increase the persons affected to "14," and to reduce the negligence to 

"low;" Citation No. 9967921 to increase the persons affected to "7" and reduce the negligence to 

"low;" Citation No. 9967760 to reduce the gravity to "injury or illness reasonably likely" and 

increase the persons affected to "7;" and Citation No. 9967966 to increase the gravity to "injury. 

or illness highly likely" and the persons affected to "8." It is further ORDERED that 

RespondenrP:AYacivitpenaltyof$7,70D.OO, within 30 days ofthis-t>rder.·1\ccordingly, these 

cases are DISMISSED. 

Distribution: 

Karen M. Torre, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd 

Floor West, Arlington, VA 22209-2247 

Max Corley, Esq., Dinsmore & Shohl, LLP, P. 0. Box 11887, 900 Lee Street, Suite 600, 

Charleston, WV 25339 

/sdb 

31 FMSHRC 457 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577 IF AX 303-844-5268 

April 10, 2009 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CNIL PENALTY PROCEEDINGS 

Docket No. CENT 2008-287-M 

A.C. No. 14-01477-136068 

v. 

Docket No. CENT 2009-061-M 

A.C. No. 14-01477-165617-01 

Plant 1 

Docket No. CENT 2008-334-M 

A.C. No. 14-01478-139550 

Docket No. CENT 2008-574-M 

A.C. No. 14-01478-150353 

Plant 2 

Docket No. CENT 2008-285-M 

A.C. No. 14-01597-136070 

NELSON QUARRIES, INC., 

Respondent 

Docket No. CENT 2008-487-M 

A.C. No. 14-01597-143393 

Appearances: 

Before: 

DECISION 

Docket No. CENT 2008-564-M 

A.C. No. 14-01597-146991 

Plant 4 

Ronald S. Goldade and Hillary A. Smith, Conference & Litigation 

Representatives, Mine Safety and Health Administration, Denver, 

Colorado, and Jennifer A. Casey, Esq., Office of the Solicitor, U.S. 

Department of Labor, Denver, Colorado, Jor Petitioner; 

Paul M. Nelson, Nelson Quarries Inc., Jasper, Missouri, for Respondent. 

Judge Manning 

31 FMSHRC 458 
These cases are before me on seven petitions for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"), 

against Nelson Quarries, Inc., 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"). The cases involve ten citations 

issued by MSHA under section 104( a) of the Mine Act at three plants operated by Nelson 

Quarries. The parties presented testimony and documentary evidence at the hearing held in 

Topeka, Kansas. 

At all pertinent times, Nelson Quarries operated quarries in southeastern Kansas. The 

quarries mine limestone and then crush and screen the material for sale. The operations are 

portable and do not necessarily operate twelve months a year. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

A. CENT 2008-287-M; Plant 1 

On July 24, 2007, former MSHA Inspector Chrystal Dye issued Citation No. 6421431 

alleging a violation of section 56.14131(a). (Tr. 18; Ex. G-1). The citation alleges that the driver 

of the Dresser Haulpak truck was not wearing his seat belt when he drove it from the parking 

space to the north side of the plant. fuspector Dye determined that an injury was reasonably · 

likely and that any injury would likely be fatal. She determined that the violation was significant 

and substantial ("S&S") and that the negligence was moderate: The safety standard provides that 

"[ s ]eat belts shall be provided and worn in haulage trucks." The Secretary proposes a penalty of 

$975.00 for this citation. 

fuspector Dye testified that when she asked James Shaw, the driver of the truck, to open 

the door, he was not wearing his seat belt. (Tr. 19). He drove about a quarter of a mile from the 

parking lot to where she was standing without wearing a seat belt. (Tr. 27). She determined that 

the violation was S&S because Shaw would be hauling rock with the truck later in the shift. The 

road from the plant to the pit contained inclines and declines as well as other traffic. There had 

also been a lot of rain in eastern Kansas in the suI1Ui1er of 2007. She testified that if Shaw were 

to hit bad road without wearing a seat belt, he could have been seriously injured. (Tr. 20-21). 

She testified that MSHA' s program policy manual and a history of fatal accidents support her 

S&S finding. (Tr. 22-25; Exs. G-2, G-3). Because Nelson Quarries has a policy that requires 

equipment operators to wear seat belts, she determined that the negligence was moderate. (Tr. 

25). 

There was no dispute that Shaw was not wearing a seat belt. I find that the Secretary 

established a violation but that, under the particular facts of this case, the violation was not S&S. 

A violation is classified as S&S "if based upon the facts surrounding the violation, there exists a 

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

reasonably serious nature." National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In 

Mathies Coal Co., 6 FMSHRC I, 3-4 (January 1984), the Commission set out a four-part test for 

31 FMSHRC 459 
analyzing S&S issues. Evaluation of the criteria is made assuming "continued normal mining 

operations." U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The question of 

whether a particular violation is S&S must be based on the particular facts surrounding the 

violation. Texasgu1f, Inc., 10 FMSHRC 498 (April 1988). The Secretary must establish: (1) the 

underlying violation of the safety standard; (2) a discrete safety hazard, a measure of danger to 

safety, contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to 

will result in an injury; and ( 4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. The Secretary is not required to show that it is more probable than not 

that an injury will result from the violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 

1996). 

The truck had been parked all morning because it had been tagged out for repairs. (Tr. 

31 ). At the request of Inspector Dye, Shaw drove the truck from the parking area to the area 

where she was inspecting trucks for the sole purpose of permitting her to inspect it. Patrick Clift, 

a foreman for Nelson Quarries, testified that he flagged Shaw down and asked him to temporarily 

stop driving his own truck so he could drive the subject'haul truck to Inspector Dye. (Tr. 37). 

The ground was level in t:hat area. (Tr. 32). When Inspector Dye later inspected the haul truck 

that Shaw was actually driving that day, he was wearing his seat belt. Although Clift told the 

inspector that the subject haul truck would be used later that day, it was actually taken back to the 

parking lot for further repairs. (Tr. 33). It was never Clift's intention that Shaw would change 

trucks .that day. Shaw continued to drive the truck he had been assigned at the start of the shift. 

(Tr. 3 7-38). Clift was surprised when he learned that Shaw was not wearing a seat belt because . 

he is a good employee who always wears his seat belt. 

Shaw testified that he normally wears his seat belt. (Tr. 43). He also testified that when 

he was asked to drive the subject haul truck to Inspector Dye, he parked the truck he was driving, 

got in the other truck and drove it about 50 feet to the inspector. This was not an ordinary event 

and he forgot to put on his seat belt. (Tr. 27, 43-44). He left the truck he had beenoperating 

with the motor running because he was going to get back in it to continue hauling rock that day. 

I agree with the Secretary that, under ordinary circumstances, the failure of a haul truck 

driver to wear a seat belt creates a serious safety hazard. In this instance, however, the truck was 

driven a short distance, up to a quarter mile, over level terrain. Shaw was not going to be hauling 

rock with that truck because he was only driving it to the inspector. I credit the testimony of Clift 

and Shaw on this citation. It was not reasonably likely that Shaw would be involved in an 

accident that would result in a serious injury. The violation was not S&S. I also find that the 

operator's negligence was low. The evidence establishes that Shaw normally wears a seat belt 

and that he forgot in this instance because he was asked to perform an unusual task. A penalty of 

$100.00 is appropriate for this citation. 

31 FMSHRC 460 
B. CENT 2009-061-M; Plant 1 

At the conclusion of the hearing, the parties agreed to settle the two citations at issue in 

this docket. (Tr. 354-55). This docket involves Citation Nos. 6321528 and 6321529. 

Respondent agreed to withdraw its contest of Citation No. 6321528 a:nd pay the proposed 

penalty. The Secretary agrees to modify Citation No. 6321529 to delete the S&S determination. 

Respondent agrees to pay the proposed penalty for that citation as well. The settlement is 

approved. · 

C. CENT 2008-334-M; Plant 2 

1. On September 5, 2007, MSHA Melvin Lapin issued Citation No. 6421143 alleging a 

violation of section 56.1421 l(b). (Ex. G-6). The citation states that two employees were 

working on the Dresser Haulpak truck at the ready line with the box in the raised position. The 

box was not blocked against motion to prevent the box from falling and the wheels of the truck 

were not blocked with a chock. One employee was under the box on the truck's frame adding 

hydraulic oil to the tank and the other employee was under the truck. Inspector Lapin determined 

that an injury was highly likely and that any injury would likely be fatal. He determined that the 

violation was S&S and that the negligence was moderate. The safety standard provides that 

"[p ]ersons shall not work on top of, under, or work from a raised component of mobile 

equipment until the component has been blocked or mechanically secured to prevent accidental: 

lowering." The standard also requires that the equipment "be blocked or secured to prevent 

rolling." The Secretary proposes a penalty of $3, 700.00 for this citation. 

Inspector Lapin testified that he began a regular inspection of Plant 2 on September 5 and 

that he was accompanied by his supervisor, Joe Steichen. After they stopped at the scale house 

to introduce themselves, they started to drive to the plant to meet up with Jeff Benedict, the lead 

man. On the way to the plant, they saw a dump truck with its box raised. They decided to see 

why the box was raised. The ••box" is the truck bed that carries rock. As they got closer, they 

saw a miner between the raised box and the frame of the truck. It looked like he was pouring oil 

into the hydraulic tank for the truck. There was another miner under the truck next to the right 

wheels. Lapin got out of the MSHA vehicle to see if there was any kind of support for the box. 

(Tr. 82). When he saw that the box was not supported or blocked against motion, he issued an 

oral imminent danger order and told the miner under the box to move away from the truck. (Ex. 

G-5). He subsequently learned thatthe miner under the box was Billy Doolittle and the miner 

under the truck was Nate Schmidt. When Doolittle did not remove himself, Lapin put his hand 

on Doolittle's shoulder and again ordered him to get out from under the box. (Tr. 83). Doolittle 

was kneeling on the truck's framework just behind the cab. Lapin testified that Doolittle was in a 

position on the frame that, if the box were to fall, it would fa11 directly on him. Lapin assumed 

that the hydraulic system had a leak because new oil does not normally have to be added to a 

closed system. (Tr. 84, 105). Lapin also noticed that the wheels of the truck were not chocked. 

31 FMSHRC 461 
Lapin issued two citations to Nelson Quarries as a direct result of the practice he 

observed. Citation No. 6421143 alleges that the box was not blocked against motion and the 

wheels were not chocked to prevent it from rolling. Inspector Lapin testified that he was 

concerned for Doolittle's life because he was working directly under the box of the truck. He 

was concerned about Schmidt because he was working under the truck just inches from the right 

drive wheel. The truck was manufactured with a hole on each side of the frame supporting the 

box and on each side of a frame on the truck body. When the box is in a raised position, the 

holes line up so that a "safety bar" or "retaining pins" can be inserted. (Tr. 92-93, 108; Exs. G7, G-11 ). Inspector Lapin testified that if a safety bar had been inserted in these holes, the box 

would have been adequately "blocked or mechanically secured to prevent accidental lowering" in 

conformance with the safety standard. (Tr. 105-06). Although there apparently were safety bars 

at the plant, Jeff Benedict could not locate one on September 5. (Tr. 93-94) . .The shop manual 

for the dump truck specifically states: "Do no allow anyone beneath the [dump box] unless 

'body-up' retaining cables or pins are installed." (Ex. G-7 p: 3 ). The operator's manual for the 

truck provides instructions on the storage and use of."body-up pins" and states: "Do not work 

under raised body unless body safety cables, props, or pins are in place to hold the body in the up 

position." (G-8, G-9). 

Inspector Lapin testified that Doolittle could have been fatally injured. He based this 

conclusion on a number of factors including MSHA Fatalgrams he has reviewed. (Tr. 100-; Ex. 

G-12). He admitted, however, that he knows of no fatal accidents caused by a falling box on a 

Dresser haul truck. (Tr. 139). The inspector believed that the bed of the truck could have fallen 

because hydraulic systems can fail. (Tr. 144). In addition, a gust of wind could have come up 

and moved the truck because the raised box would act as a sail and the wheels were not chocked. 

Although the parking brake was apparently set, the wheels were not against a berm. 

As discussed in more detail below, Inspector Lapin has extensive experience with mobile 

equipment. He testified that the box on a dump truck can unexpectedly come down. (Tr. 103). 

The truck was not locked and the controls for the box were near the door. Someone could enter 

the cab of the truck and accidently knock the controls for the box. The inspector determined that 

it was highly likely that Doolittle would be injured given his position on the frame of the truck 

under the raised box. (Tr. 115-120). Supervisory Inspector Steichen agreed with Inspector 

Lapin's characterization of the violation. (Tr. 150). 

Paul Nelson testified about the design of the Dresser haul truck. He said that it uses an 

electro-hydraulic system that operates a pilot system to control the hydraulics on the truck. (Tr. 

215-17). An electric solenoid is used to engage a small hydraulic system, called the pilot system, 

that actually operates the main hydraulic system. The advantage is that it is easier to operate and 

it eliminates much of the "mechanical linkage that can wear out and cause problems." (Tr. 216). 

This system provides a greater measure of safety because; if you lose pilot pressure, the oil· is 

trapped in the hydraulic cylinders which holds the bed up. (Tr. 217; Ex. R-334-D8). The only 

way for the bed to come down is if you have a fault in the system such as a blown 0-ring or 

hydraulic line. Nelson testified that it is very unlikely for the bed to come down from a raised 

31 FMSHRC 462 
position on this particular model of Dresser truck. (Tr. 218). He said that the safety pins should 

be installed, but the system used on this type of Dresser truck is very reliable and an accident was 

unlikely. Nelson also testified that the bed of the truck is designed so that, as the bed is raised, 

its center of gravity is almost vertical with the hinge for the bed with the result that very little 

force is needed to hold the bed up. It is close to being balanced. (Tr. 220). This fact makes it 

even more unlikely that the bed will come down unexpectedly. Nelson also testified that it is his 

understanding that the hydraulic tank is on the side of the truck frame and that the tank for the 

transmission fluid was between the frame members. Thus, Doolittle may have been adding 

transmission fluid. 

I find that the Secretary established an S&S violation of the safety standard. Inspector 

Lapin is a journeyman heavy equipment mechanic. (Tr. 103). He worked for 29 years for a sand 

and gravel company in Oregon. During much of that time he worked in the shop, first as a 

trainee, then as a lead man, and finally as a foreman. (Tr. 76'-78). Lapin performed maintenance · 

on a wide variety of mining equipment including front-end loaders, bulldozers, dump trucks, and 

a dragline. He was subsequently a production foreman at the quarry. I find that Inspector Lapin 

was a very credible witnes!i on matters relating to heavy equipment and I give his testimony great 

weight. There is no doubt that the Dresser Haulpak truck used by Nelson Quarries is well 

designed, as testified to by Mr. Nelson. That design, however, does not eliminate the hazard of 

working under the raised bed of the truck. As the Commission has stated, the Secretary is not 

required to prove that it is more probable than not that the cited condition will result in an 

accident. Her burden is to establish that it is reasonably likely that the hazard contributed to by 

the violation will result in an injury of a reasonably serious nature. Based on the evidence 

presented by the Secretary, it is clear that the violation contributed to a serious risk that the bed 

of the truck would fall and kill Mr. Doolittle. Hydraulic and other systems on mining equipment 

can fail in unexpected ways and the cited safety standard was written to protect miners in such 

instances. 

I also find that the negligence of the operator was moderate. It is clear that it is company 

policy that miners block the raised bed of dump trucks before performing maintenance on them. 

In addition, Doolittle's negligence cannot be directly imputed to the company. Nevertheless, a 

safety bar could not be located in the vicinity of the ready line, even after Benedict looked. That 

indicates that, although Nelson Quarries understands the importance of blocking raised 

equipment, it does not always give its employees the tools to protect themselves. A penalty of 

$3,700.00 is appropriate. 

2. On September 5, 2007, Inspector Lapin issued Citation No. 6421144 alleging a 

violation of section 56.18006. (Ex. G-13). The citation alleges that the company failed to 

indoctrinate a newly hired employee (Mr. Doolittle) in safety rules and safe work procedures. 

Based on discussions with Doolittle, the inspector determined that Doolittle was unaware of the 

requirement to block the box after it was raised. Inspector Lapin determined that an injury was 

highly likely and that any injury could reasonably be expected to be fatal. He determined that the 

violation was S&S and that the negligence was moderate. The safety standard provides that 

31 FMSHRC 463 
"[n]ew employees shall be indoctrinated in safety rules and safe work procedures." The 

Secretary proposes a penalty of $3,200.00 for this citation. 

Inspector Lapin testified that when he asked Billy Doolittle about the use of a safety bar, 

Doolittle acted as if he did not know what a safety bar was. (Tr. 94-96). When the inspector 

showed Doolittle where the safety bar would be inserted, he still did not act as if he knew what 

the inspector was talking about. The inspector testified that he did not use the term "body-up 

pin" with Doolittle, but that when he showed Doolittle the holes for the safety bar or pins, 

Doolittle did not then say anything to indicate that he knew what the holes were for. (Tr. 108-09, 

142). Doolittle had worked at the plant for a little less than two weeks. (Tr. 128). He told the 

inspector that he had received a few hours of training at one of the company's other plants. 

Based on his interview with Doolittle, Lapin testified that he did not believe that Doolittle had 

been adequately trained on the task of blocking the box and truck against motion. (Tr. 96, 124-

25). If Doolittle had been indoctrinated in safety rules and safe work practices, he would have 

known that he should not work under the raised bed of the truck without first blocking it against 

motion. (Tr. 126). 

Inspector Lapin also testified that he looked.at the company's training records. In 

addition to other records, he saw training records for Doolittle and Schmidt. (Tr. 129). Although 

Doolittle may have received new miner training, Lapin believed that such training was 

inadequate since he did not know how to block the bed of the truck against motion. Id. The 

inspector determined that a serious accident was highly likely because inadequate training can 

result in serious accidents. (Tr. 130, 132-33). Steichen testified that he agrees with this 

assessment. (Tr.· 152). Steichen testified that when he asked Doolittle if he knew how to block 

the box; he replied ·~no." (Tr. 151; Ex. G-15). 

Patrick Clift testified that he provided Doolittle and Schmidt with the MSHA required 

training. (Tr. 155-56). In particular, Clift showed them the safety features on a Dresser dump 

truck, including the safety pins, and instructed them on maintenance procedures. Clift testified 

that he made sure that they understood what he was telling them by asking them questions. (Tr. 

157). Clift said that he stressed the use of safety pins with these two miners during his training. 

Id. He testified that he showed Doolittle where the pins were to be inserted to support the bed 

and explained that they must be used when the bed is in the air. (Tr. 167-68). Clift signed new 

miner and task training records for these two miners. (Tr. 158; Ex. R-334-D4, D5, D6 & D7). 

Clift stated that he has been training miners for about four years. None of the training that Clift 

performed occurred at Plant 2. Nelson Quarries uses similar Dresser and Caterpillar trucks at its 

plants. Clift. testified that Doolittle and Schmidt would have been given additional training when 

they started working at Plant 2. 

Nathan Schmidt is a truck driver at Plant 2. He testified that he was given training by 

Patrick Clift along with Mr. Doolittle. He testified that Clift showed them the safety pins and 

told them that they must be used when the bed is raised,· (Tr. 175). Schmidt said that he did not 

know that Doolittle had not pinned the truck bed on September 5. (Tr. 177). Schmidt also 

31 FMSHRC 464 
testified that he knew that the truck bed should be blocked against motion before. anyone works 

under it. (Tr. 180). He also testified that Darick Johnson, a loader operator who has worked for 

Nelson Quarries since 2000, was in the same area putting hydraulic fluid into his loader. (Tr. 

182). Mr. Johnson testified that he was in the oil trailer when the MSHA inspectors arrived. 

(Tr. 188). Johnson also testified that on another occasion, prior to this inspection, he helped 

Doolittle install safety pins for the bed of his truck. (Tr. 193, 207). He did not know why safety 

pins could not be located when the MSHA inspectors were present. (Tr. 207). 1 

There have been very few decisions interpreting the cited safety standard. In Weathers 

Crushing, Inc., 22 FMSHRC 1032 (Aug. 2000) (ALJ), a miner who was hired to operate a rock 

crusher was killed a little more than two hours after he had begun working at the plant. The mine 

operator only provided on-the-job training for about thirty minutes before he was told to operate 

the crusher. He was apparently instructed to use a sledge hammer to break up any rock that 

obstructed the crusher. MSHA determined that the head of the sledge hit the miner in the face as 

he was attempting to dislodge a rock. The administrative law judge held that the mine operator . 

violated the safety standard because it merely "familiarized [the miner] with unsafe work 

procedures, after which he_ was essentially cast adrift." 22 FMSHRC at 1039. 

fu the present case, Inspector Lapin issued the citation because it did not appear to him 

that Doolittle knew that he should block the bed of the truck against motion and chock the tires 

before beginning work. The inspector was especially concerned because, when he showed 

Doolittle the holes at the back of the truck where a safety bar or pin could be inserted, Doolittle 

did not seem to know what he was talking about. This conduct indicated to the inspector that he 

had not been indoctrinated in safety rules and safe work procedures. 

Patrick Clift testified that Doolittle took the required new miner training and that he was 

. also given task training on trucks. The records corroborate this testimony. (Ex. R-334-DS & 

D7). This training was completed on August 27, 2007. Doolittle was task-trained on 35 ton 

Caterpillar trucks, 35 ton Dresser trucks, and 50 ton Dresser trucks. The Secretary did not 

establish that the company's training program violated the provisions of 30 C.F. R. Part 46. Clift 

testified that he instructed Doolittle on the use of safety pins when performing maintenance on 

dump trucks. (Tr. 157). At the hearing, the Secretary questioned the adequacy.of the training 

because it was performed at a different plant. Although I would tend to agree that some training 

would by necessity need to be at the plant where a new miner would be working, it escapes me 

how training on the safety features and procedures of a truck would be different at another plant. 

The Dresser trucks were the same in all relevant respects. 

Does the Secretary establish a violation of this safety standard by introducing evidence to 

show that a new miner did not appear to know how to safely perform the task he was assigned? 

Inspector Lapin testified that Doolittle did not seem to know that the bed should have been 

1 Mr. Doolittle no longer works for Nelson Quarries and he did not testify at the hearing. 

Doolittle was replaced by someone else because he was incarcerated. (Tr. 162). 

31 FMSHRC 465 
blocked against motion. Does this fact establish that Doolittle was not properly instructed on 

safety rules and safe work procedures? Inspector Steichin testified that Doolittle told him that he 

did not know how to block the box. (Tr. 151 ). In the other cases involving this standard, it was 

quite clear that the new miner in question had not been trained.2 In this case, on the other hand, 

there is evidence that Doolittle had been trained on the use of safety pins or bars, but that he 

failed to follow correct safety procedures. Many violations under the Mine Act are a direct result 

of a miner failing to follow safe procedures when performing a task. Clearly, a citation alleging a 

violation of training niles would not be appropriate whenever a newly hired miner fails to follow 

an MSHA standard or a company safety rule. 

Although this citation presents a veryclose issue, I find that the Secretary did not 

establish a violation. I credit the testimony of Patrick Clift. I find that the testimony of Mr. Clift 

rebuts the Secretary's prima facie case. His testimony is corroborated by the training records and 

the testimony of Schmidt. Doolittle had been properly trained but he was not an attentive or 

safety-conscious employee because he failed to follow the company's safety procedures when 

performing maintenance on the Dresser truck. The evidence shows that he had been 

indoctrinated in these safety procedures but he chose to ignore them; This citation is vacated. 

D. CENT 2008-574-M; Plant 2 

On February 2, 2008, MSHA Inspector James Timmons issued Citation No. 6421756 

alleging a violation of section 56.9300( a). (Ex. G-18). The citation alleges that there were no 

berms present on the east or west side of the ramp entering the pit. It states that there was a dropoff of about 5 feet down on each side of the roadway and there was evidence that the road had 

been used in the cited condition. Inspector Timmons determined that an injury was reasonably 

likely and that any injury could reasonably be expected to be fatal. He determined that the 

violation was S&S and that the negligence was moderate. The safety standard provides that 

"[b ]erms or guardrails shall be provided and maintained on the banks of roadways where a dropoff exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in 

equipment." The Secretary proposes a penalty of$263.00 for this citation. 

fuspector Timmons testified that he observed that there were no berms on the east and 

west side of the ramp entering the pit. (Tr. 291). He stated that there was a five-foot drop-off 

from the edge of the roadway to a pond below. Using a stick he measured the water to be about 

three feet deep at that point. (Tr. 292). He believed that the drop-off was sufficient to overturn a 

vehicle. He determined that the violation was S&S because it was the primary roadway between 

the pit and the plant. Large trucks and other vehicles use this roadway on a regular basis. (Tr. 

2 fu Knack's Building Supplies, 20 FMSHRC 535, 543 (May 1998) (AU), a truck driver 

and his foreman, who were both new employees, were not aware of the applicable MSHA 

standards and it was clear that no training on safety rules and safe work procedures had been 

given. fu Root Neal & Company , 22 FMSHRC 94, 105 (Jan. 2000) (ALJ), it was clear that the 

miner was asked to perform an installation and repair task that he had not been trained to do. 

31 FMSHRC 466 
300). The road was about 20 feet wide at the cited location. There were tire tracks near the edge 

of the roadway. (Ex. G-19). The inspector testified that if a large piece of equipment were to go 

off the side of the road into the water, it is reasonably likely that the results would be fatal. (Tr. 

294, 296; Ex. G-19). The unbermed area along the roadway was about 25 to 30 feet long. (Tr. 

299). 

Inspector Timmons marked the negligence as moderate rather than high because Benedict 

told him that a new drainage culvert had been installed under the road in that area the day before 

and the berm had not yet been replaced. (Tr. 295, 302). The inspector testified that berms 

should have been constructed as soon a feasible during the road reconstruction. (Tr. 319). 

Patrick Clift testified that the tire tracks that the inspector observed were likely from a 

loader that was used to spread out additional base rock along the road. (Tr; 329). New rock base 

would have been applied after the culvert was cleaned out. Clift also testified that the drop-off 

was not as great as the inspector believed it to be. (Tr. 332-34). He,also said that, because the 

roadway was level in the cited area, it had not been bermed in the past. (Tr. 335). Berms had 

been constructed on the ramp itself, but once the road flattened out near the culvert, berms had 

never been present. (Tr. 341 ). 

I find that the Secretary establiShed an S&S violation of the safety standard. Although it 

is not entirely clear how far down the ramp the berm had previously been constructed, I find that 

berms were required at the cited area. The drop-off was significant and it was right at the bottom 

of the ramp where the road begins to curve~ (Ex. R-574-Dl). The Secretary established that the 

grade and depth of the drop,.;off was sufficient to cause a vehicle to overturn or endanger persons·· 

in mobile equipment. The equipment operator could be seriously injured or killed. Assuming 

continued mining operations, it was reasonably likely that the ha.Zard contributed to would result 

in an injury of a reasonably serious nature. I credit the Secretary's evidence on this citation. A 

penalty of$263.00 is appropriate. 

E. CENT 2008-285-M; Plant 4 

On November 15, 2007, Inspector Timmons issued Citation No. 6421702 alleging a 

violation of section 56.14131(a). (Tr. 53; Ex. G-4). The citation alleges that the operator of the 

773 Caterpillar haul truck was observed operating the truck at the dump ranip without wearing 

his seat belt. The operator told the inspector that he had been trained to wear the seat belt, but 

that he forgot to put it on. Inspector Timmons determined that an injury was reasonably likely 

and that any injury could reasonably be expected to be fatal. He determined that the violation 

was S&S and that the negligence was moderate. The safety standard provides that "[ s ]eat belts 

shall be provided and worn in haulage trucks." The Secretary proposes a penalty of$308.00 for 

this citation. 

Inspector James Timmons testified that Earl Priest, the operator of the Caterpillar 773 

haul truck, was not wearing his seat belt. (Tr. 53). Timmons testified that he stopped Priest as 

31 FMSHRC 467 
he was coming down the ramp from the crusher because he wanted to ask him where the foreman 

was. Priest was not wearing a seat belt. Priest told him that he got out of the truck for a moment 

while he was at the crusher and he forgot to put it back on when he returned to the truck. (Tr. 62, 

66). Inspector Timmons determined that the violation was S&S because there was other mobile 

equipment in the area, the driver was coming down a ramp from the crusher, and he was heading 

toward the pit to pick up more rock. (Tr. 55). The inspector testified that, without a seat belt, 

Priest could have been seriously injured or killed in the event of an accident. The inspector 

determined that the operator's negligence was moderate because the company has a seat belt 

policy. As.far as he knows, the two seat belt citations at issue in these cases are the only seat belt 

citations ever issued to Nelson Quarries. 

Priest testified that he normally wears his seat belt because the floor of the pit is very 

rough and he would get "knocked around pretty good" if he were not wearing his seat belt. (Tr. 

65). He stated that he was hauling rock from the pit to the crusher on November 15. Priest. 

acknowledged that Nelson Quarries has a policy requiring that seat belts be worn at all times. 

(Tr. 69; Ex. R.;.285-2). He was not disciplined for failing to wear a seat belt. 

I find that the Secretary established an S&S violation of the safety standard. There is no 

dispute that Priest was not wearing his seat belt when he drove down the ramp from the crusher. 

The Secretary established that it was reasonably likely that the hazard contributed to by the 

violation would result in an injury of a reasonably serious nature. Priest dumped the rock at the 

crusher and proceeded down ramp on ·the way to the pit. Had he not been stopped by the MSHA 

inspector; he would have driven into the pit. Priest acknowledged that the floor of the pit was 

rough and that a seat belt was necessary to preventinjury. I find that the company's negligence 

was slightly less than moderate because the company had a seat belt policy. Priest's negligence 

should not be imputed to the company because he was an hourly worker. A penalty of$275.00 is 

appropriate. 

F. CENT 2008-487-M; Plant 4 

At the beginning of the hearing, Nelson Quarries agreed to withdraw its contest of the 

citations at issue in this docket. (Tr, 10-11 ). The settlement is approved. 

G. CENT 2008-564-M; Plant 4 

On November 19, 2007, Inspector Timmons issued Citation No. 6421704 alleging a 

violation of section 62.120. (Ex. G-16). The citation alleges that the results of a full shift sample 

taken on that date showed that the driver of the Caterpillar haul truck received an action level 

noise dose of 88 percent. The citation noted that the noise level exceeded the action level dose of 

50 percent of the personal exposure level (PEL). The miner was not enrolled in a hearing 

conservation program. Inspector Timmons determined that an injury was unlikely but that any 

injury would likely to be permanently disabling. He determined that the violation was not S&S 

and that the negligence was moderate. The health standard provides that "[i]f during any work 

31 FMSHRC 468 
shift a miner's noise exposure equals or exceeds the action level the mine operator must enroll 

the miner in a hearing conservation program that complies with§ 62.150 of this part." The 

Secretary proposes a penalty of $100.00 for this citation. 

Inspector Timmons issued the citation after conducting a noise survey at the quarry. He 

issued the citation because he believed that the noise level exceeded the action level for the 

driver of the Caterpillar halt truck, Rick White. (Tr. 234). If a miner exceeds the action level, 

the mine operator must enroll him in a hearing conservation program that complies with section 

62.150. The exposure level met the action level threshold because it was above 80 dBA but was 

below the PEL of 90 dBA. (Tr. 235). The dosimeter indicated that the driver had been exposed 

to a time-weighted average sound level of 88.5 dBA. The term "action level" is defined as "[a)n 

8-hour time-weighted average sound level (TWA) of 85 dBA, or equivalently a dose of 50%, 

integrating all sound levels from 80 dBA to at least 130 dBA." (Section 62.101). The operator 

of the truck was hauling rock and the window on the driver's side was open. {Tr. 255). Other 

trucks were being operated on the same day, but only Rick White was found to be above the 

action level for noise: (Tr. 261, 263, Ex. R-564-Dl). 

At the hearing, Inspector Timmons described how he took the measurement using a 

dosimeter. (Tr. 238-46). He followed standard MSHA procedures, except he placed the noise 

microphone in a different location than is prescribed in MSHA's "Metal and Nonmetal Health 

Inspections Procedures Handbook." (Ex. G-17). The Handbook instructs inspectors to attach the 

mike to clothing on the miner's shoulder that would normally be between the principal noise 

source and the miner's ear. Id. at 2-3. The Handbook states that, based on the recommendations 

of the manufacturer, the mike should be "located at the top of the shoulder midway between the 

neck and end of the shoulder, with the microphone diaphragm pointing in a vertical upward 

direction." Id. at 2. Inspector Timmons attached the mike to the miner's collar in a position that 

was almost vertical. (Tr. 241 ). Inspector Timmons testified that Richard McCutcheon, industrial 

hygienist for the Rocky Mountain District, advised him that it would be appropriate to attach the 

mike to the collar. (Tr. 241-42, 252). When the microphone is attached to clothing on the 

miner's shoulder when he is operating mobile equipment, it could come off or the wind screen on 

the mike could fall off when the miner puts on his seat belt. (Tr. 243). McCutcheon told him 

that there would be a minimal difference in the dBA reading if the microphone were placed on 

the miner's collar. 

Patrick Clift testified that, after a dosimeter was placed on Rick White and he had been 

driving around for a while, Inspector Timmons asked him to stop so that the dosimeter could be 

checked. Clift was with the inspector at that time. Clift testified that he became very concerned 

when he saw where the mike was placed. He said that Mr. White is a boisterous, talkative man 

with a full beard. (Tr. 269-70, 280). Clift said that the microphone was rubbing against his 

beard. Clift testified that when the inspector said that it looked like the driver might be reaching 

the action level, Clift raised these concerns with the inspector. (Tr. 270). Clift asked Rick White 

to talk. According to Clift, the dosimeter shot up from 75 into the 115 to 120 range because the 

mike was right on his neck. It went back down when he stopped talking. Clift told the inspector 

31 FMSHRC 469 
that the placement of the mike against his neck and beard was throwing off the results. (Tr. 271-

72, 281-82). Clift also testified that the Caterpillar truck that Rick White was driving was a 

relatively new truck. (Tr. 270). Another similar Caterpillar truckwas operating that day doing 

work that was noisier, but the dosimeter on the driver of that tmck did not register noise that was 

close to the action level. (Tr. 272-74 ). The other truck drivers at the plant did not have beards. 

(Tr. 277). 

I find that this citation should be vacated. I credit the testimony of Mr. Clift that the 

microphone for the dosimeter was rubbing against Rick White's beard and neck. Inspector 

Timmons placed the microphone so close to his neck that his beard was rubbing against it. The 

placement of the microphone on Mr. White immediately adjacent to his neck raises serious 

questions as to the validity of the sample. The Handbook specifically requires that the 

microphone be placed midway between the neck and the end of the shoulder. The Handbook 

also states that if "unusual conditions arise during the sampling period then the sample may have 

to be voided." (Ex. G-17 p. 3). Although Inspector Timmons' practice of placing dosimeter 

microphones on the collar of miners he is testing for noise exposure may be acceptable in other 

situations, I fmd that it was not appropriate when he tested Mr. White. The citation is vacated. 

Nelson Quarries is, of comse, required to comply with the provisions of section 62.110. 

II. APPROPRIATE CML PENALTIES 

Section 1 IO(i) of the Mine Act sets out six criteria to be considered in determining 

appropriate civil penalties. Seven citations were issued at Plant 1 on July 24, 2007, in addition 

to the citation at issue in this case. (Ex. G-26). At Plant 2, 17 citations were issued on 

September 5, 2007, in addition to the citations at issue in this case and 7 citations were issued in 

2005. Id.· Plant 4 had a history of about 22 paid violations in the two years prior to November 

19, 2007. Id. Nelson Quarries is a rather small operator and its quarries are small. All of the 

violations were abated in good faith. Nelson Quarries did not establish that the penalties 

assessed will have an adverse effect on its ability to continue in business. My gravity and 

negligence findings are set forth above. If I did not discuss gravity or negligence with respect to 

a citation, then the inspector's determinations are affirmed. Based on the penalty criteria, I find . 

that the penalties set forth below are appropriate. 

III. ORDER 

Based on the criteria in section 1 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 

CENT 2008-285-M, Plant 4 

6421702 56.14131(a) $275.00 

31 FMSHRC 4 70 
Citation No. 

CENT 2008-287-M, Plant 1 

6421431 

CENT 2008-334-M, Plant 2 

6421143 

6421144 

CENT 2008-487-M, Plant 4 

6421645 

6421646 

CENT 2008-564-M, Plant 4 

6421704 

CENT 2008-'574-M, Plant 2 

6421756 

CENT 2009-061-M, Plant 1 

6321528 

6321529 

30 C.F.R. § 

56.1413l(a) 

56.1421 l(b) 

56.18006 

50.30(a) 

50.30(a) 

62.120 

56.9300(a) 

56.12032 

56.20003(a) 

TOTAL PENALTY 

Penalty 

$100.00 

3,700.00 

Vacated 

100.00 

100.00 

Vacated 

263.00 

308.00 

460.00 

$5,306.00 

Accordingly, the citations contested in these cases are AFFIRMED, MODIFIED, or 

VACATED as set forth above and Nelson Quarries, fuc., is ORDERED TO PAY the Secretary 

of Labor the sum of$5,306.00 within 40 days of the date of this decision. Upon payment of the 

penalty, these proceedings are DISMISSED. Payment shall be sent to: U.S. Department of 

Labor, Mine Safety and Health Administration, P .0. Box 790390, St. Louis, MO 63179-0390. 

Richard W. Manning 

Administrative Law Judge 

31FMSHRC471 
Distribution: 

Jennifer Casey, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 

1600, Denver, CO 80202 (Certified Mail) 

Ronald S. Goldade, Conference & Litigation Representative, Mine Safety and Health 

Administration, P.O. Box 25367, Denver, CO 80225-0367 (First Class Mail) 

Hillary A. Smith, Conference & Litigation Representative, Mine Safety and Health 

Administration, P.O. Box 25367, Denver, CO 80225-0367 (First Class Mail) 

Paul M. Nelson, P.O. Box 334, Jasper, MO 64755 (Certified Mail) 

RWM 

31FMSHRC472 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 

TELEPHONE: 202-434-9964 /FAX: 202-434"9949 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

EXCEL MINING, LLC, 

Respondent 

April 2, 2009 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 2008-122 

A.C. No.15,.18839-128465 

Van Lear Mine 

DECISION 

Appearances: Thomas Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for the Petitioner; 

Noelle Holladay True, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 

Lexington, Kentucky, for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

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

Labor, pursuant to Section 105( d) of the Federal Mine Safety and Health Act of 1977 ("The 

Act''), alleging that Excel Mining, LLC ("Excel"), violated 30 C.F.R. § 75.517, and seeking the 

imposition of a civil penalty for this violation. 

On August 2, 2007, Mine Safety and Health Administration(MSHA), inspector David 

Stepp, inspected Excel' s Van Lear Mine, an underground coal mine. In the course of his 

examination of a trailing cable of a roof bolter, he observed a damaged portion of the outer 

insulation that was approximatelythree inches long, and a half to one inch wide. Three inner 

insulated wires carrying 575 volts could be seen, but there was not any visible damage. Stepp 

issued a citation alleging a violation of Section 75.5.17, supra, which, as pertinent, provides as 

follows: "power wires and cables ... shall be insulated adequately and fully protected." 

A hearing was held in the this matter on November 13, 2008. On February 23, 2009, the 

Secretary filed Proposed Findings of Fact. Brief and Argument, and Excel filed a Post Hearing 

Brief. On March 3, 2009 Excel filed a Reply Brief. 

Findina:s of Fact and Discussion 

At the hearing, the parties filed a set of ten stipulations. Respondent, inter alia, 

stipulated to a violation of Section 517, supra. Thus, considering this stipulation and the record 

in this case, I find that Excel did violate Section 517, supra. 

31 FMSHRC 473 
The citation at bar was issued as being significant and substantial. In general, 

Commission law regarding significant and substantial is well established and is as follows: 

A "significant and substantial" violation is described in 

section 104(d)(l) of the Mine Act as a violation "of such nature as could 

significantly and substantially contribute to the cause and effect of a coal 

or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation 

is properly designated significant and substantial "if based upon the 

particular facts surrounding the violation there exists a reasonable 

likelihood that the hazard contributed to will result in an iajury or illness 

of a reasonably serious nature." Cement Division, National Gypsum Co., 

3 FMSHRC 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4(January1984); the 

Commission explained its interpretation of the term ''significant and 

substantial" as follows: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under National 

Gypsum the Secretary of Labor must prove: (I) the 

underlying violation of a mandatory safety standard; (2) a 

discrete safety hazard--that is, a measure of danger to 

safety--contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an 

injury; and (4) a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129 (August 1985), the Commission stated further as follows: 

We have explained further that the third element of the 

Mathies formula "requires that the Secretary establish a 

reasonable likelihood that the hazard contributed to will 

result in an event in which there is an injury." U S. Steel 

Mining Co., 6 FMSHRC 1834, 1836 (August 1984). We 

have emphasized that, in accordance with the language of 

section 104( d)( 1 ), it is the contribution of a violation· to the 

cause and effect of a hazard that must be significant and 

substantial. U S. Steel Mining Company, Inc., 

6 FMSHRC 1866, 1868 (August 1984); U. S Steel Mining 

Company, Inc., 6 FMSHRC 1573, 1574-75(July1984). 

31FMSHRC474 
The record clearly establishes, as set forth above, that the violative condition of the 

damaged outer insulation of the cable exposed three inner insulated wires carrying 575 volts, 

which contributed to the hazard of electrical shock or injury. Accordingly, I find that the first 

and second factors set forth in Mathies, supra. have been met. The critical issue for resolution is 

whether the third element of Mathies, supra. has been established i.e., the reasonable likelihood 

of an injury producing event. 

Excel argues, inter alia, that, as conceded by Stepp, a person would not receive any 

electrical shock when all the.inner conductors are still insulated. In this connection, Excel cites 

Stepp's testimony that he did not observe any damage to the inner conductors. Excel also cites 

the testimony of Michael Hurley, Excel's shift foreman, that with continued normal mining 

operations in the entry at issue, the damaged portion of the cable would not have been handled. 

In U.S. Steel, 6 FMSHRC 1573{July 1984), the operator challenged the decision of the 

judge that a gash in the outer insulating jacket of a trailing cable in addition to being a violation 

of Section 517, supra, was also significant and substantial. The Commission, in affirming the 

decision of the judge with-regard to significant and substantial held as follows: 

The administrative law judge considered those mining conditions to which 

the damaged cable predictably would be exposed. He found that both the 

outer and inner layers of insulation provided important protection against 

electrical shock. These findings are fully supported by the testimony of 

the MSHA inspector and the operator's witness, each of whom stated that 

the mining environment is harsh and that damage to the outer layer of 

insulation weakened the protection afforded by the inner layer. 

U.S. Steel, supra, at 1575. 

In Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1284-1286(December10, 1998), 

an issue presented to the Commission was whetheraviolation of 30 C.F.R. § 75.604(b)1 i.e., that 

splices on a cable were not "effectively insulated" to exclude moisture, was significant and 

substantial. The operator therein argued that the third element of Mathies, supra, was not 

established by the Secretary, since there were not any exposed leads, and that the Secretary 

failed to ptove "that anyone was or would be exposed to electrical current by handling the cable." 

20 FMSHRC, supra, at 1285. It is significant that in rejecting this argument, the Commission 

relied on U.S. Steel, supra, and analyzed the holding in U.S. Steel, supra, as follows:" ... In U.S. 

Steel Mining Co., [citations omitted] we held that four inches of exposed wire constituted an 

S&S violation, despite lack of direct evidence that exposed wires were not insulated." 20 

FMSHRC, supra, at 1286. The Commission also cited U.S. Steel supra. as "recognizing that a 

tear in the outer jacket of a cable significantly compromises the cable's protective function." (Id.) 

(emphasis added) 

1

Section 75.604(b) requires that permanent splices in trailing the cables must be 

"[E]ffectively insulated and sealed so as to exclude moisture;". 

31 FMSHRC 475 
The Commission, in applying U.S. Steel. supra, to the evidence of record, cited the 

testimony of the inspector who "emphasized the danger of these situations [his inability to see 

bare conductors inside the open splice of the cable], stating that 'there's no way of knowing 

[whether there are holes in the insulation surrounding the wire within the cable]. '"(Id). The 

Commission also noted the inspector's testimony that "even if no copper wires are exposed, there 

is a danger of electrocution, because '[m]uch like an extension cord with a naked place you may 

not be able to see the naked place, but you grab a hold of it and you'll know it."'(Id.). 

The Commission concluded that the record supported the judge's finding that the 

violation was S&S, as· it was reasonably likely to contribute to a serious electrical injury. 2 · 

In Harlan, supra, the Commission was also· presented with the specific issue of whether 

the third Mathies, element was established regarding a violation of Section 517, supra. i.e., a 

visible rupture in the outer jacket of the training cable of a bolter which exposed the inner 

insulated conductors. The Commission held that the operator's argument thatreasonable 

likelihood of injury cannot be established if there is not direct evidence of damaged interior 

conductors or proof of the existence of exposed uninsulated wire" ... is inconsistent with 

Commission precedent." Harlan, supra, at 1287. (Emphasis added) In this connection, the 

Commission noted that in U.S. Steel, supra, where the parties agreed that the outer jacket had 

ruptured, but that there was not any evidence that the inner insulation was compromised, "we 

held that the gash in the outer jacket of the trailing cable constituted an S&S violation of section 

517, in part because in the 'harsh environment of a coal mine' a tear in the outer jacket weakens 

the protection afforded by the inner insulation, 'contribut[ing] significantly and substantially[] to 

the cause and effect of a safety hazard' Id. at 1574-75." (Id) 

In Harlan, supra, the Commission noted that the condition of the cable at issue i.e., the 

outer jacket was torn but there was not any direct evidence that the inner insulation was 

damaged, was similar to the condition of the cable at issue in U.S. Steel, supra. The Commission 

found U.S. Steel, supra, persuasive in the matter before it, and affirmed the judge's determination 

ofS&S. 

In the case at bar, as in Harlan, supra, there is not any dispute that the outer jacket of the 

cable, which constituted a layer of insulation between the miners and a potentially fatal 550 volt 

2

Excel argues that the case at bar is to be distinguished from Harlan, supra, ina.Smuch as 

there was not any evidence presented herein that the cable at issue was lying in water. This 

difference by itself, is not sufficient to distinguish facts in the instant proceeding from Harlan, 

supra. In Harlan, supra, the Commission initially cited other facts of record supporting the 

Judge's decision of significant and substantial which appear to be the main bases for the 

Commission's holding, and are equally applicable to the case at bar (The inspector's testimony 

that although he could not see into the open splice there was no way of knowing whether there 

were any holes in the insulation surrounding the wire within the cable. Also, the inspector's 

testimony that even if no inner wires are exposed there is a danger of electrocution). 

31FMSHRC476 
current, was tom. 3 I find that the physical condition of the cited cable was similar to that of the 

cables atissue in Harlan, supra, and US. Steel, supra, whichwere found to be S&S, in light of, 

inter alia, the harsh environment of a coal mine. Since l am bound to follow established 

Commission case law, I find, based on US. Steel, supra, and Harlan Cumberland, supra, that the 

violation herein was significant and substantial.4 

Penalty 

The record does not contain any evidence that Excel's history of violations is such as to 

have either a positive or negative effect on the level of penalty to be imposed. The parties 

stipulated that the penalty proposed by the Secretary is appropriate to the size of Excel' s 

business, and will not affect its ability to continue in business. 

The Secretary argues that the level ofExcel's negligence was moderate given the fact that 

the damage to the cable was obvious and that the history of violations of Sections 75.517,supra, 

and 75.604, supra, was "very'' significant.5 Excel did not impeach or contradict Stepp's 

testimony that the damage was obvious. However, it is significant that Stepp indicated that he 

noted the dainage as he was running his hand over the cable. There is not any evidence as to 

when the cable had last been touched by Excel's employees or agents. Nor is there any evidence 

3

In addition, as set forth in the citation at issue, which was admitted in evidence, the 

bottom of the section was damp. Excel did not rebut or contradict this statement. In this 

connection, I note the following testimony by Stepp regarding the significance of this condition 

as follows: "it would be more easily to conduct electricity through the body into the ground." 

(Tr. 42). 

I also note the inspector's testimony that the cable would be handled by the scoop 

operator in order for the scoop to travel under it. In addition, according to Stepp, one the bolters 

would have to handle the cable at issue to move it to one side to allow the roof bolting machine 

to be moved. Thus, in normal operations miners would be in physical contact with the cable. 

4

Excel, in arguing that it has not been established that the violation was significant and 

substantial, relies on Lone Mountain Processing, Inc., 29 FMSHRC 557 (June 2007) and Oak 

Grove Resources, LLC, 29 FMSHRC 1089 (November 2007). I note, that Lone Mountain, 

supra, a decision I issued, held that a violation under 30 C.F.R. § 75.604(b) was not significant 

and substantial, and Oak Grove Resources, supra, a decision by a fellow commission judge, also 

found a violation therein ofSection 75.360(b), to be non:.significant and substantial. However, 

both these cases are distinguishable from the instant case on their facts. Further, to the extent 

that they reach a different conclusion from the case at bar. I choose not to follow them for the 

reasons set forth above. 

5

1 note that the Assessed Violation History Report for Excel indicates that from August 2, 

2005, through August 1, 2007, Excel received 15 citations for violations of section 75.517, 

supra, and 13 citations for violations of Section 75.604(b ), supra. (Government Exhibit I). 

31FMSHRC477 
in the record that prior to its being cited, the damage to the cable was obvious to visual 

observation. Further, there is not any evidence in the record as to when the cable was damaged, 

especially in relation in time to the inspection by Stepp. Thus, it cannot be concluded that Excel 

had knowledge or notice of the cited condition prior to the inspection. 

The parties stipulated that Excel demonstrated good·faith in attempting to achieve rapid 

compliance after notification of the violation. 

For the reasons set forth above, I find that the gravity of the violation was high as it could 

have resulted in a fatality. 

Considering all of the above factors set forth in Section l IO(i) of the Act, and placing 

emphasis on the high level of gravity, I find that a penalty of $1,657 is appropriate. 

ORDER 

It is Ordered that; within thirty days ofthis decision, Excel pay a penalty of $1,657 for 

the violation of 75.517, supra. 

Distribution: 

~~~.A11:."'.1isb~ Administra · ve Law Judge 

202-434-9940 

Tom Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 

230, Nashville, TN 37219-2456 

Noelle Holladay True, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 2333 Alumni Park 

Plaza, Suite 310, Lexington, KY 40517 

/Ip 

31FMSHRC478 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WOLF RUN MINING CO., 

Respondent 

April 15, 2009 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEY A 2008-471 

A.C. No. 46-04168-134618 

Docket No. WEY A 2009-252 

A.C. No. 46-04168-159504 

Sentinel Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Feldman 

These proceedings are before me based on petitions for assessment of civil penalty 

filed pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, as amended, 

("Mine Act"), 30 U.S.C. § 815(d). These matters concern Order No. 7101472 in Docket 

No. WEYA 2008-471 and Order No. 7101465 in Docket No. 2009-252 that allege violations 

of 30 C.F.R. § 75.220(a)(l)ofthe mandatory safety standards governing roof control plans. 

The Secretary asserts that these two violations are attributable to Wolf Run Mining Company's 

("WolfRun's") unwarrantable failure. Section 75.220(a)(l) provides: 

Each mine operator shall develop and follow a roof control plan, approved. 

by the District Manager, that is suitable to the prevailing geological 

conditions, and the mining system to be used at the mine. Additional 

measures shall be taken to protect persons if unusual hazards are 

encountered. 

The initial $163,500.00 proposed penalty included a proposed assessment of 

$151,600.00 for the violation in Order No. 7101472 that was designated by the Secretary as 

"flagrant" in nature. The cited condition occurred when a crosscut had been advanced 43 feet 

beyond the last row of permanently installed roof support in contravention of the approved roof 

control plan which limited advancement to 30 feet beyond the last full row of permanent support. 

The term "flagrant violation" was introduced in section l IO(a)(l) of the Mine Act, 

as amended by the Mine Improvement and New Emergency Response Act of2006 

("Miner Act"), 30 U.S.C. § 820(a)(l ). A violation is deemed flagrant under this statutory 

provision if there is" ... a reckless or repeated failure [by the mine operator] to make reasonable 

31 FMSHRC 479 
efforts to eliminate a known violation of a mandatory health or safety standard that substantially 

and proximately caused, or reasonably could have been expected to cause, death or serious bodily 

injury." Id. Under section 1 lO(a)(l) flagrant violations may be assessed a civil penalty as high 

as $220,000.00. 

The Secretary now has filed a motion to approve a settlement agreement and to 

dismiss these matters. 1 The settlement terms include reducing the proposed penalty for 

Order No. 7101472 from $151,600.00 to $45,000.00. Based on this reduction, the parties have 

agreed to reduce the total civil penalty from $163,500.00 to $56,900.00 for the two orders in 

issue. The substantial reduction in penalty is based on the removal of the "flagrant" 

classification in Order No. 7101472. Although the "flagrant" allegation was initially based on 

WolfRun's alleged repeated violations of several different provisions of its roof control plan2, 

the Secretary now has concluded that WolfRun's negligence, while high, does not rise to a level 

of repeated misconduct that justifies a "flagrant" classification. 

I have considered the representations and documentation submitted in these matters and 

I conclude that the proffered settlement is appropriate under the criteria set forth in Section 11 O(i) 

of the Act. WHEREFORE, the motion for approval of settlement IS GRANTED, and 

IT IS ORDERED that the respondent pay a civil penalty of $56,900.00 within 30 days of this 

order in satisfaction of the two orders in issue. Upon receipt of timely payment, the captioned 

civil penalty cases ARE DISMISSED. 

Distribution: 

Jerold Feldman 

Administrative Law Judge 

R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1340, 

401 Liberty Avenue, Pittsburgh, PA 15222 · 

Gayle M. Green, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 

Suite 630E, 170 Independence Mall West, Philadelphia, PA 19106-3306 

/rps 

1 These docket proceedings concern Order Nos. 7101472 and 7101465. The parties have 

also agreed that Wolf Run will pay the proposed assessment of $6,100.00 for Order No. 7101363 

that is not a subject of these proceedings. 

2 For example Order No. 7101472, initially designated as flagrant, cited a violation of the 

advancement provision of the roof control plan, while Order No. 7101465 cited a violation of the 

roof control provision that rib corners must be secured with three bolts on five foot centers. 

31 FMSHRC.480 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N. W., SUITE 9500 

WASHINGTON, DC 20001 

April 21, 2009 

. . . 

HOPKINS COUNTY COAL, LLC, 

Contestant 

CONTEST PROCEEDINGS 

v. 

Docket No. KENT 2009-820-R 

Citation No. 6694904; 0312312009 

Docket No. KENT 2009-821-R 

Order No. 6694905; 0312312009 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent. 

Docket No. KENT 2009-822-R 

Citation No. 6694906; 0312312009 

Mine ID 15-18826 

Elk Creek Mine 

ORDER STAYING PROCEEDINGS 

ORDER REQUESTING SECRETARY'S COUNSEL TO REPORT . . AND 

ORDER DIRECTING COUNSELS TO SUBMIT STIPULATION IF NECESSARY 

These are contest proceedings arising under section 105(d) of the Federal Mine Safety 

and Health Act of 1977 (30 U.S.C. § 815(d)) (Mine Act or Act), in which Hopkins County Coal, 

LLC ("HCC") challenges the validity of two citations and one order of withdrawal issued to the 

company at its Elk Creek Mine, an underground coal mine located in Hopkins County, Kentucky. 

Citation No. 6694904 (Docket No. KENT 2009-820-R) alleges HCC violated section 

103(a) of the Act, when, on March 23, 2009, it: 

failed to produce/provide records requested by MSHA 

special investigators during the performance of investigative duties under section 105(c) of the Act.[1] On February 

1

Section 105(c)(2) of the Act (30 U.S.C. § 815(c)(2)) requires the Secretary"[u]pon 

receipt" of a miner's discrimination complaint to "forward a copy of the complaint to the ... 

[operator] and cause such investigation to be made as ... [the Secretary] deems appropriate." 

Section 105( c )(2) further states, "If upon such investigation, the Secretary determines that ... 

[the operator has discriminated against the complainant, the Secretary] shall immediately file· a 

complaint with the Commission." Under section 105(c)(3) the Secretary must reach a 

determination whether discrimination occurred within 90 days of the receipt of the miner's 

31 FMSHRC 481 
23, 2009(,] written requests for specific documents were 

given to the operator's legal counsel ... as directed by 

the mine operator. 

Sections 103(a) and [103](h) of the Act [require] the 

operator to furnish information requested by the 

Secretary that she has determined necessary in 

carrying out the provisions of the Act.[2] 

In issuing the citation, MSHA Special Investigator Kirby Smith gave HCC 45 minutes, or 

until 9:00 a.m., to comply. See Citation No. 6694904. At 9:00 a.m. the special investigator 

determined HCC had not complied by providing all of the items requested, and he issued Order . 

No. 6694905 (KENT 2009-821-R) pursuant to section 104(b) of the Act to the company.3 30 

U.S.C. § 814(b). 

In issuing the order, the special investigator stated: 

The operator[' s] agent ... refused to comply with 

... Citation No. 6694904 requiring the operator 

to produce/provide records requested by MSHA. 

Special Investigators during the performance of 

their official duties ininve$tigation activities 

under [section] 105(c) of the Mine Act. 

Order No. 6694905. 

After five minutes passed and the requested documents still were not produced, at 9:05 

a.m. Smith issued another section 104(a) citation to HCC for continumg to work in the face of 

complaint. 30 U.S.C. § 815(c)(3). 

2

Section 103(a) authorizes the Secretary to "make frequent inspections and investigations 

... for the purpose of determining whether there is compliance with the mandatory 

health or safety standards or with any citation, order, or decision ... or other requirements of 

this Act." 30 U.S.C. § 813(a). Section 103(h) in pertinent part requires an operator to ''provide 

such information, as the Secretary ... may reasonably require from time to time to enable him to 

perform his functions under this Act.'' 30 U.S.C. § 813(h). 

3

Section 104(b) of the Act provides for the issuance of an order when an inspector or 

other authorized representative of the Secretary finds that a violation described in a citation 

issued under section 104( a) of the Act has not been totally abated within the time originally fixed 

and that the time should not be further extended. 

31 FMSHRC 482 
the order. Citation No. 6694906 (KENT 2009-822-R) states: 

The operator[']s agent continued to deny to 

produce/provide the records requested by [the] 

MSHA Special Investigator after the reasonable 

time for abatement had expired on ... 104(a) 

[C]itation No. 66904904. The Operator[']s 

agent continued to refuse to provide the requested 

records after ... 104(b) withdrawal [O]rder No. 

66904905 was issued. 

This citation is issued for continuing to operate 

in [the] face of a withdrawal order. 

Citation No. 6694906. 

In issuing the citation, the special investigator indicated it should be abated by 10:00 a.m. 

Citation No. 6694906. When it was not abated, HCC became subject to the provisions of section 

1 IO(b )(1) of the Act, which provides that"[ a ]ny operator who fails to correct a violation for 

which a citation has been issued under section 104( a) within the period permitted for its 

correction may be assessed a civil penalty of not more than $5,000 fot each day during which 

such failure or violation continues." 30 U.S.C. § 820(b)(l). 

THE CONTESTS AND THE PARTIES' PLEADINGS 

On the same day the citations and order were issued, HCC filed its subject contests with 

the Commission.4 HCC maintained, inter alia, that the conditions cited did"not fall within the 

purview of the Mine Act" and that the citations and order were issued for conditions "not 

violative of the [Act]." Notice of Contest (March 23, 2009). Due to the penalty strictures of 

section 1 IO(b)(l), HCC moved for expedition of the proceedings. In its motion to expedite, the 

company noted that among the materials requested by MSHA were the "personnel files of all 

employees at the Elk Creek Mine who were disciplined or terminated during the period of 

January 1, 2004 - January 20, 2009 for engaging in the conduct which led to the termination of 

Robert Gatlin[, the miner who filed.the original complaint with MSHA]." Mot. For Expedit'n of 

Proceedings 1 (March 23, 2009) (quoting MSHA letter of February 23, 2009 Carl E. Boone, II, 

MSHA District I 0 Manager to Marco M Rajkovich, counsel to HCC). HCC objected that the 

requested files were "not documents required to be recorded and maintained by the operator 

pursuant to the Mine Act;" that "release of employees' personnel files would violate the 

employees' rights to privacy and confidentiality;" that "[t]he request [was] unduly burdensome 

and ... tantamount to harassment in the overly broad, sweeping request for all files covering a 

4

Although only one contest was filed, it pertained to all three enforcement actions, and the 

single contest was docketed as three separate cases. 

31 FMSHRC 483 
five-year period." Id. 2 (emphasis in original). HCC stated, "Given that the issue is a legal one, 

... [HCC] does not anticipate the necessity for a full evidentiary hearing and, given the nature of 

the Order and Citations subjecting ... [HCC] to severe penalties, ... [HCC] requests that the 

issue be dealt with via teleconference today. or as soon thereafter as a telephonic hearing can be 

scheduled." Id. 

On March 24, the matter was assigned to Commission Administrative Law Judge 

Jacqueline Bulluck, who at the time was on official duty in Pennsylvania. Shortly thereafter, the 

Secretary filed an opposition to HCC's request for expedition. She also filed a motion for 

summary decision. HCC then filed a reponse and a cross-motion for summary decision, which 

was followed by the Secretary's response. In her opposition and motion for summary decision, 

the Secretary set out in some detail her version of the events that engendered the citations and 

order. The Secretary's chronology was not significantly disputed by HCC. 

EVENTS LEADING TO THE CONTESTS 

The Secretary noted the alleged discriminatee, Robert Gatlin, filed a complaint with 

MSHA on January 20, 2009. In the complaint, Gatlin, who was fired on January 8, alleged he 

was discharged in violation of section 105(c) of the ActbyHCC. 5 30 U.S.C. § 815(c). The 

company was notified of the January 20 complaint by letter that same day.6 On January26, the 

MSHA district manager advised HCC by letter that MSHA wanted to interview five named 

miners "as part of ... [its] investigation of ... [Gatlin's] [d]iscrimination [c]omplaint ... during 

the fact-finding segment of this investigation." Sec. 's Mot. for Sum. Decision 2, Exh. 2. The 

district manager requested HCC contact one ofMSHA's special investigators by February 6 

5

ln the complaint Gatlin summarized the alleged discrimination he suffered by stating: 

I feel that I was unfairly terminated due to being 

·directed to do more than my regular job duties 

on a daily basis, which I would do on weekends 

for extra pay. I also feel that the comment about 

the union played a part in my being discharged. 

I would like my job back, any negative comments 

deleted from my personnel file and backpay for 

the time I've been off. I feel that my name has 

been black balled in the mining industry around 

here and they will not hire me. 

Sec.'s Mot. for Sum. Decision (March 26, 2009), Exh. 1 at 2. 

6

ln addition to notifying the company of the January 20 complaint, the letter stated that 

MSHA Special Investigator Kirby Smith would contact the company "during the fact-finding 

segment of this investigation." Sec.'s Mot. for Sum. Decision (March 26, 2009), Exh. J. 

31 FMSHRC 484 
"with a convenient date and time to conduct these interviews." . Id. By letter dated February 6, 

counsel for HCC responded that the letter.of January 26 had not been sent to him or to the legal 

department of the company as counsel previously requested. Counsel renewed his request with 

regard to all further contact concerning any investigations. Counsel also refused to arrange the 

interviews requested by the distridmanager. Counsel stated, "[W]e are not in a position to 

arrange any interviews yet because we fail to grasp, and would appreciate your identifying, what 

the alleged protected activity is under this Mine Act discrimination complaint. If the protected 

activity can be identified, I'm confident my client will give further consideration to your 

request." Id., Exh. 3. 

On February 23, the district manager sent HCC's counsel the letter referenced in Citation 

No. 6694904. In it MSHArequested: 

1. Robert Gatlin' s personnel file[;] 

2. Any documents showing disciplinary action that 

was taken against Robert Gatlin by [HCC;] 

3. Documents showing any hazards or potentially 

hazardous conditions, including but not limited to 

pre-shift, on.:.shift and conveyor belt examination 

hooks at the ... [ m ]ine for the period July l, 2008 

- January 31, 2009[;] 

4. Any employee handbook or employee manual 

that was used by [HCC] from January 1, 2004 -

January 31, 2009[;] 

5. The personnel files of all employees at the ... 

[ m ]ine who were disciplined, reprimanded, or 

terminated during the period of January 1; 2004 

- January 20, 2009 for engaging in the conduct 

which lead to the termination of Robert Gatlin. 

6. All documents relied upon by [HCC] in its 

decision to terminate Robert Gatlin. 

Sec.'s Mot. for Sum. Decision (March 26, 2009), Exh. 4. MSHA asked that the documents be 

given to the special investigator by the close of business on March 2, 2009. 

On March.2, in a letter to the district manager, counsel for HCC stated he regretted not 

responding sooner, but the letter of February 23 was not received by counsel until Thursday, 

February 26, when counsel was out of the office. In the March 2 letter counsel again asserted the 

31 FMSHRC 485 
complaint did not state a protected activity, and counsel renewed his request that MSHA clarify. 

"how ... [the complaint] states a claim under the Mine Act." Sec. 's Mot. for Sum. Decision 

(March 26, 2009), Exh. 5. Counsel noted the record books requested in the February 26 letter 

were available for review at MSHA's convenience, and counsel stated he would respond to the 

request for the other items once he discussed the request with HCC officials. Id. 

On March 17, the district manager again wrote to counsel, advising him that MSHA's 

special investigators would be at the mine on March 23 and that they intended to review and 

copy the specified examination books. The district manager asked counsel to "remind [his] 

client of its obligation to cooperate in [the] investigation and produce the records that have been 

requested." Sec. 's Mot. for Sum Dec. (March 26, 2009), Exh~ 6. The letter also requested HCC 

have "all documents listed in the February 23 ... letter available for inspection ... on March 

23." Id. 

On March 18, counsel for HHC wrote to the district manager, supplementing counsel's 

response of March 2. In the March 18 letter, counsel again requested "clarification regarding 

how [Gatlin's complaint] states a claim under the Mine· Act." Sec.'s Mot. for Sum. Decision 

(March 26, 2009), Exh. T. Counsel asserted one ofHCC's rights under the Act "is to know what 

it is the agency is investigating." Id. Counsel also responded in detail to the items requested by 

MSHA. With regard to Gatlin's personnel file, counsel stated that; in view of the confidential 

nature of the contents of the file, the agency should provide HCC with a waiver and release from 

Gatlin. Sec.'s Mot. for Sum. Dec. (March 26, 2009), Exh. 7 With regard to the documents 

showing disciplinary action taken against Gatlin, counsel attached them to his letter. Id. With 

regard to the pre-shift, on-shift, and conveyor belt examination books for July 1, 2008 - January 

31, 2009, counsel advised the district manager, as he had in his March 2 letter, that the record 

books were available for review at the mine at MSHA's convenience.Id. With regard to a 

manual or handbook that employees used at the mine from Janaury 1, 2004 - January 20, 2009, 

counsel attached the material to his letter. Id. With regard to the personnel files of employees 

disciplined, reprimanded or terminated between January l, 2004, and July 20, 2009, "for 

engaging in conduct which led to the termination of ... Gatlin," counsel stated the company 

objected to the request, ••given that no protected activity exists in this case, that the company does 

not release personnel files as requested absent consent from the individual employee, and that 

otherwise, no employee other than ... Gatlin was disciplined, reprimanded or terminated for 

engaging in conduct which led to his own termination." Id. Finally, with regard to the 

documents relied upon by HCC in its decision to terminate Gatlin, counsel referred MSHA to the 

documents he attached in response to the government's request for "documents showing 

disciplinary action that was taken ... against Gatlin" and to the employee handbook. Id. 

After counsel's March 18 response, the issues dividing the parties appeared to have been 

MSHA 's request for the personnel files of Gatlin and MSHA' s request for the personnel files of 

employees disciplined, reprimanded or terminated "for engaging in conduct which led to the 

termination of ... Gatlin." Sec. 's Mot. for Sum. Decision {March 26~ 2009), Exh. 4. The 

impasse over the files led the district manager to again write to the company's counsel. In a letter 

31 FMSHRC 486 
dated March 20, the district manager stated that HCC "refuse[d] to produce many documents ... 

[MSHA] requested[,] [s]pecifically .. ; Gatlin's personnel file and the personnel files of any 

other employees who were terminated for the reason ... Gatlin was terminated." Id., Exh. 8. 

The district manager further stated he expected the files to be provided to the special 

investigators on March 23, and he added "we note the tactics used by the company ... to delay 

this investigation [and, w ]e also note the repeated refusals of the company to provide documents 

and information to which MSHA is clearly entitled under the Act." Id. 

On March 23, counsel for HCC responded, terming "unfounded" the district manager's 

allegations of the company's "repeated refusals to produce documents and information to which 

MSHA is 'clearly entitled under the Act."' Sec.' s Mot. for Sum. Decision. (March 26, 2009), 

Exh. 9. Counsel again advised the district manager that Gatlin's file would be given to the 

special investigators once MSHA obtained a consent and release form from Gatlin. Counsel did 

not mention the request for other files. However, counsel did assert, ifMSHA could not inform 

HCC of Gatlin's alleged protected activity, then "the agency [had] no case to investigate, no 

jurisdiction, no entitlement and no basis upon which to make any request." Id. 

When Kirby Smith-and another special investigator arrived at the mine at 8:00 a.m. on 

March 23, they reviewed the conveyor belt examination book, apparently the only book in which 

they were interested. They also asked for the personnel files, which the company refused to 

produce. Kirby Smith then issued Citation No. 6694904, Order No. 6694905, and Citation No. 

6694906 in quick succession, and HCC immediately filed its contests ... 

PROCEEDINGS FOLLOWING THE CONTESTS 

Judge Bulluck was assigned the cases the next day, and she promptly initiated a 

conference call with counsels. A few days after the March 24 call, HCC sent numerous 

documents to MSHA via fax, and MSHA abated the order and subsequent citation. 7 

In the meantime, because of the difficulty of contacting the parties and receiving 

facsimile copies at a remote duty station, the matter was reassigned from Judge Bulluck to me. 

7

According to counsel for HCC's letter of March 26, regarding "Supplemental Document 

Production to Discrimination Complaint,'.' submission of the supplemental documents was based 

on "oral clarifications as to the scope of the request made by counsel for the Secretary in the 

March 24 [conference call]." Letter of MarcoRajkovich, Jr., Esq., Counsel for HCC to Teresa 

Ball, Esq., Associate Regional Solicitor (March 26, 2009). The documents submitted by HCC 

included Gatlin's personnel file (released with the caveat HCC be held blameless should the 

personal information contained in the file enter the public domain) and the personnel files (with 

personal information redacted) of four employees. Counsel also stated it was not until the 

conference call of March 24 that counsels for MSHA made HCC aware that MSHA was seeking 

the "files of employees who were disciplined for engaging in conduct which HCC claims lead to 

the termination of Gatlin." Id. 2 (emphasis in original). 

31 FMSHRC487 
In a conference call on March 27, the parties agreed abatement of the order and citation, which 

apparently occurred on March 26, ending HCC' s continuing liability under section 1 IO(b )( 1) of 

the Act for daily penalty assessments. 30 U.S.C. § 820(b )(I)'. Counsels also reiterated their belief 

resolution of the contests was appropriate for summary decision. Counsel for the Secretary 

stated she intended to" file a response to HCC's cross-motion, and I advised the parties, once I 

received it, I would allow counsels ten days to file any additional arguments they wished to 

make. 8 Also, counsels led me to understand the abatement of the order and citation obviated the 

need to expedite the proceedings. Nonetheless, both sides indicated they wanted the issues 

decided forthwith. Atthe time, I concurred. On April 2, I issued an order denying HCC's 

motion to expedite, but stated I would decide the issues promptly; Denial of Motion to Expedite 

(April 2, 2009). Following this, counsel for the Secretary filed her response to HCC's cross 

motion for summary decision. 

ARGUMENTS FOR SUMMARY DECISION 

THE SECRETARY 

The Secretary argues the citations and order were issued because ofHCC's intentional 

refusal to produce documents to which the Secretary"'wasclearly entitled." See's Mot. for Sum. 

Decision 1. She asserts her actions in issuing the three enforcement actions "were within her 

investigative and enforcement authority and correct as a matter of law." Id. 2. 

The Secretary insists section 103( a) {authorizing the Secretary to make "frequent .. . 

investigations ... for the purpose of ... determining whether there is compliance with .. . 

requirements of this Act"); section 103(h) (requiringuperators to "provide such information, as 

the Secretary ... may reasonably require from time to time to enable him to perform his 

functions under this Act); and section 108 (allowing the Secretary to seek civil relief when an 

operator does not, inter alia, "permit access to, and copying of, such records as the Secretary ... 

determines necessary to carry out the provisions of [the] Act") require HCC to produce the 

requested files and information. She asserts, when HCC failed to produce the materials, the 

Secretary had the discretion to proceed against the company either by issuing the subject citations 

and order, or by seeking relief in federal district court under section 108 of the Act (30 U.S.C. §. 

818), or by proceeding on both tracks. Sec.' s Mot. for Sum. Decision 6-7. 

The Secretary asserts HCC cannot refuse to provide the information because the Secretary 

lacks a waiver and release from Gatlin and/or the other employees. According to the Secretary, 

HCC bears the burden of showing the Secretary's investigative authority under section 103(a) 

and section 103(h) of the Act is subject to any statutory exception requiring the Secretary to 

obtain waivers and releases, and HCC has not done so. Sec. Mot. for Sum. Decision 7. 

8

Counsel for the Secretary's Response was received on April 7. See Order Governing 

Final Submissions (April 7, 2009). On April 17, 2009, HCC filed a Supplemental Response for 

Summary Decision ("HCC's Sup. Resp."). 

31 FMSHRC 488 
Alleging that HCC has engaged in "dilatory tactics," the Secretary notes, although it had 

requested interviews with five specific employees on January 26, HCC had, according to the 

Secretary, "refused to permit these interviews." Sec. 's Mot. for Sum. Decision 8. The Secretary 

asserts HCC's motive is to delay and obstruct the Secretary's investigation by refusing to provide 

the information to which the Secretary lawfully is entitled.9 Id. 9. 

Finally, the Secretary argues she "has only sought ... [Gatlin's] files and the files of 

those employees and former employees whom [HCC] has 'disciplined, reprimanded or 

terminated ... for engaging in the conduct which led to the termination of ... Gatlin"' Sec.' s 

Mot. for Sum. Decision 9 (quoting MSHA Letter of February 23, 2009, Carl E. Boone II, District 

I 0 Manager to Marco M Rajkovich, Counsel to HCC). She describes her requests as "clear, 

narrowly drawn and relevant." Id. In summarizing her'position, the Secretary states she must 

determine whether Gatlin was treated differently than other similarly situated employees, and that 

HCC cannot avoid production of lawfully demanded records by making "unsupported and . 

baseless demands for waivers and releases designed for the purpose of impeding the Secretary's 

investigation." Sec.'s Mot. for Sum. Decision 10. 

HCC asserts Gatlin was.terminated on: January 8, 2009, for insubordination, because he 

refused to conduct a required pre-shift examination on January 5. According to HHC, Gatlin 

refused because he claimed he was "due extra pay." HCC's Resp. to Sec.'s Mot. for Sum. 

Decision and Cross-Mot. for Sum. Decision ("HCC's Resp.") 2. 

HCC acknowledges receipt of a January 26 letter from MSHA to its General Manager 

requesting interviews with specified HCC personnel. HCC states it previously asked that all 

requests for information of an investigative nature be directed to its legal department. As a result 

of the misdirection of the request, on February 6, HCC again asked that inquiries relating to 

MSHA investigations be sent to its legal department. The company also requested MSHA clarify 

the nature of the alleged discriminatory conduct. HCC states two weeks passed before MSHA 

responded. It notes in that response, dated February 23, MSHA ignored HCC's request for 

clarification and, among other things, requested the disputed personnel files. HCC's Resp. 2-3. 

HCC asserts it was not until the March 24 conference call with Judge Bulluck that it 

understood what it thinks MSHA wanted, that the requested documents were "presumably ... 

[those] related to HCC's reason for termination of Gatlin, as may be applicable to other 

similarly disciplined employees, and apparently not documents related to Gatlin's reason for 

9

However, the lack of interviews with the employees does not appear to have played a 

role in the issuance of the contested citations and order, since they were abated when HCC 

produced copies of the requested files, and as it is unclear to me ifthe employees have yet been 

intereviewed. Indeed, it is unclear ifMSHA's request in this regard is outstanding. 

31 FMSHRC 489 
why he thinks he was terminated."10 HCC's Resp. 4 (emphasis in original). With this 

understanding, it produced over 106 pages of documents in response to MSHA' s request. Id. 

HCC argues the contested citations and order must be vacated because MSHA is not 

entitled to the personnel files it requested. According to HCC, the files are protected by the 

Fourth Amendment of the Constitution and involve confidentiality and privacy concerns of 

HCC's employees. Turning them over without releases could expose HCC to litigation. Id. at 5-

6. The company insists the government does not have a right to "rummage in any wholesale way 

or to initiate a general search" for records and documents not required to be kept under the Mine 

Act. Jd; at 6 (quoting Youghiogheny and Ohio Coal Co. v. Morton, 364 F.Supp.48, 51, n.5 (D. 

Ohio 1973)). HCC also points to Commission Administrative Law Judge James Broderick's 

decision in Sewell Coal Co., 1 FMSHRC 864 (Feb. 1979) in which, according to HCC, Judge 

Broderick recognized constitutional difficulties prevented MSHAfor validly issuing a citation 

and order when Sewell refused to allow MHSA to inspect personnel files containing accident, 

injury and illness records and medical and compensation records in order to determine Sewell's 

compliance with Part 50 reporting requirements. 11 Id. at 6-7. 

HCC asserts the Commission also recognized in Peabody Coal Co., 6 FMSHRC 183 

(February 1984), while records required to be kept under the Mine Act must be available to 

MSHA, and while an operator has no realistic expectation of privacy for such records, the same 

is not true if sought-after files contain data not required to be maintained by the Mine Act as well 

as data open to MSHA. HCC's Resp. 8. HCC emphasizes that MSHA is requesting the entire 

files of its employees, and HCC insists the government is not entitled to the entire contents of the 

files without a warrant. Id.; see also HCC's Sup. Resp. 5. 

Summarizing its objections, the company again takes issue with the wording of the 

February 23 request. According to HCC, MSHA actually sought "files evidencing that other 

employees have been disciplined for similar reasons as the reason that HCC claims it disciplined 

Gatlin." HCC Resp. 10. Such evidence, if it existed, would support HCC's affirmative defense, 

it would not support the existence of a valid claim. HCC states MSHA should have requested 

1

°I interpret this to mean HCC did not respond concerning the personnel files other than 

Gatlin's, because it thought MSHA wanted the files of those employees who were terminated for 

the same reason Gatlin believed he was fired~ that HCC was unable to tell from Gatlin's 

complaint why Gatlin thought he was let go, and that this was one of the reasons why the 

company made repeated (and unanswered) requests for clarification of Gatlin' s complaint. 

11HCC notes its sought-after files contain social security numbers, bank names, account 

numbers, and health information of its employees and their dependents, all of it information to 

which MSHA is not entitled without a warrant. HCC' s Resp. 9-10. HCC also notes it ultimately 

released all information relating to Gatlin, but only after the Secretary assured HCC that Gatlin 

did not object to his file being produced in its entirety. 

31 · FMSHRC 490 
"personnel files of individuals who engaged in the same conduct as Gatlin, but were not 

disciplined." Id.; see also HCC's Sup. Resp. 5. HCC concludes by stating that MSHA and 

Gatlin have no information any employees have been treated disparately, and it asserts Gatlin and 

the Secretary are engaged in a fishing expedition to see if they can uncover a case without any 

reasonable cause to believe that discrimination actually has occurred. Id. at 10-11. 

SECRETARY'S RESPONSE 

The Secretary responds that HCC's contests are "without merit and there are no 

constitutional matters at issue." Sec.'s Resp. (April 3, 2009) at 1. 

DEFERRAL OF RULING 

As I previously noted, in denying HCC's motion to expedite the proceedings, I stated, 

"[T]he important issues raised in the parties' . . . cross-motions ... will be decided promptly." 

Denial of Mot. to Expedite (April 2,·2009). However, after a more complete consideration of the 

facts and the arguments, I conclude there is no need to rush. The Secretary must propose 

penalties for the company's alleged failure to produce the requested materials and for the 

company's failing to correct the alleged violation. 30 U.S.C. §§ 820(a), 820(b). In the 

meantime, the contested.enforcement actions have been abated, and the Secretary's investigation 

is ongoing:· Much may happen between now and the parties' consideration of the Secretary's 

penalty proposals to obviate the parties' present desire for summary decision. Judicial restraint 

warrants deferring ruling on an issue until required to do so, and neither party has shown an 

immediate ruling is needed. 

Indeed, upon reflection, the parties may well come to share my doubts as to whether 

these cases present a desirable basis for resolving the questions at issues. Obviously, the 

Secretary has a statutory duty to conduct an investigation of Gatlin' s complaint. Obviously, too, 

HCC has a concomitant duty to cooperate in the investigation. However, the Secretary's 

investigation must be "reasonable" (see 30 U.S.C. § 813(h)), and part ofbeing "reasonable" 

when requesting materials is to make sure that which is sought is clearly described. MSHA's 

request for, "[ t]he personnel 'files of all employees at the ... [ m ]ine who were disciplined, 

reprimanded, or terminated.during the period of January 1, 2004 - January 20, 2009 for engaging 

in the conduct which led to the termination of Robert Gatlin." (MSHA Letter of February 23, 

2009, Carl E. Boone II, District I 0 Manager to Marco M Rajkovich, Counsel to HCC) is far 

from clear and can be interpreted in a number of different ways, as HCC rightly notes. HCC's 

Resp. 4, Exh. 5. Moreover, and as HCC points out, if read literally, MSHA's request is for files 

in their entirety. Only later did the Secretary seemto acknowledge private informatfon in the 

files could be redacted. One might conclude a reasonably conducted investigation would make 

sure the operator's right to redact objectionable information was plainly stated from the 

beginning. Further, MSHA repeatedly ignored, without explanation, HCC's understandable 

requests for clarificatiori of a complaint that on its face sets forth no discemable allegations of 

protected activity. Surely, part of the agency's duty to conduct a reasonable investigation is to 

31 FMSHRC 491 
apprise those being investigated of how the law was allegedly broken. 

For its part, the company's conduct, too, has been faulty. Itdid not immediately request a 

clarification of the district manager's February 23 request for the personnel files, and its 

objection to the release of Gatlin' s file without a waiver, .while perhaps technically warranted, 

seems overly protective. 12 Further, being represented by experienced counsels, the company 

must have known, without being told, that it is common when materials are requested for the 

party providing the materials to redact those parts it deems are not properly subject to the request. 

Apparently, this is what ultimately was· done, but only after the threat of daily penalties was made 

real. 

Unfortunately, the entire controversy smacks of "who struck John," with a lack of 

cooperation and clear, forthright communication on both sides. The parties have ensnared 

themselves in what is essentially a discovery dispute. Had the same dispute arisen after a 

discrimination complaintwas filed with the Commission, it would have been resolved before a 

judge without the objector hazarding penalties of up to $5,000 per day. Had the dispute been 

taken before a United States federal district court pursuant to section 108 of the Act (30 U.S.C. § 

818) it also most likely would have been resolved without a monetary penalty threat. 13 

In my view, when penalties finally are proposed, it will behoove the parties to take into 

account the state of the Secretary's investigation, the amount of the penalties, the prior missteps 

on both sides and, working together, to resolve the contest and civil penalty proceedings in one 

stroke, short of summary decision. The adage "hard cases make bad law" often is misquoted as 

"bad cases make bad law," and, here, the aphoristic error is entirely apt. This is not to say the 

parties have raised issues that are incapable of decision. Rather, it is to recognize because issues 

can be decided does not mean they should be. The flawed context within which these particular 

issues have arisen suggests a second look at all aspects of the matter may lead the parties to 

conclude the issues are best reserved. for another day and another case. 

ORDER 

For the reasons set forth above, a ruling on the parties' cross-motions for summary 

decision IS DEFERRED and these contest proceedings ARE STAYED pending the filing of an 

associated civil penalty case or cases by the Secretary. Counsel for the Secretary IS 

12If a complaint is filed by the Secretary charging the company with discrimination, the 

Secretary and the miner are separate parties (29 C.F.R. § 2700.4(a)), but during the investigatory 

stage of the miner's complaint, the Secretary surely may be assumed to be acting on behalf of the 

mmer. 

13In fact, it takes little imagination to envision the reaction of a district court judge or 

federal magistrate if presented with a request for injunctive relief in a. discovery dispute the 

parties should have been able to resolve themselves. 

31 FMSHRC 492 
REQUESTED to advise me on or before June 1, 2009, and by the first day of each succeeding 

month, as to the status of the penalty assessment case(s). 

Within 15 days of the date of this Order, counsel for the Secretary IS ORDERED to file 

a copy or copies of the abatement or abatements at issue. If the abatement ·or abatements do not 

specify and describe in full the-documents HCC filed and MSHA concluded abated the order-and 

citations, within the same 15 days counsels ARE ORDERED to submit a written stipulation 

specifying and describing the documents. 

PMflf&/~ David F. Barbour 

Administrative Law Judge 

Distribution: (Certified Mail) 

Theresa Ball, Esq., Thomas A. Grooms, Esq., Matt S. Shepherd, Esq., U.S. Department of Labor, 

Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219-2456 

Marco M. Rajkovich, Esq., Melanie J, Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, 

PLLC, 2333 Alumni Park Plaza, Suite 310, Lexington, KY 40517 

/ej 

31 FMSHRC 493 
31 FMSHRC 494 

G:.0 U.S. GOVERNMENT PRINTING OFFICE: 2000-350-058/74302